R. v. X.Y.Z., 2011 ABQB 95

• Judge: Yamauchi, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 01, 2011
• Citations: 2011 ABQB 95;(2011), 506 A.R. 85 (QB)

R. v. X.Y.Z. (2011), 506 A.R. 85 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MR.038

Her Majesty the Queen (respondent/Crown) v. X.Y.Z. (applicant/accused)

(090139098Q1; 2011 ABQB 95)

Indexed As: R. v. X.Y.Z.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Yamauchi, J.

March 1, 2011.

Summary:

The accused was charged with possession of cocaine for the purposes of trafficking. The accused applied for an order staying the proceedings, acquitting him or excluding all evidence seized on the basis that his rights under ss. 7, 8, 9 and 10(b) of the Charter had been violated.

The Alberta Court of Queen's Bench found breaches of ss. 8, 9 and 10(b) and ordered the exclusion of all the evidence.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 1281

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

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Police officers stopped the accused and arrested him for "dangerous driving and for traffic violations" - The officers discovered drugs in the car - The accused was charged with possession of cocaine for the purposes of trafficking - The Alberta Court of Queen's Bench held that the arrest was unlawful and a breach of s. 9 of the Charter - Consequently, the following search was also unlawful and a breach of s. 8 of the Charter - If the court was in error and there was no breach of s. 9, it would still have found a breach of s. 8 - Here, the accused was arrested for "dangerous driving and traffic violations." - Thus, the officers could conduct a search incident to that arrest - As well, the officers were within their duty to conduct a search for officer safety reasons - However, the accused was in the police vehicle in handcuffs, there were no other people in the vehicle and there did not seem to be anyone around - Thus, officer safety was not an issue, whether one viewed this objectively or subjectively - Even if the officers thought the vehicle might have been a stolen vehicle, they could easily have satisfied such a suspicion by asking the accused for his driver's license and vehicle registration or if necessary searching the vehicle's licence plate number - Neither action would have required the accused's removal from the vehicle - There was no evidence that the officers even asked the accused for his driver's license and registration before they asked the accused to step out of the vehicle - Consequently, the search and seizure were not Charter-compliant - See paragraphs 83 to 98.

Civil Rights - Topic 3157.2

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Police or prosecutorial agents - Police officers stopped the accused and arrested him for "dangerous driving and for traffic violations" - The officers discovered drugs in the car - They brought the accused to the police station where one of the officers (Cst. Hudec) made a deal with the accused - In exchange for information about the accused's supplier, Cst. Hudec would deal with the drug charges that the accused was facing - The accused cooperated with his father (also a police officer) and supplied some information to Cst. Hudec, who in turn, shared the information with detectives in the drug unit - The detectives opined that the information was not sufficient and refused to assist Cst. Hudec - The accused was charged with possession of cocaine for the purposes of trafficking - The accused applied for an order staying the proceedings on the basis of a breach of the principles of fundamental justice under s. 7 of the Charter - The Alberta Court of Queen's Bench found no breach of s. 7 - Cst. Hudec was not entirely forthright with the accused concerning the amount of information the accused was required to provide to reap the benefit that Cst. Hudec held out - In the end result, it did not matter, because the accused did not provide information sufficient even to identify the drug dealer - The accused acknowledged that he had much more information that he failed to provide - It was the accused who had the burden of providing the information - He did not even attempt to follow up with Cst. Hudec - After the accused met with his father, the accused left it to others to deal with the matter - The alleged agreement was that the accused was to supply the information to Cst. Hudec - Cst. Hudec was under no obligation to attempt to pry the information from the accused - The accused gave Cst. Hudec partial, and insufficient, information - Further, Cst. Hudec was not acting in bad faith or in an improper, vexatious, malicious or oppressive manner - The onus was on the accused to provide the information that Cst. Hudec requested and he did not - See paragraphs 45 to 69.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Police officers stopped the accused and arrested him for "dangerous driving and for traffic violations" - The officers discovered drugs in the car - The accused was charged with possession of cocaine for the purposes of trafficking - The accused asserted that his s. 9 Charter right to be free of arbitrary detention was violated - The Alberta Court of Queen's Bench held that the issue was whether the officers lawfully arrested the accused - The arrest power under s. 169 of the Traffic Safety Act had two requirements - The officers met the first requirement as the accused was allegedly driving carelessly or speeding - However, there was no evidence that the officers had reasonable and probable grounds, or any grounds for that matter, to believe the accused would continue or repeat dangerous driving (if there was any) or traffic violations, had they not arrested the accused - If the officers had a concern that the accused was driving a stolen vehicle, they could have asked the accused to produce registration and driver's licence information and, if necessary, followed up with a licence plate check - Consequently, the arrest was unlawful and the manner of detaining the accused was excessive and arbitrary - The officers breached the accused's s. 9 Charter rights - See paragraphs 70 to 82.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Police officers stopped the accused and arrested him for "dangerous driving and for traffic violations" - The officers discovered drugs in the car - The accused was charged with possession of cocaine for the purposes of trafficking - The accused asserted a violation of his s. 10(b) Charter right to counsel - The Alberta Court of Queen's Bench agreed - The accused was well aware of his right to contact counsel - He said as much in the police vehicle - The difficulty was that the officers did not give the accused any opportunity to exercise those rights roadside before discussing the police officer's business card in his wallet or before they commenced their discussion about the potential "agreement" (information in exchange for dealing with the charges) - The officers complied with the implementational component once they arrived at the police station by placing the accused in the telephone room and making sure the telephone was working - An officer instructed the accused on how to obtain a line-out - He did not bother the accused while the accused was in the telephone room, such as by peering in or tapping on the door - The accused had as much time as he wanted while he was in the telephone room - However, by that time, the damage had been done - The accused had discussed his role in the drug trade - Accordingly, the officers breached the accused's Charter s. 10(b) rights - See paragraphs 99 to 107.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police officers stopped the accused and arrested him for "dangerous driving and for traffic violations" - The officers discovered drugs in the car - The accused was charged with possession of cocaine for the purposes of trafficking - The Alberta Court of Queen's Bench found breaches of ss. 8, 9 and 10(b) of the Charter and ordered the exclusion of the evidence under s. 24(2) - The court balanced the factors relevant to the three-part inquiry in R. v. Grant (SCC 2009) and found that (1) the Charter breaches were on the more serious end of the spectrum; (2) the impact on the accused's rights was severe; and (3) the repute of the administration of justice would be adversely affected by the inclusion of the drugs seized from the vehicle - A reasonable person, informed of all the circumstances would find that admitting this evidence would not serve the long-term interests of the administration of justice - See paragraphs 108 to 128.

Cases Noticed:

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R. v. Young (1984), 3 O.A.C. 254; 13 C.C.C.(3d) 1 (C.A.), refd to. [para. 47].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165; 1989 CarswellOnt 94, refd to. [para. 49].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269; 1994 CarswellNfld 9, refd to. [para. 50].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 51].

R. v. Rudko (D.) (1999), 252 A.R. 142; 138 C.C.C.(3d) 150 (Q.B.), refd to. [para. 52].

R. v. Burton (D.J.) (2000), 196 Nfld. & P.E.I.R. 74; 589 A.P.R. 74; 149 C.C.C.(3d) 521; 2000 CarswellNfld 323 (Nfld. T.D.), refd to. [para. 52].

R. v. Crneck (1980), 55 C.C.C.(2d) 1; 1980 CarswellOnt 48 (H.C.), refd to. [para. 52].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 53].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 161 C.C.C.(3d) 97; 2002 SCC 12, refd to. [para. 54].

R. v. Nixon (O.) (2009), 464 A.R. 1; 467 W.A.C. 1; 246 C.C.C.(3d) 149; 2009 ABCA 269, leave to appeal granted (2010), 407 N.R. 391; 502 A.R. 400; 517 W.A.C. 400 (S.C.C.), refd to. [para. 55].

R. v. MacDonald (1990), 38 O.A.C. 9; 54 C.C.C.(3d) 97; 1990 CarswellOnt 82 (C.A.), refd to. [para. 56].

R. v. Crosbie Industrial Services Ltd. (2003), 104 C.R.R.(2d) 135; 2003 CarswellNfld 27 (N.L. Prov. Ct.), refd to. [para. 56].

R. v. E.D. (1990), 39 O.A.C. 13; 57 C.C.C.(3d) 151; 1990 CarswellOnt 104 (C.A.), refd to. [para. 58].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 65].

R. v. Henry (K.J.) (2004), 362 A.R. 309; 2004 ABQB 440, refd to. [para. 72].

R. v. Loveman (1992), 52 O.A.C. 94; 71 C.C.C.(3d) 123 (C.A.), refd to. [para. 73].

R. v. Dwernychuk (M.K.) (1992), 135 A.R. 31; 33 W.A.C. 31; 77 C.C.C.(3d) 385 (C.A.), refd to. [para. 73].

R. v. Dhuna (K.S.) (2009), 448 A.R. 296; 447 W.A.C. 296; 3 Alta. L.R.(5th) 47; 2009 ABCA 103, refd to. [para. 76].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 1990 CarswellOnt 78, refd to. [para. 78].

R. v. Petrin (J.) (2007), 436 A.R. 117; 2007 ABQB 687, refd to. [para. 79].

R. v. Clayton (W.) et al., [2007] 2 S.C.R. 725; 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [para. 80].

Brown et al. v. Durham Regional Police Force (1998), 116 O.A.C. 126; 131 C.C.C.(3d) 1 (C.A.), refd to. [para. 80].

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, refd to. [para. 81].

R. v. Chuhaniuk (B.D.) (2010), 292 B.C.A.C. 89; 493 W.A.C. 89; 2010 BCCA 403, refd to. [para. 81].

R. v. Hnetka (M.E.G.) (2010), 473 A.R. 327; 2010 ABQB 56, refd to. [para. 81].

R. v. Whyte, 2009 ONCJ 389, refd to. [para. 81].

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, refd to. [para. 84].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask. R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 84].

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, refd to. [para. 85].

R. v. N.O. (2009), 448 A.R. 253; 447 W.A.C. 253; 2 Alta. L.R.(5th) 72; 2009 ABCA 75, refd to. [para. 85].

R. v. Murray (1999), 136 C.C.C.(3d) 197 (Que. C.A.), refd to. [para. 85].

R. v. Volk (T.J.) (2010), 343 Sask.R. 133; 472 W.A.C. 133; 2010 SKCA 3, dist. [para. 87].

R. v. Harding (S.G.) (2010), 482 A.R. 262; 490 W.A.C. 262; 2010 ABCA 180, dist. [para. 87].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 90].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 90].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 91].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 92].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 94].

R. v. Willier (S.J.) (2010), 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 100].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 1994 CarswellOnt 100, refd to. [para. 101].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 101].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 101].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 101].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 110].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 111].

R. v. Loewen (D.J.) (2010), 490 A.R. 72; 497 W.A.C. 72; 2010 ABCA 255, refd to. [para. 119].

R. v. Reddy (C.J.) (2010), 282 B.C.A.C. 51; 476 W.A.C. 51; 251 C.C.C.(3d) 151; 2010 BCCA 11, refd to. [para. 121].

Counsel:

C. Kloot, for the respondent/Crown;

R.W. Hladun, Q.C., for the applicant/accused.

This case was heard on December 1 to 3, 2010, by Yamauchi, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on March 1, 2011.