Search of car trunk under Ontario Liquor Licence Act held to be unlawful
Justice Michelle Fuerst, Michal Fairburn and Scott Fenton
Mr. Benimadhu came to the attention of the police for an “aggressive lane-change”, but was pulled over when he threw a cigarette from his window. He was stopped for littering. The officer could smell burnt marihuana and alcohol. The driver told him that he had just smoked and that the liquid in a cup holder was his passenger’s. The officer told the driver and passengers that the car would be searched.
While nothing was found in the front or back of the car, the trunk contained a bag from Bed Bath & Beyond store. It had marihuana inside. Everyone was arrested for possession of drugs. The driver volunteered that it was his. He was then placed in the police car. He was released on a promise to appear.
The accused maintained that his s. 8 rights had been infringed. The Crown argued that the search had been s. 8 compliant and relied upon s. 32 of the Liquor Licence Act (LLA).
The trial judge found a s. 8 breach and excluded the evidence.
Pursuant to s. 32(5) of the LLA, a police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle may, without warrant, enter and search the vehicle or any person in it. Under s. 32(1) and (2) of the LLA, a person may not drive a vehicle with liquor in it unless they have a licence or permit to do so, or if the liquor is unopened or is packed in baggage that is fastened closed “and is not otherwise readily available to any person in the vehicle”.
The parties agreed that the officer could lawfully search the front and back areas of the car. Where they parted company was whether the officer had the ability, pursuant to s. 32 of the LLA, to search the trunk. The trial judge concluded that the search of the Bed Bath & Beyond bag was not authorized. While the officer testified that the back seats folded down and he thought that one of the back passengers may have secreted alcohol in the trunk by lowering the back seat rest, the trial judge was “skeptical” of this evidence. The trial judge touched and held the bag and found that there was no reason someone may have thought there was alcohol contained within it. It was light and clearly contained a leafy substance.
Justice Botham concluded that while the officer was acting within his lawful authority when he searched the interior of the car, he exceeded that authority once he looked into the bag in the trunk of the car. He had no reason to believe that the bag contained alcohol when he opened it.
As for s. 24(2), this was considered a serious breach. The officer’s evidence was found to have aggravated the seriousness of the breach because it was “self-serving and unlikely to be true”. The trial judge concluded that there is a heightened privacy interest in the trunk of a vehicle because it is hidden from view. This meant that the impact of the breach on the Charter interests of the individual was increased. The long-term repute of the administration of justice would be better served by excluding the evidence.
This judgment shows the power of s. 32 the Liquor Licence Act in Ontario and equivalent provisions beyond Ontario. The LLA justified the warrantless search of the motor vehicle. Had the marihuana been located in the body of the vehicle, it would have been a constitutionally compliant search. The officer simply went too far by searching the trunk of the vehicle. Had the trial judge not made adverse credibility findings against the officer, even the trunk search may have been found to comply with the powers provided under the LLA.
The s. 24(2) judgment reinforces the principle that was set out in R. v. Harrison, 2009 SCC 34. Where state actors are found to have testified in a manner that was intentionally misleading, this fact can add to the seriousness of the Charter breach and point heavily toward exclusion of evidence.
R. v. Benimadhu (2016), 2016 CarswellOnt 3904, 2016 ONCJ 142 (Ont. C.J.)