



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barclay, 2018 ONCA 114

DATE: 20180208

DOCKET: C63097

Hoy A.C.J.O., Doherty and Feldman JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Devyn Barclay

Appellant

Jonathan Dawe, for the appellant

Jeanette Gevikoglu, for the respondent

Heard: December 6, 2017

On appeal from the conviction entered on April 27, 2016
    and the sentence imposed on December 21, 2016 by Justice Edward J. Koke of the
    Superior Court of Justice, sitting without a jury.

Hoy A.C.J.O.:

A.

OVERVIEW

[1]

At issue on this appeal is whether the police were entitled to detain a
    person and his luggage, based only on a suspicion, for one and three-quarters
    hours until the arrival of a drug sniffer dog.

[2]

The RCMP received a call from a confidential informant. The confidential
    informant advised the police that a passenger on a VIA train bound for Washago,
    ON, from Vancouver, BC, ticketed under the appellants name, had two large
    black suitcases from which the confidential informant could smell an odour of
    marijuana. The informant described the passenger as a bearded man around 35
    years old, 510 and 175 pounds, wearing a beige Duck Dynasty cap, and added
    that he was supposed to be getting off at Washago but is now getting off at
    Parry Sound, Ontario.

[3]

Acting on that tip, the Ontario Provincial Police placed the appellant
    (who closely matched the description provided by the confidential informant)
    under investigative detention as he disembarked from the train in Parry Sound
    with two large black suitcases. They suspected, based on the tip, that the
    suitcases contained marijuana, but they smelled nothing. The police did not
    believe they had grounds to arrest the appellant.

[4]

After reading the appellant his rights and allowing him to make
    telephone calls from the police cruiser, police called for a drug-sniffer dog.
    The nearest dog was 90 km away. While they waited for the dog to arrive, the
    police took the appellant and his luggage to the police detachment to use a
    washroom and access a landline telephone.

[5]

The dog arrived approximately one and three-quarters hours after the
    police first detained the appellant. The dog made a positive hit on one of
    the suitcases and the appellants duffle bag. The police arrested the appellant
    and found 33 pounds of marijuana in his luggage.

[6]

The trial judge concluded that the length of time that the appellant was
    detained pending the deployment of the dog was reasonable in the circumstances.
    He wrote, at para. 57:

Canada is a large country comprised of many small towns which
    are spread out over great distances. It is not feasible for each of the
    detachments in these small towns to maintain their own sniffer dogs, and in the
    circumstances a delay of a little less than 2 hours was not unreasonable.

[7]

The trial judge convicted the appellant of possession of marijuana for
    the purpose of trafficking, contrary to s. 5(1) of the
Controlled Drugs and
    Substances Act
, S.C. 1996, c. 19, and breach of probation. He sentenced
    the appellant to 12 months incarceration.

[8]

The appellant appeals his conviction, arguing that the trial judge erred
    in concluding that the lengthy investigative detention of himself and his
    luggage did not fall outside the permissible scope of the police power of
    investigative detention. The appellant also seeks leave to appeal sentence.

[9]

For the reasons that follow, I agree with the appellant that the
    detention of him and his luggage violated his s. 9
Charter
rights.
    However, I would not exclude the evidence of the seized marijuana under s.
    24(2) of the
Charter
. I would dismiss the appellants appeal of his
    conviction. I would grant leave to appeal sentence but dismiss the appeal from
    sentence.

B.

the chronology

[10]

At 8:40 a.m.
[1]
on April 1, 2014, the confidential informants tip was relayed to the police in
    Parry Sound.

[11]

At 9:14 a.m., the appellant disembarked from the train. After verifying
    the appellants name, the police detained him, cautioned him, and advised him
    of his right to counsel.

[12]

At 9:27 a.m., the appellant was in the police vehicle, sheltered from
    the light rain and wind, making an initial telephone call on his cell phone.
    The police performed a frisk search of the appellant for police safety before
    putting him in the police vehicle. The police put the appellants luggage in
    the trunk of their vehicle and left the trunk lid open. Two more police
    officers arrived. None of the officers detected an odour of marijuana coming
    from the bags, even when one of the officers placed his face close to the bags.

[13]

At 9:37 a.m., the appellant concluded his initial call.

[14]

At 9:40 a.m., the police requested the closest drug-sniffer dog. They
    expected that it would take 30-45 minutes for the dog to arrive.

[15]

At 9:57 a.m., the police took him to the detachment so that he could use
    the washroom and call his counsel from the detachments landline. (The
    appellant had made several phone calls from the police vehicle and the battery
    on his cell phone was dying. Further, Officer Lewis did not think that the
    washroom at the VIA station was open.)

[16]

At 10:00 a.m., they arrived at the detachment and police placed the
    appellants luggage in a small room.

[17]

At 10:06 a.m., the appellant was on the phone with counsel. The
    appellant was not locked up at the detachment, but he was not free to leave.
    He waited in an interview room.

[18]

At 10:58 a.m., the sniffer dog, Racket, arrived and the police moved
    the appellants luggage to the larger garage area.

[19]

At 11:02 a.m., Racket sniffed the appellants luggage and indicated that
    one suitcase and the appellants duffle bag had an odour of drugs. The
    appellant was arrested and the police searched the contents of the appellants
    luggage.

(1)

The prolonged detention of the appellant and his luggage was unlawful
    and violated the appellants rights under s. 9 of the
Charter

[20]

I agree with the appellant that the investigative detention of him and
    his luggage fell outside the scope of the common law police power of
    investigative detention and infringed s. 9 of the
Charter
. As the
    appellant concedes, the police were entitled to initially detain the appellant
    and his luggage for investigative detention, based on the tip. But the
    approximately one and three quarters hours the police detained them was simply
    too long.

[21]

Section 9 of the
Charter
provides that everyone has the right
    not to be arbitrarily detained. A detention will not be arbitrary if it is
    lawful. One type of lawful detention is a common law investigative detention as
    defined in
R. v. Mann
, 2004 SCC 52, [2004] 3 S.C.R. 59. This power
    allows the police to detain people for investigation if there are reasonable
    grounds to suspect in all the circumstances that the individual is connected to
    a particular crime and that such detention is necessary. However, the
    investigative detention must be brief in duration and conducted in a
    reasonable manner:
Mann
, at para. 45.

[22]

If the police conduct in detaining the appellant amounted to a lawful
    exercise of their common law powers, then the investigative detention was not
    arbitrary, and did not violate the suspects right under s. 9 of the
Charter
.
    On the other hand, if the police conduct fell outside the scope of these
    powers, it constituted an infringement of the appellants right under s. 9 not
    to be arbitrarily detained.
R. v. Clayton
, 2007 SCC 32 [2007] 2 S.C.R.
    725, at para. 19.

[23]

The Crown submits that there is no constitutionally defined time limit
    to a common law investigative detention. It argues that brevity must be
    delineated by the totality of the circumstances and the officers diligence in
    conducting the investigation. It submits that, in this case, the police were
    spotless in their observance of the appellants rights during his detention,
    acted diligently, and called for the closest drug-sniffer dog. As the trial
    judge adverted to in his reasons, the fact that the dog was some 90 kilometres
    away reflects policing reality in the region and frames the reasonableness of
    the duration of the detention. The Crown argues that the common law empowers
    police to detain an individual for as long as reasonably necessary to further the
    investigation of the particular crime to which the individual is suspected of
    being connected.

[24]

The Crown further argues that the totality of the circumstances in
    this case includes that, viewed objectively, based on the confidential
    informants tip, the police had reasonable and probable grounds to arrest the
    appellant and search his luggage when he disembarked from the train with the
    two suitcases. Effectively, the Crown says that because, objectively, the
    police were in fact entitled to arrest the appellant, brief can be
    interpreted liberally.

[25]

I cannot accept the Crowns submissions.

[26]

I agree that there is no bright line temporal rule in determining
    whether an investigative detention involved an unjustifiable use of police
    powers and, as a result, is arbitrary. However, the requirement that an
    investigative detention be brief nonetheless connotes a temporal limitation
    and not a period that can be extended for as long as necessary to further an
    otherwise appropriate, diligent, and legitimate investigation of the particular
    crime to which the individual is suspected of being connected. It follows that
    the permitted duration of an investigative detention is not defined by the time
    reasonably required to deploy a sniffer dog, even if the police treatment of
    the suspect is otherwise exemplary during the period of detention.

[27]

The permitted duration of an investigative detention is determined by
    considering whether the interference with the suspects liberty interest by his
    continuing detention was more intrusive than was reasonably necessary to
    perform the officers duty, having particular regard to the seriousness of the
    risk to public or individual safety.
R. v. Clayton
, at para. 31;
R.
    v. Mann
,
at p. 324;
R. v. Aucoin
, 2012 SCC 66, [2012] 3
    S.C.R. 408, at para. 36.

[28]

But all investigative detentions must be brief because the state
    interference with the individuals liberty rests on a reasonable suspicion of
    criminal activity, a much lower standard than the reasonable and probable
    grounds needed for an arrest.  The relatively low reasonable suspicion
    standard cannot constitutionally sustain a detention that is not brief.

[29]

The purpose of the brief detention contemplated under the investigative
    detention power is to allow the police to take investigative steps that are
    readily at hand to confirm their suspicion and arrest the suspect or, if the
    suspicion is not confirmed, release the suspect.

[30]

The word brief is descriptive and not quantitative.  It describes a
    range of time and not a precise time limit.  The range, however, has temporal
    limits and cannot expand indefinitely to accommodate any length of time
    required by the police to reasonably and expeditiously carry out a police
    investigation.

[31]

The permitted duration of an investigative detention is case-specific.
    Some of the relevant factors include:

·

the intrusiveness of the detention
.
    For example, handcuffing the suspect behind his or her back and placing the
    suspect in a police cruiser, or diverting the suspect from his intended path by
    taking him to the police detachment to continue the investigation, will
    generally be more intrusive of the suspects liberty interest than asking him
    questions at the point of initial detention. The more intrusive the detention
    is to the suspects liberty interest, the more closely its duration will be
    scrutinized.

·

the nature of the suspected
    criminal offence
. If the suspected offense is not serious, the permitted
    duration will probably be at the shorter end of brief.

·

the complexity of the
    investigation
. If the investigation is not complex, one would expect
    that police questioning of the suspect would not reasonably need to be lengthy,
    and the permitted duration will probably be at the shorter end of brief.
    However, if the investigation of the suspected criminal offence is complex, its
    complexity will only justify a longer permitted duration within the range of
    brief to the extent it is causally linked to the duration of the detention.

·

any immediate public or individual
    safety concerns
. Immediate public or individual safety concerns may
    justify a permitted duration at the longer end of brief.

·

the ability of the police to
    effectively carry out the investigation without continuing the detention of the
    suspect
. If there are other reasonable means of continuing the investigation
    without detaining the suspect, the continued detention of the suspect would
    likely render continued detention unconstitutional.

·

the lack of police diligence
.
    For example, if a sniffer dog were immediately available, and yet the police
    detained the suspect for 20 minutes before employing the dog to confirm or
    refute their suspicion, then, depending on all of the other relevant factors,
    the interference with the suspects liberty interest as a result of the lack of
    police diligence might render the delay  unconstitutional.

·

the lack of immediate availability
    of the required investigative tools
. On the other hand, depending on all
    of the other relevant factors, if a sniffer dog were made available as soon as
    practicable and employed as soon as available, the same 20-minute detention
    might fall within the range of time that can be characterized as a brief
    detention.

[32]

The relative importance of these and other relevant factors, and thus
    the permissible length of an investigative detention, will vary from case to
    case. But it is crucial to remember that such factors merely situate the
    permitted duration of the detention within the range of what is brief, and
    that all investigative detentions must be brief.

[33]

In my view, the lawful investigative detention of the appellant and his
    luggage had ended by no later than 9:40 a.m. By that time, the police had
    completed their investigation at the VIA station. Their investigation had
    yielded nothing: four police officers had been unable to detect any odour of marijuana
    emanating from the appellants luggage and they believed that it would take
    35-40 minutes for a sniffer dog to arrive.

[34]

The further interference with the appellants liberty interest by his
    continued detention while police awaited the arrival of the drug-sniffer dog
    was more intrusive than was reasonably necessary to address the seriousness of
    the risk to public or individual safety and to perform the police duty, given
    the nature of the offence. The police suspected that the appellant had marijuana
    in his luggage. The investigation was not complex and, in this situation, the
    risk to public or individual safety was low. If the police had wanted to
    continue investigating the appellant, they knew where he lived and, in the
    circumstances, had numerous avenues they could have pursued without interfering
    with his liberty.

[35]

Finally, police require reasonable and probable grounds, both
    subjectively and objectively, to arrest a suspect without a warrant.
    Subjectively, the police did not think they had reasonable and probable grounds
    to arrest the appellant, based solely on the confidential informants tip.
    Therefore, they were not entitled to arrest him, and there is no basis to
    interpret brief in the broad manner that the Crown proposes.

[36]

Moreover, I do not agree that, objectively, the police had reasonable
    and probable grounds to arrest the appellant when he disembarked from the train
    with the two suitcases, based on the confidential informants tip. Although the
    confidential informant suspected criminal activity, the confidential informant
    had no inside information. The appellants tip was not that the suitcases
    contained marijuana. The confidential informant gave only one reason for
    suspecting the appellant of criminal activity, namely that the appellants
    suitcases had the odour of marijuana. The sense of smell is highly subjective:
R.
    v. Polashek
(1999), 45 O.R. (3d) 434 (C.A.). There was no indication that
    the confidential informant had special, or even reliable, olfactory powers or
    special training or experience in detecting the odour of marijuana. While
    information from this confidential informant had led to the arrest and
    subsequent conviction of another individual for possession of marijuana, there
    was is no evidence that this information was based on the confidential
    informants ability to smell marijuana. In all of the circumstances, the tip
    was not sufficiently compelling to provide reasonable and probable grounds to
    arrest the appellant. Although the police had reasonable grounds to suspect
    that the appellant had marijuana in his luggage when they detained him,
    objectively, they did not have reasonable and probable grounds to believe that
    he had committed an offence.

(2)

The evidence should not be excluded under s. 24(2) of the
Charter

[37]

Having found no violation of the appellants
Charter
rights,
    the trial judge did not address the admissibility of the seized evidence under
    s. 24(2) of the
Charter
. My assessment of the three lines of inquiry
    mandated by
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353 leads me to
    conclude that, in all the circumstances, the admission of the seized marijuana
    would not bring the administration of justice into disrepute and should not be
    excluded under s. 24(2) of the
Charter
.

[38]

The first line of inquiry considers the seriousness of the state conduct
    that led to the breach of the appellants
Charter
rights. I agree with
    the Crown that the state conduct that led to the breach is at the low end of
    the spectrum. The Crowns disregard of the appellants
Charter
rights was
    not wilful or reckless.
[2]
Moreover, as the Crown submits, but for exceeding the permissible duration of
    the detention, the police were spotless in their observance of the appellants
    rights during his detention.

[39]

The second line of inquiry focuses on the seriousness of the impact of
    the
Charter
breach on the
Charter
-protected interests of the
    appellant. The length of his detention had a reasonably serious impact on the
    appellants
Charter
- protected rights. The appellant and his
    belongings were detained for approximately 1 hour and 20 minutes longer than
    was permissible. However, he was not locked up at the detachment and, in and
    of itself, the dog sniff search was minimally invasive:
R. v. Chehil
,
    2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 24 and 28.

[40]

The final inquiry concerns societys interest in an adjudication on the
    merits. The evidence sought to be excluded is both reliable and critical to the
    prosecutions case. Its exclusion may undermine the truth-seeking function of
    the justice system and render the trial unfair from the public perspective:
Grant
,
    at para. 81. Moreover, the offence is moderately serious. The appellant acted
    as a courier to bring 33 pounds of marijuana  drugs with a street value of
    between $174,000 and $350,000  from British Columbia to Ontario.

C.

appeal against sentence

[41]

The appellant argues that the trial judges sentencing reasons disclose
    two related errors of principle.

[42]

First, he submits that the trial judge treated the appellants previous
    conditional discharge on a charge of simple possession of marijuana as if it
    were a prior criminal record that disentitled the appellant from being
    sentenced as a first offender.

[43]

Second, he submits that the trial judge failed to consider the principle
    that a first sentence of imprisonment should be as short as possible and
    tailored to the individual circumstances of the accused, particularly when the
    accused is a youthful first offender:
R. v. Priest
(1996), 30 O.R.
    (3d) 538 (C.A.). The appellant was 25 years of age at the time of this offence.

[44]

I agree with the appellant that the trial judge erred by describing the
    appellant as not a first time offender. At the time the appellant committed
    this offence, he had received a conditional discharge in respect of his prior
    conviction for possession of marijuana, and, as the appellant submits, was
    accordingly deemed pursuant to s. 730(3) of the
Criminal Code
not to
    have been convicted of the offence. While s. 730(4) of the
Criminal Code
provides that the court may revoke the discharge if the offender is convicted
    of an offence while bound by the conditions of his probation order, counsel
    advised that the appellants discharge had not been revoked. Therefore,
    technically, the appellant was a first-time offender at the time he was
    sentenced.

[45]

However, I am not persuaded that this error justifies appellate
    intervention.

[46]

The police seized 33 pounds of marijuana, with a street value of between
    $174,000 and $350,000. The Crown sought a sentence of two to three years
    custody, while the defence requested a suspended sentence and probation or, in
    the alternative, a 90-day intermittent custodial sentence (in addition to the
    65 days, or 98 days calculated at 1.5 to 1, the appellant had spent in
    pre-trial custody) that would allow the appellant to continue to operate the
    renovation contracting business he had started while on bail pending trial.

[47]

The trial judge noted that those convicted of possession for the purpose
    of trafficking of a significant quantity of soft drugs face incarceration
    absent exceptional circumstances. Among the trial judges reasons for
    concluding that this was not a situation which constituted exceptional
    circumstances and a suspended sentence was not appropriate was that, unlike
    almost all the cases referred to by trial counsel for the appellant where a
    suspended sentence was imposed, the appellant [was] not a first time offender
    and was serving a period of probation at the time he committed this offence.
    Moreover, the cases cited by the appellants trial counsel were decided before
    the amendment to the
Criminal Code
to eliminate conditional sentences
    for serious drug offences. The trial judge reasoned that, [t]o issue a
    suspended sentence in the circumstances of this case is to do indirectly what
    the legislature has taken steps to prohibit.

[48]

The trial judge summarized as follows:

the actions of [the appellant] were planned and deliberate. He
    was transporting a large quantity of drugs. The transportation of these drugs
    required careful planning and a degree of sophistication. He was on probation
    at the time for a drug related offence. These facts take him out of the
    exceptional circumstances category and justifies a period of incarceration.

[49]

While the reference to Mr. Barclay as not a first time offender was
    inaccurate, the trial judge did not err in considering that the appellant was
    on probation for a drug-related offence at the time that he committed this
    offence. He referred to this fact three times in his reasons. Given his
    emphasis on this fact, and all of his other reasons for concluding that a
    suspended sentence was not appropriate, I am not persuaded from his reasons
    that his error in referring to the appellant as not a first time offender
    impacted on his conclusion that a period of incarceration was appropriate.

[50]

Nor am I persuaded that the trial judge failed to give effect to the
    principle articulated by Rosenberg J.A. in
R. v. Priest
. In
Priest
,
    Rosenberg J.A. stated, at p. 545, that where a custodial sentence is
    appropriate, a first sentence of imprisonment should be as short as possible
    and tailored to the individual circumstances of the accused
rather than
    solely for the purpose of general deterrence
. (Emphasis added.)

[51]

The trial judge concluded that a 12-month sentence was appropriate. He
    imposed a lesser sentence than the two to three years custody sought by the
    Crown because of the positive steps the appellant had taken towards changing
    the direction of his life. He wrote I do not wish to impose a sentence which
    would prove detrimental to [the appellants] prospects for rehabilitation. The
    trial judge did not impose a sentence focused on general deterrence. Rather, he
    considered the particular circumstances of the accused, including the positive
    steps that he had taken, and imposed a shorter sentence than sought by the
    Crown in order not to detrimentally impact the appellants prospects for
    rehabilitation.

D.

disposition

[52]

For these reasons, I would dismiss the appeal against conviction and I
    would grant leave to appeal sentence, but dismiss the appeal against sentence.

Released: AH  FEB 08
    2018

Alexandra Hoy A.C.J.O.

I agree Doherty J.A.

I agree K. Feldman J.A.





[1]

All times noted are in Eastern Standard Time.



[2]

I note that the case of
R. v. Schmitz,
2014 NWTTC 28,
    provides some judicial support for the police officers view in this case that
    detaining suspects for an hour or two pending the arrival of a police dog is
    constitutionally compliant. While I do not agree with the reasoning in
Schmitz
, the fact that a court elsewhere in Canada has taken a different
    approach reinforces my view that the officers did not act with reckless
    disregard for the appellants constitutional rights in this case.


