R v Woolsey, 2021 BCCA 439
[November 23, 2021] Sentencing: Failure to Consider Discharge [Reasons by Abrioux J.A. with Dickson and Fitch JJ.A. concurring]
AUTHOR’S NOTE: Deference is owed to judges on sentencing. As per the principles in Friesen, there can only be appellate interference if the sentence is demonstrably unfit or an error in principle occurs that affects the sentence. However, here a principle submission before the sentencing judge was that they should impose a conditional discharge and in not imposing that sentence, the judge failed to consider the discharge submission in his reasons. The failure to do so caused the BCCA to intervene and impose the sentence. Although the facts of this case (medical marjuana advocate/dispensary) and the imposition of a discharge are unlikely to be replicated, the principle that a failure to provide reasons for a form of sentence being dismissed is a welcome addition to the defence arsenal on appeal. Trial counsel should note when the trial judge fails to mention why or how they rejected a form of sentence (ie. conditional discharge, conditional sentence, intermittent sentence, etc...)
 On April 5, 2018, following a trial in the Provincial Court of British Columbia, the appellant was convicted of five counts of trafficking in cannabis contrary to
s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA].
 The sentencing hearing occurred on April 5, 2018, immediately following
Mr. Woolsey’s conviction. The trial judge imposed a sentence of one day imprisonment concurrent on each count, a fine of $250 on each count—for a total of $1,250—and certain ancillary orders.
 The only issue on this sentence appeal is whether the trial judge, by failing to grant the appellant a conditional discharge, committed an error in principle that had an impact on the sentence. Absent such an error, in my view, the sentence was not demonstrably unfit.
 Mr. Woolsey is a passionate believer in the right to reasonable access to cannabis for medical purposes. The background was summarized this way in Woolsey CA:
 In February 2015, Mr. Woolsey opened a Compassion Club dispensary in Deroche, B.C. He sold marihuana and derivative products there to customers permitted to possess them pursuant to a valid medical authorization, as provided for in the Marihuana for Medical Purposes Regulations, SOR/2013-119 [MMPR]. According to Mr. Woolsey, before opening the dispensary he consulted with Staff Sergeant Rob Dixon of the Mission RCMP, who led him to believe he could operate it without police interference so long as he sold his products only to persons with a verified medical need for cannabis.
 On September 24, 2015, September 25, 2015, November 19, 2015 and November 21, 2015, Mr. Woolsey sold cannabis at the dispensary to undercover officers who did not produce documentation showing they were authorized to possess it for medical reasons. On November 25, 2015, police arrested him for trafficking and searched the dispensary and his residence, where they seized various items, including cannabis plants and video recordings.
 ... Crown counsel acknowledged that the potential sentence had a range from an absolute discharge to a custodial term of five years less a day.
 Mr. Woolsey outlined his personal circumstances to the judge, including that he was 66 years old. He acknowledged a criminal record for possession of cannabis which dated from 1969 to 1978. He stated that as a teenager he had been diagnosed as hyperactive for which psychiatrists had prescribed valium. This led him to commence taking cannabis as a replacement therapy. Over the years, he had become an advocate for cannabis as a pain and behaviour therapy. He said he had been consuming cannabis for over 40 years to assist with his own condition and, in his words: “In fact, it enabled me to excel in all my jobs instead of racing ahead of everyone else.”
 In so far as the offences were concerned, it was Mr. Woolsey’s submission that his interaction with law enforcement officers both prior and subsequent to the opening of his business had led him to believe that compassion clubs such as the one he was operating would be “tolerated”. In that regard, he pointed to a newspaper article that had appeared in the Mission Record on January 30, 2015 and which referred to an RCMP Staff Sergeant stating that compassion clubs were traditionally tolerated.
 The appellant submitted that under the circumstances:
I think I should have a conditional discharge. Your Honour if you want to give me time, give me time served, the 10 hours I spent ... in that ... cell...
 Having set out the parties’ position on sentencing, the judge then completed his analysis and conclusions which I now set out essentially in their entirety:
 I take into account the extrajudicial consequences that have resulted, specifically the loss of considerable amount of property, not just offence- related property, but the other consequences, the other financial losses that have resulted from this.
 I also take into account the motivation. I do agree with Mr. Woolsey that there is a difference between a person motivated to commit an act that can potentially easily cross the line into a criminal offence where the motivation is a legitimate desire to help persons with illnesses versus the person who sells simply for profit motive who simply uses the substance for pleasure or to enhance the pleasure of others where there is a greed motivation and I do not sense that that has been the motive in this case.
 All of this still leaves me perplexed with the appropriate sentence in this case. I have difficulty in reaching the conclusion that this calls for a jail sentence, as I say, particularly because of the fact that the landscape might be quite different a year from now and that it is hard to justify sending somebody to jail for something that the person with the passage of a few more calendar months could do with impunity.
 I am satisfied that it is not necessary to separate Mr. Woolsey from society. I would have greater concerns about rehabilitation if this was an offence motivated for profit or if this was an offence that was harmful to children or something along that line, aside from consenting adults.
 The order that I am going to make is this. On each of the five offences, there will be a sentence of one day concurrent on each count to be applied against the time served.
 In addition to the time served, there will be a fine of $250 on each offence. I am taking into account that some of that money is going to be coming back from the items that were seized by Mr. Woolsey but I think that is the compromise that is called for in these circumstances. ...
Legal Framework for Sentencing
 The well established framework which relates to absolute and conditional discharges was summarized by Justice Bennett in R. v. Jeremiah, 2018 BCCA 89:
...R. v. Fallofield (1973), 1973 CanLII 1412 (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.)...
 This Court reviewed a number of authorities, and concluded with the following, subject to the exercise of discretion by the sentencing judge, at 454-55:
From this review of the authorities and my own view of the meaning of s. 662.1 [now s. 730(1)], I draw the following conclusions, subject, of course, to what I have said above as to the exercise of discretion.
1) The section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life or by death.
2) The section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivial violation.
3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the best interests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused, that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the next consideration into operation.
4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.
5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions.
6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions. ...
 Mr. Woolsey submits that the judge committed a material error that impacted on the sentence by failing to consider whether granting him a conditional discharge, in the circumstances of this case, would be contrary to the public interest. In the alternative, he argues that the sentence of time served and the $1,250 fine was demonstrably unfit.
 As the Court noted in Friesen, errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle if the judge exercises her or his discretion unreasonably by emphasizing one factor or by not giving enough weight to another.
 The judge summarized the appellant’s position in his reasons as follows:
 Mr. Woolsey asks either for a sentence of time served or a sentence, alternatively, of a conditional discharge.
 Given that the only reference in the judge’s reasons to a conditional discharge is found at para. 10, and that the Crown made no submissions regarding the propriety or otherwise of a conditional discharge, this raises what in my view is the central question on appeal: upon reading the reasons functionally and contextually, and taking into account the live issues at the sentencing hearing, can it be concluded that the judge implicitly engaged with a sentencing submission and with a proposed disposition that was available as a matter of law and reasonably open to the appellant to seek in the circumstances of this case?
 Respectfully, I have concluded that the judge did commit a material error.
 In my view, in light of the fact that a conditional discharge was:
- the appellant’s primary or key argument on sentence; and
- this sentence was in his best interests,
it was incumbent on the judge to specifically address the propriety of a conditional discharge and whether it would be contrary to the public interest.
 That is because the judge himself described the circumstances as being “unique” and “difficult” and noted there was some evidence of tolerance of compassion clubs, all of which left him “perplexed with the appropriate sentence in this case.”
 And yet, in analysing this “perplexing” case, the judge did not address the appellant’s primary submission on sentence.
 Giving the reasons a fulsome and contextual reading, I do not accept the Crown’s argument that the judge can be said to have implicitly considered whether a conditional discharge was appropriate in this case.
 It would follow that the error impacted on the sentence, since there was no discussion of the Fallofield factors, and specifically whether a conditional discharge would be contrary to the public interest.
 I recognize that the legislative framework relating to cannabis has undergone a fundamental change since April 2018. Specifically, the coming into force of the Cannabis Act, S.C. 2018, c. 16 on October 17, 2018 created a legal regime for the production, sale, and possession of recreational cannabis in Canada.
 Furthermore, Mr. Woolsey can now likely obtain a “record suspension” in relation to his dated 1969 to 1978 convictions.
 Mr. Woolsey agrees to adhere to the current legislative and regulatory framework. Accordingly, it is not necessary to enter convictions against him in order to deter him from future offences or to rehabilitate him. Furthermore, entry of convictions may well have significant adverse repercussions.
 I would conclude by observing that the judge was right to emphasize the breach of trust inherent in the commission of these offences. But sentencing remains an individualized process. The disposition I am proposing is responsive to the unique and unusual facts of this case and the offender’s personal circumstances, and I consider it highly unlikely that the result I am proposing will stand as a precedent in future cases.
 I would grant leave to appeal sentence, allow the appeal, and direct that the appellant be discharged on the conditions I have identified.
[December 4, 2021] Resisting Arrest does not Include Running [Reasons by Drapeau J.A., with Quigg and LeBlond JJ.A. concurring]
AUTHOR’S NOTE: This case is a good quick reference for an offence that comes up relatively frequently. It's simple to summarize. Mr. Martin was wanted because his fingerprints proved he was inside a home that was burglarized. When police located him, he ran. He was charged with resisting arrest. Turns out, running from arrest does not fit the definition of resisting because resisting a peace officer requires active physical resistance that is more than merely being uncooperative (ie. running, passive resistance do not seem to pass the threshold).
 Following his trial in Provincial Court, the appellant was found guilty of the following indictable offences: (1) breaking and entering into a dwelling-house and committing theft therein (s. 348(1)(b) and (d) of the Criminal Code); and (2) resisting a peace officer in the execution of his duty (s. 129(a) and (d)). ... However, we allowed the appeal with respect to the conviction for resisting a peace officer and acquitted the appellant of this charge. ...
 ... The police investigation subsequently confirmed a theft had indeed been committed and the appellant’s fingerprints were on the plastic pouch. The appellant is not known to the owner or his spouse, and they never received him into their home.
 The charge alleging the appellant “resisted” a peace officer in the execution of his duty stems from the fact that, on August 29, 2020, the appellant fled when the officer sought to arrest him, demanding he stop, shouting “stop, you’re under arrest”. When the officer caught up to him, the appellant peacefully submitted to the arrest.
 The appellant contends the resistance referred to in s. 129(a) is an active physical resistance. The Court of Appeal for Ontario endorsed this understanding in R. v. Kennedy, 2016 ONCA 879,  O.J. No. 6105 (QL):
In order to prove a charge of resisting arrest, the actions of the accused must constitute “active resistance” and not “passive resistance”. In R. v. Alaimo (1974), 1974 CanLII 1552 (ON CJ), 27 C.C.C. (2d) 491 (Ont. C.J.), the court concluded, based on several dictionary definitions, that the offence requires a direct confrontation between the subject and the police and at least a minimal degree of force exercised. Black’s Law Dictionary states that the word “properly describes an opposition by direct action and quasi forcible means”. ...
In my view, the offence of resisting a peace officer requires more than being uncooperative: it requires active physical resistance. [...] [par. 31-36]
 I agree with these interpretive conclusions.
 The onus is on the prosecution to prove the key factual assertions in a charge. In this case, the appellant was charged with having “resisted” a peace officer in the execution of his duties, more specifically, the appellant’s arrest. The prosecution was therefore required to prove at trial that the appellant offered an active physical resistance to his arrest. His running away, even if it was for the purpose of avoiding arrest by the peace officer, does not amount to resistance within the meaning of s. 129(a). Therefore, the conviction on this charge cannot be upheld, and the appellant’s acquittal is warranted.
[November 3, 2021] Charter s.8 - Search of a Found-in on a Search Warrant Execution [Justice Paul B. Schabas]
AUTHOR’S NOTE: Detention of everyone in house that is being searched under the authority of a search warrant is common and largely permissible to protect the purpose of a search. However, those detainees are not always searchable pursuant to that warrant. Where non-targets are found in the residence being searched, police cannot conduct a person search without specific grounds. Particularly, a vague claim about officer safety during search warrant execution is not enough for a safety search (pat-down) in such circumstances. That kind of conduct led to the exclusion of evidence in this case.
 The evidence against the defendant was obtained during the execution of a search warrant on an apartment in which he was present at the time. Cash was found in the apartment, and two small bags found to contain cocaine, heroinand fentanyl, were found on the defendant during a “pat-down” search.
 The defendant applies for an order excluding the evidence found on the search. He submits that his rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms (the “Charter”) were violated by the police in conducting the pat-down search and that the evidence obtained thereby should be excluded pursuant to s. 24(2) of the Charter.
 On June 21, 2018, at approximately 5AM, officers of the Toronto Police Service executed a search warrant at Apartment 304, 3725 Dundas Street West in Toronto. ...
 The target of the search was Shane Evans, who was associated with the address named in the search warrant. The officers hoped to effect the arrest of Mr. Evans. In a briefing at approximately 3AM on June 21, 2018, prior to the search, the police officers executing the warrant were provided with information about Mr. Evans, including a description of him.
 The apartment door was forced open at 5AM. A man and a woman were found in bed in one of the two bedrooms. They had been asleep and were awoken by the arrival of the police. The woman’s name was Carolyn Walker, and the man was the defendant, Nigel Joseph-Palmer. There is no evidence that Mr. Joseph-Palmer was known to the police or was a target in Project Patton. His home address was elsewhere and there is nothing which linked him to the premises at 3725 Dundas St. West.
 Mr. Joseph-Palmer was found wearing a white t-shirt and red gym shorts. ...
 At the trial, PC Christou testified that he took Mr. Joseph-Palmer into the living room and searched him by running his hands along the defendant’s clothing. He said he felt two hard, “ball-like” objects along the waistband and on the right front of Mr. Joseph-Palmer’s shorts. He removed one object from the right front coin pocket, described as a very small mesh pocket one or two inches in size. The other object was removed from the right front pocket. These golf-ball sized objects were in small plastic bags. PC Christou said he removed them to make sure they were not weapons, saying he was looking for anything sharp, such as a razor blade, as he has had previous experience with concealed sharp implements. PC Christou testified that he believed the bags contained drugs and placed them on a window ledge. This all occurred within four minutes of the police entering the apartment.
 PC Christou described Mr. Joseph-Palmer as shocked but cooperative. As PC Christou put it, he was “good with us.” ... He stood by during the search of the apartment, and was later released from the scene. The charges against Mr. Joseph-Palmer were laid later, after the plastic bags were analyzed and found to contain controlled substances.
 In the apartment the police found and seized a digital scale, three cellphones, a small amount of marijuana (3.44 grams) and $980 in cash. One of the cellphones was found inside a bag described as a “fanny pack” along with some of the cash, perhaps $300 or $400....
 In the property report completed that morning by DC Salihu, the two plastic bags taken from Mr. Joseph-Palmer were described as containing crack, one weighing 8.3 grams and the other weighing 5.33 grams....
Legal Principles Regarding Safety Searches
 The issuance of a search warrant does not permit police officers to search persons found at the location of a search. People found in the location may be detained or “frozen” while the search is conducted, but something more is required to actually search the individuals.
 In R. v. Mann, 2004 SCC 52 (CanLII),  3 SCR 59, the Supreme Court recognized that the police have the power to detain individuals for investigative purposes and that such detention does not violate s. 9 of the Charter which states that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” This includes detaining people in the location of a search warrant in order for the police to carry out the terms of the warrant.
 ... Investigative detention does not permit, or include, the power to search an individual. As the Court stated at para. 36:
Any search incidental to the limited police power of investigative detention described above is necessarily a warrantless search. Such searches are presumed to be unreasonable unless they can be justified, and hence found reasonable, pursuant to the test established in R. v. Collins, [1987)] 1987 CanLII 84 (SCC), 1 S.C.R. 265. Under Collins, warrantless searches are deemed reasonable if (a) they are authorized by law, (b) the law itself is reasonable, and (c) the manner in which the search was carried out was also reasonable (p. 278). The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search was authorized by a reasonable law and carried out in a reasonable manner: R. v. Buhay,  1 S.C.R. 631, 2003 SCC 30, at para. 32.
 Further, the Court noted at para. 37 of Mann that there is an important distinction between a search incidental to arrest and a search incidental to an investigative detention, stating: “The latter does not give license to officers to reap the seeds of a warrantless search without the need to effect a lawful arrest based on reasonable and probable grounds, nor does it erode the obligation to obtain search warrants where possible.” The Court continued at para. 40:
The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances: see S. Coughlan, "Search Based on Articulable Cause: Proceed with Caution or Full Stop?" (2002), 2 C.R. (6th) 49, at p. 63. The officer's decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition. [Emphasis added]
 In R. v. Clayton,  2 SCR 725, the Supreme Court applied the principles in Mann to uphold the lawfulness of a warrantless search of a vehicle and a pat-down search which revealed loaded handguns. However, there was much evidence to support the safety concerns of the police, who had been called to a scene in which guns were suspected to be present and the people detained were acting in a manner that gave rise to additional concerns.\
 The following year, in R. v. MacDonald, 2014 SCC 3 (CanLII),  1 SCR 37 at para. 32, the Supreme Court observed that a “safety search” “will generally be conducted by the police as a reactionary measure… in response to dangerous situations… guided by on-the-spot observations.” The majority decision written by LeBel J. concluded at para. 41 that safety searches are authorized “only if the police officer believes on reasonable grounds that his or her safety is at stake”, making the search necessary. As LeBel J. continued:
The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter [citation omitted]. As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on “reasonable and specific inferences from the known facts of the situation” (Mann, at para. 41).
Application to the Facts
 There was no evidence from DC Kangas or DC Salihu about any safety concerns regarding Mr. Joseph-Palmer or Ms. Walker. There was no evidence that Ms. Walker was subjected to a pat-down search.
 Nor did PC Christou make notes of his actual search and seizure of the drugs from Mr. Joseph-Palmer. He simply said that he reached into the inside coin pocket first and then reached into the outside pocket.
 In my view, the police had grounds to detain Mr. Joseph-Palmer in order to conduct the search permitted by the search warrant. Consequently, he was not arbitrarily detained contrary to s. 9 of the Charter, nor is that argument pressed by defence counsel.
 However, the police had no “objectively verifiable” grounds to conduct a pat-down search of Mr. Joseph-Palmer, and in doing so they breached his “right to be secure against unreasonable search or seizure” protected by s. 8 of the Charter. As the Supreme Court made clear in Mann, a search power “does not exist as a matter of course.” A police officer “must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk.” The only ground here, taking into account the “totality of the circumstances”, is that this was a search under the CDSA involving an alleged drug trafficking operation. This is not enough.
 The Crown’s submission, in effect, is that when police are engaging in searches involving these types of offences they have carte blanche to conduct pat-down searches on persons found at the location of a search. In my view that is not the law and would be a departure from the guidance set out in Mann. I also observe that in a recent Court of Appeal case where the suspect was found at the place of the search, he was initially only placed in handcuffs, and not searched until he was placed under arrest and readied for transport: R. v. Pileggi, 2021 ONCA 4 at para. 50.
 I appreciate that such circumstances are dynamic and highly charged, that this type of police work can be dangerous and calls for quick decisions, and courts should be cautious in second-guessing those decisions; but those concerns do not arise here. The objective of the warrant was to surprise and arrest Mr. Evans. It became clear immediately following entry that Mr. Evans was not in the apartment; instead an unknown couple were awoken in bed in the middle of the night and there was nothing in their appearance or behaviour that gave rise to any safety concerns that would justify a pat-down search.
 At its highest, the evidence supporting the search of Mr. Joseph-Palmer was a vague concern for safety due to the fact that the police were executing a search warrant. Although, as the Crown conceded, PC Christou was not a strong witness in explaining the search who said “[a]mong other things, ...we want to make sure that he doesn’t have any weapons,” there was no evidence from the other officers as to whether they had concerns that Mr. Joseph-Palmer, or Ms. Walker, had weapons.
 In short, therefore, this is not a situation in which the court is second-guessing difficult split-second decisions. Rather, in my view, in the absence of any reasonable belief that Mr. Joseph-Palmer had a weapon or posed a safety risk, the police conducted an unreasonable pat-down search which was, “among other things”, intended to see if drugs could be found. This was, therefore, a warrantless and unreasonable search in breach of s. 8 of the Charter
 In this case, as I have found, PC Christou had no reasonable basis to conduct a safety search but was, in fact, looking for drugs, which he found when he reached into the accused’ pockets. There is much similarity between this case and Mann. There, although the officer had grounds to conduct the protective search, the grounds did not extend to reaching into the suspect’s pocket when the officer had no basis to think that anything in the pocket raised a safety concern. In conducting the s. 24(2) analysis, the Supreme Court agreed with the trial judge that the actions constituted a serous breach of the accused’s Charter rights under s. 8.
 I reach the same conclusion. ...
 In my view, the impact on Mr. Joseph-Palmer was serious. Although the pat-down was brief, it was intrusive and had a serious impact on Mr. Joseph-Palmer’s protected interests, which must be recognized. This factor also favours exclusion.
 Charter rights must be protected as much as reasonably possible; it is often said that there is no right without a remedy. Here, there was no basis for the pat-down search and the court should not carve out exceptions to condone searches in circumstances when they have no justification in the evidence. To find that evidence obtained in the circumstances of this case is admissible would create a systemic concern about police conduct overriding Charter rights and have a negative impact on the “overall repute of the justice system.” Accordingly, in my view admission of the evidence obtained from Mr. Joseph-Palmer would bring the administration of justice into disrepute and I order that it be excluded.
 The application by the accused to exclude the evidence seized from him during the search is allowed. Accordingly, as the Crown has no other evidence to present, Mr. Joseph-Palmer is acquitted of all charges.