R. v. Rochat (R.R.), (1999) 241 A.R. 201 (ProvCt)

• Judge: Fradsham, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: February 10, 1999
• Citations: (1999), 241 A.R. 201 (ProvCt)

R. v. Rochat (R.R.) (1999), 241 A.R. 201 (ProvCt)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. MR.025

In The Matter Of an application for an order of forfeiture of $20,523.25 pursuant to subsection 490(9) of the Criminal Code of Canada.

Her Majesty The Queen (applicant) v. Randal Ross Rochat (respondent)

(81171779Z0101)

Indexed As: R. v. Rochat (R.R.)

Alberta Provincial Court

Fradsham, P.C.J.

February 10, 1999.

Summary:

After making certain observations, a police officer working at an airport suspected that Rochat was involved in the drug trade. The officer approached Rochat and through discussions with him discovered that Rochat was carrying over $20,500 in cash. The officer seized the cash, suspecting that it was obtained through the commission of an offence. Rochat was never charged. The Crown applied for the forfeiture of the cash under ss. 490(6) and 490(9) of the Criminal Code. Rochat sought to have certain evi­dence excluded from the hearing. He alleged that statements that he made to the officer were not voluntary and that his ss. 7, 8, 9 and 10(b) Charter rights were violated.

Following a voir dire, the Alberta Provin­cial Court held that the statements made by Rochat to the officer were not voluntary. Further, his ss. 7, 8, 9 and 10(b) rights were violated. The court excluded the impugned evidence.

Civil Rights - Topic 1214

Security of the person - Lawful or reason­able search - Searches incidental to arrest or detention - A police officer working at an airport noticed Rochat was dressed casually, only had two pieces of luggage and was travelling alone - Rochat pur­chased a ticket to Vancouver - He checked one bag weighing only 2.5 kg - The officer saw Rochat check the contents of his hand luggage and "look over" the security station before entering the check-point - The officer became suspicious and approached Rochat to speak with him - After a brief discussion, Rochat indicated that he was carrying over $20,500 to pur­chase a car - The officer asked to see the money - Rochat complied - The Alberta Provincial Court held that the officer arbitrarily detained Rochat where he lacked articulable cause - Even if the detention was lawful, the circumstances did not justify an immediate search of Rochat's luggage - The court held that the search of Rochat's luggage was unreason­able and Rochat's s. 8 Charter right was violated - See paragraphs 78 to 98, 108, 109.

Civil Rights - Topic 1217

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

Civil Rights - Topic 1219

Security of the person - Lawful or reason­able search - Search defined - After mak­ing certain observations, a police officer working at an airport suspected that Rochat was involved in the drug trade - The officer approached Rochat, identified himself and asked to speak with Rochat - The officer asked to see Rochat's ticket and identification - He then asked if Rochat was carrying any narcotics or large sums of money - Rochat said that he had a large amount of money to purchase a car - The officer asked to see the money - Rochat complied - The Alberta Provincial Court held that the search began when the officer first made contact with Rochat or, at least, when he made direct inquiries about the contents of the luggage - See paragraphs 65 to 69.

Civil Rights - Topic 1222

Security of the person - Lawful or reason­able search - Consent to search or seizure -After making certain observations, a police officer working at an airport sus­pected that Rochat was involved in the drug trade - The officer approached Rochat, identified himself and asked to speak with Rochat - The officer asked Rochat if he was carry­ing any narcotics or large sums of money -Rochat said that he had a large amount of money to purchase a car - The officer asked to see the money - Rochat took out the money wrapped in a bag - The Alberta Provincial Court held that Rochat did not voluntarily consent to the search - Rochat, who was detained, was unaware that he could refuse the officer's request - See paragraphs 99 to 107.

Civil Rights - Topic 1410.2

Security of the person - Law enforcement -Investigation - [See Civil Rights - Topic 1214 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent - After making certain observations, a police officer working at an airport suspected that Rochat was involved in the drug trade - The officer approached Rochat and identified himself - After a brief discussion, Rochat said that he was carrying over $20,500 - The officer indi­cated that he suspected that the money was from the sale of drugs and stated that Rochat would have to explain the money or it would be seized - Subsequently, the officer said that if Rochat relinquished the money, the investigation would end, he could leave and have the money returned if he substantiated where it came from - The Alberta Provincial Court excluded statements made by Rochat as involuntary - Further, the officer denied Rochat's s. 7 right to remain silent - See paragraphs 118 to 149.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1214 ].

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - After making certain observations, a police officer work­ing at an airport suspected that Rochat was involved in the drug trade - The officer approached Rochat - He informed Rochat that he was a police officer and asked to speak with him - He told Rochat that he was "not in any sort of trouble" - The officer asked to see Rochat's ticket and identification - He then asked if Rochat was carrying any narcotics or large sums of money - The Alberta Provincial Court held that Rochat was detained when the officer began his conversation with him - Once the officer asked to speak with him, Rochat could only have concluded that he was potentially in some legal difficulty and that the things being asked of him by the officer were in the nature of directions - The situation amounted to psychological compulsion - See paragraphs 55 to 64.

Civil Rights - Topic 4604

Right to counsel - Denial of or interfer­ence with - What constitutes - After making certain observations, a police officer working at an airport suspected that Rochat was involved in the drug trade - The officer approached Rochat and ident­ified himself - After a brief discussion, Rochat said that he was carrying over $20,500 and showed the officer the money - The officer then took Rochat to a room to interview him about the money - The officer informed Rochat of his right to counsel - Rochat told the officer that he intended to purchase a car for a friend - The officer asked Rochat the friend's name - Rochat replied that "before I give you the name I'd like to consult with my law­yer" - The officer said that they would "skip that for now" and questioned Rochat about other matters - The Alberta Provin­cial Court held that the officer violated Rochat's right to counsel by failing to immediately inform him of the right and ignoring Rochat's request to speak to counsel - See paragraphs 110 to 117.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - After making certain obser­vations, a police officer working at an airport suspected that Rochat was involved in the drug trade - The officer approached Rochat and through discussions with him discovered that Rochat was carrying over $20,500 in cash - The officer seized the cash, suspecting that it was obtained through the commission of an offence - The police also seized a pager and found traces of marijuana - The Crown applied for the forfeiture of the cash - Rochat sought to have the evidence excluded, alleging that his ss. 7, 8, 9 and 10(b) Char­ter rights were violated - The Alberta Provincial Court held that Rochat's Charter rights were violated - The court excluded the impugned evidence under s. 24(2) of the Charter - See paragraphs 153 to 189.

Criminal Law - Topic 3171

Special powers - Power of seizure - For­feiture of things seized - A police sus­pected Rochat of being involved in the drug trade - The officer seized money that Rochat was carrying - The Crown applied for the forfeiture of seized money under ss. 490(6) and 490(9) of the Criminal Code - The Alberta Provincial Court discussed what the Crown had to prove in order to bring itself within the ambit of s. 490 - See paragraphs 29 to 54.

Criminal Law - Topic 5338

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Where accused's rights violated - [See Civil Rights - Topic 3160 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - [See Civil Rights - Topic 3160 ].

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 1214 ].

Police - Topic 3185

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

Cases Noticed:

R. v. Alderton (1985), 7 O.A.C. 121; 17 C.C.C.(3d) 204 (C.A.), refd to. [para. 36].

R. v. Boyd (1989), 89 N.S.R.(2d) 173; 227 A.P.R. 173; 48 C.C.C.(3d) 433 (C.A.), refd to. [para. 36].

R. v. Lerke (1986), 67 A.R. 390; 24 C.C.C.(3d) 129 (C.A.), refd to. [para. 36].

R. v. Mac (K.M.) et al. (1995), 80 O.A.C. 26; 97 C.C.C.(3d) 115 (C.A.), refd to. [para. 37].

R. v. Cutforth (1987), 81 A.R. 213 (C.A.), refd to. [para. 42].

R. v. Terrigno (M.) (1995), 175 A.R. 100; 101 C.C.C.(3d) 346 (Prov. Ct.), refd to. [para. 49].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 45 C.R.(3d) 97; 18 C.C.C.(3d) 481, refd to. [para. 56].

R. v. Lewicki (L.G.) (1994), 96 Man.R.(2d) 67 (Q.B.), refd to. [para. 58].

R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 122 C.C.C.(3d) 481 (C.A.), refd to. [para. 65].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1; 76 C.C.C.(3d) 481; 16 C.R.(4th) 273, refd to. [para. 66].

R. v. Young (M.R.) (1997), 101 O.A.C. 81; 116 C.C.C.(3d) 350 (C.A.), refd to. [para. 67].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 13 B.C.L.R.(2d) 1; 28 C.R.R. 122, refd to. [para. 70].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 70].

R. v. Eror (1991), 112 A.R. 309 (Prov. Ct.), folld. [para. 72].

R. v. Ferris (T.L.) (1998), 108 B.C.A.C. 244; 176 W.A.C. 244; 126 C.C.C.(3d) 298 (C.A.), refd to. [para. 74].

R. v. Lal (S.N.) (1998), 113 B.C.A.C. 47; 184 W.A.C. 47 (C.A.), refd to. [para. 76].

R. v. Simpson (R.) (1993), 60 O.A.C. 327 (C.A.), refd to. [para. 80].

R. v. Debot (1986), 17 O.A.C. 141; 30 C.C.C.(3d) 207 (C.A.), affd. [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193, refd to. [para. 91].

R. v. Burke (1997), 153 Nfld. & P.E.I.R. 91; 475 A.P.R. 91; 118 C.C.C.(3d) 59 (Nfld. C.A.), refd to. [para. 92].

R. v. Monney (1997), 105 O.A.C. 1; 120 C.C.C.(3d) 97 (C.A.), refd to. [para. 94].

R. v. Wills (1992), 52 O.A.C. 321; 70 C.C.C.(3d) 529 (C.A.), refd to. [para. 99].

R. v. Goldman (1979), 30 N.R. 453; 51 C.C.C.(2d) 1 (S.C.C.), refd to. [para. 101].

R. v. Meyers (1987), 78 A.R. 255; 58 C.R.(3d) 176 (Q.B.), refd to. [para. 102].

R. v. Alfreida, [1994] O.J. No. 2409 (Prov. Div.), refd to. [para. 106].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193, refd to. [para. 110].

Director of Public Prosecutions v. Ping Lin, [1975] 3 All E.R. 175 (H.L.), refd to. [para. 124].

R. v. Rennie, [1982] 1 All E.R. 385 (C.A.), refd to. [para. 131].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; 77 C.R.(3d) 145; 57 C.C.C.(3d) 1; [1990] 5 W.W.R. 1; 47 B.C.L.R.(2d) 1, refd to. [para. 134].

R. v. Wray, [1971] S.C.R. 272, refd to. [para. 135].

R. v. M.C.H. (1998), 230 N.R. 1; 113 O.A.C. 1; 18 C.R.(5th) 135 (S.C.C.), refd to. [para. 142].

R. v. De Mesquito (1915), 24 C.C.C. 407 (B.C.C.A.), refd to. [para. 146].

Comeau v. R. (1961), 131 C.C.C. 139 (N.S.C.A.), refd to. [para. 147].

R. v. Silveira (A.) (1995), 181 N.R. 161; 81 O.A.C. 161, refd to. [para. 156].

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; 113 C.C.C.(3d) 321; 5 C.R.(5th) 1, refd to. [para. 157].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85; 63 C.R.(3d) 1; 40 C.C.C.(3d) 411; 4 M.V.R.(2d) 185; 32 C.R.R. 257, refd to. [para. 169].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161; 61 C.C.C.(3d) 207; 1 C.R.(4th) 62; [1991] 1 W.W.R. 193; 51 B.C.L.R.(2d) 157; 50 C.R.R. 285, refd to. [para. 173].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 489(2) [para. 35]; sect. 489.1(1)(b) [para. 33]; sect. 490(1), sect. 490(2), sect. 490(3) [para. 31]; sect. 490(6), sect. 490(9) [para. 30].

Counsel:

B.A. Mercier and R.A. Siguardson, for the applicant;

S. Lord and B. Maude, for the respondent.

This matter was heard by Fradsham, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on Febru­ary 10, 1999.