Since the test for determining a Charter detention involves a detainee-centred approach, a trial judge erred when he considered unspoken intentions or thoughts in the analysis.
In R. v. Koczab, 2013 MBCA 43 the accused, while driving from British Columbia to Ontario, was pulled over for speeding in Manitoba. The police officer noticed the vehicle was registered to Koczab in BC but his licence was issued in Ontario. When asked, Koczab said that was because he worked in the movie industry and lived in both places. This explanation seemed familiar to the officer.
A routine police check revealed Koczab had been fingerprinted in the past for theft and drug charges, but his record showed only one criminal conviction for theft. The officer returned Koczab's documents, gave him a verbal warning for speeding and said he was free to go. The entire stop took only 10 minutes.
Believing he may have stopped Koczab previously, the officer then asked if he would mind answering a few questions. "Yeah go ahead," Koczab replied. The officer asked a series of questions, which led him to ask what Koczab had in the back seat. A couple of suitcases, he replied, but denied there was liquor, drugs or large amounts of cash in the vehicle. When asked "So what's in the suitcases?" Koczab said, "Clothes, do you want to see?" The officer said "Sure."
After a brief exchange, Koczab, without prompting, opened the back door and the suitcases. The officer did not search them but noticed the carpet had been altered near the back seats, causing him to suspect there was a hidden compartment. He had considerable experience in detecting and locating such compartments, having personally investigated and discovered them in some 50 other cases.
The officer told Koczab he had to go to his car for a moment, then called for backup. He intended to arrest him but, before doing so, decided to give him an opportunity to provide an innocent explanation for the altered carpet. He went back to Koczab and asked the following three questions:
- Have you had any bodywork done to the vehicle? Answer: No
- Have you had any panels removed? Answer: No
- Do the back seats fold down? Answer: Yeah, I'll show you.
Without being asked, Koczab proceeded to fold the seats forward. The officer noticed more damage to the carpet and smelled the strong odour of fresh silicone, a product he knew wasn't used in factory vehicle installations. Believing it indicated recent use to create a sealed hidden compartment that may contain drugs, he arrested Koczab for drug possession and advised him of his right to counsel.
A vehicle search incidental to arrest revealed 17 one-kilogram bricks of cocaine in a silicone-sealed hidden compartment underneath the backseat. The officer arrested Koczab for cocaine trafficking and re-advised him of his rights. He was again given his right to counsel but declined to contact anyone.
A Manitoba Court of Queen's Bench trial judge concluded the officer detained Koczab before asking the three questions. In his view, Koczab was detained when the officer formulated his intention to arrest, said he would be back in a minute, returned to his car, called for back-up and came back to the SUV to ask the first question. The detention did not breach s. 9 of the Charter because the judge concluded the officer had reasonable grounds to suspect Koczab was a drug courier before he called for back-up.
However, since Koczab was detained before the officer asked him the last three questions, his rights under s. 10 were breached. He had not been advised of the reason for his detention (s. 10(a)) nor told of his right to counsel before answering (s. 10(b)). The cocaine was excluded as evidence under s. 24(2) and Koczab was acquitted of trafficking and possession for the purpose of trafficking.
The Crown appealed to the Manitoba Court of Appeal arguing, in part, that the trial judge erred in finding Koczab had been psychologically detained and therefore entitled to be advised of his s. 10(b) rights before being asked the last three questions.
A person is detained such that Charter rights are triggered if they can demonstrate significant psychologically restraint. The test to determine this is whether police conduct would cause a reasonable person in the accused's circumstances to conclude they were not free to go and had to comply with the direction or demand. This approach to determining detention has been described as "claimant" or "detainee-centered objective analysis."
Since the test is detainee-centered, the significance of the officer's non-communicated mindset is largely removed. Factors to consider include the circumstances giving rise to the encounter, nature of police conduct and the particular characteristics or circumstances of the individual.
The trial judge erred in considering the officer's non-communicated thoughts and intentions to arrest Koczab in the detainee-centered objective analysis, the Crown submitted. Koczab suggested the trial judge correctly applied the proper legal test. Justice Chartier, authoring the Manitoba Court of Appeal's majority opinion, concluded the trial judge's finding of detention was based on the officer's:
- Non-communicated belief that he was going to arrest the accused;
- Implied direction or order to the accused that he wasn't to leave;
- Return to his car;
- Non-communicated call for back-up; and
- Non-communicated intention to come back and to ask the accused more questions to see if there was an innocent explanation.
The problem with this, the majority noted, was that Koczab would not have known facts one, four and five (the officer's intentions or thoughts) and they therefore were irrelevant in a detainee-centered objective analysis. Fact three was neutral while fact two – the implied direction – had to be accepted on appeal. Thus, the trial judge improperly overemphasized the officer's non-communicated intent in concluding there had been a detention. Chartier put the detainee-centered objective approach this way:
(T)he test to determine whether the accused has demonstrated the required "significant" psychological restraint is whether the police conduct would cause a reasonable person in the accused's circumstances to conclude that the accused wasn't free to go and had to answer the questions posed by the officer when he returned from his car. In essence, a trial judge is to evaluate the overall situation as it would be perceived by a reasonable person standing in the shoes of the accused, having regard to the following: to what that person would have said, heard, seen, thought or done; to the officer's words or actions which would have been heard or seen by the accused; to any relevant facts surrounding the encounter; and to the accused's personal circumstances (para. 44).
So then, with the remaining facts, would a reasonable person, standing in the shoes of the accused, believe he was detained? The majority didn't think so. Although not fatal to a determination of detention, Koczab chose not to testify so there was no evidence as to how he regarded, understood or interpreted the interaction. Using the testimony of the officer the majority concluded:
Circumstances of the encounter: Koczab was handed back his documents, told he was free to go, asked whether he would agree to answer a few questions and consented to do so. The officer's words, "I just have to go to my car for a minute" – characterized by the trial judge as an implied direction – were clearly not an order to stay. There was no evidence the officer made a gesture, such as lifting his index finger to indicate Koczab should wait, or expressed his words in an authoritative tone. More than just the words the officer chose was needed. Koczab was relaxed, composed and cooperative throughout the encounter, opening the back door and suitcases and inviting the officer to look in them and behind the rear seat, all on his own initiative. At no time during the encounter did Koczab's level of cooperation, conversation or interaction change.
Nature of police conduct: There was no physical contact between the officer and Koczab and the interaction was polite and cordial. Voices were not raised and there was no evidence of intimidation or coercion. The encounter was relatively short: 14 minutes elapsed from the time Koczab was told he was free to go until his arrest. The officer always confirmed that Koczab let him ask further questions and look into the trunk. It was made clear, at least inferentially, that he had a choice in the interaction and his consent and cooperation were given each step of the way.
Circumstances of the accused: He was 29 years old and seemed confident and relaxed. There was no evidence he was in any way intimidated by the situation or police conduct, nor any suggestion he was under any form of duress or compulsion to comply. Instead, he was the one encouraging the officer to look inside his vehicle and personal belongings. There wasn't anything to show Koczab's compliance and cooperation with the officer was anything but voluntary.
There would have been no finding of a psychological detention had the trial judge considered the facts using the correct detainee-centered objective approach and not improperly focused on the officer's non-communicated intent. Thus, his conclusion of a detention was unreasonable and not supported by the evidence. There was no s. 10 Charter breach and, even if there was, the majority would have ruled the evidence admissible under s. 24(2). Since an acquittal would not necessarily have followed had the trial judge properly applied the law, the Crown's appeal was allowed and a new trial ordered.
A second view
Justice Monnin, in dissent, concluded the trial judge did not err in finding Koczab was psychologically detained and his s. 10 rights breached:
In my view, a reasonable person, having been questioned aggressively on issues relating to drug convictions and whether he was currently involved in drug trafficking, having previously been told he was free to go, but then indirectly told to stay where he was, would likely conclude that he wasn't free to go and had to comply with that directive. It would take a brave soul in the circumstances to defy the state actor and go merrily on his way. He would, no doubt, soon be involved in a police chase (para. 93).
Monnin would not have interfered with the trial judge's ruling on the exclusion of evidence.