R. v. Geroux (S.M.), (2008) 441 A.R. 274 (PC)

• Judge: Semenuk, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: February 13, 2008
• Citations: (2008), 441 A.R. 274 (PC);2008 ABPC 49

R. v. Geroux (S.M.) (2008), 441 A.R. 274 (PC)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AP.114

Her Majesty The Queen v. Scott Matthew Geroux (061029252P101001; 2008 ABPC 49)

Indexed As: R. v. Geroux (S.M.)

Alberta Provincial Court

Semenuk, P.C.J.

February 13, 2008.

Summary:

The accused was charged with possession of a controlled substance (cannabis marijuana) for the purpose of trafficking. The accused submitted that the police lacked reasonable grounds to arrest him, that the search of his suitcase incidental to the arrest violated s. 8 of the Charter and that his s. 10(b) Charter right to counsel was denied before and after he was arrested. Pursuant to s. 24(2) of the Charter, the accused sought the exclusion of inculpatory statements and the evidence obtained from the search.

The Alberta Provincial Court acquitted the accused. The accused's s. 10(b) right to counsel and his s. 8 right to be secure from an unreasonable search and seizure were denied. Both the inculpatory statements made after the accused's arrest and the cannabis marijuana found in the search were excluded from evidence under s. 24(2) of the Charter.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Police - Topic 3063 ].

Civil Rights - Topic 1653.3

Property - Search and seizure - Warrantless search and seizure - Bus terminal - [See Police - Topic 3063 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - An R.C.M.P. officer working at a Calgary bus terminal as part of the Jetway investigation (profiling drug couriers) identified the accused as a potential drug courier based on his body language (eye contact and signs of nervousness) - The officer engaged the accused in conversation to elicit information to confirm his suspicions - The accused was told that he was free to go at any time - The accused cooperated, identifying himself and describing his travel from Toronto to Vancouver by airplane, then his return by bus - The accused consented to the officer searching the bag he had with him - Nothing was found - A CPIC check disclosed no criminal record, outstanding warrants or drug history - The accused declined to consent to the officer searching his other bag, which he described as a green duffel bag, but which was in fact a green suitcase - The officer testified that he believed he had grounds to arrest the accused at that point, but chose not to until he searched his suitcase - As the accused's bus was leaving shortly, the officer left the accused to search the suitcase before it was loaded on the bus - Cannabis marijuana was found - The officer returned and arrested the accused outside one of the terminal exits - He advised him of his right to counsel, but did not ask him if he wished to call a lawyer and did not advise him of his right to remain silent - The Alberta Provincial Court held that the accused was not detained at the time he was questioned prior to his arrest - He was not detained until arrested after his suitcase was searched - Accordingly, the accused's s. 10(b) Charter right to counsel was not denied prior to his arrest and any inculpatory statements made up to that time were admissible - However, statements made after the arrest were excluded under s. 24(2) of the Charter, as the Crown conceded that the accused's right to counsel was violated where he was not asked if he wished to call a lawyer, was not advised of the system of free legal advice or the means by which that advice could be obtained, and was also not advised of his right to remain silent - See paragraphs 97 to 114.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - [See Civil Rights - Topic 3604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 3604 and Police - Topic 3063 ].

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Police - Topic 3063 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - An R.C.M.P. officer working at a Calgary bus terminal as part of the Jetway investigation (profiling drug couriers) identified the accused as a potential drug courier based on his body language (eye contact and signs of nervousness) - The officer engaged the accused in conversation to elicit information to confirm his suspicions - The accused was told that he was free to go at any time - The accused cooperated, identifying himself and describing his travel from Toronto to Vancouver by airplane, then his return by bus - The accused consented to the officer searching the bag he had with him - Nothing was found - A CPIC check disclosed no criminal record, outstanding warrants or drug history - The accused declined to consent to the officer searching his other bag, which he described as a green duffel bag, but which was in fact a green suitcase - The officer testified that he believed he had grounds to arrest the accused at that point, but chose not to until he searched his suitcase - As the accused's bus was leaving shortly, the officer left the accused to search the suitcase before it was loaded on the bus - Cannabis marijuana was found - The officer returned - The accused initially denied the suitcase was his and lied about who had packed it - The officer arrested the accused outside one of the terminal exits - The Alberta Provincial Court held that the officer's "suspicion" did not, objectively, constitute reasonable and probable grounds to arrest the accused and conduct a search of his suitcase incidental to that arrest - The accused's eye contact with the officer, his nervousness and his manner of dress were neutral - Although false identification and past criminal activities were relevant, the accused identified himself and had no criminal record - There was no positive evidence of drugs, such as a drug smell or masking agent to hide the smell - Although the accused was on a known drug courier route and his decision to fly to Vancouver and return by bus for 60 hours to Toronto was suspicious, the officer's reasonable suspicion did not constitute reasonable and probable grounds - The search incidental to arrest constituted an unreasonable search and seizure (Charter, s. 8) - The non-conscriptive evidence obtained (cannabis marijuana) pursuant to a serious Charter violation was excluded under s. 24(2), notwithstanding that trial fairness was unaffected - See paragraphs 115 to 166.

Cases Noticed:

R. v. Hawkins (J.G.), [1993] 2 S.C.R. 157; 151 N.R. 176; 107 Nfld. & P.E.I.R. 179; 336 A.P.R. 179; 79 C.C.C.(3d) 576, refd to. [para. 100].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1; 4 C.R.(5th) 1, refd to. [para. 100].

R. v. D.M.F. (1999), 244 A.R. 146; 209 W.A.C. 146; 139 C.C.C.(3d) 144 (C.A.), refd to. [para. 100].

R. v. Suberu (M.) (2007), 220 O.A.C. 322; 218 C.C.C.(3d) 27 (C.A.), refd to. [para. 100].

R. v. Makhmudov (R.) et al. (2007), 417 A.R. 228; 410 W.A.C. 228; 2007 ABCA 248, refd to. [para. 100].

R. v. Lee (L.L.) (2007), 417 A.R. 331; 410 W.A.C. 331; 2007 ABCA 337, refd to. [para. 100].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289, refd to. [para. 112].

R. v. MacEachern (S.B.) (2007), 255 N.S.R.(2d) 180; 814 A.P.R. 180 (C.A.), refd to. [para. 113].

R. v. Rajaratnam (M.) (2006), 397 A.R. 126; 384 W.A.C. 126 (C.A.), affing. (2005), 388 A.R. 69 (Q.B.), refd to. [para. 116].

R. v. Kang-Brown (G.) (2006), 391 A.R. 218; 377 W.A.C. 218; 2006 ABCA 199, affing. (2005), 386 A.R. 48; 2005 ABQB 608, refd to. [para. 116].

R. v. Lam - see R. v. Dinh (H.T.) et al.

R. v. Dinh (H.T.) et al. (2003), 330 A.R. 63; 299 W.A.C. 63 (C.A.), refd to. [para. 116].

R. v. Dinh (H.T.) et al. (2001), 284 A.R. 304 (Prov. Ct.), refd to. [para. 116].

R. v. Hoyt, [2006] A.J. No. 1708 (Q.B.), refd to. [para. 116].

R. v. Arabi (H.) (2002), 313 A.R. 269 (Prov. Ct.), refd to. [para. 116].

R. v. Hoang (T.V.) (2000), 284 A.R. 201 (Prov. Ct.), refd to. [para. 116].

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. 116].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 116].

R. v. Mann (P.H.) (2004), 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 185 C.C.C.(3d) 308 (S.C.C.), refd to. [para. 116].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1 (S.C.C.), refd to. [para. 117].

R. v. Caslake (T.L.), [1988] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 117].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176 (C.A.), refd to. [para. 117].

R. v. Johnson (M.M.) (2006), 213 O.A.C. 395 (C.A.), refd to. [para. 117].

R. v. Gill (A.S.), [2006] AR. Uned. 150 (Prov. Ct.), refd to. [para. 117].

R. v. Peardon, [2005] B.C.J. No. 807 (Prov. Ct.), refd to. [para. 117].

R. v. Madill (C.E.), [2005] B.C.T.C. 1564; 2005 BCSC 1564, refd to. [para. 117].

R. v. Nguyen (V.N.) (2006), 204 Man.R.(2d) 54 (Q.B.), refd to. [para. 117].

R. v. Mouland (L.L.) (2006), 276 Sask.R. 182 (Q.B.), refd to. [para. 117].

R. v. Juan (J.P.) (2007), 243 B.C.A.C. 259; 401 W.A.C. 259 (C.A.), refd to. [para. 117].

R. v. Chan, 2007 CarswellAlta 960 (Q.B.), refd to. [para. 117].

R. v. Clayton (W.) et al. (2007), 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [para. 117].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193, refd to. [para. 142].

R. v. Stillman (W.W.D.) (1997), 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321, refd to. [para. 142].

R. v. Harris (2007), 228 O.A.C. 241 (C.A.), refd to. [para. 146].

R. v. Patrick (R.S.) (2007), 417 A.R. 276; 410 W.A.C. 276; 2007 ABCA 308, refd to. [para. 154].

R. v. LeBlanc (1981), 36 N.B.R.(2d) 675; 94 A.P.R. 675; 64 C.C.C.(2d) 31 (C.A.), refd to. [para. 155].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13; 45 C.C.C.(3d) 244, refd to. [para. 155].

R. v. Krist (J.) (1995), 62 B.C.A.C. 133; 103 W.A.C. 133; 100 C.C.C.(3d) 58 (C.A.), refd to. [para. 155].

R. v. Joyce (R.C.) and Kennedy (T.D.) (1996), 95 O.A.C. 321; 3 C.R.(5th) 170 (C.A.), refd to. [para. 155].

Counsel:

B. Holtby, Q.C., for the Crown;

S. Wojcik, for the accused.

This matter was heard at Calgary, Alberta, before Semenuk, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on February 13, 2008.