Decision Content
R v Paradis, 2019 NWTSC 14 S-1-CR-2018-000139
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
CASSIUIS ZANE PARADIS
_________________________________________________________ Transcript of the Reasons for Decision delivered by The Honourable Justice S.H. Smallwood sitting in Yellowknife, in the Northwest Territories, on the 28th day of February, 2019.
_________________________________________________________
APPEARANCES:
Mr. M. Fane: Counsel for the Crown
Mr. B. Lotery: (By telephone)
Counsel for the Accused
(Charges under
s. 354(1), 91(2), 92, 92(2), 94(2) 88(2),
117.01(3) of the Criminal Code and s. 5(2) of the
Controlled Drugs and Substances Act)
1 THE COURT: The accused, Cassiuis Paradis,
2 is facing 12 charges: possession of cocaine for
3 the purpose of trafficking, contrary to Section
4 5(2) of the Controlled Drugs and Substances Act;
5 possession of money obtained by crime, contrary
6 to Section 354(1)(a) of the Criminal Code; and
7 ten charges pursuant to the Criminal Code related
8 to the possession of firearms, weapons, or
9 ammunition.
10 The accused has brought an application for
11 the exclusion of evidence: cocaine, money,
12 weapons, and ammunition seized following a
13 vehicle stop, which occurred in Fort Providence,
14 Northwest Territories. The accused alleges that,
15 in stopping the vehicle, detaining and arresting
16 him, and searching the vehicle, the police
17 breached his rights under Sections 8, 9, 10(a)
18 and (b) of the Canadian Charter of Rights and
19 Freedoms and that the evidence should be excluded
20 under Section 24(2) of the Charter.
21 The Crown concedes that the accused's
22 Section 10(a) and (b) Charter Rights were
23 breached but contends that the accused was
24 lawfully detained and arrested and that the items
25 were located in a search that was incidental to a
26 valid arrest. The Crown argues that the evidence
27 should not be excluded under Section 24(2) of the
1 Charter.
2 THE VOIR DIRE EVIDENCE
3 The evidence on the voir dire consisted of
4 the testimony of Constable Steve Beck and
5 Constable Lee Bennett. There was also an Agreed
6 Statement of Facts and photographs entered as
7 exhibits.
8 On October 20th, 2018, Constable Beck pulled
9 over a blue Volkswagen car in Fort Providence.
10 There were two men in the vehicle: the accused
11 was the driver of the vehicle, and the man in the
12 passenger seat was Echo Delver.
13 Constable Beck detained the accused before
14 arresting him for trafficking in cocaine.
15 The vehicle was subsequently searched
16 incident to arrest. A rental record was found in
17 the vehicle in the name of Cassiuis Paradis with
18 a rental term of October 2nd to 16, 2018, from
19 Hertz Rent-A-Car in Edmonton, Alberta.
20 Inside the glove box, $579 in cash was
21 located, along with six individually wrapped
22 packages of cocaine totalling a weight of
23 1.3 grams.
24 Inside a suitcase in the back seat was a
25 hunting knife, a fully loaded AR-15 type
26 semi-automatic rifle with a 40-round magazine
27 without a trigger lock, a cartridge magazine for
1 the rifle, and additional cartridges and spare
2 parts for the rifle. Analysis of the rifle
3 determined that it was non-functional as there
4 was an extra spring in the gas system. Once the
5 spring was removed, the rifle was capable of
6 discharging ammunition.
7 Inside the trunk of the vehicle was a locked
8 safe which contained $850, two Ziploc bags
9 containing 140 small packages of cocaine weighing
10 approximately 33.67 grams of cocaine; a blue
11 Ziploc bag containing 93 small packages of
12 cocaine weighing approximately 22.19 grams of
13 cocaine, a green Ziploc bag containing 93 small
14 packages of cocaine weighing approximately 18.28
15 grams of cocaine and a 28-gram single piece of
16 cocaine, as well as $3,379.50 in cash.
17 The issues in this case surround the
18 validity of the detention of the accused by the
19 police and what occurred following the detention.
20 Constable Steve Beck testified that he is a
21 member of the RCMP working in traffic services
22 out of Hay River. He began in traffic services
23 in September 2018; and, prior to that, he worked
24 from April 2011 as a special constable in the
25 Aboriginal Community Constable Program in
26 Hay River.
27 Constable Beck has experience investigating
1 matters involving the Controlled Drugs and
2 Substances Act. He did not say how many CDSA
3 investigations he has been involved with, but he
4 did testify that he is from the community of Hay
5 River and has lived there for most of his life.
6 He is familiar with the people, the culture, and
7 there is a level of trust placed in him by
8 community members. As a result, he worked with
9 human sources and confidential informants in drug
10 investigations while he was working in Hay River.
11 Constable Beck also testified that he was
12 familiar with Fort Providence having travelled
13 there regularly over the years through his
14 employment and having employed people from the
15 community. He testified that prior to the
16 vehicle stop, he had been there approximately
17 three times in the preceding weeks.
18 On October 20th, 2018, he had left Hay River
19 to attend Fort Providence, which is approximately
20 an hour-and-a-half drive away, to assist with a
21 day-long check stop organized by the
22 Fort Providence detachment and which involved
23 multiple agencies. Constable Beck was in full
24 uniform and was driving a black, unmarked Ford
25 Expedition.
26 Constable Beck and his supervisor,
27 Constable Bennett were travelling together but in
1 separate vehicles towards the check stop location
2 when a call for service came in for the Fort
3 Providence detachment.
4 The call came in through OCC, the
5 Operational Command Centre, out of Yellowknife.
6 Constable Beck listened to the call come in over
7 the radio a couple of times without a response.
8 Other members from Fort Providence were busy, and
9 Constable Pardy, another member from Fort
10 Providence, was at the check stop; so
11 Constable Beck responded and asked what the
12 nature of the call was.
13 Constable Beck testified that he was told
14 that there was a report that three males were
15 travelling around Fort Providence in a blue car
16 trafficking cocaine. Constable Beck inquired
17 what the time delay on the complaint was and was
18 advised that the call had just come in.
19 There was some discussion between
20 Constable Pardy and Constable Beck over the radio
21 about the call. Constable Pardy told
22 Constable Beck that he had received several
23 reports of a blue car, a Volkswagen with Alberta
24 plates, driving around with some Southern males
25 and dealing cocaine.
26 Constable Pardy was able to locate the car
27 several times, but was unable to identify any
1 occupants in it or to get a plate number because
2 the vehicle had always been backed into trees or
3 into a house.
4 It was decided that Constable Bennett and
5 Constable Beck would respond to the complaint.
6 Constable Beck and Constable Bennett turned
7 around and returned to Fort Providence and began
8 patrolling through the community. Fort
9 Providence has five or six streets that run
10 parallel to each other and then other streets
11 that cut across them. They drove through the
12 community and down the streets several times.
13 The officers then met up by the Youth Centre and
14 at that point had been unable to locate the
15 vehicle. Constable Beck decided to drive the
16 back road, which he had not yet checked.
17 As he was driving, he noticed a blue car
18 backed into a duplex or a quadplex.
19 Constable Beck stopped the vehicle and put it in
20 reverse. He observed two males. There was a
21 larger male, who he later identified as the
22 accused, with a black suitcase over his shoulder,
23 standing in the open driver's door area of the
24 blue car. There was a smaller, Aboriginal male
25 standing in the open passenger side door area of
26 the vehicle. Both males looked at his vehicle.
27 The accused said something to the other man, and
1 both of them slammed the vehicle door shut and
2 ran back into the house with the accused carrying
3 the suitcase. Constable Beck thought this
4 behaviour was strange.
5 Constable Beck radioed Constable Bennett and
6 informed him that he believed that he had located
7 a vehicle matching the description and that he
8 had observed two males running into the house.
9 The officers decided that, since
10 Fort Providence had only one exit to the highway,
11 which went past the RCMP detachment, they would
12 head back to the detachment and wait to conduct a
13 vehicle stop. Constable Beck intended to do a
14 traffic stop to further the investigation of the
15 trafficking complaint. Constable Beck and
16 Bennett waited in the parking lot at the RCMP
17 detachment.
18 Constable Beck observed a blue car
19 approaching and advised Constable Bennett
20 "there's the car." They got into their vehicles.
21 Constable Beck observed that the vehicle was a
22 blue Volkswagen. The vehicle was travelling
23 approximately 35 kilometres per hour and as the
24 vehicle came closer to where the police vehicles
25 were, the vehicle nose dipped and the vehicle
26 decelerated quickly before continuing on at a
27 slow speed, about 15 kilometres per hour.
1 As the vehicle passed, Constable Beck
2 observed two people in the car, the accused, as
3 the driver, and a smaller, Aboriginal male in the
4 passenger seat.
5 Constable Beck believed this was the vehicle
6 he had seen and believed it was the one, "that
7 was possibly involved in the complaint" so he
8 pulled in behind the vehicle and observed that it
9 had an Alberta licence plate. He turned on his
10 emergency equipment. Constable Beck could see
11 that the two occupants in the vehicle began to
12 fidget around, moving back and forth. The
13 vehicle continued up the road for almost 150
14 metres before pulling over.
15 Constable Beck advised OCC of the stop and
16 ran the license plate number. He was advised
17 that it was a Hertz car. He approached the
18 driver's side of the vehicle, and
19 Constable Bennett approached on the passenger
20 side.
21 Constable Beck observed that the car was in
22 disarray and that there was a black suitcase in
23 the back seat in the centre on top of a pile of
24 various things that appeared to have been thrown
25 in there. In the back seat, there were blankets
26 and various grocery items.
27 Constable Beck spoke with the accused and
1 described him as visibly shaking. He asked the
2 accused to produce his documents. The accused
3 produced an Alberta driver's license. While
4 trying to remove the driver's license, the
5 accused was shaking so badly that he fumbled his
6 small wallet trying to get the item out.
7 Constable Beck also asked for the rental
8 agreement. The passenger, Echo Delver, reached
9 down and opened the glove box and the door fell
10 open. The accused reached over and slammed the
11 glove box back shut and then stared at the
12 passenger. The accused then opened the glove box
13 a small amount and took out a pouch the size of
14 an owner's manual through a small slot in the top
15 of the glove box while holding the glove box
16 partially shut with one hand and reaching in and
17 manoeuvring the pouch through the slot with his
18 other hand. Once he got the item out, he closed
19 the glove box.
20 The accused had pulled out the rental
21 agreement and attempted to pass it to
22 Constable Beck several times. Constable Beck
23 testified that the accused was shaking so bad
24 that he crumpled up the document and was having a
25 hard time passing it to the officer. It appeared
26 to Constable Beck that the accused would lose
27 focus and set it back on the centre console of
1 the car and they would continue talking.
2 At some point in the conversation, the
3 accused asked the officer what it was all about.
4 Constable Beck told the accused that he had a
5 complaint of a blue car with Alberta plates and a
6 couple of males from down South dealing cocaine.
7 He asked the accused what he thought of that.
8 Constable Beck thought this exchange occurred
9 just after the incident with the glove box.
10 Constable Beck also observed that the
11 accused kept reaching into the front pouch of the
12 pocket of his hoodie, and the officer asked him
13 several times not to reach in there because he
14 did not know what was in the pocket.
15 While Constable Beck was speaking with the
16 accused, he noticed that there was a phone on the
17 passenger side floor that continued to light up
18 as if it was getting calls or text messages.
19 Instead of picking it up and answering it or
20 responding, the passenger had his foot on the
21 phone and was trying to push it up to the front
22 of the car. It appeared to Constable Beck that
23 he was using his feet and sliding the phone up
24 into where the centre console was, almost as
25 though he was trying to hide the phone.
26 The rental agreement was never passed to
27 Constable Beck. He would remind the accused, and
1 the accused would grab it but then set it back
2 down again. It appeared to Constable Beck that
3 the accused was not able to stay focused.
4 Constable Beck asked the accused to step out of
5 the vehicle and he did so immediately. Constable
6 Beck escorted the accused back to the passenger
7 side of the police vehicle. Once there, the
8 accused again tried to reach into the front pouch
9 of his hoodie and Constable Beck asked him again
10 not to do that. The accused asked the officer if
11 he was under arrest. Constable Beck responded
12 that at that point, he was being detained for a
13 drug-trafficking investigation. Constable Beck
14 handcuffed the accused and then reached into the
15 front pouch of the accused's hoodie and pulled
16 out what turned out to be a toque. Constable
17 Beck testified that he searched the accused for
18 officer safety reasons primarily but also to see
19 if he had anything pertaining to the drug
20 investigation. Constable Beck was concerned
21 because the accused kept reaching into the pocket
22 of the hoodie. This occurred at approximately
23 1:39 p.m.
24 The accused was then provided with his
25 Charter Rights and the police warning verbatim
26 from a card and placed in the back of
27 Constable Beck's vehicle. The accused indicated
1 that he understood and that he wished to speak to
2 counsel. He provided the name of a lawyer from
3 Edmonton by the name of Ben.
4 Once the accused was secured and Chartered,
5 Constable Beck told Constable Bennett to detain
6 the passenger for cocaine trafficking as well.
7 Constable Beck testified that his grounds
8 for detaining the accused were -- and I am going
9 to read the evidence of Constable Beck, which,
10 although lengthy, I think encapsulates his
11 evidence on this point:
12
Q Without referring to anything that
13 Mr. Paradis might have told you, what were your grounds for
14 detention?
15 A Well, multiple things. First of all, starting with the complaint
16 itself. Despite the fact it wasn't exact, it was -- there was
17 a lot of details and similarities that drew me to this vehicle.
18 Then the vehicle being -- or, sorry -- Constable Pardy's
19 information stating that, in fact, he had seen a blue Volkswagen
20 around Fort Providence, the hamlet, with some males in it. He
21 was unable to identify them. Specifically said that the vehicle
22 had been backed into homes and trees so that he couldn't see the
23 plate. That, in my experience, is consistent with trying to cover an
24 identification of a vehicle; and, being that you're in Fort
25 Providence, the majority of the plates would be Northwest
26 Territories, and an Alberta plate would stand out.
27 So that was strange.
1 And then, once I did make contact, just observation contact with
2 Mr. Paradis, he had a suitcase that he appeared to be loading
3 into a car. They appeared to be getting into the car. As soon as
4 I backed up the police vehicle, he said something that -- I don't
5 know what he said, but there was almost a moment where they slam
6 the doors on a car, which is -- may or may not mean anything, but
7 they took the very same suitcase and ran back into the residence.
8
And then within minutes, we're
9 sitting at the -- the Fort Providence detachment, and the
10 vehicle is approaching, and as soon as what I believe to be the
11 vehicle became visible to -- or the police vehicle became visible
12 to Mr. Paradis, the speed slams to, you know, approximately 15.
13
He drives by. I pull in behind
14 him. There is a bunch of the fidgeting that's going on. He
15 doesn't stop his vehicle for a period. I get in behind him.
16 It's a rental vehicle from Alberta. It's a Volkswagen, which
17 is (a) It's a car; and (b) It's not a common make of vehicle.
18
And then the nervousness, once I
19 approached -- or the vehicle itself being in complete disarray,
20 just -- and that's -- you know, some people they maybe -- they're
21 just not organized. That on its own didn't mean anything, but it
22 just, combined with other things, seemed strange.
23
The types of items I could see,
24 the car almost appeared lived in, if I could put it that way.
25 Blankets, toilet paper, instant foods that can be eaten at any
26 time. Like, instant noodles, you can stop and grab a cup of hot
27 water anywhere, and you can have noodles on the road. Energy
1 drinks -- the car just appeared lived in.
2
Q And why is that lived-in nature
3 and the instant nature of the food, why is that indicative of
4 grounds for detention for trafficking, in your opinion?
5
A Yeah, fair enough. So on that --
6 that on its own doesn't mean anything. It could mean that
7 people are trying to save money when they're on a road trip, you
8 know, and that may be it.
9 But what I've learned, in my experience, is that people who are
10 engaged in that type of behaviour don't necessarily want to leave
11 their vehicle because they have items in there that they're, (a)
12 keeping an eye on or (b) protecting. So the -- they're
13 worth a lot of money, and they don't want, you know, to lose the
14 car, somebody to break in there or whatever it is.
15
Also, they don't want it to draw
16 attention to them, so they're able to just continue down the road
17 with stop shorts for -- stop or shortstops for fuel and continue
18 on.
19
20 Following this, Constable Beck spoke with
21 Constable Bennett and Corporal Forman, who had
22 walked across the street from the Fort Providence
23 detachment. They spoke, and Constable Beck asked
24 Constable Bennett what Mr. Delver had told him.
25 Constable Bennett told Constable Beck that
26 Mr. Delver had said that he was visiting an aunt
27 and had been there for several days.
1 Constable Beck had been told by the accused
2 that he had come from Edmonton to pick up his
3 nephew, but he could not say who the nephew was.
4 While in the vehicle, the accused asked Mr.
5 Delver his last name. Constable Beck
6 subsequently realized that the accused was
7 talking about the passenger in the vehicle being
8 his nephew.
9 In Constable Beck's opinion, none of this
10 was adding up. At that point, he decided that he
11 had no reason to believe the accused any further
12 and formed his grounds for arrest and arrested
13 him for trafficking cocaine.
14 Constable Beck arrested the accused at
15 1:51 p.m. and gave him his Charter rights and
16 warnings verbatim from a card again. The accused
17 indicated he understood and again that he wished
18 to speak to a lawyer, Ben, from Edmonton.
19 The accused was then transported back to the
20 detachment along with Mr. Delver. Constable Beck
21 stayed with the vehicle. Constable Rondeau
22 arrived and photographed the overall scene and
23 the car. They then searched the vehicle.
24 Constable Bennett also testified. As he was
25 driving to the check stop, a call for service
26 came in over the radio. It was from a citizen in
27 Fort Providence who said that there was a
1 vehicle, a blue Volkswagen, driving around Fort
2 Providence, and the occupants were selling
3 cocaine.
4 Constable Bennett heard the call over the
5 radio, and he heard Constable Beck, who was in a
6 different vehicle, answer the radio and ask for
7 details. Constable Bennett testified that the
8 call came in at 12:37 p.m., and the details that
9 were provided were of a blue Volkswagen driving
10 around town in Fort Providence selling cocaine.
11 Constable Beck responded that they would take the
12 complaint.
13 They turned their vehicles around and headed
14 back towards Fort Providence. As they were
15 heading back, Constable Pardy came on the radio
16 and said that there had been other complaints
17 throughout the week of a similar vehicle, a
18 Volkswagen car, that it was apparently driving
19 around Fort Providence and selling drugs out of
20 the vehicle. Constable Pardy said that he hadn't
21 been able to locate the vehicle moving, it had
22 always been parked and backed into a residence in
23 the community so he was unable to get a licence
24 plate. In Constable Pardy's view, given the
25 number of complaints, he felt there was probably
26 some legitimacy to the complaints.
27 Constable Beck and Constable Bennett
1 patrolled through Fort Providence. On their
2 first loop around the town, they were unable to
3 locate the vehicle. Constable Beck and Bennett
4 met at the parking lot of the Band Office to talk
5 and discuss what they had seen.
6 They continued to patrol and Constable Beck
7 came on the radio and said that he had located a
8 blue Volkswagen backed into a residence on the
9 back road. He advised Constable Bennett that he
10 had seen two males coming out of the house, one
11 carrying a suitcase and when they had seen the
12 police vehicle, they stopped and turned around
13 and went back into the house. The vehicle had
14 been backed in, so no licence plate was obtained.
15 Constable Bennett testified they continued
16 to patrol, but the vehicle didn't move; so they
17 went back to the parking lot of the
18 Fort Providence RCMP detachment. They discussed
19 what they were going to do. The road was the
20 only way out of town so if the male was going to
21 leave, he would have to drive past the detachment
22 where they were in order to leave town.
23 At approximately 1:35 p.m., they saw the
24 vehicle approaching. It was a blue Volkswagen
25 and was coming up the road towards the detachment
26 heading out of town. The vehicle was not going
27 at a high speed, but Constable Bennett noted that
1 as it went past where he and Constable Beck were
2 located, it looked like the nose dipped a little
3 indicating that the driver might have hit the
4 brakes. The officers got in their vehicles and
5 when the car went past, Constable Beck pulled out
6 behind the vehicle and conducted a vehicle stop.
7 Constable Bennett estimated that the vehicle
8 travelled maybe a couple hundred metres before
9 stopping. Constable Bennett pulled in behind
10 Constable Beck's vehicle. The vehicle was pulled
11 over at approximately 1:35 p.m.
12 Constable Beck approached the driver's side
13 window and Constable Bennett approached the
14 passenger side. As Constable Bennett approached
15 the passenger side, there was a young male
16 sitting there looking straight ahead, not making
17 eye contact.
18 Constable Bennett could not hear what the
19 driver was saying, but he could hear Constable
20 Beck asking for information. It seemed to
21 Constable Bennett as though Constable Beck was
22 having trouble getting information from the
23 driver.
24 Constable Bennett observed that
25 Constable Beck had asked the driver for vehicle
26 documents. He saw the passenger reach for the
27 glove box and open it all the way. The driver
1 quickly slammed it shut and then opened it a
2 small amount and tried to take out a thick
3 booklet out of a small opening without opening
4 the glove box all the way. It appeared to
5 Constable Bennett that there was something in
6 there that the driver did not want the officers
7 to see.
8 After that, Constable Beck continued to talk
9 to the driver and later got him to exit the
10 vehicle. Constable Bennett chatted with the
11 passenger to get some further information about
12 why they were in town, how long they had been
13 there, where they were going, et cetera. The
14 passenger said that they had just got to town to
15 visit family. When asked where they were going,
16 he said, back to Edmonton, which Constable
17 Bennett found strange as Edmonton is
18 approximately 15 hours away and it was a long
19 trip to make for a quick visit to family.
20 Constable Bennett thought that the passenger
21 appeared nervous. He was shaking and did not
22 really want to answer the officer's questions.
23 Constable Bennett testified:
24
"At that point, I believed there was
25 grounds to detain him for an investigation given the -- the manner
26 which they were acting, the oddness of how long they were in town, the
27 fact that the driver couldn't really give Constable Beck clear answers,
1 where I could tell -- I felt there was grounds to detain for
2 investigation. That, plus the information we received of the
3 trafficking, the -- the drugs out of the vehicle, given what
4 Constable Pardy had told us over the -- the radio; so, at that point,
5 I detained the passenger."
6 Constable Bennett testified that he detained the
7 passenger at approximately 1:42 p.m. He provided
8 the passenger with his Charter caution and police
9 warning, and then subsequently arrested the
10 passenger when Constable Beck was arresting the
11 driver.
12 ANALYSIS
13 The accused claims the police breached his
14 rights under Section, 8, 9, 10(a) and (b) of the
15 Canadian Charter of Rights and Freedoms and that
16 the evidence should be excluded under
17 Section 24(2) of the Charter.
18 The Crown concedes that the police breached
19 the accused's Section 10(a) and (b) Charter
20 Rights, but argues that there were no breaches of
21 the accused's Section 9 or Section 8 Charter
22 Rights with respect to the search of the vehicle.
23 The Crown concedes that the search of the
24 accused's hoodie pocket following his exit from
25 the vehicle was not a valid search. The Crown
26 also argues that the evidence should not be
27 excluded under Section 24(2).
1 The Detention of the Accused
2 Section 9 of the Canadian Charter of Rights
3 and Freedoms states that everyone has the right
4 not to be arbitrarily detained or imprisoned.
5 The first question is whether the accused
6 was detained. I do not think that there is any
7 dispute about this part. The accused was the
8 driver of a vehicle pulled over by Constable
9 Beck. While both Constable Beck and Constable
10 Bennett, in their evidence, referred to detaining
11 the accused and the passenger for investigation
12 following the vehicle stop and following their
13 initial interactions with them, each officer
14 acknowledged, in cross-examination, that the
15 accused and passenger were detained, they were
16 not free to leave when the vehicle was stopped.
17 When Constable Beck activated the emergency
18 equipment and the accused pulled the vehicle
19 over, the accused submitted or acquiesced to the
20 assertion of police control, and the accused was
21 detained pursuant to Section 9 of the Charter.
22 See R v Grant, 2009 SCC 32; R v Mellenthin,[1991]
23 3 S.C.R. 615; R v Arabi, 2007 ABQB 303.
24 The next question is whether the detention
25 was arbitrary under Section 9. Whether the
26 detention was arbitrary depends on the authority
27 of the police to stop the vehicle. A detention
1 that is not authorized by law is arbitrary and
2 violates Section 9. The law itself must also not
3 be arbitrary and be constitutionally valid.
4 Grant, supra at paragraph 54.
5 Constable Beck testified that he pulled over
6 the accused's vehicle to further his
7 investigation into the trafficking complaint. He
8 also agreed in cross-examination that he did not
9 have any traffic concerns and there was no
10 concern that the accused's vehicle was not
11 complying with the rules of the road.
12 Constable Beck agreed that it was not a traffic
13 stop and was clearly a drug investigation.
14 Police officers have the authority to stop
15 motor vehicles to determine if the person
16 operating the vehicle and the vehicle and its
17 equipment comply with the Motor Vehicle Act and
18 its regulations. Section 285, Motor Vehicle Act,
19 R.S.N.W.T. 1988, c. M-16.
20 The police cannot, however, randomly stop
21 vehicles for the purpose of enforcing criminal
22 laws unrelated to driving unless there are
23 reasonable grounds to suspect that an offence has
24 occurred. See R v Gonzales, 2017 ONCA 53; R v
25 Harrison, [2009] 2 S.C.R. 494; R v Simpson
26 (1993), 79 C.C.C. (3rd) 482 (Ont. C.A.).
27 The authority of the police to detain the
1 accused for investigative purposes derives from
2 the police duties at common-law to preserve the
3 peace, prevent crime, and protect life and
4 property. As stated in R v Mann, [2004] 3 S.C.R.
5 59 at paragraph 45:
6 Police officers may detain an individual for investigative purposes
7 if there are reasonable grounds to suspect in all the circumstances that
8 the individual is connected to a particular crime and that such a
9 detention is necessary.
10 In considering whether the detention is
11 necessary, the Supreme Court of Canada stated in
12 Mann at paragraph 34:
13 The detention must be viewed as reasonably necessary on an objective
14 view of the totality of the circumstances, informing the
15 officer’s suspicion that there is a clear nexus between the individual to
16 be detained and a recent or on-going criminal offence. Reasonable grounds
17 figures at the front-end of such an assessment, underlying the officer’s
18 reasonable suspicion that the particular individual is implicated
19 in the criminal activity under investigation.
20
21 In discussing what is meant by reasonable
22 grounds, the Court in Mann endorsed the
23 definition of articulable cause defined in R v
24 Simpson, (cited at paragraph 27 of Mann) as
25 being:
26 ... A constellation of objectively discernible facts which give the
27 detaining officer reasonable cause to suspect that the detainee is
1 criminally implicated in the activity under investigation.
2
3 The threshold is lower than the threshold for an
4 arrest, which is reasonable and probable grounds,
5 and it is something more than an officer's hunch
6 based on intuition gained by experience. The
7 standard includes both objective and subjective
8 components. Mann, supra at paragraphs 27 to 30.
9 In the R v Kang Brown, 2008 SCC 18 the
10 Supreme Court of Canada elaborated on the meaning
11 of reasonable suspicion at paragraph 75:
12 Suspicion is an expectation that the targeted individual is possibly
13 engaged in some criminal activity. A reasonable suspicion means something
14 more than a mere suspicion and something less than a belief based
15 upon reasonable and probable grounds.
16
17 In considering the criminal activity under
18 investigation, Mann refers to reasonable grounds
19 to suspect that the individual is connected to a
20 particular crime but it is also been held that it
21 is not necessary that the police officer be able
22 to pinpoint the crime with absolute precision.
23 R v Nesbeth, 2008 ONCA 579 at paragraph 18.
24 The Crown's position is that while Constable
25 Beck subjectively did not believe he had grounds
26 to detain the accused for investigative purposes
27 until after the accused had exited the vehicle,
1 several minutes after the traffic stop had begun,
2 there were, on an objective basis, grounds to
3 detain the accused for investigative purposes
4 when the vehicle stop was conducted. The Crown's
5 position is that, when viewed objectively, there
6 was reasonable suspicion that an offence had been
7 committed when considering all of the factors.
8 The Defence position is that this was
9 clearly a drug investigation, where the officer
10 lacked reasonable grounds to stop the vehicle and
11 used the traffic stop to get around not having
12 the requisite grounds to conduct the drug
13 investigation. The Defence argued that the
14 police received a tip and they did not know where
15 it came from or the basis of it and did no
16 investigation to attempt to confirm or
17 corroborate the tip before stopping the vehicle
18 to investigate the accused and see whether there
19 was any merit to the complaint.
20 The totality of the circumstances must be
21 examined to determine whether, on an objective
22 basis, there were reasonable grounds to suspect
23 that the accused was connected to a particular
24 crime. The evaluation of the circumstances is
25 necessarily fact specific.
26 For example, in Mann, the Court concluded
27 that the police officers had reasonable grounds
1 to detain. The police officers were responding
2 to a call of a break and enter in progress. As
3 they approached the scene, they observed the
4 accused. The accused closely matched the
5 description of the suspect given by the radio
6 dispatch and was only two or three blocks from
7 the scene of the reported crime. As stated in
8 Mann at paragraph 47:
9 "These factors led the officers to reasonably suspect that the appellant
10 was involved in recent criminal activity, and at the very least ought
11 to be investigated further."
12 In Arabi, supra the Court concluded that the
13 police officers did not have reasonable grounds
14 and were operating on a hunch only. In that
15 case, the police officers were on patrol when
16 they approached a convertible. A male was
17 standing next to the passenger door leaning into
18 the convertible. As the police vehicle
19 approached, the pedestrian looked at the officers
20 and began walking towards the police vehicle on
21 the sidewalk. The officer observed the
22 pedestrian place his hand to his mouth and make a
23 swallowing motion. The convertible pulled away
24 from the curb and the vehicle was then stopped by
25 the police. Moreau J, as she then was, noted
26 that the officers had not observed any
27 hand-to-hand movements; there was nothing unusual
1 about the vehicle as it pulled away from the curb
2 and that the vehicle was a rental car, did not:
3 "Add any objective element of significance to the officers’
4 observations of the pedestrian such as to elevate their hunch to
5 reasonable grounds for the subsequent detention."
6
7 Arabi, supra at paragraph 30.
8 In R v Simpson, the Court concluded that the
9 detention was unlawful. The police officer had
10 been told that a residence was a suspected crack
11 house. The officer stopped a car that had left
12 the house after the driver briefly went into the
13 residence. The Court stated at paragraph 68 to
14 69:
15 Turning to this case, I can find no articulable cause justifying the
16 detention. Constable Wilkin had information of unknown age that
17 another police officer had been told that the residence was believed to be
18 a crack house. Constable Wilkin did not know the primary source of the
19 information and he had no reason to believe that the source in general,
20 or this particular piece of information, was reliable. It is
21 doubtful that this information standing alone could provide a
22 reasonable suspicion that the suspect residence was the scene of criminal
23 activity.
24 Any glimmer of an articulable cause disappears, however, when one
25 considers whether Constable Wilkin had reason to suspect that the
26 appellant or the driver of the car was involved in criminal activity.
27 He knew nothing about either person and he did not suggest that anything
1 either had done, apart from being at the house, aroused his suspicion or
2 suggested criminal activity. Attendance at a location believed to
3 be the site of ongoing criminal activity is a factor which may
4 contribute to the existence of articulable cause. Where that is the
5 sole factor, however, and the information concerning the location
6 is itself of unknown age and reliability, no articulable cause
7 exists.
8 As well, in the case of R v Ha, 2018 ABCA 233 the
9 Alberta Court of Appeal upheld the trial judge's
10 finding that the officer had reasonable and probable
11 grounds for arrest. In that case, the officer had
12 witnessed a suspected drug transaction between the
13 driver of two vehicles. The officer then put out a
14 call over the police radio asking if either of the
15 names of the registered owners of the vehicles were
16 known. He received information in reply from an
17 experienced drug investigator that the registered
18 owner of one of the vehicles was involved in
19 high-level drug trafficking and would likely be a
20 supplier in any drug transaction. The officer then
21 subsequently pulled over the vehicle. The Court of
22 Appeal stated at paragraph 29:
23
In my view, the trial judge was
24 correct in concluding that the information provided by [the
25 experienced drug investigator], combined with [the officer's]
26 experience and knowledge about drug transactions and his observation of a
27 suspected drug transaction between the drivers of the two vehicles,
1 sufficiently grounded the objective reasonableness of the subjective
2 belief in the requisite reasonable and probable grounds for arrest.
3
4 There are many cases on this issue, and as has
5 been noted, each case turns on its own facts.
6 In this case, the complainant provided
7 minimal information, the information being, as
8 testified to by Constable Beck, that there were
9 three males driving around Fort Providence in a
10 blue car trafficking cocaine. Constable Beck
11 inquired about the time delay of the complaint
12 and was told that the call had just come in.
13 Constable Pardy provided further information
14 that he had received several reports over the
15 past week of a blue Volkswagen car with Alberta
16 plates driving around with some Southern males
17 dealing cocaine. Constable Pardy had been able
18 to locate the vehicle several times but was
19 unable to identify an occupant or get a licence
20 plate as the vehicle had always been backed into
21 the trees or a house.
22 That is essentially the information that
23 Constable Beck had. Dealing first with the
24 information, Constable Beck had no information
25 about the source or the recency of the
26 complainant's knowledge. The information itself
27 was innocuous and easily obtained by anyone who
1 was in Fort Providence: a blue Volkswagen car
2 with Alberta plates being driven around by males
3 unfamiliar to residents of Fort Providence.
4 Neither officer took any steps to
5 investigate this information or to obtain further
6 information prior to searching for the vehicle.
7 There was no indication as to the reliability of
8 the information provided by the complainant.
9 This was not an anonymous tip. There was a
10 complainant that could have been spoken to, as
11 Constable Beck testified that, at some point, he
12 became aware of the complainant's name. But the
13 complainant was not spoken to prior to the
14 vehicle stop.
15 With respect to the report of trafficking in
16 cocaine, there was nothing to indicate how the
17 complainant was aware of this information,
18 whether this was from a personal observation,
19 from purchasing cocaine themselves, information
20 from a family member or a friend, or whether it
21 was just a rumour in the community. As well,
22 there was no information about when this had
23 occurred or whether it was ongoing.
24 Constable Beck testified that the complaint had
25 just been made when the call came in and was
26 recent but that does not clarify when the
27 observations might have been made by the
1 complainant, assuming the complainant had
2 firsthand knowledge of the trafficking activity.
3 As well, there were no details provided in
4 the complaint itself which might have been
5 checked out or corroborated by an independent
6 investigation. The fact that cocaine and cash
7 were ultimately found when the accused was
8 arrested does not constitute corroboration.
9 Corroboration must occur prior to the detention
10 or arrest of the accused and not after.
11 Considering the observations of
12 Constable Beck, once he located the vehicle
13 parked at a residence, it matched the description
14 of what had been conveyed to him by OCC and
15 Constable Pardy. It was a blue car, at that
16 point he could not tell if it was a Volkswagen or
17 had Alberta plates. It was also backed into the
18 residence as Constable Pardy had related that he
19 had observed the car backed in to a residence or
20 trees when parked.
21 Constable Beck testified that the vehicle
22 being backed into homes and trees was consistent
23 with trying to cover the identification of a
24 vehicle and that most people simply drive into a
25 driveway. Added to this was Constable Beck's
26 thought that the majority of licence plates would
27 be from the Northwest Territories in
1 Fort Providence and that Alberta plates would
2 stand out. This information is inconclusive,
3 people back into driveways for various reasons,
4 it is not always consistent with trying to
5 prevent identification of a vehicle.
6 Constable Beck also observed two males
7 standing outside the car and not three as
8 reported in the complaint. There was no
9 description of the males beyond what Constable
10 Pardy referred to as Southern males, which could
11 mean anything as I am uncertain on what basis
12 someone could differentiate a Southern person
13 from a Northern person. Fort Providence is a
14 small community, so it could mean that the males
15 were not from the community, but that is just a
16 guess.
17 Constable Beck's observations of the two
18 males and their reaction to him is significant.
19 It appeared that, as they noticed the police
20 vehicle, they slammed the door shut on the car
21 and ran into the residence, the accused carrying
22 the suitcase he had with him. Constable Beck
23 viewed that behaviour as strange, and that is a
24 valid observation.
25 Following this, Constable Beck determined
26 that he would conduct a traffic stop of the
27 vehicle to further the drug investigation if the
1 vehicle passed by the RCMP detachment as this was
2 the main road out of town.
3 Prior to the vehicle stopping,
4 Constable Beck made further observations. He was
5 able to observe that it was a blue Volkswagen and
6 had Alberta plates. He observed that the two
7 occupants were fidgeting and moving around in the
8 vehicle. The vehicle continued down the road for
9 approximately 150 metres before stopping.
10 At the point that Constable Beck stopped the
11 vehicle, he was suspicious about the vehicle and
12 its occupants which was demonstrated in his
13 evidence in cross-examination:
14 Q You had suspicions. You thought
15 it was odd behaviour, correct,
16 but --
17 A I believed it to be odd, yes.
18 And later in cross-examination:
19 Q This was a ruse to further your
20 drug investigation?
21 A I wouldn't call it a ruse. I was
22 identifying him, and I was looking
23 to see whether there was some
24 merit, and this was, in fact, the
25 guy that -- that I had received
26 the complaints about. I didn't
27 know at that point. I didn't know
1 him. I didn't know the car. I
2 had my suspicions that something
3 wasn't right; but at that point I
4 couldn't say for sure that this
5 was, in fact, the guy or the car.
6 Q Okay. So you had no idea at this
7 point? This is -- you detained an
8 individual with no clue who they
9 are on the off chance they may be
10 the person is what you're saying?
11 A I stopped the car, yes.
12 Based on the evidence, the officer
13 subjectively had suspicions which in his mind did
14 not amount to grounds to detain until after his
15 initial interactions with the accused. Viewed
16 objectively, I find that, at the point that the
17 accused's vehicle was pulled over, the officer
18 was operating on bare suspicion but did not have
19 reasonable grounds to suspect that the accused
20 was connected to a particular crime and that
21 detention was necessary, to use the language from
22 Mann.
23 As such, the accused's Section 9 Charter
24 Rights were breached and the initial stop of the
25 vehicle was unlawful. The sole purpose of the
26 stop was to further the drug investigation and
27 determine if the accused might be involved.
1 Had the initial stop of the vehicle been
2 lawful, the observations of the officer of the
3 vehicle and the accused following the stop would
4 have been sufficient to ground an investigative
5 detention. However, as the stop was unlawful,
6 the detention of the accused and subsequent
7 arrest were unlawful.
8 Section 10(a) and (b) of the Charter
9 Section 10 of the Charter states:
10
10. Everyone has the right on arrest
11 or detention
(a) to be informed promptly of the
12 reasons therefor;
(b) to retain and instruct counsel
13 without delay and to be informed of that right;
14
15 Individuals who are detained for investigative
16 purposes must be advised of the reasons for
17 detention in accordance with Section 10(a) of the
18 Charter. There are no particular words that need
19 to be used by the police provided that the
20 detainee is advised in "clear and simple
21 language" of the reason for detention: Mann,
22 supra at paragraph 21.
23 The Section 10(b) right to counsel arises
24 immediately upon detention, whether or not the
25 detention is solely for investigative purposes:
26 Grant, supra at paragraph 58.
27 The Crown concedes that the vehicle was
1 stopped and Constable Beck approached the vehicle
2 and began to speak to the accused, and that he
3 did not advise the accused of the reasons for
4 detention or provide him with his right to
5 counsel, thus breaching the accused's 10(a) and
6 (b) Charter Rights.
7 The evidence of Constable Beck was that he
8 did not advise the accused of the reason for his
9 detention or his right to counsel until the
10 accused exited the vehicle and walked back to the
11 police vehicle several minutes after the vehicle
12 stop had begun. Therefore, the accused's Section
13 10(a) and (b) Charter Rights were breached.
14 Section 8 of the Charter
15 Section 8 of the Charter states that
16 everyone has the right to be secure against
17 unreasonable search or seizure.
18 A warrantless search is prima facie
19 unreasonable. When a search is conducted without
20 a warrant, the Crown must establish, on a balance
21 of probabilities,
22 (1) that the search was authorized by law,
23 (2) the law itself is reasonable, and
24 (3) the manner in which the search was carried
25 out was reasonable. Mann, supra at paragraph 36.
26 On the evidence, there are two searches:
27 The search of the pocket of the accused's hoodie
1 by Constable Beck after the accused exited the
2 vehicle and the search of the vehicle following
3 the arrest of the accused.
4 Where there is an investigative detention, a
5 police officer may engage in a protective
6 pat-down search of a detained individual where
7 the officer has reasonable grounds to believe
8 that his safety or the safety of others is at
9 risk. Mann, supra at paragraph 45.
10 As I have concluded that the detention was
11 unlawful, it follows that the ensuing searches
12 incident to the detention and the later search
13 incident to arrest were also unlawful.
14 But with respect to the search of the
15 accused's hoodie pocket, even if the detention
16 had been lawful in this case, the actions of the
17 officer went beyond what is permitted in a search
18 incident to investigative detention.
19 While the officer's concerns about the
20 accused's actions in continually reaching into
21 his hoodie pocket even after being repeatedly
22 told not to would justify a pat-down search for
23 protective purposes in an investigative
24 detention, they did not justify him reaching into
25 the accused's hoodie pocket.
26 Constable Beck testified that, once he
27 handcuffed the accused, he observed that there
1 was a bulge and he reached into the pocket of the
2 hoodie. He was concerned about safety but he
3 also testified that he was concerned about
4 locating evidence which would assist in the
5 drug-trafficking investigation. Constable Beck
6 did not first engage in a pat-down search of the
7 area to determine if there were any items which
8 might place officer safety at risk and which
9 would justify putting his hand into the accused's
10 hoodie pocket. The more intrusive search of the
11 accused's pocket was an unreasonable violation of
12 the accused's reasonable expectation of privacy.
13 Exclusion of Evidence under Section 24(2) of the
14 Charter:
15 Having found breaches of the accused's
16 Charter Rights, the issue becomes whether the
17 evidence should be excluded. Section 24 of the
18 Canadian Charter of Rights and Freedoms says:
19
24. (1) Anyone whose rights or
20 freedoms, as guaranteed by this
Charter, have been infringed or
21 denied may apply to a court of competent jurisdiction to obtain such
22 remedy as the court considers appropriate and just in the
23 circumstances.
24 (2) Where, in proceedings under subsection (1), a court concludes
25 that evidence was obtained in a manner that infringed or denied any
26 rights or freedoms guaranteed by this Charter, the evidence shall be
27 excluded if it is established that, having regard to all the
1 circumstances, the admission of it in the proceedings would bring the
2 administration of justice into disrepute.
3
4 The Supreme Court in Grant set out what must be
5 considered in determining whether the evidence
6 obtained in breach of an accused's Charter Rights
7 should be excluded. A Court must assess and
8 balance the effect of admitting the evidence on
9 society's confidence in the justice system,
10 having regard to:
11 (1) The seriousness of the Charter infringing
12 state conduct;
13 (2) The impact of the breach on the Charter
14 protected interests of the accused; and
15 (3) Society's interest in the adjudication of the
16 case on its merits.
17 The Seriousness of the Breach
18 The Court has to assess the seriousness of
19 the conduct that led to the breach. There is a
20 difference between admission of evidence obtained
21 through inadvertent or minor violations of the
22 Charter and evidence obtained through a wilful or
23 reckless disregard of Charter rights. The
24 admission of evidence in the latter situation
25 will have a negative effect on public confidence
26 in the justice system and risk bringing the
27 administration of justice into disrepute, Grant,
1 supra at paragraph 74.
2 Whether the police were operating in good
3 faith is another consideration in assessing the
4 seriousness of the police conduct. However, the
5 Court in Grant also noted that ignorance of
6 Charter standards must not be encouraged, and
7 negligence or wilful blindness do not constitute
8 good faith. As stated in Grant, at paragraph 75:
9 Wilful or flagrant disregard of the
Charter by those very persons who are
10 charged with upholding the right in question may require that the court
11 dissociate itself from such conduct.
12
13 Considering the circumstances of this case, there
14 are multiple breaches of the accused's Charter
15 Rights. This chain of events was started when
16 the officer stopped the vehicle without
17 reasonable grounds to detain the accused. The
18 officer had suspicions based on what he had heard
19 and observed but no steps were taken to elevate
20 those suspicions to reasonable suspicion. The
21 approach appears to have been to conduct a
22 traffic stop and see what happened, to see if any
23 evidence on the drug-trafficking complaint would
24 be found.
25 The unlawful detention was then compounded
26 by the failure to advise the accused of his
27 Section 10(a) and (b) rights and the search of
1 the hoodie pocket and later the search of the
2 vehicle.
3 The actions of the police, while not in
4 conformity with the Charter, were not abusive in
5 their dealings with the accused. The officers
6 appeared to be candid in their testimony about
7 their observations, their actions, and the
8 decisions they made. The officer was not
9 deliberate in violating the accused's Charter
10 Rights, the accused was provided his Charter
11 Rights, Section 10(a) and 10(b), after he exited
12 the vehicle; although, by then, his Section 9,
13 10(a) and (b) rights had already been violated.
14 This case is different from the case of
15 R v Harrison, 2009 SCC 34 where the Court found
16 there was a blatant disregard for the accused's
17 Charter Rights which was aggravated by the
18 officer's misleading testimony at trial. The
19 Supreme Court of Canada viewed the police conduct
20 as serious and not to be condoned.
21 In this case, I do not find that the
22 officers acted in bad faith which does not
23 necessarily equate to good faith but it appears
24 that there was a lack of recognition of the
25 Charter standards.
26 The Court in Grant referred to the spectrum
27 of seriousness of Charter violations with
1 inadvertent or minor violations at one end and
2 wilful or reckless disregard for Charter Rights
3 at the other end. There is no evidence of
4 systemic or institutional abuse, which would
5 aggravate the seriousness of the breaches.
6 I find that the conduct of the officer that
7 led to the multiple Charter breaches in this case
8 reflects a lack of care for the accused's Charter
9 Rights which is in the mid to serious end of the
10 spectrum. The Charter breaching conduct can be
11 considered serious and tends to support the
12 exclusion of the evidence.
13 Impact on the Accused's Interests
14 The Court must also evaluate the extent to
15 which the breach undermined the Charter protected
16 interests of the accused. The impact of a
17 Charter breach may range from fleeting and
18 technical to profoundly intrusive. The more
19 serious the impact on the accused's interests,
20 the greater the risk that admission of the
21 evidence will bring the administration of justice
22 into disrepute, Grant, supra at paragraph 76.
23 An unreasonable search that intrudes on an
24 area in which an individual enjoys a high
25 expectation of privacy, or that demeans their
26 dignity, is more serious than one that does not.
27 Grant, supra at paragraph 78.
1 In considering physical evidence, the issue
2 of privacy is the principal interest to consider.
3 An individual has a higher expectation of privacy
4 in a dwelling house than in a place of business
5 or a vehicle. Grant, supra at paragraph 113.
6 A person in a motor vehicle has a lesser
7 expectation of privacy than a person in a home.
8 Drivers of vehicles are subject to being stopped
9 in random check-stops to detect things like
10 impaired driving offences. They may also be
11 stopped pursuant to the Motor Vehicle Act to
12 determine if they and their vehicle are in
13 compliance with the Act and its regulations.
14 This is known and drivers understand that this
15 may occur at any time.
16 There was nothing in the stop itself to
17 suggest that the encounter was demeaning to the
18 dignity of the accused and there was nothing
19 particularly unusual about the treatment of the
20 accused by the officers. The searches were
21 relatively non-intrusive.
22 Balanced against this is that the accused
23 was stopped without justification and his
24 expectation of liberty and privacy was interfered
25 with. Following the stop, he was subjected to
26 searches of his person and the rental vehicle.
27 I conclude that the impact of the breach on
1 the accused's Charter-protected interests was
2 more than minimal but not significant.
3 Society's Interest in Adjudication on the Merits
4 Society generally expects that criminal
5 charges will be determined on their merits.
6 Society has a collective interest in ensuring
7 that those who violate the law are brought to
8 trial and dealt with according to the law.
9 There is a public interest in seeking the
10 truth, which is a relevant consideration in a
11 Section 24(2) analysis. As stated in Grant,
12 supra at paragraph 82:
13 The fact that the evidence obtained in breach of the Charter may
14 facilitate the discovery of the truth and the adjudication of a case on its
15 merits must therefore be weighed against factors pointing to
16 exclusion, in order to balance the interests of truth with the integrity
17 of the justice system.
18 The reliability of the evidence is an important
19 factor to consider under this aspect of the test.
20 As stated in Grant, supra at paragraph 81:
21
If a breach undermines the
22 reliability of the evidence, this points in the direction of exclusion
23 of the evidence. The admission of unreliable evidence serves neither
24 the accused’s interest in a fair trial nor the public interest in
25 uncovering the truth. Conversely, exclusion of relevant and reliable
26 evidence may undermine the
truth-seeking function of the justice
27 system and render the trial unfair from the public perspective, thus
1 bringing the administration of justice into disrepute.
2
3 As noted in Grant, supra at paragraph 115:
4
Reliability issues with physical
5 evidence will not generally be related to the Charter breach.
6
7 Other factors to consider under this aspect of
8 the test will include the importance of the
9 evidence to the prosecution's case and the
10 seriousness of the offence in issue.
11 The evidence obtained, in this case,
12 consisting of drugs, money, weapons, and
13 ammunition, is highly reliable and relevant
14 evidence. It is critical evidence to the Crown's
15 case and essential to a determination on the
16 merits.
17 The charges the accused faces are serious.
18 Weapons and drug offences are serious and society
19 has a significant interest in having these types
20 of charges determined on their merits.
21 Firearm crimes are treated seriously and of
22 particular concern to Canadian society. Many
23 people in the Northwest Territories own firearms,
24 often to participate in traditional activities
25 like hunting. This does not mean that people of
26 the Northwest Territories are not concerned about
27 the safe use and storage of firearms. The
1 potential for misuse of firearms is always a
2 serious safety issue and the risk of serious
3 injury or death is one that is always present.
4 People are rightly concerned about the safe use
5 and storage of firearms. The use and storage of
6 firearms, and particularly this type of firearm,
7 which is so often associated with school
8 shootings and other mass shootings, raise serious
9 public safety concerns.
10 Drugs offences are also serious. This Court
11 has for many years been concerned about the
12 trafficking in cocaine in the Northwest
13 Territories and the offence has been treated
14 seriously by the Courts in this jurisdiction for
15 many years. Trafficking in cocaine has been
16 described as a scourge on society. The movement
17 of the activity of trafficking in cocaine and
18 other drugs from the city of Yellowknife to
19 smaller, more isolated communities is of serious
20 concern to the residents of small communities and
21 to the residents of the Northwest Territories in
22 general.
23 Balanced against this is that the
24 seriousness of the offence also makes it
25 important that the accused's rights be respected.
26 The consequences, if the accused is convicted,
27 are high and the accused could be subjected to a
1 significant period of imprisonment. In serious
2 cases, there is also an interest in ensuring that
3 the justice system is beyond reproach.
4 Having considered the seriousness of the
5 Charter infringing state conduct, the impact of
6 the breach on the Charter protected interests of
7 the accused, and society's interest in
8 adjudication of the case on its merits, a judge
9 must determine whether, on balance, the admission
10 of the evidence obtained by the Charter breach
11 would bring the administration of justice into
12 disrepute.
13 I think this is a close case. It is also an
14 unusual case with unique facts. While drugs are
15 often seized by the police from motor vehicles in
16 this jurisdiction, the presence of firearms is
17 less usual, although it does occur and the
18 presence of a fully loaded AR-15 type of rifle is
19 even rarer. I hesitate to say that there has
20 never been a similar case in the Northwest
21 Territories because inevitably someone will find
22 a case or a report of an instance of where it has
23 happened. But I cannot recall one, and I think
24 the circumstances are rare.
25 The conduct of the police was serious but
26 not at the most serious end of the spectrum. The
27 impact of the breach on the accused was
1 significant but again not at the most serious end
2 of the scale. The value of the evidence is
3 considerable and it is reliable evidence.
4 Society has a significant interest in having
5 serious matters like these determined on their
6 merits while at the same time ensuring that those
7 who are facing serious charges are treated
8 fairly.
9 In my view, balancing these factors weighs
10 in favour of admission and the admission of the
11 evidence would not bring the administration of
12 justice into disrepute. Exclusion of this
13 evidence, in my view, would risk bringing the
14 administration of justice into disrepute. For
15 these reasons, I find that the evidence seized
16 following the vehicle stop is admissible.
17 _____________________________________________________
18 ADJOURNED TO MARCH 8, 2019 AT 10:00 A.M.
19 _____________________________________________________
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1 CERTIFICATE OF TRANSCRIPT
2 I, the undersigned, hereby certify that the
3 foregoing transcribed pages are a complete and
4 accurate transcript of the digitally recorded
5 proceedings taken herein to the best of my skill and
6 ability.
7 Dated at the City of Edmonton, Province of
8 Alberta, this 23rd day of April, 2019.
9
10 Certified Pursuant to Rule 723
11 Of the Rules of Court
12
13 __________________________
14 Janet Belma, CSR(A), B.Ed.
15 Court Transcriber
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