R. v. Loewen (D.J.), (2008) 461 A.R. 193 (QB)

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 07, 2008
• Citations: (2008), 461 A.R. 193 (QB);2008 ABQB 660

R. v. Loewen (D.J.) (2008), 461 A.R. 193 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. NO.029

Her Majesty the Queen (Crown) v. Derek James Loewen (accused)

(070977657Q1; 2008 ABQB 660)

Indexed As: R. v. Loewen (D.J.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ross, J.

October 7, 2008.

Summary:

At issue on this voir dire was the admissibility of evidence (cocaine) discovered in a search of a motor vehicle conducted incidental to the arrest of the accused, after he was initially stopped for speeding and the police officer smelled burnt marijuana in his vehicle.

The Alberta Court of Queen's Bench held that the Crown had met its burden of proving that there were reasonable grounds for the warrantless search. The Crown has also met its burden to prove that the search was reasonable and did not violate the accused's s. 8 Charter right against unreasonable search and seizure. The court opined that even if it had found a breach of s. 8, it would have admitted the evidence under s. 24(2) of the Charter.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused was stopped for speeding - The police officer detected a fresh burnt marijuana smell coming from the vehicle - While checking the accused's identification, the officer noticed a bulge in the accused's pants pocket which turned out to be a large bundle of money - The officer issued a speeding ticket and then told the accused he was under arrest for possession of marijuana and that his vehicle would be searched - One hundred grams of crack cocaine was discovered in a gym bag in the back seat - The accused was then arrested for possession of a controlled substance for the purpose of trafficking - The accused sought to exclude the evidence discovered in the search of the vehicle, arguing that the smell of freshly burnt marijuana alone could not be reasonable grounds for arrest - The officer claimed that he did not arrest on the basis of smell alone, but it was the presence of the large amount of cash, plus the smell, that led him to the conclusion that he had grounds to make the arrest - The Alberta Court of Queen's Bench held that the Crown had met its burden of proving that there were reasonable grounds for the warrantless search - The connection of the search to the arrest was not disputed - The Crown has also met its burden to prove that the search was reasonable and did not violate the accused's s. 8 Charter right against unreasonable search and seizure - The court opined that even if it had found a breach of s. 8, it would have admitted the evidence under s. 24(2) of the Charter.

Civil Rights - Topic 1651

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

Civil Rights - Topic 1653.2

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

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1646 ].

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches - Reasonable grounds - The Alberta Court of Queen's Bench discussed whether the smell of burnt marijuana alone constituted reasonable grounds for an arrest and warrantless search - The court stated that "... from review of the case-law, the proper principle is that the specific evidence about the smell, including whether it is of burnt or raw marijuana, and all of the other circumstances, must be looked at. The fact that it is a burnt smell is relevant and part of the picture, but I do not accept that there is a different rule of law for burnt as opposed to raw marijuana smells. There may be times in which a burnt marijuana smell does not indicate anything other than previous possession, or possession that cannot be tied to a particular person, but that must be considered in the circumstances of the case" - See paragraph 25.

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 1646 and first Narcotic Control - Topic 2062 ].

Police - Topic 3069

Powers - Arrest and detention - Arrest without warrant - Of person committing a criminal offence - [See Civil Rights - Topic 1646 and first Narcotic Control - Topic 2062 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1646 and first Narcotic Control - Topic 2062 ].

Cases Noticed:

R. v. Evers (W.D.), [2008] A.R. Uned. 614; 2008 ABQB 592, refd to. [para. 19].

R. v. Krall (A.J.) (2003), 341 A.R. 311; 2003 ABPC 171, refd to. [para. 20].

R. v. Janvier (A.V.) (2007), 302 Sask.R. 190; 411 W.A.C. 190; 2007 SKCA 147, refd to. [para. 20].

R. v. Polashek (P.K.) (1999), 118 O.A.C. 312; 45 O.R.(3d) 434; 172 D.L.R.(4th) 350 (C.A.), refd to. [para. 24].

R. v. Calderon (P.F.E.), [2002] O.T.C. 450; 54 W.C.B.(2d) 507 (Sup. Ct.), revd. (2004), 188 C.C.C.(3d) 481; 23 C.R.(6th) 1 (Ont. C.A.), refd to. [para. 24].

R. v. Sewell (E.E.) (2003), 232 Sask.R. 210; 294 W.A.C. 210; 175 C.C.C.(3d) 242; 2003 SKCA 52, refd to. [para. 24].

Counsel:

Joseph Selvaratnam, for the Crown;

Darin Slaferek, for the accused.

This voir dire was held on October 6 and 7, 2008, in Edmonton, Alberta, before Ross, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following oral memorandum of decision on October 7, 2008, with the written version issued on October 24, 2008.