Blue Line Magazine May 2010
The search of a driver and his vehicle was lawful as incident to arrest after he was arrested for possessing marijuana, Saskatchewan’s highest court has ruled.
In R. v. Tosczak, 2010 SKCA 10 a police officer approached the open driver’s window after routinely stopping a vehicle and smelled raw marijuana and the strong odour of body spray, which he believed was used to mask the odour.
He obtained Tosczak’s driver’s licence and registration and ran the usual checks, found nothing untoward and returned to the driver. Leaning on the edge of the window, he smelled a strong odour of raw marijuana and saw a can of spray deodorant on the floor. Believing he had reasonable grounds to arrest Tosczak for possessing marijuana, he asked him if he had anything illegal in the vehicle or on his person. Tosczak handed him a roach and was arrested for possession of marijuana.
The officer conducted a pat-down search and located a package of marijuana in Tosczak’s jacket; he was then placed in the police car and informed of his right to counsel. A search of the vehicle’s interior turned up a wooden stash container, a joint, another small roach and a notebook the officer suspected contained entries of drug transactions.
Opening the trunk, he unzipped a duffle bag which smelled strongly of raw marijuana and found several bags of the drug and a set of scales. He informed Tosczak that he was now under arrest for possession of marijuana for the purpose of trafficking and again told him of his right to counsel.
At trial in Saskatchewan Provincial Court, Tosczak was convicted of possession for the purpose of trafficking and sentenced to two years less a day, to be served in the community. His vehicle was forfeited and he was prohibited from possessing firearms for a period of ten years.
Tosczak appealed to the Saskatchewan Court of Appeal, alleging the trial judge should have found that the officer violated his rights under ss.8 and 10(b) of the Charter.
Justice Cameron, authoring the court’s unanimous opinion, found the pat-down search following Tosczak’s arrest outside the vehicle amounted to a reasonable search. It was conducted lawfully and reasonably as a search incidental to a lawful arrest, as was the subsequent search of the vehicle.
“The search of the vehicle, although conducted without warrant, wasn’t unreasonable,” said Cameron.
This search was ‘truly incidental’ to the lawful arrest of the (accused) for possession of marijuana.... We say that because the police officer searched the vehicle almost immediately after the arrest and did so with a view
to both discovering additional evidence and protecting evidence from destruction. Those were his purposes, and he believed that one or the other of them would be served by the search, a belief that was reasonable in the circumstances. In short, he was attempting to achieve a valid purpose connected to the arrest and had a reasonable basis for doing so (para. 10).
h2. right to counsel
Tosczak also submitted that his initial detention under and for the purposes of Saskatchewan’s Traffic Safety Act turned into a drug-related investigative detention and, at that point, the officer was required to inform him immediately of the reason for the detention and of his right to consult counsel. When the officer returned to Tosczak’s vehicle following the registration check, he believed he had reasonable grounds to arrest Tosczak. Therefore the detention turned into a drugrelated investigative detention and the officer was under a duty to comply with section 10(b) of the Charter before asking Tosczak whether he had anything illegal in the vehicle.
Even assuming, but not deciding, that the officer was required to advise Tosczak of his
right to counsel as suggested by the defence, the court would not have set aside the conviction. The evidence the officer discovered in searching the vehicle was nevertheless admissible under s.24(2) of the Charter.
First, it wasn’t “obtained in a manner” that infringed Tosczak’s s.10 rights, for it was “difficult to see any meaningful nexus between such breach as may have occurred and the discovery of this evidence.”
Second, having regard for the revised approach to s.24(2), the evidence should not be excluded because its admission would not bring the administration of justice into disrepute.
“When this case arose, the case law was uncertain about what constitutes detention, was in a state of flux about whether the police had to comply with section 10 on investigative detentions and was inaccurate about whether the police had to comply with section 10 immediately or only after an appropriate interlude,” said Cameron.
“We also observe that the police officer in this case in fact complied with section 10 and did so in a manner he thought was consistent – and indeed was consistent – with the law as it stood at that time.”
Tosczak’s appeal was dismissed.