R. v. Schrenk (C.A.),

• Jurisdiction: Manitoba
• Judge: Monnin, Steel and Chartier, JJ.A.
• Neutral Citation: 2010 MBCA 38
• Citation: (2010), 255 Man.R.(2d) 12 (CA),2010 MBCA 38,254 CCC (3d) 277,[2010] MJ No 114 (QL),255 Man R (2d) 12,[2010] M.J. No 114 (QL),255 ManR(2d) 12,255 Man.R.(2d) 12,(2010), 255 ManR(2d) 12 (CA)
• Date: 02 June 2009
• Court: Court of Appeal (Manitoba)

R. v. Schrenk (C.A.) (2010), 255 Man.R.(2d) 12 (CA);

      486 W.A.C. 12

MLB headnote and full text

Temp. Cite: [2010] Man.R.(2d) TBEd. AP.026

Her Majesty The Queen (respondent) v. Clint Arthur Schrenk (accused/appellant)

(AR 07-30-06739; 2010 MBCA 38)

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

Manitoba Court of Appeal

Monnin, Steel and Chartier, JJ.A.

April 26, 2010.

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, in a decision reported at 215 Man.R.(2d) 212, dismissed the motion. The accused appealed.

The Manitoba Court of Appeal dismissed the appeal.

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 trial judge held that this was not a search within the meaning of s. 8, nor was there anything inherently unreasonable in the police action - 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 trunk could be discerned - The accused appealed - The Manitoba Court of Appeal noted that the trial judge made her decision before the cases of R. v. Kang-Brown and R. v. A.M. (both S.C.C. decisions) and her conclusion that the dog sniff was not a search was in error - See paragraphs 89 to 94.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - 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 Manitoba Court of Appeal upheld the trial judge's finding that the drug dog sniff search did not violate s. 8 of the Charter - The trial judge was satisfied that the police had reasonable grounds to suspect that the accused was couriering drugs before they commenced the search - Based on the totality of the circumstances, the police officer had an objectively verifiable, reasonable suspicion that the accused was involved with drug trafficking and the dog sniff was carried out in a reasonable manner - See paragraphs 95 to 114.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - At issue was whether the police could employ a sniffer dog to search for drugs when the person had already been placed under an investigative detention - The Manitoba Court of Appeal stated that "What the Supreme Court of Canada has done in Kang-Brown is carve out another basis for a search based on reasonable suspicion which applies to cases where the police are using investigative tools such as sniffer dogs. It is a legal basis for a search that is independent of the detention. There may be two bases for conducting a search, a search incidental to detention and a search based on reasonable suspicion alone, which allow the use of an investigative tool. It is important to remember that even if there was a reasonable suspicion to ground both the investigative detention and the search, they must both have been carried out in a reasonable manner. Where, as in this case, an investigative detention exists concurrent with the reasonable suspicion to justify the use of the sniffer dog, that sniff search may impact on the validity of the detention. Consequently, the length of the investigative detention must be relatively brief and minimally intrusive. So, even if there is a reasonable suspicion so as to allow the dog sniff, if the detention is prolonged unreasonably in order to accommodate the dog sniff, the investigative detention may become unreasonable." - See paragraphs 107 and 108.

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 first Civil Rights - Topic 1641.4 ].

Civil Rights - Topic 1651

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

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) - [See Civil Rights - Topic 4608 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The Manitoba Court of Appeal stated that "It is well accepted that random traffic stops pursuant to highway traffic legislation are a violation of s. 9 of the Charter, but ultimately reasonably and demonstrably justified under s. 1 so long as they are limited in time and scope to the purpose for which they are permitted. So, the questions that may justifiably be asked on such a traffic stop are those related to driving and highway safety. Any further, more intrusive procedures can only be undertaken upon reasonable suspicion of criminal activity. The court must be alert to the danger of allowing these traffic stops to be turned into a means of conducting either an unfounded general inquisition or an unreasonable search." - See paragraphs 34 and 35.

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 trial judge disagreed - The accused appealed - The Manitoba Court of Appeal dismissed the appeal - No Charter concern arose merely from police investigating criminal activity revealed by the traffic stop so long as the limits of police powers for road-safety purposes were respected - Information gained by police from such roadside questioning could be used as an investigative tool by police to confirm or reject an officer's suspicions so long as the questioning itself related to the vehicle or its operation and was not a general inquisition asking questions such as whether, for example, the accused took drugs or had any criminal convictions - There was no sound reason for invalidating an otherwise proper stop because the police used the opportunity afforded by that stop to further some other legitimate interest - The police could use a legitimate traffic stop to avail themselves of the opportunity to further some other legitimate police interest, and the gathering of police intelligence was well within the ongoing police duty to investigate criminal activity - See paragraphs 38 to 46.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary 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 trial judge held that Karsin had reasonable and probable grounds to detain the accused at that point - The Manitoba Court of Appeal agreed - The trial judge was entitled to and did look at the totality of the circumstances to determine whether there was an objective basis to found the reasonable suspicion, including the nonsensical explanation provided by the accused for his unusual travel plans; the police officer's knowledge that drug transporters try to avoid any demonstrated connection to known source provinces like British Columbia and that rental cars were often used to transport illegal drugs; the fact that the vehicle appeared lived-in; the accused's physical demeanour (lack of eye contact, nervousness); and the officer's past experience and training - A judge was entitled to consider a police officer's training and experience in determining objective reasonableness - See paragraphs 63 to 86.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See second Civil Rights - Topic 1641.4 ].

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 trial judge 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 - The Manitoba Court of Appeal found no reason to interfere with the trial judge's conclusion - See paragraphs 49 to 62.

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - 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 trial judge 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 - The Manitoba Court of Appeal dismissed the accused's appeal - Police were not required to give s. 10(b) Charter warnings during a brief roadside stop made for road-safety purposes, again so long as the questioning was related to the vehicle or its operation - The exercise of the rights guaranteed by s. 10(b) was incompatible with the brief roadside detention contemplated by such a stop - Nor was the accused's right to silence infringed by the roadside questioning - See paragraph 47.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See Civil Rights - Topic 4608 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See first Civil Rights - Topic 3603 ].

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - The Manitoba Court of Appeal discussed what would constitute a lawful detention for investigative purposes - See paragraph 70.

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See second Civil Rights - Topic 1641.4 and third Civil Rights - Topic 3603 ].

Police - Topic 3109

Powers - Investigation - Motor vehicles - [See first Civil Rights - Topic 3603 and Civil Rights - Topic 4608 ].

Police - Topic 3189

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

Police - Topic 3204

Powers - Direction - Stopping vehicles - General - [See first and second Civil Rights - Topic 3603 ].

Cases Noticed:

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, refd to. [para. 20].

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. 23].

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, dist. [para. 23].

R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, dist. [para. 23].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 35].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 35].

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. 35].

R. v. Grant (I.M.) (2009), 236 Man.R.(2d) 54; 448 W.A.C. 54; 2009 MBCA 9, refd to. [para. 39].

R. v. Moquin (T.D.) (2010), 251 Man.R.(2d) 160; 478 W.A.C. 160; 2010 MBCA 22, refd to. [para. 39].

R. v. Mouland (L.L.) (2007), 304 Sask.R. 129; 413 W.A.C. 129; 53 M.V.R.(5th) 11; 2007 SKCA 105, refd to. [para. 40].

R. v. Belnavis (A.) and Lawrence (C.) (1996), 91 O.A.C. 3; 107 C.C.C.(3d) 195 (C.A.), refd to. [para. 41].

R. v. Casselman (C.H.) (2002), 167 Man.R.(2d) 305; 2002 MBQB 247, refd to. [para. 41].

R. v. Pearson (B.J.) (2009), 473 A.R. 357; 9 Alta. L.R.(5th) 319; 2009 ABQB 382, refd to. [para. 41].

Brown et al. v. Durham Regional Police Force (1998), 116 O.A.C. 126; 131 C.C.C.(3d) 1 (C.A.), refd to. [para. 42].

R. v. Kaddoura (M.T.) (2009), 267 B.C.A.C. 185; 450 W.A.C. 185; 2009 BCCA 113, refd to. [para. 42].

R. v. Byfield (C.A.) (2005), 194 O.A.C. 98; 193 C.C.C.(3d) 139 (C.A.), refd to. [para. 44].

R. v. Madill (C.E.), [2005] B.C.T.C. 1564; 2005 BCSC 1564, refd to. [para. 46].

R. v. Harris (M.) (2007), 228 O.A.C. 241; 87 O.R.(3d) 214; 225 C.C.C.(3d) 193; 2007 ONCA 574, refd to. [para. 47].

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. 53].

R. v. Bottle (B.E.), [2004] B.C.T.C. 1667; 2004 BCSC 1667, refd to. [para. 59].

R. v. Delorme (J.E.) (2003), 234 Sask.R. 193; 2003 SKPC 73, refd to. [para. 59].

R. v. Lewis (M.D.) (2007), 250 N.S.R.(2d) 283; 796 A.P.R. 283; 217 C.C.C.(3d) 82; 2007 NSCA 2, refd to. [para. 61].

R. v. Vandenbosch (K.A.) (2007), 220 Man.R.(2d) 125; 407 W.A.C. 125; 2007 MBCA 113, refd to. [para. 62].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), refd to. [para. 65].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 65].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 66].

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. 67].

R. v. Clayton (W.) et al., [2007] 2 S.C.R. 725; 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [para. 67].

R. v. Nesbeth (P.) (2008), 240 O.A.C. 71; 238 C.C.C.(3d) 567; 2008 ONCA 579, leave to appeal refused (2009), 398 N.R. 392; 261 O.A.C. 400 (S.C.C.), refd to. [para. 75].

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, refd to. [para. 76].

R. v. Rajaratnam (M.) (2006), 397 A.R. 126; 384 W.A.C. 126; 214 C.C.C.(3d) 547; 2006 ABCA 333, refd to. [para. 77].

R. v. Drury (L.W.) et al. (2000), 150 Man.R.(2d) 64; 230 W.A.C. 64; 2000 MBCA 100, refd to. [para. 78].

R. v. Calderon (2004), 188 C.C.C.(3d) 481 (Ont. C.A.), refd to. [para. 78].

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, agreed with [para. 81].

R. v. Willis (R.) (2003), 173 Man.R.(2d) 208; 293 W.A.C. 208; 2003 MBCA 54, refd to. [para. 83].

R. v. Duong (T.) (2006), 228 B.C.A.C. 183; 376 W.A.C. 183; 2006 BCCA 325, refd to. [para. 84].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 89].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 89].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351, refd to. [para. 90].

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. 90].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 92].

R. v. McKenzie (B.C.) (2009), 342 Sask.R. 281; 2009 SKQB 415, refd to. [para. 92].

R. v. Dinh (K.G.) et al. (2008), 234 Man.R.(2d) 219; 2008 MBQB 332, refd to. [para. 112].

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. 115].

R. v. Shepherd, [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. 115].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 116].

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. 116].

Statutes Noticed:

Highway Traffic Act, S.M. 1985-86, c. 3; C.C.S.M., c. H-60, sect. 76.1(1) [para. 33].

Authors and Works Noticed:

Fiszauf, Alec, The Law of Investigative Detention (2008), p. 102 [para. 100].

Counsel:

S.E. Pinx, Q.C., for the appellant;

C.J. Mainella and S.C. Cawley, for the respondent.

This appeal was heard on June 2, 2009, by Monnin, Steel and Chartier, JJ.A., of the Manitoba Court of Appeal. Steel, J.A., delivered the following decision for the court on April 26, 2010.