R. v. T.A.V.,

• Judge: Costigan,McClung,Sirrs
• Neutral Citation: 2001 ABCA 316
• Citation: (2001), 299 A.R. 96 (CA),2001 ABCA 316,299 AR 96,(2001), 299 AR 96 (CA),299 A.R. 96
• Date: 30 October 2001
• Court: Court of Appeal (Alberta)

R. v. T.A.V. (2001), 299 A.R. 96 (CA);

    266 W.A.C. 96

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. JA.017

Her Majesty The Queen (respondent) v. T.A.V. (appellant)

(0003-0103-A5; 2001 ABCA 316)

Indexed As: R. v. T.A.V.

Alberta Court of Appeal

McClung and Costigan, JJ.A., and Sirrs, J.(ad hoc)

December 17, 2001.

Summary:

The accused appealed her conviction on five counts of illegally possessing weapons. She argued that evidence of the weapons should have been excluded under s. 24(2) of the Charter because her ss. 8 and 10(b) rights were violated. She also alleged that her rights under s. 56 of the Young Offenders Act were violated. Finally, she argued that the trial judge should not have convicted her of weapons found in a co-accused's bag.

The Alberta Court of Appeal dismissed the appeal. There was no violation of the accused's s. 8 or 10(b) rights. There was no violation of her rights under the Young Offenders Act. Even if there was a violation of her Charter rights, the evidence was admissible. There was evidence upon which to convict the accused of possession of weapons found in the co-accused's bag.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - Based on intercepted telephone calls, police believed that two Asian girls would be arriving around 11:00 a.m. by bus from Vancouver and would be carrying firearms - Two officers approached the accused and another Asian girl as they left the bus - The girls told the officers that they came from Vancouver - The officers searched their bags and discovered weapons - The Alberta Court of Appeal affirmed that the search was lawful as a search incidental to arrest and detention - The wiretap information passed onto the officers and their observations at the bus depot provided articulable cause - The search was justified due to the probability of criminal activity attending the possession of weapons - See paragraphs 27 to 31.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - Based on intercepted telephone calls, police believed that two Asian girls would be arriving around 11:00 a.m. by bus from Vancouver and would be carrying firearms - Two officers approached the accused and another Asian girl as they left the bus - The girls told the officers that they came from Vancouver - The officers searched their bags and discovered weapons - The Alberta Court of Appeal affirmed that the search was lawful pursuant to s. 117.02 of the Criminal Code (warrantless search in exigent circumstances where firearms offence likely being or had been committed) - In this case, the relevant time to assess the exigent circumstances was when the girls arrived at the bus stop - The officers had a reasonable belief that an offence had been committed and that evidence was likely to be found - See paragraphs 23 to 26.

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 1404.3

Security of the person - Law enforcement -Warrantless search for weapons - [See first Civil Rights - Topic 1217 ].

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - Based on intercepted telephone calls, police believed that two Asian girls would be arriving around 11:00 a.m. by bus from Vancouver and would be carrying firearms - Two officers approached the accused and another Asian girl as they left the bus, identified themselves and asked them to step towards a building - The officers searched their bags and discovered weapons - The Alberta Court of Appeal held that "arguably, a detention occurred in this case" - Given the accused's young age, she likely would have felt at least psychologically compelled to remain with the officers and comply with their demands - The girls were not told that they could leave and likely would not have felt that they could - A personal search indicated an element of control and, therefore, was likely a detention - It was probable that the detention was a "brief detention" with articulable cause - See paragraphs 16 to 21.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Based on intercepted telephone calls, the police stopped the accused and another girl as they left a bus on suspicion that they were carrying weapons - The police searched their bags and discovered weapons - The police did not advise them of their right to counsel (Charter, s. 10(b)) or their rights under s. 56 of the Young Offenders Act prior to the search - The Alberta Court of Appeal stated that when a brief search is conducted to ensure the safety of police, it seems implausible that it must be preceded by a s. 10(b) warning - If the right to search pursuant to a lawful detention is in place to protect the safety of police, it is not likely to be undone by a failure to first warn of a right to counsel, either under the Charter or the YOA - Further, s. 56 provided no remedy because it could not be used to exclude physical evidence - See paragraphs 32 to 35.

Civil Rights - Topic 4605.1

Right to counsel - General - Denial of - Effect on reasonableness of search - [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 - Based on intercepted telephone calls, the police stopped the accused and another girl as they left a bus on suspicion that they were carrying weapons - The police searched their bags and discovered weapons - The accused was charged with weapons charges - The Alberta Court of Appeal affirmed that the accused's ss. 8 and 10(b) Charter rights were not violated - Even if there was a Charter violation, the court would not have excluded the evidence under s. 24(2) - The weapons were real evidence that existed independent of any Charter breach - Given concerns about unlawful possession of firearms, the admission of the evidence was not likely to bring the administration of justice into disrepute - See paragraphs 36 and 37.

Criminal Law - Topic 10.2

General principles - General and definitions - Possession defined - Based on intercepted telephone calls, the police stopped the accused and another girl (O.) as they left a bus on suspicion that they were carrying weapons - The police found a revolver, a pistol and ammunition in the accused's bag - They found a gun with a silencer, another silencer and ammunition in O.'s bag - The accused was convicted of five counts of possession of weapons - She argued that there was an insufficient evidentiary foundation to convict her of possession of weapons found in O.'s possession - Section 4(3)(b) of the Criminal Code allowed for constructive possession where the accused had knowledge and consent - The Alberta Court of Appeal stated that there was evidence upon which the trial judge could convict the accused of possession of the weapons found in O.'s bag - See paragraphs 38 to 41.

Criminal Law - Topic 3147

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

Criminal Law - Topic 5553

Evidence and witnesses - Proof of particular matters - Possession - [See Criminal Law - Topic 10.2 ].

Criminal Law - Topic 8845

Young offenders - Evidence and proof - Admissibility of evidence obtained contrary to Young Offenders Act - [See Civil Rights - Topic 4604 ].

Police - Topic 3185

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

Police - Topic 3188

Powers - Search - Weapons search of persons - [See Civil Rights - Topic 1214 and first Civil Rights - Topic 1217 ].

Cases Noticed:

R. v. Ancelet (1986), 70 A.R. 263 (C.A.), refd to. [para. 17].

R. v. Bazinet (1986), 14 O.A.C. 15; 25 C.C.C.(3d) 273 (C.A.), refd to. [para. 17].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), refd to. [para. 18].

R. v. Fash (D.M.) (1999), 244 A.R. 146; 209 W.A.C. 146 (C.A.), refd to. [para. 19].

R. v. Powell (2000), 35 C.R.(5th) 89 (Ont. Div. Ct.), refd to. [para. 20].

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, refd to. [para. 20].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 20].

R. v. Young (M.R.) (1997), 101 O.A.C. 81; 116 C.C.C.(3d) 350 (C.A.), refd to. [para. 20].

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. 20].

T.R.W., P.B. and R.W., Re (1986), 68 A.R. 12 (Prov. Ct.), refd to. [para. 21].

R. v. R.G.H.H. (1994), 25 W.C.B.(2d) 266 (B.C.S.C.), refd to. [para. 21].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 22].

R. v. Rao (1984), 4 O.A.C. 162; 46 O.R.(2d) 80 (C.A.), refd to. [para. 24].

R. v. Cardinal (A.F.) (2001), 289 A.R. 28 (Prov. Ct.), refd to. [para. 24].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 24].

R. v. Zammit (J.) (1993), 62 O.A.C. 272; 81 C.C.C.(3d) 112 (C.A.), refd to. [para. 25].

R. v. Clayton (W.) et al., [2001] O.T.C. 473 (Sup. Ct.), refd to. [para. 26].

R. v. McAuley (R.P.) and Smith (D.J.) (1998), 126 Man.R.(2d) 202; 167 W.A.C. 202; 124 C.C.C.(3d) 117 (C.A.), refd to. [para. 27].

R. v. Murray (1999), 136 C.C.C.(3d) 197 (Que. C.A.), refd to. [para. 27].

R. v. Waniandy (K.G.) (1995), 162 A.R. 293; 83 W.A.C. 293 (C.A.), refd to. [para. 27].

R. v. Jacques (J.R.) and Mitchell (M.M.), [1996] 3 S.C.R. 312; 202 N.R. 49; 180 N.B.R.(2d) 161; 458 A.P.R. 161, refd to. [para. 28].

R. v. Lal (S.N.) (1998), 113 B.C.A.C. 47; 184 W.A.C. 47; 130 C.C.C.(3d) 413 (C.A.), leave to appeal refused (1999), 239 N.R. 400 (S.C.C.), refd to. [para. 28].

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. 29].

R. v. Shatford (M.C.) (2001), 237 N.B.R.(2d) 73; 612 A.P.R. 73 (Prov. Ct.), refd to. [para. 30].

R. v. Lebeuf (D.A.) (1996), 193 A.R. 49; 135 W.A.C. 49 (C.A.), leave to appeal refused (1997), 215 N.R. 320; 209 A.R. 399; 160 W.A.C. 399 (S.C.C.), refd to. [para. 30].

R. v. Johnson (E.) (2000), 138 B.C.A.C. 190; 226 W.A.C. 190; 32 C.R.(5th) 236 (C.A.), refd to. [para. 30].

R. v. Yamanaka (J.A.) (1998), 111 B.C.A.C. 154; 181 W.A.C. 154; 128 C.C.C.(3d) 570 (C.A.), refd to. [para. 30].

R. v. Yum (S.S.) (2001), 277 A.R. 238; 242 W.A.C. 238 (C.A.), refd to. [para. 30].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 31].

R. v. Rochat (R.R.) (1999), 241 A.R. 201 (Prov. Ct.), refd to. [para. 32].

R. v. Seo, [1995] B.C.J. No. 947 (Prov. Ct.), refd to. [para. 32].

R. v. Baig (1987), 81 N.R. 87; 25 O.A.C. 81; 37 C.C.C.(3d) 181 (S.C.C.), refd to. [para. 33].

R. v. J.T.J. Jr., [1990] 2 S.C.R. 755; 112 N.R. 321; 70 Man.R.(2d) 81; 59 C.C.C.(3d) 1, refd to. [para. 33].

R. v. D.A.Z., [1992] 2 S.C.R. 1025; 140 N.R. 327; 131 A.R. 1; 25 W.A.C. 1; 76 C.C.C.(3d) 97, refd to. [para. 33].

R. v. L.R.I. and E.T., [1993] 4 S.C.R. 504; 159 N.R. 363; 37 B.C.A.C. 48; 60 W.A.C. 48; 86 C.C.C.(3d) 289, refd to. [para. 33].

R. v. D.R., [1994] 1 S.C.R. 881; 168 N.R. 4; 71 O.A.C. 76, refd to. [para. 33].

R. v. J.W. (1996), 92 O.A.C. 299; 109 C.C.C.(3d) 506 (C.A.), refd to. [para. 34].

R. v. S.A.C. (1989), 92 A.R. 237 (C.A.), refd to. [para. 34].

R. v. Bagshaw, [1993] B.C.J. No. 2009 (Prov. Ct.), refd to. [para. 34].

R. v. Smith (W.M.) (1998), 219 A.R. 109; 179 W.A.C. 109 (C.A.), refd to. [para. 37].

R. v. Terrence, [1983] 1 S.C.R. 357; 47 N.R. 8, refd to. [para. 38].

R. v. Zanini, [1967] S.C.R. 715, refd to. [para. 38].

R. v. Roan, Brown and Sande (1985), 57 A.R. 296; 17 C.C.C.(3d) 534 (C.A.), refd to. [para. 39].

R. v. Simpson and Kinney (1959), 124 C.C.C. 129 (Ont. C.A.), refd to. [para. 39].

R. v. Stewart (1989), 8 W.C.B.(2d) 619 (B.C.C.A.), refd to. [para. 39].

R. v. White and White (1991), 115 A.R. 151 (Prov. Ct.), refd to. [para. 39].

R. v. S.M.C. et al., [1999] A.R. Uned. 140 (C.A.), refd to. [para. 39].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 117.02(1) [para. 9].

Young Offenders Act, R.S.C. 1985, c. Y-1, sect. 56 [para. 10].

Authors and Works Noticed:

Bala, N., Young Offenders Law (1997), pp. 105, 109 [para. 33].

Platt, P., Young Offenders Law in Canada (2nd Ed. 1995), p. 64 [para. 33].

Counsel:

R.A. Stroppel, Q.C., for the appellant;

D.C. Marriott, for the respondent.

This appeal was heard on October 30, 2001, by McClung and Costigan, JJ.A., and Sirrs, J.(ad hoc), of the Alberta Court of Appeal. McClung, J.A., released the following reasons for the Court of Appeal at Edmonton, Alberta, on December 17, 2001.