R. v. Sattar (F.H.), (2008) 443 A.R. 349 (PC)

• Judge: Hamilton, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: January 22, 2008
• Citations: (2008), 443 A.R. 349 (PC);2008 ABPC 115

R. v. Sattar (F.H.) (2008), 443 A.R. 349 (PC)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AP.194

Her Majesty the Queen v. Farhan Haidar Sattar (050114782P10101; 2008 ABPC 115)

Indexed As: R. v. Sattar (F.H.)

Alberta Provincial Court

Hamilton, P.C.J.

April 18, 2008.

Summary:

The accused was charged with possession of methamphetamine for the purpose of trafficking. A voir dire was held to determine the admissibility of the contents seized during the search of a suitcase in a rental vehicle. The accused alleged violations of his ss. 8, 9 and 10(b) Charter rights.

The Alberta Provincial Court held that the accused's ss. 8, 9 and 10(b) Charter rights had been violated. The court ordered the exclusion of the evidence seized under s. 24(2).

Civil Rights - Topic 1281

Security of the person - Unlawful arrest - General - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The accused and a friend (Williams) left British Columbia to travel to Calgary, Alberta, in a rented grey Jeep Cherokee - Alberta police officers pulled over the Jeep for speeding - Police Information Retrieval System checks revealed an outstanding warrant against the accused for failing to appear - The officers (Kay and Chalifour) arrested the accused, gave him his Charter rights and transported him to the police station where he would later be released on a Promise to Appear, which would take five to 10 minutes to prepare - Williams obtained permission to follow - Kay received a phone call from another detachment wherein the officer relayed an anonymous phone call about two possibly dark skinned individuals in a grey or beige Jeep on their way to Cochrane, Alberta, to commit a break and enter or robbery - For 45 minutes, the officers discussed how to proceed with the information - Finally, Kay relayed the information to the accused and Williams and asked them if they would consent to a search - After speaking to their lawyers, both denied consent - Both were arrested - Williams was advised of his Charter rights, while the accused was not - Based on the anonymous tip and further information obtained by the Calgary police, the officers obtained a search warrant - They discovered 988 grams of methamphetamine in the accused's suitcase - The accused was charged with possession of methamphetamine for the purpose of trafficking - The Alberta Provincial Court held that the accused's s. 8 Charter right to be free of unreasonable search and seizure was violated - The warrant was not valid given 1) the non-disclosure of the precise nature of the tip; 2) the misleading evidence regarding Williams' voluntary drive to the police Detachment inconsistent with the fact that the caller had stated that both the men were "running"; 3) the failure to disclose relevant evidence known to the police that was inconsistent with the proposition that the accused and Williams were the men in question; and 4) the new evidence available upon amplification by examining the actual telephone call, all destroyed the basis of the decision of the authorizing Justice of the Peace to grant the warrant - On an examination of what was left that could be said to have been proper evidence for the Justice of the Peace to consider, there was not sufficient information upon which it could be said that reasonable and probable grounds existed upon which the Justice of the Peace could have issued the warrant - See paragraphs 77 to 93.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1604 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused and a friend (Williams) left British Columbia to travel to Calgary, Alberta, in a rented grey Jeep Cherokee - Alberta police officers pulled over the Jeep for speeding - Police Information Retrieval System checks revealed an outstanding warrant against the accused for failing to appear - The officers (Kay and Chalifour) arrested the accused, gave him his Charter rights and transported him to the police station where he would later be released on a Promise to Appear, which would take five to 10 minutes to prepare - Williams obtained permission to follow - Kay received a phone call from another detachment wherein the officer relayed an anonymous phone call about two possibly dark skinned individuals in a grey or beige Jeep on their way to Cochrane, Alberta, to commit a break and enter or robbery - For 45 minutes, the officers discussed how to proceed with the information - Finally, Kay relayed the information to the accused and Williams and asked them if they would consent to a search - After speaking to their lawyers, both denied consent - Both were arrested - Williams was advised of his Charter rights, while the accused was not - Based on the anonymous tip and further information obtained by the Calgary police, the officers obtained a search warrant - They discovered 988 grams of methamphetamine in the accused's suitcase - The accused was charged with possession of methamphetamine for the purpose of trafficking - The Alberta Provincial Court held that the accused s. 9 Charter right to be free of arbitrary detention had been violated - The officers were unable to adequately assess the credibility and reliability of the source of the information - The corroborative evidence was equally weak - Accordingly, the officers did not have reasonable grounds for the investigative detention or arrest of the accused - See paragraphs 37 and 38 and 42 to 62.

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 - The accused and a friend (Williams) left British Columbia to travel to Calgary, Alberta, in a rented grey Jeep Cherokee - Alberta police officers pulled over the Jeep for speeding - Police Information Retrieval System checks revealed an outstanding warrant against the accused for failing to appear - The officers (Kay and Chalifour) arrested the accused, gave him his Charter rights and transported him to the police station where he would later be released on a Promise to Appear, which would take five to 10 minutes to prepare - Williams obtained permission to follow - Kay received a phone call from another detachment wherein the officer relayed an anonymous phone call about two possibly dark skinned individuals in a grey or beige Jeep on their way to Cochrane, Alberta, to commit a break and enter or robbery - For 45 minutes, the officers discussed how to proceed with the information - Finally, Kay relayed the information to the accused and Williams and asked them if they would consent to a search - After speaking to their lawyers, both denied consent - Both were arrested - Williams was advised of his Charter rights, while the accused was not - Based on the anonymous tip and further information obtained by the Calgary police, the officers obtained a search warrant - They discovered 988 grams of methamphetamine in the accused's suitcase - The accused was charged with possession of methamphetamine for the purpose of trafficking - The Alberta Provincial Court held that the accused's s. 10(b) Charter right to counsel had been violated - The character of the accused's detention had significantly changed shortly after his arrival to the police station and it was incumbent upon the police to immediately advise him of that change, i.e., from being held briefly for the purpose of processing a Promise to Appear to being detained indefinitely for the purpose of a serious criminal investigation - That being the case, a further call to his lawyer should have been afforded him - See paragraphs 39 to 41.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused and a friend (Williams) left British Columbia to travel to Calgary, Alberta, in a rented grey Jeep Cherokee - Alberta police officers pulled over the Jeep for speeding - Police Information Retrieval System checks revealed an outstanding warrant against the accused for failing to appear - The officers (Kay and Chalifour) arrested the accused, gave him his Charter rights and transported him to the police station where he would later be released on a Promise to Appear, which would take five to 10 minutes to prepare - Williams obtained permission to follow - Kay received a phone call from another detachment wherein the officer relayed an anonymous phone call about two possibly dark skinned individuals in a grey or beige Jeep on their way to Cochrane, Alberta, to commit a break and enter or robbery - For 45 minutes, the officers discussed how to proceed with the information - Finally, Kay relayed the information to the accused and Williams and asked them if they would consent to a search - After speaking to their lawyers, both denied consent - Both were arrested - Williams was advised of his Charter rights, while the accused was not - Based on the anonymous tip and further information obtained by the Calgary police, the officers obtained a search warrant - They discovered 988 grams of methamphetamine in the accused's suitcase - The accused was charged with possession of methamphetamine for the purpose of trafficking - The Alberta Provincial Court held that the accused's ss. 8, 9 and 10(b) Charter right to counsel had been violated - The court ordered the exclusion of the evidence under s. 24(2) - There existed both a causal and temporal connection between the various Charter breaches and the obtaining of the evidence found in the search of the vehicle - The admission of the evidence would not affect trial fairness - However, the breaches were serious - The complete lack of reliability on virtually all of the information upon which the police were relying, firstly, to unlawfully detain the accused for investigation; secondly, to arrest him and finally, to form the basis for an application for a search warrant, completely undermined any suggestion that the police were proceeding on reasonable grounds - Finally, the admission of the evidence would bring the administration of justice into disrepute - See paragraphs 99 to 130.

Criminal Law - Topic 3046

Special powers - Search warrants - Validity of - General - [See Civil Rights - Topic 1604 ].

Criminal Law - Topic 3154

Special powers - Power of search - Evidence obtained - Admission of - [See Civil Rights - Topic 8368 ].

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 ].

Cases Noticed:

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; 185 C.C.C.(3d) 308; 241 D.L.R.(4th) 214, refd to. [paras. 39, 131].

R. v. Chan, 2007 CarswellAlta 960 (C.A.), refd to. [paras. 41, 131].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193; 45 C.R.R. 49, refd to. [paras. 43, 131].

R. v. Campbell (D.B.) (2003), 177 Man.R.(2d) 117; 304 W.A.C. 117; 175 C.C.C.(3d) 452; 2003 MBCA 76, refd to. [paras. 43, 131].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161, refd to. [paras. 44, 131].

R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 122 C.C.C.(3d) 481; 13 C.R.(5th) 34; 15 C.R.R.(2d) 358; 38 O.R.(3d) 540 (C.A.), refd to. [paras. 46, 131].

R. v. Goodine (M.) (2006), 307 N.B.R.(2d) 178; 795 A.P.R. 178; 214 C.C.C.(3d) 250 (C.A.), refd to. [paras. 48, 131].

R. v. Macias, 2003 CarswellOnt 6642 (C.J.), refd to. [paras. 49, 131].

R. v. McCargar (E.G.) (2007), 413 A.R. 329 (Q.B.), refd to. [paras. 50, 131].

R. v. Clayton (W.) et al. (2007), 364 N.R. 199; 227 O.A.C. 314; 220 C.C.C.(3d) 449; 281 D.L.R.(4th) 1; 2007 CarswellOnt 4268 (S.C.C.), consd. [paras. 51, 131].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1; 56 C.R.(3d) 193, refd to. [paras. 77, 131].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 149 C.C.C.(3d) 449; 193 D.L.R.(4th) 440; 2000 SCC 65, refd to. [paras. 78, 131].

R. v. Chrisanthopoulos (J.) (2002), 217 Nfld. & P.E.I.R. 174; 651 A.P.R. 174 (Nfld. T.D.), refd to. [paras. 94, 131].

R. v. Grabowski, [1985] 2 S.C.R. 434; 63 N.R. 32; 22 C.C.C.(3d) 449; 22 D.L.R.(4th) 725, refd to. [para. 94].

R. v. Grant (D.) (2006), 213 O.A.C. 127; 209 C.C.C.(3d) 250; 81 O.R.(3d) 1 (C.A.), refd to. [paras. 99, 131].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161; 136 D.L.R.(4th) 502; 107 C.C.C.(3d) 481, refd to. [paras. 101, 131].

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; 225 D.L.R.(4th) 624; 174 C.C.C.(3d) 97, refd to. [paras. 107, 131].

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; 151 D.L.R.(4th) 443, refd to. [paras. 108, 131].

R. v. Kang-Brown (G.) (2005), 386 A.R. 48; 203 C.C.C.(3d) 132; 2005 ABQB 608, refd to. [paras. 113, 131].

Hayes v. Thompson, [1985] 3 W.W.R. 366; 18 C.C.C.(3d) 254; 60 B.C.L.R. 252; 17 D.L.R.(4th) 751; 44 C.R.(3d) 316 (B.C.C.A.), refd to. [paras. 121, 131].

Hayes v. Royal Canadian Mounted Police - see Hayes v. Thompson.

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; 104 C.C.C.(3d) 23, refd to. [paras. 124, 131].

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R. v. Greffe (1990), 107 N.R. 1; 107 A.R. 1; 55 C.C.C.(3d) 161 (S.C.C.), refd to. [para. 129].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 132 D.L.R.(4th) 31; 104 C.C.C.(3d) 136; 26 O.R.(3d) 736, refd to. [para. 131].

R. v. Baddock (C.L.) (2008), 251 B.C.A.C. 126; 420 W.A.C. 126; 2008 CarswellBC 252; 2008 BCCA 48, refd to. [para. 131].

R. v. Kang-Brown (G.) (2006), 391 A.R. 218; 377 W.A.C. 218; 210 C.C.C.(3d) 317; 60 Alta. L.R.(4th) 223; 2006 ABCA 199, affing. (2005), 386 A.R. 48; 203 C.CC.(3d) 132; 2005 ABQB 608, refd to. [para. 131].

R. v. Caissey (L.M.) (2007), 422 A.R. 208; 415 W.A.C. 208; 227 C.C.C.(3d) 322; 84 Alta. L.R.(4th) 226; 2007 CarswellAlta 1640 (C.A.), refd to. [para. 131].

R. v. Carrier (A.J.) (1996), 181 A.R. 284; 116 W.A.C. 284; 36 C.R.R.(2d) 310 (C.A.), refd to. [para. 131].

R. v. Donaldson (1990), 58 C.C.C.(3d) 294; 48 B.C.L.R.(2d) 273 (B.C.C.A.), refd to. [para. 131].

R. v. Duguay, Murphy and Sevigny (1985), 8 O.A.C. 31; 18 C.C.C.(3d) 289; 18 D.L.R.(4th) 32; 50 O.R.(2d) 375 (C.A.), refd to. [para. 131].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13; 45 C.C.C.(3d) 244; 55 D.L.R.(4th) 503, refd to. [para. 131].

R. v. Evans, [1991] 1 S.C.R. 869; 124 N.R. 278; 63 C.C.C.(3d) 289, refd to. [para. 131].

R. v. Genest, [1989] 1 S.C.R. 59; 91 N.R. 161; 19 Q.A.C. 163; 45 C.C.C.(3d) 385; 67 C.R.(3d) 224; 37 C.R.R. 252; 45 C.C.C.(3d) 385; 1989 CarswellQue 102, refd to. [para. 131].

R. v. Mouland (L.L.), [2007] 12 W.W.R. 24; 304 Sask.R. 129; 413 W.A.C. 129; 53 M.V.R.(5th) 11; 2007 CarswellSask 568 (C.A.), refd to. [para. 131].

R. v. Nguyen (C.N.) (2008), 232 O.A.C. 289; 2008 CarswellOnt 298 (C.A.), refd to. [para. 131].

R. v. Perri (C.) (2007), 431 A.R. 14 (Prov. Ct.), refd to. [para. 131].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241; 66 C.R.(3d) 297; 45 C.CC.(3d) 296, refd to. [para. 131].

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; 144 D.L.R.(4th) 193, refd to. [para. 131].

R. v. Suberu (M.) (2007), 220 O.A.C. 322; 218 C.C.C.(3d) 27; 85 O.R.(3d) 127 (C.A.), refd to. [para. 131].

R. v. Sutherland (M.) (2000), 139 O.A.C. 53; 52 O.R.(3d) 27; 150 C.C.C.(3d) 231 (C.A.), refd to. [para. 131].

R. v. Thibodeau (A.M.) (2007), 247 B.C.A.C. 103; 409 W.A.C. 103; 2007 CarswellBC 2465 (C.A.), affing. [2006] B.C.T.C. 1262; 2006 CarswellBC 3627 (S.C.), leave to appeal refused (2008), 385 N.R. 391 (S.C.C.), refd to. [para. 131].

R. v. Weaver (T.J.) (2005), 363 A.R. 253; 343 W.A.C. 253; 194 C.C.C.(3d) 350; 2005 CarswellAlta 290 (C.A.), refd to. [para. 131].

Counsel:

B. Holtby, Q.C, and C. McMemenemy, for the Crown;

S. Lord, Q.C., and E. Funk, for the Defence.

This voir dire was heard on October 2 - 4, 2007, and January 22, 2008, by Hamilton, P.C.J., of the Alberta Provincial Court, who delivered his decision orally on April 17, 2008. The following reasons for decision were filed on April 18, 2008.