R. v. Tran (L.V.), 2010 ABCA 211

• Judge: McFadyen, Berger and Ritter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 04, 2010
• Citations: 2010 ABCA 211;(2010), 482 A.R. 357 (CA)

R. v. Tran (L.V.) (2010), 482 A.R. 357 (CA);

      490 W.A.C. 357

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JL.011

Her Majesty the Queen (appellant) v. Lac Van Tran (respondent)

(0903-0050-A; 2010 ABCA 211)

Indexed As: R. v. Tran (L.V.)

Alberta Court of Appeal

McFadyen, Berger and Ritter, JJ.A.

June 29, 2010.

Summary:

The accused was charged with possession of cocaine for the purpose of trafficking, possession of marijuana for the purpose of trafficking, possession of proceeds of crime and obstructing a peace officer. The accused alleged that his ss. 7, 8, 9, 10(a) and 10(b) Charter rights had been violated.

The Alberta Court of Queen's Bench, in a decision reported at 447 A.R. 282, held that the accused's ss. 8, 9, 10(a) and 10(b) Charter rights had been violated. The accused applied to exclude the evidence seized pursuant to s. 24(2) of the Charter. The accused also sought to exclude a statement pursuant to s. 24(2).

The Alberta Court of Queen's Bench, in a decision reported at 447 A.R. 319, excluded the evidence and the impugned statement. The accused was acquitted. The Crown appealed.

The Alberta Court of Appeal allowed the appeal and ordered a new trial.

Civil Rights - Topic 1645

Property - Search and seizure - Consent to search - The vehicle the accused was driving was stopped by Sgt. Topham for a traffic violation - At first, the accused was told he "was free to go" - As a result of his conversations with the accused, Topham's observations of the contents of the vehicle and Topham's training as a national instructor in Operation Pipeline, Topham came to believe that the accused might be involved in criminal activity - However, Topham did not believe he had reasonable and probable grounds to arrest the accused - Instead, Topham obtained the accused's consent to conduct a search of the vehicle - Topham found approximately 8 kilograms of marihuana, 2 kilograms of cocaine and $10,000 cash in the trunk of the vehicle - The accused was acquitted of drug and other offences - The trial judge held that the accused had not consented to the search - The Alberta Court of Appeal allowed the Crown's appeal and ordered a new trial - The Crown had satisfied the first two criteria of valid consent: the accused consented to the search of the vehicle and he had authority to consent - The issue was whether the consent was voluntary - The trial judge found that the accused knew that Topham wished to search the vehicle, and had advised him that he would be charged if Topham found marihuana or drugs - The trial judge also found that Topham made no promises, threats or inducements to the accused to obtain his consent - Even if the Crown had to prove that the accused knew that the police could not conduct a search without his consent, the trial judge did not consider whether the accused had that knowledge in light of the fact that (a) there was a request for permission to search the vehicle, (b) the accused was advised that he was free to go, (c) the accused was asked whether he had any objections to a search of the vehicle, and (d) that Topham advised that the search was voluntary and that the accused could stop him if he wanted to - The trial judge found that Topham asked the accused whether he had any objection to a search of his vehicle, to which the accused replied that he did not - Topham again asked, "so you don't object," and the accused replied that he did not - These fact findings met all the criteria for a valid consent - Although the trial judge accepted this evidence, he concluded that the accused did not feel that he could prevent or stop the search - The trial judge neither rejected nor accepted Topham's evidence that he expressly advised the accused that he could stop him if he wanted to - Additionally, the trial judge did not assess whether the accused withdrew his consent when he prevented the trunk lid from opening, and if so, whether the accused consented to the subsequent search - See paragraphs 31 to 38.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The vehicle the accused was driving was stopped by Sgt. Topham for a traffic violation - At first, the accused was told he "was free to go" - As a result of his conversations with the accused, Topham's observations of the contents of the vehicle and Topham's training as a national instructor in Operation Pipeline, Topham came to believe that the accused might be involved in criminal activity - Topham continued further conversation with the accused - However, Topham did not believe he had reasonable and probable grounds to arrest the accused - Instead, Topham obtained the accused's consent to conduct a search of the vehicle - Topham found approximately 8 kilograms of marihuana, 2 kilograms of cocaine and $10,000 cash in the trunk of the vehicle - The accused was acquitted of drug and other offences - The trial judge held that the accused's right to be free of arbitrary detention under s. 9 of the Charter had been violated - The accused was psychologically detained - The Alberta Court of Appeal allowed the Crown's appeal and ordered a new trial - The trial judge relied on the accused's evidence that he felt he had to answer Topham's questions because he was a police officer - The trial judge applied the subjective test in concluding that the accused was detained - However, the trial judge failed to address the reasonableness of the accused's belief by inquiring whether, in all the circumstances as they developed, a reasonable person would perceive he had no option but to cooperate - Consequently, the trial judge erred in law by failing to use an objective test when considering whether the accused was psychologically detained - Further, the trial judge erred in law in concluding the decision in R. v. Fash (D.M.) (ABCA 1999) required that the police say more than just telling a person that he was free to go - In Fash, the court was not providing a mandatory script, but rather indicated the importance of a clear communication to the person that he or she was free to go - See paragraphs 25 to 30.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The vehicle the accused was driving was stopped by Sgt. Topham for a traffic violation - At first, the accused was told he "was free to go" - As a result of his conversations with the accused, Topham's observations of the contents of the vehicle and Topham's training as a national instructor in Operation Pipeline, Topham came to believe that the accused might be involved in criminal activity - However, Topham did not believe he had reasonable and probable grounds to arrest the accused - Instead, Topham obtained the accused's consent to conduct a search of the vehicle - Topham found approximately 8 kilograms of marihuana, 2 kilograms of cocaine and $10,000 cash in the trunk of the vehicle - The accused was acquitted of drug and other offences - The trial judge held that the accused's ss. 8, 9, 10(a) and 10(b) Charter rights had been violated and excluded the seized evidence pursuant to s. 24(2) of the Charter - The Alberta Court of Appeal allowed the Crown's appeal and ordered a new trial - The trial judge found that the accused was compelled to participate in the finding of the drugs, and that the evidence was conscriptive - The trial judge did not deal with the question whether the drugs were found as a result of an inadmissible statement - Further, the trial judge did not draw any connection between the inadmissible statement and the seizure of the evidence found in the trunk of the vehicle - Had the trial judge concluded that the accused made the statement prior to the discovery of the drugs and that the statement led to the discovery and seizure of the drugs, it was open to him to conclude that the evidence was conscriptive, derivative evidence - The finding that the evidence was conscriptive evidence played a significant role in the trial judge's decision to exclude the drugs under s. 24(2) - Accordingly, a new trial was warranted - See paragraphs 39 to 48.

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; 2004 SCC 52, refd to. [para. 14].

R. v. Fash (D.M.) (1999), 244 A.R. 146; 209 W.A.C. 146; 1999 ABCA 267, leave to appeal refused (2001), 269 N.R. 206; 281 A.R. 272; 248 W.A.C. 272 (S.C.C.), refd to. [para. 15].

R. v. Wills (1992), 52 O.A.C. 321; 7 O.R.(3d) 337 (C.A.), refd to. [para. 17].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 245 C.C.C.(3d) 1; 2009 SCC 32, refd to. [para. 23].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655, refd to. [para. 27].

R. v. Goldman, [1980] 1 S.C.R. 976; 30 N.R. 453; 108 D.L.R.(3d) 17, refd to. [para. 34].

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; 144 D.L.R.(4th) 193, refd to. [para. 42].

R. v. Acciavatti (M.J.) (1993), 62 O.A.C. 137; 80 C.C.C.(3d) 109 (C.A.), refd to. [para. 45].

R. v. France and Winter, [2002] 10 W.W.R. 664; 2002 NWTSC 32, refd to. [para. 45].

R. v. Lewis (D.E.) (1998), 107 O.A.C. 46; 38 O.R.(3d) 540 (C.A.), refd to. [para. 45].

R. v. Davies (D.M.R.) (1998), 109 B.C.A.C. 125; 177 W.A.C. 125; 127 C.C.C.(3d) 97 (C.A.), leave to appeal denied [1999] 1 S.C.R. vii; 236 N.R. 194; 127 B.C.A.C. 27; 207 W.A.C. 27, refd to. [para. 45].

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; 146 D.L.R.(4th) 609, refd to. [para. 46].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81; 151 D.L.R.(4th) 443, refd to. [para. 46].

Counsel:

D.C. Hrabcak, for the appellant;

S.M. Tarrabain, Q.C., L.M. Rideout and A.Y. Karbani, for the respondent.

This appeal was heard on February 4, 2010, by McFadyen, Berger and Ritter, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was delivered at Edmonton, Alberta, on June 29, 2010.