Supreme Court

R. v. Walper and Hansen, 2005 NWTSC 29
Date: 20050308
Docket: S-1-CR2004000062/63/76

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- vs. -


NORMAN HUGH WALPER and JEREMY RYAN HANSEN


Transcript of the Rulings on the Pre-Trial Motions before The Honourable Justice J.E. Richard, at Inuvik in the Northwest Territories, on March 3rd A.D., 2005.


APPEARANCES:

Ms. S. Tkatch:   Counsel for the Crown

Mr. T. Boyd:   Counsel for the Accused Norman Hugh Walper

Mr. J. McFarlane:  Counsel for the Accused Jeremy Ryan Hansen


THERE IS A TEMPORARY BAN ON PUBLICATION OF THE CONTENTS OF THESE RULINGS BY VIRTUE OF s. 645(5) C.C. AND s. 648 C.C.


THE COURT:   The Court will now make its rulings on the four discrete issues which counsel have raised in these pre-trial proceedings.

The two accused are charged in an Indictment filed July 30th, 2004 with offences contrary to the Controlled Drugs and Substances Act.

In Count number 1, both accused, Norman Walper and Jeremy Hansen, are charged with trafficking in cannabis marijuana on September 29th, 2003. In Count 2, Norman Walper alone is charged with possession of cannabis marijuana on October 1st, 2003 for the purpose of trafficking. The accuseds' election is by Judge and jury. These four applications are heard by me as trial Judge before the selection of a jury pursuant to Section 645(5) of the Criminal Code.

I will just mention that there is a statutory temporary ban on publication of these particular pre-trial proceedings pursuant to Section 643 of the Criminal Code.

The first application is made by the accused Hansen for the exclusion of certain evidence seized by the police at the warehouse of Northwest Transport here in Inuvik on September 29th, 2003. Hansen submits that the police infringed his Section 8 Charter right to be secure against unreasonable search or seizure and

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that as a result, evidence of the seized material ought to be excluded pursuant to Section 24(2) of the Charter.

In September 2003, the accused Hansen was an employee of Northwest Transport in Inuvik. His boss was the Inuvik manager of Northwest Transport, one Robin McConville. One of the aspects of the company's business operation was to move freight by truck from southern centres, for example Edmonton, to Inuvik. One of the employee benefits at Northwest Transport was that employees were able, with prior permission from Mr. McConville, to have personal goods shipped free by company truck from Edmonton to Inuvik. Two or three weeks prior to September 29th of '03, the accused Hansen approached Mr. McConville and advised that he had bought some tools from a cousin in Edmonton and asked if he could bring them up to Inuvik on a company truck, and Mr. McConville agreed.

On September 29th, 2003, Mr. McConville became aware that on one of the company trucks arriving in Inuvik from Edmonton that day was a piece of freight for himself, Robin McConville. He knew this because he read it on the manifest that the Edmonton office had provided to the Inuvik office via their computer system. The

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manifest indicated that Mr. McConville was the consignee of a piece of freight.

In the late morning of September 29th, Mr. McConville received a telephone call from the RCMP in Inuvik. Constable Carter asked if Jeremy Hansen worked for the company and Mr. McConville confirmed that he did. Constable Carter asked if there was a shipment inbound for Mr. McConville in Mr. McConville's name; Mr. McConville indicated that there was, in his name, and he wasn't sure what it was. Constable Carter indicated that Mr. McConville should open it when it came in and to call the police if he found anything irregular.

Shortly afterwards Mr. McConville spoke to the accused Hansen at the work site and asked if he, Hansen, had “any objections with me opening up the package that was coming to me to which he said he didn't”.

Mr. McConville then got the wooden crate in question off the truck, that is a piece of freight which was consigned to himself, Robin McConville, in the shipping documents, and took it to a place near his office and proceeded to unpack it. The top of the wooden crate was addressed to “Robin McConville, c/o Jeremy Hansen”. He took off the lid, inside was a red

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tool box, inside the red tool box were some old used tools and 14 plastic bags of what turned out to be cannabis marijuana. Mr. McConville immediately called the police and told them he had found something and that they should come and take a look. They arrived within five to ten minutes and he showed it to them. The police then seized the marijuana, the wooden crate, the tool box and the company shipping documents. The police did not obtain any warrant authorizing a seizure.

Mr. McConville was asked if he would have opened that box if Mr. Hansen had not been around the warehouse to speak to at that time and his ultimate answer was “I would have opened it because it was consigned to me”. On cross-examination he was asked “you would not have looked through the box but for the call from the RCMP?”, and he answered “probably not”.

Mr. McConville stated that the accused Hansen had not discussed anything with him about putting the shipment of tools in his, Mr. McConville's, name. He stated that normally employees, when bringing goods in free of charge, do so in their own name. Mr. McConville stated that he was very upset and hurt that Mr. Hansen had abused the trust Mr. McConville placed in him

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as an employee.

This is the factual foundation on which the accused Hansen seeks to have the evidence seized by the police at the warehouse excluded under Section 24(2) of the Charter.

Firstly, of course, the applicant Hansen must establish on a balance of probabilities that his Section 8 Charter right has been infringed.

Section 8 of the Charter is fundamentally concerned with the protection of citizens privacy. It has been said that the Charter protects people, not places. The purpose of Section 8 is to protect individuals from unjustified state intrusions upon their privacy. So the initial question here is did the applicant Hansen have a reasonable expectation of privacy with respect to the shipment, that is the wooden crate, that arrived on the truck? Whether he had a reasonable expectation of privacy must be determined on the basis of the totality of the circumstances.

Among the circumstances I note that there is no evidence on this application that the applicant Hansen ever had physical possession or control of the wooden crate. There is no evidence that he personally shipped the goods to Inuvik. There is no evidence that he knew how

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the goods were packaged or labelled. There is evidence that the shipment was consigned not to him but rather to Mr. McConville. There is evidence that the name on the box was Robin McConville c/o Jeremy Hansen not the other way around. There is no indication that he told the consignee or addressee not to look in the box. Indeed, there is evidence to the contrary.

If an individual citizen has the use of, possession of, control of, ownership or other interest in something that is sent through the mails or through a trucking company and is clearly marked or labelled as the property of that citizen or as being addressed or consigned to that citizen, then it can fairly be said that that citizen has a reasonable expectation of privacy, an expectation that there will be no intrusions on that citizen's privacy.

But here, how can it be said that Mr. Hansen had any expectation of privacy when this package was addressed not to himself but to the manager of the trucking company?

In these circumstances, I find that Mr. Hansen cannot assert any reasonable expectation of privacy. He cannot establish that his personal right to privacy has been violated because he did not have a personal right to

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privacy, that is, to the exclusion of others. He cannot be heard to complain about a breach of his privacy when he, or an associate of his, intentionally consigned the parcel not to him but to someone else.

The evidence on this application indicates that Constable Carter in the initial phone call to Mr. McConville stated to Mr. McConville that if the parcel was shipped to him and had his name on it, he should probably open it. Constable Carter knew Mr. McConville to be a law-abiding citizen not likely to be involved in the drug trade. I see nothing improper with this police statement to Mr. McConville. I agree with Mr. McConville when he stated that he thought that the police gave him “good advice”.

I also see nothing improper with Mr. McConville opening the parcel addressed to him and phoning the police when he discovered the marijuana. Mr. McConville had the legal right to open the parcel. In the circumstances here, I find that he was not acting as an agent of the state. His answer that he would likely not have opened the box but for the call from the police does not make him an agent of the police.

When Mr. McConville phoned the police immediately upon discovering the marijuana, I

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find that he was not doing so as an agent of the police but rather in the context as a citizen who had discovered illicit substances in a box with his name on it in business premises supervised and managed by him. We expect no more, no less from law-abiding citizens like Mr. McConville.

For these reasons, I find that the applicant Hansen has not established that he was subjected to an unlawful or unreasonable search, nor to any unlawful or unreasonable seizure. He has not established any infringement of any constitutional right under Section 8 and accordingly Section 24(2) cannot be invoked and his application is dismissed.

I turn now to the second application; that is, the application of the accused Hansen for an exclusion of evidence of the warned statement he gave to the police on the evening of September 29th, 2003 while in custody at the Inuvik detachment.

There are two aspects to this application. Firstly, Mr. Hansen alleges a breach of his Charter rights as a result of which the statement should be excluded under Section 24(2) of the Charter. Secondly, he argues that the Crown has not established beyond a reasonable doubt on this voir dire that the statement was made freely and

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voluntarily by him to the police.

In short, I find that there is no merit to either of these submissions.

With respect to the Charter of Rights argument, it is submitted specifically that Mr. Hansen's Section 10(a) and Section 10(b) rights were infringed; that is, Section 10(a), everyone has the right on arrest or detention to be informed promptly of the reasons therefor; and 10 (b), everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

Also in the Notice of Motion document leading to this application, it's asserted that there was the denial of his Section 7 Charter right to remain silent.

With respect, there is simply no evidence put forward on this application on which the Court can find that there was any breach of Mr. Hansen's right to remain silent or his Section 10(a) or Section 10(b) rights.

The viva voce testimony of Constable Carter and of Corporal Woodfine, the video recording, the audio recording all confirm that Mr. Hansen's constitutional rights were respected at the time of giving the statement to the police. There is no evidence to the contrary.

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It is argued that the Court on this voir dire does not have evidence from the police officer who actually effected the arrest on the afternoon of September 29th as to that officer advising him of the charge, of his right to counsel, right to remain silent, etcetera. The short answer to that is that it is for Mr. Hansen as applicant to establish that there was a Charter breach.

There is no evidence on which the Court can find that there was a Charter breach to support a Section 24(2) application for exclusion of Mr. Hansen's statement and accordingly that aspect of this application is dismissed.

On the voluntariness issue, again the evidence in this regard is quite straightforward.

Upon his arrest, Mr. Hansen was given the opportunity to contact a lawyer and the inference that I draw from the evidence is that he indeed spoke to a lawyer. He was placed in cells and later Constable Carter approached him in cells and asked if he wished to speak to the police and he agreed to do so. This evidence is not contradicted or challenged.

He was taken to the interview room and the one-hour interview with Corporal Woodfine and Constable Carter is videotaped and audiotaped and

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these recordings were played as part of the voir dire evidence. My observations and conclusions are that Mr. Hansen understood the nature of the charge he was facing, understood he didn't have to give a statement, understood he could stop at any time. My impression is that Mr. Hansen genuinely wanted to give the statement; genuinely and sincerely wanted, at that time, to acknowledge or accept responsibility for his involvement in the shipment to Northwest Transport. He was very cooperative with the two police officers, very responsive to their questions with the one exception of his reluctance to “rat out” someone else. There were no promises, threats, inducements or trickery in connection with the giving of this voluntary statement to the police. There are no circumstances which raise any reasonable doubt as to voluntariness.

On this voir dire, the Crown has established beyond a reasonable doubt that Mr. Hansen gave this statement to the police freely and voluntarily and I rule it admissible at the option of the Crown at Mr. Hansen's trial.

The third application is the application of the accused Walper for a ruling on the validity of the search warrant which was issued on October

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2nd, 2003 authorizing the search and seizure of a parcel which was in Mr. Walper's possession when he was arrested outside the post office on October 1st, 2003. It is argued that the issuance of this search warrant violated Mr. Walper's rights under Section 8 of the Charter to be secure against unreasonable search and seizure. Mr. Walper, then, seeks a review to ascertain whether the warrant could have issued on the basis of the sworn Information.

The standard of review which guides me was stated by the Supreme Court of Canada in the Garafoli case as follows:

“The reviewing Judge does not substitute his or her view for that of the authorizing Judge. If based on the record which was before the authorizing Judge, as amplified on the review, the reviewing Judge concludes that the authorizing Judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant but rather than being a prerequisite to review,

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their sole impact is to determine whether there continues to be any basis for the decision of the authorizing Judge”.

There was some evidence on the voir dire as to the factual circumstances leading to Constable Carter attending before the Justice of the Peace to obtain this search warrant.

Constable Carter was the lead investigator on the COSA investigation arising out of the discovery and seizure of the 14 bags of marijuana at the Northwest Transport warehouse on September 29th. He had arranged for Jeremy Hansen to be arrested on the evening of September 29th. Mr. Hansen gave a warned statement in Constable Carter's presence in which he acknowledged his own involvement in the September 29th shipment and in which he also inter alia implicated Norman Walper in the September 29th shipment of marijuana. Constable Carter had worked on the September 29th investigation for two days and he had formed the intention to arrest and charge Mr. Walper for the September 29th matter.

On October 1st, Constable Carter was off duty in civilian clothes and standing across the street from the post office and happened to notice Norman Walper pull up to the post office

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in his pickup truck and enter the post office. Constable Carter decided to arrest Mr. Walper then and there for the September 29th matter. He called the detachment and asked for the assistance of a uniformed member to effect the arrest. Constable Charles arrived and after Mr. Walper had exited the post office, Constable Charles, in the presence of Constable Carter, effected the arrest of Norman Walper.

When Mr. Walper had exited the post office, he was carrying a brown wrapped parcel which he placed in the open back of his pickup truck. When the two police officers took Mr. Walper to the detachment, Constable Carter also took possession of the parcel and he placed it in a secure place at the detachment.

That evening Constable Carter prepared an Information to Obtain Search Warrant pursuant to Section 11 of the CDSA. I will summarize the wording of Section 11 as follows:

“A Justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that a controlled substance is in a place may issue a warrant authorizing a peace officer to search the place

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for the controlled substance”.

Constable Carter carefully prepared a five-page Information and the draft search warrant which would authorize the police to search inside Mr. Walper's parcel for cannabis marijuana and to seize any cannabis marijuana which was found there.

Constable Carter attended before a J.P. just after midnight on October 2nd and swore the Information and on the basis of the Information, the J.P. issued the search warrant. Constable Carter then opened Mr. Walper's parcel and inside found 15 bags of cannabis marijuana. The fact that marijuana was indeed found in the parcel, of course, is not really relevant on the issue whether there were proper grounds for the search warrant to issue in the first place.

Having heard the evidence of Constable Carter on the voir dire, I find that Constable Carter drafted the Information carefully and attempted to be quite complete in his disclosures to the J.P. There are a lot of what might be termed “boilerplate” sections of the Information document and I do not say or mean that in any way pejoratively. Constable Carter gave the names of all of the officers involved in the investigation and the names and the particulars of the two

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accused individuals - Hansen and Walper. He gave a detailed description of the discovery and seizure of the marijuana in the Northwest Transport warehouse on September 29th. He gave information about the arrest of Jeremy Hansen on September 29th and of the warned statement of Hansen given to Constable Woodfine and Constable Carter including the fact that Norman Walper was implicated in the September 29th shipment of marijuana to the Northwest Transport warehouse, and also that Norman Walper had supplied Jeremy Hansen with marijuana in the past and that Norman Walper gets marijuana through the mail.

Constable Carter then in the sworn Information gave the details of the arrest of Norman Walper by the police on October 1st, including the fact that he was seen coming out of the post office carrying a brown parcel.

Finally in the sworn Information, Constable Carter indicated that earlier in the calendar year 2003, the police had received information from two reliable sources to the effect that Norman Walper is a known trafficker of marijuana in Inuvik.

In the concluding paragraph of the Information, and also on the front page, Constable Carter says that he has reasonable

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grounds to believe and does believe that there is cannabis marijuana in the brown parcel; yet, and this is the crux of the difficulty, he does not state what those reasonable grounds are.

Upon a careful consideration of the entire contents of the Information to Obtain, the most that could be said about the reliable information known to Constable Carter was,

(a) Norman Walper was known in Inuvik to be a trafficker in marijuana;

(b) Norman Walper had in the past brought marijuana into Inuvik through the postal system;

(c) Norman Walper had just picked up a parcel at the post office.

There was no information known to Constable Carter about this specific parcel that he wanted to search.

Again referring to Section 11 of the CDSA, the J.P., before issuing the draft search warrant, had to be satisfied that there were reasonable grounds to believe that there was cannabis marijuana in that brown parcel. There were no such reasonable grounds and I conclude that the J.P. could not have granted the judicial warrant of authorization.

To repeat, Constable Carter in the sworn Information said that he had reasonable grounds

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to believe there was marijuana in the brown parcel but didn't say what those grounds were. I conclude he did not have reasonable grounds for such a belief. Indeed, in his viva voce testimony on the voir dire he did not assert such a belief but, rather, stated, and these are his words, “I suspected there may be drugs in the box”. Suspicion does not constitute reasonable grounds.

The warrant could not have issued under Section 11 of the CDSA. This was an unreasonable search and seizure that constituted an infringement of Mr. Walper's Section 8 Charter rights. He had an expectation of privacy in his parcels and mail received at the post office safe from state intrusion unless authorized by law.

The law does not allow the state to look into each and every parcel in the possession of a citizen, even alleged drug dealers.

This, in my view, was a serious Charter violation and to allow the resulting evidence into evidence at Mr. Walper's trial would, in my view, bring the administration of justice into disrepute. Accordingly I grant Mr. Walper's application. The evidence of the October 2nd seizure is excluded.

Finally, I turn to the fourth application

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before the Court and that is the application of the accused Hansen for a stay of proceedings based on what he says is a Crown process that infringes or denies his Section 7, Section 11(c), and Count 11(d) Charter rights. The remedy that he seeks is a judicial stay of proceedings and alternatively a severance of the Indictment to allow him to have a separate trial on Count number 1 in the Indictment.

The Crown process that Mr. Hansen complains of on this application is essentially that the Crown initially proceeded against Mr. Hansen and Mr. Walper separately on the September 29th matter yet subsequently filed an Indictment charging them jointly with the September 29th matter.

The evidence before me is that Mr. Hansen was arrested on September 29th and on that date, an Information was sworn charging him with possession for the purpose of trafficking.

On October 1st, 2003, Mr. Walper was arrested and on October 2nd, 2003, an Information was sworn charging him with two counts of possession for the purpose of trafficking; one on September 29th, the other on October 1st.

These two Informations proceeded separately in Territorial Court. Mr. Walper had his

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preliminary on May 6th, 2004 and was committed for trial on both counts. Mr. Hansen was a Crown witness at Mr. Walper's preliminary.

Mr. Hansen had his own preliminary on May 28th, 2004 and was committed for trial.

On July 30th, 2004, the Crown filed an Indictment in this Court with two counts. In Count number 1, the Crown jointly charged Hansen and Walper with trafficking in marijuana on September 29th, 2003. And on Count 2, the Crown charges Walper solely with possession of marijuana on October 1st for the purposes of trafficking.

Mr. Hansen says the manner in which the Crown has proceeded infringes his Section 7, Section 11(c) and Section 11(d) Charter rights but does not articulate how.

Section 7 states that Mr. Hansen, and everyone else, has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 11(c) states that Mr. Hansen, being a person charged with an offence, has the right not to be compelled to be a witness in proceedings against himself in respect of that offence.

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Section 11(d) states that Mr. Hansen, being a person charged with an offence, has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

With respect to 11(c), Mr. Hansen expresses concern that he was compelled to be a witness at Mr. Walper's preliminary inquiry on the very subject matter of Count number 1 in the Indictment and that that testimony may be used against him if he should testify here at his trial and be subject to cross-examination by Crown counsel and/or Mr. Walper's defence counsel.

I do not accept that that is a legitimate or valid concern because of the existence of Section 13 of the Charter and the jurisprudence that has developed on Section 13.

Section 13 reads,

“A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings except in a prosecution for perjury or for the giving of contradictory evidence”.

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That section prohibits either Crown counsel or Mr. Walper's defence counsel from using Mr. Hansen's testimony at the Walper preliminary in any way to incriminate Mr. Hansen at this trial through cross-examination or otherwise.

Mr. Hansen argues further that even if Crown counsel or Mr. Walper's defence counsel are not allowed to directly use Mr. Hansen's previous testimony in cross-examining him, each of those counsel still has the benefit of the fact and contents of his previous testimony in their respective preparation of their cross-examination of Mr. Hansen at this trial.

I fail to see without any explicit articulation how that can benefit either the Crown or the co-accused or be unfair to Mr. Hansen.

Mr. Hansen cites the Zurlo case from the Quebec Court of Appeal in support of his position on this application. In that case, Zurlo and his co-accused had had separate preliminaries and each had been compelled to testify at the other's preliminary. Crown filed a joint Indictment and a joint trial was held. Zurlo's co-accused testified at the trial. Because of Section 13 of the Charter, the trial Judge would not allow Zurlo's counsel to cross-examine the co-accused

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on her earlier testimony. Mr. Zurlo was convicted and he appealed. The Appeal Court held that Zurlo's Section 11(d) right to a fair trial had been infringed.

Even assuming that the Zurlo decision is correctly decided, I cannot see that the Zurlo decision is of assistance to Mr. Hansen in this case because he is not in the same position as Mr. Zurlo. If Mr. Hansen's co-accused testifies at this trial, Mr. Hansen's counsel will have the usual full opportunity to cross-examine Mr. Walper.

In citing Section 7 of the Charter, Mr. Hansen does not specify which particular principle of fundamental justice he is being deprived of. Although the procedural background leading to this trial might be considered unusual, I see no abuse of the Court's process by the Crown. I am not convinced that there has been any oppressive or vexatious proceedings or that there will be any oppressive or vexatious circumstances should the trial continue as framed in the Indictment. I have not been satisfied that there has been or will be any violation of the principles of fundamental justice which underlie the judicial system's sense of fair play.

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There are no infringements of Charter rights as alleged on this application and thus no justification for a stay of proceedings as sought by Mr. Hansen.

The request for an alternate remedy of separate trials is based on the same grounds and so similarly must fail.

When it is alleged that two accused acted in concert in the commission of an offence, the presumption is that they ought to be tried together in the same trial, one of the reasons being to avoid the risk of inconsistent rulings and/or inconsistent verdicts. For these reasons, Mr. Hansen's application for a stay of proceedings, or alternatively for a separate trial, fails.

Now, counsel, those are the Court's rulings on the four discrete issues raised by counsel. And we will now adjourn this matter until later this morning or later today when I would like to address with counsel the scheduling of the next steps in this trial process. So we will take a one-hour adjournment for now.

(ADJOURNMENT)

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Certified to be a true and accurate transcript pursuant to Rules 723 and 724 of the Supreme Court Rules,

Lois Hewitt,
Court Reporter

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