R. v. Budden (L.M.), (2005) 387 A.R. 317 (QB)

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 23, 2005
• Citations: (2005), 387 A.R. 317 (QB);2005 ABQB 314

R. v. Budden (L.M.) (2005), 387 A.R. 317 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. NO.127

Her Majesty The Queen (Crown) v. Leigh Malvin Budden (accused)

(040086977Q1; 2005 ABQB 314)

Indexed As: R. v. Budden (L.M.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

May 6, 2005.

Summary:

The accused was charged with possession of methamphetamine and four firearms offences after a loaded firearm was discovered in the vehicle he was driving following a random traffic stop, and methamphetamine was found on his person. The accused submitted that the evidence obtained from the police searches, and a non-cautioned statement to police, violated ss. 8, 9 and 10(b) of the Charter of Rights and Freedoms, and should be excluded from evidence under s. 24(2).

The Alberta Court of Queen's Bench held that the accused was under valid investigative detention for traffic purposes. However, the search of the vehicle constituted an unreasonable search and seizure contrary to s. 8 of the Charter and his statement to police was obtained in violation of his s. 10(b) Charter right to counsel. The court excluded the uncautioned statement from evidence under s. 24(2), but declined to exclude the evidence of the gun itself.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - Police stopped the accused's vehicle when a random licence plate check disclosed that the vehicle did not match the licence plate - The officer approached the vehicle - The accused reached into the back seat, where a partially open gym bag was located - A visible metallic object appeared to the officer to be a weapon - When the accused again reached for the bag, he was handcuffed and advised he was under investigative detention - The metallic object was not a gun, but a search of the bag did disclose a handgun - The gun was seized - The Alberta Court of Queen's Bench held that the accused's s. 8 Charter rights were denied - The accused had a decreased expectation of privacy respecting the bag - The Crown could not rely on the plain view doctrine to legitimize the search, as that only applied to the visible shiny object and did not permit the further exploratory search which found the handgun - The search and seizure was not reasonably incidental to the investigatory detention for traffic purposes, nor was it a valid search incidental to arrest as the accused's de facto arrest was unlawful because the officer lacked grounds to believe an offence had been committed - However, the court declined to exclude the conscriptive evidence of the gun under s. 24(2), as admission of the evidence would not bring the administration of justice into disrepute - See paragraphs 33 to 68, 78 to 116.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 1650

Property - Search and seizure - Warrantless search and seizure - Plain view doctrine - The Alberta Court of Queen's Bench stated that "in order to justify a seizure under the plain view doctrine three requirements must be met: 1. The police must have gained entry or be in the premises lawfully. 2. The nature of the evidence must be 'immediately apparent' as constituting a criminal offence; and 3. The evidence must have been discovered inadvertently." - See paragraph 42.

Civil Rights - Topic 1650

Property - Search and seizure - Warrantless search and seizure - Plain view doctrine - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Police stopped the accused's vehicle when a random licence plate check disclosed that the vehicle did not match the licence plate - The officer approached the vehicle - The accused reached into the back seat, where a partially open gym bag was located - A visible metallic object appeared to the officer to be a weapon - When the accused again reached for the bag, he was handcuffed and advised he was under investigative detention - The metallic object was not a gun, but a search of the bag did disclose a handgun - The gun was seized - The accused was then arrested and advised of his Charter rights - The Alberta Court of Queen's Bench held that the accused was validly held under investigative detention for the initial traffic stop - At that point, he was not arbitrarily detained and, in any event, any arbitrary detention would be a reasonable limit under s. 1 - However, when the officer asked what was in the bag, he exceeded the bounds of s. 1, and the continued detention became arbitrary - The officer lacked reasonable grounds to detain the accused on suspicion of a weapons offence - The court stated that "the [accused's] s. 9 rights would have been breached, but for the ongoing detention for traffic purposes and considerations of officer safety in connection with investigative detention" - See paragraphs 14 to 32.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Police stopped the accused's vehicle when a random licence plate check disclosed that the vehicle did not match the licence plate - The officer approached the vehicle - The accused reached into the back seat, where a partially open gym bag was located - A visible metallic object appeared to the officer to be a weapon - When the accused again reached for the bag, he was handcuffed, advised he was under investigative detention and seated in the police vehicle -The metallic object was not a gun, but a search of the bag did disclose a handgun - The gun was seized - Only then was the accused arrested and advised of his Charter rights - The Alberta Court of Queen's Bench held that the accused's s. 10(b) Charter right to counsel was denied and the uncautioned statements made to police were excluded from evidence under s. 24(2) of the Charter - See paragraphs 69 to 116.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1508 and Civil Rights - Topic 4604 ].

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 3603 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1508 ].

Cases Noticed:

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1; 77 C.R.(3d) 110; 56 C.C.C.(3d) 22; 21 M.V.R.(2d) 165, refd to. [para. 17].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1; 76 C.C.C.(3d) 481; 16 C.R.(4th) 273, refd to. [para. 17].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 45 C.R.(3d) 97; 18 C.C.C.(3d) 481, refd to. [para. 17].

R. v. Wilson (J.W.), [1990] 1 S.C.R. 1291; 108 N.R. 207; 107 A.R. 321; 56 C.C.C.(3d) 142, refd to. [para. 18].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 21 C.R.(6th) 1; 2004 SCC 52, refd to. [para. 23].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136, refd to. [para. 37].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351; 70 C.C.C.(3d) 193, refd to. [para. 39].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 40].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 13 B.C.L.R.(2d) 1; 28 C.R.R. 122, refd to. [para. 40].

R. v. Spindloe (M.) (2001), 207 Sask.R. 3; 247 W.A.C. 3; 154 C.C.C.(3d) 8 (C.A.), refd to. [para. 42].

R. v. Eroshinsky, 2003 CarswellBC 1890; 2003 BCPC 269, dist. [para. 51].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208; 121 C.C.C.(3d) 97, refd to. [para. 56].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 144 D.L.R.(4th) 193; 113 C.C.C.(3d) 321; 5 C.R.(5th) 1, refd to. [para. 64].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1; 112 C.C.C.(3d) 193, refd to. [para. 65].

R. v. Godwin (L.R.), [2003] A.R. Uned. 463; 2003 ABPC 142, refd to. [para. 67].

R. v. Lauten (J.I.), [1998] B.C.T.C. Uned. D71 (S.C.), refd to. [para. 67].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 53 C.C.C.(3d) 316; 75 C.R.(3d) 1, refd to. [para. 68].

R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 122 C.C.C.(3d) 481 (C.A.), refd to. [para. 72].

R. v. Rochat (R.R.) (1999), 241 A.R. 201 (Prov. Ct.), refd to. [para. 72].

R. v. T.A.V. (2001), 299 A.R. 96; 266 W.A.C. 96 (C.A.), refd to. [para. 72].

R. v. Najdovski (I.B.), [2004] A.R. Uned. 601; 2004 ABPC 167, refd to. [para. 75].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 174 C.C.C.(3d) 97; 2003 SCC 30, refd to. [para. 79].

R. v. Davies (D.M.R.) (1998), 109 B.C.A.C. 125; 177 W.A.C. 125; 127 C.C.C.(3d) 97 (Yuk. Terr. C.A.), leave to appeal denied (1999), 236 N.R. 194; 127 B.C.A.C. 27; 207 W.A.C. 27 (S.C.C.), refd to. [para. 82].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81; 118 C.C.C.(3d) 405; 151 D.L.R.(4th) 443, refd to. [para. 95].

R. v. Ferris (T.L.), [1998] 9 W.W.R. 14; 108 B.C.A.C. 244; 176 W.A.C. 244; 126 C.C.C.(3d) 298; 16 C.R.(5th) 287; 162 D.L.R.(4th) 87 (C.A.), refd to. [para. 98].

R. v. Davis (B.J.) (2004), 346 A.R. 141; 320 W.A.C. 141; 2004 ABCA 33, refd to. [para. 98].

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 261 A.R. 201; 225 W.A.C. 201; 144 C.C.C.(3d) 385; 2000 SCC 31, refd to. [para. 107].

R. v. D.P., [2004] O.J. No. 3396 (Sup. Ct.), refd to. [para. 107].

R. v. Spitale, [1996] B.C.J. No. 1570 (Prov. Ct.), refd to. [para. 107].

R. v. Brooks (T.L.) (2003), 176 O.A.C. 337 (C.A.), refd to. [para. 107].

R. v. Nolan (S.), [2001] O.T.C. 869 (Sup. Ct.), refd to. [para. 109].

R. v. T.A.V. (2001), 299 A.R. 96; 266 W.A.C. 96; 2001 ABCA 316, refd to. [para. 113].

R. v. Bryden (M.J.) (2001), 196 N.S.R.(2d) 18; 613 A.P.R. 18; 2001 NSPC 16, refd to. [para. 113].

R. v. Felawka, [1993] 4 S.C.R. 199; 159 N.R. 50; 33 B.C.A.C. 241; 54 W.A.C. 241; 85 C.C.C.(3d) 248, refd to. [para. 114].

Counsel:

Robert Fata (Attorney General of Alberta), for the Crown;

Chris Millsap (Beresh DePoe Cunningham), for the accused.

This case was heard on January 28 and February 23, 2005, before Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on May 6, 2005.