R. v. Pearson (B.J.), (2009) 473 A.R. 357 (QB)

• Judge: Verville, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 29, 2009
• Citations: (2009), 473 A.R. 357 (QB);2009 ABQB 382

R. v. Pearson (B.J.) (2009), 473 A.R. 357 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JN.125

Her Majesty The Queen v. Bryan James Pearson (070704671Q1; 2009 ABQB 382)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Verville, J.

June 24, 2009.

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 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.

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 and advised him of his Charter rights - The officer 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 his conversation 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 Alberta Court of Queen's Bench 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 traffic stop was lawful - The officer's reasonable suspicion of drugs in the vehicle justified used 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.

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. 36].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 40].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321, refd to. [para. 40].

R. v. Simpson (R.) (1993), 60 O.A.C. 327 (C.A.), refd to. [para. 44].

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. 45].

R. v. Grant (D.) (2006), 213 O.A.C. 127; 209 C.C.C.(3d) 250; 81 O.R.(3d) 1 (C.A.), refd to. [para. 49].

R. v. Rutten (G.), [2006] 6 W.W.R. 583; 279 Sask.R. 201; 372 W.A.C. 201; 2006 SKCA 17, refd to. [para. 51].

R. v. Nguyen (H.Q.) et al. (2008), 324 Sask.R. 1; 451 W.A.C. 1; 240 C.C.C.(3d) 49; 2008 SKCA 160, refd to. [para. 52].

R. v. Bramley (R.L.) (2009), 324 Sask.R. 286; 451 W.A.C. 286; 2009 SKCA 49, refd to. [para. 53].

R. v. Sawatsky (W.L.) (1997), 103 O.A.C. 68 (C.A.), refd to. [para. 56].

R. v. Suberu (M.) (2007), 220 O.A.C. 322; 218 C.C.C.(3d) 27 (C.A.), refd to. [para. 57].

R. v. Evers (W.D.), [2008] A.R. Uned. 614; 2008 ABQB 592, refd to. [para. 68].

R. v. Loewen (D.J.) (2008), 461 A.R. 193; 2008 ABQB 660, refd to. [para. 68].

R. v. Harding (S.G.), [2008] A.R. Uned. 749; 2008 ABQB 761, refd to. [para. 68].

R. v. Dinh (H.T.) et al. (2003), 330 A.R. 63; 299 W.A.C. 63; 2003 ABCA 201, refd to. [para. 70].

R. v. Lam (T.K.) - see R. v. Dinh (H.T.) et al.

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168, refd to. [para. 70].

R. v. Kang-Brown (G.) (2006), 391 A.R. 218; 377 W.A.C. 218; 2006 ABCA 199, refd to. [para. 70].

R. v. Kang-Brown (G.) (2008), 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 70].

R. v. A.M. (2008), 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, refd to. [para. 70].

R. v. Webster (B.L.) (2008), 262 B.C.A.C. 168; 441 W.A.C. 168; 2008 BCCA 458, refd to. [para. 76].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 80].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 81].

R. v. Smith (W.M.) (1998), 219 A.R. 109; 179 W.A.C. 109; 1998 ABCA 418, refd to. [para. 82].

R. v. Polashek (P.K.) (1999), 118 O.A.C. 312; 45 O.R.(3d) 434 (C.A.), refd to. [para. 82].

R. v. Chubak (M.J.) (2009), 446 A.R. 283; 442 W.A.C. 283; 2009 ABCA 8, refd to. [para. 86].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 94].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 95].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72, refd to. [para. 103].

R. v. Belnavis (A.) and Lawrence (C.) (1996), 91 O.A.C. 3; 29 O.R.(3d) 321 (C.A.), affd. [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 104].

R. v. Harrison (B.) (2008), 233 O.A.C. 211; 2008 ONCA 85, refd to. [para. 105].

Counsel:

Craig A. Kallal, for the Crown;

Jamel H. Chadi, for the accused.

This matter was heard on January 19 and May 29, 2009, before Verville, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on June 24, 2009.