R. v. Hoyt (J.E.), (2006) 428 A.R. 233 (QB)

• Judge: Clark, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 05, 2006
• Citations: (2006), 428 A.R. 233 (QB);2006 ABQB 820

R. v. Hoyt (J.E.) (2006), 428 A.R. 233 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. OC.127

In The Matter Of an Application Pursuant to Sections 7, 8, 9, 10 and 24 of the Charter of Rights and Freedoms

Her Majesty the Queen (Crown) v. James Edward Hoyt (accused)

(031428519Q1; 2006 ABQB 820)

Indexed As: R. v. Hoyt (J.E.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Clark, J.

November 16, 2006.

Summary:

The accused was charged with possession of cocaine for the purpose of trafficking. He applied for an order, under s. 24(2) of the Charter, to exclude evidence of cocaine seized from his backpack by two officers working for the Jetway Project. The accused alleged violations of his ss. 7, 8, 9, 10(a) and 10(b) Charter rights.

The Alberta Court of Queen's Bench dismissed the application.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - Two officers spotted a suspicious suitcase at the Calgary Bus Depot - The accused was identified as the possible owner of the suitcase - One of the officers, dressed in plain clothes, stopped the accused in the terminal and identified himself as law enforcement - The officer informed the accused that he was not in trouble and was free to leave at any time - The accused was ushered to the side of the bus and backed up against a wall - They talked about the accused's trip and the officer asked to see the accused's ticket - The ticket was not returned to the accused - The officer observed that the accused seemed nervous - The accused was sweating, shaking slightly and had "happy feet" (an expression when a person's feet started moving quickly, giving the appearance that they were getting ready to run) - The officers arrested the accused and searched his backpack and suitcase - The officers seized approximately 2 kilograms of cocaine, drug paraphernalia, cash and a cell phone - The accused was charged with possession of cocaine for the purpose of trafficking - The accused asserted that his right to be protected against unreasonable search and seizure had been violated (Charter, s. 8) - The Alberta Court of Queen's Bench rejected the assertion - The arrest was lawful - The main purposes for a search incidental to arrest were to ensure the safety of the police and public, to protect evidence from destruction at the hands of the accused or others and to discover evidence that could be used at the accused's trial - The search of the accused's person and possessions was done strictly for these three main purposes - Finally, the manner in which the officers carried out the search was reasonable - This was a valid search incidental to a lawful arrest and it was unnecessary for the officers to obtain a warrant - See paragraphs 74 to 77.

Civil Rights - Topic 1217

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

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - Two officers spotted a suspicious suitcase at the Calgary Bus Depot - The accused was identified as the possible owner of the suitcase - One of the officers, dressed in plain clothes, stopped the accused in the terminal and identified himself as law enforcement - The officer informed the accused that he was not in trouble and was free to leave at any time - The accused was ushered to the side of the bus and backed up against a wall - They talked about the accused's trip and the officer asked to see the accused's ticket - The ticket was not returned to the accused - The officer observed that the accused seemed nervous - The accused was sweating, shaking slightly and had "happy feet" (an expression used when a person's feet started moving quickly, giving the appearance that they were getting ready to run) - The officers arrested the accused and searched his backpack and suitcase - The officers seized approximately 2 kilograms of cocaine, drug paraphernalia, cash and a cell phone - The accused was charged with possession of cocaine for the purpose of trafficking - The accused asserted that his right to be protected against unreasonable search and seizure had been violated (Charter, s. 8) - The accused asserted that the search began with inquiries made about the thing to be searched - The Alberta Court of Queen's Bench rejected the assertion - The accused was not searched prior to arrest and there was no search incidental to an investigative detention - See paragraphs 64 to 67.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - Two officers spotted a suspicious suitcase at the Calgary Bus Depot - The accused was identified as the possible owner of the suitcase - One of the officers, dressed in plain clothes, stopped the accused in the terminal and identified himself as law enforcement - The officer informed the accused that he was not in any trouble and was free to leave at any time - The accused was ushered to the side of the bus and backed up against a wall - They talked about the accused's trip and the officer asked to see the accused's ticket - The ticket was not returned to the accused - The officer observed that the accused seemed nervous - The accused was sweating, shaking slightly and had "happy feet" (an expression used when a person's feet started moving quickly, giving the appearance that they were getting ready to run) - The officers arrested the accused and searched his backpack and suitcase - The officers seized approximately 2 kilograms of cocaine, drug paraphernalia, cash and a cell phone - The accused was charged with possession of cocaine for the purpose of trafficking - The accused asserted that his right to be protected against unreasonable search and seizure had been violated (Charter, s. 8) where the arrest was not lawful - The Alberta Court of Queen's Bench rejected the assertion - While the court agreed that hunches and beliefs would not be enough, the officer did have reasonable and probable grounds to arrest the accused - These reasonable and probable grounds had both an objective and subjective basis - See paragraphs 68 to 73.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - Two officers spotted a suspicious suitcase at the Calgary Bus Depot - The accused was identified as the possible owner of the suitcase - One of the officers, dressed in plain clothes, stopped the accused in the terminal and identified himself as law enforcement - The officer informed the accused that he was not in any trouble and was free to leave at any time - The accused was ushered to the side of the bus and backed up against a wall - They talked about the accused's trip and the officer asked to see the accused's ticket - The ticket was not returned to the accused - The officer observed that the accused seemed nervous - The accused was sweating, shaking slightly and had "happy feet" (an expression used when a person's feet started moving quickly, giving the appearance that they were getting ready to run) - The officers arrested the accused and searched his backpack and suitcase - The officers seized approximately 2 kilograms of cocaine, drug paraphernalia, cash and a cell phone - The accused was charged with possession of cocaine for the purpose of trafficking - The accused asserted that his s. 7 rights were violated because he was unlawfully arrested without a warrant, contrary to s. 495 of the Criminal Code - The Alberta Court of Queen's Bench rejected the assertion - The standard enunciated in s. 495 was met - Section 495 vested a peace officer with the authority to arrest without warrant where the officer had reasonable grounds to believe the person committed, or was about to commit, an indictable offence - The officer had reasonable and probable grounds for the arrest - See paragraphs 78 and 79.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Two officers spotted a suspicious suitcase at the Calgary Bus Depot - The accused was identified as the possible owner of the suitcase - One of the officers, dressed in plain clothes, stopped the accused in the terminal and identified himself as law enforcement - The officer informed the accused that he was not in any trouble and was free to leave at any time - The accused was ushered to the side of the bus and backed up against a wall - They talked about the accused's trip and the officer asked to see the accused's ticket - The ticket was not returned to the accused - The officer observed that the accused seemed nervous - The accused was sweating, shaking slightly and had "happy feet" (an expression used when a person's feet started moving quickly, giving the appearance that they were getting ready to run) - The officers arrested the accused and searched his backpack and suitcase - The officers seized approximately 2 kilograms of cocaine, drug paraphernalia, cash and a cell phone - The accused was charged with possession of cocaine for the purpose of trafficking - The accused asserted that his right to be protected against arbitrary detention had been violated (Charter, s. 9) - The Alberta Court of Queen's Bench held that the accused was not detained, either physically or psychologically - Even if he was detained, given the totality of the factors, the officer had the requisite objectively discernable facts that provided reasonable grounds to detain - See paragraphs 50 to 56.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - Two officers spotted a suspicious suitcase at the Calgary Bus Depot - The accused was identified as the possible owner of the suitcase - One of the officers, dressed in plain clothes, stopped the accused in the terminal and identified himself as law enforcement - The officer informed the accused that he was not in any trouble and was free to leave at any time - The accused was ushered to the side of the bus and backed up against a wall - They talked about the accused's trip and the officer asked to see the accused's ticket - The ticket was not returned to the accused - The officer observed that the accused seemed nervous - The accused was sweating, shaking slightly and had "happy feet" (an expression used when a person's feet started moving quickly, giving the appearance that they were getting ready to run) - The officers arrested the accused and searched his backpack and suitcase - The officers seized approximately 2 kilograms of cocaine, drug paraphernalia, cash and a cell phone - The accused was charged with possession of cocaine for the purpose of trafficking - The accused asserted that his right to be protected against arbitrary detention had been violated (Charter, s. 9) - The Alberta Court of Queen's Bench held that the accused was not detained - There was no psychological detention - Besides initially telling the accused that he was free to go, the officer was consistent in following up every question with the explanation that the accused was under no obligation to comply with the requests and the accused's testimony showed he understood that he had choices - See paragraphs 27 and 37 to 49.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - Two officers spotted a suspicious suitcase at the Calgary Bus Depot - The accused was identified as the possible owner of the suitcase - One of the officers, dressed in plain clothes, stopped the accused in the terminal and identified himself as law enforcement - The officer informed the accused that he was not in any trouble and was free to leave at any time - The accused was ushered to the side of the bus and backed up against a wall - They talked about the accused's trip and the officer asked to see the accused's ticket - The ticket was not returned to the accused - The officer observed that the accused seemed nervous - The accused was sweating, shaking slightly and had "happy feet" (an expression used when a person's feet started moving quickly, giving the appearance that they were getting ready to run) - The officers arrested the accused and searched his backpack and suitcase - The officers seized approximately 2 kilograms of cocaine, drug paraphernalia, cash and a cell phone - The accused was charged with possession of cocaine for the purpose of trafficking - The accused asserted that his right to be protected against arbitrary detention had been violated (Charter, s. 9) - The Alberta Court of Queen's Bench held that the accused was not detained - There was no physical detention arising from the positions of the accused and the officer during their conversation - The conversation did not take place in an isolated area, it was in a public place and the accused admitted that he was told that he was free to go - The accused had an unimpeded exit route when he spoke to the officer - See paragraphs 28 to 30.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - Two officers spotted a suspicious suitcase at the Calgary Bus Depot - The accused was identified as the possible owner of the suitcase - One of the officers, dressed in plain clothes, stopped the accused in the terminal and identified himself as law enforcement - The officer informed the accused that he was not in any trouble and was free to leave at any time - The accused was ushered to the side of the bus and backed up against a wall - They talked about the accused's trip and the officer asked to see the accused's ticket - The ticket was not returned to the accused - The officer observed that the accused seemed nervous - The accused was sweating, shaking slightly and had "happy feet" (an expression used when a person's feet started moving quickly, giving the appearance that they were getting ready to run) - The officers arrested the accused and searched his backpack and suitcase - The officers seized approximately 2 kilograms of cocaine, drug paraphernalia, cash and a cell phone - The accused was charged with possession of cocaine for the purpose of trafficking - The accused asserted that his right to be protected against arbitrary detention had been violated (Charter, s. 9) - The Alberta Court of Queen's Bench held that the accused was not detained - There was no physical detention when the officer failed to return the accused's ticket - There was nothing physically blocking the accused from boarding the bus - Further, he had the options of asking for his ticket back, boarding the bus without his ticket or walking into the terminal - See paragraphs 31 to 36.

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for - Two officers spotted a suspicious suitcase at the Calgary Bus Depot - The accused was identified as the possible owner of the suitcase - One of the officers, dressed in plain clothes, stopped the accused in the terminal and identified himself as law enforcement - The officer informed the accused that he was not in any trouble and was free to leave at any time - The accused was ushered to the side of the bus and backed up against a wall - They talked about the accused's trip and the officer asked to see the accused's ticket - The ticket was not returned to the accused - The officer observed that the accused seemed nervous - The accused was sweating, shaking slightly and had "happy feet" (an expression used when a person's feet started moving quickly, giving the appearance that they were getting ready to run) - The officers arrested the accused and searched his backpack and suitcase - The officers seized approximately 2 kilograms of cocaine, drug paraphernalia, cash and a cell phone - The accused was charged with possession of cocaine for the purpose of trafficking - The accused asserted that his ss. 10(a) and 10(b) Charter rights were violated - The Alberta Court of Queen's Bench held that the accused was not detained, either physically or psychologically - However, if the accused was detained, this status should have been conveyed to him by the officer at the time of detention so that the accused would be aware of his position vis-à-vis the police - Therefore, if there was a detention, there was a breach of the accused 's s. 10(a) Charter right - Both ss. 10(a) and 10(b) were triggered on detention, and if the accused was detained, he should have been informed of his right to counsel after he was informed of the reasons for his detention - Even though the entire conversation between the accused and the officer transpired over a few minutes, making this encounter very brief, there was an unnecessary delay in informing the accused of his right to counsel - Therefore, if there was a detention, the accused 's s. 10(b) Charter right was also breached - See paragraphs 57 to 63.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Two officers spotted a suspicious suitcase at the Calgary Bus Depot - The accused was identified as the possible owner of the suitcase - One of the officers, dressed in plain clothes, stopped the accused in the terminal and identified himself as law enforcement - The officer informed the accused that he was not in any trouble and was free to leave at any time - The accused was ushered to the side of the bus and backed up against a wall - They talked about the accused's trip and the officer asked to see the accused's ticket - The ticket was not returned to the accused - The officer observed that the accused seemed nervous - The accused was sweating, shaking slightly and had "happy feet" (an expression used when a person's feet started moving quickly, giving the appearance that they were getting ready to run) - The officers arrested the accused and searched his backpack and suitcase - The officers seized approximately 2 kilograms of cocaine, drug paraphernalia, cash and a cell phone - The accused was charged with possession of cocaine for the purpose of trafficking - The Alberta Court of Queen's Bench held that the accused was not detained, either physically or psychologically - However, if the accused was detained, his ss. 10(a) and 10(b) rights were violated - However, the court would not exclude the evidence - The accused was not compelled to participate in the creation or discovery of the evidence - The evidence was thus non-conscriptive and the admission of non-conscriptive evidence rarely operated to render a trial unfair - The officers acted in good faith in carrying out their duties - Finally, the balance of interest favoured admitting the evidence - The breach was not sufficiently serious to warrant the exclusion of evidence of approximately 2 kilograms of cocaine - Its exclusion would bring the administration of justice into disrepute - See paragraphs 80 to 96.

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See both Civil Rights - Topic 1262 ].

Police - Topic 3185

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

Cases Noticed:

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; 2004 SCC 52, refd to. [para. 26].

R. v. Kang-Brown (G.) (2005), 386 A.R. 48; 2005 ABQB 608, affd. (2006), 391 A.R. 218; 377 W.A.C. 218; 70 W.C.B.(2d) 19; 2006 ABCA 199, revd. [2008] 432 A.R.  1; 373 N.R. 67 (S.C.C.), refd to. [para. 29].

R. v. Rajaratnam (M.) (2005), 388 A.R. 69; 2005 ABQB 739, affd. (2006), 397 A.R. 126; 384 W.A.C. 126; 2006 ABCA 333, refd to. [para. 37].

R. v. Soares (1987), 19 O.A.C. 97; 34 C.C.C.(3d) 403 (C.A.), refd to. [para. 37].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), refd to. [para. 37].

R. v. Voss (1989), 33 O.A.C. 190; 50 C.C.C.(3d) 58 (C.A.), refd to. [para. 37].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481, refd to. [para. 38].

R. v. T.A.V. (2001), 299 A.R. 96; 266 W.A.C. 96; 2001 ABCA 316, refd to. [para. 39].

R. v. Fash (D.M.) (1999), 244 A.R. 146; 209 W.A.C. 146; 1999 ABCA 267, refd to. [para. 49].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 12 O.R.(3d) 182 (C.A.), refd to. [para. 51].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 60].

R. v. Arabi (H.) (2002), 313 A.R. 269; 2002 ABPC 51 (Prov. Ct.), refd to. [para. 62].

R. v. Rochat (R.R.) (1999), 241 A.R. 201; 1999 ABPC 10, dist. [para. 64].

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. 64].

R. v. Rajaratnam (M.) (2006), 397 A.R. 126; 384 W.A.C. 126; 2006 ABCA 333, refd to. [para. 66].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1, refd to. [para. 68].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 69].

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; 144 D.L.R.(4th) 193, refd to. [para. 75].

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. 75].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 82].

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 2002 SCC 10, refd to. [para. 83].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. Calder (S.M.) (2006), 401 A.R. 167; 391 W.A.C. 167; 2006 ABCA 307, refd to. [para. 86].

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; 2003 SCC 30, refd to. [para. 89].

R. v. Griffiths (2003), 11 C.R.(6th) 136 (Ont. C.J.), refd to. [para. 90].

Authors and Works Noticed:

Watt's Manual of Criminal Evidence (2006), pp. 660, 661 [para. 91].

Counsel:

Eleanor Funk, for the Crown;

Jamel H. Chadi, for the accused.

This application was heard on June 5, 2006, by Clark, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on November 16, 2006.