R. v. Whipple (S.D.), [2016] A.R. TBEd. AU.009

• Judge: Paperny, Watson and McDonald, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 09, 2016
• Citations: [2016] A.R. TBEd. AU.009;2016 ABCA 232

R. v. Whipple (S.D.), [2016] A.R. TBEd. AU.009

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2016] A.R. TBEd. AU.009

Her Majesty the Queen (appellant) v. Steven Daniel Whipple (respondent)

(1403-0159-A; 2016 ABCA 232)

Indexed As: R. v. Whipple (S.D.)

Alberta Court of Appeal

Paperny, Watson and McDonald, JJ.A.

August 5, 2016.

Summary:

Whipple, Croft and Aldaba were jointly charged with conspiracy to traffic in methamphetamine and possession of methamphetamine for the purposes of trafficking. A significant quantity of methamphetamine had been found in the trunk of Whipple's vehicle during a roadside search. The vehicle was stopped, legitimately, for a traffic violation. The General Warrant, issued pursuant to s. 487.01(c) of the Criminal Code, provided in part that "The occupants of the vehicle, including Steven WHIPPLE, will not be informed of the actual reason for the traffic stop." Whipple alleged that the police violated several of his Charter rights in the course of his arrest, and applied for exclusion of the drug evidence pursuant to s. 24(2) of the Charter.

The Alberta Court of Queen's Bench, in a decision reported as R. v. Croft (J.C.) at (2014), 608 A.R. 15 (the "breach ruling"), held that: (1) Whipple's Charter s. 8 rights were infringed when the RCMP searched his vehicle at the roadside. The search was conducted on the authority of a General Warrant that was invalid for purporting to authorize the police to ignore Whipple's Charter s. 10(a) right "on arrest or detention to be informed promptly of the reasons therefore"; (2) Whipple's Charter s. 9 right was violated because, having been detained pursuant to an invalid General Warrant, his detention was arbitrary; and (3) there was no breach of Whipple's s. 10(a) Charter rights.

The Alberta Court of Queen's Bench, in a decision reported as R. v. Croft (J.C.), at (2014), 608 A.R. 63 (the "exclusion ruling"), held that the admission of the evidence obtained in the roadside detention would bring the administration of justice into disrepute, and excluded the seized drugs under s. 24(2) of the Charter. Whipple applied for a nonsuit in respect of possession of methamphetamine for the purposes of trafficking.

The Alberta Court of Queen's Bench, in a decision reported as R. v. Aldaba (J.M.R.) et al., at (2014), 608 A.R. 125, granted Whipple's nonsuit application, and directed the entry of an acquittal. The Crown appealed the "breach ruling" and the "exclusion ruling". Whipple sought to uphold the acquittal.

The Alberta Court of Appeal allowed the appeal and ordered a new trial. There was no Charter basis to exclude the seized drugs under s. 24(2) of the Charter. "The trial judge erred in law in interpreting the General Warrant as authorizing a breach of s. 10(a) of the Charter. It did nothing more than allow the police to be less than forthcoming about their reliance on wiretaps and the General Warrant at this stage of their investigation ... . The trial judge erred in law in concluding that, if the General Warrant authorized a delay and incompleteness in compliance with s. 10(a) of the Charter, it automatically rendered the General Warrant invalid. The trial judge did not err in law in finding no actual breach of s. 10(a) of the Charter. The trial judge erred in law in finding that [Whipple]'s detention beyond the initial traffic stop was unlawful as it was authorized by a valid General Warrant and therefore there was no breach of either s. 8 or 9 of the Charter. In any event, the trial judge also erred in law in effectively finding that a detention in excess of legal authority is inevitably arbitrary detention."

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - A trial judge declared a General Warrant issued pursuant to s. 487.01(c) of the Criminal Code invalid for authorizing the police to delay informing the accused Whipple of the full reasons why they stopped his vehicle and conducted a search of it - The vehicle was stopped, legitimately, for a traffic violation - The General Warrant provided in part that "The occupants of the vehicle, including Steven WHIPPLE, will not be informed of the actual reason for the traffic stop." - Cst. Kuca had detected (using radar) that Whipple was speeding, and told Whipple that upon his being stopped - Whipple was also promptly told that Cst. Kuca suspected that there were drugs in the vehicle - A significant quantity of methamphetamine was found in the trunk of Whipple's vehicle during the search - The Alberta Court of Appeal held that the trial judge erred in law in finding that Whipple's detention beyond the initial traffic stop was unlawful by reason of the search being warrantless, resulting in a breach of s. 8 of the Charter - The detention was authorized by a valid General Warrant and therefore there was no breach of s. 8 of the Charter - See paragraph 9.

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 Criminal Law - Topic 3046 ].

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)) - A significant quantity of methamphetamine was found in the trunk of the accused Whipple's vehicle during a roadside search - The vehicle had been stopped, legitimately, for a traffic violation - The General Warrant, issued pursuant to s. 487.01(c) of the Criminal Code, provided in part that "The occupants of the vehicle, including Steven WHIPPLE, will not be informed of the actual reason for the traffic stop." - Cst. Kuca had detected (using radar) that Whipple was speeding, and told Whipple that upon his being stopped - Whipple was also promptly told that Cst. Kuca suspected that there were drugs in the vehicle - Whipple argued that his Charter s. 10(a) rights were violated because he was not told that he was detained pursuant to the General Warrant - The trial judge ruled that there was no breach of Whipple's Charter s. 10(a) rights - The Alberta Court of Appeal held that the ruling was correct - "[T]he General Warrant merely allowed the police to not be forthcoming about the total basis for their interaction with [Whipple]" - The Court surveyed the case law history respecting police lack of disclosure or active deception in investigations, including Mr. Big investigations, and stated that "[n]othing even remotely like that was contemplated by this General Warrant. The General Warrant was not invalid firstly for the fact that it did not authorize a specific s. 10(a) Charter breach. To the extent that it authorized police lack of disclosure to assist in a larger investigation during which this search was to occur, it did not constitute a facial dismissal of a Charter right. ... This warrant's authority was aimed at s. 8 of the Charter, not at s. 10(a) of the Charter." - See paragraphs 25 to 43.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A significant quantity of methamphetamine had been found in the trunk of the accused Whipple's vehicle during a roadside search - The vehicle was stopped, legitimately, for a traffic violation - The General Warrant, issued pursuant to s. 487.01(c) of the Criminal Code, provided in part that "The occupants of the vehicle, including Steven WHIPPLE, will not be informed of the actual reason for the traffic stop." - Cst. Kuca had detected (using radar) that Whipple was speeding, and told Whipple that upon his being stopped - Whipple was also promptly told that Cst. Kuca suspected that there were drugs in the vehicle - The trial judge ruled that Whipple's Charter s. 9 rights were violated - Having been detained pursuant to an invalid General Warrant, his detention was arbitrary at least until the search was completed and the drugs were found (about 15 minutes) - The Alberta Court of Appeal held that the trial judge erred in law in effectively finding that a detention in excess of legal authority was inevitably arbitrary detention - "The trial judge did not cite authority for the proposition that what was said to be a roadside detention of 15 minutes or so became arbitrary when the police were relying in good faith on a judicial authority to conduct the detention and were taking the measure of recording the entire transaction. The trial judge conflates 'illegal' with 'arbitrary' in this approach. ... There is nothing in this record to suggest that Cst. Kuca's detention of the respondent at the road side during the vehicle search was ipso jure a form of arbitrary detention, let alone a sufficient degree of arbitrary detention to justify exclusion of evidence. Even assuming, for argument's sake, that the respondent's detention became illegal due to the lack of support of the General Warrant, it did not necessarily thereby become arbitrary because the police action was not shown to be completely disconnected from or grossly disproportionate to the objectives of the criminal law generally or the Criminal Code in particular." - See paragraphs 44 to 49.

Criminal Law - Topic 3046

Special powers - Search warrants - Validity of - General - The General Warrant, issued pursuant to s. 487.01(c) of the Criminal Code, provided in part that "The occupants of the vehicle, including Steven WHIPPLE, will not be informed of the actual reason for the traffic stop." - The trial judge ruled that the General Warrant was invalid for purporting to authorize the police to ignore Whipple's Charter s. 10(a) right "on arrest or detention to be informed promptly of the reasons therefore", and thus did not provide authority for the search of Whipple's vehicle - The Alberta Court of Appeal, in allowing the Crown's appeal, held that "[t]he trial judge erred in law in interpreting the General Warrant as authorizing a breach of s. 10(a) of the Charter. It did nothing more than allow the police to be less than forthcoming about their reliance on wiretaps and the General Warrant at this stage of their investigation ... . The trial judge erred in law in concluding that, if the General Warrant authorized a delay and incompleteness in compliance with s. 10(a) of the Charter, it automatically rendered the General Warrant invalid." - See paragraph 8.

Criminal Law - Topic 3051

Special powers - Search warrants - Validity of - Narcotic control - [See Criminal Law - Topic 3046 ].

Counsel:

R.C. Reimer and S.C. Leonard, for the appellant;

S.M. Renouf, Q.C., and J.K. Renouf, for the respondent.

This appeal was heard on June 9, 2016, before Paperny, Watson and McDonald, JJ.A., of the Alberta Court of Appeal, who delivered the following memorandum of judgment, filed at Edmonton, Alberta, on August 5, 2016.