R. v. Kang-Brown (G.), (2006) 391 A.R. 218 (CA)

• Judge: Côté, O'Leary and Paperny, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 09, 2006
• Citations: (2006), 391 A.R. 218 (CA);2006 ABCA 199

R. v. Kang-Brown (G.) (2006), 391 A.R. 218 (CA);

      377 W.A.C. 218

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. JN.142

Her Majesty the Queen (respondent) v. Gurmakh Kang-Brown (appellant)

(0501-0184-A; 2006 ABCA 199)

Indexed As: R. v. Kang-Brown (G.)

Alberta Court of Appeal

Côté, O'Leary and Paperny, JJ.A.

June 26, 2006.

Summary:

The accused was charged with trafficking in cocaine and possession of heroin. He applied to exclude evidence of cocaine seized from his luggage by police at a bus terminal on the basis that his ss. 8, 9 and 10(b) Charter rights were violated.

The Alberta Court of Queen's Bench, in a decision reported at (2005), 386 A.R. 48, dismissed the application. The accused appealed.

The Alberta Court of Appeal, Paperny, J.A., dissenting, dismissed the appeal.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The police were patrolling a Calgary bus terminal for drug couriers - An officer stopped the accused and talked with him - The officer became very suspicious - A police dog was brought over and indicated the presence of drugs in the accused's partially unzipped bag - The accused was arrested and cocaine was discovered - The trial judge held that the odour emanating from the accused's bag, which he voluntarily brought into a public transportation facility, was not information in which he had a reasonable expectation of privacy - It did not offer any insight into his private life or biographical core of personal information, other than the fact that he was carrying prohibited drugs - In the totality of the circumstances, the dog sniff was not a search within the meaning of s. 8 of the Charter - The Alberta Court of Appeal dismissed the accused's appeal - The trial judge did not err in law in finding no search here and no contravention of the Charter by the dog sniff - The police were in a purely public place, the dog only yielded a crude piece of information, no intimate details of private lives could possibly be revealed, the odours came out passively, and they were detected by something similar to (but more sensitive than) an ordinary human nose - There was no reasonable expectation of privacy for that limited information in that public place - See paragraphs 23 to 56.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 1642

Property - Search and seizure - Search - What constitutes - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The police were patrolling a Calgary bus terminal for drug couriers - The accused got off an overnight bus from Vancouver - His behaviour drew the attention of an officer - The officer spoke to the accused in the bus terminal - He advised the accused that he was not in any trouble and he could leave at any time - The officer became very suspicious - The officer asked to look in the accused's bag - The accused placed it on the floor and partially unzipped it - The officer moved towards the bag and the accused became panicked and pulled the bag back - A police dog was brought over and indicated the presence of drugs in the bag - The accused was arrested - Cocaine was discovered - The trial judge held that the accused was not arbitrarily detained (Charter, s. 9) - He failed to establish that he was detained physically or psychologically - Alternatively, he was validly detained for investigative purposes - The Alberta Court of Appeal dismissed the accused's appeal - The court stated, inter alia, "[n]ot only is there no clear error or want of evidence compelling me to differ from the trial judge, I agree with her on this topic." - See paragraphs 6 to 22.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence -The police were patrolling a Calgary bus terminal for drug couriers - The accused was noticed by police - The police became more suspicious of him after talking with him - A police dog signalled the presence of drugs in the accused's bag - Cocaine was discovered - The accused was charged with trafficking in cocaine and possession of heroin - The accused argued that there was an unreasonable search (Charter, s. 8) and that he was arbitrarily detained (Charter, s. 9) - The trial judge found no Charter breaches - Alternatively, any Charter breach was not sufficiently serious to warrant the exclusion of the evidence - Given the serious nature of the offence of trafficking in cocaine, and the fact that the circumstances suggested that the accused was involved in commercial drug trafficking, the exclusion of the evidence would harm the reputation of the justice system - The trial judge also found no bad faith by police - The Alberta Court of Appeal dismissed the accused's appeal - The trial judge had ample evidence to support her decision to admit the evidence of drug possession - The court stated that, even if it were the court's function to try the s. 24(2) issue afresh, it would conclude that all the drug evidence should be admitted - See paragraphs 57 to 84.

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 3603 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [paras. 13, 94].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 13].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 13].

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; 2004 SCC 52, refd to. [para. 17].

R. v. Dinh (H.T.) et al., [2003] 10 W.W.R. 608; 330 A.R. 63; 299 W.A.C. 63; 178 C.C.C.(3d) 59; 2003 ABCA 201, dist. [paras. 21, 99].

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

R. v. Daley (I.M.) (2001), 281 A.R. 262; 248 W.A.C. 262; 156 C.C.C.(3d) 225; 2001 ABCA 155, refd to. [paras. 21, 126].

R. v. Hoang (T.V.) (2003), 339 A.R. 291; 312 W.A.C. 291; 2003 ABCA 251, refd to. [para. 22].

R. v. Tessling (W.) (2003), 168 O.A.C. 124; 171 C.C.C.(3d) 361 (C.A.), refd to. [paras. 28, 110].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [paras. 30, 99].

R. v. Kang-Brown (G.), [2006] A.R. Uned. 42; 2006 ABCA 132, refd to. [para. 30].

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. [paras. 60, 115].

R. v. Dinh (H.T.) et al. (2001), 284 A.R. 304; 2001 ABPC 48, refd to. [para. 62].

R. v. Mercer (R.S.) (2004), 362 A.R. 136; 45 Alta. L.R.(4th) 144; 2004 ABPC 94, refd to. [para. 62].

R. v. Griffiths (2003), 11 C.R.(6th) 136; 106 C.R.R.(2d) 139 (Ont. C.J.), 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, refd to. [paras. 69, 143].

R. v. Ngo (D.T.) (2003), 327 A.R. 320; 296 W.A.C. 320; 175 C.C.C.(3d) 290; 2003 ABCA 121, refd to. [para. 94].

R. v. Duguay, Murphy and Sevigny (1989), 91 N.R. 201; 31 O.A.C. 177; 46 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 95].

R. v. Collins (1987), 74 N.R. 276; 33 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 95].

R. v. A.M. (2006), 209 O.A.C. 257 (C.A.), refd to. [para. 100].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 102].

Kyllo v. United States (2001), 533 U.S. 27, refd to. [para. 104].

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, refd to. [para. 114].

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. 115].

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

Southam Inc. v. Hunter (1984), 55 N.R. 241; 55 A.R. 291; 14 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 116].

R. v. Wong et al. (1990), 120 N.R. 34; 45 O.A.C. 250; 60 C.C.C.(3d) 460; 1 C.R.(4th) 1 (S.C.C.), refd to. [para. 119].

R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 122 C.C.C.(3d) 481 (C.A.), refd to. [para. 126].

Authors and Works Noticed:

Mitchell, Article (1993), 35 Crim. L.Q. 433, generally [para. 71].

Pomerance, R.M., Shedding Light on the Nature of Heat: Defining Privacy in the wake of R. v. Tessling (2005), 23 C.R.(6th) 229, generally [paras. 107, 116].

Stuart, Don, Police Use of Sniffer Dogs Ought to be Subject to Charter Standards: Dangers of Tessling Come to Roost (2005), 31 C.R.(6th) 255, generally [para. 107].

Counsel:

A.A. Sanders, for the appellant;

J. Antonio, for the respondent.

This appeal was heard on May 9, 2006, by Côté, O'Leary and Paperny, JJ.A., of the Alberta Court of Appeal. The decision of the Court of Appeal was delivered on June 26, 2006, and the following opinions were filed:

Côté, J.A. (O'Leary, J.A., concurring) - see paragraphs 1 to 85;

Paperny, J.A., dissenting - see paragraphs 86 to 154.