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====== R. v. Boisclair, 2012 NSSC 151 ======

Source: [[https://canlii.ca/t/fqzkt|CanLII]]

----

**__SUPREME COURT OF NOVA SCOTIA__** \\
**Citation:** R. v. Boisclair, 2012 NSSC 151

**Date:** (20120315) \\
**Docket:** CRT352409 \\
**Registry:** Truro

Her Majesty the Queen \\
Respondent

v.

Mathieu Boisclair \\
Applicant

**Judge:** The Honourable Justice Felix A. Cacchione.

**Date of hearing:** February 13-14, 2012 at Truro, Nova Scotia

**Written decision:** April 16, 2012

**Counsel:** Catherine Hirbour, for the applicant \\
Eric Aucoin, for the respondent

**The Court**:

[1] The applicant, Mathieu Boisclair, seeks the following orders from the Court:

  - a declaration that the evidence obtained following his arrest be excluded on the grounds that the arrest and the subsequent searches were unreasonable under s. 8 of the //Charter// and that the use of this evidence would bring the administration of justice into disrepute under s. 24 of the //Charter//;
  - a declaration that the evidence obtained following the arrest be excluded on the grounds that the arrest and detention of the applicant were arbitrary under s. 9 of the //Charter// and that the use of this evidence would bring the administration of justice into disrepute under s. 24(2) of the //Charter//;
  - a declaration that the evidence obtained following the arrest be excluded on the grounds that the applicant never gave informed consent to the search under Canadian case law and that the use of this evidence would bring the administration of justice into disrepute under s. 24 of the //Charter//.

[2] The applicant states that the police were waiting for him at the station and questioned him even though they did not have either a search warrant or an arrest warrant. Furthermore, the police encircled him and placed him under psychological duress. He argues that the officers approached him with a dog and that he felt intimidated. The applicant adds that there was a language barrier between him and the officers who were waiting for him at the station. He asserts that the police never explained the legal aspects of informed consent to him and that they did not use a written formula to obtain such consent. In the end, the applicant maintains that in the absence of a warrant, the burden is on the prosecution to prove the legality of the search and consent.

[3] The respondent, the Attorney General of Canada, asserts that this application involves the power of police to act on information related to suspicious activity and to investigate an individual as well as the criteria to obtain consent to a search and the police use of a sniffer dog.

[4] The respondent argues that the search of the applicant's backpack by a sniffer dog was conducted after obtaining voluntary consent from Mathieu Boisclair. The respondent submits, in the alternative, that the employment of the sniffer dog satisfied the constitutional criteria established by the case law that the investigator had reasonable grounds to believe that there were controlled substances. Finally, even if there were //Charter// violations, the respondent maintains the evidence shows that the investigator acted entirely in good faith and that the exclusion of the evidence would bring the administration of justice into disrepute.

**The facts**

[5] On October 14, 2010, officer Joe Pilpapil Joe Pilapil of the Royal Canadian Mounted Police (RCMP) received information from a confidential source of the RCMP. This source reported to officer Flanagan. Since officer Flanagan was not available on that day, he asked officer Pilapil to speak to the source and investigate. Officer Pilapil only had six months of experience with the criminal interdiction team when he was assigned to follow up in this case. The source told him that an individual named Mathieu Boislair would arrive in Truro on the same day on a Via Rail train coming from the province of Quebec. The information received also indicated that Mr. Boisclair had purchased a round-trip ticket in cash and that he would return the following day.

[6] In the past, this source had provided information that lead to significant seizures of cocaine.

[7] The reliability of confidential sources was considered in //R. v. Debot//, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140. At paragraph 53, Wilson J. wrote:

<blockquote>
In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search.  First, was the information predicting the commission of a criminal offence compelling?  Second, where that information was based on a "tip" originating from a source outside the police, was that source credible?  Finally, was the information corroborated by police investigation prior to making the decision to conduct the search?  I do not suggest that each of these factors forms a separate test.  Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness.  Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
</blockquote>

[8] In this case, the confidential source was trustworthy.

[9] Officer Pilapil was a member of the criminal interdiction team. Based at Halifax Airport, this team investigates and intercepts contraband that is transported by travellers on public transport such as bus, train and airplane or is sent using delivery services such as //FedEx// and //Purolator//.

[10] Officer Pilapil proceeded to Truro Station with a team including a dog handler and their sniffer dog. All the officers were dressed in civilian clothes except the dog handler who was in uniform.

[11] Since the train was late, the team dispersed throughout the station with the sniffer dog and its handler staying away from the rest of the team at the edge of the platform. The handler and their dog were tens of metres away from officer Pilapil.

[12] After the train's arrival, officer Pilapil noticed that a man who was staying away from the other passengers. He watched the man head towards the station building before stopping on the platform when he saw a police officer in uniform with a dog. At this moment, the man lit a cigarette. There was a luggage trolley on the platform.

[13] Officer Pilapil noticed that the man was nervous. The man was trembling, shaking his hands and smoked his cigarette nervously while looking around himself and watching the dog handler officer. Officer Pilapil approached the man and identified himself as a police officer. The man wore a backpack on his shoulders. The officer asked for a piece of identification.

[14] The man identified himself as Mathieu Boisclair. He continued to nervously smoke his cigarette butt, which only had its filter remaining. The officer asked him where he was going and Mr. Boisclair answered Sydney. Officer Pilapil indicated to Mr. Boisclair that his work included asking travellers questions and asked him whether he was transporting contraband. Mr. Boisclair answered that he was not. Mr. Boisclair continued to smoke his cigarette butt which was now unlit.

[15] Mr. Boisclair stated that he afraid to throw his cigarette on the ground since one of his friends received a fine for doing so in a public place but I do not find this explanation sincere.

[16] Even though Mr. Boisclair's mother tongue seemed to be French, officer Pilapil stated that Mr. Boisclair understood English and that they could communicate with each other in English. Later on, Mr. Boisclair was interviewed by officer Moreau and also had a conversation with officer Keddy, which show that Mr. Boisclair understands English and speaks it, even if he is unsure about specific words from time to time.

[17] While pointing to the sniffer dog with his finger, officer Pilapil asked Mr. Boisclair whether he would consent to an exterior examination of the backpack by the dog. The applicant consented by responding "[TRANSLATED] yes". The dog handler approached with their dog. The dog, which was leashed, did not bark and stayed at least three metres away from Mr. Boisclair. The dog handler placed the backpack to the side to separate it from Mr. Boisclair. As soon as the dog sniffed the backpack, it sat down indicating that the backpack contained a controlled substance. Two officers were standing behind officer Pilapil, specifically officer Hulburt and officer Keddy. When the dog signalled the presence of controlled substances in the backpack, officer Keddy moved forward to place Mr. Boisclair under arrest for the possession of controlled substances. The officers encircled Mr. Boisclair within a moment.

[18] Mr. Boisclair did not give any indication, using gesture or words, that he was afraid of dogs.

[19] None of the officers present at the station spoke French. Speaking in English, officer Keddy read the rights to a lawyer to Mr. Boisclair and, while showing him the back of the card, had him read the French version of the words that she had just read. Once at the police station, Mr. Boisclair spoke to a French-speaking lawyer in private.

[20] Office Hurlburt began to search Mr. Boisclair's backpack. In the backpack, he found a brick covered in plastic and black electric tape. This brick contained one kilogram of cocaine. He also found a small quantity of hashish. After the search of the backpack, there remained Mr. Boisclair's suitcase on the luggage cart. The dog sniffed several suitcases which were on the cart and it signalled that there were controlled substances inside Mr. Boisclair's suitcase. The claimant indicated that it was possible that the suitcase contained marijuana. The officers found 238 grams of marijuana in the suitcase along with 48 blue pills, later identified as "Nexus" (ecstasy) after analysis, which is a controlled substance pursuant to Schedule III of the //Controlled Drugs and Substances Act//.

[21] Mr. Boisclair had the opportunity to contact a French-speaking lawyer once he arrived at the police station before giving a statement to officer Moreau, a francophone officer.

[22] The disputed issues are as follows:

  - Was there an arbitrary detention of Mr. Boisclair?
  - What are the applicable requirements to obtain a valid and voluntary consent to a search?
  - At what point did the reasons of the police cross the threshold of reasonable suspicion to justify a search by a sniffer dog?
  - Was there a contravention of the applicant's s. 8 or s. 9 //Charter// rights?
  - If the answer to this question is yes, should the evidence obtained by excluded?

[23] The first issue to consider is to determine whether Mr. Boisclair was detained within the meaning of s. 9 of the //Charter// when officer Pilapil asked him whether he would answer some questions. In //R. v. Mann// 2004 SCR 59, at paragraphs 24 and 26, Iacobucci J. explained as follows:

<blockquote>
24   The test for whether a police officer has acted within his or her common law powers was first expressed by the English Court of Criminal Appeal in //Waterfield//, supra, at pp. 660-61.  From the decision emerged a two-pronged analysis where the officer’s conduct is prima facie an unlawful interference with an individual's liberty or property. In those situations, courts must first consider whether the police conduct giving rise to the interference falls within the general scope of any duty imposed on the officer by statute or at common law. If this threshold is met, the analysis continues to consider secondly whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.

26   At the first stage of the //Waterfield// test, police powers are recognized as deriving from the nature and scope of police duties, including, at common law, "the preservation of the peace, the prevention of crime, and the protection of life and property". The second stage of the test requires a balance between the competing interests of the police duty and of the liberty interests at stake. This aspect of the test requires a consideration of

<blockquote>
whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals.
</blockquote>
</blockquote>

[24] In Mann, the Supreme Court of Canada explained what constitutes a detention. At paragraph 19, the Court defines detention in these terms:

<blockquote>
"Detention" has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to "detain", within the meaning of ss. 9  and 10  of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.
</blockquote>

[25] The evidence shows that officer Pilapil asked the applicant whether he would answer some questions.

[26] The evidence shows that officer Pilapil indicated to the applicant that he was not under detention and that he only wanted to ask him some questions.

[27] In //R. v. Therens//, 1985 CanLII 29 (SCC), [1985] 1 SCR 613, the Supreme Court identified the factors to consider to determine whether a person is truly in a state of detention. At paragraph 52 (a), LeDain J. explained as follows:

<blockquote>
52   In its use of the word "detention", s. 10 of the //Charter// is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.

53   In addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 10 of the //Charter// when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.

54   In //Chromiak// this Court held that detention connotes "some form of compulsory constraint". There can be no doubt that there must be some form of compulsion or coercion to constitute an interference with liberty or freedom of action that amounts to a detention within the meaning of s. 10 of the //Charter//. The issue, as I see it, is whether that compulsion need be of a physical character, or whether it may also be a compulsion of a psychological or mental nature which inhibits the will as effectively as the application, or threat of application, of physical force.
</blockquote>

[28] In //Therens//, the court gave three potential forms of detention: physical constraint, restriction on the freedom of action by a demand or direction and finally a compulsion of a psychological or mental nature.

[29] In //R. v. Grant//, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, the Supreme Court confirmed that not every interaction between a police officer and a citizen necessarily constitutes a detention, although under the facts of that case, the officer exceeded their powers.

[30] Not all interactions between a police officer and a citizen, even those for an investigative purpose, constitute a detention within the meaning of the //Charter//. Section 9 of the //Charter// does not prevent police officers from interacting with a citizen before having a specific reason to associate them with the perpetration of a crime. Similarly, not every interaction between a police officer and a citizen, even a suspect, necessarily invoke the right to the assistance of a lawyer guaranteed by s. 10(b) of the //Charter//.

[31] The person who is stopped will in all cases be detained in the sense that they are delayed or kept waiting. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.

[32] In my view, the evidence in this matter establishes that the applicant was not detained when officer Pilapil first interacted with him to ask him questions. Consequently, there was no obligation on officer Pilapil's part to advise Mr. Boisclair of his right to a lawyer pursuant to s. 10(b) of the //Charter//.

[33] Section 8 of the //Charter// provides protection against unreasonable search and seizure to every citizen. Notwithstanding this principle, the individual may consent to an intrusion into their private life and similarly may waive the protections guaranteed by section 8. //R. v. Borden// (1994) 1994 CanLII 63 (SCC), 3 SCR 145, paragraphs 34 to 40.

[34] According to the evidence, Mr. Boisclair consented to the search of his backpack by the sniffer dog. I still must determine whether his consent was valid.

[35] For a consent to a search to be valid, the person who gives consent must be informed that they have the right to refuse: R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.); R. c. Borden (supra); In this case, officer Pilapil did not tell Mr. Boisclair that he had the right to refuse the search. On his part, the applicant did not sign a written consent. Mr. Boisclair knew that the police wanted to search his backpack with the sniffer dog but he did not know that he could refuse to consent and he was not aware of the consequences of his consent. As a result, Mr. Boisclair's consent was not valid. A search without consent or a search warrant infringes on the rights guaranteed by section 8 of the //Charter//.

[36] Before considering whether the evidence should be excluded pursuant to section 24(2) of the //Charter// due to this contravention, I must establish whether the police had a reason suspicion to justify the search with the sniffer dog.

[37] Even though a search without a warrant is presumed to be unreasonable, it may be justified in certain circumstances. The search or warrant must be authorized by law. This requirement may not be satisfied if one of the following conditions is not met. First, the State agent who conducts the search must be able to indicate the law or common law rule which authorizes the search. Second, the search must be conducted while following procedural and substantive requirements prescribed by law. Third, the extent of the search must be limited to the area or objects which are authorized by law.

[38] In //R. v. Kang-Brown// and //R. v. AM// 2008 SCC 18 (CanLII), [2008] 1 SCR 456 and 569, having considered the use of sniffer dogs, the Supreme Court created a a new category of searches authorized by law called the "common law rule", in which the existence of a reasonable suspicion is a determining criterion.

[39] In //Kang-Brown//, five of nine judges participated in the decision that determined that the common law recognized that the police power to effectuate searches or warrants with the aid of a sniffer dog based on a standard of reasonable suspicion was consistent with the //Charter//.

[40] Binnie J. indicated that "This //Charter// standard of 'reasonable suspicion' is based, as stated, on the minimal intrusiveness, narrowly targeted objective and high accuracy of 'sniffs' by specifically trained dogs". He clarified in pararaph 75:

<blockquote>
The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, "Suspicious Searches: What's so Reasonable About Them?" (1999), 24 C.R. (5th) 123:

<blockquote>
[T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient.  Instead, to justify such a search, the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment.

...

What distinguishes "reasonable suspicion" from the higher standard of "reasonable and probable grounds" is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search. [pp. 125-26]
</blockquote>
</blockquote>

[41] In his reasons, Binnie J. emphasized the criterion of reasonable suspicion:

<blockquote>
78   The importance of objective grounds in the present context, of course, is that where police initiate warrantless "sniff" searches there is no before-the-fact judicial authorization. The after-the-fact review can only truly be an "independent assessment" if there are objective grounds put forward to support the personal opinion of the police officer.
</blockquote>

[42] The justification to detain an individual is considered in the totality of the circumstances.

[43] In this case, officer Pilapil relied on information from a confidential source which was trustworthy. He was looking for an an individual named Mathieu Boisclair who was travelling on a train from Quebec. The officer went to the station. He saw a visibly-agitated man who was nervously smoking a cigarette. The officer identified himself as a police officer before asking him some questions. The man identified himself as Mathieu Boisclair. After noticing a police officer accompanied by a sniffer dog, Mr. Boisclair become more visibly agitated. He fiddled with an unlit butt. Mr. Boisclair had travelled from Quebec to Nova Scotia by train, which took nearly the whole day. Mr. Boisclair indicated that he would be continuing to Sydney, in Cape Breton, located several hours away from Truro. Officer Pilapil knew that Mr. Boisclair planned to return to Quebec the following day and that he had purchased his ticket using cash.

[44] The totality of the evidence in this matter establishes that officer Pilapil had a reasonable suspicion that Mr. Boisclair was in possession of controlled substances as defined in the Controlled Drugs and Substances Act. The search of Mr. Boisclair's backpack and suitcase constituted a legitimate exercise of police powers under the common law. Thus there was no infringement of his rights guaranteed by the //Charter//. Consequently, the question of whether the evidence should be excluded does not arise. In this case, the evidence, that being the controlled substances found in Mr. Boisclair's backpack and suitecase, is admissible.

[45] Even if my conclusions on the constitutional issues and the admissibility of the evidence are overturned, the evidence shows that officer Pilapil acted entirely in good faith. The officer asked Mr. Boisclair whether he consented to the sniffer dog's search of his bag. Mr. Boisclair acquiesced. Having joined the interdiction team less than six months ago, officer Pilapil had not received directives on the procedure to obtain valid consent. He acted based on the affirmative response that Mr. Boisclair gave.

[46] In my view, the exclusion of the evidence in these circumstances would bring the administration of justice into disrepute.


%% ____________________%% \\
Cacchione, J.