Questioning a detainee in an effort to get them to consent to a search is not necessarily a search, or the start of one.
In R. v. Sebben, 2015 ONCA 270 a police officer stopped the accused and administered a roadside breath test following a report of an erratic driver. Sebben passed the test but, during the course of checking CPIC and related data bases, the officer received information that he had a possible connection to drugs.
The officer returned to Sebben, seated in the driver's seat, to ask for his consent to search the vehicle.
Sebben replied that he didn't think he needed to and began to roll his rear window down. He said the officer could look in the back because all he had were tools and Christmas presents.
When the officer said the search wouldn't be for Christmas presents, but for things like drugs or marijuana, Sebben immediately reached in the centre console area, indicated he had marijuana and gave the officer a clear Ziploc bag of it.
He was arrested for possession of marijuana and a search of the vehicle as an incident of that arrest turned up more marijuana.
In the Ontario Court of Justice the officer acknowledged that he did not have reasonable grounds to conduct a search when he decided to ask for Sebben's consent, nor was he acting on the belief that Sebben had consented to any search. He also said he did not get a chance to go into the details to obtain a valid consent by reviewing the standard consent form since Sebben immediately said he had marijuana and produced a bag of it.
Sebben argued that he was arbitrarily detained, denied his right to counsel when asked to consent to the search, and subjected to an unreasonable search that led to the bag and the subsequent discovery of more marijuana. The judge found Sebben was detained at the roadside, both before and after the roadside test was administered, but these detentions were not arbitrary. Nor was the officer's request to search a "search" under s. 8 of the Charter.
Rather, Sebben chose to voluntarily turn over the bag to the officer in the hope of preventing a more thorough search of the vehicle. However, the judge did hold there was a s. 10(b) violation since Sebben was not advised of his right to counsel when his detention continued after the roadside test had been administered. Nevertheless, the evidence was admitted under s. 24(2) of the Charter. Sebben was convicted of simple possession and possessing marijuana for the purpose of trafficking.
Sebben appealed to the Ontario Court of Appeal arguing the trial judge erred in not finding a s. 8 violation which, when combined with the s. 10(b) breach, ought to have resulted in the exclusion of the evidence. He submitted that the officer's request for consent marked the start of a search and anything produced subsequent to that request constituted a seizure under s. 8. Thus, the request for permission to search, followed immediately by the production of marijuana and subsequent search of the vehicle was a single, ongoing, warrantless and non-consensual search.
Justice Doherty, however, speaking for the unanimous court, concluded that not all questioning of a detained person by police can be regarded as the start or part of a search under s. 8.
Not every request by an officer that a person consent to a search is automatically a search. Sometimes questions, including a request to conduct a consent search, will be part of a subsequent search. In other fact situations, the questions will not form any part of a search. A fact-specific inquiry is necessary.
Any request by a police officer that a detained person consent to a search must be closely scrutinized. The power imbalance in that situation is obvious. That does not, however, mean that any request to search should be deemed to be the commencement of a search. That approach ignores the fact-sensitive nature of the inquiry.
In this case, there was no evidence that:
• the [accused] felt compelled to cooperate with the police officer;
• the [accused] believed that a search of his vehicle was inevitable regardless of whether he consented;
• the [accused] was subject to any demand or direction by the police officer;
• the police officer said anything to the [accused] that invited or induced the [accused] to produce the narcotics; and
• the officer intended to search of the vehicle regardless of whether the [accused] consented.
On the facts as found by the trial judge, the police officer had commenced the process by which he hoped to obtain the [accused's] informed consent to a search of the vehicle. Before he could complete that process, the [accused] voluntarily and unilaterally produced a bag of marijuana in the hope of avoiding more serious problems.
The [accused's] production of the marijuana effectively ended the officer's need to make any further inquiries requesting the [accused's] consent to a search. The officer was entitled to search the vehicle as an incident of the [accused's] arrest for possession of the bag of marijuana. On the officer's evidence, there was no search, but rather a production of the marijuana in the bag by the [accused] followed by a search incident to an arrest [references omitted, paras. 12-15].
There was no s. 8 violation and no reason to interfere with the trial judge's s. 24(2) analysis. Sebben's appeal was dismissed.