R. v. Croft (J.C.), 2014 ABQB 207

• Judge: Burrows, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 27, 2014
• Citations: 2014 ABQB 207;(2014), 608 A.R. 15 (QB)

R. v. Croft (J.C.) (2014), 608 A.R. 15 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. SE.096

Her Majesty the Queen v. Jason Clarke Croft

Her Majesty the Queen v. Jason Clarke Croft and Wassim Rahime

Her Majesty the Queen v. Jonathan Mark Rivera Aldaba, Jason Clarke Croft and Steven Daniel Whipple (accused)

(121085393Q1; 121085591Q1; 121086227Q1; 2014 ABQB 207)

Indexed As: R. v. Croft (J.C.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Burrows, J.

March 27, 2014.

Summary:

The four accused were charged with drug offences. Two of the accused, Whipple and Rahime, were arrested separately in both August 2010 and April 2011. They each alleged that the police violated several of their Charter rights in the course of those arrests. Whipple also alleged that his Charter rights were violated when he was visited at his home in March 2011 by an officer who was engaged in the RCMP investigation which resulted in the charges.

The Alberta Court of Queen's Bench assessed the various allegations of Charter violations.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The Alberta Court of Queen's Bench ruled that the accused Whipple's Charter s. 8 right to be secure against unreasonable search or seizure was violated because the police search of his vehicle was conducted pursuant to an invalid General Warrant - The police officers searched the accused's vehicle on the basis that the General Warrant authorized them to do so - The evidence did not support either the conclusion that the police subjectively believed they had independent grounds for the search, or that objectively they had such grounds - Having held that the General Warrant was invalid, it followed, therefore, that the search conducted pursuant to it was not validly authorized - It was therefore unreasonable - See paragraphs 39 to 41.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Cst. Ganes sought to make contact with the accused Whipple for the purpose of serving him with notice under s. 490(2)(a) of the Criminal Code, that the police intended to apply for an extension of time during which the items seized from the accused could be detained - The accused submitted that Cst. Ganes violated his Charter s. 8 right, by entering the accused's backyard to gather evidence (to engage the accused in conversation so as to become able to identify his voice on the recordings of intercepted private communications), without judicial authorization - The Alberta Court of Queen's Bench held that the accused's Charter s. 8 rights were violated - Cst. Ganes candidly acknowledged that one of his two purposes in making contact with the accused at his residence was to gather voice identification evidence - Because he pursued that intention at the accused's residence, the conversation which might otherwise have been unobjectionable, was instead an unreasonable search - See paragraphs 59 to 71.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused Whipple was charged with drug offences - He submitted that the police breached his Charter s. 8 right to be secure against unreasonable search and seizure by going into his backyard and effecting his arrest there - The police exceeded the limits of the implied invitation to knock, he submitted, by going beyond the front door and into his backyard - The Alberta Court of Queen's Bench rejected that submission - It was clear that the accused's invitation to knock extended to his back door which could only be reached by entering the backyard, on the basis of the police officer's experience at the same residence six weeks earlier - "[I]t is in order for the police to go to a person's front door for the purpose of arresting the person. They enter the property at least that far on the basis of the implied invitation to knock. Where the police reasonably believe that the resident actually expects (or at least is content for) people wishing to communicate with him to go to the back door and to pass through the backyard in order to do so, the invitation to knock extends to the back door." - See paragraphs 98 to 105.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused Whipple was arrested in his backyard - A "Feeney warrant" was required (Criminal Code, s. 529.1) in order to authorize a police officer to enter a dwelling-house "for the purpose of arresting or apprehending a person" - The evidence of the four officers diverged as to how many of them entered the house and as to the exact reason they did so - The Alberta Court of Queen's Bench held that the arrest of the accused was complete before any police officer entered his house - The reason some or all of the officers entered the accused's house after he was arrested was in order to maintain custody of him and to ensure officer safety - The accused must be taken to have consented to the officers' entering his house - No breach of his Charter s. 8 rights was occasioned by them doing so - The Court noted that no evidence was gathered as a result of the entry into the house - See paragraphs 106 to 108.

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - Cst. Kuca had detected (using radar) that the accused Whipple was speeding, and told Whipple that upon his being stopped - Whipple was also promptly told that Cst. Kuca suspected that there were drugs in the vehicle and intended to conduct a search - Whipple submitted that his Charter s. 10(a) rights were violated because he was not told that he was detained pursuant to the General Warrant - The Alberta Court of Queen's Bench held that there was no breach of Whipple's Charter s. 10(a) rights - "Charter s. 10(a) required that he be told the reasons for his detention. The General Warrant was not a reason for his detention. It purported to authorize his detention because he was believed to be involved in transporting drugs. In my view there is a clear distinction between the reasons for detention and the authorization for detention. The authorization is not the reason. Charter s. 10(a) created no requirement that Mr. Whipple be told that his detention was pursuant to a General Warrant. ... Charter s. 10(a) required that Mr. Whipple be promptly told of the reasons for his detention. In my view he was." - See paragraphs 30 to 38.

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - The Alberta Court of Queen's Bench found that the accused Rahime's Charter s. 10(a) right to be informed of the reasons for his detention was violated, not suspended - He was detained because it was suspected that he was involved in drug trafficking - On the evidence, he was informed that the reason for his detention was the possible violation of the parole condition that he not possess cell phones - "The suspension of a Charter right in order to protect the unlawful interception of the private communications of the person whose Charter right is suspended cannot be justified. ... [A] distinction should be made between a suspension of a Charter right in order not to prejudice the imminent arrest of other suspects and to preserve the safety of police officers and a suspension of a Charter right to preserve the possible gathering of further evidence through a wiretap. In my view the former holds a vital level of urgency not present in the latter. Third, there is a clear distinction between the suspension of a Charter right for a few hours and a suspension for eight and a half months." - See paragraphs 166 to 174.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The Alberta Court of Queen's Bench held that the accused Whipple's Charter s. 9 rights were violated because, having been detained pursuant to an invalid General Warrant, his detention was arbitrary - Though the fact the accused was speeding provided the reason to stop him, it was not the reason for detaining him beyond the first few minutes after he was stopped - From the moment he was asked to exit his vehicle, and at least until the drugs were found, the reason the accused was detained was because the General Warrant authorized it - Having held that the General Warrant was invalid, it followed, therefore, that the detention of the accused which was undertaken pursuant to the General Warrant was not validly authorized - It was therefore arbitrary at least until the search was completed and the drugs were found - The accused was, for at least a short time (about 15 minutes), arbitrarily detained - See paragraphs 42 to 45.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused Rahime was informed of his right to counsel shortly after he was put in the back of the police vehicle - He was not advised of the true reasons for his detention, resulting in a violation of his Charter s. 10(a) right - The Alberta Court of Queen's Bench held that not advising the accused of the reasons for his detention resulted in a violation of his Charter s. 10(b) rights as well - "Charter s. 10(b) builds on Charter s. 10(a). If a person is not afforded his Charter s. 10(a) right, he cannot effectively assess whether or not to exercise his Charter s. 10(b) right to consult with counsel." - See paragraph 175.

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - The accused Whipple was told his Charter s. 10(b) rights three times at the roadside: (1) immediately after he was told he was detained because the police officer suspected there were drugs in his vehicle; (2) immediately after the sniffer dog indicated there were drugs in the vehicle and the accused was arrested for possession of a controlled substance; and (3) immediately after the officer discovered the significant quantity of methamphetamine in the trunk of the accused's car and he was rearrested for possession of a controlled substance for the purpose of trafficking - The Alberta Court of Queen's Bench held that the evidence established that the accused was advised of his right to counsel immediately after each increase in his jeopardy - See paragraphs 46 to 58.

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - The accused Whipple alleged that his Charter s. 10(b) rights were breached when the police proceeded to interview him when he had not completed his consultation with counsel, had re-asserted his right to counsel, and said he did not understand why he was being charged when he had been told that the incident which was the basis of the charges would not result in charges - The Alberta Court of Queen's Bench held that the alleged breaches had not been proved - There was no failure on the part of the police to satisfy the implementational aspect of their duty in respect of the accused's right to counsel - The police were entitled to assume that the accused was satisfied with his exercised right to counsel, and they were entitled to commence the investigative interview - Nor had the accused proved that he had not completed the consultation with counsel; that he in fact re-asserted a right to counsel; or that the circumstances in which he would have the right to do so existed - The fact that the accused expressed a lack of understanding as to why he was being charged did not give rise to an obligation to afford him a further opportunity to contact counsel - See paragraphs 144 to 149.

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - The Alberta Court of Queen's Bench found that the circumstances in which a Prosper warning must be given did not exist here - "A Prosper warning must be given where a detainee has diligently but unsuccessfully attempted to contact counsel and decides to participate in an investigative interview notwithstanding. The Prosper warning informs the detainee that their unsuccessful attempts to reach counsel did not exhaust their [Charter] s. 10(b) rights and ensures that their decision to participate in the interview does not derive from a misconception as to their rights, but has been made with full information. Here I find that [the accused] had successfully reached the counsel of his choice and had had the consultation which Charter s. 10(b) guarantees to him." - See paragraph 150.

Civil Rights - Topic 4615

Right to counsel - General - Instructing counsel - Right to privacy - The accused Rahime alleged that his Charter s. 10(b) rights were breached when he wasn't afforded privacy for the exercise of those rights - The Alberta Court of Queen's Bench held that no breach had been established - The evidence did not establish that any of the police officers heard any portion of Rahime's conversation when he was on the phone with his lawyer at the detachment - The evidence did establish that an officer interrupted that phone call after it had gone on for about a half hour - Rahime became concerned that his conversation was not private, terminated it, insisted on an opportunity to have a face to face conversation with his lawyer and was accommodated in that regard - However it had not been proved that any portion of either his telephone or face to face conversations with his lawyer were not entirely private - See paragraphs 193 and 194.

Criminal Law - Topic 3046

Special powers - Search warrants - Validity of - General - The General Warrant, issued pursuant to s. 487.01(c) of the Criminal Code, provided in part that "The occupants of the vehicle, including Steven WHIPPLE, will not be informed of the actual reason for the traffic stop." - The investigative purpose was to gather evidence through the detention and search of Whipple without disclosing to him and to others thought to be engaged in criminal activity with him, that their private communications were subject to interception - Whipple submitted that the General Warrant was invalid because it did not contain a provision requiring that he be given notice that the search had been conducted pursuant to a General Warrant within a reasonable time after the execution of the warrant - The Alberta Court of Queen's Bench rejected that submission - "The notice that is required under [Criminal Code] s. 487.01(5.1) is notice that a covert entry and search was conducted. The provision does not require that there be notice that the covert entry and search was conducted pursuant to a General Warrant . [Criminal Code] s. 196 similarly requires that a person whose private communications have been intercepted pursuant to an authorization be notified in writing that he was the object of an interception. It is not required that he be given any particulars of the authorization" - See paragraphs 26 to 29.

Criminal Law - Topic 3048

Special powers - Search warrants - Validity of - Severability of partially defective warrant or information - The General Warrant, issued pursuant to s. 487.01(c) of the Criminal Code, provided in part that "The occupants of the vehicle, including Steven WHIPPLE, will not be informed of the actual reason for the traffic stop." - The investigative purpose was to gather evidence through the detention and search of Whipple without disclosing to him and to others thought to be engaged in criminal activity with him, that their private communications were subject to interception - The Alberta Court of Queen's Bench held that the General Warrant was invalid for purporting to authorize the police to ignore Whipple's Charter s. 10(a) right "on arrest or detention to be informed promptly of the reasons therefore", and thus did not provide authority for the search of Whipple's vehicle - The Court rejected the Crown's submission that the invalid feature of the General Warrant could and should be severed from the General Warrant - "[B]y applying for a General Warrant the police wove the 'bad' part of the 'activities' together with the 'good' parts, so those parts became inseparable from each other." - See paragraphs 4 to 24.

Narcotic Control - Topic 2068

Search and seizure - Warrantless searches - "Knock on" technique - [See third Civil Rights - Topic 1646 ].

Cases Noticed:

R. v. Grabowski, [1985] 2 S.C.R. 434; 63 N.R. 32, refd to. [para. 19].

Zaduk v. R. (1978), 38 C.C.C.(2d) 349 (Ont. H.C.), refd to. [para. 28].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 67].

R. v. Baird (D.G.) (1990), 105 A.R. 265 (C.A.), refd to. [para. 70].

R. v. Durate - see R. v. Sanelli, Duarte and Fasciano.

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 70].

R. v. Skerratt, [2003] B.C.J. No. 3014 (Prov. Ct.), refd to. [para. 102].

R. v. Alcantara (J.R.) et al. (2012), 546 A.R. 1; 2012 ABQB 341, refd to. [para. 131].

R. v. Oliynyk (D.J.) et al. (2008), 253 B.C.A.C. 253; 425 W.A.C. 253; 2008 BCCA 132, dist. [para. 136].

R. v. Ngo (D.T.) (2003), 327 A.R. 320; 296 W.A.C. 320; 2003 ABCA 121, refd to. [para. 139].

R. v. Rendon, [1997] O.J. No. 5505 (Gen. Div.), refd to. [para. 139].

R v. James, [2001] J.Q. No. 5232 (C.A.), refd to. [para. 168].

Counsel:

Dennis Hrabcak and Dawn MacDonald, for the Crown;

Simon Renouf, Q.C., Julia Renouf and Adam Badari, for Steven Daniel Whipple;

Clayton Rice and Tara Hayes, for Jonathan Mark Rivera Aldaba;

Gregory Lazin, for Jason Clarke Croft;

Aleksandra Simiæ and Alexandra Seaman, for Wassim Rahime.

These pre-trial motions were heard on February 14 and March 5, 10-11, and 17-21, 2014, before Burrows, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton. The Court delivered the following ruling, dated at Edmonton, Alberta, on March 27, 2014.