R. v. Payette (S.), 2010 BCCA 392

• Judge: Newbury, Neilson and Groberman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 18, 2010
• Jurisdiction: British Columbia
• Citations: 2010 BCCA 392;(2010), 291 B.C.A.C. 289 (CA)

R. v. Payette (S.) (2010), 291 B.C.A.C. 289 (CA);

    492 W.A.C. 289

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. SE.003

Regina (respondent) v. Sebastien Payette (appellant)

(CA037206; 2010 BCCA 392)

Indexed As: R. v. Payette (S.)

British Columbia Court of Appeal

Newbury, Neilson and Groberman, JJ.A.

September 3, 2010.

Summary:

The police deployed a drug detector dog to search for contraband while the accused was stopped at a road safety checkpoint. A suitcase of marihuana was discovered. The accused was charged with possession of marihuana for the purposes of trafficking (Controlled Drugs and Substances Act, s. 5(2)). He argued that his s. 8 Charter rights were violated. The trial judge found no Charter breach had occurred, admitted the evidence, and found the accused guilty. The accused appealed.

The British Columbia Court of Appeal allowed the appeal. The accused's s. 8 Charter rights were violated. The court excluded the evidence and set aside the conviction.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - The police deployed a drug detector dog to search for contraband while the accused was stopped at a road safety checkpoint - A suitcase of marihuana was discovered - The accused was charged with possession of marihuana for the purposes of trafficking - He argued that his s. 8 Charter rights were violated - The trial judge found no Charter breach had occurred and convicted the accused - The accused appealed, arguing that the trial judge erred in applying the "reasonable suspicion" standard, rather than "reasonable and probable grounds", in deciding whether the drug detector dog search at a traffic checkpoint was lawful - The British Columbia Court of Appeal held that the trial judge properly applied the reasonable suspicion standard in determining whether the drug detector dog was lawfully deployed in this case - See paragraphs 13 to 18.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - The police deployed a drug detector dog to search for contraband while the accused was stopped at a road safety checkpoint - A suitcase of marihuana was discovered in the trunk - The combined factors that the experienced traffic officer relied on to deploy the dog were that the accused was the lone occupant in newer model Volvo owned by a third party - It appeared to be "lived in" based on the empty water and coffee containers and food wrappers from drive through establishments - The accused was unshaven and wearing a dark hoodie - He was pale and his head was shaking - There was a radar detector in the vehicle - The accused was charged with possession of marihuana for the purposes of trafficking - He argued that his s. 8 Charter rights were violated - The trial judge found no Charter breach - The British Columbia Court of Appeal allowed the accused's appeal - The trial judge erred in finding the commonplace factors noted by the traffic officer met the level of objective reasonableness required to justify the sniff search - They were not capable of providing the required objectively discernable nexus between the accused and illegal drug activity - Each of the factors taken on its own was innocuous and characteristic of many citizens driving the highways - While the objective reasonableness requirement had to be viewed in the light of the investigating officer's background and experience, deference to an officer's intuition could not render the objective element of the inquiry meaningless - See paragraphs 19 to 31.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See second Civil Rights - Topic 1641.4 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See both Civil Rights - Topic 1641.4 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The police deployed a drug detector dog to search for contraband while the accused was stopped at a road safety checkpoint - A suitcase of marihuana was discovered in the trunk - The accused was charged with possession of marihuana for the purposes of trafficking - He argued that his s. 8 Charter rights were violated - The trial judge found no Charter breach - The British Columbia Court of Appeal allowed the accused's appeal - The trial judge erred in finding that the commonplace factors noted by the traffic officer met the level of objective reasonableness required to justify the sniff search - The court excluded the evidence in what it described as a "close call" - There was no wilful or flagrant disregard of the accused's rights - At the time of the sniff search (2006), there was legal disagreement about whether sniff searches constituted a s. 8 search - However, the breach was not inadvertent - It fell in the mid-range of seriousness - The public interest in not being subjected to unlawful vehicle searches while arbitrarily detained at roadside stops supported exclusion of the evidence - The impact of the search on the accused's privacy interests was limited - However, admission of the marihuana would bring the administration of justice into disrepute - See paragraphs 32 to 46.

Narcotic Control - Topic 2063

Search and seizure - Warrantless searches - Reasonable grounds - Evidence - [See second Civil Rights - Topic 1641.4 ].

Police - Topic 3189

Powers - Search - Use of dogs - [See both Civil Rights - Topic 1641.4 ].

Cases Noticed:

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. 9].

R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, refd to. [para. 9].

R. v. Binning (M.S.) et al., [2006] B.C.T.C. 576; 2006 BCSC 576, dist. [para. 10].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1; 76 C.C.C.(3d) 481, refd to. [para. 14].

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. [para. 15].

R. v. Yeh (K.-P.T.) (2009), 337 Sask.R. 1; 464 W.A.C. 1; 248 C.C.C.(3d) 125; 2009 SKCA 112, refd to. [para. 17].

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. 21].

R. v. Bramley (R.L.) et al. (2009), 324 Sask.R. 286; 451 W.A.C. 286; 67 C.R.(6th) 293; 2009 SKCA 49, dist. [para. 27].

R. v. Schrenk (C.A.) (2010), 255 Man.R.(2d) 12; 486 W.A.C. 12; 254 C.C.C.(3d) 277; 2010 MBCA 38, dist. [para. 27].

R. v. Dinh (K.G.) et al. (2008), 234 Man.R.(2d) 219; 2008 MBQB 332, dist. [para. 27].

R. v. Madill (C.E.), [2005] B.C.T.C. 1564; 2005 BCSC 1564, dist. [para. 27].

R. v. Pearson (B.J.), [2010] 1 W.W.R. 340; 473 A.R. 357; 2009 ABQB 382, dist. [para. 27].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 245 C.C.C.(3d) 1; 2009 SCC 32, refd to. [para. 33].

R. v. Crisby (B.R.) (2009), 288 Nfld. & P.E.I.R. 237; 888 A.P.R. 237; 2009 NLTD 121, refd to. [para. 45].

R. v. Gosse (R.W.) (2005), 292 N.B.R.(2d) 254; 761 A.P.R. 254; 200 C.C.C.(3d) 147; 31 C.R.(6th) 261; 2005 NBQB 293 (T.D.), refd to. [para. 45].

R. v. Taylor (J.L.) (2006), 257 Nfld. & P.E.I.R. 238; 776 A.P.R. 238; 40 C.R.(6th) 21; 144 C.R.R.(2d) 272; 2006 NLCA 41, refd to. [para. 45].

R. v. Davis, 2005 BCPC 11, refd to. [para. 45].

Counsel:

P. Riley, for the appellant;

K. Tousaw, for the respondent.

This appeal was heard in Vancouver, British Columbia, on May 18, 2010, by Newbury, Neilson and Groberman, JJ.A., of the British Columbia Court of Appeal. Neilson, J.A., filed the following written reasons for judgment of the court on September 3, 2010.