



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. MacDonald, 2012
    ONCA 495

DATE: 20120712

DOCKET: C52174

MacPherson, Armstrong and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew MacDonald

Appellant

Saman Wickramasinghe, for the appellant

Xenia Proestos, for the respondent

Hazel Jones, for the intervener Her Majesty the Queen in
    right of Ontario

Heard: June 11, 2012

On appeal from the conviction entered on February 19,
    2009 by Justice John D. Keast of the Ontario Court of Justice, sitting without
    a jury, with reasons reported at 2009 ONCJ 304.

MacPherson J.A.:

A.

introduction

[1]

Following a four day trial, Justice Keast of the Ontario Court of
    Justice convicted the appellant Andrew MacDonald of one count of possession of
    marijuana for the purpose of trafficking contrary to s. 5(2) of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19, (
CSDA
) and one
    count of possession of excess unmarked cigarettes contrary to s. 29(1)(a) (as
    it then was) of the
Tobacco Tax Act,
R.S.O. 1990, c. T.10 (
TTA
).
    The trial judge imposed a sentence of four months of imprisonment followed by
    12 months of probation on the
CDSA
conviction and a $4,205 fine on the
TTA
conviction.

[2]

On this appeal, the appellant appeals the
CDSA
conviction.
[1]
,
[2]
He contends that his rights under ss. 8 and 10 of the
Canadian Charter of
    Rights and Freedoms
were violated by the investigating police officers and
    that the evidence relating to the trafficking charge found in his vehicle
    should have been excluded under s. 24(2) of the
Charter
. He seeks an
    acquittal on the
CDSA
charge or, in the alternative, an order for a
    new trial.

B.

Facts

(1)

The parties and events

[3]

The appellant and his friend Joshua Beaucage were driving in the
    appellants Dodge Caravan en route to Christian Island where they were to perform
    in an aboriginal drum ceremony. At approximately 12:30 a.m. on July 7, 2007,
    Ontario Provincial Police officers Constable Joe McCallion and Sergeant Kevin
    Webb, who were on radar patrol on Highway 17 in the Sudbury area, clocked the
    van travelling at 121 km/h in a 90 km/h zone. They stopped and detained the
    appellant for speeding contrary to the
Highway Traffic Act
, R.S.O.
    1990, c. H.8 (
HTA
).

[4]

At first, Constable McCallion took the lead on the
HTA
stop; he
    approached the appellant on the drivers side. Sergeant Webb approached the
    passenger side where Mr. Beaucage sat for officer safety reasons. Sergeant Webb
    peered through the passenger-side window. He observed a brown cardboard box in
    the large open area at the back of the van. He estimated its dimensions as
    about 20 x 10 x 14. He also noticed some lettering on the top left and right
    corners of the box, SM and FF respectively. Based on his experience, Sergeant
    Webb became suspicious that the box contained contraband cigarettes.

[5]

Sergeant Webb came around to the drivers side. He asked the appellant what
    was in the box. The appellant replied that he  did not know. Sergeant Webb
    repeated the question and the appellant responded that the box contained
    cigarettes for his mother-in-law and for the pow-wow he was heading to.

[6]

Sergeant Webb went back to the police cruiser and called Jack Anthopoulos,
    the on-call senior investigator at the provincial Ministry of Revenue, to
    obtain authorization to detain and search the vehicle pursuant to s. 24(1) of
    the
TTA
. Mr. Anthopoulos concluded that there were reasonable and
    probable grounds to believe that the vehicle contained evidence of a
    contravention of the
TTA
. He granted authorization to detain and
    search the appellants vehicle and seize any products or paperwork relating to
    the purchase, sale, and transportation of cigarettes.

[7]

The search revealed, among other items, a bag containing 310 grams of
    marijuana and a fanny pack containing $4,872.75 in cash. The cardboard box
    contained 50 plastic bags, each containing 200 unmarked cigarettes.

[8]

There are other facts relevant to the disposition of this appeal. They
    are better dealt with in the context of the legal issues to which they relate.

(2)

The trial judgment

[9]

At trial, the appellant applied to have the evidence against him,
    including the marijuana, cigarettes, and his oral utterances to Sergeant Webb,
    excluded under s. 24(2) of the
Charter
on the basis that his rights
    under ss. 8, 9 and 10 of the
Charter
had been violated. The trial judge
    dismissed the
Charter
motions, admitted the evidence, and convicted
    the appellant.

[10]

The
    appellant appeals from the s. 8 and s. 10 rulings.

C.

Issues

[11]

In
    his factum and his oral argument, the appellant addresses five issues, albeit
    in different order. I propose to consider the issues in the chronological order
    presented by the
Charter
.

(1)

Did the trial judge err by
    concluding that Sergeant Webbs opening of the vans sliding door did not
    constitute an unreasonable search pursuant to s. 8 of the
Charter
?

(2)

Did the trial judge err by
    concluding that Sergeant Webbs questions to the appellant about the cardboard
    box did not constitute an unreasonable search pursuant to s. 8 of the
Charter
?

(3)

Did the trial judge err by
    concluding that the search pursuant to the
TTA
was properly
    authorized?

(4)

Did the trial judge err by
    concluding that Sergeant Webbs questions about the cardboard box did not
    trigger a requirement that the police inform the appellant about his rights
    under s. 10 of the
Charter
?

(5)

Did the trial judge err by not
    excluding the appellants utterances, the marijuana, and the cigarettes
    pursuant to s. 24(2) of the
Charter
?

D.

analysis

(1)
Opening the van door and
Charter
s. 8

[12]

At
    trial, one of the contested areas of testimony was whether Sergeant Webb opened
    the vans sliding door on the drivers side and peered inside prior to
    receiving authorization under s. 24(1) of the
TTA
.

[13]

The
    trial judge found that Sergeant Webb only opened the vans door after obtaining
    the
TTA
authorization. In making this finding, the trial judge
    accepted Sergeant Webbs testimony about the timing of the door opening,
    rejected the appellants and Mr. Beaucages testimony to the contrary, and said
    that Constable McCallions testimony on the point was inconclusive.

[14]

The
    appellant challenges the finding of fact relating to Constable McCallions
    testimony. The appellant contends that, read properly, Constable McCallions
    testimony was consistent with the testimony of the appellant and Mr. Beaucage
    and should have led the trial judge to find that Sergeant Webbs opening of the
    van door constituted an unreasonable search.

[15]

The
    trial judge discussed Constable McCallions testimony in this fashion:

The observation of MacDonald and Beaucage as to the initial
    opening of the sliding door does have some support in the evidence of Officer
    McCallion. Officer McCallions evidence on this point was contradictory and
    inconsistent, but he did say at one point the sliding door was opened before
    the section 24(1) authorization.

That one answer  indicating an early opening up of the door 
    must be assessed together with all of his answers on this point. Considering
    the totality of his answers, he does not know when the sliding door was opened.

[16]

I
    agree that this passage  1½ paragraphs in a 209 paragraph judgment
    mischaracterizes Constable McCallions evidence. On at least three occasions,
    Constable McCallion indicated that Sergeant Webb opened the van door and looked
    inside before the
TTA
authorization had been obtained. Typical of his
    testimony on this point was this exchange during his cross-examination:

Q.      Do you have any independent recollection of Sergeant
  Webb opening up the back door of the Caravan?

A.      Yes.

. . .

Q.      And he opened the back door before there was any
    conversation with the  before the tobacco police, lets call them, were
    contacted by yourself or by Constable (sic) Webb, a lot later in the  investigation.

A.      It was after a conversation with Mr. MacDonald but
  prior to the conversation with the tobacco   officer.

Q.      And prior to the authorization to search the vehicle
  that was given by the tobacco officer.

A.      Thats correct.

[17]

However,
    although I accept the appellants submission on this factual point, I do not
    think it makes a practical difference in the result. For officer safety
    reasons, Sergeant Webb had already looked through the vans open window and
    seen the cardboard box. The appellant does not challenge the validity of that
    search. Similarly, when Sergeant Webb opened the van door  whenever that
    occurred  what he saw was the same cardboard box. The appellant does not
    contend, and there is no evidence, that Sergeant Webb engaged in any activity
    other than looking at the interior of the van when he opened the door.
    Accordingly, just as the search relating to Sergeant Webbs observation through
    the open window was reasonable, so too the search relating to his observation
    through the open door was also reasonable.

(2)

Sergeant Webbs questions and
Charter
s. 8

[18]

The
    appellant contends that the trial judge erred by concluding that Sergeant
    Webbs questions to the appellant about the contents of the cardboard box did
    not amount to an unreasonable search. In support of this position, the
    appellant relies on a passage from Cory J.s judgment in
R. v. Mellenthin
,
    [1992] 3 S.C.R. 615, at p. 625:

The police questions pertaining to the appellants gym bag, the
    search of the bag and of the appellants vehicle were all elements of a search.
    Furthermore, the search was made without the requisite foundation of reasonable
    and probable grounds. It was therefore an unreasonable search in contravention
    of s. 8 of the
Charter
.

[19]

In
    my view, there is an overlap between this issue and the fourth issue. Since the
    trigger for the analysis in
Mellenthin
was the detention of
    Mellenthin, and since the appellant advances the legal argument that Sergeant
    Webbs questioning of the appellant raises a
Charter
s. 10 issue that
    flowed from his detention, I will address it in that context.

(3)

Was the search properly authorized
?

[20]

The
    appellant advances two arguments on this issue.

[21]

First,
    the appellant submits that the information provided by Sergeant Webb to Mr.
    Anthopoulos was insufficient to furnish the requisite reasonable and probable
    grounds to believe that a search of the van would produce evidence of a
    contravention of the
TTA
.

[22]

I
    do not accept this submission. The trial judge reviewed the information
    available to both Sergeant Webb and Mr. Anthopoulos and concluded that it was
    sufficient, on the subjective and objective standard, to support reasonable
    and probable grounds of an infraction under the
Tobacco Tax Act
.
    Although I am not persuaded that all of the factors listed by the trial judge
    were relevant  for example, the identity of the driver and his residence  I
    do agree with his ultimate conclusion on this issue.

[23]

Second,
    the appellant submits that the trial judge erred in finding that Sergeant Webb
    was properly authorized in law to receive sub-delegated power from Mr.
    Anthopoulos.
[3]

[24]

I
    disagree. I endorse the trial judges reasoning on this issue:

In analyzing this, the starting point is section 7(1) of the
Ministry
    of Revenue Act
,
which provides the Minister of Revenue may delegate
    the Ministers statutory powers and/or duties to the Deputy Minister or to a
    public servant who works in or provides services to the Ministry. The
    Minister made a Delegation Order dated June 13
th
, 2007 that
    provides, in part, the Ministers power under section 24(1) of the
Tobacco
    Tax Act
(to authorize a search and seizure) is delegated to specified
    persons in the Special Investigations Branch, including senior investigators.

The power to conduct the search comes from section 24(1) of the
Tobacco Tax Act
, which provides that any person authorized for the
    purpose by the Minister [or delegate] who has reasonable and probable grounds
    to believe that a vehicle, trailer, etc. contains evidence of a contravention
    of the
Act
, may exercise various investigatory search powers set out
    in paragraphs (a) through (d) of that section.  This provision directly
    empowered Sergeant Webb (any person) to conduct the search and seizure once
    he had the two prerequisites required by the section:

(i)

authorization
    from the Minister (or in this case, his delegate Mr. Anthopoulos); and

(ii)

reasonable
    and probable grounds to believe he would discover evidence of a contravention
    of the
Act
.

Mr. Anthopoulos, acting as the Ministers delegate, authorized
    Sergeant Webb to search Mr. MacDonalds vehicle, as he was empowered to by
    virtue of section 24(1) of the
Tobacco Tax Act
and section 7(1) of the

Ministry of Revenue Act
.  Once so authorized, and with
    reasonable and probable grounds, Sergeant Webb exercised the investigatory
    powers provided directly to him (any person) under
paragraphs 24(1)
(a)
    through (d) of the
Tobacco Tax Act
.

(4)

Detention and s. 10 of the
Charter

[25]

The
    trial judge found that the appellant was detained under the
TTA
at the
    point in time when Sergeant Webb walked back to the police cruiser with the
    intent of seeking authorization to search the van pursuant to s. 24(1) of the
TTA
.
    The trial judge commented that before walking back to the cruiser Sergeant Webb
    should have advised the appellant that he was being detained under the
TTA.
The
    trial judge reasoned that this was the same point when the appellants s. 10
    rights crystallized:

The philosophy behind section 10(a) and (b) is a person is
    placed in
jeopardy
. When such happens, the person
    should know about it and be advised of the right to counsel. In this case,
    jeopardy occurred when Sergeant Webb felt he had reasonable and probable
    grounds and was going to seek authorization for a search.                                                                   
    [Emphasis in original.]

[26]

The
    trial judge therefore held that the appellants s. 10(b) rights were breached
    but that it was of no consequence because no evidence was collected pursuant to
    that breach.

[27]

The
    appellant contends that the trial judge erred in one of two ways. Either the
    trial judge should have found that the exemption on s. 10 rights occasioned by
    an
HTA
detention reached an end as soon as the questioning moved beyond
    the subject matter of the
HTA
or the trial judge should have found that
    the questioning triggered a parallel investigative detention to which s. 10
    rights accrued. If either of the appellants arguments is accepted, it follows
    that Sergeant Webbs question about the contents of the box, which had nothing
    to do with the speeding offence, should not have been asked, absent Sergeant
    Webb providing the appellant with the information about his rights under s. 10
    of the
Charter
.

[28]

While
    I do not agree that the appellant was detained under the
TTA
when the
    impugned questioning began, I do agree with the submission that the appellants
    s. 10
Charter
rights crystallized when the nature of the questioning
    shifted towards a
TTA
investigation.

[29]

The
    case law makes it clear that a roadside stop of a vehicle for possible
    violations of the
Criminal Code
(e.g. impaired driving) or provincial
    regulatory offences under statutes like the
HTA
(e.g. speeding) is a
    detention: see e.g.
R. v. Hufsky
, [1988] 1 S.C.R. 621;
R. v.
    Ladouceur
, [1990] 1 S.C.R. 1257;
Mellenthin
;
R. v. Orbanski
;
R. v. Elias
, 2005 SCC 37, [2005] 2 S.C.R. 3; and
R. v. Harrison
,
    2009 SCC 34, [2009] 2 S.C.R. 494. Furthermore, the Supreme Court of Canada held
    in
Orbanski
, at para. 60, that the implicit limitation on the s. 10(b)
    right to counsel that is inherent to roadside stops was justifiable under s. 1
    of the
Charter
.

[30]

In
    the present case, the appellant remained detained throughout the time that the
    police officers processed his speeding infraction. The appellant was not free
    to leave the scene until this process was completed. In this context, Sergeant
    Webbs question about the contents of the box, flowing from his suspicion that
    the box contained illegal cigarettes, placed the appellant in jeopardy pursuant
    to the
TTA
. This new jeopardy triggered the appellants s. 10 rights,
    especially his right to consult counsel. The reason for this was cogently
    explained by Doherty J.A. in
R. v. Harris
,
2007 ONCA 574, 87 O.R. (3d) 214, at para. 40:

A person under police detention who is being asked to
    incriminate himself has more than a reasonable expectation of privacy with
    respect to the answers to any questions that are put to him by the
    police.  That person has a right to silence unless he or she makes an
    informed decision to waive that right and provide the requested information to
    the police:
R. v. Hebert
(1990), 57 C.C.C. (3d) 1 (S.C.C.).

[31]

It
    is true that when Sergeant Webb asked the question about the contents of the
    box, the appellant was not yet detained under the
TTA
. However, he was
    detained under the
HTA
and he could not leave the scene. In such a
    circumstance, at a common sense level and as a matter of law, Cory J.s
    statement in
Mellenthin
,
at p. 622, is apposite:

There can be no question that the appellant was detained and,
    as a result, could reasonably be expected to feel compelled to respond to
    questions from the police.

It is true that a person who is detained can still consent to
    answer police questions. However, that consent must be one that is informed and
    given at a time when the individual is fully aware of his or her rights. This
    was certainly not the situation which was present in this case.

[32]

For
    these reasons, I conclude that the trial judge erred in not finding that the
    appellants s. 10 rights crystallized when Sergeant Webb asked him the question
    about the contents of the box. Before answering the question, which had nothing
    to do with his speeding offence, he should have been advised of his right to
    consult counsel. His s. 10(b)
Charter
right was violated.

(5)

Charter
s. 24(2)

[33]

The
    appellant submits that the his response to the question about the contents of
    the box and the marijuana and cigarettes found in the van should be excluded
    under s. 24(2) of the
Charter
, which provides:

Where, in proceedings under subsection (1), a court
    concludes that evidence was obtained in a manner that infringed or denied any
    rights or freedoms guaranteed by this Charter, this evidence shall be excluded
    if it is established that, having regard to all the circumstances, the
    admission of it in the proceedings would bring the administration of justice
    into disrepute.

[34]

The
    test relating to s. 24(2) of the
Charter
was set out by McLachlin C.J.
    and Charron J. in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at
    para. 71:

When faced with an application for exclusion under s. 24(2), a
    court must assess and balance the effect of admitting the evidence on societys
    confidence in the justice system having regard to: (1) the seriousness of
    the
Charter
-infringing state conduct (admission may send the message
    the justice system condones serious state misconduct), (2) the impact of the
    breach on the
Charter
-protected interests of the accused (admission
    may send the message that individual rights count for little), and (3)
    societys interest in the adjudication of the case on its merits. The
    courts role on a
s. 24(2)
application
    is to balance the assessments under each of these lines of inquiry to determine
    whether, considering all the circumstances, admission of the evidence would
    bring the administration of justice into disrepute.

[35]

I
    do not think that Sergeant Webbs failure to inform the appellant about his
Charter
s. 10(b) rights was a particularly serious breach. Sergeant Webb was not
    engaged in a
Mellenthin
-like fishing expedition conducted at a random
    highway check. It was an inquiry into a potential regulatory offence during a
    valid highway stop for speeding. Moreover, the single question was minimally
    intrusive.

[36]

The
    second
Grant
factor tells in favour of the appellant. In
Grant
,
    after a comprehensive analysis of the principle of self-incrimination and the
    sections of the
Charter
grounded in this principle, including s.
    10(b), McLachlin C.J. and Charron J. stated, at para. 96, that the analysis
    under this line of inquiry supports the general exclusion of statements taken
    in breach of the
Charter
. I see nothing in the facts of this case to
    remove it from this general rule. Since the police officers would not have had
    reasonable and probable grounds to search the van without the appellants
    answer to the question about the contents of the box, it follows that the
    marijuana and cigarettes would not have been found by the police had the
    appellant not made the self-incriminating response.

[37]

The
    third
Grant
factor favours the respondent. The marijuana and
    cigarettes are reliable evidence and so their admission supports the societal
    interest that criminal and regulatory offences be prosecuted on their merits.

[38]

In
    striking the appropriate balance among these three factors, I return to
    McLachlin C.J.s and Charron J.s discussion of the category of evidence they labelled
Statements of the Accused
, at
    paras. 89-98
. After reviewing the relevant legal principles and
    policy considerations in this domain, they concluded their analysis in this
    fashion, at para. 98:

In summary, the heightened concern with proper police conduct
    in obtaining statements from suspects and the centrality of the protected
    interests affected will in most cases favour exclusion of statements taken in
    breach of the
Charter
, while the third factor, obtaining a decision on
    the merits, may be attenuated by lack of reliability.  This, together with
    the common laws historic tendency to treat statements of the accused
    differently from other evidence, explains why such statements tend to be
    excluded under s. 24(2).

[39]

Allowing
    that in this case there is no reliability concern about the appellants answer
    to the question, it seems to me that the content and spirit of this summary
    point to a balancing of the
Grant
factors in favour of excluding the
    appellants answer, the marijuana, and the cigarettes.

E.

DISPOSITION

[40]

I
    would allow the appeal and enter an acquittal on the charge of possession of
    marijuana for the purpose of trafficking contrary to the
CDSA
.

Released: July 12, 2012 (J.C.M.)

J.C. MacPherson J.A.

I agree. Robert P. Armstrong
    J.A.

I agree. S.E. Pepall J.A.





[1]
The appellants appeal of the
TTA
conviction is proceeding in the
    Superior Court of Justice.



[2]
The appellant had appealed his sentence. At the appeal hearing, he abandoned
    this component of his appeal.



[3]
The appellant addressed this issue in his factum, but not in his oral argument.


