R. v. Miller
Her Majesty the Queen, and
 O.J. No. XXXX
2006 ONCJ XXXX
Court File Nos. Toronto 1200222 and 1200222
Ontario Court of Justice
J.A. RENIER J.
Heard: August 28 and October 6, 2006.
Judgment: November 24, 2006.
Megan Kreuk for the Crown
Tushar K. Pain for Ruben Miller
¶ 1 J.A. RENIER J.: Ruben Miller stands charged with three offences, allegedly perpetrated on 28 August 2005, in Toronto:
1) Possession of Cannabis (marihuana) in an amount greater than 30 grams;
2) Dangerous operation of a motor vehicle;
3) Possession of a prohibited weapon, to wit: a flick knife.
¶ 2 The matter came before me for trial on 25 August 2006, and on that day I heard from two crown witnesses: Constable Hayden Dubois, Badge 9010, and Constable Luke Berry, Badge 2368. The matter was adjourned to 5 October 2006 and I heard from two defence witnesses, Ruben Miller and his father Michael Miller.
¶ 3 By notice of application brought 11 August 2006, Mr. Miller has brought a Charter application seeking the exclusion of all evidence seized by the officers pursuant to section 24(2) of the Charter based upon alleged breaches of his rights under sections 8, 9 and 10(a).
¶ 4 It was agreed by counsel that we would proceed by way of a blended trial and Charter application, without the necessity of a voir dire.
1: Summary of the Evidence
¶ 5 Hayden Dubois testified that at approximately 12:45 a.m. on 28 August 2005 another unit from his division was investigating two youths at the rear of Systems Technology Institute (“Sys Tech”) in downtown Toronto. He was alone, on general patrol, and had stopped to see if they were “okay” because he hadn’t heard from them for a while. He was in a marked scout car next to Glennville Boulevard, in the parking lot to the rear of Sys Tech. He testified that he observed an Acura Integra drive very slowly westbound on Glennville. There was no other traffic in the area. He heard the car, he testified, because of its “very loud” muffler and decided, in his words, to “find out what this driver was doing”. To this end he began to turn his vehicle around in the parking lot, at which time, he testified, the Integra accelerated westbound on Glennville at a high rate of speed. Constable Dubois testified that because of the muffler sound, the sudden speed, and because he thought the car might be stolen, he decided to give chase, and pulled out onto Glennville. Dubois testified that he accelerated as hard as his vehicle could go until he reached Donville Avenue, two blocks away. He estimated that his vehicle exceeded 100 kilometres per hour during this stretch.
¶ 6 Hayden Dubois testified that he could not make out the license plate of the vehicle, but continued to follow it north one block on Donville, eastbound on Milkerton Boulevard, south on Graywood Avenue one block, west on Glennville one block and then south on Linskit Crescent at which time the vehicle stopped.
¶ 7 Hayden Dubois testified that his speedometer reached a reading of 120 kilometres per hour in this residential neighbourhood, in which there are posted speed limits of 40 kilometres per hour.
¶ 8 Hayden Dubois testified that here were two stop signs on this route, at Glennville and Donville, and at Milkerton and Graywood, both of which were ignored by the driver of the Integra. The only time Constable Dubois observed the break lights of the Integra go on was at the turn onto Graywood from Milkerton.
¶ 9 Hayden Dubois testified that as the Integra went east on Glennville he activated his roof lights and siren and the Integra turned onto Linskit Crescent and stopped. Constable Dubois testified that he made a note of the license plate, exited his vehicle and approached the driver.
¶ 10 Constable Dubois testified and noted that the driver was not rigid like someone who had seen police officers, taken off and then been caught for speeding. He moved around in the vehicle and was polite and cooperative. At Constable Dubois’ request, he got out of the car. Dubois testified that at 12:50 he placed him under arrest for careless driving. The entire sequence of events took less than two minutes, approximately one minute, according to Constable Dubois.
¶ 11 Hayden Dubois testified that the driver identified himself as Ruben Miller and provided the appropriate documents. He placed Mr. Miller in the rear of his scout car. Hayden Dubois testified that although he was cooperative, Mr. Miller’s lack of rigidity and manner convinced him that Mr. Miller had something to hide.
¶ 12 Within moments, more police officers arrived in the persons of Constables Berry and Epps and because of his suspicions, Constable Dubois asked Constable Berry to search the Integra in the vicinity of the front driver’s seat.
¶ 13 Police Constable Berry testified that he had found two bags of marijuana, a “flick” knife and a digital scale underneath the driver’s seat in the Integra.
¶ 14 These items were produced in court. The knife was marked exhibit two, and the digital scale, exhibit three. Two certificates were filed, as exhibits five and six, confirming that the two bags contained cannabis (marihuana) with a total weight of 35.92 grams.
¶ 15 In cross-examination, Constable Dubois conceded that the only entry in his notebook regarding his reason for pursuing Mr. Miller was an entry for “loud muffler.” He also conceded that he did not record his references to speed in his notebook, his references to Mr. Miller driving through stop signs or any questions about ownership of the car other than asking for his papers. There were no references in his notes to any ownership or stolen vehicle searches before or after stopping Mr. Miller. There was nothing in Constable Dubois’ notes or in his evidence to suggest that he had any suspicion that Mr. Miller had marijuana in his car.
¶ 16 Constable Dubois had no recollection of the squealing of the Integra’s tires. He conceded that throughout the driving, until close to Linskit Crescent, he did not activate his lights or siren. There was no reference in his notes to when he called for back up and he could not recall when he did so. There was nothing in Constable Dubois’ notes about Mr. Miller moving around as Dubois got out of his car and approached the Integra. According to Dubois, after the marijuana was discovered Mr. Miller was only charged at the scene with careless driving and possession of marijuana, he was not charged with having a loud muffler and the officer did not believe it was necessary to handcuff him for officer safety.
¶ 17 Ruben Miller deposed and filed an affidavit dated 8 August 2006 and testified in these proceedings. He is nineteen years old and resides with his parents, Jane and Michael Miller at 292 Strathearn Boulevard just a few blocks east of SysTech. He is in Grade 12 and working part-time at Sobey’s in the produce section. He is studying to be an electrician. He has no record and before these events had never been arrested or investigated for a criminal offence.
¶ 18 He testified that on the night in question he was driving his Acura Integra home and decided to drive to Sys Tech to look for a friend, Leo Ang. He testified that as he approached Sys Tech he observed three police cruisers in the parking lot and decided not to turn into the Sys Tech parking lot. He testified that he was careful to maintain a proper speed because of the fact that he had marijuana and a knife under his car seat.
¶ 19 He testified that he took the most direct path he could to get home and when he was approaching Linskit he saw a police car in his rear view mirror approaching at a high rate of speed with his sirens on and pulled his car over. He testified that at the time he was not sure if he was being pulled over or whether the officer was chasing another vehicle. He could not understand why he would be pulled over as he had driven very carefully, had not been speeding, and did not have a problem with his muffler.
¶ 20 He testified that initially Constable Dubois gave no indication to him as to why he was being stopped and being detained or that there was any issue as to his manner of driving or that there was a problem with his muffler.
¶ 21 He testified that he got out of his car and was searched by Constable Dubois and placed in the back of the police car. He testified that at this point Constable Dubois told him he was going to search the Integra for marijuana, and proceeded to do so, assisted by other officers who arrived shortly after Constable Dubois.
¶ 22 He testified that he did not consent to being searched or having his car searched, nor did the police seek his consent.
¶ 23 He readily acknowledged under oath that the police found the marijuana, scales and knife in the car and that he was told that he was arrested for possession of marijuana. He testified that he was not told that his muffler was too loud or that he was charged with any driving offences until he was at the police station, at which time he was told that he was charged with dangerous driving.
¶ 24 Michael Miller, Ruben’s father, also testified. He testified that he received a call between 2:00 and 2:30 that his son had been arrested and picked him up from the station. He and a friend picked up Ruben’s car, the Acura Integra, a few days after the incident. He testified that both before and after the arrest of his some, the car functioned well, and there was no sound coming from the muffler.
2: ISSUES BEFORE THE COURT
2.1: The Charter Application
¶ 25 In this application counsel for Ruben Miller submits that the search of Mr. Miller’s car was warrantless and therefore prima facie unreasonable. He submits that the crown has not established that Constable Dubois had reasonable grounds to stop Mr. Miller, to detain him, to search his person, or to search his vehicle. He further submits that Constable Dubois did not advise Mr. Miller of the reason for his initial detention at the time the car was stopped. He therefore submits that the police on this occasion violated Mr. Miller’s sections 8, 9 and 10(a) rights under the Charter. (See R. v. Caslake (1998), 121 C.C.C. (3d) 97 (S.C.C.)).
¶ 26 Counsel also submits that although the items seized are real evidence and the admission of them would not affect trial fairness, the breaches of Mr. Miller’s Charter rights are serious, and that the admission of the items seized into evidence would bring the administration of justice into disrepute.
¶ 27 In reply, the crown argues that if Constable Dubois is believed, he did have reasonable and probable grounds to stop the vehicle, based upon the loud muffler and high speeds. The crown also submits that the officer, in seizing and searching the car, was acting under the authority of section 217 of the Highway Traffic Act. She submits that there was no need for a detention because of what the officer had already observed prior to the arrest. She also submits that the search of the vehicle was incident to the lawful arrest of Mr. Miller. (See Cloutier v. Langlois,  1 S.C.R. 158, paragraph 49, at p. 16). She also submits that Constable Berry testified that once he opened the car he smelled a strong smell of marijuana inside the vehicle, and therefore could extend his search to a search for illegal drugs.
¶ 28 I have concluded that Mr. Miller’s section 8, 9 and 10(a) Charter rights were violated, that section 217 of the Highway Traffic Act cannot be used to justify those breaches and that the evidence seized should be excluded, based upon the law in Ontario, as set out in the cases cited. Let me explain why.
2.2: The Law
2.2.1: Section 217 of the Highway Traffic Act
217(1) Every person called upon to assist a police officer or officer appointed for carrying out the provisions of this Act in the arrest of a person suspected of having committed any offence mentioned in subsection (2) may assist if he or she knows that the person calling on him or her for assistance is a police officer or officer appointed for carrying out the provisions of this Act, and does not know that there are no reasonable grounds for the suspicion. R.S.O. 1990, c. H.8, s. 217(1).
Arrests without warrant
(2) Any police officer who, on reasonable and probable grounds, believes that a contravention of any of the provisions of subsection 9(1), subsection 12(1), subsection 13(1), subsection 33(3), subsection 47(5), (6), (7) or (8), section 51, 53, 130, 172 or 184, subsection 185(3), clause 200(1)(a) or subsection 216(1) has been committed, may arrest, without warrant, the person he or she believes committed the contravention. R.S.O. 1990, c. H.8, s. 217(2); 1993, c. 40, s. 8.
Arresting on view
(3) Every person may arrest without warrant any person whom he or she finds committing any such contravention. R.S.O. 1990, c. H.8, s. 217(3).
Arrest without warrant for contravention of subs. 177(2)
(3.1) A police officer who believes on reasonable and probable grounds that a person has contravened subsection 177(2) may arrest the person without warrant if,
(a) before the alleged contravention of subsection 177(2), the police officer directed the person not to engage in activity that contravenes that subsection; or
(b) the police officer believes on reasonable and probable grounds that it is necessary to arrest the person without warrant in order to establish the identity of the person or to prevent the person from continuing or repeating the contravention. 1999, c. 8, s. 7(2).
Detaining vehicle when arrest is made
(4) A police officer or officer appointed for carrying out the provisions of this Act, making an arrest without warrant, may detain the motor vehicle with which the offence was committed until the final disposition of any prosecution under this Act or under the Criminal Code (Canada), but the motor vehicle may be released on security for its production being given to the satisfaction of a justice of the peace or judge. R.S.O. 1990, c. H.8, s. 217(4).
Care and storage charges
(5) All costs and charges for the care and storage of a motor vehicle detained under subsection (4) are a lien upon the motor vehicle, which may be enforced in the manner provided by the Repair and Storage Liens Act. R.S.O. 1990, c. H.8, s. 217(5).
Duty of person arresting without warrant
(6) A police officer or officer appointed for carrying out the provisions of this Act, making an arrest without warrant, shall, with reasonable diligence, take the person arrested before a justice of the peace or provincial judge to be dealt with according to law. R.S.O. 1990, c. H.8, s. 217(6).
2.2.2: Legal Limits on the Search Power Incident to Arrest
¶ 29 In Cloutier, supra, Madam Justice Claire L’Heureux-Dube reviews the common law power of the police to search incident to the lawful arrest of a suspect. Mr. Cloutier, a Montreal lawyer, was suing the two police officers that arrested him for assault. He had been stopped for a traffic violation, and incident to his arrest for unpaid parking tickets, he was quickly “frisk” searched for weapons. In concluding that this frisk search was lawful, Madam L’Heureux-Dube states at paragraph forty-nine of her judgment that the power to search incident is well established in the common law, however there remains the issue of the appropriate scope of that search:
para. 49 In general, despite certain comments in scholarly discussion, it seems beyond question that the common law as recognized and developed in Canada holds that the police have a power to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner’s escape or [page 181] provide evidence against him. The common thread in this line of authority is the objective of guaranteeing safety and applying the law effectively. While the existence of the power is accepted, there seems to be some uncertainty as to its scope. While at common law the British courts did not impose reasonable grounds as a prerequisite to the power to search a person lawfully arrested, neither have they gone so far as to recognize a power to search as a simple corollary of arrest. The Canadian courts on the other hand do not seem to have hesitated in adopting this latter approach.
¶ 30 In Caslake, supra, Chief Justice Antonio Lamer addresses this issue of appropriate scope of a search incident to an arrest. At paragraph fifteen of his judgment the Chief Justice states that automobiles are legitimately the objects of search incident to arrest and are not exempted from the common law principles set out in Cloutier.
¶ 31 However, in concluding that a police “inventory” search of an accused’s vehicle subsequent to an arrest constituted a section 9 Charter breach, the Chief Justice concludes that the search must be “truly incidental” to the arrest, at paragraph seventeen:
para. 17 In my view, all of the limits on search incident to arrest are derived from the justification for the common law power itself: searches which derive their legal authority from the fact of arrest must be truly incidental to the arrest in question. The authority for the search does not arise as a result of a reduced expectation of privacy of the arrested individual. Rather, it arises out of a need for the law enforcement authorities to gain control of things or information which outweighs the individual’s interest in privacy. See the Law [page 108] Reform Commission of Canada, Report 24, Search and Seizure (1984) at p. 36. (For a more in-depth discussion, also see Working Paper 30, Police Powers — Search and Seizure in Criminal Law Enforcement (1983) at p. 160.) This means, simply put, that the search is only justifiable if the purpose of the search is related to the purpose of the arrest.
¶ 32 This is consistent with the reasoning in R. v. Mann (2004), 185 C.C.C. (3d) 308 (S.C.C.) and overrules the Ontario case of R. v. Morrison (1987), 35 C.C.C. (3d) 437, in which Chief Justice Charles Dubin of the Ontario Court of Appeal concluded that it was reasonable for the police to do a strip search of a woman charged with theft and possession of stolen groceries and that the resultant discovery of a bag of marijuana and a prosecution for possession of marijuana did not offend section 8.
¶ 33 In R. v. Caprara  O.J. No. 2210, the Ontario Court of Appeal concluded that a search of a vehicle, incident to the lawful arrest of the accused under section 33 of the Highway Traffic Act, for failing to properly identify himself, did not permit the officers to search the vehicle for drugs. The court stated at paragraphs six and seven:
para. 6 The trial judge found that at the time of the search, the police “would have been quite certain that the [appellant] was not who he said he was, but was, in fact, the brother of the owner of the vehicle”. With that in mind, she found it “unlikely”, despite the police evidence to the contrary, that “their sole reason to search was to find identifying documents” (emphasis added). In her view however, even if the police were searching solely for drugs, the search would have been lawful because the police had reason to believe that drugs might be found in the car. Accordingly, they were entitled to search for drugs as an incident of the appellant’s arrest. With respect, we cannot accept that aspect of the trial judge’s analysis.
para. 7 On the facts of this case, the police had no right to search for drugs as an incident of the appellant’s arrest because the appellant had not been arrested for a drug or drug related offence; he had been arrested for failing to identify himself and for attempting to obstruct justice by providing the police with a false name. Accordingly, any search for evidence incident to his arrest had to be restricted to evidence of identification; it could not spill over into a search for drugs. To the extent that the trial judge held otherwise, we respectfully disagree with her analysis.
¶ 34 This reasoning has been applied in a number of trial decisions in Ontario, including R. v. Bennett  O.J. No. 436 (Justice Nancy Kastner) and R. v. MacLachlan  O.J. No. 893 (Justice Peter Bishop).
¶ 35 In R. v. Speid  O.J. No. 1558, the Ontario Court of Appeal found that the search for drugs in the car driven by the accused at the time of his arrest for trafficking in cocaine was a legal search incident to the arrest in order to preserve relevant evidence, despite the fact that a search warrant of the car had been refused prior to the search. A similar result occurred in the British Columbia case of R. v. Smellie (1994), 95 C.C.C. (3d) 9 (B.C.C.A.)
¶ 36 However, the Court of Appeal has made clear that an arrest and search for drugs must be based on more than simply recognition of the odour of marijuana in a vehicle.
¶ 37 In R. v. Polashek  O.J. No. 968, (Ont. C.A.), Justice Mark Rosenberg ruled that the presence of an odour cannot on its own provide reasonable and probable grounds to make an arrest and then a search of a vehicle for possession of marijuana. At page 5 of his ruling he states:
I agree, in part, with the appellant’s position. Had Constable Ross based his arrest of the appellant solely on the presence of the odour I would have held that there were not reasonable and probable grounds to make the arrest. Given Constable Ross’ admission that he could not from the odour alone determine whether the marijuana had been smoked recently or even if he was detecting the smell of smoked marijuana, the presence of odour alone did not provide reasonable grounds to believe that the occupant was committing an offence. The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory, and thus largely incapable of objective verification. A smell will often leave no trace. As Doherty J.A. observed in R. v. Simpson,  O.J. No. 308, at p. 202: “… subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee’s sex, colour, age, ethnic origin or sexual orientation.”
2.2.3: The Power to Exclude Evidence
¶ 38 In R. v. Kokesch (1990), 61 C.C.C. (3d) 207 (S.C.C.), Justice John Sopinka stated, for the majority:
Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally. Where they take this latter course, the Charter violation is plainly more serious than it would be otherwise, not less. Any other conclusion leads to an indirect but substantial erosion of the Hunter standards: the Crown would happily concede s. 8 violations if they could routinely achieve admission under s. 24(2) with the claim that the police did not obtain a warrant because they did not have reasonable and probable grounds. The irony of this result is self-evident. It should not be forgotten that ex post facto justification of searches by their results is precisely what the Hunter standards were designed to prevent: see Hunter,  2 S.C.R. 145, supra, per Dickson J. (as he then was), at p. 109; and Greffe,  1 S.C.R. 755, supra, per Lamer J., at pp. 187-8 and 193-4.
¶ 39 This is further elaborated on by Justice David Doherty, speaking for the Ontario Court of Appeal in R. v. Clayton & Farmer (2005), 194 C.C.C. (3d) 289 at paragraph 94:
 Where, as in this case, constitutional violations reflect an institutional indifference to, if not disregard for, individual rights, [page 319] judicial failure to disassociate itself from that conduct must have long-term negative consequences for the proper administration of justice. The courts cannot be seen to at one and the same time wave a judicial finger of disapproval at police conduct that violates individual rights while embracing the evidentiary product of those violations whenever they do not undermine trial fairness.
¶ 40 In R. v. Deacon  O.J. No. 3452, Justice John Murray of the Superior Court applied the reasoning in Kokesch and Clayton & Farmer to a case in which the police did not give credible evidence as to why they stopped a vehicle and did a search which resulted in the discovery of firearms and drugs. He specifically rejected the police testimony that the reason for the stopping of the vehicle was based on the driver of the car attempting to drive away at a high speed to avoid detection. He concluded that the police had fabricated the grounds for the pursuit and stopping of the vehicle, that the search incident to arrest was unlawful, and that the evidence should be excluded. Justice Murray states at paragraphs eighty-four and eighty-five:
para. 84 With respect to a consideration of the seriousness of the Charter violation, based on my findings of fact, I conclude that the violation of Mr. Deacon’s s. 9 Charter rights were deliberate. No reasonable and probable grounds existed for lawful arrest and the breach of s. 9 must be viewed as most serious. It was not the product of inadvertence, good faith or technical error.
para. 85 In this case, the intentional nature of the breach is related to the non-existence of reasonable and probable grounds for a lawful arrest. The absence of a lawful arrest is not only a violation of Mr. Deacon’s s. 9 rights, but it also means that there is no legal foundation for a search incident to arrest also making the s. 8 violation a serious one.
3.1.1: Section 217 of the Highway Traffic Act
¶ 41 Section 217 allows an officer to arrest without warrant for various apparent breaches of the Highway Traffic Act: these include section 33(3) – failing to identify self or failure to present licence; and section 130 – careless driving. The section also provides that an officer may detain a vehicle when making a lawful arrest under the authority of this section.
¶ 42 In this case, Mr. Miller did identify himself properly and therefore 33(3) does not apply. (See R. v. Plummer  O.J. No. 4530 (Ont. C.A.) With respect to section 130, as will be set out below, I have found as a fact that Mr. Miller was not advised of any driving offences until he was at the police station, at which time he was charged with dangerous driving. I have also found that his detention and arrest did not have the requisite reasonable and probable grounds with respect to his driving, and I therefore conclude that the officer was not acting pursuant to the authority of this section.
3.1.1: Was There a Charter Breach?
¶ 43 Constable Hayden Dubois testified that that his attention was initially drawn to Mr. Miller’s vehicle because of a “very loud” muffler and the “very high rate of speed” of the car as it left the vicinity of Sys Tech. However, he did not record the references to speed in his notebook and did not record any references to Mr. Miller’s driving through stop signs without stopping.
¶ 44 Constable Dubois did not activate his siren initially and he conceded that when he stopped Mr. Miller he recalled that Mr. Miller was not rigid and did not appear like someone who had fled at a high rate of speed and then been caught.
¶ 45 Constable Dubois could not remember when he called for backup, but based upon the evidence I find as a fact that he did so just as he approached Mr. Miller’s vehicle on Linskit Crescent, after Mr. Miller had pulled his car over and stopped. He did not do a search to establish whether or not the car Mr. Miller was driving had been stolen. He did not advise Mr. Miller of the reasons for the initial stop and detention.
¶ 46 To justify his decision to search Mr. Miller’s car he testified that Mr. Miller was “moving around” in his car as Constable Dubois approached the car on Linskit Crescent. There is nothing in his notes about this. Constable Dubois testified that he didn’t smell anything or have any suspicions about Mr. Miller having marijuana in his car. Mr. Miller, according to Constable Dubois, was cooperative, identified himself and presented his papers.
¶ 47 Constable Dubois contradicted himself on the threshold issue of his grounds to search Mr. Miller’s car. On the one hand, he testified that Mr. Miller was not rigid in the manner of someone who has seen a police car, taken off to avoid an encounter and then been caught for speeding. He testified that Mr. Miller was polite and cooperative and provided proof of his identity.
¶ 48 On the other hand, Constable Dubois pointed to Mr. Miller’s lack of rigidity and nervousness, the fact he “moved around” just prior to Constable Dubois’ reaching his car, as the observations that convinced Constable Dubois that Mr. Miller was hiding something from him.
¶ 49 Ruben Miller and his father both testified that his muffler was not making any noise both before and after his arrest on these matters.
¶ 50 In my view, I am not satisfied that Mr. Miller’s muffler was “very loud” or that Mr. Miller drove at a high rate of speed or through stop signs without stopping. On these points I prefer the testimony of Mr. Miller and his father to that of the officer.
¶ 51 I do not accept that Constable Dubois believed that he was dealing with a stolen car or that he had any legitimate reasons to embark upon a search of Mr. Miller’s vehicle at the scene, except for its proximity to Sys Tech late at night.
¶ 52 I have concluded that Constable Dubois’ stated belief that Ruben Miller was “hiding something” is not supported by the evidence and was spurious.
¶ 53 Objectively, there was no Highway Traffic Act justification to search this vehicle.
¶ 54 Even if there were a High Traffic Act justification for the stop, and I do not so find on the facts, such a stop could not justify a search of the vehicle ancillary to the exercise of section 217 powers of arrest, as was argued by the crown in this case. On the facts there were no issues of officer safety, no exigent circumstances and nothing related to the driving that required a search of the car itself.
¶ 55 The crown has also argued that Constable Berry’s testimony, that he smelled a “strong smell” of marijuana gave the police the requisite grounds to search the vehicle.
¶ 56 Based upon the reasoning in Caprara and Polashek, Ruben Miller had not been arrested for a drug or drug-related offence, and the smell of marijuana cannot on its own provide the officers with the basis for an arrest and search of the vehicle. Constable Dubois’ reference to Mr. Miller “moving around” in his vehicle, as I have stated above, does nothing to enhance these grounds, when taken in the context of the evidence as a whole.
¶ 57 On all the evidence, I have concluded that Officer Dubois did not have either objective or subjective grounds to stop Mr. Miller, and therefore the detention and arrest of Mr. Miller was arbitrary and unlawful.
¶ 58 I have further concluded that Constable Berry’s testimony, coupled with Dubois cannot provide the reasonable and probable grounds for the search of the vehicle.
3.1.2: Should The Evidence Be Excluded?
¶ 59 The marijuana, scales and knife are real evidence and therefore their reception into evidence would not affect trial fairness. However, the sections 8, 9 and 10(a) breaches were serious. I have found that Mr. Miller was detained without reasonable and probable grounds. I also find that his vehicle was searched before he was told why he was stopped and that the true reason for the search was a search for marihuana for which there was no subjective or objective basis on the evidence. There were no exigencies in this case that required a search of this vehicle at this time. A warrant could have been applied for in due course.
¶ 60 I find that the resultant arrest was unlawful, and that Officer Dubois worked backwards from the fact of this arrest to try and justify his conduct. His testimony in court departed significantly from what he put in his notes, and does not withstand scrutiny either internally or from the vantage point of the other witnesses in this trial. I accept the evidence of Ruben Miller over that of Constable Dubois on the sound of the muffler, the manner of driving, the words spoken at the scene, and the timing of the arrest.
¶ 61 I therefore find that to admit the evidence would bring the administration of justice into disrepute, and it will be excluded.
3.2 Has the Crown Proven Dangerous Operation of a Motor Vehicle?
¶ 62 For the reasons set out above, I do not accept the evidence of Constable Dubois as to the manner of the driving, and I have accepted the evidence of Ruben Miller on this basic point. I therefore find that the crown has not proven the allegation of dangerous operation of a motor vehicle.
¶ 63 In the result, all three charges are dismissed.
J.A. RENIER J.