R. v. Hoang (T.V.), (2000) 284 A.R. 201 (ProvCt)

• Judge: B.R. Fraser, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: December 07, 2000
• Citations: (2000), 284 A.R. 201 (ProvCt);2000 ABPC 200

R. v. Hoang (T.V.) (2000), 284 A.R. 201 (ProvCt)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. FE.044

Her Majesty The Queen v. Tam Van Hoang

(91538082P10101; 2000 ABPC 200)

Indexed As: R. v. Hoang (T.V.)

Alberta Provincial Court

B.R. Fraser, P.C.J.

December 7, 2000.

Summary:

The accused was flying from Vancouver to Winnipeg with a lay over in Calgary. While in Calgary, the accused was observed, approached, and then questioned by police. As a result of the questioning, the accused's luggage was searched. Marihuana was found and the accused was charged with possession of marihuana for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. A voir dire was held to determine whether the accused's ss. 8 and 9 Charter rights had been infringed as a result of the questioning and the search.

The Alberta Provincial Court reviewed the evidence and held that only the statements to the police after the accused's arrest but before he obtained legal advice should be excluded. Otherwise, all other evidence obtained was admissible.

Civil Rights - Topic 1213

Security of the person - Lawful or reason­able search - For reasonable and probable cause - [See second Civil Rights - Topic 1214 ].

Civil Rights - Topic 1214

Security of the person - Lawful or reason­able search - Searches incidental to arrest or detention - The Alberta Provincial Court referred to the three main purposes for a search incidental to arrest: 1) ensur­ing officer safety; 2) preventing the de­struction of evidence; and 3) discovery of evidence to be used at trial - See para­graph 71.

Civil Rights - Topic 1214

Security of the person - Lawful or reason­able search - Searches incidental to arrest or detention - The accused was arrested after police questioned him about the possibility of his transporting drugs out of Vancouver - The accused argued that the consequent luggage search contravened the Charter, s. 8 - The Alberta Provincial Court rejected this argument - Once the officer formed the opinion, based on rea­sonable and probable grounds, that the accused possessed illegal drugs in his checked luggage, he issued directions to locate the accused and arrest him - The officer then seized the luggage and took it to his police vehicle - A police dog trained in narcotics then smelled the lug­gage and identified the narcotic smell - Only then did the officer open and search the luggage - This procedure was appro­priate where the purpose of the search was clearly to discover evidence and it was incidental to the arrest - See paragraphs 50 to 77.

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - What constitutes unreason­able search and seizure - [See second Civil Rights - Topic 1214 ].

Civil Rights - Topic 1222

Security of the person - Lawful or reason­able search - Consent to search or seizure - The Alberta Provincial Court stated that the Ontario Court of Appeal in R. v. Wills set out the criteria that the Crown must meet to demonstrate that an accused has waived his right under the Charter, s. 8, to be "secure against unreasonable search or seizure, on a balance of probabilities" - The criteria outlined in Wills were: "1) there was consent, express or implied; 2) the giver of the consent had authority to give the consent; 3) the consent was vol­untary and not the product of police oppression, coercion, or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested; 4) the consenter was aware of the nature of the police conduct to which he was being asked to consent; 5) the consenter was aware of the right to refuse to permit the police to search; 6) the consenter was aware of the potential consequences of consenting" - See paragraph 52.

Civil Rights - Topic 1444

Security of the person - Right to privacy - Expectation of privacy - The accused was flying from Vancouver to Winnipeg with a lay over in Calgary - While in Calgary the accused was observed, approached, and then questioned by police - Consequently, the accused's luggage was searched - Mari­huana was found and the accused was charged with possession of marihuana for the purpose of trafficking (Controlled Drugs and Substances Act, s. 5(2)) - The accused asserted that his privacy rights were violated when his luggage was searched - The Alberta Provincial Court rejected this argument - The accused checked his luggage from Vancouver to Winnipeg - He was only in Calgary to change planes - The reasonable inference to draw from these facts was that the accused intended to board the airplane to Winnipeg - Consequently, the accused had a diminished expectation of privacy to his checked luggage in an airport than he normally would if it were in some other location - "He should have and would have had an expectation the luggage would be scrutinized by state personnel by such devices as metal detectors, or x-ray machines, as well as dog sniffers of other means to detect explosives or other weapons in his luggage" - See paragraphs 50 to 61.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police - [See second Civil Rights - Topic 1214 ].

Civil Rights - Topic 1645

Property - Search and seizure - Consent to search - [See Civil Rights - Topic 1222 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused was flying from Vancouver with a lay over in Calgary - While in Calgary, the accused was observed, approached and then questioned by police - Consequently, the accused's luggage was searched - Marihuana was found and the accused was charged with possession of marihuana for the purpose of trafficking (Controlled Drugs and Substances Act, s. 5(2)) - The accused asserted that the police question­ing infringed his s. 9 Charter rights - The Alberta Provincial Court rejected this argument - Considering, inter alia, the choice of words the officer used (that he advised the accused that he was free to leave at any time, that he was under no obligation to show him or let him search his luggage, that he was polite and used courteous language); the context of the encounter and the reasonableness of his suspicions causing him to encounter the accused, there was no detention contrary to s. 9 - See paragraphs 1 to 47.

Civil Rights - Topic 8309

Canadian Charter of Rights and Freedoms - General - Waiver of rights - [See Civil Rights - Topic 1222 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - In determining whether certain evidence was admissible pursuant to s. 24(2) of the Charter, notwithstanding that it was obtained contrary to an ac­cused's Charter rights, the Alberta Provin­cial Court reviewed the concept of "con­scriptive" and "non-conscriptive" evidence - The court stated that evidence was con­scriptive if an accused was compelled to incriminate himself at the behest of the state by means of a statement, the use of the body, or the production of bodily samples - All other evidence was non-conscriptive and rarely affected trial fair­ness - See paragraph 81.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest - [See both Civil Rights - Topic 1214 ].

Criminal Law - Topic 3148

Special powers - Power of search - Scope of power - [See Civil Rights - Topic 1444 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See second Civil Rights - Topic 1214 ].

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1, refd to. [para. 29].

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. 29].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161; 97 C.C.C.(3d) 450, refd to. [para. 29].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35, refd to. [para. 29].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 29].

R. v. Davies (D.M.R.) (1998), 109 B.C.A.C. 125; 177 W.A.C. 125; 127 C.C.C.(3d) 97 (Yuk. Terr. C.A.), refd to. [para. 29].

R. v. Daley (I.M.) (1999), 252 A.R. 73 (Q.B.), dist. [para. 32].

R. v. Rochat (R.R.) (1999), 241 A.R. 201 (Prov. Ct.), refd to. [para. 32].

R. v. Fash (D.M.) (1999), 244 A.R. 146; 209 W.A.C. 146 (C.A.), refd to. [para. 35].

R. v. Grafe (1987), 22 O.A.C. 280; 36 C.C.C.(3d) 267 (C.A.), refd to. [para. 42].

R. v. Biron, [1976] 2 S.C.R. 56; 4 N.R. 45; 23 C.C.C.(2d) 513, refd to. [para. 43].

R. v. Roberge, [1983] 1 S.C.R. 312; 46 N.R. 573; 4 C.C.C.(3d) 304, refd to. [para. 43].

R. v. McClelland (B.L.) (1995), 165 A.R. 332; 89 W.A.C. 332 (C.A.), refd to. [para. 43].

R. v. Musurichan (1990), 107 A.R. 102 (C.A.), refd to. [para. 43].

R. v. Huddle (1989), 102 A.R. 144 (C.A.), refd to. [para. 43].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), refd to. [para. 46].

R. v. Wills (1992), 52 O.A.C. 321; 70 C.C.C.(3d) 529 (C.A.), refd to. [para. 52].

R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 122 C.C.C.(3d) 481 (C.A.), refd to. [para. 58].

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; 104 C.C.C.(3d) 23, refd to. [para. 62].

United States v. Alpert (1987), 816 F.2d 958 (4th Cir.), refd to. [para. 70].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241; 53 C.C.C.(3d) 257, refd to. [para. 71].

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; 121 C.C.C.(3d) 97, refd to. [para. 71].

R. v. Hicks (1988), 28 O.A.C. 118; 42 C.C.C.(3d) 394 (C.A.), affd. [1990] 1 S.C.R. 120; 104 N.R. 399; 37 O.A.C. 143; 54 C.C.C.(3d) 575, refd to. [para. 93].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; 57 C.C.C.(3d) 1, refd to. [para. 96].

R. v. Timm (1998), 131 C.C.C.(3d) 306 (Que. C.A.), affd. (1999), 140 C.C.C. (3d) 225 (S.C.C.), refd to. [para. 97].

Authors and Works Noticed:

Cory, P., General Principles of Charter Exclusion, Paper presented at National Criminal Law Programme, Halifax, Nova Scotia (1997), generally [para. 29]; pp. 12, 13 [para. 82].

Counsel:

L.M. Pitcairn, for the Crown;

J. Paul Brunnen, for the accused.

This case was heard before B.R. Fraser, P.C.J., of the Alberta Provincial Court, who delivered the following ruling on December 7, 2000.