R. v. Husch (M.C.), (2015) 478 Sask.R. 67 (QB)

• Judge: Gabrielson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 23, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 478 Sask.R. 67 (QB);2015 SKQB 177

R. v. Husch (M.C.) (2015), 478 Sask.R. 67 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JL.054

Her Majesty the Queen As Represented by the Director of Public Prosecutions for Canada v. Myles Curtis Husch

(2014 CNJ No. 46; 2015 SKQB 177)

Indexed As: R. v. Husch (M.C.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Battleford

Gabrielson, J.

June 23, 2015.

Summary:

The accused was charged with possession of controlled substances (cocaine and fentanyl) for the purpose of trafficking, and possession of the proceeds of crime. He applied under s. 24(2) of the Charter for the exclusion of evidence on the basis that his ss. 8 and 10(b) Charter rights were violated.

The Saskatchewan Court of Queen's Bench dismissed the application. Although there was a breach of the accused's s. 10(b) rights, it would not be appropriate to exclude the evidence.

Civil Rights - Topic 1216

Security of the person - Lawful or reasonable search - Strip searches - Shortly after observing Husch engage in what they believed was a drug transaction with a known drug dealer, police stopped Husch's vehicle and arrested him for, inter alia, possession of cocaine for the purpose of trafficking - Drugs and cash were found in the pocket of his shorts and in his vehicle - A strip search was subsequently conducted at the police station - Husch argued that the strip search constituted a violation of his s. 8 Charter rights - The Saskatchewan Court of Queen's Bench disagreed - The search was conducted in a private area (the telephone room) - The officer testified that his usual practice was to have an accused remove the top half of his clothing while searched, replace those clothes, and then remove the bottom half of his clothing - No evidence was presented which indicated that the search was conducted other than in accordance with the officer's usual practice - There was also no evidence that the search included anything other than a visual inspection - While the search was demeaning and seriously affected Husch's privacy interests, it was done for a legitimate purpose - Although the search was not conducted with prior supervisory approval, it was otherwise conducted in accordance with the guidelines and did not result in an unreasonable search in these circumstances - See paragraphs 33 to 35.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Civil Rights - Topic 1216 ].

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - Police believed that Knight was involved in drug trafficking - During surveillance of Knight's residence, police observed Husch's vehicle parked at the curb - Husch drove away, but then turned around when Knight arrived in her vehicle and appeared to signal to Husch - Husch parked next to Knight - A short time later, Knight exited Husch's vehicle and Husch drove away - Husch's vehicle made a circuitous route which the police recognized as a tactic often employed by persons in the drug trade to see if anyone was following them - Police stopped Husch's vehicle and arrested him - They found drugs and cash in Husch's pocket and in the vehicle - Husch was charged with, inter alia, possession of cocaine for the purpose of trafficking - Husch argued that his arrest was unlawful and resulted in a violation of his s. 8 Charter rights - The Saskatchewan Court of Queen's Bench disagreed - The above observations constituted objective factors which led the police to form the belief that Husch had just completed a drug transaction with Knight and that they had reasonable and probable grounds for an arrest - Those factors, combined with the officers' subjective belief, met the standard of "reasonable grounds to believe" - The arrest was lawful - See paragraphs 21 to 27.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - [See first and third Civil Rights - Topic 4604 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Police stopped Husch's vehicle and arrested him shortly after observing him engage in what they believed was a drug transaction with a known drug dealer - Before Husch had been advised of his Charter rights, an officer stated "We know you just bought drugs, do you want to do this the hard way or the easy way?" - When Husch did not respond, the officer repeated the question - Husch then stated "It's in the lower left pocket of my shorts." - Cocaine was found in the pocket and in the vehicle - Husch was charged with, inter alia, possession of cocaine for the purpose of trafficking - He applied for the exclusion of evidence under s. 24(2) of the Charter, arguing that the officer's questions constituted a breach of his s. 10(b) Charter rights - The Saskatchewan Court of Queen's Bench held that the officer's questions were clearly a violation of s. 10(b) - The police duty to inform an accused of his right to retain and instruct counsel was triggered at the outset of an arrest or detention - However, the court refused to exclude the evidence - The seriousness of the Charter-infringing conduct was at the lower end of the spectrum - It was a situation of over-exuberance by an officer in a fluid and rapidly transpiring environment - The impact of the breach on Husch's privacy interests was minimal - He and his vehicle would have been searched and the drugs would have been found whether he volunteered them or not - It would be illogical to exclude the evidence of a large quantity of drugs found in the vehicle simply because Husch disclosed a small amount of drugs in response to a question from an overzealous officer - See paragraphs 28 to 31 and 38 to 44.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Police stopped Husch's vehicle and arrested him for possession of cocaine for the purpose of trafficking - After Husch had been advised of his Charter rights but before he had an opportunity to speak to counsel, an officer asked him "Are they going to find anything?", in reference to the search of Husch's vehicle that was being conducted by two other officers - Husch argued that this question constituted a breach of his s. 10(b) Charter rights - The Saskatchewan Court of Queen's Bench disagreed - First, Husch had responded "no" to the question, so no evidence was elicited that could have been excluded - Second, the officer asked the question as he was filling out a tow truck report - The question was an administrative act in completing the report - See paragraph 32.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Husch was arrested for possession of cocaine for the purpose of trafficking at 10:45 a.m. - His s. 10(b) Charter rights were violated when an officer asked Husch where the drugs were before advising him of his right to counsel - Husch advised that the drugs were in his pocket - Police searched Husch and his vehicle - Husch was re-arrested for possession for the purpose of trafficking - He was transported to the police station and spoke to counsel at 11:30 a.m. - Police began a videotaped interview at 2:38 p.m., stopped so that Husch could speak to counsel a second time, and resumed the interview at 3:05 p.m., at which point Husch gave a statement - Husch acknowledged that the videotaped statement was voluntary, but argued that it should be excluded because it was tainted by the earlier s. 10(b) breach - The Saskatchewan Court of Queen's Bench rejected this argument - There was no temporal or causal connection between the Charter breach and Husch's subsequent admissions - The statement was given more than three hours after the Charter breach and after Husch had spoken to counsel twice - Further, the s. 10(b) breach occurred when Husch was under arrest for possession - The evidence which gave rise to the second set of charges was found by the officers in their search of Husch's vehicle, which would have taken place regardless of whether Husch told the officer about the drugs in his pocket - See paragraphs 36 and 37.

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - [See first Civil Rights - Topic 4604 ].

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - [See first Civil Rights - Topic 4604 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See first Civil Rights - Topic 4604 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See first Civil Rights - Topic 4604 ].

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest - [See Civil Rights - Topic 1216 ].

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - [See Civil Rights - Topic 1262 ].

Police - Topic 2241

Duties - Duty to inform persons under investigation - General principles - [See first Civil Rights - Topic 4604 ].

Police - Topic 3063

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

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1216 ].

Counsel:

Denis I. Quon, for the Crown;

Vernon G. Eichhorn, for the accused.

This voir dire was heard before Gabrielson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Battleford, who delivered the following ruling on June 23, 2015.