R. v. Delaa (W.), 2009 ABCA 179

• Judge: Paperny, Ritter and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 06, 2009
• Citations: 2009 ABCA 179;(2009), 457 A.R. 118 (CA)

R. v. Delaa (W.) (2009), 457 A.R. 118 (CA);

      457 W.A.C. 118

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. MY.040

Her Majesty the Queen (respondent) v. Wafid Delaa (appellant)

(0701-0312-A; 2009 ABCA 179)

Indexed As: R. v. Delaa (W.)

Alberta Court of Appeal

Paperny, Ritter and Rowbotham, JJ.A.

May 11, 2009.

Summary:

The accused appealed his convictions for two sexual assaults. He argued that the act of spitting his chewing gum into a Dixie cup during an undercover police operation to obtain his DNA evidence constituted an illegal search violating his s. 8 Charter rights and that the evidence obtained as a result should not have been admitted at trial. The trial judge found the accused discarded the gum as garbage, and thus there was no reasonable expectation of privacy.

The Alberta Court of Appeal dismissed the appeal. The trial judge made no reversible error in concluding that there was no Charter breach.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

This case was originally indexed as R. v. W.D. and the appellant was referred to by initials. However, the court issued a corrigendum referring to the appellant by his name and changing the indexed as name accordingly.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The police suspected that the accused was responsible for two violent sexual assaults - They believed that he was leaving the province in the near future - An officer posed as a potential purchaser of the accused's truck - During a test drive they stopped at a gas station to check the truck's fluids - A second officer approached and asked them to participate in a gum survey - The accused agreed - He sampled four pieces of gum, then spit each out into Dixie cups provided by the second officer ostensibly to avoid littering - The accused's DNA matched the suspect's DNA - The accused appealed his convictions for sexual assault - He argued that the act of spitting his chewing gum into a Dixie cup during the undercover operation was an illegal search violating his s. 8 Charter rights - He alleged that there was no abandonment here because the action of the undercover officer in holding out a Dixie cup for the gum amounted to state intervention or compulsion - The trial judge found the accused discarded the gum as garbage, and thus there was no reasonable expectation of privacy - The Alberta Court of Appeal dismissed the appeal - Spitting out the gum in the circumstances was, on an objectively reasonable assessment, behaviour entirely consistent with abandonment - This was so regardless of where he spit it out - It was the act of spitting it out that evidenced what could only be seen as an unequivocal intention to dispose of it - He was clearly finished with it and had no intention of preserving it - The act of the officer holding out the Dixie cup did not cause the accused to discard the gum - It merely provided an opportunity for the police to collect it - The accused's actions were voluntary - The police technique used was not intrusive and was not objectively unreasonable.

Civil Rights - Topic 1646

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

Police - Topic 3106

Powers - Investigation - Stratagem and subterfuge (incl. trickery) - [See Civil Rights - Topic 1508 ].

Cases Noticed:

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 10].

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; 113 C.C.C.(3d) 321, refd to. [para. 10].

R. v. Patrick (R.S.) (2009), 454 A.R. 1; 387 N.R. 44; 2009 SCC 17, refd to. [para. 14].

R. v. Ngo (D.T.) (2003), 327 A.R. 320; 296 W.A.C. 320; 2003 ABCA 121, refd to. [para. 14].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 26 O.R.(3d) 736, refd to. [para. 15].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104; 12 Alta. L.R.(3d) 305, refd to. [para. 15].

R. v. Miller (1991), 50 O.A.C. 282; 68 C.C.C.(3d) 517 (C.A.), refd to. [para. 21].

R. v. Grandinetti (C.H.) (2003), 339 A.R. 52; 312 W.A.C. 52; 2003 ABCA 307, refd to. [para. 21].

R. v. Van Nguyen (L.) (2002), 154 O.A.C. 108; 57 O.R.(3d) 589 (C.A.), refd to. [para. 21].

R. v. Nguyen - see R. v. Van Nguyen (L.).

Counsel:

J.A. Antonio, for the respondent;

K. Molle, for the appellant.

This appeal was heard on May 6, 2009, by Paperny, Ritter and Rowbotham, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was delivered by the Court on May 11, 2009. A corrigendum was issued on May 13, 2009.