R. v. Thompson (R.D.) et al., 2013 SKPC 192

• Judge: Lavoie, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: November 21, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKPC 192;(2013), 432 Sask.R. 303 (PC)

R. v. Thompson (R.D.) (2013), 432 Sask.R. 303 (PC)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. NO.055

Her Majesty the Queen v. Raldo Dwayne Thompson, Mustafa Yousof Omar, Anthony Justin Durrant, and Mohammed Adbi Aden

(Information No. 44304529; 2013 SKPC 192)

Indexed As: R. v. Thompson (R.D.) et al.

Saskatchewan Provincial Court

Lavoie, P.C.J.

November 21, 2013.

Summary:

Four accused were jointly charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime. One of the accused was also charged with trafficking in cocaine and a second count of possession of the proceeds of crime. Two of the accused (Omar and Aden) claimed that their arrests and subsequent searches incident to arrest were unlawful, in violation of their ss. 8 and 9 Charter rights. Omar further submitted that his s. 10(b) Charter right to counsel was violated. Omar and Aden applied for a remedy pursuant to s. 24(2) of the Charter.

The Saskatchewan Provincial Court dismissed the application. There were no Charter violations.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - [See Civil Rights - Topic 1262 ].

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - Police received information from confidential sources that black males were trafficking in cocaine in a dial-a-dope operation - It was revealed that trafficking might be occurring from local hotels - Police conducted surveillance on the hotels and identified target vehicles, one of which was registered to a man who was previously charged with trafficking offences - Black males were observed coming and going from the hotels and driving in the target vehicles - Their activities and interactions were consistent with drug trafficking - One black male (Omar) was arrested shortly after driving away from the hotel in a target vehicle - Police seized $570 and a hotel room key following a search of his person - Another black male (Aden) was arrested as he left the hotel - Aden resisted arrest and slipped out of his jacket in an attempt to get away - A hotel room key was found in his jacket - Both room keys seized by police were for the same room at the hotel - They entered the room and saw a baggie containing what appeared to be a large quantity of cocaine - Omar and Aden were charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - They argued that their arrests and the searches incident to arrest were unlawful, in violation of their ss. 8 and 9 Charter rights - The Saskatchewan Provincial Court held that the arrests were lawful - The officers believed that Omar and Aden were involved in drug trafficking - The facts they relied on were objectively relevant and the conclusions and inferences they drew therefrom were logically probative - The searches incident to arrest were also lawful because they were done to ensure officer and public safety, prevent the destruction or disappearance of evidence, and to find evidence of criminal activity - The court would not have excluded the evidence under s. 24(2) even if there was a Charter violation - The investigation was ongoing for nearly a month - Police were not acting on a hunch or a whim - The impact of the breach would have been minimal - The main evidence sought to be excluded were the hotel room keys, which were physical and highly reliable evidence - See paragraphs 61 to 86.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Following a month long police investigation respecting a dial-a-dope drug operation that involved several male suspects, Omar and others were arrested and charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime - At the scene of his arrest, Omar stated that he wanted to speak to a lawyer - He was transported to the police station and a strip search was conducted at 5:24 p.m. before Omar was lodged in cells - Omar was permitted to call a lawyer at 1:55 a.m. - His lawyer could not be reached at that hour, and he did not have a completed lawyer call until 10:09 a.m. - Police testified that Omar could not call a lawyer until they had completed their investigation, ensured that officer safety was not compromised, and ensured that evidence was not destroyed pending the acquisition of search warrants and entering the buildings where the drug trafficking activity was suspected - Omar claimed that his s. 10(b) Charter rights were violated - The Saskatchewan Provincial Court held that there was no Charter violation - The police investigation was ongoing - They were not sure if they had arrested all the individuals involved in the operation - For officer safety and to prevent the destruction or disappearance of evidence, police prevented outside communication of everyone under arrest to ensure that they did not contact any other possible associates or cohorts - Police did not obtain or attempt to obtain any evidence from Omar until he had contacted his lawyer - Delaying Omar's access to counsel was reasonable in the circumstances - The court would not have excluded any evidence under s. 24(2) even if there was a Charter violation - The evidence in question was already lawfully obtained prior to the s. 10(b) violation - See paragraphs 46 and 74 to 76.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1262 and Civil Rights - Topic 4604 ].

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 1262 ].

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - [See Civil Rights - Topic 1262 ].

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 Civil Rights - Topic 1262 ].

Cases Noticed:

R. v. Besharah (S.S.) (2010), 343 Sask.R. 202; 472 W.A.C. 202; 2010 SKCA 2, refd to. [para. 48].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 48].

R. v. MacKenzie (B.C.) (2013), 448 N.R. 246; 2013 SCC 50, refd to. [para. 48].

R. v. Loewen (D.J.) (2011), 415 N.R. 397; 84 C.R.(6th) 215; 2011 SCC 21, refd to. [para. 50].

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. 51].

R. v. Chehil (M.S.) (2013), 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 2013 SCC 49, refd to. [para. 53].

R. v. Nguyen (M.J.T.X.) (2013), 412 Sask.R. 284; 2013 SKQB 36, refd to. [para. 53].

R. v. Frieburg (T.) (2013), 294 Man.R.(2d) 1; 581 W.A.C. 1; 2013 MBCA 40, refd to. [para. 71].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 78].

Counsel:

Andrea Newsham and Lexi Pace, for the Crown;

Ammy Murray, for Mohammed Adbi Aden;

Barb Degenstein, for Mustafa Yousof Omar.

This Charter application was heard at Saskatoon, Saskatchewan, before Lavoie, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on November 21, 2013.