R. v. Rajaratnam (M.), (2006) 397 A.R. 126 (CA)

• Judge: Fruman, Martin and Watson, JJ.A.
• Neutral Citation: 2006 ABCA 333
• Citation: (2006), 397 A.R. 126 (CA),2006 ABCA 333,[2007] 2 WWR 222,397 AR 126,67 Alta LR (4th) 22,214 CCC (3d) 547,43 CR (6th) 280,[2006] AJ No 1373 (QL),148 CRR (2d) 172,384 WAC 126,71 WCB (2d) 655,384 W.A.C. 126,397 A.R. 126,[2006] A.J. No 1373 (QL),(2006), 397 AR 126 (CA)
• Date: 11 October 2006
• Court: Court of Appeal (Alberta)

R. v. Rajaratnam (M.) (2006), 397 A.R. 126 (CA);

      384 W.A.C. 126

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. NO.023

Her Majesty the Queen (respondent) v. Melvin Rajaratnam (appellant)

(0501-0352-A; 2006 ABCA 333)

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

Alberta Court of Appeal

Fruman, Martin and Watson, JJ.A.

November 7, 2006.

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 he had been arbitrarily detained, contrary to s. 9 of the Charter, and that the warrantless search was unreasonable, contrary to s. 8 of the Charter.

The Alberta Court of Queen's Bench, in a decision reported at 388 A.R. 69; 2005 ABQB 739, dismissed the application. Rajaratnam was convicted of possession for the purposes of trafficking. Rajaratnam appealed the decision regarding the exclusion of evidence and from the conviction.

The Alberta Court of Appeal dismissed the appeal.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - Police conducting surveillance at a bus station became suspicious of Rajaratnam - He had locked eyes with an officer and was "too well dressed" - His ticket had been purchased at the last minute with cash and was in a different name - Rajaratnam's checked bag had a strong odour of Bounce, a fabric softener 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 trial court dismissed the application, finding that the officers had reasonable and probable grounds to arrest Rajaratnam and to perform a search incidental to the arrest - Rajaratnam was convicted - He appealed, asserting, inter alia, that the officers had nothing more than a reasonable suspicion and that there were innocent explanations for many of the facts relied on by the trial judge in concluding that there were reasonable and probable grounds for the arrest - The Alberta Court of Appeal dismissed the appeal - When viewed as a whole, the facts supported the trial judge's conclusion - While it was open to the trial judge to draw innocent inferences, her failure to do so did not amount to a palpable and overriding error - See paragraphs 20 to 27.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - Police conducting surveillance at a bus station became suspicious of Rajaratnam - His bag smelled strongly of Bounce, a fabric softener commonly used to camouflage the odour of drugs - Rajaratnam was arrested - A search of the bag revealed cocaine - Rajaratnam was charged with possession for the purpose of trafficking - He applied to have the evidence excluded, submitting, inter alia, that the sniff of the bag was an unreasonable search - The trial court dismissed the application - Rajaratnam was convicted - He appealed, asserting that the sniff of the bag was a search of the bag's contents, a privacy interest attached to the contents and police could not search the bag without a warrant - The Alberta Court of Appeal dismissed the appeal - The trial judge made a critical finding that the odour could have been detected by third parties and was not subject to an obligation of confidentiality - The sniff was not intrusive - No technology was involved - A reasonable person would have known that strong odours escaped from bags and that third parties might detect them - Even if the sniff could expose personal information, there could be no reasonable expectation of privacy in these circumstances - The trial judge had not erred - See paragraphs 28 to 51.

Civil Rights - Topic 1524

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

Civil Rights - Topic 1650.1

Property - Search and seizure - Warrantless search and seizure - What constitutes - [See 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 - An officer approached Rajaratnam outside the terminal - The officer told Rajaratnam that the police were 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 - 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 trial court dismissed the application and convicted Rajaratnam - He appealed - The Alberta Court of Appeal dismissed the appeal - Although Rajaratnam testified that he felt detained, the trial judge made a crucial fact finding that the conversation was voluntary - The fact that Rajaratnam disclosed information that others might refuse to divulge did not equate to a Charter violation - The evidence supported the judge's conclusion - Rajaratnam had failed to point to any assailable legal or factual error - See paragraphs 11 to 19.

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1262 and Civil Rights - Topic 3603 ].

Police - Topic 3186

Powers - Search - Private property - [See Civil Rights - Topic 1508 ].

Cases Noticed:

R. v. Ngo (D.T.) (2003), 327 A.R. 320; 296 W.A.C. 320; 175 C.C.C.(3d) 290; 2003 ABCA 121, refd to. [para. 10].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 10].

R. v. Gallup (H.A.) (2004), 357 A.R. 336; 334 W.A.C. 336; 2004 ABCA 322, refd to. [para. 10].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 10].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 12].

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. 13].

R. v. C.R.H. (2003), 173 Man.R.(2d) 113; 293 W.A.C. 113; 2003 MBCA 38, refd to. [para. 13].

R. v. Kang-Brown (G.) (2005), 386 A.R. 48; 2005 ABQB 608, affd. (2006), 391 A.R. 218; 377 W.A.C. 218; 70 W.C.B.(2d) 19; 2006 ABCA 199, dist. [para. 14].

R. v. Brown - see R. v. Kang-Brown (G.).

R. v. Soares (1987), 19 O.A.C. 97 (C.A.), refd to. [para. 14].

R. v. Moran (1987), 21 O.A.C. 257 (C.A.), refd to. [para. 14].

R. v. Voss (1989), 33 O.A.C. 190 (C.A.), refd to. [para. 14].

R. v. Fash (D.M.) (1999), 244 A.R. 146; 209 W.A.C. 146; 1999 ABCA 267, refd to. [para. 14].

R. v. Dinh (H.T.) et al. (2003), 330 A.R. 63; 299 W.A.C. 63; 2003 ABCA 201, dist. [para. 17].

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

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, dist. [para. 18].

R. v. Rutten (G.) (2006), 279 Sask.R. 201; 372 W.A.C. 201; 205 C.C.C.(3d) 504; 2006 SKCA 17, dist. [para. 18].

R. v. S.H. (2005), 130 C.R.R.(2d) 277; 2005 ONCJ 131, dist. [para. 18].

R. v. Young (M.R.) (1997), 101 O.A.C. 81 (C.A.), dist. [para. 18].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 22].

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. 22].

R. v. Luu (T.T.T.) et al. (2006), 222 B.C.A.C. 275; 368 W.A.C. 275; 2006 BCCA 73, leave to appeal refused 358 N.R. 397, refd to. [para. 24].

R. v. Smith (W.M.) (1998), 219 A.R. 109; 179 W.A.C. 109; 1998 ABCA 418, refd to. [para. 25].

R. v. Sinclair (E.J.) (2005), 192 Man.R.(2d) 283; 340 W.A.C. 283; 2005 MBCA 41, refd to. [para. 25].

R. v. Kluczny (B.D.) et al. (2005), 385 A.R. 182; 2005 ABQB 350, refd to. [para. 25].

R. v. Lo (G.J.), [1997] B.C.T.C. Uned. 886; 35 W.C.B.(2d) 140 (S.C.), refd to. [para. 25].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 28].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 28].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, consd. [para. 31].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 36].

Kyllo v. United States (2001), 533 U.S. 27, refd to. [para. 49].

Counsel:

H. Wolch, Q.C., and W. de Wit, for the appellant;

J. Antonio, for the respondent.

This appeal was heard on October 11, 2006, by Fruman, Martin and Watson, JJ.A., of the Alberta Court of Appeal. The Court delivered the following memorandum of judgment on November 7, 2006.