R. v. Yong (F.O.), (2013) 558 A.R. 113 (QB)

• Judge: Hillier, J.
• Court: Court of Queen''s Bench of Alberta (Canada)
• Case Date: Friday March 01, 2013
• Citations: (2013), 558 A.R. 113 (QB);2013 ABQB 137

R. v. Yong (F.O.) (2013), 558 A.R. 113 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AP.014

Her Majesty the Queen v. Fook Onn Yong (100239193Q1; 2013 ABQB 137)

Indexed As: R. v. Yong (F.O.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Hillier, J.

March 1, 2013.

Summary:

The accused was charged with possession of cocaine for the purpose of trafficking and possession of marijuana. The accused was driving a vehicle for which a Tracking Device warrant had been issued. The accused was stopped, detained and arrested. The drugs were found when the vehicle was searched. The accused applied under s. 24(2) of the Charter to exclude the evidence, alleging that he was arbitrarily detained and arrested (s. 9) and subjected to an unreasonable search and seizure (s. 8).

The Alberta Court of Queen's Bench dismissed the application. The Tracking Device warrant was lawful. The accused's Charter rights were not infringed. Alternatively, had there been a violation of the accused's Charter rights, the court would not have excluded the evidence under s. 24(2).

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - [See Criminal Law - Topic 3033 ].

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See Criminal Law - Topic 3033 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Criminal Law - Topic 3033 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Criminal Law - Topic 3033 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Criminal Law - Topic 3033 ].

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - The police obtained a Tracking Device warrant to attach a GPS tracking device to a vehicle owned by the target of the warrant (Aw), a drug dealer known to the police - After two round-trips to a remote British Columbia location, believed to be to pick up cocaine, the vehicle was stopped by police - The accused was driving - The accused was detained for investigative purposes, handcuffed and then arrested for possession for the purpose of drug trafficking - A search of the vehicle found one kilogram of cocaine and less than 30 grams of marijuana hidden under the hood of the vehicle - The accused applied under s. 24(2) of the Charter to exclude the evidence, alleging that he was arbitrarily detained and arrested (s. 9) and subjected to an unreasonable search and seizure (s. 8) - The Crown argued that the accused had no standing to raise the Charter arguments where he had no expectation of privacy in the search of a vehicle owned by someone else, especially where there was no evidence of his prior use of the vehicle or any authority by Aw for him to be driving it - The Alberta Court of Queen's Bench held that the accused's ostensible control of the vehicle and lack of evidence that he had no authority to drive it, gave him a sufficient subjective expectation of privacy to support standing to challenge the search - See paragraphs 22 to 23.

Criminal Law - Topic 3033

Special powers - Tracking warrants - Validity of warrant - The police obtained a Tracking Device warrant to attach a GPS tracking device to a vehicle owned by the target of the warrant (Aw), a drug dealer known to the police - The warrant was obtained based on information from two confidential sources - The information was corroborated by surveillance, checking of the information provided by the source and a criminal records check of Aw - After two round-trips to a remote British Columbia location, believed to be to pick up cocaine, the vehicle was stopped by police - The accused was driving - The accused was detained for investigative purposes, handcuffed and then arrested for possession for the purpose of drug trafficking - A search of the vehicle found one kilogram of cocaine and less than 30 grams of marijuana hidden under the hood of the vehicle - The accused applied under s. 24(2) of the Charter to exclude the evidence, alleging that he was arbitrarily detained and arrested (s. 9) and subjected to an unreasonable search and seizure (s. 8) - The accused argued that the Tracking Warrant was unlawful having regard to the period for which it was issued and the failure to name the officers; that if the Tracking Warrant was lawful, the officers lacked reasonable and probable grounds to arrest him; and the vehicle search was not a lawful search incidental to arrest - The Alberta Court of Queen's Bench dismissed the application - There were reasonable grounds for suspicion to support the issuance of a Tracking Device warrant - Reasonable and probable grounds were not required - The warrant targeted the vehicle regardless of who was driving it - A minor inadvertent error in authorizing the tracking for 61 days, rather than the 60 days permitted, did not render the warrant unlawful - The stopping occurred well before the 60 day period expired - If necessary, the court would have severed the non-compliant expiry date from the warrant - The warrant did not require that the officer involved be expressly named - The police had reasonable and probable grounds to arrest the accused, who was previously unknown to them - Surveillance established that other persons used Aw's vehicles - The warrantless search of the vehicle was valid as a lawful search incidental to the arrest - The accused was not arbitrarily detained (Charter, s. 9) or subjected to an unreasonable search and seizure (s. 8) - Had the accused's Charter rights been infringed, the court would not have excluded the evidence under s. 24(2) - See paragraphs 24 to 69.

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Criminal Law - Topic 3033 ].

Cases Noticed:

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136, refd to. [para. 22].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81; 118 C.C.C.(3d) 405, refd to. [para. 23].

R. v. Chrisanthopoulos (J.) (2002), 217 Nfld. & P.E.I.R. 174; 651 A.P.R. 174 (Nfld. T.D.), refd to. [para. 32].

R. v. Newson (1985), 67 A.R. 311 (Q.B.), dist. [para. 35].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, dist. [para. 35].

R. v. Penfold (E.F.) (1999), 242 A.R. 298; 1999 ABQB 275, revd. (2000), 250 A.R. 262; 213 W.A.C. 262; 2000 ABCA 19, leave to appeal denied (2000), 261 N.R. 393; 277 A.R. 191; 242 W.A.C. 191 (S.C.C.), refd to. [para. 37].

R. v. Pitre (M.S.) (2011), 381 N.B.R.(2d) 203; 984 A.P.R. 203; 2011 NBCA 106, refd to. [para. 37].

R. v. Lucas (S.) et al., [2009] O.T.C. Uned. U43; 86 W.C.B.(2d) 69 (Sup. Ct.), refd to. [para. 39].

R. v. Kim (1999), 42 W.C.B.(2d) 312 (B.C.S.C.), refd to. [para. 39].

R. v. Benz and Haley (1986), 14 O.A.C. 297; 27 C.C.C.(3d) 454 (C.A.), refd to. [para. 39].

R. v. X.Y.Z. (2011), 506 A.R. 85; 2011 ABQB 95, refd to. [para. 43].

R. v. Edwardson (D.H.), [2005] B.C.T.C. 463; 65 W.C.B.(2d) 745; 2005 BCSC 463, refd to. [para. 43].

R. v. N.O. (2009), 448 A.R. 253; 447 W.A.C. 253; 2009 ABCA 75, refd to. [para. 43].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 53 C.C.C.(3d) 316, refd to. [para. 46].

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. 53].

R. v. Chubak (M.J.) (2009), 446 A.R. 283; 442 W.A.C. 283; 243 C.C.C.(3d) 202; 2009 ABCA 8, refd to. [para. 53].

R. v. Phung (J.) (2013), 542 A.R. 392; 566 W.A.C. 392; 2013 ABCA 63, refd to. [para. 54].

R. v. Atkins (2007), 85 O.R.(3d) 161 (C.A.), refd to. [para. 54].

R. v. Dufault (J.D.) (2009), 448 A.R. 365; 447 W.A.C. 365; 2009 ABCA 107, refd to. [para. 55].

R. v. Nolet (R.) et al., [2009] 4 W.W.R. 604; 320 Sask.R. 179; 444 W.A.C. 179; 2009 SKCA 8, affd. (2010), 403 N.R. 1; 2010 SCC 24, refd to. [para. 55].

R. v. Lim (No. 2) (1990), 1 C.R.R.(2d) 136 (Ont. H.C.), refd to. [para. 57].

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. 61].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 492.1 [para. 26].

Counsel:

Alexander Millman (Alexander Millman Law Office), for the accused;

Patrick Cashman (Public Prosecution Service of Canada), for the Crown.

This application was heard on December 3-5, 2012, before Hillier, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on March 1, 2013.