R. v. Yeh (K.-P.T.),

• Jurisdiction: Saskatchewan
• Judge: Klebuc, C.J.S., Lane, Jackson, Richards, Smith, Hunter and Wilkinson, JJ.A.
• Neutral Citation: 2009 SKCA 112
• Citation: 2009 SKCA 112,(2009), 337 Sask.R. 1 (CA),[2009] 11 WWR 193,248 CCC (3d) 125,69 CR (6th) 197,337 Sask R 1,337 SaskR 1,(2009), 337 SaskR 1 (CA),337 Sask.R. 1
• Date: 28 April 2009
• Court: Court of Appeal (Saskatchewan)

R. v. Yeh (K.-P.T.) (2009), 337 Sask.R. 1 (CA);

    464 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. OC.005

Her Majesty the Queen (appellant) v. Kang-Po Tom Yeh (respondent)

(No. 1571; 2009 SKCA 112)

Indexed As: R. v. Yeh (K.-P.T.)

Saskatchewan Court of Appeal

Klebuc, C.J.S., Lane, Jackson, Richards, Smith, Hunter and Wilkinson, JJ.A.

September 29, 2009.

Summary:

Officers observed Yeh's vehicle weaving within its lane on a highway. He was pulled over due to the officers' concerns about possible impaired driving or driver fatigue. A large amount of marijuana, narcotics and cash were discovered in the vehicle in a subsequent search. Yeh was charged with possession of marijuana and ecstasy for the purpose of trafficking and possession of the proceeds of crime. At trial, Yeh sought exclusion of the evidence, asserting breaches of his rights under ss. 8, 9, 10(a) and 10(b) of the Charter.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2008), 322 Sask.R. 35, allowed the application on the basis of violations of ss. 8, 10(a) and 10(b). The Crown appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - Two officers who were on traffic duty with a drug sniffing dog pulled Yeh's vehicle over for weaving in its lane - Officer Wilson arrived - Based on observations of Yeh (e.g. grey skin, eyelid tremors) and field sobriety tests, Wilson concluded that Yeh had used marijuana within the last four hours - Based on Yeh's statement that he was coming from Calgary, Wilson concluded that the marijuana had been consumed in the vehicle - He directed deployment of the dog - The dog indicated the presence of drugs - Yeh was arrested - Marijuana, narcotics and cash were discovered in the vehicle - Yeh was charged with possession of marijuana and ecstasy for the purpose of trafficking and possession of the proceeds of crime - The trial judge excluded the evidence under s. 24(2) of the Charter on the basis of violations of, inter alia, s. 8 of the Charter - The Saskatchewan Court of Appeal dismissed the Crown's appeal - The majority, per Richards, J.A., held that, examined objectively, Wilson's suspicions were a mere hunch - Wilson had neither the training in recognizing the symptoms of drug use nor the background to make such a determination - Yeh's vehicle did not smell of marijuana or of a masking agent - None of the officers had observed drug paraphernalia or evidence of drug consumption - In the absence of a reasonable suspicion that Yeh was transporting or in possession of marijuana, the dog search violated s. 8 - While the evidence was non-conscriptive and the officers had acted in good faith, the reasoning from R. v. Kang-Brown (G.) (2008 S.C.C.) applied - This was a warrantless search on inadequate grounds - The evidence was properly excluded - See paragraphs 41 to 65 - Jackson, J.A. (Hunter, J.A., concurring), agreed with the majority on this point - There was good reason to limit dog searches when a person was detained - Police conduct had to be considered objectively from the perspective of the travelling public as well as from the perspective of crime prevention - Allowing the use of a sniffer dog in circumstances such as here ran the risk of allowing traffic stops to become a pretext for a search for drugs - See paragraphs 149 to 163.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1641.4 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Civil Rights - Topic 1641.4 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - In R. v. Nguyen (H.Q.) et al. (2008 Sask. C.A.), the court stated that "[i]nvestigative detention will not avoid Charter challenge if its purpose is to determine whether a crime has been or is being committed as opposed to determining whether the detainee is linked to a recent or on-going crime" - In the Crown's appeal of a trial judge's decision excluding evidence of drugs and cash uncovered in a vehicle that had been pulled over for suspected traffic violations, the Crown suggested that the court's conclusion in Nguyen was "misplaced" - The majority of an extended panel of the Saskatchewan Court of Appeal, per Richards, J.A., held that an investigative detention could be lawfully conducted in relation to a "suspected" offence - To the extent that Nguyen suggested otherwise, it should not be followed - An investigative detention was lawful only when a police officer had a reasonable suspicion of specific criminal activity based on objectively verifiable grounds and only when, in all of the relevant circumstances, the detention was reasonable - A generalized feeling that an individual was doing something wrong could not serve as the basis of a lawful detention - These prerequisites for investigative detention helped to ensure that such detentions would not be based on hunches or intuitions that could serve as covers for arbitrary conduct and either deliberate or subconscious profiling based on factors such as race, ethnic origin or socioeconomic status - Further, such detentions had a limited scope and had to be brief - While they represented an intrusion on personal liberty, that intrusion was limited - Overall, the reasonable suspicion standard, qualified by the requirement that a detention had to be reasonable when seen in its full context, and combined with the limited scope of police powers available once an individual was detained, served to create an acceptable balance between the need to safeguard individual liberty and privacy interests, on the one hand, and the need to protect the public on the other - See paragraphs 66 to 103.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Two officers who were on traffic duty with a drug sniffing dog pulled Yeh's vehicle over for weaving in its lane - Officer Wilson arrived - Based on observations of Yeh (e.g. grey skin, eyelid tremors) and field sobriety tests, Wilson concluded that Yeh had used marijuana within the last four hours - Based on Yeh's statement that he was coming from Calgary, Wilson concluded that the marijuana had been consumed in the vehicle - He directed deployment of the dog - The dog indicated the presence of drugs - Yeh was arrested - Marijuana, narcotics and cash were discovered in the vehicle - Yeh was charged with possession of marijuana and ecstasy for the purpose of trafficking and possession of the proceeds of crime - At trial, Yeh sought exclusion of the evidence, asserting, inter alia, a breach of his rights under s. 9 of the Charter - The trial court allowed the application on other grounds - On the Crown's appeal, an extended panel of the Saskatchewan Court of Appeal reconsidered the issue of investigative detentions in the context of R. v. Nguyen (H.Q.) et al. (2008 Sask. C.A.) - The majority, per Richards, J.A., held that an investigative detention could be lawfully conducted in relation to a "suspected" offence - To the extent that Nguyen suggested otherwise, it should not be followed - Here, the officers might potentially have been shown, at most, to have had a reasonable suspicion that a marijuana offence was being committed - This did not, in itself, render Yeh's detention unlawful - See paragraph 103.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1641.4 ].

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches - Reasonable grounds - [See Civil Rights - Topic 1641.4 ].

Narcotic Control - Topic 2063

Search and seizure - Warrantless searches - Reasonable grounds - Evidence - An officer directed a dog sniff search of a vehicle that had been pulled over for suspected traffic violations - Marijuana, narcotics and cash were discovered in the vehicle - The accused was charged with possession of marijuana and ecstasy for the purpose of trafficking and possession of the proceeds of crime - He sought exclusion of the evidence, asserting breaches of his rights under ss. 8, 9, 10(a) and 10(b) of the Charter - The officer testified that his conclusion that the accused had used marijuana in the vehicle within the last four hours, which was the justification for his deployment of the drug dog, was based on the officer's observations of the accused (e.g. grey skin, eyelid tremors) and the accused's statement that he had driven from Calgary - In assessing the reasonableness of the officer's conclusion, the Saskatchewan Court of Appeal indicated that recognizing symptoms of drug use and then employing them to determine what kinds of drugs had been consumed and when they were consumed was a technical or scientific sort of endeavour - It was not the kind of skill one would readily expect a police officer to pick up outside of a formal training or educational session - To the extent that an officer might acquire information of this kind through self-directed reading or research, a judge should obviously be very slow to put much credit in the officer's knowledge in the absence of a careful examination of its specific source and the reliability of that source - Here, the officer's information came from an unknown and unnamed publication - There was no basis for giving any meaningful weight to his views about when the accused consumed marijuana - The court concluded that the officer's suspicions were, effectively, a mere hunch - See paragraphs 52 to 60.

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See both Civil Rights - Topic 3603 ].

Police - Topic 3109

Powers - Investigation - Motor vehicles - [See Civil Rights - Topic 1641.4 ].

Police - Topic 3189

Powers - Search - Use of dogs - [See Civil Rights - Topic 1641.4 ].

Cases Noticed:

R. v. Nguyen (H.Q.) et al., [2009] 2 W.W.R. 591; 324 Sask.R. 1; 451 W.A.C. 1; 2008 SKCA 160, overruled [paras. 4, 105].

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, appld. [para. 41]; consd. [para. 128].

R. v. A.M., [2008] 1 S.C.R. 568; 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, refd to. [paras. 41, 129].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 12 O.R.(3d) 182 (C.A.), refd to. [para. 44].

R. v. Bramley (R.L.) et al. (2009), 324 Sask.R. 286; 451 W.A.C. 286; 2009 SKCA 49, refd to. [paras. 49, 109].

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, consd. [paras. 50, 107].

R. v. Mouland (L.L.) (2007), 304 Sask.R. 129; 413 W.A.C. 129; 2007 SKCA 105, refd to. [para. 53].

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. 63].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 63].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [paras. 64, 115].

R. v. Suberu (M.) (2009), 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [paras. 67, 162].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), refd to. [paras. 68, 148].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 68].

Terry v. Ohio (1968), 392 U.S. 1, refd to. [para. 80].

United States v. Arvizu (2002), 534 U.S. 266, refd to. [para. 81].

Illinois v. Wardlow (2000), 528 U.S. 119, refd to. [para. 81].

United States v. Sokolow (1989), 490 U.S. 1, refd to. [para. 81].

Florida v. Rodriquez (1984), 469 U.S. 1, refd to. [para. 81].

Reid v. Georgia (1980), 448 U.S. 438, refd to. [para. 81].

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. [paras. 90, 127].

R. v. Nesbeth (P.) (2008), 240 O.A.C. 71; 2008 ONCA 579, leave to appeal denied (2009), 398  N.R. 392 (S.C.C.), refd to. [paras. 98, 137].

R. v. Calderon (2004), 188 C.C.C.(3d) 481 (Ont. C.A.), refd to. [paras. 98, 135].

R. v. Duong (T.) (2006), 228 B.C.A.C. 183; 376 W.A.C. 183; 2006 BCCA 325, refd to. [paras. 99, 137].

R. v. Wilson (J.W.), [1990] 1 S.C.R. 1291; 108 N.R. 207; 107 A.R. 321, refd to. [para. 100].

R. v. Schrenk (C.A.), [2007] 9 W.W.R. 697; 215 Man.R.(2d) 212; 2007 MBQB 93, refd to. [para. 101].

R. v. Bernard, [1988] 2 S.C.R. 833; 90 N.R. 321; 32 O.A.C. 161, refd to. [para. 112].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161, refd to. [para. 112].

R. v. Biron, [1976] 2 S.C.R. 56; 4 N.R. 45, refd to. [para. 119].

R. v. Roberge, [1983] 1 S.C.R. 312; 46 N.R. 573, refd to. [para. 119].

R. v. Wright, 2007 ONCJ 493, refd to. [para. 119].

R. v. Janvier (A.V.), [2008] 3 W.W.R. 1; 302 Sask.R. 190; 411 W.A.C. 190; 2007 SKCA 147, refd to. [para. 119].

R. v. Spindloe (M.), [2002] 5 W.W.R. 239; 207 Sask.R. 3; 247 W.A.C. 3; 2001 SKCA 58, refd to. [para. 119].

R. v. Sewell (E.E.), [2004] 6 W.W.R. 694; 232 Sask.R. 210; 294 W.A.C. 210; 2003 SKCA 52, refd to. [para. 119].

R. v. Byfield (C.A.) (2005), 194 O.A.C. 98; 193 C.C.C.(3d) 139 (C.A.), refd to. [para. 122].

R. v. Ferdinand (K.), [2004] O.T.C. 674; 21 C.R.(6th) 65 (Sup. Ct.), refd to. [para. 135].

R. v. Bell (R.L.), [2004] A.R. Uned. 578; 123 C.R.R.(2d) 1; 2004 ABPC 136, refd to. [para. 135].

R. v. Graham (2004), 124 C.R.R.(2d) 121 (Ont. C.J.), refd to. [para. 135].

R. v. Abraham (2004), 7 M.V.R.(5th) 128; 2004 MBQB 234, refd to. [para. 135].

R. v. A.B., [2004] O.J. No. 5660 (C.J.), refd to. [para. 135].

R. v. K.W., 2004 ONCJ 351, refd to. [para. 135].

R. v. S.V. (2005), 32 C.R.(6th) 389; 2005 ONCJ 410, refd to. [para. 135].

R. v. Peters (K.A.), [2006] B.C.T.C. 1560; 147 C.R.R.(2d) 334; 2006 BCSC 1560, refd to. [para. 135].

R. v. Filli (K.), [2007] O.T.C. Uned. S02; 2007 CarswellOnt 5281 (Sup. Ct.), affd. [2008] O.A.C. Uned. 448; 2008 ONCA 649, refd to. [para. 135].

R. v. Barrett, 2007 CarswellOnt 6899 (Sup. Ct.), refd to. [para. 135].

R. v. Ambrose (K.) (2008), 332 N.B.R.(2d) 68; 852 A.P.R. 68; 2008 NBPC 32, refd to. [para. 135].

R. v. Yaran (S.R.) (2009),  466 A.R. 255; 2009 ABPC 31, refd to. [para. 135].

R. v. Gomez, 2006 BCPC 82, refd to. [para. 136].

R. v. Dykhuizen, 2007 ABQB 489, refd to. [para. 136].

R. v. Hanano (S.) (2007), 210 Man.R.(2d) 250; 2007 MBQB 9, refd to. [para. 136].

R. v. Cooper (M.A.) (2005), 231 N.S.R.(2d) 156; 733 A.P.R. 156; 195 C.C.C.(3d) 162; 2005 NSCA 47, refd to. [para. 137].

R. v. Reid, 2005 CarswellOnt 7545 (Sup. Ct.), refd to. [para. 137].

R. v. Lynds (C.J.) (2007), 264 N.S.R.(2d) 24; 847 A.P.R. 24; 2007 NSPC 47, refd to. [para. 137].

R. v. Pearson (B.J.) (2009), 473 A.R. 357; 2009 ABQB 382, refd to. [para. 137].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 139].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 139].

R. v. Kang-Brown (G.) (2005), 386 A.R. 48; 203 C.C.C.(3d) 132; 2005 ABQB 608, affd. [2006] 9 W.W.R. 633; 391 A.R. 218; 377 W.A.C. 218; 2006 ABCA 199, refd to. [para. 151].

R. v. Harrison (B.) (2009), 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 162].

Authors and Works Noticed:

Berger, Benjamin, Race and Erasure in R. v. Mann (2004), 21 C.R.(6th) 58, p. 59 [para. 146].

Boucher and Landa, Understanding Section 8: Search, Seizure and the Canadian Constitution (2005), p. 246 [para. 133].

Fiszauf, Alec, The Law of Investigative Detention (2008), p. 75 [para. 132].

Gottardi, Regulating State Intrusions in Context of Investigative Dententions (2004), 21 C.R.(6th) 27, pp. 29 [para. 134]; 36 [para. 154].

Quigley, Tim, Mann, It's a Disappointing Decision (2004), 21 C.R.(6th) 41, pp. 44, 45 [para. 146].

Sankoff, Peter, and Perrault, Stéphane, Suspicious Searches: What's so Reasonable About Them? (1999), 24 C.R.(5th) 123, pp. 125, 126 [para. 45].

Skibinsky, Regulating Mann in Canada (2006), 69 Sask. L. Rev. 197, p. 207 [para. 134].

Tanovich, David, The Further Erasure of Race in Charter Cases (2006), 38 C.R.(6th) 84, pp. 84 to 86 [para. 146].

Counsel:

Douglas G. Curliss, for the appellant;

Aaron A. Fox, Q.C., for the respondent.

This appeal was heard on April 28, 2009, by Klebuc, C.J.S., Lane, Jackson, Richards, Smith, Hunter and Wilkinson, JJ.A., of the Saskatchewan Court of Appeal. On September 29, 2009, the decision of the Court of Appeal was delivered with the following opinions:

Richards, J.A. (Klebuc, C.J.S., Lane, Smith and Wilkinson, JJA., concurring) - see paragraphs 1 to 104;

Jackson, J.A. (Hunter, J.A., concurring), concurring in the result - see paragraphs 105 to 163.