R. v. Kola (S.) et al., 2013 SKPC 166

JudgeLabach, P.C.J.
CourtProvincial Court of Saskatchewan (Canada)
Case DateOctober 08, 2013
JurisdictionSaskatchewan
Citations2013 SKPC 166;(2013), 431 Sask.R. 1 (PC)

R. v. Kola (S.) (2013), 431 Sask.R. 1 (PC)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. DE.005

Her Majesty the Queen v. Stephen Kola and David Butros

(Information Nos. 43171558; 43171560; 43171561; 2013 SKPC 166)

Indexed As: R. v. Kola (S.) et al.

Saskatchewan Provincial Court

Labach, P.C.J.

October 8, 2013.

Summary:

Kola and Butros were jointly charged with possession of cannabis marijuana in an amount not exceeding 30 grams and possession of cocaine for the purpose of trafficking. Kola was also charged with obstructing a peace officer and two counts of breach of undertaking. Butros was also charged with obstructing a peace officer. Both accused alleged that their s. 8 and 9 Charter rights were violated. Butros also alleged that his s. 10(b) Charter right was violated. The accused applied for exclusion of evidence pursuant to s. 24(2).

The Saskatchewan Provincial Court held that there were no s. 8 or 9 Charter violations. There was a breach of Butros' s. 10(b) Charter right. However, the breach did not warrant exclusion of any evidence.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Kola was driving a BMW - Butros was in the passenger seat - Police pulled the BMW over after doing a computer check of its licence plate number and learning that it was actually registered to a Ford Mustang - Police noticed a strong smell of fresh marijuana coming from the vehicle - They also saw ZigZag rolling papers in the BMW - After lying about their names, the accused were arrested for obstructing a peace officer - Kola indicated that the vehicle belonged to his sister-in-law - Police had a drug dog do a sniff search of the vehicle - The dog gave a positive indication that he detected drugs in the vehicle - Police then performed a thorough search of the vehicle and found marijuana and cocaine - The accused were arrested for possession of a controlled substance and possession for the purpose of trafficking - They argued that their s. 8 Charter rights were violated - The Saskatchewan Provincial Court found that Butros had no reasonable expectation of privacy in the vehicle or the drugs that were seized from it - He had no ownership in the BMW and no apparent connection to the owner - There was nothing in, on or attached to the drugs that suggested they belonged to Butros - Kola had possession and control of the BMW on behalf of his sister-in-law - Accordingly, Kola had a limited expectation of privacy in the BMW - The use of a drug dog was reasonable - Police were entitled to use drug dogs in contexts where individuals had a reasonable but lesser expectation of privacy and where police had reasonable grounds to suspect the presence of contraband - The smell of fresh marijuana was sufficient to meet the test of reasonable suspicion - The positive indications by the drug dog elevated the officer's suspicion to reasonable belief - The subsequent search by the officers was authorized as incident to a valid arrest even though the search preceded the arrest - The officer had the ability to arrest both accused for drug offences prior to the search - See paragraphs 45 to 72.

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Kola was driving a BMW - Butros was in the passenger seat - Police pulled the BMW over after doing a computer check of its licence plate number and learning that it was actually registered to a Ford Mustang - Police noticed a strong smell of fresh marijuana coming from the vehicle - When an officer asked Kola for his driver's licence, Kola gave her Butros' licence as if it was his own - Shortly thereafter, Kola admitted that he did not have a valid driver's licence - After Kola provided his real name, police learned that he was on an undertaking with a curfew and residence clause, both of which he was currently breaching - Kola was arrested for obstructing a peace officer and two counts of breach of undertaking - When police asked Butros his name, he told them his name was Kola - He also lied about his date of birth - Butros was arrested for obstructing a peace officer - A drug dog gave positive indications that he detected drugs in the vehicle - Fresh marijuana and cocaine were found - The accused were arrested for possession of a controlled substance - They argued that their s. 9 Charter right to be free from arbitrary detention was violated - The Saskatchewan Provincial Court held that the accused were not arbitrarily detained at any stage of the proceedings - The BMW was stopped for a valid traffic safety purpose - The arrests for obstructing a peace officer were lawful - The strong smell of fresh marijuana was enough to provide reasonable and probable grounds for an arrest or subsequent search in a drug investigation, so the officer's subjective view that the accused were committing a drug offence was objectively reasonable - The searches by the drug dog and the officers were admissible, so the officer's subjective belief that there were reasonable and probable grounds to arrest the accused for drug offences was objectively reasonable - The accused were lawfully arrested for drug offences - See paragraphs 24 to 44.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Police stopped a vehicle at 12:31 a.m. - At 12:35 a.m., Butros (a passenger) was arrested for obstructing a peace officer - Police read Butros his Charter rights and police warning - Butros stated that he wanted to call a lawyer - Police suspected that there were drugs in the vehicle and called for a drug dog - While waiting for the dog, police did not advise Butros of the new investigation into drug offences, and did not read Butros his rights regarding the new investigation - Drugs were found in the vehicle - Butros was arrested at 1:02 a.m. for possession of a controlled substance - He was read his Charter rights and again stated that he wanted to call a lawyer - At 1:21 a.m., Butros was arrested for possession of a controlled substance for the purpose of trafficking - He was read his Charter rights and again stated that he wanted to call a lawyer - Butros had two cell phones but was not permitted to use either of them to contact counsel - After arriving at the police station, Butros spoke to a lawyer at 1:55 a.m. - Butros argued that his s. 10(b) Charter rights were violated - The Saskatchewan Provincial Court found that police should have advised Butros that he was being detained for a drug investigation after he was arrested for obstruction, and he should have been given his rights and police warning on the new investigation - This was a fundamental change in the purpose of the investigation involving an unrelated and significantly more serious offence than obstruction - As well, Butros' s. 10(b) rights were violated when he was not allowed to contact counsel during the 71 minutes that he was arrested and sitting in the back of the police car - There was no evidence as to why he was not permitted to do so - For the court to conclude that police had safety or privacy concerns would be speculation - However, the court declined to exclude the evidence under s. 24(2) - But for the s. 10(b) breach, the rest of the traffic stop proceeded appropriately - The officers' conduct was a negligent disregard of Butros' right to counsel - The impact of the breach on Butros was minimal - Police did not attempt to elicit any incriminating evidence from him - Any evidence that was obtained was not obtained as a direct result of the s. 10(b) breach - See paragraphs 73 to 90.

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 1646 ].

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches - Reasonable grounds - [See Civil Rights - Topic 1646 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 3603 ].

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 3603 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1646 ].

Police - Topic 3189

Powers - Search - Use of dogs - [See Civil Rights - Topic 1646 ].

Cases Noticed:

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 35].

R. v. Nguyen (H.Q.) et al. (2008), 324 Sask.R. 1; 451 W.A.C. 1; 2008 SKCA 160, refd to. [para. 37].

R. v. Bramley (R.L.) (2009), 324 Sask.R. 286; 451 W.A.C. 286; 2009 SKCA 49, refd to. [para. 37].

R. v. MacKenzie (B.C.) (2013), 448 N.R. 246; 2013 SCC 50, refd to. [para. 38].

R. v. Sewell (E.E.) (2003), 232 Sask.R. 210; 294 W.A.C. 210; 2003 SKCA 52, refd to. [para. 39].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 44].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 45].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 45].

R. v. Turpin (G.S.J.) (2010), 365 Sask.R. 67; 2010 SKQB 444, refd to. [para. 45].

R. v. Wise (1992), 133 N.R. 161; 51 O.A.C. 351; 70 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 45].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1; 84 C.C.C.(3d) 173, refd to. [para. 45].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1, refd to. [para. 50].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 50].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 50].

R. v. Chehil (M.S.) (2013), 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 2013 SCC 49, refd to. [para. 55].

R. v. Debot (1986), 17 O.A.C. 141 (C.A.), refd to. [para. 64].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 65].

R. v. Polashek (P.K.) (1999), 118 O.A.C. 312 (C.A.), refd to. [para. 65].

R. v. Trenten (A.G.) (2002), 226 Sask.R. 106; 2002 SKPC 69, refd to. [para. 65].

R. v. Sinclair (E.J.) (2005), 192 Man.R.(2d) 283; 340 W.A.C. 283 (C.A.), 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. 74].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 74].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35, refd to. [para. 74].

R. v. Ashby (J.J.) (2013), 340 B.C.A.C. 298; 579 W.A.C. 298; 2013 BCCA 334, refd to. [para. 83].

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. 85].

Counsel:

Dennis Quon, for the Crown;

Barb Degenstein, for the accused, Stephen Kola;

Brad Mitchell, for the accused, David Butros.

This voir dire was heard at Saskatoon, Saskatchewan, before Labach, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on October 8, 2013.

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