R. v. Lunz (A.J.) et al., 2013 ABQB 150

• Judge: Topolniski, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 08, 2013
• Citations: 2013 ABQB 150;(2013), 558 A.R. 340 (QB)

R. v. Lunz (A.J.) (2013), 558 A.R. 340 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AP.018

Her Majesty the Queen v. Anthony James Lunz and Terri Lyn Grouette

(110846138Q1; 2013 ABQB 150)

Indexed As: R. v. Lunz (A.J.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Topolniski, J.

March 8, 2013.

Summary:

The accused (Lunz) was charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime (search of his vehicle and person). He was jointly charged with drug and weapons offences with the co-accused (Grouette) arising from a subsequent search of his home. The accused's vehicle was stopped by police following an anonymous tip that he was trafficking. Cocaine was found following a warrantless search of the vehicle and his person. That evidence was the basis for the search warrant for his home. The accused alleged that the stopping of his vehicle and the warrantless search constituted an arbitrary detention (Charter, s. 9) and an unreasonable search and seizure (s. 8). He applied under s. 24(2) of the Charter to exclude all evidence seized as a result of those searches.

The Alberta Court of Queen's Bench dismissed the application. The police had reasonable and probable grounds to stop the accused and arrest him. The search of the accused and his vehicle was incidental to that lawful arrest. The accused was neither arbitrarily detained nor subjected to an unreasonable search and seizure. In any event, had the accused's Charter rights been infringed, the court would not have excluded the evidence under s. 24(2).

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - [See Police - Topic 3063 ].

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Police - Topic 3063 ].

Civil Rights - Topic 1646

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

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Police - Topic 3063 ].

Civil Rights - Topic 8368

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

Criminal Law - Topic 3147

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

Police - Topic 3186

Powers - Search - Following arrest or detention - [See Police - Topic 3063 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - The police received an anonymous tip that the accused was trafficking in large quantities of drugs out of his vehicle and home - The tipster provided a physical description of the accused, his home address and the make and approximate year of his vehicle - A CPIC check disclosed no criminal record - The address and vehicle were confirmed - The police conducted surveillance, which confirmed the description given by the tipster - The police observed two brief interactions which were consistent with street-level drug transactions out of the accused's vehicle - The accused's vehicle was stopped by police - He was arrested and charged with trafficking - A pat down search of the accused discovered $1,480 in cash and a search of the vehicle disclosed cocaine - The accused alleged that the vehicle stop and warrantless search constituted an arbitrary detention (Charter, s. 9) and an unreasonable search and seizure (s. 8) (i.e., that the officer acted on a mere hunch without reasonable and probable grounds) - He applied under s. 24(2) of the Charter to exclude all evidence seized as a result of those searches - The Alberta Court of Queen's Bench dismissed the application - Considering the tip and two viewed interactions cumulatively and contextually, the court determined that the police had subjectively and objectively reasonable and probable grounds to stop the accused and arrest him - The searches of the accused and his vehicle were lawful searches incidental to arrest - The accused was neither arbitrarily detained nor subjected to an unreasonable search and seizure - In any event, had the accused's Charter rights been infringed, the court would not have excluded the evidence under s. 24(2) - The police acted in good faith and limited their actions to what was necessary to meet their investigation objectives - Drug trafficking was a serious offence - The police did not attempt to subvert the accused's privacy and personal freedom - Admission of the evidence would not bring the administration of justice into disrepute.

Cases Noticed:

White v. R., [1947] S.C.R. 268; 1947 CarswellOnt 8, refd to. [para. 36].

R. v. Bain, [1992] 1 S.C.R. 91; 133 N.R. 1; 51 O.A.C. 161; 87 D.L.R.(4th) 449, refd to. [para. 48].

R. v. Munoz (L.), [2006] O.T.C. 112; 86 O.R.(3d) 134; 205 C.C.C.(3d) 70 (Sup. Ct.), refd to. [para. 52].

R. v. N.O. (2009), 448 A.R. 253; 447 W.A.C. 253; 2009 ABCA 75, refd to. [para. 54].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 58].

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; 155 D.L.R.(4th) 19, refd to. [para. 62].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161; 124 D.L.R.(4th) 7, refd to. [para. 64].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 65].

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, refd to. [para. 68].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 53 C.C.C.(3d) 316, refd to. [para. 71].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161, refd to. [para. 76].

R. v. K.C.F. (2004), 235 N.S.R.(2d) 3; 747 A.P.R. 3; 2004 NSPC 70 (Yth. Ct.), refd to. [para. 78].

R. v. Dionisi (A.P.), [2011] A.R. Uned. 272; 2011 ABPC 63, affd. (2012), 519 A.R. 313; 539 W.A.C. 313; 2012 ABCA 20, refd to. [para. 79].

R. v. Rajaratnam (M.) (2006), 397 A.R. 126; 384 W.A.C. 126; 2006 ABCA 333, refd to. [para. 84].

Caswell v. Powell Duffryn Associated Collieries Ltd., [1940] A.C. 152; [1939] 3 All E.R. 722 (H.L.), refd to. [para. 87].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 87].

R. v. Rosa (B.J.) (2008), 462 A.R. 148; 2008 ABQB 723, refd to. [para. 90].

R. v. Arabi (M.) (2007), 428 A.R. 68; 2007 ABQB 303, refd to. [para. 91].

R. v. LeBlanc (K.R.) (2007), 312 N.B.R.(2d) 321; 806 A.P.R. 321; 2007 NBCA 24, refd to. [para. 92].

R. v. Elkadri (A.) et al. (2008), 441 A.R. 38; 2008 ABQB 55, refd to. [para. 93].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193, refd to. [para. 98].

R. v. Chubak (M.J.) (2009), 446 A.R. 283; 442 W.A.C. 283; 2009 ABCA 8, refd to. [para. 107].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 107].

R. v. Ismail (M.I.), [2012] A.R. Uned. 133; 2012 ABCA 178, refd to. [para. 108].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 111].

Counsel:

Helena Solin (Public Prosecution Service Canada), for the Crown;

Brian A. Beresh (Beresh Cunningham Aloneissi O'Neill and Hurley), for the accused Anthony James Lunz;

Laurie I. Wood (Wood Law Office), for the accused Terri Lyn Grouette.

This application was heard on March 4-7, 2013, before Topolniski, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on March 8, 2013.