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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 ActHe 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

Without referring to anything that

13                                   Mr. Paradis might have told you, what were your grounds for

14                                   detention?

15                             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

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

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                             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                             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.

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10                             Certified Pursuant to Rule 723

11                             Of the Rules of Court

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13                             __________________________

14                                                          Janet Belma, CSR(A), B.Ed.

15                                                          Court Transcriber

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