When you are stopped by a police officer and questioned regarding the possession of drugs or alcohol, the general rule is to be polite but don’t admit to anything. Always correctly identify yourself when asked, and if you are driving, provide your licence, vehicle registration and insurance documentation; however, beyond this information, you are not obligated to tell police anything or volunteer any information. Also, don’t hand anything over to police or allow police officers to search your property unless they have a warrant. Whether a police officer is taking notes or recording your answers, assume that anything you say will be used against you in a criminal proceeding, if police decide to pursue charges.
Although Canada’s drug laws pertaining to the legalization of marijuana may soon be changing, under the Criminal Code, possessing, selling and growing marijuana is still illegal and police officers can arrest anyone on these offences. In a recent case, a man was charged with possession of only 1.15 g of marijuana, after being pulled over for a routine sobriety check in October 2014.
In R. v. Richards, the accused was convicted of possession of cannabis marihuana in a summary conviction trial and sentenced to a $100 fine. He subsequently appealed his criminal conviction on the grounds that the arresting officer performed an illegal seizure that led to the discovery of the 1.15 g. of marijuana in the accused’s possession. The accused charged that the seizure breached his ss 8, 9, 10(a) and 10(b) Charter rights. (In the original trial, the judge determined that the man’s Charter rights had, in fact, been breached but nevertheless allowed the unconstitutionally obtained marijuana to be admitted as evidence.)
In the 2016 summary conviction appeal, R. v Richards, defense counsel submitted two key arguments.
- The trial judge erred in misapplying the Supreme Court criteria laid out in R. v. Grant (2009), which identifies the circumstances under which evidence obtained while in breach of the Charter should be excluded under s. 24(2) of the Charter.
- The trail judge gave insufficient reasons with respect to the accused’s s. 8 Charter argument.
A police officer pulled over a driver for the purposes of a sobriety check, after the driver was observing pulling out of the parking lot of a Guelph club, although the officer did not perceive any abnormal driving on the part of the driver. The officer testified that when he asked for the driver’s vehicle and licence documentation through the open driver’s window of the stopped vehicle, he detected a noticeable odour of unburnt marihuana. He did not detect a smell of alcohol, but asked the driver if he had anything to drink, to which the driver replied that he had not.
The officer then cautioned the driver in regards to possession of a controlled substance and informed the man that he did not have to answer. When the officer subsequently asked if he had any marijuana in the car, the appellant reached into the vehicle console and handed marijuana leaves wrapped in plastic to the officer. The officer then arrested the man for possession of a controlled substance, and read him his caution and rights to counsel. A search of the vehicle found no further marijuana or other illegal substances. In cross-examination, the arresting officer admitted that 1.15 g. of marijuana, which had a street value of about $10, would be difficult to smell in a wrapped form.
Arguments at trial
In the summary conviction trial, the judge made the following findings.
- The onus was on the appellant to establish on a balance of probabilities, that there was a breach of his Charter rights.
- The detention was “based on articulable cause to stop the appellant’s vehicle for a sobriety check”.
- There was no evidence that the officer was acting without cause -- the smell of marijuana gave rise to a “very strong suspicion” that there was an unlawful substance in the car, and the officer cautioned the man that he did not have to answer questions
- The officer asked a “damning question” when he asked the man if he had any marijuana and had effectively begun an investigation into marijuana possession at that point, when the appellant quickly handed over the marijuana.
- The officer did not complete all the necessary cautions – he only told the accused part of his section 10 Charter rights, but did not go far enough with respect to telling the man that he had a right to counsel before questioning about drugs and obtained the marijuana. Therefore, “there was a breach of the accused’s rights to be properly advised of his rights under section 10 of the Charter”.
- This was not a serious violation, based on the application of the R. v. Grant analysis for s. 24(2) of the Charter. On this issue, the judge noted that the officer did not go far enough in his caution but it was a “very hasty interaction between the accused and the officer and the accused very quickly produced the offending substance”. The judge concluded that he believed that admitting the small amount of marijuana as evidence is not contrary to the public interest and the breach was minimal; therefore, the marijuana evidence will be admitted.
In their analysis of the trial court decision, the appeal court agreed that the officer was entitled to stop a vehicle, even to make a random stop, at 1 a.m. He was also entitled to ask a driver for his identifying documentation and alcohol consumption, without having to inform him/her of their Charter 10(b) rights to counsel.
The court also found that “an odour of marihuana detected in an otherwise lawful traffic stop can provide grounds for investigative detention”. The officer’s strong suspicion that the appellant possessed marihuana entitled him to pursue a Controlled Drugs and Substances Act investigation; however, at this point, the officer was obligated “to immediately inform the detained driver of the reason for his ongoing detention and certainly to alert him to his changed legal jeopardy”. And, while the officer cautioned the appellant on his right to remain silent, he did not explicitly inform him that he was being detained on a suspicion of possession of marijuana.
The appeal court asserted that a detainee’s s. 10(b) Charter right is directly concerned with their right against self-incrimination, as noted in R. v. Sinclair (2010). There was no informed waiver of the appellant’s right to counsel in this case – the fact that the officer cautioned him before questioning the man about marijuana did not justify dispensing with giving him his s. 10(b) Charter rights to counsel, which are required to be given “without delay” or immediately to a detained person.
Section 24(2) requires that, when evidence is obtained in a manner that infringes on a persons Charter rights, “the 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”, R. v. McGuffie (2016). In R. v. Grant, the Supreme Court set out the following criteria in a determination whether the exclusion of evidence would promote the proper administration of justice.
- The seriousness of the Charter-infringing state conduct,
- The impact of the breach on the Charter-protected interests of the accused; and
- Society’s interest in an adjudication on the merits.
In the current case, the appeal court found that the trial judge erred in characterizing the s. 10(b) Charter breach as a “not a serious violation” and also erred in failing to apply the second and third criteria in Grant to the facts of the breach. Rather than complying with an established constitutional directive to immediately inform the detainee of his s. 10(b) Charter rights, the officer asked a question that encouraged the appellant to incriminate himself. The appeal court found that “there should have been no legal uncertainty as to the officer’s obligations. This was hardly a trivial, technical, or inadvertent breach” and amounted to a serious violation of the appellant’s Charter rights.
The appeal court stated that summary conviction prosecution for a small amount of marihuana in many cases does not lead to arrest or charges. This offence does not constitute serious criminality and “it falls at the ‘very lowest end’ of drug prosecutions”. The seriousness of the Charter breach and the substantial negative impact of the constitutional violation leading to the discovery of incriminating evidence are compelling reasons to exclude the evidence, in this case. Further, the truth-seeking objective served by admitting the marijuana evidence is outweighed in all regards by the court’s desire to disassociate itself from unconstitutional conduct which would bring the administration of justice into disrepute.
The appeal court set aside the conviction and acquitted the accused.
If have been detained or charged with a drug-related offence, call the Law Firm of Ted Yoannou to ensure that you fully understand your legal rights and have the immediate benefit of a strong and informed defence.