R. v. Matson, (1987) 82 A.R. 86 (ProvCt)

• Judge: Porter, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: July 21, 1987
• Citations: (1987), 82 A.R. 86 (ProvCt)

R. v. Matson (1987), 82 A.R. 86 (ProvCt)

MLB headnote and full text

Her Majesty The Queen v. Orran Beverley Matson

(No. C0340112954A01)

Indexed As: R. v. Matson

Alberta Provincial Court

Criminal Division

Porter, P.C.J.

July 21, 1987.

Summary:

The accused was stopped by a National Park Warden at a random stop check. The officer questioned the accused respecting possible fish, wildlife or firearms violations. The accused told the warden that he had a gun in his vehicle. The warden proceeded to search the vehicle and the accused warned him that the gun was loaded. The warden continued his search and found the gun. The warden did not inform the accused of his right to counsel. The accused was charged with possession of a loaded firearm in his vehicle contrary to the National Parks Wildlife Regulations and s. 8(1) of the National Parks Act. The accused questioned the lawfulness of the random stop check and argued that in any event the evidence found as a result of the stop check should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms, because of various Charter violations.

The Alberta Provincial Court found the accused not guilty. The court held that: (1) there was no lawful authority either by statute or by common law which authorized the park warden to randomly stop the accused; (2) despite their being no lawful authority for the random stop, the evidence could not be excluded on the basis of the common law; (3) even if there did exist authority for the random stop for the purpose of checking fish, wildlife or firearms violations under the National Parks Wildlife Regulations, such authority was contrary to s. 9 of the Charter (arbitrary detention), and could not be justified under s. 1 of the Charter; (4) the evidence obtained in the random stop was obtained contrary to s. 10(b) of the Charter (right to counsel); (5) the evidence was also obtained contrary to s. 8 of the Charter (unreasonable search and seizure); and (6) the evidence obtained should be excluded under s. 24(2) of the Charter because of the Charter violations.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure - What constitutes - A National Park Warden randomly stopped a driver to investigate possible fish, wildlife and firearms violations - The accused told him he had a gun in his vehicle and the warden searched and found a loaded gun - The Alberta Provincial Court held that (1) the warden lacked authority under the National Parks Wildlife Regulations to demand production of the firearm, (2) even if he did have the authority, the regulations were contrary to s. 8 of the Charter (unreasonable search and seizure) and of no force or effect to the extent that they authorized a demand without reasonable and probable grounds, and (3) the regulations could not be justified under s. 1 of the Charter - The court held that the search in this case was without reasonable and probable grounds and therefore contrary to s. 8 of the Charter and, the evidence obtained in the search should be excluded under s. 24(2) - See paragraphs 140 to 151.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - Arbitrary detention - What constitutes - The Highway Traffic Act (Alta.), s. 119, and the National Parks Highway Traffic Regulations, s. 22, required drivers to stop at the request of a peace officer - The Alberta Provincial Court held that these sections as well as the common law did not authorize National Park Wardens (peace officers) to randomly stop vehicles - See paragraphs 1 to 70 - The court alternatively held that if the statutory provisions or the common law could be said to implicitly give a warden power to randomly stop drivers, such laws were contrary to s. 9 of the Charter (arbitrary detention) and of no force or effect - See paragraphs 74 to 76, 88.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - Arbitrary detention - What constitutes - A National Park Warden stopped the accused at a random stop check to question him respecting possible fish, wildlife or firearms violations - The Alberta Provincial Court held that there was no authority at common law or in statute that authorized the random stop - The court held further that if it was wrong and there was authority for the stop check, then the stop check constituted an arbitrary detention contrary to s. 9 of the Charter which could not be justified under s. 1 - The court held that since s. 9 was violated, the evidence obtained by the warden respecting a firearms offence should be excluded under s. 24(2) of the Charter - See paragraphs 1 to 115.

Civil Rights - Topic 4602

Right to counsel - Denial of - Evidence taken inadmissable - A National Park warden stopped an accused at a random stop check to investigate for possible fish, wildlife and fire arms violations - The warden questioned the accused and found a loaded gun during a search of the vehicle - At no time was the accused informed of his right to counsel - The Alberta Provincial Court held that the accused was detained at the random stop and he should have been informed of his counsel rights (Charter, s. 10(b)), before he was questioned about possible violations of the law - The court held that because of this Charter violation, statements obtained from the accused and evidence found during the search should be excluded from evidence under s. 24(2) of the Charter - See paragraphs 116 to 139.

Civil Rights - Topic 4608

Right to counsel - Right to be advised of - [See Civil Rights - Topic 4602 above].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The Alberta Provincial Court held that the National Parks Wildlife Regulations were contrary to s. 8 of the Charter and of no force or effect so far as they authorized a demand on a randomly stopped driver to produce firearms, without reasonable and probable grounds - The court also held that the National Parks Act and the Regulations thereunder, if they could be taken to be authority for a random stop check of drivers to investigate for violations of the Regulations, were contrary to s. 9 of the Charter (arbitrary detention) - The court held that these violations of the Charter could not be justified under s. 1 - See paragraphs 1 to 115, 140 to 147.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Alberta Provincial Court held that a random stop check of a driver by a National Park Warden to investigate possible fish, wildlife or firearms violations was contrary to s. 9 of the Charter (arbitrary detention), s. 10(b)(right to counsel) and s. 8 (unreasonable search and seizure) - The court held that because of the violation of any one of these sections the evidence obtained at such a random stop check could be excluded under s. 24(2) of the Charter because to admit the evidence would bring the administration of justice into disrepute.

Evidence - Topic 7533

Competency of - Illegally obtained evidence - Exclusion of - General - The accused was stopped by a National Park Warden at a random stop check - The Alberta Provincial Court held that the stop was not authorized by statute or by common law - See paragraphs 1 to 70 - The court held however that the evidence obtained as a result of the unlawful stop could not be excluded on the basis of the common law (i.e. R. v. Wray, [1970] 4 C.C.C. 1, and R. v. Sang, [1979] 2 All E.R. 1222) - See paragraphs 71 to 73.

Fish and Game - Topic 5644

Enforcement - Searches - Random stopping of persons - A National Park Warden stopped a driver at a random stop check to investigate possible fish, wildlife or firearms violations - The Alberta Provincial Court held, inter alia, that (1) the warden lacked authority for the random stop either by statute or at common law including R. v. Dedman, 60 N.R. 34; 11 O.A.C. 241, (2) the random stop violated s. 9 of the Charter (arbitrary detention), s. 10(b)(right to counsel), and s. 8 (unreasonable search and seizure), and (3) the evidence obtained as a result of the random stop should be excluded under s. 24(2) of the Charter.

Police - Topic 3208

Powers - Direction - Random or arbitrary stopping of persons - [See Fish and Game - Topic 5644 above].

Police - Topic 3208

Powers - Direction - Random or arbitrary stopping of persons - The majority of the Supreme Court of Canada in R. v. Dedman, 60 N.R. 34; 11 O.A.C. 241, held that a random stop check by police under a program designed to detect impaired drivers was lawful - The Alberta Provincial Court noted that in western Canada many law enforcement agencies have taken R. v. Dedman to provide a blanket authority to carry out stop checks for a large variety of purposes - The Court stated that "in my view the [Dedman] decision stands for no such proposition but was very limited in its approach" - The Court also refused to extend R. v. Dedman to any other situation less serious in nature and was critical of law enforcement authorities for doing so - See paragraphs 27 to 37, 52 to 60.

Cases Noticed:

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241; 46 C.R.(3d) 193; 20 D.L.R.(4th) 321; 20 C.C.C. (3d) 97, consd. [para. 27 et seq.].

R. v. Waterfield, [1963] 3 All E.R. 659; [1964] 1 Q.B. 164, consd. [para. 31 et seq.].

Reference re an Application for an Authorization - see Interception of Private Communications Reference.

Wiretap Reference - see Interception of Private Communications Reference.

Interception of Private Communications Reference, [1984] 2 S.C.R. 697; [1985] 2 W.W.R. 193; 56 N.R. 43; 43 C.R.(3d) 151, consd. [para. 35].

Morris v. Beardmore, [1980] 2 All E.R. 753, consd. [paras. 36, 71, 73].

R. v. Neufeld (1985), 35 Man.R.(2d) 277; 22 C.C.C.(3d) 65 (Man. C.A.), consd. [paras. 52, 64, 91].

R. v. Guthrie (1982), 39 A.R. 435; 69 C.C.C.(2d) 216, refd to. [paras. 52, 61, 62].

R. v. Knowlton, 10 C.C.C.(2d) 377, refd to. [para. 53].

R. v. Doucette (1986), 76 N.S.R.(2d) 79; 189 A.P.R. 79 (C.A.), consd. [paras. 56, 91].

R. v. Rackow (1986), 73 A.R. 183, consd. [paras. 61, 62].

R. v. Rabb (1986), 75 A.R. 239, consd. [paras. 61, 62].

R. v. Wilson (1987), 76 A.R. 315 (C.A.), consd. [paras. 61, 62].

R. v. Iron, 53 Sask.R. 241, consd. [paras. 63, 76, 91, 94, 109].

Delaware v. Prouse (1979), 440 U.S. 648, consd. [para. 65].

Ghani v. Jones, [1970] 1 Q.B. 693, refd to. [paras. 69, 85].

R. v. Wray, [1970] 4 C.C.C. 1, consd. [paras. 71, 137].

R. v. Sang, [1979] 2 All E.R. 1222, consd. [paras. 71 to 73, 99, 101, 108].

R. v. Ladouceur (1987), 20 O.A.C. 1 (C.A.), consd. [paras. 75, 76, 79, 80].

R. v. Therens, [1985] 1 S.C.R. 613; 40 Sask.R. 122; 59 N.R. 122; 45 C.R.(3d) 97; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 18 C.C.C.(3d) 481, consd. [paras. 76, 91, 94, 100, 104, 110, 116, 121, 125, 129, 133].

R. v. Oakes, [1985] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R. (4th) 200; 24 C.C.C.(3d) 321; 50 C.R.(3d) 1, consd. [paras. 77, 80].

R. v. Seo (1986), 13 O.A.C. 359; 25 C.C.C.(3d) 385, refd to. [para. 86].

R. v. Collins (1987), 74 N.R. 276, consd. [paras. 94, 95, 96, 111, 113, 114, 134, 148].

R. v. Esposito, 12 O.A.C. 350; 24 C.C.C.(3d) 88, refd to. [paras. 102, 124, 125].

R. v. Ancelet, [1986] 4 W.W.R. 761; 70 A.R. 263, refd to. [paras. 102, 124, 125].

R. v. Philips and Reid (1986), 69 A.R. 54; 50 C.R.(3d) 315, consd. [paras. 104, 124, 125].

R. v. Roach, 66 A.R. 73; 23 C.C.C.(3d) 262 (C.A.), consd. [paras. 124, 125].

R. v. Strachan, 24 C.C.C.(3d) 205 (B.C.C.A.), consd. [paras. 124, 125].

R. v. Bazinet, 14 O.A.C. 15; 54 O.R.(2d) 129 (C.A.), consd. [paras. 124, 125].

Terry v. Ohio (1968), 20 L.E.D. 2d 889, refd to. [paras. 126, 155].

R. v. Dumas (1985), 66 A.R. 137; 23 C.C.C.(3d) 366 (C.A.), refd to. [para. 136].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, appld. [paras. 145, 148].

R. v. Beilard (1985), 61 A.R. 321, refd to. [para. 146].

Adams v. Williams (1972), 32 L.E.D. (2d) 612, refd to. [para. 155].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 1 [para. 18 et seq.]; sect. 8 [paras. 19, 140-151]; sect. 9 [paras. 20, 74-115]; sect. 10(b) [paras. 21, 116-139]; sect. 24(2) [para. 22 et seq.]; sect. 52(1) [para. 23 et seq.].

Highway Traffic Act, R.S.A. 1980, c. H-7, sect. 119 [paras. 16, 38, 43, 75 -87].

National Parks Act, R.S.C. 1970, c. N-13, sect. 2 [para. 14]; sect. 5(2) [para. 15]; sect. 8(1) [para. 1 et seq.]; sect. 8(2)(b) [para. 10 et seq.]; sect. 8(2.1)(a), sect. 8(2.1)(b) [para. 11 et seq.]; sect. 8(2.2) [para. 12]; sect. 8(2.3) [para. 13].

National Parks Highway Traffic Regulations, C.R.C. 1978, c. 1126, sect. 12(1) [paras. 9, 43]; sect. 22 [paras. 8, 43, 75-87].

National Parks Wildlife Regulations, sect. 20(3)(a) [para. 1 et seq.], sect. 21 [para. 7 et seq.].

Police Act, R.S.A. 1980, c. P-12, sect. 31 [paras. 17, 45].

Counsel:

S. Hamilton, for the Crown;

D. Mercer, for the accused.

This case was heard before Porter, P.C.J., of the Alberta Provincial Court, Criminal Division, who delivered the following decision on July 21, 1987.