R. v. Loewen,

• Judge: Hunt, Berger and Slatter, JJ.A.
• Neutral Citation: 2010 ABCA 255
• Citation: (2010), 490 A.R. 72 (CA),2010 ABCA 255,[2011] 2 WWR 15,32 Alta LR (5th) 203,490 AR 72,260 CCC (3d) 296,[2010] CarswellAlta 1721,[2010] AJ No 980 (QL),(2010), 490 AR 72 (CA),[2010] A.J. No 980 (QL),490 A.R. 72
• Date: 02 March 2010
• Court: Court of Appeal (Alberta)

R. v. Loewen (D.J.) (2010), 490 A.R. 72 (CA);

      497 W.A.C. 72

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. SE.012

Her Majesty The Queen (respondent) v. Derek James Loewen (appellant)

(0903-0171-A; 2010 ABCA 255)

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

Alberta Court of Appeal

Hunt, Berger and Slatter, JJ.A.

September 7, 2010.

Summary:

A voir dire was held to determine 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, in a decision reported 461 A.R. 193, held that the Crown had met its burden of proving that there were reasonable grounds for the warrantless search. The Crown had also met its burden to prove that the search was reasonable and did not violate the accused's s. 8 Charter right to be secure 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. The accused was convicted of possession of cocaine for the purpose of trafficking. He appealed, arguing that the critical evidence against him resulted from an illegal search following an unlawful arrest.

The Alberta Court of Appeal, Berger, J.A., dissenting, dismissed the appeal.

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 were 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 trial judge 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 accused appealed - The Alberta Court of Appeal dismissed the appeal - See paragraphs 1 to 55.

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 ].

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - [See Civil Rights - Topic 1646 ].

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches - Reasonable grounds - [See Civil Rights - Topic 1646 and all Police - Topic 3063 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - Section 495(1)(a) of the Criminal Code provided that a peace officer could arrest without warrant a person who had committed an indictable offence or who, on "reasonable grounds" the officer believed had committed or was about to commit an indictable offence - The Alberta Court of Appeal noted that prior to 1985, s. 495(1)(a) referred to "reasonable and probable" grounds, but when the Revised Statutes of Canada, 1985, were prepared the words "and probable" were deleted - The court stated that under the principles of statutory interpretation, when Parliament deleted words in a statute it was presumed that some change in meaning was intended - That was especially so when "reasonable grounds" and "reasonable and probable grounds" were both used in different places in the same section as in s. 495 - The court stated that the section had its present wording for 25 years, and if the 1985 change was inadvertent Parliament had ample time to fix it - See paragraphs 7 and 8.

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - Section 495 of the Criminal Code set out when a peace officer could arrest with and without warrant - Certain types of arrests required that the officer have "reasonable grounds" and other types required "reasonable and probable grounds" - The Alberta Court of Appeal interpreted s. 495 - The court stated that "... 'reasonable and probable grounds' do not necessarily mean the same thing as 'more likely than not on a balance of probabilities'. In Storrey [SCC] ... it was observed that even a standard of 'reasonable and probable grounds' does not require a prima facie case. Rather than meaning 'more probable than not', 'reasonable grounds' conveys more the idea of an event not unlikely to occur for reasons that rise above mere suspicion ... It follows that a belief in the existence of a set of facts can be 'reasonable' even if the existence of those facts is not 'probable'. In this context 'reasonable' relates to legitimate expectations that a fact exists, without being able to say that it is 'more likely than not'" - See paragraph 18.

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - The accused was stopped for speeding - The police officer detected a fresh burnt marijuana smell coming from the vehicle and noticed a bundle of cash in the accused's pants pocket - The officer issued a speeding ticket, arrested the accused and told the accused that he was going to search the car - The accused stated that "there is no marijuana in the car" - While the officer was "torn" as to whether he would find marijuana, he subjectively believed that he would find some other drug - Cocaine was found - The accused was then arrested for possession of a controlled substance for the purpose of trafficking and subsequently convicted - He appealed, arguing that the search was unlawful because he was arrested for marijuana possession, and at that time the officer did not believe subjectively that he was going to find marijuana - Further that the search could only be "incidental to that arrest", which depended on belief in the presence of the particular subject of the charge, namely marijuana - The Alberta Court of Appeal dismissed the appeal, holding that the trial judge made no error in finding as a fact that the officer had the necessary subjective belief - There was evidence that the officer subjectively believed the accused was in possession of a controlled substance at the time of his arrest - The court rejected the notion that the officer had to have subjective belief that he would find marijuana and nothing else - It was, however, sufficient if he believed that the accused was in possession of any controlled substance - A lawful arrest could be made generally for possession of a controlled substance, and a search incidental to the arrest could be conducted for any and all controlled substances - See paragraphs 19 to 26.

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - The accused was stopped for speeding - The police officer detected a fresh burnt marijuana smell coming from the vehicle and noticed a bundle of cash in the accused's pants pocket - The accused was alone in the car and initially gave a false name - The officer issued a speeding ticket, arrested the accused and told the accused that he was going to search the car - The accused stated that "there is no marijuana in the car" - While the officer was "torn" as to whether he would find marijuana, he subjectively believed that he would find some other drug - Cocaine was found - The accused was then arrested for possession of a controlled substance for the purpose of trafficking and subsequently convicted - He appealed, arguing that the officer did not have objective reasonable grounds to believe that he would find a controlled substance - He claimed that there were no reasonable grounds linking the smell of the marijuana to him - The Alberta Court of Appeal dismissed the appeal - These circumstances amounted to reasonable grounds supporting the arrest and the incidental search - The court noted that there was no evidence that anyone else had been in the vehicle - The trial judge's finding that the smell of burnt marijuana combined with the bundle of cash justified an arrest was supportable on the record - The arrest was lawful whether under s. 495(1)(a) or (b) of the Criminal Code - See paragraphs 27 to 33.

Police - Topic 3185

Powers - Search - Following arrest or detention - The accused was stopped for speeding - The police officer detected a fresh burnt marijuana smell coming from the vehicle and noticed a bundle of cash in the accused's pants pocket - The accused was alone in the car and initially gave a false name - The officer issued a speeding ticket, arrested the accused and told the accused that he was going to search the car - The accused stated that "there is no marijuana in the car" - While the officer was "torn" as to whether he would find marijuana, he subjectively believed that he would find some other drug - Cocaine was found - The accused was then arrested for possession of a controlled substance for the purpose of trafficking and subsequently convicted - The accused appealed, arguing that the search was unlawful and unreasonable - The Alberta Court of Appeal dismissed the appeal - The court stated that a search for evidence "incidental to the arrest" did not become unlawful simply because some other type of contraband was found in the process - For example, a valid search for marijuana did not become unlawful simply because another type of drug or a firearm was found - The search was still incidental to the arrest - Once the officer arrested the accused for possession it was clearly reasonable to search for drugs in the car - The search was lawful and reasonable - See paragraphs 34 to 37.

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [paras. 5, 51, 71].

R. v. Ngo (D.T.) (2003), 327 A.R. 320; 296 W.A.C. 320; 175 C.C.C.(3d) 290; 2003 ABCA 121, refd to. [para. 5].

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. [paras. 5, 56].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 5].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 5].

R. v. Janvier (A.V.) (2007), 302 Sask.R. 190; 411 W.A.C. 190; 2007 SKCA 147, refd to. [paras. 8, 45].

Fraser (D.R.) and Co. v. Minister of National Revenue, [1949] A.C. 24 (P.C.), refd to. [para. 8].

Langille and Langille v. Toronto-Dominion Bank, [1982] 1 S.C.R. 34; 40 N.R. 67; 50 N.S.R.(2d) 217; 98 A.P.R. 217; 40 C.B.R.(N.S.) 113, refd to. [para. 8].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258, refd to. [para. 8].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 53 C.C.C.(3d) 316, refd to. [paras. 9, 40, 72].

R. v. Biron, [1976] 2 S.C.R. 56; 4 N.R. 45, refd to. [paras. 10, 45].

Baron et al. v. Minister of National Revenue et al., [1993] 1 S.C.R. 416; 146 N.R. 270; 78 C.C.C.(3d) 510, refd to. [para. 15].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 15].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [paras. 15, 74].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 15].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 34 O.R.(3d) 743; 117 C.C.C.(3d) 193 (C.A.), refd to. [para. 16].

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 16].

R. v. Rodgers - see R. v. Jackpine (R.).

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. [paras. 18, 77].

R. v. Hall (R.) (1995), 79 O.A.C. 24; 22 O.R.(3d) 289 (C.A.), refd to. [para. 18].

R. v. S.G.T. (2010), 402 N.R. 24; 350 Sask.R. 14; 487 W.A.C. 14; 2010 SCC 20, refd to. [para. 20].

R. v. Richer (R.J.) (1993), 141 A.R. 116; 46 W.A.C. 116; 82 C.C.C.(3d) 385 (C.A.), affd. [1994] 2 S.C.R. 486; 168 N.R. 198; 155 A.R. 210; 73 W.A.C. 210, refd to. [para. 20].

R. v. Nolet (R.) et al. (2010), 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [paras. 20, 80].

R. v. Cornell (J.M.) (2010), 404 N.R. 133; 487 A.R. 1; 495 W.A.C. 1; 2010 SCC 31, refd to. [para. 26].

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. 29].

R. v. Calderon (2004), 188 C.C.C.(3d) 481 (Ont. C.A.), refd to. [para. 29].

R. v. S.T.P. (2009), 281 N.S.R.(2d) 1; 893 A.P.R. 1; 2009 NSCA 86, refd to. [para. 29].

S.T.P. v. Director of Public Prosecution Services of Canada - see R. v. S.T.P.

R. v. Polashek (P.K.) (1999), 118 O.A.C. 312; 134 C.C.C.(3d) 187 (C.A.), refd to. [para. 36].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201; 2001 SCC 83, refd to. [paras. 36, 72].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1; 146 D.L.R.(4th) 609, refd to. [para. 41].

R. v. Tontarelli (R.) (2009), 348 N.B.R.(2d) 41; 897 A.P.R. 41; 247 C.C.C.(3d) 160; 2009 NBCA 52, refd to. [para. 43].

R. v. Abel (D.L.) et al. (2008), 251 B.C.A.C. 184; 420 W.A.C. 184; 229 C.C.C.(3d) 465; 2008 BCCA 54, refd to. [paras. 45, 73].

R. v. Nguyen (C.N.) (2008), 232 O.A.C. 289; 2008 ONCA 49, refd to. [para. 53].

R. v. Smith (W.M.) (1998), 219 A.R. 109; 179 W.A.C. 109; 1998 ABCA 418, refd to. [para. 53].

R. v. Harding (S.G.) (2010), 482 A.R. 262; 2010 ABCA 180, refd to. [para. 53].

R. v. Lim (No. 2) (1990), 1 C.R.R.(2d) 136 (Ont. H.C.), refd to. [para. 74].

R. v. Chubak (M.J.) (2009), 446 A.R. 283; 442 W.A.C. 283; 2009 ABCA 8, refd to. [para. 74].

R. v. LeBlanc (J.A.) (2009), 276 N.S.R.(2d) 97; 880 A.P.R. 97; 2009 NSSC 99, refd to. [para. 77].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 85].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 88].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 90].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 91].

R. v. Blake (O.) (2010), 257 O.A.C. 346; 2010 ONCA 1, refd to. [para. 105].

R. v. Ramos, [2010] O.J. No. 2645 (C.J.), refd to. [para. 107].

R. v. Osolky, 2009 ONCJ 445, refd to. [para. 108].

R. v. Kerr, [2010] O.J. No. 222 (C.J.), refd to. [para. 110].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 495(1), sect. 495(2) [para. 7].

Counsel:

M.B. Dion, for the respondent;

P.L. Moreau, for the appellant.

This appeal was heard in Edmonton, Alberta, on March 2, 2010, before Hunt, Berger and Slatter, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was filed on September 7, 2010, including the following opinions:

Slatter, J.A. - see paragraphs 1 to 38;

Hunt, J.A. (concurring in the result) - see paragraphs 39 to 54;

Berger, J.A. (dissenting) - see paragraphs 55 to 111.