R. v. Santos (P.M.), 2014 SKQB 5

• Judge: Gunn, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: Wednesday January 15, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKQB 5;(2014), 436 Sask.R. 1 (QB)

R. v. Santos (P.M.) (2014), 436 Sask.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. FE.003

Her Majesty the Queen v. Paulo Manuel Santos

(2012 QBG No. 3; 2014 SKQB 5)

Indexed As: R. v. Santos (P.M.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Swift Current

Gunn, J.

January 15, 2014.

Summary:

The accused was charged with possession of cocaine for the purpose of trafficking. At a voir dire, the issues were: (1) whether the Crown had proven beyond a reasonable doubt that the substance seized from the accused's vehicle was cocaine; (2) whether the accused's s. 7 Charter right to make full answer and defence was violated when a police officer muted the microphone of the police cruiser's audio-visual recording system, and if so, whether a stay of proceedings should be granted under s. 24(1); and (3) whether the accused's ss. 7, 8, 9 and 10 Charter rights were violated when he was stopped, detained, searched and arrested, and if so, whether all of the evidence and derivative evidence acquired by the police during the investigation should be excluded under s. 24(2).

The Saskatchewan Court of Queen's Bench held that the Crown had not proven beyond a reasonable doubt that the seized substance was cocaine. This ruling essentially disposed of the charge against the accused. However, in the event that the Crown called additional evidence at trial, or in the event that an appellate court disagreed, the court went on to deal with the other issues raised on the voir dire so that a complete record would be available. The court found that the accused's s. 7 rights were violated and that the appropriate remedy was a stay of proceedings. The court found that the accused's s. 10 rights were violated when police failed to provide him with his rights after being detained, but the court would not exclude the evidence.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - [See Civil Rights - Topic 3603].

Civil Rights - Topic 1645

Property - Search and seizure - Consent to search - [See Civil Rights - Topic 3603].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 3603].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Civil Rights - Topic 3603].

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - A police officer (Harris) stopped Santos' vehicle - At one point, Harris turned off the microphone of the police cruiser's audio/video recording system - He testified that he intentionally turned off the audio when he was having conversations with other police officers - The microphone was muted for about 49 of the 69 minutes that preceded Santos' arrest for possession of cocaine for the purpose of trafficking - Most of that time involved conversations with other officers - However, it was also muted when Santos withdrew his consent to a search of the vehicle - Santos argued that the intentional suppression of audio evidence at the roadside violated his s. 7 Charter right to make full answer and defence - He sought a stay of proceedings under s. 24(1) - The Saskatchewan Court of Queen's Bench found that Harris' actions were a breach of Santos' s. 7 rights and also an abuse of process - Harris was an experienced officer - He deliberately frustrated the Crown's disclosure obligations and contravened the RCMP's written policy respecting the audio-video system - The suppressed evidence related to major issues in the case and had a direct impact on the proceedings - The prejudice would be manifested, perpetuated or aggravated through the conduct of the trial - The only remedy capable of removing the prejudice was a stay of proceedings - Deliberate conduct that constituted bad faith on the part of the police warranted a stay - See paragraphs 148 to 162.

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - [See Civil Rights - Topic 4604].

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - [See Civil Rights - Topic 3133].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A police officer (Harris) stopped Santos' car after observing that Santos was sitting low in his seat, did not acknowledge Harris as he drove by, and the car had Manitoba licence plates - Santos appeared very nervous - His hands were shaking - He told Harris that he was travelling from Calgary to Winnipeg and the car belonged to a friend - Harris ran a computer check and learned that Santos had a valid driver's licence but a history of drug activity - Harris advised Santos that he was being detained for a drug investigation - Santos gave Harris permission to search the vehicle - Harris and another officer (Walkden) searched the vehicle and found that it had been modified - A search by a drug dog failed to produce a "hit" - When Santos withdrew his consent to the continuation of the search, Walkden placed him under arrest and the search continued as incidental to his arrest - Four bricks of a white substance were seized - Santos was charged with possession of cocaine for the purpose of trafficking - He argued that his ss. 7, 8 and 9 Charter rights were violated - The Saskatchewan Court of Queen's Bench held that the initial traffic stop was justified under the general authority afforded to police by the Traffic Safety Act - Given Santos' nervous demeanor, criminal history, the fact that the car was owned by a third party, and the fact that he was travelling from a source hub for narcotics (Calgary) to a known distribution centre for narcotics (Winnipeg), Harris had a reasonable suspicion that Santos was engaged in a drug-related offence - This gave Harris grounds to further detain Santos - Santos gave a valid consent to search and then withdrew that consent - Walkden was an extremely experienced officer and reasonably believed that there were drugs in a hidden compartment behind the back seat - Reasonable and probable grounds existed for the arrest - The search incident to arrest was lawful - See paragraphs 207 to 247.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - [See Civil Rights - Topic 4604].

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 4604].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - A police officer (Harris) stopped Santos' car under the general authority afforded to police by the Traffic Safety Act - Santos appeared very nervous - His hands were shaking - He told Harris that he was travelling from Calgary to Winnipeg and the car belonged to a friend - He gave Harris the car's registration and insurance documentation - Harris ran a computer check and learned that Santos had a valid driver's licence but a history of drug activity - Harris called his supervisor (Walkden) to describe the circumstances - He told Walkden that he believed he had enough to detain Santos at that point - Harris returned to Santos' car and told him that he was waiting for some information to come up on the computer respecting the car's registration - Harris then returned to the police vehicle and immediately called another officer who had a drug dog - Harris asked Santos to exit the car to answer more questions - He then advised Santos that he was being detained for a drug investigation and read Santos his rights to counsel and Charter rights - Subsequently, Santos was charged with possession of cocaine for the purpose of trafficking - He argued that his s. 10 Charter rights were violated, and that all of the evidence and derivative evidence acquired by police during the investigation should be excluded under s. 24(2) - The Saskatchewan Court of Queen's Bench held that the Traffic Safety Act detention ceased and the investigative detention began just before Harris called Walkden - It was then that Harris had decided to detain Santos for a drug investigation, and that detention began in that Santos was not free to leave - Santos' s. 10 rights were violated when Harris did not immediately inform Santos of the reason for his detention and of his rights to counsel at the outset of the investigative detention - However, the court would not exclude the evidence - Society had a strong interest in the adjudication of drug cases on their merits - The impact of the breach was minimal in that Santos had already provided all of the information prior to the Charter breach - See paragraphs 225 to 232 and 248 to 250.

Civil Rights - Topic 4608

Right to counsel - General - Right to be advised of - [See Civil Rights - Topic 4604].

Civil Rights - Topic 4609.1

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

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4604].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3133].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3133].

Criminal Law - Topic 129

General principles - Rights of accused - Right discovery or production (disclosure) - [See Civil Rights - Topic 3133].

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - [See Civil Rights - Topic 3133].

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 3603].

Criminal Law - Topic 3152

Special powers - Power of search - Warrantless searches - [See Civil Rights - Topic 3603].

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - [See Civil Rights - Topic 3603].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3133].

Narcotic Control - Topic 719

Offences - Trafficking - Proof of nature of narcotic - Santos was charged with possession of cocaine for the purpose of trafficking after four bricks of a white substance were seized from his vehicle - The only admissible evidence regarding the nature of the seized substance came from an officer with considerable drug experience - He indicated that the packaging and his observations of the substance were similar to other seizures he had made in the past of material that was tested and found to be cocaine - The Saskatchewan Court of Queen's Bench found that the officer's evidence was not evidence of the nature of the substance seized from Santos' vehicle - The officer provided no details about the colour, smell or texture of the substance - His conclusions on similarity were not sufficient - The Crown failed to prove beyond a reasonable doubt that the substance in question was cocaine - See paragraphs 126 to 132.

Narcotic Control - Topic 720

Offences - Trafficking - Evidence and proof (incl. certificate of analysis) - Santos was charged with possession of cocaine for the purpose of trafficking after four bricks of a white substance were seized from his vehicle in October 2011 - In February 2012, police received the Certificates of Analysis - An officer testified that he sent Santos' lawyer (Fagan) copies of the Certificates by way of regular mail in June 2012, along with a Notice of Intention to Produce that stated the Certificates would be produced pursuant to s. 28(1) of the Canada Evidence Act - A member of the Crown Prosecutor's office averred that she faxed copies of the Certificates to Fagan in September 2013, one business day before the trial began - Fagan had advised the Crown that he was not prepared nor instructed to accept service - The Saskatchewan Court of Queen's Bench found that the Certificates were not admissible in evidence because the Crown had not provided reasonable notice of its intention to produce them - Sending the Certificates by way of regular mail to Fagan did not amount to notice within the meaning of the legislation - Service by fax was also insufficient because Fagan made it clear that service to him was not notice to Santos - Even if service by fax was sufficient, it was unreasonable to do so one business day before trial when the Crown had 23 months to effect service - Finally, the Notice itself was not accurate because it referred to the Canada Evidence Act which was not applicable to the introduction of Certificates under the Controlled Drugs and Substances Act - See paragraphs 106 to 125.

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches - Reasonable grounds - [See Civil Rights - Topic 3603].

Police - Topic 2213

Duties - General duties - Recording and preserving evidence - [See Civil Rights - Topic 3133].

Police - Topic 3063

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

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 3603].

Police - Topic 3186

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 3603].

Police - Topic 3204

Powers - Direction - Stopping vehicles - General - [See Civil Rights - Topic 3603].

Cases Noticed:

R. v. Dillon (J.A.), [2005] O.T.C. 517 (Sup. Ct.), refd to. [para. 107].

R. v. Marcil (1976), 31 C.C.C.(2d) 172 (Sask. C.A.), refd to. [para. 109].

R. v. Baker (R.G.) (2007), 295 Sask.R. 289; 2007 SKQB 221, refd to. [para. 116].

R. v. Yonis (A.A.) (2009), 469 A.R. 164; 470 W.A.C. 164; 13 Alta. L.R.(5th) 199; 2009 ABCA 336, refd to. [para. 118].

R. v. Phung (J.) (2011), 521 A.R. 304; 50 Alta. L.R.(5th) 329; 2011 ABQB 427, refd to. [para. 119].

R. v. Grant (R.), [2001] A.R. Uned. 249; 2001 ABCA 252, folld. [para. 131].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 136].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [paras. 137].

R. v. F.C.B. (2000), 182 N.S.R.(2d) 215; 563 A.P.R. 215; 142 C.C.C.(3d) 540; 2000 NSCA 35, refd to. [para. 142].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 143].

R. v. Anderson (T.) (2013), 423 Sask.R. 61; 588 W.A.C. 61; 300 C.C.C.(3d) 296; 2013 SKCA 92, refd to. [para. 144].

R. v. Forster (H.R.) et al. (2005), 269 Sask.R. 275; 357 W.A.C. 275; 201 C.C.C.(3d) 290; 2005 SKCA 107, refd to. [para. 151].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81; 112 C.C.C.(3d) 289, refd to. [para. 161].

R. v. Cole (R.) et al., [2012] 3 S.C.R. 34; 436 N.R. 102; 297 O.A.C. 1; 2012 SCC 53, refd to. [para. 166].

R. v. Aucoin (B.D.), [2012] 3 S.C.R. 408; 437 N.R. 1; 324 N.S.R.(2d) 1; 1029 A.P.R. 1; 2012 SCC 66, refd to. [para. 167].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1, refd to. [para. 167].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 168].

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. 169].

R. v. Turpin (G.S.J.) (2012), 393 Sask.R. 184; 546 W.A.C. 184; 284 C.C.C.(3d) 296; 2012 SKCA 50, refd to. [para. 170].

R. v. Wills (1992), 52 O.A.C. 321; 70 C.C.C.(3d) 529 (C.A.), refd to. [para. 172].

R. v. Goldman, [1980] 1 S.C.R. 976; 30 N.R. 453; 51 C.C.C.(2d) 1, refd to. [para. 173].

R. v. Mouland (L.L.), [2007] 12 W.W.R. 24; 304 Sask.R. 129; 413 W.A.C. 129; 2007 SKCA 105, refd to. [para. 174].

R. v. Rutten (G.) (2006), 279 Sask.R. 201; 372 W.A.C. 201; 205 C.C.C.(3d) 504; 2006 SKCA 17, refd to. [para. 174].

R. v. Sewell (E.E.) (2003), 232 Sask.R. 210; 294 W.A.C. 210; 175 C.C.C.(3d) 242; 2003 SKCA 52, refd to. [para. 174].

R. v. Perello (E.F.) (2005), 257 Sask.R. 46; 342 W.A.C. 46; 193 C.C.C.(3d) 151; 2005 SKCA 8, refd to. [para. 174].

R. v. Luc (S.Q.) (2004), 254 Sask.R. 98; 336 W.A.C. 98; 188 C.C.C.(3d) 436; 2004 SKCA 117, refd to. [para. 174].

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. 175].

R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, refd to. [para. 175].

R. v. Loewen (D.J.), [2011] 2 S.C.R. 167; 415 N.R. 397; 502 A.R. 3; 517 W.A.C. 3; 2011 SCC 21, refd to. [para. 177].

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, refd to. [para. 178].

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; 121 C.C.C.(3d) 97, refd to. [para. 178].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 2001 SCC 83, refd to. [para. 178].

R. v. Shinkewski (L.A.) (2012), 399 Sask.R. 11; 552 W.A.C. 11; 289 C.C.C.(3d) 145; 2012 SKCA 63, refd to. [para. 179].

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. 184].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81; 118 C.C.C.(3d) 405, refd to. [para. 185].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351; 70 C.C.C.(3d) 193, refd to. [para. 185].

R. v. Chehil (M.S.) (2013), 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 301 C.C.C.(3d) 157; 2013 SCC 49, refd to. [para. 187].

R. v. Yeh (K.-P.T.) (2009), 337 Sask.R. 1; 464 W.A.C. 1; 248 C.C.C.(3d) 125; 2009 SKCA 112, refd to. [para. 188].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, appld. [para. 190].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103; 40 C.C.C.(3d) 398, refd to. [para. 191].

R. v. Clayton (W.) et al., [2007] 2 S.C.R. 725; 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [para. 194].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 12 O.R.(3d) 182; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 198].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1; 112 C.C.C.(3d) 193, refd to. [para. 201].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289, refd to. [para. 202].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 203].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 206].

Counsel:

Denis Quon, for the Crown;

Patrick Fagan, Q.C., for the accused.

This voir dire was heard before Gunn, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Swift Current, who delivered the following judgment on January 15, 2014.