R. v. Quach (D.), (2014) 585 A.R. 91 (PC)

• Judge: Semenuk, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: January 23, 2014
• Citations: (2014), 585 A.R. 91 (PC);2014 ABPC 8

R. v. Quach (D.) (2014), 585 A.R. 91 (PC)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. FE.044

Her Majesty the Queen v. David Quach (111126181P1; 2014 ABPC 8)

Indexed As: R. v. Quach (D.)

Alberta Provincial Court

Semenuk, P.C.J.

January 23, 2014.

Summary:

The accused had been under police surveillance for three days for suspected drug trafficking when the police stopped his vehicle and arrested him for trafficking. He was searched incidental to his arrest. Cocaine was found in a bag he had been carrying. A search warrant was also obtained to search his vehicle and residence. The accused was charged with possession of cocaine for the purpose of trafficking. The accused applied under s. 24(2) of the Charter for exclusion of the evidence obtained in the search on the ground that he had been arbitrarily detained (s. 9) and subjected to an unreasonable search and seizure (s. 8).

The Alberta Provincial Court held that the police lacked reasonable grounds to arrest the accused. Accordingly, the accused had been arbitrarily arrested and subjected to an unreasonable search and seizure. The evidence was excluded under s. 24(2) to avoid bringing the administration of justice into disrepute.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - The accused had been under police surveillance for three days for suspected drug trafficking when the police stopped his vehicle and arrested him for trafficking - He was searched incidental to his arrest - Cocaine was found in a bag he had been carrying - A search warrant was also obtained to search his vehicle and residence - The accused was charged with possession of cocaine for the purpose of trafficking - The accused applied under s. 24(2) of the Charter to exclude the evidence obtained in the search on the ground that he had been arbitrarily arrested (s. 9) and subjected to an unreasonable search and seizure (s. 8) - The Alberta Provincial Court held that the police lacked reasonable grounds to arrest the accused - The confidential information relied on was not compelling and the credibility of the informant was questionable - The surveillance evidence was woefully inadequate to show drug trafficking activity - The credibility and reliability of the evidence of the police officer who made an uninformed decision to arrest the accused was concerning - The totality of the evidence from the various police witnesses did not stand up to independent scrutiny - Accordingly, the accused had been arbitrarily arrested and subjected to an unreasonable search and seizure - After considering the Grant factors (police conduct and seriousness of the breach, impact of the breach in undermining the accused's Charter rights, and the truth seeking function of a trial on the merits), the court excluded the evidence under s. 24(2) to avoid bringing the administration of justice into disrepute.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1217 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1217 ].

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 223].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 223].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 12 O.R.(3d) 182 (C.A.), refd to. [para. 223].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 223].

R. v. Rajaratnam (M.) (2006), 397 A.R. 126; 384 W.A.C. 126; 2006 ABCA 333, refd to. [para. 223].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 223].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257, refd to. [para. 223].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, affing. (1986), 17 O.A.C. 141; 30 C.C.C.(3d) 207 (C.A.), refd to. [para. 223].

R. v. Ducherer (D.E.) et al. (2006), 224 B.C.A.C. 251; 370 W.A.C. 251; 2006 BCCA 171, refd to. [para. 223].

R. v. Hatton (R.A.) (2011), 509 A.R. 262; 2011 ABQB 242, refd to. [para. 224].

R. v. Afshar (S.), [2010] A.R. Uned. 841; 2009 ABPC 368, refd to. [para. 224].

R. v. N.O. (2009), 448 A.R. 253; 447 W.A.C. 253; 2009 ABCA 75, refd to. [para. 224].

R. v. Henry (S.), [2010] O.T.C. Uned. 5206; 2010 ONSC 5206, refd to. [para. 224].

R. v. Zammit (J.) (1993), 62 O.A.C. 272; 81 C.C.C.(3d) 112 (C.A.), refd to. [para. 225].

R. v. Phung (J.) (2013), 542 A.R. 392; 566 W.A.C. 392; 2013 ABCA 63, refd to. [para. 225].

R. v. Hong (B.Q.), [2013] A.R. Uned. 348; 2013 ABPC 88, refd to. [para. 225].

R. v. Gezaw (Y.A.), [2013] A.R. Uned. 555; 2013 ABPC 236, refd to. [para. 225].

R. v. Celestin (R.V.), [2013] A.R. Uned. 581; 2013 ABPC 242, refd to. [para. 225].

R. v. Mayor (J.D.), [2013] A.R. Uned. 632; 2013 ABQB 598, refd to. [para. 225].

R. v. Chehil (M.S.) (2013), 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 2013 SCC 49, refd to. [para. 225].

R. v. MacKenzie (B.C.) (2013), 448 N.R. 246; 423 Sask.R. 185; 588 W.A.C. 185; 2013 SCC 50, refd to. [para. 225].

R. v. Messina (A.) (2013), 346 B.C.A.C. 179; 592 W.A.C. 179; 2013 BCCA 499, refd to. [para. 225].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 276].

Counsel:

G. Harlow, for the Crown;

S. Virk, for the accused.

This application was heard at Calgary, Alberta, before Semenuk, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on January 23, 2014.