R. v. Ashby (J.J.), (2013) 340 B.C.A.C. 298 (CA)

• Judge: Newbury, Levine and Frankel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 21, 2013
• Jurisdiction: British Columbia
• Citations: (2013), 340 B.C.A.C. 298 (CA);2013 BCCA 334

R. v. Ashby (J.J.) (2013), 340 B.C.A.C. 298 (CA);

    579 W.A.C. 298

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. JL.041

Regina (respondent) v. Joanne Janet Ashby (appellant)

(CA039825; 2013 BCCA 334)

Indexed As: R. v. Ashby (J.J.)

British Columbia Court of Appeal

Newbury, Levine and Frankel, JJ.A.

July 17, 2013.

Summary:

The police stopped the accused's rental vehicle to investigate his suspicion of impaired driving. He arrested the accused for possession of marihuana based on, inter alia, a strong odour of vegetative green marihuana emanating from the vehicle. The police subsequently found approximately 21 kilograms of cannabis marihuana in the trunk and approximately $17,000 in Canadian currency in a travel bag on the front passenger seat. The accused was charged with possession for the purpose of trafficking. She applied to have the marihuana and cash excluded from evidence under s. 24(2) of the Charter on the basis that she had been subjected to an illegal arrest and unreasonable detention (s. 9 of the Charter) and, therefore, the search incidental to arrest was also unreasonable (s. 8). She also argued that her rights to counsel were breached when she was not provided with a cell phone in order to call counsel from the roadside where she was arrested (s. 10(b)).

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 513, found that the arrest was legal. There was no breach of the accused's ss. 9 and 8 Charter rights. In addition, there was no breach of her s. 10(b) Charter rights, but if there was, the evidence was not obtained as a result of that breach. If the arrest and subsequent search were unlawful and breached her ss. 9 and 8 rights, and if there was a s. 10(b) right to counsel breach, the court was not satisfied it amounted to a pattern of conduct which increased the seriousness of the breach or the impact upon the accused. The test for exclusion of evidence under the Charter was not met.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 1334, convicted the accused. The accused appealed.

The British Columbia Court of Appeal dismissed the appeal. While the court held that the trial judge wrongly considered statements from the voir dire on the trial proper, it applied the curative proviso to uphold the conviction. The admissible circumstantial evidence against the accused was overwhelming. She smelled as though she had just come from a marihuana grow-operation and was the driver and sole occupant of a vehicle, the trunk of which contained over 22 kilograms of marihuana worth more than $85,000. The suggestion that the marihuana had been placed in the trunk without her knowledge (i.e., that she happened to be driving a rental vehicle in which someone had left a valuable commercial shipment of drugs), was speculative and strained credulity. Looking at these contradicted facts with realism, a conviction was inevitable.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - See paragraphs 61 to 74.

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - See paragraphs 82 to 87.

Criminal Law - Topic 5333

Evidence and witnesses - Confessions and voluntary statements - Voir dire - Use of evidence taken during - See paragraphs 78 to 81.

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - See paragraphs 52 to 60.

Police - Topic 3069

Powers - Arrest and detention - Arrest without warrant - Of person committing criminal offence - See paragraphs 47 to 60.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised (incl. new theory of the case) - See paragraphs 45 and 46.

Cases Noticed:

R. v. Connors (C.B.) (1998), 102 B.C.A.C. 1; 166 W.A.C. 1; 121 C.C.C.(3d) 358 (C.A.), refd to. [para. 48].

R. v. Webster (B.L.) (2008), 262 B.C.A.C. 168; 441 W.A.C. 168; 238 C.C.C.(3d) 270; 2008 BCCA 458, refd to. [para. 49].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 53].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 53].

R. v. Jir (D.P.) (2010), 295 B.C.A.C. 231; 501 W.A.C. 231; 264 C.C.C.(3d) 64; 2010 BCCA 497, refd to. [para. 56].

R. v. Harding (S.G.) (2010), 482 A.R. 262; 490 W.A.C. 262; 256 C.C.C.(3d) 284; 2010 ABCA 180, refd to. [para. 56].

R. v. Wilson (A.J.) (2012), 331 B.C.A.C. 195; 565 W.A.C. 195; 99 C.R.(6th) 76; 2012 BCCA 517, refd to. [para. 57].

R. v. Kluczny (B.D.) et al. (2005), 385 A.R. 182; 2005 ABQB 350, refd to. [para. 57].

R. v. Rajaratnam (M.) (2006), 397 A.R. 126; 384 W.A.C. 126; 214 C.C.C.(3d) 547; 2006 ABCA 333, refd to. [para. 57].

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 64].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 65].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 70].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 70].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 70].

R. v. Montgomery (C.D.) (2009), 265 B.C.A.C. 284; 446 W.A.C. 284; 241 C.C.C.(3d) 469; 2009 BCCA 41, refd to. [para. 71].

R. v. Nelson (D.A.) (2010), 490 A.R. 271; 497 W.A.C. 271; 265 C.C.C.(3d) 273; 2010 ABCA 349, refd to. [para. 72].

R. v. Ballendine (K.D.) (2011), 304 B.C.A.C. 20; 513 W.A.C. 20; 271 C.C.C.(3d) 418; 2011 BCCA 221, refd to. [para. 79].

R. v. Wilson (N.R.) (2011), 305 B.C.A.C. 254; 515 W.A.C. 254; 272 C.C.C.(3d) 269; 2011 BCCA 252, refd to. [para. 79].

R. v. Grey (S.W.) (2013), 338 B.C.A.C. 121; 577 W.A.C. 121; 2013 BCCA 232, refd to. [para. 79].

R. v. Nguyen (H.V.) (2006), 230 B.C.A.C. 116; 380 W.A.C. 116; 2006 BCCA 397, refd to. [para. 80].

R. v. Choi (J.) et al. (2008), 254 B.C.A.C. 314; 426 W.A.C. 314; 2008 BCCA 212, refd to. [para. 80].

R. v. Iturriaga (E.B.) (1993), 43 B.C.A.C. 161; 69 W.A.C. 161 (C.A.), dist. [para. 84].

R. v. Au-Yeung (M.) (2010), 289 B.C.A.C. 54; 489 W.A.C. 54; 2010 BCCA 367, refd to. [para. 85].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 86].

Counsel:

K.S. Westlake, Q.C., and J.W. Conroy, Q.C., for the appellant;

P.A. Eccles, for the respondent.

This appeal was heard at Vancouver, B.C., on June 21, 2013, by Newbury, Levine and Frankel, JJ.A., of the British Columbia Court of Appeal. Frankel, J.A., delivered the following reasons for judgment for the court on July 17, 2013.