Decision Content
R v King, 2018 NWTSC 33 S-1-CR-2016-000111
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
TRAVIS KING
_________________________________________________________ Transcript of the Ruling on Voir Dire held before The Honourable Justice K.M. Shaner, sitting in Yellowknife, in the Northwest Territories, on the 13th day of February, 2018.
_________________________________________________________
APPEARANCES:
Mr. J. Potter: Counsel for the Crown
Mr. T. Pham: Agent for Peter Harte,
Counsel for the Accused
(Charges under s. 5(2) of the Controlled Drugs and Substances Act)
1 THE COURT: Earlier, in January, I heard
2 an application on behalf of Mr. Travis King to
3 exclude evidence based on a breach of his rights
4 under sections 8 and 9 of the Canadian Charter of
5 Rights and Freedoms. There was evidence at the
6 hearing that was provided by Corporal Greg Morrow
7 and Constable John Newcombe.
8 On May 27th, 2016, there was an accident on
9 the highway in the vicinity of Kakisa in the
10 Northwest Territories. The accident occurred
11 between a pick-up truck and a grey Chevrolet
12 Malibu with Saskatchewan licence plates, which I
13 will refer to as the "Malibu". The driver of the
14 pick-up truck, Mr. Villeneuve, reported the
15 accident by telephone to the RCMP detachment in
16 Hay River. He was calling from Enterprise.
17 Corporal Morrow testified that he is the one
18 who received the call from Mr. Villeneuve. He
19 took the call directly. He would not have
20 ordinarily done so, but he said that the
21 detachment was very busy that day and there were
22 not enough staff members there to answer the
23 phones.
24 Corporal Morrow learned from Mr. Villeneuve
25 that the accident, as I said, occurred just
26 outside of Kakisa; that the Malibu struck the
27 pick-up truck from behind; that there were three
1 people in the Malibu; and that following the
2 collision, Mr. Villeneuve drove himself, his
3 passenger and the three occupants of the Malibu
4 to Enterprise from which he made the call to the
5 RCMP. Enterprise is a community in the Northwest
6 Territories, which is approximately 40 kilometers
7 south of Hay River.
8 Corporal Morrow said that after the call
9 concluded, he contacted Constable John Newcombe
10 by radio and the two of them left the Hay River
11 detachment to go to Enterprise to investigate the
12 collision.
13 Corporal Morrow stated that when he took the
14 call, he had just returned from his lunch break
15 which he had at his home. He said his home was
16 located at the outer south edge of Hay River. As
17 he was driving back to the detachment, located in
18 the downtown part of Hay River, he observed
19 Mr. Max Hyde driving his car in the opposite
20 direction toward Enterprise. He recognized
21 Mr. Hyde and his car from previous dealings with
22 him. At the time Mr. Hyde was a sole occupant in
23 the car.
24 On the way to Enterprise, Corporal Morrow
25 and Constable Newcombe observed Mr. Hyde's car
26 driving towards them in the direction of Hay
27 River. The radar in the police vehicle indicated
1 Mr. Hyde's car was travelling at 98 kilometers
2 per hour in a zone which was marked 90 kilometers
3 per hour. I will pause here to say that Corporal
4 Morrow testified the zone had a speed limit of 90
5 kilometers per hour. Constable Newcombe was not
6 sure if it was 80 or 90 kilometers an hour, but
7 both conceded that Mr. Hyde was not driving at a
8 significantly higher speed than that which was
9 posted.
10 Corporal Morrow observed now that the car
11 had passengers in it. The police decided they
12 would pull over Mr. Hyde. Both Corporal Morrow
13 and Constable Newcombe were asked why they
14 stopped Mr. Hyde. From the evidence, it appears
15 a number of factors went into their decision.
16 First, Mr. Hyde was speeding, albeit not
17 excessively. Second, Corporal Morrow noted
18 Mr. Hyde now had passengers in his vehicle. He
19 said that given that there is "really nothing"
20 south of Enterprise, he thought the passengers
21 might be connected to the accident. Third, both
22 Corporal Morrow and Constable Newcombe had
23 previous dealings with Mr. Hyde related to, among
24 other things, nuisance calls for parties and
25 traffic infractions. Corporal Morrow also
26 suspected Mr. Hyde was involved in the illegal
27 drug trade in Hay River. Finally, the police
1 officers had intelligence from the RCMP
2 suggesting that a car matching the description of
3 the Malibu involved in the accident was connected
4 with drug activity in Hay River.
5 Upon exiting the police vehicle after
6 stopping Mr. Hyde, Constable Newcombe went to the
7 driver's side of Mr. Hyde's car and Corporal
8 Morrow went to the passenger side. Corporal
9 Morrow stated that he did not hear much of the
10 conversation between Constable Newcombe and the
11 car's occupants because he was on the other side
12 of the car. Corporal Morrow was, meanwhile,
13 talking to the occupants on the passenger side
14 through an opening in the car window.
15 Constable Newcombe said he advised Mr. Hyde
16 that he had been stopped for speeding. He asked
17 him to produce his driver's licence, proof of
18 insurance and registration. Mr. Hyde complied
19 with this request. Constable Newcombe also asked
20 the three passengers for their names as he did
21 not recognize them. They too complied.
22 The two passengers in the back identified
23 themselves as Alexander Norwegian and Brandon
24 Baxandall. The passenger in the front seat was
25 the accused, Travis King. Corporal Morrow
26 recognized Mr. Norwegian and Mr. Hyde. He did
27 not know Mr. King or Mr. Baxandall.
1 Constable Newcombe said he asked all four
2 occupants if they were involved in the accident.
3 He said they all denied involvement. He was
4 unable to recall their exact words and he did not
5 write them down in his report.
6 Constable Newcombe took the documents from
7 Mr. Hyde and returned to the police vehicle.
8 Corporal Morrow stayed on the passenger side of
9 the car. He spoke to Mr. King through the
10 passenger window and asked him his name and for
11 his identification. He also asked Mr. King if he
12 had been involved in the accident by Kakisa.
13 Corporal Morrow did not recall precisely what
14 Mr. King said in response, but he interpreted
15 Mr. King's response as a denial.
16 Meanwhile, Constable Newcombe called another
17 officer, Constable Hutchinson, on the radio in
18 the police vehicle. He knew that Constable
19 Hutchinson had recently stopped a vehicle that
20 matched the Malibu's description. From that
21 conversation, Constable Newcombe learned that
22 when Constable Hutchinson stopped the Malibu,
23 Mr. Norwegian was the driver and Mr. Baxandall
24 was a passenger.
25 Upon returning to Mr. Hyde's vehicle,
26 Constable Newcombe asked the occupants why they
27 had lied about the accident. He testified that
1 they maintained their denials. He asked Mr. Hyde
2 where they had been and Mr. Hyde responded, "the
3 falls". Constable Newcombe took this to mean
4 Alexandra Falls, which are south of Enterprise
5 and in the opposite direction from Kakisa.
6 Constable Newcombe arrested Mr. Norwegian
7 for obstruction of justice contrary to section
8 129 of the Criminal Code. He conducted a search
9 of Mr. Norwegian and the search resulted in the
10 discovery of the registration for a grey
11 Chevrolet Malibu with Saskatchewan licence
12 plates. He then placed Mr. Norwegian in the
13 police vehicle where Mr. Norwegian admitted that
14 he was driving the Malibu at the time of the
15 accident and that Mr. Baxandall and Mr. King were
16 passengers.
17 It is convenient to note at this point that
18 no issues have been raised about whether any of
19 Mr. King, Mr. Norwegian or Mr. Baxandall were
20 properly advised of their rights upon arrest.
21 That was not in issue.
22 Constable Newcombe left the police vehicle
23 and told Corporal Morrow what he had learned.
24 Corporal Morrow testified that he then asked Mr.
25 King again if he had been involved in the
26 accident. He was unable to recall the exact
27 words Mr. King uttered in response, but under
1 cross-examination, he suggested Mr. King may have
2 said words to the effect of, "No, I was not in
3 that vehicle", or "I wasn't involved in this.
4 You've got the wrong person". In any event,
5 Corporal Morrow interpreted the response as a
6 denial and he arrested Mr. King and Mr. Baxandall
7 for obstruction. They were handcuffed and placed
8 in the police vehicle.
9 Mr. Hyde was arrested as well. He was
10 handcuffed and told to wait in the ditch on the
11 side of the road. According to the witnesses,
12 this was because there was no room for him in the
13 police vehicle. The officers then searched his
14 vehicle and they found nothing relating to the
15 accident. Mr. Hyde was subsequently released and
16 he was given a ticket for speeding.
17 Meanwhile, a third RCMP officer, Corporal
18 Scaplen, arrived on the scene, and at Constable
19 Newcombe's request, he went to Enterprise to
20 continue the accident investigation.
21 Mr. King, Mr. Baxandall and Mr. Norwegian
22 were taken to Hay River to the detachment in the
23 police vehicle.
24 While in the vehicle, Corporal Morrow and
25 Constable Newcombe both noticed a strong odour of
26 what they recognized to be "green marijuana",
27 that is, marijuana that has not been smoked.
1 Both testified that the odour was not present
2 prior to placing the three detainees into the
3 vehicle. Constable Newcombe described the odour
4 as overwhelming. They were unable to determine
5 the source of the odour immediately.
6 The three detainees were processed when they
7 arrived at the detachment. Corporal Morrow and
8 Constable Newcombe were particularly concerned at
9 that point with finding the source of the green
10 marijuana odour.
11 Mr. King was the first to be processed. As
12 part of that, he was asked to remove his clothing
13 to the first layer. This left him wearing his
14 shirt, pants and underwear. The police found
15 nothing at this stage, and still needing to
16 pinpoint the source of the odour, they moved to a
17 strip search of Mr. King.
18 Now I will pause to note as well that before
19 the strip searches began of all three of these
20 individuals, they were all asked to go down to
21 the first layer, meaning that they were wearing a
22 shirt, pants, and the strip search had not begun.
23 So it was after all three of them had been
24 searched that they moved to the strip search of
25 Mr. King.
26 A visual recording of the strip search was
27 tendered into evidence during this hearing. The
1 search occurred in one of the cells at the
2 detachment. Corporal Morrow and Constable
3 Newcombe were both present. The door from the
4 cell to the hallway was open, although no one
5 other than the two police officers and Mr. King
6 was present. Mr. King removed his pants and then
7 his underwear. His shirt remained on at all
8 times. A clear plastic bag containing what was
9 later determined to be crack cocaine was found in
10 his underwear. His pants and underwear were
11 returned to him almost immediately and he put
12 them back on. Mr. King was then charged with
13 possession for the purpose of trafficking. The
14 strip search lasted less than two minutes.
15 Mr. Norwegian was processed next in the same
16 manner, and this led to the discovery of a bag of
17 marijuana. A strip search was also conducted on
18 Mr. Baxandall and nothing was recovered. All
19 three were subsequently taken before a Justice of
20 the Peace and then released. The obstruction
21 charge against Mr. King was ultimately stayed.
22 The legal framework in an application to
23 exclude evidence under section 24 of the Charter
24 is well established. An applicant must first
25 establish that there has been a Charter
26 violation. If this threshold is not met, that is
27 the end of the matter. If it is met, then it
1 falls to the applicant to demonstrate that the
2 evidence was obtained in a manner that infringed
3 or denied his or her Charter rights and that
4 admitting the evidence would, in all of the
5 circumstances, bring the administration of
6 justice into disrepute.
7 Strip searches represent an extreme invasion
8 of personal dignity and privacy. A strip search
9 following arrest and in the context of lodging an
10 accused must be based on reasonable and probable
11 grounds. Strip searches may not be carried out
12 as a matter of routine or blanket policy and the
13 necessity of conducting such a search, given its
14 invasiveness, must be assessed by the police on a
15 case by case basis. They must be conducted in a
16 reasonable manner, and the onus is on the Crown
17 to demonstrate compliance with these standards.
18 The authority for this is found, of course,
19 in the case of the R v Golden, 2001 SCC 83, and
20 as well in R v Coulter, 20 OJ 3452 and 2000
21 CarswellOnt 2972.
22 At the hearing defence counsel, Mr. Harte,
23 conceded that the initial traffic stop was
24 authorized under the terms of the Northwest
25 Territories Motor Vehicles Act, RSNWT 1988
26 c. M-16. His argument was that there were not
27 reasonable and probable grounds to arrest
1 Mr. King for obstruction in the first place and
2 therefore the ensuing search violated his right
3 to freedom from unreasonable search and seizure
4 under section 8 of the Charter.
5 That narrows the issues to these: First,
6 were there reasonable and probable grounds to
7 arrest Mr. King for obstruction?; second, did the
8 strip search to which Mr. King was subjected
9 comply with the constitutional requirements?; and
10 third, if the answer to either or both of these
11 is no and Mr. King's Charter rights were
12 violated, should the cocaine be excluded from
13 evidence?
14 Turning to the first issue, the defence
15 arguments on this question focussed on the
16 elements of the offence of obstruction under
17 section 129 of the Criminal Code and whether they
18 were present when the arrest occurred.
19 Mr. Harte submitted that lying to the police
20 does not, by itself, equate to obstruction. It
21 is also necessary that the police are misled,
22 that is, obstructed, by the lie. He reasoned
23 that because the police were confident that
24 Mr. King and the two other passengers were
25 involved in the accident that they were
26 investigating, Mr. King's denial did not mislead
27 the police. Moreover, the extra work involved as
1 a result of Mr. King's denial, that is Constable
2 Newcombe's radio conversation with Constable
3 Hutchinson and the fact that a third officer
4 wound up going to Enterprise to continue the
5 investigation into the accident, was of
6 insignificant consequence. He also emphasized
7 that the obstruction charge against Mr. King was
8 ultimately stayed.
9 The case of R v Khan, 2014 ONSC 6541, which
10 is a summary conviction appeal, was cited in
11 support of the defence position. The issue there
12 was whether an action that had a trivial effect
13 on the execution of a police officer's duty was
14 sufficient to find an accused guilty of
15 obstruction and, in particular, the applicability
16 of what is termed the de minimis principle in
17 that determination.
18 Justice Dawson embarked on a thorough
19 discussion of, among other things, the elements
20 of obstruction, the de minimis principle and its
21 application in various contexts. He also
22 canvassed case law from a number of jurisdictions
23 throughout Canada where the meaning of
24 obstruction has been considered. Among his
25 conclusions was this: (at paragraph 71)
26 I agree with these comments and with
27 the comments of Robertson J. in
1 Walcott at paragraph 35, that the
2 words of Spence J. in Moore cannot be
3 taken as requiring the Crown to prove
4 "a major inconvenience" to the police
5 in order to establish an obstruction
6 pursuant to s. 129(a) of the Criminal
7 Code. However, I remain of the view
8 that it does not follow that the de
9 minimis principle has no application
10 where the effect of the obstructive
11 conduct on the execution of the
12 police officer's duty was so minor or
13 trivial that it falls within the de
14 minimis range. It goes too far, in
15 my view, to say that any effect on
16 the execution of the police officer's
17 duty, no matter how trivial or
18 insignificant, is sufficient to
19 establish the second essential
20 element of the offence.
21 While I accept all this, respectfully, I find
22 that the argument advanced on behalf of Mr. King
23 cannot succeed. That is because it conflates
24 what is required to sustain a conviction with
25 what is required to establish reasonable and
26 probable grounds for an arrest.
27 Securing a conviction requires that a court
1 of competent jurisdiction, after hearing and
2 considering all of the evidence, be satisfied
3 beyond a reasonable doubt of each element of the
4 offence. This is the context in which the
5 analytical framework in Khan and other cases
6 respecting whether there was actual obstruction
7 would be relevant.
8 By contrast, an arresting officer is not
9 required to have evidence sufficient to sustain a
10 conviction, nor evidence that establishes a prima
11 facie case, and the authority for that is found
12 in R v Storrey 1990 1 SCR 241, in paragraphs 15
13 to 17. A lawful arrest without warrant requires
14 first, that the arresting officer believes
15 subjectively that the person to be arrested has
16 committed or is about to commit an indictable
17 offence; and second, that the grounds for the
18 arrest are objectively justifiable in that a
19 reasonable person in the shoes of the police
20 officer, taking into consideration the officer's
21 training and experience, would conclude that
22 there were reasonable grounds for the arrest.
23 I am satisfied from his evidence that
24 Corporal Morrow subjectively believed Mr. King's
25 action in denying involvement in the accident
26 amounted to obstruction. In cross-examination he
27 was asked how Mr. King's denial obstructed the
1 accident investigation. His response was that he
2 believed Mr. King deliberately provided false
3 information designed to deflect suspicion from
4 himself. Corporal Morrow was unshaken in this
5 under cross-examination.
6 Turning to the more complex question of
7 whether the arrest was objectively justifiable,
8 the circumstances which presented themselves to
9 Corporal Morrow with respect to Mr. King were
10 these: first, Mr. King was asked if he was
11 involved in the accident. He denied that he was
12 and then Mr. Norwegian was arrested. Mr.
13 Norwegian admitted to being the driver of the car
14 involved in the accident and he told Constable
15 Newcombe that Mr. King was, indeed, one of the
16 passengers. As well, Constable Newcombe, upon
17 searching Mr. Norwegian at the scene, found the
18 registration for a grey Chevrolet Malibu with
19 Saskatchewan licence plates which matched the
20 description of the car provided by
21 Mr. Villeneuve. Constable Newcombe imparted all
22 of this information to Corporal Morrow who asked
23 Mr. King, again, if he was involved in the
24 accident and Mr. King, again, denied it.
25 A reasonable person in the position of a
26 police officer with training in investigation and
27 law enforcement would, in my view, upon being
1 presented with these circumstances conclude that
2 Mr. King was, indeed, trying to steer the
3 investigation away from himself, thus obstructing
4 the accident investigation. The arrest was
5 objectively justifiable.
6 Before leaving this, it is important to also
7 discuss the fact that the charge of obstruction
8 was ultimately stayed. In my view that is a red
9 herring. The Crown can stay charges for a
10 variety of reasons and that is generally not
11 reviewable by the Court. So, for the foregoing
12 reasons, I find that Corporal Morrow had
13 reasonable and probable grounds to arrest
14 Mr. King and, accordingly, that arrest was
15 lawful.
16 That brings us to the issue of whether the
17 strip search to which Mr. King was subjected
18 complied with the Constitutional requirements,
19 and I find that it did. The police had
20 reasonable and probable grounds to conduct the
21 strip search following the arrest. It was not
22 carried out to punish or humiliate Mr. King or
23 the others. It was carried out for a specific
24 and legitimate purpose prompted by the odour of
25 green marijuana and it was conducted in a
26 reasonable manner. It was not a fishing
27 expedition, nor was the strip search conducted as
1 part of a blanket police policy.
2 Both of the police officers testified,
3 again, that there was a strong odour of green
4 marijuana in the police vehicle following the
5 arrests. That odour had not been present before
6 they placed the three accused in the vehicle and
7 this led them each to believe that one or more of
8 the three of Mr. Baxandall, Mr. Norwegian or
9 Mr. King was in possession of marijuana.
10 The police conducted the first layer search
11 which did not reveal the source of the odour from
12 any of the three. Thus, they believed that they
13 needed to proceed to the strip search to
14 determine the source.
15 A strong odour of marijuana emanating from
16 an individual or individuals who are about to be
17 lodged in cells would give rise to legitimate
18 concern. Faced with that, it would have been
19 entirely unreasonable for the police to ignore it
20 and do nothing. Finally, the strip search was
21 conducted in a manner consistent with the
22 guidelines set out in Golden at paragraph 101.
23 Among other things, it was carried out in a
24 private setting. Mr. King was permitted to
25 remove his own clothing and he was not touched in
26 any manner by either officer during the search.
27 It was not prolonged, lasting less than two
1 minutes. It proceeded in a way that Mr. King was
2 never fully undressed and it was conducted with
3 only the two arresting officers present.
4 Accordingly, the strip search conducted on
5 Mr. King was reasonable and the discovery of
6 cocaine incidental to this.
7 In conclusion, I find that there was no
8 violation of Mr. King's rights under section 8 of
9 the Charter and, accordingly, the application to
10 exclude the evidence is dismissed.
11 -----------------------------------------------------
12 CERTIFICATE OF TRANSCRIPT
13
14 I, the undersigned, hereby certify that the
15 foregoing pages are a complete and accurate
16 transcript of the proceedings taken down by me in
17 shorthand and transcribed from my shorthand notes
18 to the best of my skill and ability.
19 Dated at the City of Edmonton, Province of
20 Alberta, this 1st day of July, 2018.
21
22
23
24 _________________________
25 Colleen Rea
26 Court Reporter
27