R. v. Cooper, 2011 ABQB 17

Court of Queen ’ s Bench of Alberta Citation: R. v. Cooper, 2011 ABQB 17 Date: 20110110 Docket: 090492315S1 Registry: Ft. McMurray Between: Her Majesty the Queen Respondent - and - Uriah Absolam Cooper Appellant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.L. Kenny _______________________________________________________ [ 1 ] This is an appeal of a conviction of Mr. Uriah Absolam Cooper (“Cooper”) by Cleary J. in the Provincial Court of Alberta on December 9, 2009 for possession of approximately 105 grams of marihuana.

The central issue is whether, after entering a Check Stop, Cooper’s Charter rights were breached by his detention and the subsequent search of his person. The Trial Judge found Charter breaches but the drug evidence was not excluded under s. 24(2) of the Charter. [ 2 ] Cooper contends that his rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms , 1982, R.S.C. 1985, App. II, No. 44,

Schedule B (the “Charter ”) were breached. He further contends that evidence obtained as a result of the alleged Charter breaches ought to be excluded from evidence under s. 24(2) of the Charter. [ 3 ] The Crown argues that there was no breach of Cooper’s ss. 8 and 9 Charter rights. The Crown further argues that the Trial Judge’s decision to not exclude the evidence under s. 24(2) should be upheld.

Facts [ 4 ] On March 30, 2009 around 8:15 p.m. Constable Harsulla was on duty and part of a Check Stop located approximately 12 kilometres south of Fort McMurray. The northbound lanes of Highway 63 traffic was diverted to an adjacent rest stop. The purpose of a Check Stop, according to Constable Harsulla, is to check for impaired drivers. [ 5 ] Constable Harsulla estimated that the roadside pullout for the Check Stop was approximately half a kilometre long and 500 yards wide. There was a lit bathroom area.

The Trial Judge found that the Check Stop was located on a large asphalt pad intended for large trucks stopped along the highway and that at least 10 police vehicles were parked there. The speed of traffic surrounding the Check Stop varied from 30 to 100 kilometres per hour according to Constable Harsulla. [ 6 ] In his notes, Constable Harsulla recorded that the weather on March 30, 2009 was 7 degrees Celsius, sunny and dry during the day. Around 8:15 p.m. Cooper and Mr. Kelly Rowe (“Rowe”) approached the Check Stop in a vehicle. Rowe was the driver of the vehicle and Cooper was a passenger in the vehicle.

Rowe is not a party to this appeal. [ 7 ] The vehicle was directed by Constable Harsulla to pull into his working area of the Check Stop. Constable Harsulla advised the occupants of the purpose of the Check Stop. Rowe said to Constable Harsulla that he had not been drinking and there were no drugs or alcohol in the vehicle. Constable Harsulla noticed that the Nova Scotia licence plates of the vehicle appeared to be expired. [ 8 ] Constable Harsulla confirmed that the license plate on Cooper’s vehicle had expired as of January 2009.

Cooper and Rowe were instructed by Constable Harsulla to exit the vehicle since it was to be towed. Constable Harsulla testified that he was aware that Cooper had a cell-phone and could call someone in Fort McMurray to arrange transportation.

Nevertheless, both Cooper and Rowe were told to wait in the backseat of Constable Harsulla’s police car to make transportation arrangements. [ 9 ] At trial, Constable Harsulla testified that his rationale for instructing the occupants to wait in his vehicle was: Due to the high volume of traffic at this check stop and the — the poor lighting, so to speak, I felt it in their best interests, for safety purposes, as well as everybody else around, to — to have them wait in the backseat of my police car. R. v. Cooper (9 December 2009), Fort McMurray 090492315P1 (Alta. Prov.

Ct.) [“Trial Transcript”] at p. 7 lines 17-25. [ 10 ] Constable Harsulla admitted at trial that Cooper was not compelled to sit in the police cruiser. He did not recall if he told Cooper that he did not have to enter the police cruiser.

Under cross-examination, Constable Harsulla said that he did not give Cooper and Rowe other options such as walking on the asphalt elsewhere to make arrangements, stopping another driver for a ride or walking into the woods since these options were potentially too hazardous. [ 11 ] Constable Harsulla further testified that, given his authoritative position, an average person might feel that they had no choice but to enter his police cruiser. [ 12 ] Constable Harsulla did not issue Cooper a ticket for operating a motor vehicle without subsisting registration under the Traffic Safety Act , R.S.A. 2000 c. T-6.

A ticket was later issued by Constable Wiebe, Constable Harsulla’s colleague at the Check Stop. [ 13 ] Prior to entering the police cruiser, Cooper and Rowe were instructed to spread their legs, place their hands on the police cruiser and were subjected to a body search by Constable Harsulla. According to Constable Harsulla this was standard procedure and was required to ensure officer safety before individuals enter police cruisers. Constable Harsulla testified that he was searching for weapons

and not evidence. [ 14 ] During Cooper’s body search, Constable Harsulla felt an “abnormal firm bulge” in the front waist area. Constable Harsulla twice asked Cooper what was in his belt. Cooper was silent at first and responded “smoke” to the second question. Constable Harsulla asked whether smoke meant marihuana to which Cooper nodded. [ 15 ] Cooper was placed under arrest, read his Charter rights and cautioned. A bag containing 105 grams of marijuana was seized by Constable Harsulla.

Cooper was charged with possession of cannabis marijuana, contrary to s. 4(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. Trial Judgment [ 16 ] At trial the parties entered into a voire dire to determine if the detention and subsequent search were lawful and if the seized marijuana should be included in evidence. [ 17 ] Cooper argued that he was not compelled to comply with Constable Harsulla’s instructions to enter the police cruiser and other options were available after his vehicle was impounded.

Cooper also contended that Constable Harsulla failed to inform him and Rowe that they did not have to consent to the detention or search. [ 18 ] Cooper argued that Constable Harsulla’s conduct amounted to a psychological detention contrary to s. 9 of the Charter and that the search was warrantless contrary to s. 8 of the Charter . Cooper argued that the evidence should therefore be excluded. [ 19 ] The Crown argued that there was no detention and that the search of Cooper was permitted for safety reasons and thus did not breach s. 8 or 9 of the Charter .

The Crown further argued if there was a breach, the evidence should not be excluded under s. 24(2) of the Charter . [ 20 ] The Trial Judge found as follows at p. 42, lines 34-38, of the Trial Transcript : It is slightly unfortunate that the police had a check stop set up in an area so far from the city with no arrangements other than police vehicles and police cell phones in place for the entirely likely event that they might end up with pedestrians with no transport to the city as a result of vehicles seized for traffic safety and other legal violations, that is certainly what happened here. [ 21 ] The Trial Judge also recognized the difficulty of making arrangements for individuals who end up without transportation in an area which is “fertile ground” for a Check Stop.

The Trial Judge was satisfied that Constable Harsulla’s decision to instruct Cooper and Rowe to sit in his police vehicle was the only safe way to deal with the situation. She further held that a cursory search of individuals entering a police cruiser at a Check Stop was necessary to check for items which might endanger Constable Harsulla or others. [ 22 ] Nevertheless, the Trial Judge found technical breaches of ss. 8 and 9 of the Charter . The Trial Judge proceeded to the three- stage analysis for the exclusion of evidence under s. 24(2) in R v.

Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353. [ 23 ] The Trial Judge found Constable Harsulla acted “in good faith and out of a feeling of responsibility towards the citizens who had been left in the situation of being without transportation in an area made dangerous by surrounding traffic and poor lighting”: Trial Transcript at p. 44 lines 3-6. [ 24 ] The search was characterized by the Trial Judge as a “quick pat of Mr. Cooper’s waistband” by Constable Harsulla and distinguished from a severe or deliberate disregard of rights.

Finally, the Trial Judge found that the truth seeking function of the trial process would be better served by the admission of purely physical evidence. Without this evidence, there would be no evidence upon

which to determine whether the charge has been proven beyond a reasonable doubt. As a result, the marijuana was included in evidence. [25] The Trial Judge found that the Crown had proven all the elements of the offence beyond a reasonable doubt. Cooper wassubsequently convicted of possession under the Controlled Drugs and Substances Act. Issues [26] The issues are as follows: 1. Did the Trial Judge err in determining that there was a breach of Cooper’s s. 8 Charter rights? 2. Did the Trial Judge err in determining that there were was a breach of Cooper’s s. 9 Charter rights? 3.

Did the Trial Judge err in determining that the evidence should not be excluded pursuant to s. 24(2) of the Charter? Standard of Review [27] A determination of whether the Charter had been violated involves findings of fact and law. The Supreme Court has definedthe standard of review applicable to appellate courts considering Charter breaches in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2S.C.R. 235. For pure questions of law, the standard of review is correctness: Housen at para. 8.

For questions of fact, the Supreme Courtin Housen held at para. 10 that findings are not to be reversed unless it can be established that the trial judge made a "palpable andoverriding error". Therefore, a trial judge is entitled to substantial deference on findings of fact. [28] The Crown contends that R v.

Stillman, (SCC), [1997] 1 S.C.R. 607 defines the appropriate standard ofreview for a s. 24(2) Charter analysis at para. 68: It has been held that appellate courts should only intervene with respect to a lower court's s. 24(2) analysis when that court has made"some apparent error as to the applicable principles or rules of law" or has made an unreasonable finding [29] More recently after Grant, the Alberta Court of Appeal confirmed the standard of review applicable to s. 24(2) of the Charterin R. v.

Harding, 2010 ABCA 180, 482 A.R. 262 at para. 14: The decision to exclude evidence pursuant to section 24(2) of the Charter is reviewed on a standard of reasonableness, and a reviewingcourt will not interfere with a trial judge's conclusions absent an apparent error as to the applicable principles or rules of law, or anunreasonable finding: R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227 at para. 32. [30] In

summary, there is a more deferential approach taken by appellate courts when considering a trial judge's decision whetheror not to exclude evidence under s. 24(2) of the Charter. Legislation [31] Section 4(1) of the Controlled Drugs and Substances Act states:

Except as authorized under the regulations, no person shall possess a substance included in

Schedule I, II or III. [32] The requirement to hold a subsisting registration while operating a motor vehicle is found in s. 52 of the Traffic Safety Act: Except as otherwise permitted under this Act, a person shall not do any of the following: (

a) operate a motor vehicle or trailer on a highway unless there is a subsisting certificate of registration issued in respect of that vehicle[...] [33] The relevant Charter sections are: 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Analysis Informed consent to an unlawful search -

Section 8 of the Charter [34] The appellant Cooper argues that the Trial Judge did not address the issue of informed consent as argued at trial. The Crown’sposition is that informed consent was never raised at trial by either party and therefore the Trial Judge was not required to rule on it.However, the issue of consent was raised in the Charter Notice filed by Cooper on November 25, 2009. It states at para. 5: That the Applicant did not provide consent to Constable HARSULLA to search his person breaching his

section 8 Charter rights. [35] There is no evidence that Cooper was compelled to enter the police cruiser. The question is whether Cooper consented to thesearch. The Ontario Court of Appeal set out a six-part test for informed consent in R v. Wills (1992), (ON CA), 7O.R. (3d) 337 (C.A.) The Ontario Court of Appeal held that the waiver doctrine applies in the following circumstances at para. 69: In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwisebe an unauthorized search or seizure requires that the Crown establish on the balance of probabilities that: (

i) there was a consent, express or implied;

(ii) the giver of the consent had the authority to give the consent in question; (iii) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested; (iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent; (

v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and, (vi) the giver of the consent was aware of the potential consequences of giving the consent. [ 36 ] In Wills the accused was driving several friends home from a dance when he crashed his pickup truck killing two of his passengers. Wills was convicted of impaired riving causing death. The issue on appeal was whether Wills consented to a breathalyzer test after the accident.

The Court found that the Crown had failed to establish that Wills was aware of the consequences of giving his consent. As a result, Wills had not waived his right to be free of unreasonable search or seizure: Wills at para. 79 . [ 37 ] Wills was based on an alleged violation of the s. 10(

b) Charter right of the accused to counsel. The Ontario Court of Appeal concluded that a similar approach should be applied where s. 8 rights are at issue. Consent to an unlawful search is required so that a person can appreciate in a general way his or her position in an ongoing police investigation. The Ontario Court of Appeal required that the police clarify if the person to be searched is an accused, suspect, target or an “innocent bystander”: Wills at para. 71 . [ 38 ] Cooper also relies on the recent Alberta decision R. v.

Tran, 2008 ABQB 452 , 447 A.R. 282 as authority for the proposition that an accused cannot consent to a search unless the arresting officer informs the accused that he or she does not have to consent. The Court of Appeal recently overturned this decision after applying the Wills test and ordered a new trail: 2010 ABCA 211 , 482 A.R. 357; leave to appeal to S.C.C. requested, [2010] C.S.C.R. no 354. [ 39 ] The Trial Transcripts in the present case evidence the following exchange between Constable Harsulla and Cooper’s counsel at p. 25 lines 33-39: Q .... were [Cooper and Rowe] compelled to sit in the vehicle? A No.

Q ... did you tell them that they did not have to sit in the vehicle if they choose not to? A I can’t recall. [ 40 ] The forgoing indicates that there is no evidence that Cooper consented to entering Constable Harsulla’s police cruiser and the search of his person. Unlike Wills, there was no express or implied consent to the search. [ 41 ] Constable Harsulla can’t recall providing Cooper and Rowe with clear and unequivocal advice that they were free to go after their vehicle was impounded. This was described by the Trial Judge as “detaining people without a legal foundation for so doing”.

For these reasons, I uphold the Trial Judge’s conclusion that there was a breach of Cooper’s s. 8 rights against unreasonable search.

Arbitrary Detention -

Section 9 of the Charter [ 42 ] The Crown argues that the Trial Judge erred in determining that there was a detention within the meaning of s. 9 of the Charter .

The Trial Judge’s finding is found at p. 44 lines 6-7 of the Trial Transcript: While [Constable Harsulla] may have detained them, he treated them most courteously. [Cooper and Rowe] did not request or suggest any other options other than the only one he saw before him. [ 43 ] For reasons explained in the s. 8 analysis above, it was the responsibility of Constable Harsulla, and not Cooper, to provide information regarding the options available after the appellant’s car was impounded at the Check Stop. Constable Harsulla testified to the authoritative position of the police at Check Stops.

It was unreasonable for the Trial Judge to rely on individuals to propose options in the face of an, otherwise illegal, detention. [ 44 ] The Crown contends that not every arrest begins with a detention and cites R. v. Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460 in support. In Suberu the accused was momentarily delayed when the police asked to speak to him outside of a store during an investigation into stolen credit cards. The Supreme Court held that the lack of a physical or psychological restraint during the preliminary investigation fell short of a detention.

At para. 5 of Suberu the Supreme Court concluded: Even when an encounter clearly results in a detention, for example when the person is ultimately arrested and taken in police custody, it cannot simply be assumed that there was a detention from the beginning of the interaction. [ 45 ] Cooper was not subjected to physical restraint at the Check Stop.

The question is whether a reasonable person in the circumstances would conclude that he or she had been deprived of his or her liberty: Suberu at para. 4 . [ 46 ] In contrast to Suberu , where the accused was asked to wait momentarily outside of a store during a preliminary investigation, Cooper was held 12 kilometres south of Fort McMurray. He was instructed to sit in Constable Harsulla’s police cruiser and not advised of other options. Unlike Suberu , there was no discernable investigative purpose at the relevant time.

Constable Harsulla testified that Cooper was not compelled to sit in the police cruiser but failed to inform Cooper of this. Further, Constable Harsulla testified that due to his authoritative position, the average person might feel that he or she had no choice but to enter his police cruiser. [ 47 ] I agree with Constable Harsulla’s testimony that a reasonable person in Cooper’s position would conclude that he was compelled to sit in the police cruiser and deprived of his liberty of choice without consent. He was therefore detained without his informed consent contrary to s. 9 of the Charter .

Exclusion of evidence under s. 24(2) of the Charter [ 48 ] The Supreme Court revised the s. 24(2) Charter remedy for the exclusion of evidence in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 and its companion case R. v. Harrison , 2009 SCC 34 , [2009] 2 S.C.R. 494. In these cases, the Supreme Court stated that the purpose of s. 24(2) is to address systemic problems and not to punish the police or compensate the accused.

The test for s. 24(2) of the Charter is set out in Grant at para. 71 : When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

[ 49 ] A court considering the exclusion of evidence under s. 24(2) is to balance each line of inquiry and consider whether the admission of evidence would bring the administration of justice into disrepute. Seriousness of the Charter-infringing conduct [ 50 ] This branch focuses on whether the Court should disassociate itself from conduct that shows “[w]ilful or flagrant disregard of the Charter ” by the police. If the police conduct is deliberate and in violation of an established Charter standard then exclusion of the evidence is favoured.

The main concern of this inquiry is to preserve public confidence in the rule of law. In Grant the Court identified a spectrum of state conduct from minor violations to serious disregard for Charter rights. [ 51 ] The conduct of Constable Harsulla did not display a flagrant disregard for Cooper’s Charter protected interest. The Trial Judge found that Constable Harsulla was primarily concerned with the safety of officers and the persons at the Check Stop.

The Trial Judge identified that the police created this situation by situating a Check Stop where individuals would foreseeably be stranded 12 kilometres from Fort McMurray: Trial Transcript at p. 42 lines 34-38. [ 52 ] Constable Harsulla admitted that he knew Cooper was not compelled to enter his police cruiser and nonetheless failed to seek his consent. The Trial Judge did not properly consider the issue of Cooper’s consent. Public confidence in the rule of law requires that persons be informed and consent to, otherwise unlawful, police actions.

For these reasons, the finding of the Trial Judge regarding the seriousness of the Charter -infringing conduct was unreasonable. The breach of Cooper’s Charter rights was serious and this branch of the s. 24(2) analysis favours the exclusions of the evidence. Impact on the Charter-protected interests of the accused [ 53 ] This branch of the s. 24(2) analysis evaluates the extent to which the breach actually undermined the Charter right infringed.

The greater the impact on the Charter protected interest of the accused the more likely that the admission of the evidence will undermine public trust and bring the administration of justice into disrepute. The Supreme Court held at para. 78 of Grant : [A]n unreasonable search contrary to s. 8 of the Charter may impact on the protected [...] interests of privacy, and more broadly, human dignity.

An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not. [ 54 ] The appellant has a right to not be arbitrarily detained or unreasonably searched. The search of Cooper’s person was not as intrusive as that described in R v. Golden , 2001 SCC 83 , [2001] 3 S.C.R. 679. The search was unreasonable because Constable Harsulla failed to inform Cooper of other options available to him other than waiting in his police cruiser (which necessitated the search).

The Trial Judge did not adequately consider that a search that intrudes into an area with a higher expectation of privacy, such as that of your person, is more serious than one that does not: Grant at para. 78 . [ 55 ] The parties disagreed about whether R. v. Buhay , 2003 SCC 30 , [2003] 1 S.C.R. 631 applies to the present case. In Buhay , the accused stored a bag in a bus depot locker that emitted a marijuana odour. The police obtained the bag from the locker without a warrant and discovered marijuana.

The Supreme Court concluded that police breached the s. 8 Charter rights of the accused and that the evidence should be excluded under s. 24(2) of the Charter . With regard to the police officers good faith, the Court held “good faith cannot be claimed if a Charter violation is committed on the basis of a police officer’s unreasonable error or ignorance as to the scope of his or her authority”: Buhay at para. 59 ; quoted from J. Sopinka, S. N. Lederman and A. W.

Bryant, The Law of Evidence in Canada (2nd ed. 1999) at p. 450. [ 56 ] A principle from Buhay applies to this case: police should explore options available to them in a sincere effort to comply with the Charter . Looking prospectively, it is not reasonable for police to conduct a body search for each individual charged with a traffic violation for expired registration at a Check Stop. At the very least, other options, and the fact that the person is not compelled to enter a police cruiser, should be explained.

The Trial Judge erred in not properly considering Cooper’s consent and this resulted in an unreasonable assessment of the search. The second branch of the s. 24(2) analysis also supports the exclusion of the evidence.

Society’s Interest in adjudication on the merits [ 57 ] The third issue is whether the truth-seeking function of a criminal trial is better severed by the inclusion or exclusion of the evidence. Put another way, the admission of unreliable evidence does not serve the public interest in uncovering the truth or the interest of the accused in a fair trial: Grant at para. 81 . The importance of the evidence to the Crown’s case is relevant but corollary to the inquiry into the reliability of the evidence.

Section 24(2) focuses on the long term repute of the justice system rather than the “short term public clamour for a conviction”: Grant at para. 82 . [ 58 ] The 105 grams of marijuana seized from Cooper is reliable physical evidence. Despite the significantly greater amount and value of this drug evidence seized, in Harrison the Supreme Court cautioned against giving this factor disproportionate influence: Harrison at para. 34 .

This third branch of the s. 24(2) analysis appeared significant to the Trial Judge in her conclusion that “if the evidence is excluded, there is no evidence upon which I can determine whether the charge before me has been proven beyond a reasonable doubt by the Crown” Trial Transcript at p. 44 lines 31-34. Although society’s interest in adjudication of the matter on the merits is not determinative of the s. 24(2) analysis, I agree with the Trial Judge that this branch supports the inclusion of the evidence.

Balancing [ 59 ] Taken together I find that the factors identified in Grant and Harrison support the exclusion of the drug evidence in this case. Cooper was given no option by the police other than subjecting himself to an unlawful search. The issue of consent was not adequately considered by the Trial Judge. The deleterious effect of subjecting individuals to Charter -infringing detentions and bodily searches at Check Stops outweighs the benefit of including the physical evidence. As stated by Nielsen J. at the conclusion of the s. 24(2) analysis in R. v.

Goodwin , 2009 ABQB 710 , 483 A.R. 205 at para. 106 : While the offences with which Mr. Goodwin is charged are extremely serious he is still entitled to his Charter protections. The ends do not justify the means in this case. Conclusion [ 60 ] The appeal is allowed. I find that Cooper’s ss. 8 and 9 Charter rights were breached and the impugned evidence should be excluded under s. 24(2) of the Charter . The conviction is quashed and acquittal entered. Heard on the 17 th day of September, 2010. Dated at the City of Calgary, Alberta this 10 th day of January, 2011.

C.L. Kenny J.C.Q.B.A. Appearances: Susan Bottern Agent for the Respondent Conor Davis for the Appellant