R. v. Navales (E.J.), (2011) 520 A.R. 110 (QB)

• Judge: Hughes, J.
• Court: Court of Queen''s Bench of Alberta (Canada)
• Case Date: Tuesday June 28, 2011
• Citations: (2011), 520 A.R. 110 (QB);2011 ABQB 404

R. v. Navales (E.J.) (2011), 520 A.R. 110 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JL.034

Her Majesty The Queen v. Eric John Navales (071434005Q1; 2011 ABQB 404)

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

Alberta Court of Queen's Bench

Judicial District of Calgary

Hughes, J.

June 28, 2011.

Summary:

A police officer engaged the accused in conversation after he disembarked a Vancouver to Calgary bus. Based on that conversation, the officer called in a drug-sniffing dog. The dog confirmed the presence of drugs in the accused's luggage (10 kilograms of cocaine). The accused argued that he had been subjected to an unreasonable search and seizure (Charter, s. 8), as the officer lacked the requisite reasonable suspicion to warrant using the drug-sniffing dog (i.e. acted on a hunch). The accused sought to exclude the evidence under s. 24(2).

The Alberta Court of Queen's Bench held that the officer did not call in the drug-sniffing dog until after he had, on the basis of all of the circumstances, an objectively reasonable suspicion that the accused was carrying drugs. The accused was accordingly not subjected to an unreasonable search and seizure.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - A police Jetway drug unit was working the Calgary bus depot - The overnight bus from Vancouver to Calgary was a common drug courier run - When an officer made eye contact with disembarking passengers, the accused made unusually long eye contact - As the accused entered the bus depot, he looked back over his shoulder - Inside the depot, police were training drug-sniffing dogs - The accused constantly watched the dogs - While attempting to enter the washroom and later exit the depot, the accused made abrupt direction changes to avoid the dogs - The officer engaged the accused in conversation - The officer learned that the accused purchased his one-way bus ticket at the last minute using cash, appeared to purchase the ticket using a false name, and had a large number of $100 bills in his wallet (common amongst couriers) - Within a two minute period, the accused gave two different versions of how long he was staying in Calgary - The accused became increasingly nervous and, when asked if he packed his own luggage, the accused answered "for the most part" after a 3-4 second delay - At that point, the officer called in a drug-sniffing dog, which resulted in 10 kilograms of cocaine being found in the accused's luggage - The accused argued that the officer acted on a hunch, which constituted an unreasonable search and seizure (Charter, s. 8) - The Alberta Court of Queen's Bench held that the totality of the circumstances provided the officer with an objectively reasonable suspicion that the accused was transporting drugs - There was no unreasonable search and seizure.

Police - Topic 3189

Powers - Search - Use of dogs - [See Civil Rights - Topic 1641.4 ].

Cases Noticed:

R. v. Kang-Brown (G.) (2006), 391 A.R. 218; 377 W.A.C. 218 (C.A.), refd to. [para. 3].

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. 3].

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

R. v. Yeh (K.-P.T.) (2009), 337 Sask.R. 1; 464 W.A.C. 1; 2009 SKCA 112, refd to. [para. 13].

R. v. Payette (S.) (2010), 291 B.C.A.C. 289; 492 W.A.C. 289; 259 C.C.C.(3d) 178; 2010 BCCA 392, refd to. [para. 16].

R. v. Bramley (R.L.) et al. (2009), 324 Sask.R. 286; 451 W.A.C. 286; 2009 SKCA 49, refd to. [para. 16].

R. v. Schrenk (C.A.) (2010), 255 Man.R.(2d) 12; 486 W.A.C. 12; 2010 MBCA 38, refd to. [para. 16].

R. v. Savage (M.R.) (2011), 371 Sask.R. 283; 518 W.A.C. 283; 2011 SKCA 65, refd to. [para. 16].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 16].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51, refd to. [para. 18].

R. v. Lal (S.N.) (1998), 113 B.C.A.C. 47; 184 W.A.C. 47; 130 C.C.C.(3d) 413 (C.A.), leave to appeal dismissed (1999), 239 N.R. 400; 181 B.C.A.C. 320; 298 W.A.C. 320 (S.C.C.), refd to. [para. 19].

R. v. MacKenzie (B.C.) (2011), 371 Sask.R. 291; 518 W.A.C. 291; 2011 SKCA 64, refd to. [para. 20].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 2001 SCC 32, refd to. [para. 31].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150; 2005 SCC 71, refd to. [para. 32].

R. v. Zundel (1987), 18 O.A.C. 161; 35 D.L.R.(4th) 338 (C.A.), leave to appeal denied [1987] 1 S.C.R. xii; 80 N.R. 317; 23 O.A.C. 317, refd to. [para. 34].

R. v. Kirton (S.E.L.) (2007), 214 Man.R.(2d) 59; 395 W.A.C. 59; 219 C.C.C.(3d) 485; 2007 MBCA 38, refd to. [para. 35].

R. v. Levkovic (I.) (2010), 271 O.A.C. 177; 103 O.R.(3d) 1; 2010 ONCA 830, refd to. [para. 36].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), p. 1282 [para. 34].

Counsel:

Scott Couper, for the Crown;

Karen Molle (Molle Roulston Chow), for the accused.

This application was heard on May 2-4, 2011, before Hughes, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on June 28, 2011.