Recently the Ontario Court of Appeal released a judgment with respect to whether an officer’s request that a person consent to a search is in fact a search. (R. v. Sebben)
Mr. Sebben was in possession of marihuana. He had a small amount of marihuana in the centre console of his vehicle, and further, a larger amount of marihuana hidden elsewhere in the car. An off duty police officer saw Mr. Sebben driving his vehicle in an erratic manner. A different officer stopped Mr. Sebben and administered a roadside breath test. Mr. Sebben registered a “pass”. In the course of checking Mr. Sebben on CPIC (Canadian Police Information Centre) and related data bases, the police officer received information about a possible connection to drugs. As a result, the officer decided to ask Mr. Sebben if he would consent to a search of his vehicle. The officer acknowledged that without Mr. Sebben’s consent he did not have reasonable grounds to conduct a search. During a very brief conversation, Mr. Sebben voluntarily produced a bag of marihuana. The officer arrested him for Possession of Marihuana (section 4(1) of the Controlled Drugs and Substances Act), and proceeded to conduct a search of the vehicle as an incident of that arrest. The officer found more marihuana, and Mr. Sebben was further charged with Possession of Marihuana for the Purpose of Trafficking (section 5(2) of the C.D.S.A.).
At trial, Mr. Sebben argued that his Charter rights had been infringed:
The trial judge concluded that the officer’s request to search Mr. Sebben was not a search. Further, the trial judge found that Mr. Sebben chose to voluntarily turn over the marihuana in the bag to the police officer in the hope of curtailing a more thorough search of the vehicle which would, as it eventually did, reveal the other drugs. Ultimately, the trial judge did find a violation of Mr. Seben’s right to counsel, but decided the evidence should not be excluded under section 24(2) of the Charter.
The sole ground argued on appeal was whether Mr. Sebben’s rights under section 8 (unreasonable search and seizure) of the Charter had been violated. At the Court of Appeal, the judgment was authored by Justice Doherty (widely considered one of the country’s leading criminal jurists).
Justice Doherty concluded that not every request by an officer that a person consent to a search is automatically a search. Ultimately, it depends on the specific facts of the individual case. 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. In the present case, Justice Doherty concluded that there had been no search, but rather a production of the marihuana in the bag (from the centre console) by Mr. Sebben, which was followed by a lawful search incident to arrest.