R. v. Nguyen (M.J.T.X.), 2013 SKQB 36

• Jurisdiction: Saskatchewan
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Judge: Popescul
• Neutral Citation: 2013 SKQB 36
• Citation: 2013 SKQB 36,(2013), 412 Sask.R. 284 (QB),412 SaskR 284,(2013), 412 SaskR 284 (QB),412 Sask.R. 284
• Date: 04 February 2013

R. v. Nguyen (M.J.T.X.) (2013), 412 Sask.R. 284 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. FE.039

Her Majesty the Queen v. Mai Juliet Thi Xuan Nguyen

(2011 C.N.J. No. 1; 2013 SKQB 36)

Indexed As: R. v. Nguyen (M.J.T.X.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Swift Current

Popescul, C.J.Q.B.

February 4, 2013.

Summary:

The accused was charged with possession of marihuana for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. She claimed that her ss. 8, 9, 10(a) and 10(b) Charter rights had been breached, and applied pursuant to s. 24(2) to exclude the evidence.

The Saskatchewan Court of Queen's Bench dismissed the application and found the accused guilty.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - [See Civil Rights - Topic 1651 ].

Civil Rights - Topic 1287

Security of the person - Unlawful arrest - Right to be informed of reason for arrest - An officer (Walkden) stopped Nguyen's vehicle because she appeared to be using a cell phone - When he asked for her license and registration, Nguyen protested that she had not been speeding - Walkden responded that she had been stopped because she was using a cell phone and again requested the license and registration - Nguyen denied that she was talking on her phone - Walkden asked for the documentation a third time as Nguyen continued to protest - He then advised her that he was only going to issue a warning ticket - Nguyen continued to protest and then produced the documentation - She displayed an unusually high degree of agitation - Walkden called in another officer who was in the area with a drug detection dog - He conducted routine checks on Nguyen and discovered that she had previously been charged with drug-related offences, but the charges had been stayed - Walkden asked Nguyen to come to the front of his car because Nguyen's dog was barking and he found it difficult to have a conversation - He provided her with the warning ticket - Nguyen continued to exhibit a high degree of agitation - Walkden told Nguyen she was being detained for a drug investigation and advised her of her right to counsel - She declined the opportunity to contact counsel and was placed in the back of the police car - An officer then arrived with the drug detection dog - The dog gave a positive indication that there were drugs in the vehicle - Nguyen was arrested for possession of narcotics for the purpose of trafficking and again advised of her right to counsel - Nguyen phoned a lawyer - Walkden searched Nguyen's vehicle and found over 21 pounds of marihuana - Nguyen claimed that her ss. 10(a) and 10(b) Charter rights had been breached and applied to have the marihuana excluded pursuant to s. 24(2) - The Saskatchewan Court of Queen's Bench dismissed the application and convicted Nguyen - There was no factual basis to assert a s. 10 breach - Walkden did not arrive at the conclusion that he had a reasonable suspicion that Nguyen was in possession of illegal drugs until after he handed her the warning ticket and her nervousness was still present - It was at this point that he informed Nguyen that she was being detained because of a drug investigation, and she was clearly advised that she had the right to counsel without delay - See paragraphs 80 to 83.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - [See Civil Rights - Topic 1651 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - An officer (Walkden) stopped Nguyen's vehicle because she appeared to be using a cell phone - The vehicle had Manitoba license plates - When he asked for her license and registration, Nguyen protested that she had not been speeding - Walkden responded that she had been stopped because she was using a cell phone and again requested the license and registration - Nguyen denied that she was talking on her phone - Walkden asked for the documentation a third time as Nguyen continued to protest - He then advised her that he was only going to issue a warning ticket - Nguyen continued to protest and then produced the documentation - She stated that the vehicle belonged to a person who lived in Winnipeg, and she was travelling from Calgary to Winnipeg - She displayed an unusually high degree of agitation - Walkden called in another officer who was in the area with a drug detection dog - He conducted routine checks on Nguyen and discovered that she had previously been charged with drug-related offences, but the charges had been stayed - Walkden asked Nguyen to come to the front of his car because Nguyen's dog was barking and he found it difficult to have a conversation - He provided her with the warning ticket - Nguyen continued to exhibit a high degree of agitation - Walkden told Nguyen she was being detained for a drug investigation - The drug detection dog arrived and gave a positive indication that there were drugs in the vehicle - Nguyen was arrested for possession of narcotics for the purpose of trafficking - Walkden searched Nguyen's vehicle and found over 21 pounds of marihuana - Nguyen claimed that her ss. 8 and 9 Charter rights had been breached and applied to have the marihuana excluded pursuant to s. 24(2) - The Saskatchewan Court of Queen's Bench dismissed the application and convicted Nguyen - Walkden reasonably believed that Nguyen was using her cell phone and was therefore justified in stopping her - Walkden subjectively believed that he had reasonable grounds to suspect that Nguyen was in possession of a controlled substance and this belief was objectively reasonable - Walkden was a highly trained and experienced officer in the area of detecting signs and indications of those involved in illegally transporting drugs - He was well placed to discriminate between ordinary and excessive nervousness - He was trained to be observant and was able to articulate why a combination of individually benign circumstances added up to a reasonable suspicion - It was appropriate for Walkden to consider as part of his constellation of objectively discernable indicators the related stayed charges - It had some probative value and there was no public policy reason why it should not be considered - The arrest was based on reasonable and probable grounds to believe that Nguyen was transporting illegal drugs followed by a positive hit by the drug detection dog - Consequently, the arrest and the subsequent search incidental to the arrest were lawful - See paragraphs 35 to 79.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1651 ].

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 1287 ].

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - [See Civil Rights - Topic 1287 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - An officer (Walkden) stopped Nguyen's vehicle because she appeared to be using a cell phone - The vehicle had Manitoba license plates - When he asked for her license and registration, Nguyen protested that she had not been speeding - Walkden responded that she had been stopped because she was using a cell phone and again requested the license and registration - Nguyen denied that she was talking on her phone - Walkden asked for the documentation a third time as Nguyen continued to protest - He then advised her that he was only going to issue a warning ticket - Nguyen continued to protest and then produced the documentation - She stated that the vehicle belonged to a person who lived in Winnipeg, and she was travelling from Calgary to Winnipeg - She displayed an unusually high degree of agitation - Walkden requested the assistance of another officer who was in the area with a drug detection dog - He conducted routine checks on Nguyen and discovered that she had previously been charged with drug-related offences, but the charges had been stayed - Walkden asked Nguyen to come to the front of his car because Nguyen's dog was barking and he found it difficult to have a conversation - He provided her with the warning ticket - Nguyen continued to exhibit a high degree of agitation - Walkden told Nguyen she was being detained for a drug investigation - The drug detection dog arrived and gave a positive indication that there were drugs in Nguyen's vehicle - Nguyen was arrested for possession of narcotics for the purpose of trafficking - Walkden searched Nguyen's vehicle and found over 21 pounds of marihuana - Nguyen claimed that her Charter rights had been breached and applied to have the marihuana excluded pursuant to s. 24(2) - The Saskatchewan Court of Queen's Bench dismissed the application and convicted Nguyen - The court found that there had been no Charter breaches - Even if there was a breach of Nguyen's rights, the marihuana would not be excluded - The officer was acting in good faith, any breach was technical and minor and the impact was minimal - The marihuana was non-bodily physical evidence that was highly reliable and essential to the Crown's case - Admission of the evidence would not bring the administration of justice into disrepute - See paragraphs 84 to 93.

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches - Reasonable grounds - [See Civil Rights - Topic 1651 ].

Cases Noticed:

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183; 39 D.L.R.(4th) 481, refd to. [para. 23].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 132 D.L.R.(4th) 31, refd to. [para. 24].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81; 151 D.L.R.(4th) 443, refd to. [para. 24].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351; 70 C.C.C.(3d) 193, refd to. [para. 24].

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. 26].

R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, refd to. [para. 26].

R. v. Savage (M.R.) (2011), 371 Sask.R. 283; 518 W.A.C. 283; 2011 SKCA 65, consd. [para. 27].

R. v. MacKenzie (B.C.), [2011] 12 W.W.R. 102; 371 Sask.R. 291; 518 W.A.C. 291; 2011 SKCA 64, leave to appeal granted (2012), 435 N.R. 395 (S.C.C.), folld. [para. 28].

R. v. Gunn (V.E.) (2012), 399 Sask.R. 170; 552 W.A.C. 170; 2012 SKCA 80, refd to. [para. 29].

R. v. Nolet (R.) et al., [2009] 4 W.W.R. 604; 320 Sask.R. 179; 444 W.A.C. 179; 2009 SKCA 8, refd to. [para. 30].

R. v. Yeh (K.-P.T.), [2009] 11 W.W.R. 193; 337 Sask.R. 1; 464 W.A.C. 1; 2009 SKCA 112, refd to. [para. 31].

R. v. Savage (M.R.) (2009), 368 Sask.R. 199; 2009 SKPC 145, refd to. [para. 59].

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. 70].

R. v. Campbell (N.M.) (2010), 270 O.A.C. 349; 588 C.C.C.(3d) 1; 2010 ONCA 588, affd. [2011] 2 S.C.R. 549; 418 N.R. 1; 279 O.A.C. 52; 2011 SCC 32, refd to. [para. 72].

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. 85].

R. v. Cole (R.) et al. (2012), 436 N.R. 102; 297 O.A.C. 1; 96 C.R.(6th) 88; 2012 SCC 53, refd to. [para. 89].

Counsel:

Suzanne G. Young, for the Crown;

Charles R. Stewart, Q.C., and Maureen A. McConaghy, Q.C., for the accused.

This application was heard by Popescul, C.J.Q.B., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Swift Current, who delivered the following judgment on February 4, 2013.