R. v. Rajaratnam (M.), 2005 ABQB 739

• Judge: Rowbotham, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 12, 2005
• Citations: 2005 ABQB 739;(2005), 388 A.R. 69 (QB)

R. v. Rajaratnam (M.) (2005), 388 A.R. 69 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. OC.106

Her Majesty the Queen (Crown) v. Melvin Rajaratnam (accused)

(030865703 Q 1; 2005 ABQB 739)

Indexed As: R. v. Rajaratnam (M.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Rowbotham, J.

October 12, 2005.

Summary:

Police conducting surveillance at a bus station became suspicious of Rajaratnam. His checked bag smelled strongly of Bounce, a fabric softener known to be used to camouflage the odour of drugs. Rajaratnam was arrested and charged with possession for the purpose of trafficking. A search of his bag revealed two bricks of cocaine. Rajaratnam applied to have the evidence excluded under s. 24(2) of the Charter, submitting that the warrantless search was unreasonable, contrary to s. 8 of the Charter.

The Alberta Court of Queen's Bench dismissed the application.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - Police conducting surveillance at a bus station became suspicious of Rajaratnam - He had locked eyes with an officer and was "too well dressed" - The officer asked to see Rajaratnam's ticket - The ticket had been purchased at the last minute with cash and was in a different name - Rajaratnam became noticeably nervous - The officer found Rajaratnam's checked bag on a trolley - It had a strong odour of Bounce, a fabric softener that was used to camouflage the odour of drugs - Rajaratnam was arrested and charged with possession for the purpose of trafficking - A search of the bag revealed cocaine - He applied to have the evidence excluded, submitting, inter alia, that the warrantless search was unreasonable, contrary to the Charter s. 8 - The Alberta Court of Queen's Bench dismissed the application - The arrest was lawful - The last minute ticket purchase with cash in a false name constituted a reasonable ground to arouse suspicion - That combined with the change in Rajaratnam's demeanour and the officer's training to detect odours were reasonable and probable grounds to arrest Rajaratnam - The search of the bag was done strictly for reasons incidental to the arrest and was carried out reasonably - A warrant was unnecessary - See paragraphs 24 to 37.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Civil Rights - Topic 1214 and Civil Rights - Topic 1508 ].

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - [See Civil Rights - Topic 1214 ].

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - Police conducting surveillance at a bus station became suspicious of Rajaratnam - After speaking with him, an officer located Rajaratnam's checked bag on a trolley - It smelled strongly of Bounce, a fabric softener the officer knew was used to camouflage the odour of drugs - Rajaratnam was arrested and charged with possession for the purpose of trafficking - He applied to have the evidence excluded, submitting, inter alia, that the search of the bag was unreasonable as it violated his expectation of privacy - The Alberta Court of Queen's Bench dismissed the application - Rajaratnam did not have a reasonable expectation of privacy with respect to smells emanating from his bag - Rajaratnam's evidence that he was "okay" with a Greyhound employee going through the bag precluded a finding that he had a subjective expectation of privacy - Regarding an objective expectation of privacy, the bag was in an area accessible to members of the travelling public, out in the open, and had not been abandoned - The odour emanating from it could have been detected by third parties - The police technique was nonintrusive and was not objectively unreasonable, particularly where a dog was not required - The technique had not exposed intimate details of Rajaratnam's lifestyle - See paragraphs 38 to 65.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police - [See Civil Rights - Topic 1214 and Civil Rights - Topic 1508 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Police conducting surveillance at a bus station became suspicious of Rajaratnam - He was approached outside the terminal by an officer - The officer identified himself - The officer told Rajaratnam that the police were just talking to people as they travelled and that Rajaratnam was free to go at any time - Rajaratnam was asked to produce his bus ticket and identification - He did so and told the officer he had one checked bag - The officer went back into the terminal - Rajaratnam followed him out of curiosity - Subsequently, drugs were found in Rajaratnam's bag and he was charged with possession of cocaine for the purpose of trafficking - He applied to have the evidence excluded, submitting, inter alia, that when the officer spoke with him he had been arbitrarily detained in violation of the Charter s. 9 - The Alberta Court of Queen's Bench dismissed the application - There was no physical or psychological detention - The officer told Rajaratnam that he did not have to speak with him - The conversation was polite and friendly - Rajaratnam's participation was voluntary - The officer turned and left Rajaratnam alone outside the terminal - See paragraphs 15 to 23.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - [See Civil Rights - Topic 3603 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1214 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1214 ].

Cases Noticed:

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 15].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103, refd to. [para. 16].

R. v. Fash (D.M.), [2000] 1 W.W.R. 724; 244 A.R. 146; 209 W.A.C. 146; 139 C.C.C.(3d) 144; 1999 ABCA 267, refd to. [para. 18].

R. v. Kang-Brown (G.) (2005), 386 A.R. 48; 2005 ABQB 608, refd to. [para. 19].

R. v. Soares (1987), 19 O.A.C. 97; 34 C.C.C.(3d) 403 (C.A.), refd to. [para. 19].

R. v. Moran (1988), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), refd to. [para. 19].

R. v. Voss (1989), 33 O.A.C. 190; 50 C.C.C.(3d) 58 (C.A.), refd to. [para. 19].

R. v. Hoang (T.V.) (2001), 284 A.R. 201; 2000 ABPC 200, affd. (2003), 339 A.R. 291; 312 W.A.C. 291; 2003 ABCA 251, refd to. [para. 20].

R. v. Rochat (R.R.) (1999), 241 A.R. 201; 1999 ABPC 10, refd to. [para. 21].

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

R. v. Dinh (H.T.) et al., 2002 ABQB 504, refd to. [para. 33].

R. v. Miller (M.A.) (2000), 269 A.R. 376; 2000 ABPC 122, refd to. [para. 33].

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. 36].

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. 36].

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; 174 C.C.C.(3d) 97; 2003 SCC 30, dist. [para. 39].

R. v. Dinh (H.T.) et al. (2003), 330 A.R. 63; 299 W.A.C. 63; 178 C.C.C.(3d) 59; 2003 ABCA 201, dist. [para. 39].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, reving. (2003), 168 O.A.C. 124; 171 C.C.C.(3d) 361; 9 C.R.(6th) 36; 63 O.R.(3d) 1 (C.A.), appld. [para. 39].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 48].

Counsel:

Barbara L. Veldhuis, for the Crown;

Daniel B. Geller, for the accused.

This voir dire was heard on May 17-19, 2005, by Rowbotham, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on October 12, 2005.