R. v. Dykhuizen (J.D.), (2007) 427 A.R. 326 (QB)

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 03, 2007
• Citations: (2007), 427 A.R. 326 (QB);2007 ABQB 489

R. v. Dykhuizen (J.D.) (2007), 427 A.R. 326 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. AU.022

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

(060540051Q1; 2007 ABQB 489)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

July 24, 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 held that the accused's s. 8 Charter rights had been violated.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - 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) - He did so - 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 reasons given for the search of the vehicle were not reasonable - There was no reasonable concern for officer safety because the accused was in handcuffs and in the custody of another officer - There was no reasonable apprehension that the vehicle or its contents would disappear - The search had nothing to do with the accused's arrest for driving while disqualified, and the officer had insufficient knowledge of the abduction investigation to justify a warrantless search of the vehicle - See paragraphs 21 to 41 and 52 to 58.

Civil Rights - Topic 1651

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

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - 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) - He did so - 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. 9 Charter right to be free of arbitrary detention had not been violated - The accused's stopping and detention were reasonable and justifiable based on the ability of the police to determine whether or not he was involved in criminal activity being investigated by them - See paragraphs 42 to 51.

Police - Topic 3185

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

Cases Noticed:

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. 25].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 25].

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. 25].

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. 29].

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; 185 C.C.C.(3d) 308, refd to. [para. 29].

R. v. Calderon (2004), 188 C.C.C.(3d) 481 (Ont. C.A.), refd to. [para. 29].

R. v. Clayton (W.) et al. (2007), 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [para. 30].

R. v. Logan (F.J.) et al. (2005), 388 A.R. 255; 2005 ABQB 321, refd to. [para. 36].

R. v. Cooper (M.A.) (2005), 231 N.S.R.(2d) 156; 733 A.P.R. 156; 2005 NSCA 47, refd to. [para. 36].

R. v. Nguyen (P.D.) (2004), 205 B.C.A.C. 4; 337 W.A.C. 4; 2004 BCCA 546, refd to. [para. 43].

R. v. Carlson (T.T.) (2002), 313 A.R. 319 (Q.B.), refd to. [para. 47].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 1993 CarswellOnt 83 (C.A.), refd to. [para. 49].

R. v. Arabi (M.) (2007) 428 A.R. 68; 2007 ABQB 303, refd to. [para. 49].

R. v. Byfield (C.A.) (2005), 194 O.A.C. 98 (C.A.), refd to. [para. 50].

R. v. Peters (A.D.) (2007), 409 A.R. 36; 402 W.A.C. 36; 2007 ABCA 181, refd to. [para. 54].

R. v. Kang-Brown (G.) (2006), 391 A.R. 218; 377 W.A.C. 218; 2006 ABCA 199, refd to. [para. 55].

Counsel:

Gregory A. Rice (Justice Canada), for the Crown;

R. Douglas Vigen, for the accused.

This voir dire was heard on May 3, 2007, by Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on July 24, 2007.