R. v. Pearson (B.J.), 2012 ABCA 239

• Judge: Hunt, McDonald and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: August 02, 2012
• Citations: 2012 ABCA 239;(2012), 536 A.R. 37

R. v. Pearson (B.J.) (2012), 536 A.R. 37; 559 W.A.C. 37 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. AU.012

Her Majesty the Queen (respondent) v. Bryan James Pearson (appellant/accused)

(0903-0218-A; 2012 ABCA 239)

Indexed As: R. v. Pearson (B.J.)

Alberta Court of Appeal

Hunt, McDonald and O'Ferrall, JJ.A.

August 2, 2012.

Summary:

The accused was lawfully stopped for speeding in a rental vehicle. The officer suspected that there were drugs in the vehicle due to the a smell of raw marijuana and the accused's nervousness. The officer detained the accused for suspected drug possession and advised him of his Charter rights. The officer called for a narcotics sniffer dog, who gave a positive indication. The officer then conducted a warrantless search of the vehicle. A significant quantity of cocaine was found. The accused was charged with possession of cocaine for the purpose of trafficking and re-advised of his Charter rights. The accused sought exclusion of the evidence obtained in the search under s. 24(2) of the Charter, alleging a denial of his rights under ss. 8, 9 and 10 of the Charter. The Crown conceded a denial of ss. 10(a) and (b) in the officer continuing his conversation with the accused after smelling the marijuana, but submitted that the search was lawful as incidental to a lawful investigative detention and the evidence obtained in the search should not be excluded.

The Alberta Court of Queen's Bench, in a judgment reported (2009), 473 A.R. 357, held that with the exception of the conceded breaches of ss. 10(a) and (b) of the Charter with respect to a portion of the conversation between the police and the accused, there was no violation of the accused's Charter rights. The evidence of that limited portion of their conversation was excluded. However, all other evidence, including the results of the search, was admissible. The accused was subsequently convicted of possession of cocaine for the purpose of trafficking. The accused appealed on the ground that the trial judge erred in declining to exclude the evidence.

The Alberta Court of Appeal dismissed the appeal.

Civil Rights - Topic 1641.4

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

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1651 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - The accused was lawfully stopped for speeding in a rental vehicle - The officer engaged the accused in conversation about his travel plans - The officer suspected that there were drugs in the vehicle due to the a smell of raw marijuana and the accused's nervousness - The officer detained the accused for suspected drug possession, advised him of his Charter rights and called for a narcotics sniffer dog - The dog gave a positive indication - The officer arrested the accused without warrant and conducted a warrantless search of the vehicle - A significant quantity of cocaine was found - The accused was re-arrested for possession of cocaine for the purpose of trafficking and re-advised of his Charter rights - The accused sought exclusion of the evidence obtained in the search under s. 24(2) of the Charter, alleging a denial of his rights under ss. 8, 9 and 10 of the Charter - The Crown conceded a denial of ss. 10(a) and (b) where the officer continued talking with the accused respecting his travel plans after smelling the marijuana, but submitted that the vehicle search was lawful as incidental to a lawful investigative detention - The trial judge held that with the exception of the conceded breaches of ss. 10(a) and (b) of the Charter with respect to a portion of the conversation between the police and the accused, there was no violation of the accused's Charter rights - The evidence of that limited portion of their conversation was excluded - All other evidence, including the results of the search, was admissible - The traffic stop was lawful - The officer's reasonable suspicion of drugs in the vehicle justified use of the sniffer dog - The sniffer dog's positive indication constituted reasonable and probable grounds to arrest the accused - The vehicle search without warrant was lawful as incidental to the arrest - There was no unreasonable search and seizure - Exclusion of the drug search evidence would bring the administration of justice into disrepute - The Alberta Court of Appeal dismissed the accused's appeal - Other than the conceded Charter breaches, the accused's Charter rights were not infringed - The trial judge did not err in declining to exclude the evidence under s. 24(2).

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1651 ].

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 1651 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1651 ].

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 1651 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1651 ].

Cases Noticed:

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161, refd to. [para. 13].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 19].

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. 19].

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; 2010 SCC 24, refd to. [para. 29].

R. v. Ngo (D.T.) (2003), 327 A.R. 320; 296 W.A.C. 320; 2003 ABCA 121, refd to. [para. 36].

R. v. Loewen (D.J.), [2011] 2 S.C.R. 167; 415 N.R. 397; 502 A.R. 3; 517 W.A.C. 3; 2011 SCC 21, refd to. [para. 37].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, refd to. [para. 38].

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. 38].

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; 2004 SCC 52, refd to. [para. 44].

R. v. Harding (S.G.) (2010), 482 A.R. 262; 490 W.A.C. 262; 2010 ABCA 180, refd to. [para. 45].

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. 46].

R. v. Yague (D.C.) (2005), 371 A.R. 286; 354 W.A.C. 286; 2005 ABCA 140, refd to. [para. 47].

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. 54].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193; 22 O.R.(3d) 514 (C.A.), refd to. [para. 61].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1, refd to. [para. 63].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 79].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273; 56 D.L.R.(4th) 673, refd to. [para. 82].

R. v. D.H.W., [2008] 2 S.C.R. 235; 375 N.R. 217; 255 B.C.A.C. 1; 430 W.A.C. 1; 2008 SCC 33, refd to. [para. 82].

R. v. Wittwer - see R. v. D.H.W.

R. v. Polashek (P.K.) (1999), 118 O.A.C. 312; 45 O.R.(3d) 434; 172 D.L.R.(4th) 350 (C.A.), refd to. [para. 83].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 95].

R. v. Dionisi (A.P.) (2012), 519 A.R. 313; 539 W.A.C. 313; 2012 ABCA 20, refd to. [para. 97].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 103].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 103].

Counsel:

N.R. Sissons, for the appellant;

M.B. Dion, for the respondent.

This appeal was heard on January 12, 2012, at Edmonton, Alberta, before Hunt, McDonald and O'Ferrall, JJ.A., of the Alberta Court of Appeal.

On August 2, 2012, the following memorandum of judgment was delivered by the Court and the following opinions were filed:

McDonald, J.A. - see paragraphs 1 to 65;

Hunt, J.A. - see paragraphs 66 to 110;

O'Ferrall, J.A. - see paragraphs 111 to 112.