R. v. Dykhuizen (J.D.), 2007 ABQB 534

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 27, 2007
• Citations: 2007 ABQB 534;(2007), 424 A.R. 325 (QB)

R. v. Dykhuizen (J.D.) (2007), 424 A.R. 325 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. SE.020

Her Majesty the Queen (Crown) v. Jeffrey Douglas Dykhuizen (accused)

(060540051Q1; 2007 ABQB 534)

Indexed As: R. v. Dykhuizen (J.D.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

August 28, 2007.

Summary:

The accused was charged with driving while disqualified and possession of both cocaine and methamphetamine for the purpose of trafficking. A voir dire was held to determine whether the accused's ss. 8 and 9 Charter rights had been violated during a search of the accused's vehicle.

The Alberta Court of Queen's Bench, in a decision reported at 427 A.R. 326, held that the accused's s. 8 Charter rights had been violated.

The Alberta Court of Queen's Bench ordered that the evidence seized during the search be admitted into evidence.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The police were investigating an alleged abduction - As part of this investigation, they had a building under surveillance - An officer saw an individual leave the building, get into his car, and drive off - The officer instructed another member of the tactical team to follow the vehicle - The officer was later instructed to stop the car and identify the driver (the accused) - When his car was stopped, the accused was unable to produce a valid driver's licence - The accused was arrested for driving while disqualified - The officer decided to search the vehicle - He said that he was looking for weapons as part of the abduction investigation and that the search was incidental to arrest - He performed the search without the accused's consent, and without a warrant - Two baggies containing drugs were found under the front seat - The accused was then charged with possession of both cocaine and methamphetamine for the purpose of trafficking - The Alberta Court of Queen's Bench held that the accused's s. 8 Charter rights against unreasonable search and seizure had been violated - The court ordered that the evidence be admitted - The evidence was non-conscriptive - The breach was not mitigated by inexperience - It was not amplified by other breaches - There was a lower expectation of privacy involved in vehicle searches and the discovery of the baggies was inevitable - The search was not "rooted in bad faith" - While it was not merely technical or minor it was also not deliberate, wilful or flagrant - It was, however, not insignificant - Finally, the administration of justice would not be brought into disrepute if the baggies and their contents were admitted into evidence.

Cases Noticed:

R. v. Rutten (G.) (2006), 279 Sask.R. 201; 372 W.A.C. 201; 138 C.R.R.(2d) 310; 2006 SKCA 17, refd to. [para. 12].

R. v. Youn (S.W.) (2005), 388 A.R. 339; 2005 ABPC 198, dist. [para. 13].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 15].

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. 16].

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. 17].

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, 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, refd to. [para. 19].

R. v. Groat (R.) (2006), 221 B.C.A.C. 240; 364 W.A.C. 240; 205 C.C.C.(3d) 542; 2006 BCCA 27, refd to. [para. 20].

R. v. Bohn (J.A.) (2000), 136 B.C.A.C. 263; 222 W.A.C. 263; 145 C.C.C.(3d) 320; 2000 BCCA 239, refd to. [para. 20].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351, refd to. [para. 21].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 21].

R. v. Luc (S.Q.) (2004), 254 Sask.R. 98; 336 W.A.C. 98; 188 C.C.C.(3d) 436; 2004 SKCA 117, refd to. [para. 22].

R. v. Nicolosi (J.) (1998), 110 O.A.C. 189; 40 O.R.(3d) 417; 127 C.C.C.(3d) 176 (C.A.), refd to. [para. 23].

R. v. Logan (F.J.) et al. (2005), 388 A.R. 255; 2005 ABQB 321, dist. [para. 24].

R. v. Nguyen-Tran (N.T.) (2006), 410 A.R. 39; 2006 ABQB 677, refd to. [para. 25].

R. v. Chaisson (D.), [2006] 1 S.C.R. 415; 347 N.R. 282; 256 Nfld. & P.E.I.R. 181; 773 A.P.R. 181, refd to. [para. 31].

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, refd to. [para. 32].

R. v. Kang-Brown (G.) (2005), 386 A.R. 48; 2005 ABQB 608, refd to. [para. 33].

R. v. Carlson (T.T.) (2002), 313 A.R. 319; 2002 ABQB 464, dist. [para. 34].

R. v. Arabi (M.) (2007), 428 A.R. 68; 2007 ABQB 303, dist. [para. 35].

Counsel:

Gregory A. Rice, for the Crown;

R. Douglas Vigen, for the accused.

This case was heard on July 27, 2007, by Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on August 28, 2007.