R. v. Schrenk (C.A.), 2007 MBQB 93

• Judge: Suche, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 26, 2007
• Jurisdiction: Manitoba
• Citations: 2007 MBQB 93;(2007), 215 Man.R.(2d) 212 (QB)

R. v. Schrenk (C.A.) (2007), 215 Man.R.(2d) 212 (QB)

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. MY.030

Her Majesty The Queen v. Clinton Arthur Schrenk (accused)

(CR 05-01-25697; 2007 MBQB 93)

Indexed As: R. v. Schrenk (C.A.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Suche, J.

April 26, 2007.

Summary:

The accused was charged with possession of marihuana for the purposes of trafficking and trafficking marihuana. During a random traffic stop by Winnipeg police, the information he gave to the officers, and their observations, made them suspect that he was involved in transporting illegal drugs. Police detained him for investigative purposes. A drug detection dog was deployed around the perimeter of his vehicle, the dog indicated the presence of drugs, the accused was arrested and 81.5 pounds of marihuana was found in the trunk of his vehicle. The accused brought a motion under s. 24(2) of the Charter to exclude evidence, specifically the marihuana. He argued that his rights under ss. 7, 8, 9, and 10(b) of the Charter were breached.

The Manitoba Court of Queen's Bench dismissed the motion.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The police randomly stopped the accused's vehicle - The information that he gave them, and their observations, made them suspect that he was transporting illegal drugs - They detained him for investigative purposes and brought in a drug detection dog - 81.5 pounds of marihuana was found in the trunk - The accused argued that the dog sniff violated s. 8 of the Charter - The Manitoba Court of Queen's Bench disagreed - The subject of the police examination was the air space adjacent to the accused's car, which was on a public highway, a highly regulated place - It was an examination of information about the accused - The dog sniff could not provide any information about the accused's biographical core because the only thing it could discern was the presence of illegal drugs - Thus, there was no privacy interest at issue - The use of the passive drug dog was not random, intrusive or invasive - The dog walked around the outside of the car, nowhere near the accused - No information about what else was in the car or its locked truck could be discerned - This was not a search within the meaning of s. 8, nor was there anything inherently unreasonable in the police action - See paragraphs 57 to 98.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 1642

Property - Search and seizure - Search - What constitutes - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - The Winnipeg police randomly stopped the accused's vehicle - The information that he gave them, and their observations, made them suspect that he was transporting illegal drugs - They detained him for investigative purposes and brought in a drug detection dog - 81.5 pounds of marihuana was found in the trunk - The accused argued that his right to silence (Charter, s. 7) had been violated when he was questioned by the officers - The Manitoba Court of Queen's Bench disagreed - Section 76.1(1) of the Highway Traffic Act gave police the power to speak to drivers about the issues of licencing, safety, etc. - See paragraph 44.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The Winnipeg police randomly stopped the accused's vehicle - The information that he gave them, and their observations, made them suspect that he was transporting illegal drugs - They detained him for investigative purposes and brought in a drug detection dog - 81.5 pounds of marihuana was found in the trunk of the accused's rental vehicle - The officer said that, after looking at the accused's driver's licence and the rental contract, he engaged the accused in conversation because, inter alia, he "wanted to establish where he was actually living because the vehicle was rented in Calgary and he had a British Columbia driver's licence" - The accused argued that the officer's questioning shifted in focus from matters related to the Highway Traffic Act (HTA) to a possible criminal offence, and the detention became arbitrary - The Manitoba Court of Queen's Bench disagreed - A question intended to determine the accused's residency was permissible because it was objectively linked to issues relevant to HTA concerns; establishing the residency of a driver could provide information about whether the driver was properly licenced - A person who had moved to a new province was required to obtain a driver's licence in the new province of residence within a specified period - Given that the question was objectively permissible, it did not matter that the officer thought that it was not related to driver licencing, vehicle registration or vehicle insurance, or that he asked the question for an additional or another reason, provided that it was a proper, lawful reason - Even if the officer's questions went beyond what was permitted under a traffic stop and into the area of a potential criminal investigation, given that this was a lawful purpose, the detention would not be arbitrary - The only consequence would be that the accused's s. 10 rights might be triggered - See paragraphs 21 to 25.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The Winnipeg police randomly stopped the accused's vehicle - The information that he gave them, and their observations, made them suspect that he was transporting illegal drugs - They detained him for investigative purposes and brought in a drug detection dog - 81.5 pounds of marihuana was found in the trunk - The accused argued that he had been arbitrarily detained - The Manitoba Court of Queen's Bench disagreed - The detention which began with the two officers stopping the accused's vehicle was lawful and within the bounds of what was permitted under s. 76.1(1) of thee Highway Traffic Act - It was brief and the questions were objectively related to highway traffic concerns or very general inquiries - See paragraphs 21 to 27.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - Constables Broda and Karsin randomly stopped the accused's vehicle - The information that he gave Broda and Broda's observations, led them to suspect that he was transporting illegal drugs - Karsin decided that, on the basis of Broda's information, he would release the driver - However, he wanted to see if he would answer one further question, the answer to which would determine whether he would detain the accused for investigative purposes - Karsin gave the accused back his British Columbia licence and the rental agreement, confirmed that he was travelling to Toronto and not Montreal (the return destination on the rental agreement), then told the accused he was free to go and wished him a safe drive - Karsin waited a few seconds (eight to ten), and then asked the accused if he could ask a few questions, which he said the accused did not have to answer if he did not want to - The accused said "Yeah, sure" - Karsin asked, "Is there a big drug problem in B.C.?" - The accused's verbal responses and mannerisms were the tipping point in Karsin's decision to detain him - The accused argued that when Karsin posed this question, he was psychologically detained - The Manitoba Court of Queen's Bench disagreed - The court considered, inter alia, that minutes later the accused refused Karsin's request to search his vehicle, told Karsin that he knew his rights, and wanted clarification as to the effect of being detained for investigative purposes - All this suggested that the accused understood what was being said, and was a relatively sophisticated individual - See paragraphs 45 to 50.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - [See second Civil Rights - Topic 4604 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Constables Broda and Karsin randomly stopped the accused's vehicle - The information that he gave them, and their observations, made them suspect that he was transporting illegal drugs - They detained him for investigative purposes and brought in a drug detection dog - 81.5 pounds of marihuana was found in the trunk of his vehicle - The accused argued that his right to counsel was denied when Broda and Karsin asked him certain questions - The Manitoba Court of Queen's Bench disagreed - The questioning of the accused did not go beyond what was permitted on a traffic stop, and even if it did, his s. 10(b) rights were not violated - On an investigative detention, different from arrest, the right to counsel did not necessarily immediately arise - See paragraphs 28 to 38.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - After a random police stop, investigation and search by Constables Broda and Karsin, the accused was charged with trafficking offences - The accused sought to have the marihuana that was found in the trunk of his vehicle excluded from evidence on the basis that his s. 10(b) Charter right to counsel was denied when Karsin detained him for investigation - Karsin told the accused that he was being detained for this reason and asked him if he wanted to call his lawyer - The accused said that he did not know his lawyer's telephone number - Karsin asked if he wanted to call his lawyer or Legal Aid - He said he did not think so - The accused argued that Karsin had an obligation to help him find his lawyer's telephone number, through 411, if necessary - Further, Karsin was obliged to advise him that he could contact free and immediate legal counsel - The Manitoba Court of Queen's Bench dismissed the application - The accused gave no indication that he wanted to speak to his lawyer or a Legal Aid lawyer - As to s. 10(b)'s informational component, Karsin did not make it clear to the accused that free and immediate advice was available to him regardless of whether he qualified for legal aid - However, he acted in good faith, and as the accused neither said nor did anything to incriminate himself (the point of s. 10(b)), the breach was minor and certainly not one which would affect the balance of the investigation, the admissibility of any Crown evidence, or trial fairness - See paragraphs 39 to 43.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See second Civil Rights - Topic 4604 ].

Civil Rights - Topic 4617.1

Right to counsel - General - Notice of - Sufficiency of - [See second Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

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

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - The Winnipeg police randomly stopped the accused's vehicle - The information that he gave them, and their observations, made them suspect that he was transporting illegal drugs - The information/observations included that he was a British Columbia driver, who had flown to Calgary and rented a vehicle there to drive to Toronto to visit family for a week because he said that he could not afford to fly direct, but the rental vehicle cost more than a flight would have and the rental agreement said that the vehicle was to be returned to Dorval Airport in Montreal - There were two cell phones in the vehicle and the vehicle looked like it was lived in - The accused was extremely nervous - The officers detained him for investigative purposes and brought in a drug detection dog - 81.5 pounds of marihuana was found in the trunk - The accused argued that the police lacked reasonable grounds to detain him for investigative purposes - The Manitoba Court of Queen's Bench disagreed - There was no logical explanation for the "nonsensical trip", except that the accused was transporting illegal contraband - See paragraphs 51 to 56.

Police - Topic 3109

Powers - Investigation - Motor vehicles - [See Civil Rights - Topic 3160 ].

Police - Topic 3204

Powers - Direction - Stopping vehicles - [See both Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1; 77 C.R.(3d) 110, refd to. [para. 14].

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

Brown et al. v. Durham Regional Police Force (1998), 116 O.A.C. 126; 43 O.R.(3d) 223; 1998 CarswellOnt 5020 (C.A.), refd to. [para. 17].

R. v. Dolynchuk (E.N.) (2004), 184 Man.R.(2d) 71; 318 W.A.C. 71; 2004 MBCA 45, dist. [para. 29].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, appld. [para. 31].

R. v. Suberu (M.) (2007), 220 O.A.C. 322 (C.A.), refd to. [para. 35].

R. v. Hall, [1998] O.J. No. 2607 (C.J. Prov. Div.), refd to. [para. 36].

R. v. Dhaliwal (B.) (2003), 345 A.R. 118; 2003 ABPC 57, refd to. [para. 40].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 40].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 40].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481, refd to. [para. 46].

R. v. C.R.H. (2003), 173 Man.R.(2d) 113; 293 W.A.C. 113; 2003 MBCA 38, refd to. [para. 47].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), refd to. [para. 48].

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; 185 C.C.C.(3d) 308; 2004 SCC 52, refd to. [para. 51].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 12 O.R.(3d) 182; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 51].

R. v. Calderon, [2004] O.J. No. 3474 (C.A.), refd to. [para. 53].

R. v. Kim (H.S.) et al. (2004), 368 A.R. 271; 2004 ABQB 584, refd to. [para. 53].

R. v. Wong et al., [1990] 3 S.C.R. 36; 120 N.R. 34; 45 O.A.C. 250, refd to. [para. 53].

R. v. Jeha (W.), [2005] O.T.C. 863 (Sup. Ct.), refd to. [para. 53].

R. v. Casselman (C.H.) (2002), 167 Man.R.(2d) 305; 2002 MBQB 247, refd to. [para. 54].

R. v. Madill (C.E.), [2005] B.C.T.C. 1564; 2005 BCSC 1564, refd to. [para. 54].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81; 104 C.C.C.(3d) 23, refd to. [para. 58].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104; 24 C.R.(4th) 47; 84 C.C.C.(3d) 203, refd to. [para. 59].

R. v. Edwards (C.) (1996), 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136 (S.C.C.), refd to. [para. 62].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 62].

R. v. Laurin (R.R.) (1997), 98 O.A.C. 50; 113 C.C.C.(3d) 519 (C.A.), refd to. [para. 66].

R. v. A.M. (2006), 209 O.A.C. 257; 79 O.R.(3d) 481 (C.A.), refd to. [para. 74].

R. v. Taylor (J.L.) (2006), 257 Nfld. & P.E.I.R. 238; 776 A.P.R. 238; 2006 NLCA 41, refd to. [para. 77].

R. v. Kang-Brown (G.) (2005), 386 A.R. 48; 2005 ABQB 608, affd. (2006), 391 A.R. 218; 377 W.A.C. 218; 70 W.C.B.(2d) 19; 2006 ABCA 199, refd to. [paras. 78, 83].

R. v. Brown - see R. v. Kang-Brown (G.).

R. v. Dinh (H.T.) (2003), 330 A.R. 63; 299 W.A.C. 63; 11 C.R.(6th) 58; 2003 ABCA 201, refd to. [para. 83].

R. v. Clay (C.J.), [2003] 3 S.C.R. 735; 313 N.R. 252; 181 O.A.C. 350; 2003 SCC 75, refd to. [para. 88].

R. v. Monney (I.), [1999] 1 S.C.R. 652; 237 N.R. 157; 119 O.A.C. 272, refd to. [para. 90].

Statutes Noticed:

Highway Traffic Act, S.M. 1985-86, c. 3; C.C.S.M., c. H-60, sect. 76.1(1) [para. 13].

Counsel:

Anne Krahn and Tanit L. Gilliam, for the Crown;

Sheldon E. Pinx, Q.C., for the accused.

This application was heard by Suche, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on April 26, 2007.