R. v. Rosa (B.J.), 2008 ABQB 723

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 31, 2008
• Citations: 2008 ABQB 723;(2008), 462 A.R. 148 (QB)

R. v. Rosa (B.J.) (2008), 462 A.R. 148 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. DE.086

Her Majesty the Queen v. Bienvenido Jose Rosa (accused)

(061483053Q1; 2008 ABQB 723)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

November 25, 2008.

Summary:

Rosa was charged with possession of marijuana and cocaine for the purposes of trafficking. He applied to exclude the evidence on the basis of violations of his rights under ss. 8, 9 and 10(b) of the Charter.

The Alberta Court of Queen's Bench held that Rosa's rights under ss. 8, 9 and 10(b) of the Charter had been violated.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - Constable Kilb sought to arrest Nelson C. on an outstanding warrant - An undercover officer set up a "buy and bust" operation - Nelson C.'s vehicle arrived, but left before the transaction took place - The vehicle was followed - Just after midnight, the vehicle was "boxed in" by police - Rosa was removed from the driver's seat - Constable Paton arrested Rosa for outstanding warrants - Paton turned Rosa over to Kilb, who immediately recognized that Rosa was not the target - Kilb's "pat down" search of Rosa uncovered marijuana in Rosa's sock and $960 in cash - Meanwhile, Constable Mitchler had arrived - Mitchler smelled a "strong odour of marijuana" coming from the vehicle - Mitchler searched the vehicle, finding a cell phone, marijuana and marijuana grinding tools - Mitchler told Kilb that he had found drugs in the car - Kilb then arrested Rosa for "trafficking" and took him to the police station where he was cautioned and Chartered - At 1:00 a.m., Rosa was strip searched - Crack cocaine was found in his underwear - Rosa was charged with possession of marijuana and cocaine for the purposes of trafficking - He applied to exclude the evidence on the basis of violations of his rights under ss. 8, 9 and 10(b) of the Charter - The Alberta Court of Queen's Bench held that the search of Rosa and discovery of marijuana in his sock was a violation of Rosa's s. 8 Charter right - The search was not incidental to any lawful arrest - At best, Rosa was under an investigative detention at the time - There was no reasonable basis for Kilb to require Rosa to turn over the small package in his sock - See paragraphs 101 and 113.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - [See Civil Rights - Topic 1216 ].

Civil Rights - Topic 1216

Security of the person - Lawful or reasonable search - Strip searches - Constable Kilb sought to arrest Nelson C. on an outstanding warrant - An undercover officer set up a "buy and bust" operation - Nelson C.'s vehicle arrived, but left before the transaction took place - The vehicle was followed - Just after midnight, the vehicle was "boxed in" by police - Rosa was removed from the driver's seat - Constable Paton arrested Rosa for outstanding warrants - Paton turned Rosa over to Kilb, who immediately recognized that Rosa was not the target - Kilb's "pat down" search of Rosa uncovered marijuana in Rosa's sock and $960 in cash - Meanwhile, Constable Mitchler had arrived - Mitchler smelled a "strong odour of marijuana" coming from the vehicle - Mitchler searched the vehicle, finding a cell phone, marijuana and marijuana grinding tools - Mitchler told Kilb that he had found drugs in the car - Kilb then arrested Rosa for "trafficking" and took him to the police station where he was cautioned and Chartered - At 1:00 a.m., Rosa was strip searched - Crack cocaine was found in his underwear - Rosa was charged with possession of marijuana and cocaine for the purposes of trafficking - He applied to exclude the evidence on the basis of violations of his rights under ss. 8, 9 and 10(b) of the Charter - The Alberta Court of Queen's Bench held that the strip search was a violation of Rosa's s. 8 Charter right - Had Rosa been validly arrested for a drug offence, the strip search would have been a justified search incidental to arrest to search for evidence and to prevent the destruction of evidence - Further, the strip search was conducted in a reasonable manner - However, it was conducted pursuant to an unlawful arrest - See paragraphs 102 to 104 and 114.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See first Civil Rights - Topic 1214 , Civil Rights - Topic 1216 and Civil Rights - Topic 1646 ].

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - Constable Kilb sought to arrest Nelson C. on an outstanding warrant - An undercover officer set up a "buy and bust" operation - Nelson C.'s vehicle arrived, but left before the transaction took place - The vehicle was followed - Just after midnight, the vehicle was "boxed in" by police - Rosa was removed from the driver's seat - Constable Paton arrested Rosa for outstanding warrants - Paton turned Rosa over to Kilb, who immediately recognized that Rosa was not the target - Kilb's "pat down" search of Rosa uncovered marijuana in Rosa's sock and $960 in cash - Meanwhile, Constable Mitchler had arrived - Mitchler smelled a "strong odour of marijuana" coming from the vehicle - Mitchler searched the vehicle, finding a cell phone, marijuana and marijuana grinding tools - Mitchler told Kilb that he had found drugs in the car - Kilb then arrested Rosa for "trafficking" and took him to the police station where he was cautioned and Chartered - At 1:00 a.m., Rosa was strip searched - Crack cocaine was found in his underwear - Rosa was charged with possession of marijuana and cocaine for the purposes of trafficking - He applied to exclude the evidence on the basis of violations of his rights under ss. 8, 9 and 10(b) of the Charter - The Alberta Court of Queen's Bench held that the arrest of Rosa on the basis of there being an outstanding warrant for Nelson C. was unlawful and violated Rosa's s. 9 right - Even if Kilb subjectively believed that Rosa was in possession of marijuana and cocaine for the purposes of trafficking as a result of Rosa's dealings with the undercover officer, those grounds were not objectively reasonable and could not amount to grounds to arrest Rosa on drug charges - All that Kilb knew was that there was a meeting and no transaction had taken place - Rosa's arrest was not lawful - See paragraphs 73 to 89 and 108 to 110.

Civil Rights - Topic 1281

Security of the person - Unlawful arrest - General - [See Civil Rights - Topic 1262 and Civil Rights - Topic 1646 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Constable Kilb sought to arrest Nelson C. on an outstanding warrant - An undercover officer set up a "buy and bust" operation - Nelson C.'s vehicle arrived, but left before the transaction took place - The vehicle was followed - Just after midnight, the vehicle was "boxed in" by police - Rosa was removed from the driver's seat - Constable Paton arrested Rosa for outstanding warrants - Paton turned Rosa over to Kilb, who immediately recognized that Rosa was not the target - Kilb's "pat down" search of Rosa uncovered marijuana in Rosa's sock and $960 in cash - Meanwhile, Constable Mitchler had arrived - Mitchler smelled a "strong odour of marijuana" coming from the vehicle - Mitchler searched the vehicle, finding a cell phone, marijuana and marijuana grinding tools - Mitchler told Kilb that he had found drugs in the car - Kilb then arrested Rosa for "trafficking" and took him to the police station where he was cautioned and Chartered - At 1:00 a.m., Rosa was strip searched - Crack cocaine was found in his underwear - Rosa was charged with possession of marijuana and cocaine for the purposes of trafficking - He applied to exclude the evidence on the basis of violations of his rights under ss. 8, 9 and 10(b) of the Charter - The Alberta Court of Queen's Bench held that Mitchler's search of the vehicle was unlawful and violated Rosa's s. 8 Charter right - The smell of marijuana by itself did not justify the search - The search was not incidental to any lawful arrest, was not sought to be justified as a search incidental to investigative detention and was not necessary for officer safety reasons - Any arrest of Rosa based on the results of the search was a violation of Rosa's rights under s. 9 to be free from unreasonable detention and arrest - See paragraphs 90 to 100 and 112.

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1262 and Civil Rights - Topic 1646 ].

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - Constable Kilb sought to arrest Nelson C. on an outstanding warrant - An undercover officer set up a "buy and bust" operation - Nelson C.'s vehicle arrived, but left before the transaction took place - The vehicle was followed - Just after midnight, the vehicle was "boxed in" by police - Rosa was removed from the driver's seat - Constable Paton arrested Rosa for outstanding warrants - Paton did not "caution or Charter" Rosa - Paton turned Rosa over to Kilb, who immediately recognized that Rosa was not the target - Kilb's "pat down" search of Rosa uncovered marijuana in Rosa's sock and $960 in cash - Meanwhile, Constable Mitchler had arrived - Mitchler smelled a "strong odour of marijuana" coming from the vehicle - Mitchler searched the vehicle, finding a cell phone, marijuana and marijuana grinding tools - Mitchler told Kilb that he had found drugs in the car - Kilb then arrested Rosa for "trafficking" and took him to the police station where he was cautioned and Chartered - Rosa said that he wanted to contact a lawyer - At 1:00 a.m., Rosa was strip searched - Crack cocaine was found in his underwear - After the strip search, Rosa again indicated that he wanted to phone a lawyer - Kilb told Rosa that he would be released immediately, but that Kilb would "be in touch" in a few days - Rosa said that he did not need to contact a lawyer - Rosa was charged with possession of marijuana and cocaine for the purposes of trafficking - He applied to exclude the evidence on the basis of violations of his rights under ss. 8, 9 and 10(b) of the Charter - The Alberta Court of Queen's Bench held that Rosa's s. 10(b) right to counsel was violated when Kilb proceeded to strip search Rosa instead of facilitating his contact with counsel - In the context of a cooperative accused who had been found with small amounts of marijuana, the court doubted whether vague fears about the destruction of evidence warranted a continued denial of Rosa's s. 10(b) right, but that was a matter for analysis under s. 24(2) - Rosa was entitled to contact counsel immediately on arrest - He was not given that opportunity - His rights were thus denied - See paragraphs 105 to 107 and 115.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See first Civil Rights - Topic 1214 , Civil Rights - Topic 1216 and Civil Rights - Topic 1646 ].

Police - Topic 3063

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

Police - Topic 3185

Powers - Search - Following arrest or detention - [See first Civil Rights - Topic 1214 , Civil Rights - Topic 1216 and Civil Rights - Topic 1646 ].

Cases Noticed:

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 53 C.C.C.(3d) 316; 75 C.R.(3d) 1, refd to. [para. 54].

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. 60].

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. 61].

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. 62].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201; 2001 SCC 83, refd to. [para. 63].

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. 63].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 64].

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; 2003 SCC 30, refd to. [para. 65].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, refd to. [para. 65].

R. v. Collins (1987), 74 N.R. 276; 3 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 66].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 66].

R. v. Edwards (C.) (1996), 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136 (S.C.C.), refd to. [para. 67].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193; 73 C.R.(3d) 129, refd to. [para. 67].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241; 53 C.C.C.(3d) 257; 74 C.R.(3d) 316, refd to. [para. 68].

R. v. Rajaratnam (M.) (2006), 397 A.R. 126; 384 W.A.C. 126; 214 C.C.C.(3d) 547; 2006 ABCA 333, refd to. [para. 70].

R. v. Chin (L.A.) (2003), 345 A.R. 157; 2003 ABPC 118, refd to. [para. 70].

R. v. Thomas (H.), [2004] O.T.C. 398 (Sup. Ct.), refd to. [para. 72].

R. v. Chambers (R.) et al. (2007), 442 A.R. 89 (Q.B.), refd to. [para. 74].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 90].

R. v. Loewen (D.J.) (2008), 461 A.R. 193; 2008 ABQB 660, refd to. [para. 92].

R. v. Evers (W.D.), [2008] A.R. Uned. 614; 2008 ABQB 592, refd to. [para. 93].

R. v. Krall (A.J.) (2003), 341 A.R. 311; 2003 ABPC 171, refd to. [para. 94].

R. v. Janvier (A.V.), (2007), 302 Sask.R. 190; 411 W.A.C. 190; 227 C.C.C.(3d) 294; 2007 SKCA 147, refd to. [para. 94].

R. v. Polashek (P.K.) (1999), 118 O.A.C. 312; 45 O.R.(3d) 434 (C.A.), refd to. [para. 95].

R. v. Calderon (P.F.E.), [2002] O.T.C. 450; 54 W.C.B.(2d) 507 (Sup. Ct.), revd. (2004), 188 C.C.C.(3d) 481 (C.A.), refd to. [para. 95].

R. v. Sewell (E.E.) (2003), 232 Sask.R. 210; 294 W.A.C. 210; 2003 SKCA 52, refd to. [para. 95].

Counsel:

Perbeen Mann (Public Prosecution Service of Canada), for the Crown;

Darin H. Slaferek (Moreau & Company), for the accused.

This voir dire was heard on September 24 and 25 and October 31, 2008, by Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on November 25, 2008.