R. v. Goerzen, 2010 ABQB 289

Court of Queen ’ s Bench of Alberta Citation: R. v. Goerzen, 2010 ABQB 289 Date: 20100429 Docket: 090584814Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Robert Dennis Goerzen Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice S.D.

Hillier _______________________________________________________ Background [ 1 ] By agreement between counsel, this matter proceeded on Count No. 1 of the Indictment in respect of alleged possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 . [ 2 ] The charges arose in connection with the stopping of Mr. Goerzen’s vehicle while travelling eastbound on highway 16 near highway 47 outside of Edson, Alberta in May of 2009.

[ 3 ] Mr. Goerzen asserts that the officers were not justified in stopping him in connection with tinted windows on the vehicle. He has filed a Charter notice alleging breach of his rights: (

a) against unreasonable search and seizure (s. 8); (

b) against arbitrary detention or imprisonment (s. 9); and (

c) to retain and instruct counsel without delay and to be informed of that right (s. 10(b)). Evidence Initial Stop [ 4 ] On May 14, 2009 at approximately 5:02 p.m. two RCMP officers, Constables Kuca and McPhail, observed and pulled over a white SUV with tinted windows travelling in the opposite direction of their marked Chevy Tahoe. [ 5 ] Cst. Kuca approached the passenger side and Cst. McPhail came to the driver’s side. The officers entered into a brief conversation with Mr. Goerzen as the sole occupant. Cst.

Kuca testified that he was immediately struck by the odour of air freshener and a very strong odour of what he believed and was sure from his experience was cocaine. Cst. Kuca also observed Red Bull containers in the console portion of the front seat area. [ 6 ] Before addressing his interaction with Mr. Goerzen, Cst. Kuca gave evidence of his extensive experience in drug investigation. This experience has extended over seven years of police service including in the course of traffic-related highway enforcement.

He listed attendance at a number of courses including drug interdiction and his certification as a narcotics dog handler for which defence confirmed his expertise. He has been involved in seizures of cocaine around 100 times and testified at drug trials on roughly 20 occasions. I found his testimony to be quite reliable. [ 7 ] Cst. Kuca advised the driver, Mr. Goerzen, of the concern about window tint and Mr. Goerzen responded that the vehicle was not his and he never put the tint on the windows. Under cross examination, Cst.

Kuca acknowledged that his observation of the windows derived from seeing the vehicle briefly as it passed eastbound while he was driving westbound at highway speed. He also confirmed that he had been trained with written materials on the new traffic safety sections and regulations. He believed it was against the law to have tint on the windows of a motor vehicle in Alberta. [ 8 ] As Cst. Kuca leaned on the door with his head just inside to speak to the driver, the odour of the cocaine was very “intense”, such that he was sure there was a substantial quantity of the drug in the vehicle.

Based on his experience, the first priority was to address safety issues and to place Mr. Goerzen under arrest and so he told Mr. Goerzen to get out of the vehicle. Mr. Goerzen cooperated in vacating the vehicle at around 5:03 p.m., as well as placing his hands on the truck while he was advised that he was under arrest for possession of cocaine. He was then handcuffed. A violation ticket was issued for the tinted windows pursuant to the Traffic Safety Act citing s. 69(1) of the Regulations. [ 9 ] As part of the arrest outside the vehicle, Cst. Kuca informed Mr.

Goerzen (without specific reference to his RCMP Charter card) “that he had the right to retain and instruct a lawyer, that there was a 1-800 number available for free immediate legal advice, or that a telephone and telephone book would be provided to him if he wished to contact any other lawyer.” He stated that he always cautions that the person does not have to say anything but anything they do say to the police may be given in evidence against them. The officer further advised from memory that if Mr. Goerzen was charged with an offence he could apply to Legal Aid for assistance, and Mr.

Goerzen was asked if he understood what had just been said. He then asked if Mr. Goerzen wanted to call a free lawyer or any other lawyer. Mr. Goerzen indicated that he wished to contact a lawyer but that he did not have the number readily available.

Reasons for arrest [ 10 ] In explaining his reasons for immediate arrest, Cst.

Kuca summarized the following: · he observed Red Bull energy drink containers and detected the odour of air freshener; · the driver told the officer he was coming from Vancouver but did not appear overly tired or fatigued; · very quickly the officer detected a very strong odour of cocaine and air freshener and decided at that point to arrest; · the officer noted from his experience that people who have controlled substances in their vehicle use air freshener, body spray, different things with a strong odour in the interior of the vehicle to mask the odour that the illegal substance may be giving off; · since he could smell the strong odour of cocaine, he concluded that the air freshener was an attempt to mask the odour of the drug; · large quantities of controlled substances come into the Province of Alberta from the lower mainland area of British Columbia; · from the strength of the odour he also believed that he was dealing with a large quantity of drugs.

Overall Cst. Kuca was very certain that Mr. Goerzen was in possession of cocaine and that is why he placed him under arrest. [ 11 ] On cross examination the officer confirmed that, by far, the most predominant factor that caused him to believe there was cocaine in the vehicle was the strong odour that he recognized as cocaine. Search for Drugs [ 12 ] The officers searched the vehicle looking for the source of the cocaine odour, initially without success. Cst. Kuca then retrieved his police drug dog, Tessy, who had just completed training to signal the presence of a variety of drugs including cocaine.

Tessy began sniffing rapidly, appeared excited and then gave the officer a “sit confirmation” to indicate that she could detect the odour of one of the drugs she is trained to detect. The officer was reluctant to let her into the motor vehicle and put her back inside the marked police cruiser. [ 13 ] Cst. Kuca testified that the drug odour seemed stronger while he was sitting in the driver’s seat to search; he then noticed a bend in one of the panels on the console between the front seats.

The officer pulled back the damaged area which eventually enabled him to see some plastic packaging of what looked to be kilogram bricks of cocaine. The drugs and cell phones were secreted under the shifter area in the centre console, which the witness later described as quite warm inside from a strong source of heat from the transmission or components underneath. It was Cst. Kuca’s belief that the odour was as strong as it was because of the heat that was coming from the console area where he found the cocaine. [ 14 ] After pointing out this discovery to Cst. McPhail, Cst.

Kuca went back to the police vehicle to talk with Mr. Goerzen, re- arrested him for possession of cocaine for the purpose of trafficking and “read the Charter 10(

b) wording off of the card. I again asked him if he wanted to call a free lawyer or any other lawyer and he replied ‘yes’. I read him his police caution off the same card and asked him if he understood, and he said ‘yes’.” The re-arrest for the purpose of trafficking and second Charter caution occurred around 5:29 p.m. [ 15 ] The officer then decided to seize the entire vehicle and have it towed into a secure bay in the RCMP detachment to extract the five bricks of cocaine. The vehicle was towed at about 5:48 p.m. About the same time, Mr. Goerzen was transported back and directed into a phone room at the detachment by another officer.

[ 16 ] Items seized from the vehicle included: · 5 packages of cocaine in 1 kg bricks double wrapped in plastic; · two blackberry devices/cell phones found in the same compartment where the packages of cocaine were located; · cell phone charging devices (four) again from that compartment. [ 17 ] When this trial reconvened both counsel agreed that Cst. McPhail had been made available as a witness for trial and that the Crown had offered up the officer for cross examination by the Defence. Both counsel confirmed that the evidence of Cst.

McPhail would not add anything material to the evidence in respect of what took place and the alleged breaches. [ 18 ] Crown called Detective Guy Pilon as a long term experienced detective with Edmonton Police Service K-Division.

The officer was qualified, with concurrence of defence counsel, as an expert in the manner of use, packaging, distribution, prices, consumption patterns, paraphernalia, jargon, practices and habits of users and traffickers, observable effects and prices, how trafficking occurs and details of production and distribution of cocaine. [ 19 ] From his report filed and from his oral testimony, the Detective was able to confirm the following points: 1. pure cocaine has no discernable odour; 2. the mixing and manufacture of this drug (whether with diesel fuel, kerosene or other different chemicals) as brought into the Province of Alberta results in a product recognizable within a range of the same smell that is difficult to describe; 3. the smell of the cocaine evidenced at this trial has the classic odour for which cocaine is known; 4. from his experience and recent testing, he has determined that the smell of cocaine will permeate the air and linger, so long as the product is present; but once the product is removed the smell will dissipate; 5. from his testing, he has ascertained that the smell will be stronger in circumstances where the product is subjected to heat as appears to be indicated from the evidence in the transcript of Cst.

Kuca’s evidence which Det. Pilon has fully reviewed; 6. the longer the product was kept in the console area the stronger the smell would become; 7. although packaging would reduce the distribution of the smell to some extent, the aroma does come through the plastic; 8. in his extensive experience with investigations, drug traffickers do use air fresheners in their vehicles as an attempt to mask the odour; 9. he would assume, given Cst.

Kuca’s training, that the officer - like all of the officers with whom the Detective works - would be able to distinguish the smell of cocaine from other drugs; 10. when asked if the smell of cocaine could be described as similar to dirty socks or dirty laundry, Det. Pilon testified that was not his experience and that the descriptor of “musty” is normally applied to drugs other than cocaine. Although the cutting agents can be

variable, the underlying aroma is always there and is identifiable as the same general smell. He noted that heavy gauge plastic can resist dissemination of a smell initially, but the odour tends to permeate the bag and the degree of permeation will depend on how long it has been inside the sealer wrap; 11. in terms of value, a shipper of cocaine bricks would have attracted a price of between $40,000 and $55,000 per kilo in Edmonton during the relevant period.

These bricks are commercial wholesale and very difficult to obtain, such that an individual would have to be in the business and obtaining this product for someone who trusts that individual; 12. the use of a hidden compartment in a transport vehicle indicates a level of sophistication that demonstrates the transportation has been thought through with some planning. This is not as sophisticated a hidden compartment as Det. Pilon has seen in other instances, but it had to have been organized by someone who set it up from Edmonton.

The general process would be to send down money to the supplier separately from the return of the cocaine by a mule/courier. Once the cocaine has been paid for, it would be secreted somewhere in the vehicle and transferred back for drop off at a designated spot for later distribution in Edmonton; 13. a mule would be paid in the order of $1,000 per kilo by the person in Edmonton who has arranged for this individual to make the run.

The street value once the kilos have been converted into spit balls would be approximately $500,000 for the five kilos – the person transporting product of this value must be trusted in the organization; 14. an inadvertent or blind mule is at least possible, but it does not happen very often. The value of this product and the risk of loss would be serious issues.

It would be highly unlikely that a blind mule would be someone who is already facing criminal charges for trafficking in cocaine or someone who is under recognizance terms that prohibit possession of a cell phone; 15. a blind mule in this scenario would have a strong odour in driving this vehicle and Det.

Pilon could not rationalize why they would be blind to that aroma; 16. for a mule who is aware of what is going on, it would be unlikely to use his own vehicle, particularly if there were any charges pending against that driver; 17. it is highly unusual for cell phones to be placed in hiding with the packaged cocaine. Apart from this case, Det. Pilon has only seen it in one other instance since 2002; 18. the odour of the cocaine will dissipate more quickly once the source is removed because the smell is not as strong as cannabis marijuana.

The use of an air freshener is not an indicator of drug trafficking in itself; 19. one of the risks with mules is that they will run away with the product; 20. using a courier with an outstanding drug charge and under a restriction on use of cell phones would not be a good or first choice. On balance, however, a purchaser would rather know the individual they are dealing with as someone who is street savvy and he can trust, than someone who is blind and creates a risk that if stopped by police he will panic and talk to the police about his role. Analysis Initial Stop [ 20 ] Mr.

Goerzen argues that he was arbitrarily stopped and detained as part of a random process and that cannot be justified on an erroneous assumption of the right to enforce regulations in respect of window tints on automobiles.

[ 21 ] As at May 14, 2009, the general authority of a peace officer to stop a vehicle and request information was provided for in ss. 166 and 167 of the Traffic Safety Act , R.S.A. 2000, c. T-6 (the TSA ): 166(1) For the purposes of administering and enforcing this Act or a bylaw, a peace officer may (

a) with respect to a vehicle, (

i) signal or direct a driver of a vehicle to stop the vehicle, and (ii) request information from the driver of the vehicle and any passengers in the vehicle...

(2) When signalled or directed to stop by a peace officer who is readily identifiable as a peace officer, a driver of a vehicle shall (

a) forthwith bring the vehicle to a stop, (

b) forthwith furnish to the peace officer any information respecting the driver or the vehicle that the peace officer requires, and (

c) remain stopped until permitted by the peace officer to leave.

(3) At the request of a peace officer who is readily identifiable as a peace officer, a passenger in a vehicle who is acting in a manner that is contrary to this Act or a bylaw shall forthwith furnish to the peace officer the passenger’s name and address... 167(1) On the request of a peace officer, a person driving or otherwise having the care or control of a motor vehicle ... shall produce to the peace officer for inspection the following documents as requested by the peace officer: (

a) the person’s subsisting operator’s licence; (

b) the subsisting certificate of registration issued in respect of the motor vehicle...; (

c) the subsisting financial responsibility card issued in respect of that motor vehicle... .

(2) On the request of a peace officer a person who is engaged in supervising a student driver in a motor vehicle shall produce to the peace officer for inspection that person’s operator’s licence. [ 22 ] As well, the TSA provided: 65(1) Except as otherwise permitted under this Act, a person shall not do any of the following:

(

a) drive or operate a vehicle on a highway unless that vehicle complies with the vehicle and equipment standards set out in the regulations in respect of that vehicle; (

b) permit another person to drive or operate a vehicle on a highway unless that vehicle complies with the vehicle and equipment standards set out in the regulations in respect of that vehicle; (

c) where that person is the owner of a vehicle, drive or operate the vehicle on a highway unless the vehicle and its equipment are maintained (

i) in good working order, and (ii) in a condition that meets the requirements of this Act... 66(1) A peace officer may, for the purposes of (

a) ensuring that a vehicle or its equipment, or both, (

i) are safe to operate, and (ii) meet the vehicle and equipment standards and requirements provided for under this Act, ... (

c) direct that the vehicle or its equipment, or both, be subjected to an inspection, examination or test by the peace officer; (

d) direct that the vehicle or its equipment, or both, be subjected to an inspection, examination or test at a place and by a person specified by the peace officer; (

e) direct that the vehicle or its equipment, or both, or any specific part of the vehicle or equipment be repaired; (

f) direct that the vehicle or its equipment, or both, be removed from the highway or from operation and that it not be returned to a highway or operation until the vehicle or its equipment, or both, have been, as the case may be, (

i) rendered safe to operate, (ii) repaired, serviced, altered or otherwise dealt with so that they meet the requirements of this Act, or (iii) repaired in accordance with the directions of the peace officer; (

g) direct that the directions given under this

section be complied with within a time period specified by the peace officer; (

h) direct that, after the directions given under this

section have been complied with, the vehicle or its equipment, or both, be reinspected by a peace officer at a time and place specified by the peace officer...

[ 23 ] Cst. Kuca purportedly stopped the vehicle due to window tinting. The legislation in this regard has varied over the years. The former Highway Traffic Act , R.S.A. 1980, c. H-7 provided: 52(1) Subject to this section, no person shall place or install in a motor vehicle a transparent, translucent or opaque material on or in place of the (

a) windshield glazing, or (

b) side window glazing that is beside or forward of the driver on the right or left hand side of the motor vehicle... 52(3) Subsections (1) and (2) do not (

a) apply to the equivalent replacement of the glazing installed by the manufacturer of the motor vehicle, . . . 52(6) No person shall, after January 1, 1981 operate on a highway a motor vehicle that contains material prohibited by this section. [ 24 ] The tinted window provisions migrated to the Vehicle Equipment Regulation , Alta. Reg. 322/2002 when the TSA came into force: 69(1) A person shall not install, replace or cover the window glazing in a windshield or in a left or right side window of a motor vehicle that is beside or forward of the driver with a transparent, translucent or opaque material.

(2) A person shall not install, replace or cover the rear window glazing in a motor vehicle with a transparent, translucent or opaque material unless the motor vehicle has outside rear view mirrors on both the left and right that comply with section 72(2). ... 70 [ glazing standards ] 71(1) A person shall not install a windshield or glazing in a motor vehicle unless the glazing complies with this Regulation... [ 25 ] Despite the absence of a specific prohibition against operation in the Regulation from 2003 to 2009, the general prohibition in s. 65(1) of the TSA prevents operation of a vehicle on a highway unless the vehicle complies with the vehicle and equipment standards set out in the regulations in respect of that vehicle. [ 26 ] On July 1, 2009, the specific prohibition returned in the Vehicle Equipment Regulation , Alta.

Reg. 122/2009 : 70(1) A person shall not install, replace or cover the window glazing in a windshield or in a left or right side window of a motor vehicle that is beside or forward of the driver with a transparent, translucent or opaque material.

(2) A person shall not install, replace or cover the rear window glazing in a motor vehicle with a transparent, translucent or opaque material unless the motor vehicle has outside rear view mirrors on both the left and right that comply with section 74(2)... 71 [ glazing standards ]

(3) A person shall not operate a motor vehicle on a highway unless the windshield and window glazing comply with sections 70 and 71. [ 27 ] The stop in question occurred on May 14, 2009, being approximately 1½ months before the specific prohibition against operating a motor vehicle with non-compliant glazing was reinstituted in the Regulation. Cst. Kuca testified that he had been trained with written materials on the new provisions. If Cst. Kuca stopped the vehicle because he believed the driver was breaching a specific prohibition against operation contained in the regulation, he was wrong.

However, he did have fairly broad authority under the Traffic Safety Act to inquire into and request information relating to the minimum vehicle safety requirements under the Act and regulations, which included the tinting of windows. Therefore, in my view, although he may have been wrong as to the ultimate offence for which he issued a summons, his reason for the stop was not outside of his authority to check on vehicle safety. The stop was not at all arbitrary; it bears no resemblance to the facts in R v. Harrison , 2009 SCC 34 . [ 28 ] From a careful view of the evidence I am satisfied that Cst.

Kuca acted honestly and with the reasonably held belief that he was authorized to stop the vehicle driven by Mr. Goerzen because of the tinting of windows. Even in the aftermath of the arrest and charge under this indictment, a ticket was issued. I have no difficulty concluding, and defence did not dispute, that the front side windows were in fact tinted. I find that Cst. Kuca did reasonably believe that such ticket would be processed in the ordinary course. It was included on the Prosecutor Information Sheet or court brief submitted by Cst.

Kuca and I am quite satisfied he was unaware of any disposition of the ticket prior to the questions posed to him in this regard by defence counsel at trial. Arrest, Search and Seizure [ 29 ] Turning then to the arrest and search for cocaine, Cst. Kuca could only lawfully arrest and search the vehicle incident to that arrest if he had reasonable grounds to believe that Mr. Goerzen was in possession of cocaine. [ 30 ] The chronology is important because Mr. Goerzen was arrested on the basis of the very strong odour of drugs detected by Cst.

Kuca shortly after the vehicle was stopped and the windows were lowered to speak to the officers. It was only after that arrest, and following a 6 minute unsuccessful search by the officers, that the drug dog was brought out to check the vehicle. The positive identification of the presence of a controlled drug by the trained dog cannot be used as evidence to support the threshold of reasonable cause to arrest. It is only the information available to the officers leading up to the decision to arrest that must be weighed. [ 31 ] In that respect the Court must assess the reliability of Cst.

Kuca’s opinion that he was certain he smelled cocaine from the vehicle, having regard to his level of training and experience, wind conditions, and the specific circumstances of the vehicle including air freshener, and a bag of dirty clothes in the back area. [ 32 ] I find that Cst. Kuca was not reacting in any way to the smell of dirty laundry in a suitcase in the trunk area of the SUV.

While he agreed that he had heard the phrase “dirty socks” used to describe the smell of cocaine, he testified that this is not a phrase that pops into his head in relation to the smell of cocaine, and that cocaine - like marijuana - has its own distinct, unmistakable odour. I am supported in this conclusion by the evidence of Det. Pilon that he would not associate the smell of cocaine as similar to dirty socks or dirty laundry and an officer with Cst.

Kuca’s training would be able to distinguish the smell of cocaine as distinct from other drugs. [ 33 ] As to the initial stop, on the specific facts of this case there is nothing colourable about the opening questions put to Mr. Goerzen as to where he was coming from and where he was heading. I accept the explanation of Cst. Kuca that he uses the question to spark a bit of small talk and avoid complaints from the public. Sometimes it spawns a pleasant conversation about what people are doing.

Although I am mindful that in some cases, certain questioning of drivers may be problematic, in this case the ticketing, detection of odour and questioning occurred more or less simultaneously. I find that the questioning essentially coincided with the detection of the smell and the arrest occurred within a matter of minutes of the stop. [ 34 ] The heart of this case is whether the sense of smell by an officer can support reasonable cause for arrest. The Crown submits that in this case, Cst. Kuca’s detection of the overwhelming odour of cocaine despite Mr.

Goerzen’s use of air freshener provided reasonable and probable grounds to arrest and search for cocaine incidental to arrest. Conrad J.A. for the Court in R. v. Smith (1998), 1998 ABCA 418 (CanLII) , 126 C.C.C. (3d) 62 (Alta. C.A.) stated:

29 The question is, can smell alone ever constitute reasonable grounds? That will always be a question of the evidence in the particular case, and the view taken by the judge issuing the warrant. There is a fine line between suspicion and belief. 30 A belief, as opposed to a suspicion, an offence is being committed, can provide grounds. Reasonable and probable grounds are not proof absolute. In this case, the constable who swore the affidavit had experience in numerous investigations relating to cannabis marijuana growing operations and was directly involved in searches.

He swore in the information that when he entered the house he noticed the odour of what he believed to be cannabis marijuana growing. He stated further that the odour of cannabis marijuana was stronger in the kitchen area near the door leading to the basement of the residence. ... I am satisfied that a judge could have found in this case, with this officer who was experienced in marijuana growth operations, that there were reasonable and probable grounds to believe that marijuana was growing beyond the door at which the smell was stronger.

It is true there may be other explanations for the smell, but proof absolute is not required. The evidence should be more than a suspicion. But in this case, Constable Leggatt at one point, swore he knew from his experience there was a marijuana grow operation by the smell.

I am satisfied that Constable Leggatt, with his experience, could have obtained a warrant on the basis of smell alone in this particular case. [ 35 ] Much of the debate regarding reasonable grounds based solely on smell of drugs has arisen in marijuana cases and focussed on whether the odour was of raw or burnt marijuana: see for example Ross J.’s review of the law in R. v. Loewen , [2008] A.J. No. 1187 , 2008 ABQB 660 . [ 36 ] In R v.

Polashek (1999), 1999 CanLII 3714 (ON CA) , 118 O.A.C. 312 , 1999 CanLll 3714 , Rosenberg J.A. stated in the context of some uncertainty about whether the smell was of smoked or unsmoked marijuana: 13 ...The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory and thus largely incapable of objective verification. A smell will often leave no trace. As Doherty J.A. observed in R. v.

Simpson at p. 202, "subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation." 14 On the other hand, I would not go so far as was urged by the appellant that the presence of the smell of marijuana can never provide the requisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observation was made will determine the matter.

It may be that some officers through experience or training can convince the trial judge that they possess sufficient expertise that their opinion of present possession can be relied upon... [ 37 ] In this case, the evidence established that: 1. the arresting officer had both considerable training and experience in the detection of drugs; 2. a large amount of cocaine was stored in a heated area of the vehicle that would increase the aroma; 3. the plastic packaging would take on and eventually emit the odour; 4. an intense smell of cocaine would not linger after the cocaine had been removed from a vehicle; and 5. air freshener is known to be used to attempt to mask the smell of drugs.

From this I am able to conclude that the combination of the smell of air freshener and strong smell of cocaine would reasonably lead this investigating officer to believe that the air freshener was being employed to mask the smell of cocaine which was present in the vehicle. [ 38 ] I find that the very strong smell of the cocaine and the air freshener alone provided reasonable and probable grounds in this case to arrest Mr. Goerzen and to search for cocaine incidental to the arrest. [ 39 ] It was suggested that the lack of success on the initial search would have undermined the officer’s reasonable and probable

[ 39 ] It was suggested that the lack of success on the initial search would have undermined the officer’s reasonable and probable grounds. However, Cst. Kuca’s evidence was that he was convinced that there was cocaine in the vehicle based on the strong odour. I find that despite his inability at first to locate the drugs on a search of the vehicle, subjective and objective reasonable and probable grounds continued to exist. [ 40 ] A dog "sniff" amounts to a s. 8 search. In R. v. Kang-Brown , 2008 SCC 18 and R. v.

A.M. , 2008 SCC 19 it was held that police are permitted to use sniffer dogs to investigate where they have reasonable grounds to suspect the presence of contraband. This Charter standard of "reasonable suspicion" is based on the minimal intrusiveness, narrowly targeted objective and high accuracy of "sniffs" by specifically trained dogs. Clearly, the reasonable and probable grounds to believe in this case were a sufficient basis upon which to employ the sniffer dog. [ 41 ] In this case, I find that Cst. Kuca continued to have a reasonable belief, based on the intense odour, that there was cocaine in the vehicle.

The deployment of the dog to confirm this belief, without allowing the dog into the vehicle itself, was entirely reasonable. As noted in Kang-Brown , a trained dog’s positive alert supports reasonable and probable grounds. [ 42 ] I accept Cst. Kuca’s evidence that he did not waiver from his belief that there was cocaine in the vehicle. The evidence was that it is not uncommon for cocaine to be contained in hidden compartments in transporting vehicles.

In my view, in the circumstances where the dog was readily available, it was reasonable to use that non-intrusive and speedy means to elevate the reasonable belief of Cst. Kuca closer to a certainty. Right to Counsel [ 43 ] The Court of Appeal in R. v. Luong , 2000 ABCA 301 summarized the s. 10(

b) principles. The onus is upon the person asserting a violation of his or her Charter right to establish that the right as guaranteed by the Charter has been infringed or denied.

Section 10(

b) imposes both informational and implementational duties on state authorities who arrest or detain a person. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel. [ 44 ] Having heard Cst. Kuca’s evidence as to what he told Mr. Goerzen upon arrest in terms of his right to counsel and caution, I find that he complied with the requirements of s. 10(b). Defence counsel suggested in cross examination that three months of dog training would have affected Cst.

Kuca’s recollection of the standard rights advice. I am satisfied, on the basis of Cst. Kuca’s evidence, that he suffered no such lapse of memory; he covered the essential features of the s. 10(

b) advice. It may be preferable to read from the card, which was available, but I accept Cst. Kuca’s explanation that he tends not to get the card out while he is arresting. Speculation about whether or not there was some inadequacy of the s. 10(

b) duties is not positive evidence of a breach in that sense: R. v. Marston , 2008 ABCA 289 . [ 45 ] Defence counsel characterized this complaint as not overly significant in itself since the officer read from the card later and prior to exercise of the right to contact counsel, but argued it was part of a pattern of behaviour of consistent, albeit inadvertent, disregard for Charter rights. I reject the suggestion that the evidence discloses any such pattern. Just as the evidence affirms that Mr.

Goerzen was courteous and cooperative throughout, so too I find the officers were respectful of his rights in relation to their responsibilities. [ 46 ] The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise his or her right to counsel. The first implementational duty is to provide the detainee with a reasonable opportunity to exercise the right, and the second implementational duty is to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity.

The Crown has the burden of establishing that the detainee who invoked the right to counsel was provided with a reasonable opportunity to exercise the right. There is no evidence that the officers attempted to elicit any evidence from Mr. Goerzen prior to his exercise of his right to counsel, nor was this suggested by defence counsel. [ 47 ] As for a reasonable opportunity to contact counsel of his choice, the context in which this issue was raised bears mentioning. The Charter notice cited the contents of the rights advice as being the basis for the allegation of a s. 10(

b) breach. Cst. Kuca had no first- hand knowledge of the circumstances surrounding Mr. Goerzen’s transport to the detachment from the scene of the stop and his eventual exercise of the right to counsel. As mentioned above, Crown explained during the voir dire , undoubtedly mindful of the nature of the s. 10(

b) Charter breach allegation, that the second officer was made available but would not be called as he had nothing useful to add.

Defence counsel agreed with this position. During examination in chief of Cst. Kuca, Crown went somewhat beyond the evidence regarding rights advice and questioned Cst. Kuca in relation to Mr. Goerzen’s transport and eventual exercise of the right to counsel. Defence counsel objected to this line of questioning, given Cst. Kuca’s lack of first-hand knowledge. It was not until oral argument at the close of the voir dire that defence counsel squarely raised an allegation of breach of the implementational duty.

In my view, neither the Charter notice nor the discussions between counsel and the Court during the voir dire prior to the close of the Crown’s evidence alerted Crown or the Court to this ground. [ 48 ] Insofar as the events at the scene of the stop are relevant to the implementational duty, I find that delaying Mr. Goerzen’s exercise of his right to counsel until the drugs were found did not breach the implementational duty under s. 10(

b) in the circumstances. I find on the evidence that Mr. Goerzen led Cst. Kuca to believe that he did wish to exercise his right to counsel, but that he did not have the phone number of counsel of choice at hand. It was reasonable to delay exercise of the right during the search incidental to arrest, and until Mr. Goerzen could be transported to a location where he would have access to a telephone book. No evidence was elicited from Mr.

Goerzen at the scene. [ 49 ] Given the lack of notice regarding the allegation of breach of the implementational duty, I will not speculate as to shortcomings in implementation beyond the point at which Mr. Goerzen was removed from the scene. I am mindful that the Crown generally has the burden to establish that a reasonable opportunity was provided to exercise the right to counsel. However, in the particular circumstances of this case, where defence counsel’s position clearly led the Crown to understand that evidence following transport of Mr.

Goerzen to the detachment would be irrelevant to the alleged Charter breaches, I am satisfied that it is proper to restrict the analysis to the evidence before the Court. Section 24(2) Analysis [ 50 ] If I am wrong with respect to my findings that Mr. Goerzen’s Charter rights have not been breached, then s. 24(2) becomes relevant. [ 51 ] The Supreme Court in R. v. Grant , 2009 SCC 32 (CanLII) , [2009] 2 S.C.R. 353 modified the test for exclusion under s. 24(2).

The inquiry regarding exclusion of evidence is objective and looks to whether the overall repute of the justice system, viewed in the long term and prospectively, will be adversely affected by admission of the evidence. The balancing is qualitative in nature and therefore not capable of mathematical precision. It is not aimed at punishing the police or providing compensation to the accused, but rather at addressing systemic concerns.

Courts must assess and balance the effect of admitting or excluding the evidence on society's confidence in the justice system having regard to the following three factors. (1) the seriousness of the Charter-infringing state conduct (the nature of the police conduct that infringed the Charter) [ 52 ] Would the admission of the evidence in this case send the message the justice system condones serious state misconduct? [ 53 ] Here, if the initial stop was based on a misapprehension of the law or the “in force” date for legislative changes, then it must be determined how serious that state misconduct is.

The stop must be viewed in relation to the police authority to stop vehicles and momentarily detain the occupants for a variety of reasons under the TSA . [ 54 ] In R. v. Ngai , 2010 ABCA 10 , the Court of Appeal considered the Grant factors in a case where police used a digital recording ammeter (DRA) without prior authorization to detect a sophisticated grow operation. The Court noted that at the time, judicial authority was divided as to whether or not a warrant was required by the police in order to obtain DRA information.

As well, the conducted search was not egregious and was not a "suspicion-based search". [ 55 ] In Grant , a pedestrian was stopped and questioned on a suspicion and made an incriminating statement, leading to a search. The majority held that the gun discovered as a result of the accused's statements taken in breach of the Charter should be admitted. With respect to the first factor, the majority noted that the police conduct was neither deliberate nor egregious and there was no suggestion that the accused was the target of racial profiling or other discriminatory police practices.

[ 56 ] In R. v. Beaulieu , 2010 SCC 7 , RCMP officers planting a wiretap in a car found a hidden compartment containing a leather case with a loaded firearm in it.

The Supreme Court cited with approval the trial judge's conclusions as to the seriousness of the breach: the officers did not believe they were exceeding the powers granted to them by the authorization and had not evidenced a flagrant disregard of the accused’s Charter rights. [ 57 ] In Harrison , a rental vehicle was stopped by an officer who testified that even though he had no grounds to believe that any offence was being committed, abandoning the detention might have affected the integrity of the police in the eyes of observers.

He arrested the accused after discovering that his driver's licence had been suspended and proceeded to search the vehicle and found cocaine. The majority found clear breaches evidencing a blatant disregard for rights.

The police conduct in stopping and searching the appellant's vehicle without any semblance of reasonable grounds was reprehensible, and was aggravated by the officer's misleading testimony in court. [ 58 ] In my view, the lack of clarity in the law on tinted windows, the officer’s honestly held understanding (and level of training), and the fact that the law has changed over time and was shortly to contain once again the specific prohibition, all lead to the conclusion that this was not egregious Charter -infringing state conduct. The issuing of a summons in that regard supports a finding that Cst.

Kuca had an honest belief in his authority to stop in relation to the tinting. I find that the seriousness of the conduct in this case is more akin to Ngai , Grant and Beaulieu than to Harrison . [ 59 ] If the overwhelming odours of cocaine and air freshener did not constitute reasonable and probable grounds to arrest and search, at the very least they provided the basis for an extremely strong suspicion and the dog sniff certainly would have raised the grounds to the level of reasonable belief. In my view, given the very short time frame involved, and the honestly held belief of Cst.

Kuca, the circumstances of the search in this case again bring it very close to Ngai , Grant and Beaulieu ; it is quite dissimilar from Harrison in terms of the seriousness of the state conduct. [ 60 ] If there was a lack of a proper Charter caution at the time of arrest, Mr. Goerzen was nevertheless Chartered at that time. If there was Charter -infringing conduct, it was that Mr. Goerzen was possibly not as thoroughly advised as he would have been had Cst. Kuca read the card. The evidence was that Mr.

Goerzen certainly generally understood his rights sufficiently to request to exercise them, and therefore the state misconduct, if any, was minor. Further, the officers refrained from eliciting evidence from him until he had an opportunity to contact counsel. The search incidental to arrest did not depend on his consent. He was eventually cautioned from the card, prior to being provided with a reasonable opportunity to exercise his right to access counsel. [ 61 ] As for any suggestion that the police did not provide a reasonable opportunity to actually access counsel, Mr.

Goerzen was under arrest on a serious charge and would not have been released in the short term. Further, no evidence was elicited from him, and the very reliable evidence was located during the search incidental to arrest.

I have found this occurred during a brief period during which exercise of the right to counsel was reasonably delayed. [ 62 ] Again, I find that if there was Charter -infringing state conduct in this regard, it was not serious. (2) the seriousness of the incursion on the Charter-protected interests of the Accused [ 63 ] Might admission of the evidence send the message that individual rights count for little? [ 64 ] The initial vehicle stop did not amount to a serious incursion of Charter protected interests.

The expectation of privacy in a vehicle is not as high as the expectation of privacy of one’s person or home. In Beaulieu , the Court commented that the trial judge had taken into account the accused’s reduced privacy interest in his car. Of some import is the fact that this was not Mr. Goerzen’s vehicle, although he was obviously in control of it.

I find that his privacy interest was slightly less than an owner’s interest. [ 65 ] In Harrison , the majority found in relation to an unwarranted vehicle stop and search that the deprivation of liberty and privacy represented by the unconstitutional detention and search was a significant, although not egregious, intrusion on the accused's

Charter -protected interests. In that case, however, as already mentioned, the officer in stopping the vehicle knew no violation had occurred; his explanation in court for going ahead with the stop was highly problematic. [ 66 ] R. v. Morelli , 2010 SCC 8 provides an example of a case where officers acted on ostensible lawful authority (search warrant), but the seriousness of the incursion on the accused’s interests mandated exclusion.

The majority emphasized that on the second Grant criterion, the intrusiveness of the search was of particular importance, stating that it is difficult to imagine a more intrusive invasion of privacy than the search of one's home and personal computer. [ 67 ] In contrast, the Court in Ngai noted that the use of the DRA information was minimally intrusive with respect to a building that was not being utilized as the appellant's residence. [ 68 ] I find that the incursion in this case, if there was one, in relation to stopping the vehicle was somewhat serious but not egregious. [ 69 ] As for the arrest and search, I find that if there was a breach in this regard, then it was significant, but not egregious.

Certainly, arrest of an individual is a serious incursion on an individual’s liberty rights. However, in this case the officer held a strong and honest belief that there was cocaine in the vehicle. If that belief was not objectively sufficient, then it was close to being so. [ 70 ] If the initial caution was inadequate, the incursion was minor. Again, Mr. Goerzen was advised and confirmed an understanding of his rights, evidence was not elicited subsequent to the arrest, and he was eventually provided his rights from the card prior to being able reasonably to exercise them.

The search of the vehicle would have occurred incidental to arrest in any event. (3) society's interest in the adjudication of the case on its merits [ 71 ] Would the truth-seeking function of the criminal trial process be better served by admission of the evidence or by its exclusion? Factors such as the reliability of the evidence and its importance to the Crown's case are considered at the third stage. Items seized from the vehicle in this case included: · Five packages of 1 kg cocaine bricks; · Two blackberries; · Four Cell phone charging devices. [ 72 ] This evidence is reliable.

In Harrison , it was held that the drugs seized constituted highly reliable evidence tendered on a very serious charge. I have found, as was found in Ngai , that the police were honestly attempting to do their best in the face of legal uncertainty regarding the tinted windows. Trafficking in cocaine is a serious societal problem. The evidence is fundamental to the Crown’s case. [ 73 ] The Grant factors stress the long-term repute of the administration of justice.

Any breaches in this case were not in the least flagrant, the incursion was significant (in the case of the stop) but not egregious, the evidence is highly reliable, it is tendered on a very serious charge, and society has a pressing interest in seeing these matters brought to trial. As the Court of Appeal found in Ngai , the case is distinguishable from Harrison in that it does not involve a brazen and flagrant disregard for rights.

The overall long-term repute of the administration of justice would strongly favour admission. [ 74 ] For the purposes of a s. 24(2) analysis counsel provided as an admitted fact that “the Accused was released on a recognizance dated June 27, 2008 in relation to the possession of cocaine for the purpose of trafficking in Edmonton, Alberta and he had conditions on him at the time of this offence not to be in possession of cell phones and so on, and not to be in possession of illicit substances.” It could be argued from this that Mr. Goerzen has adopted a lifestyle of trafficking.

While this may be an additional factor to be taken into account in the s. 24(2) analysis, I would reach the same conclusion without it.

Decision [ 75 ] Accordingly the Charter challenges on this voir dire are dismissed and the evidence of the Crown is admitted in the trial proper. Heard on the 10 th day of March and the 9 th day of April, 2010. Dated at the City of Edmonton, Alberta this 29 th day of April, 2010. S.D. Hillier J.C.Q.B.A. Appearances: Kevin Short for the Crown Paul Moreau for the Accused