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| John L. Hill |
Justin Thomas Gary Donovan was driving in the early morning hours of Dec. 12, 2020, when Const. Viger of the Nanaimo, B.C., RCMP pulled him over. While following the Donovan vehicle, Viger had run a check that the car had been impounded a month before, and its driver was prohibited from driving.
Viger asked the driver if he was Justin Donovan, and when the driver responded affirmatively, Viger did another search and found the driver’s licence continued to be suspended. Viger asked Donovan to exit the vehicle; he was arrested for driving while prohibited and handcuffed.
Another officer, Const. Teel arrived on the scene. Viger had observed an orange bucket in the rear seat of Donovan’s car. Viger asked Teel to search the vehicle. That search discovered drug-manufacturing materials, a package of methamphetamine, a vat of GHB and cash. Donovan was transported to the police station where he was later charged with unlawful possession of a controlled substance for the purpose of trafficking. He
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Donovan raised a Charter argument, hoping to meet his onus of proving that a warrantless search was prima facie unreasonable. He relied on R. v. Caslake, [1998] 1 SCR 51, which held that an inventory search is not authorized by law and violates s. 8 of the Charter, guaranteeing the right to be secure against unreasonable search and seizure.
That argument failed. The B.C. Motor Vehicles Act authorizes the impounding of vehicles found in the circumstances of Donovan’s arrest to be searched to ensure the safety of the vehicle and its contents (R. v. Strilec, 2010 BCCA 198; R. v. Russell, 2018 BCCA 330). Even though Viger’s direction to Teel was simply to search the vehicle, the trial judge accepted it as authorizing an inventory search.
Donovan also argued that he had been arbitrarily detained in contravention of Charter s. 9. The proper course, he argued, would have been to issue a ticket or to allow him to stand outside the car uncuffed while further information was obtained. Instead, he was asked if he was the Donovan previously cited for driving while prohibited, forcing him to self-incriminate. He was cuffed and remained in the police cruiser for 20 minutes while the vehicle search was underway.
However, the lawfulness of the arrest had not been challenged at trial. The onus is on the accused to raise Charter breaches. When the matter was not raised at trial, there is no record to be scrutinized at the appellate level. In this case, the Court of Appeal refused to exercise its discretion to hear a new issue when it had not been considered at trial (R. v. Gill, 2018 BCCA 144).
The final issue raised on appeal was that the trial judge imputed that the materials found in Donovan’s car were for the purpose of drug trafficking. Donovan’s lawyer at trial conceded that the challenge to trafficking related only to the quantity of methamphetamine found in his possession. A further concession was that if the trial judge admitted expert evidence relating to the GHB, there was sufficient evidence that the possession of both substances in Donovan’s possession was for the purpose of trafficking. On appeal, it was argued that the concessions were related only to the purpose for which the chemicals would be used. The issue of Donovan’s possession remained open. It was a case of semantics, but it was worth the try with the evidence presented.
The appeal panel found that Donovan’s counsel at trial called no evidence on that issue. The appeal court implied that the Crown had cast an evidential burden on the accused at trial to offer a reasonable explanation as to why there were paraphernalia and drugs in his car. Without the calling of evidence on the issue of possession, that evidential burden had not been met.
The Court of Appeal held that with the concessions and materials found in the car, the trial judge’s reasons were adequate and showed no reversible error.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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