R. v. Chambers (R.) et al., 2007 ABQB 712

• Judge: Binder, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 22, 2007
• Citations: 2007 ABQB 712;(2007), 442 A.R. 89 (QB)

R. v. Chambers (R.) (2007), 442 A.R. 89 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. DE.015

Her Majesty the Queen (Crown) v. Ryan Chambers, Michael Kane Thomas Barabash, and Melissa Lee Prochinsky (accused)

(060651619Q1; 2007 ABQB 712)

Indexed As: R. v. Chambers (R.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Binder, J.

November 22, 2007.

Summary:

The three accused were charged with possession of cocaine for the purposes of trafficking. The accused applied to exclude the evidence of the cocaine seized by the police, asserting a breach of their ss. 8, 9, and 10(b) Charter rights.

The Alberta Court of Queen's Bench dismissed the application.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police - A police officer (Sgt. Berzinski), who had extensive experience in gang and drug trafficking investigations, was conducting surveillance in an area frequented by drug traffickers - He observed a silver Acura park near a basketball court and two individuals (Chambers and Prochinsky) get out and play basketball - Sgt. Berzinski was relieved of his post by Cst. Jones, who had considerable prior experience in drug trafficking investigations - Sgt. Berzinski left and observed an individual (Barabash) walking towards the basketball court swinging a white grocery type plastic bag in his hand - Cst. Jones later witnessed Barabash at the basketball court - Barabash, Chambers and Prochinsky went to the Acura - Barabash placed the white plastic bag on the roof - Chambers immediately retrieved the bag and entered the driver's side of the car - Prochinsky at the same time entered the passenger's side of the car and Barabash came around the back of the car carrying a smaller black bag - This series of actions were completed in a matter of seconds - The Acura made an accelerated exit - Barabash walked away - Cst. Jones pursued the Acura and broadcasted a brief description of what had gone on and of Barabash and requested assistance - Sgt. Berzinski heard the broadcast and recognized the description of Barabash as the person he had just seen - Sgt. Berzinski soon passed Barabash, stopped him, found him unduly nervous and pale and arrested him - Sgt. Berzinski searched the black bag and found cocaine and a small stack of money - Barabash was taken to the police station, stripped-searched and turned over to another officer - Barabash applied to exclude the evidence of the cocaine seized by the police, asserting a breach of, inter alia, his s. 8 Charter rights - The Alberta Court of Queen's Bench dismissed the application - Viewed objectively, it was reasonable for Sgt. Berzinski to form the belief, based on what he had been told by Cst. Jones, that there had been an exchange of drugs - The search of the black bag was lawful and the admissibility of the fruits of the search were not barred by virtue of any breach of the Charter - Alternatively, the court would not exclude the evidence under s. 24(2) - The search of the bag was only moderately intrusive - Exclusion of the evidence would bring the administration of justice into disrepute.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - A police officer (Sgt. Berzinski), who had extensive experience in gang and drug trafficking investigations, was conducting surveillance in an area frequented by drug traffickers - He observed a silver Acura park near a basketball court and two individuals (Chambers and Prochinsky) get out and play basketball - Sgt. Berzinski was relieved of his post by Cst. Jones, who had considerable prior experience in drug trafficking investigations - Sgt. Berzinski left and observed an individual (Barabash) walking towards the basketball swinging a white grocery type plastic bag in his hand - Cst. Jones later witnessed Barabash at the basketball court - Barabash, Chambers and Prochinsky went to the Acura - Barabash placed the white plastic bag on the roof - It was immediately retrieved by Chambers who entered the driver's side of the Acura - Prochinsky at the same time entered the passenger side of the Acura and Barabash came around the back of the Acura carrying a smaller black bag - This series of actions were completed in a matter of seconds - The Acura made an accelerated exit - Cst. Jones followed the Acura to a residence and arrested Chambers and Prochinsky outside the car for trafficking - Once back-up arrived, he searched the car and found a white grocery bag - Inside he found cocaine - Chambers and Prochinsky applied to exclude the evidence of the cocaine seized by the police, asserting a breach of, inter alia, their s. 8 Charter rights - The Alberta Court of Queen's Bench dismissed the application - Viewed objectively, it was reasonable for Cst. Jones to form the belief that there had been an exchange of drugs given all of the circumstances and in particular the fact that the transaction was concluded in seconds with no discernable interaction - The arrests and search of the Acura were lawful and the admissibility of the fruits of that search were not barred by virtue of any breach of the Charter - Alternatively, the court would not exclude the evidence under s. 24(2) - Cst. Jones' conduct was not wilful, deliberate and flagrant - Search of the vehicle was properly incidental to the arrest - Exclusion of the evidence would bring the administration of justice into disrepute.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1524 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See first Civil Rights - Topic 1646 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1524 and first Civil Rights - Topic 1646 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1524 and first Civil Rights - Topic 1646 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1524 and first Civil Rights - Topic 1646 ].

Cases Noticed:

R. v. Campbell (P.), [2002] B.C.T.C. 553; 2002 BCSC 553, refd to. [para. 17].

R. v. S.M., 2006 ONCJ 348, refd to. [para. 17].

R. v. Arabi (M.) (2007), 428 A.R. 68; 2007 ABQB 303, refd to. [para. 17].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201, refd to. [para. 17].

R. v. Barrett (A.C.) et al. (2007), 415 A.R. 254; 2007 ABQB 174, refd to. [para. 18].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 18].

R. v. Logan (F.J.) et al. (2005), 388 A.R. 255; 2005 ABQB 321, refd to. [para. 19].

R. v. Batzer (N.) (2005), 202 O.A.C. 87; 200 C.C.C.(3d) 330 (C.A.), refd to. [para. 19].

R. v. Bulmer (D.L.) (2005), 269 Sask.R. 137; 357 W.A.C. 137; 2005 SKCA 90, refd to. [para. 19].

R. v. Calderon, [2004] O.J. No. 3474 (C.A.), refd to. [para. 19].

R. v. Johnson (E.) (2000), 138 B.C.A.C. 190; 226 W.A.C. 190; 32 C.R.(5th) 236 (C.A.), refd to. [para. 19].

R. v. Perello (E.F.) (2005), 257 Sask.R. 46; 342 W.A.C. 46; 27 C.R.(6th) 19 (C.A.), refd to. [para. 19].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 19].

R. v. Duncan (W.S.) (2004), 187 Man.R.(2d) 212; 330 W.A.C. 212; 188 C.C.C.(3d) 17 (C.A.), refd to. [para. 19].

R. v. Rajaratnam (M.) (2006), 397 A.R. 126; 384 W.A.C. 126; 2006 ABCA 333, refd to. [para. 20].

R. v. Chin (L.A.) (2003), 345 A.R. 157; 2003 ABPC 118, refd to. [para. 20].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 22].

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, refd to. [para. 22].

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, refd to. [para. 28].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 28].

R. v. McClelland (B.L.) (1995), 165 A.R. 332; 89 W.A.C. 332 (C.A.), refd to. [para. 28].

R. v. Lal (S.N.) (1998), 113 B.C.A.C. 47; 184 W.A.C. 47; 130 C.C.C.(3d) 413 (C.A.), leave to appeal refused (1999), 239 N.R. 400; 181 B.C.A.C. 320; 298 W.A.C. 320 (S.C.C.), refd to. [para. 28].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 44].

Counsel:

Carrie Sharpe, for Her Majesty the Queen;

Andrew Fong, for the accused, Ryan Chambers and Melissa Lee Prochinsky;

Bonnie Parker, for the accused, Michael Kane Thomas Barabash.

This application was heard on November 20-21, 2007, by Binder, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on November 22, 2007.