R. v. Heiberg, 2011 ABQB 203

Court of Queen ’ s Bench of Alberta Citation: R. v. Heiberg, 2011 ABQB 203 Date: 20110325 Docket: 090946831Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Gunnar William Heiberg and Samuel Hudson Kelleher Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I. Introduction [ 1 ] Gunnar William Heiberg and Samuel Hudson Kelleher are jointly charged with possession of cocaine for the purpose of trafficking.

Heiberg stands further charged that he was unlawfully in possession of property obtained by the commission in Canada of an offence, that he had in his possession a weapon for a purpose dangerous to the public peace and that he had in his possession a prohibited weapon. [ 2 ] Heiberg and Kelleher have applied for an Order excluding from evidence any statements made by them, the drugs seized from the vehicle in which they were riding and the weapon seized from Heiberg. They allege breaches of their Charter rights under ss. 8, 9, 10(

a) and 10(

b) and argue that all of the evidence should be excluded under s. 24(2).

II. Background Facts [ 3 ] On August 4, 2009, shortly before 4:20 a.m., Detective Stephen Camp (then Sergeant Camp) was in a marked police car patrolling the area around 111 Avenue and 151 Street in Edmonton. He noticed a white Jeep speeding towards 156 Street. He had estimated the vehicle’s speed to be approximately 90 kph in a 60 kph zone. He almost caught up with it at 157 Street when the vehicle made a u-turn.

Detective Camp then pulled in behind it, turned on his overhead lights and pulled it over. [ 4 ] Detective Camp conducted a licence plate check and determined that the vehicle was owned by a woman, Stella Stevenson. He walked up to the vehicle. The driver’s window was rolled down and Kelleher, who had been driving the vehicle, handed Camp his driver’s licence. Heiberg was sitting in the passenger seat. [ 5 ] Mr. Kelleher acknowledged to Camp that he had made an illegal u-turn. Camp told him that he had been speeding and that he needed to see the registration and insurance for the vehicle.

According to Camp, Kelleher fumbled in the glove box for 30 seconds to one minute and had difficulty finding the documents to produce. He appeared nervous. Camp then noticed that there was a single key in the ignition. [ 6 ] It seemed to Camp that Kelleher had no idea as to where the relevant documents were located. He asked Kelleher whether it was his car and Kelleher told him it was his friend’s car. When asked who his friend was, Kelleher replied “Dennis”.

Kelleher’s cell phone then rang and he either told the person he would call back or told the person to call him back. [ 7 ] After Kelleher told Camp that the owner of the vehicle was Dennis, Heiberg said something like “she let us have it”, which suggested that the owner was a female. Camp was then told that the person was out of town and it was her boyfriend that let them have the car, and that they had had it for three days. Kelleher then told Camp that the vehicle was not stolen. [ 8 ] At that point, a combination of factors made Camp suspicious that the vehicle was stolen.

Those factors included the evasive responses to his questions regarding the ownership of the vehicle, Kelleher’s fumbling while looking for the registration and insurance, Kelleher appearing nervous, the fact that there was a single key in the ignition (which may have indicated that it was a shaved key allowing it to be used in any vehicle), and the fact that Kelleher then looked at him and told him the vehicle was not stolen. Suspicious that the vehicle was possibly stolen, Camp’s investigation changed from a simple traffic stop to a criminal investigation. This occurred at 4:20 a.m. [ 9 ] Det.

Camp then called for backup. He did not advise Kelleher and Heiberg that he was doing so nor did he advise them that he now believed there was a possibility the vehicle was stolen and that they were going to be detained on suspicion of possession of stolen property. [ 10 ] Det. Camp’s call for backup occurred at about 4:20 a.m. Cst. Trevor McKendrick arrived as backup at approximately 4:25 a.m. McKendrick believed that Kelleher and Heiberg were both standing outside of the subject vehicle when he arrived.

Camp told McKendrick that the two individuals were in joint possession of the vehicle that he suspected was stolen and to put Heiberg in investigative detention. He also told McKendrick to conduct a pat down search of Heiberg. Camp placed Kelleher under investigative detention and advised him that he believed the vehicle was stolen and that he wanted to investigate. [ 11 ] Det. Camp patted down Kelleher and did not find anything. McKendrick asked Heiberg if he had any weapons and Heiberg did not reply. McKendrick then did a pat down search from the collar down.

In the right jacket pocket of Heiberg he felt a hard rectangular object. He asked again if there was anything in Heiberg’s pocket and received no response. He then removed a knife from the pocket which had a blade approximately 2½ to 3 inches long. He grabbed the handle of the knife and opened the blade using centrifugal force. He believed this to be a prohibited weapon and he showed it to Camp. [ 12 ] Cst. McKendrick then informed Heiberg that he was under arrest for possession of a prohibited weapon and a weapon dangerous to the public.

He then did a frisk search of Heiberg, finding a wad of bills in one pocket and a cellular phone in another. He

was then handcuffed and moved away. [ 13 ] Another officer, Cst. Land, had also arrived as backup for Camp. When he heard McKendrick place Heiberg under arrest, Camp moved over to the passenger side and left Kelleher sitting on the curb behind the vehicle. The passenger door was open and after Heiberg was handcuffed and moved away, Camp began to look inside the vehicle. He testified that he was looking for weapons at that time as it was his experience that individuals found in possession of weapons, such as the one Heiberg was found in possession of, often carry other weapons in their vehicle.

This was his stated purpose for searching the vehicle. [ 14 ] Det. Camp noticed that inside the pouch on the passenger side door of the vehicle was a plastic Juicy Fruit container. He testified that he knew, as a consequence of his drug investigation experience, that these containers are often used to carry drugs. He picked up the container, opened it and found what turned out to be 35 pieces of crack cocaine in one pouch and four pieces of crack cocaine in another. This occurred at 4:31 a.m. [ 15 ] Det. Camp then walked back to Kelleher and placed him under arrest for trafficking.

McKendrick Chartered and cautioned Heiberg at 4:34 a.m. and Kelleher at 4:36 a.m. Each of them indicated that they understood their right to counsel and stated that they did want to exercise that right and speak to a lawyer. They both also indicated that they had nothing further to say. [ 16 ] Cst. Land assisted McKendrick in transporting Kelleher and Heiberg to the police station. They left the scene at 4:44 a.m. and arrived at the police station at 4:51 a.m. [ 17 ] Between 4:31 a.m. and 4:59 a.m., Camp answered six different calls on one of the cell phones that had been found in the vehicle.

He testified that there were a total of about 20 calls during that time. He testified that the brief discussions in which he was involved related to the purchase of drugs. [ 18 ] Det. Camp gave instructions to McKendrick to conduct a strip search of Heiberg at the police station. His reason for doing so was because a weapon had been found on Heiberg at the scene. No further weapons were found as a result of the strip search. Kelleher was not strip searched. [ 19 ] Det. Camp remained behind to arrange for a tow truck to seize the vehicle and, while waiting, he conducted a further search of the vehicle.

Another cell phone was located under the driver’s seat which he seized. Camp then went back to the police station, processed the exhibits and attempted to contact the owner of the vehicle. There was no answer and he left a message for “Stella”. He received a message back saying that Kelleher did have permission to drive her vehicle. [ 20 ] In total, 35 individual pieces of crack cocaine in one baggy and four individual pieces of crack cocaine in a second baggy were found. Each piece weighed about .30 grams. The total cash seized from Heiberg was $805, which include a $100 bill and 34 $20 bills. III.

Issues [ 21 ] The Crown has conceded that there was a breach of the s. 10(

a) Charter right of each accused to be informed promptly of the reason for their detention and a further breach of their s. 8 Charter right to be secure against unreasonable search or seizure. [ 22 ] The accused further allege a breach of their s. 9 Charter right not to be arbitrarily detained and their s. 10(

b) Charter right to retain and instruct counsel without delay and to be informed of that right. The issues to be determined are whether Heiberg and Kelleher’s ss. 9 and 10(

b) rights have been infringed and whether any of the breaches should result in an exclusion of the evidence seized from Heiberg or the vehicle.

IV. Analysis A. Right to be Informed [ 23 ] Under s. 10(

a) of the Charter , everyone has the right on arrest or detention to be informed promptly of the reasons therefor. [ 24 ] The breach of s. 10(

a) occurred at the time when the stop under the Traffic Safety Act , R.S.A. 2000, c. T -6 for speeding and the u-turn progressed to a criminal investigation for possession of stolen property. According to the evidence, that occurred at about 4:20 a.m. [ 25 ] Det. Camp radioed for backup which arrived in the form of Cst. McKendrick at 4:25 a.m. Once McKendrick arrived, Heiberg and Kelleher were advised that they were under investigative detention for possible possession of a stolen vehicle. The s. 10(

a) breach relates to the five minute delay in providing them with that advice. B. Unreasonable Search [ 26 ]

Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. The s. 8 breach relates to Camp’s opening of the Juicy Fruit container to search its contents. He did so during what he believed to be a lawful search of the vehicle for weapons. He did not have a warrant. C. Arbitrary Detention [ 27 ] Det. Camp believed the vehicle operated by Kelleher to be travelling at a high rate of speed - approximately 90 kph in a 60 kph zone.

In my view, Camp was justified in relying on his estimate of the speed of the vehicle together with the u-turn it performed to detain the vehicle for a possible Traffic Safety Act violation. As long as his investigation remained one in which a traffic violation was at issue, and he was exercising powers afforded to him by the Traffic Safety Act , then there was no need for him to Charter and caution either of the individual accused. [ 28 ] During the traffic stop investigation, Camp was justified in asking a number of general questions relating to the ownership of the vehicle, registration and insurance.

Kelleher had already provided him with a valid driver’s licence. The questioning by Camp focussed on the circumstances by which the operator of the vehicle was in possession of it. They were routine questions asked for the purpose of ensuring that the documentation of the vehicle was in order and the qualifications of the driver were appropriate. [ 29 ] The two occupants of the vehicle, Heiberg and Kelleher, displayed a lack of knowledge as to the name of the actual owner of the vehicle. Kelleher initially advised that the owner of the vehicle was named Dennis.

Heiberg then said something like “she let us have it” implying that the owner was a female. Camp was then told that the owner was out of town and it was her boyfriend who let them have the car. When he asked for the registration and insurance, he observed Kelleher having difficulty in retrieving the documentation for the vehicle. Kelleher appeared very nervous. Camp then noticed a single key in the ignition which, to him, may have meant that the key was “shaved” allowing it to be used in any vehicle. Finally, Kelleher made an unsolicited statement that the vehicle was not stolen.

The combination of all of these factors led Camp to believe that the vehicle may have been stolen. [ 30 ] The accused point out that Kelleher stopped the vehicle when required and produced his driver’s licence when Camp approached the driver’s side window. Both accused were cooperative throughout the process and there was no damage seen to any part of the vehicle, including the ignition.

[ 31 ] In my view, the inability of the occupants of a vehicle to properly identify the owner of the vehicle constitute sufficient grounds alone to suspect a vehicle may be stolen. All of the other factors considered by Camp at the time strengthened that suspicion and in my view, provided ample grounds to suspect that the vehicle was stolen. [ 32 ] Investigative detention is permissible if there are reasonable grounds to suspect that the individual is connected with a particular crime and that such a detention is necessary: R. v. Mann , 2004 SCC 52 , [2004] 3 S.C.R. 59 at para. 45 .

Kelleher and Heiberg argue that even if there were sufficient grounds to suspect that the vehicle may be stolen, there were insufficient grounds to remove them from the vehicle, place them in an investigative detention and do a pat down search. That is, they argue that the nature of the possible offence did not justify the police taking those steps. [ 33 ] As stated above, Camp had reasonable grounds to suspect that the vehicle may have been stolen. In my view, this provided him with reasonable grounds to place the two accused in an investigative detention and to remove them from the vehicle.

Camp indicated that he wanted them out of the vehicle as he was concerned about a flight risk. He had had a previous experience in which this had occurred. He also believed that a pat down search incidental to an investigative detention was appropriate. [ 34 ] It would have been difficult for Camp, who was alone at the time, to engage in investigative steps to ascertain the status of the vehicle without risking the flight of one or both of the two occupants. Further, Camp’s call for backup indicates that he did not feel equipped to deal with the situation on his own.

This was reasonable given the fact that he alone had stopped a speeding vehicle in the early morning hours containing two men who he suspected may well have stolen the vehicle. [ 35 ] The accused argue that Camp knew the name of the registered owner and had an obligation to call her before placing them in investigative detention. I agree that he had an obligation to call the registered owner but do not agree that he was obliged to do so before placing the accused under investigative detention.

A call to the registered owner would properly be part of his investigation but on the basis of the information available to him at the time and the particular circumstances he faced, he was entitled to place them in investigative detention before making the call. [ 36 ] Det. Camp was investigating an offence in relation to a possible stolen vehicle. The subject matter of the offence was the vehicle in which the two accused were occupants. Although theft of a vehicle does not necessarily involve weapons or violence, police officers are entitled to take reasonable steps for their own safety: R. v.

Mann at paras. 40, 45 . Camp was alone and had stopped a possibly stolen speeding vehicle containing two men in the early morning hours. A lone officer in such circumstances would be justified in having concerns for his own safety.

The initial detention was justified under the Traffic Safety Act and Camp was entitled to take reasonable steps for his safety and that of others, including delaying further engagement with the accused for several minutes until backup arrived. [ 37 ] Further, in the circumstances existing at the time when backup arrived, it was reasonable for Camp to instruct a pat down search of Heiberg and it was reasonable for McKendrick to rely on Camp’s knowledge of the circumstances when giving that instruction.

It was also reasonable for Camp to conduct a pat down search of Kelleher. [ 38 ] The s. 9 Charter right of each accused not to be arbitrarily detained was not breached. D. The Right to Obtain and Instruct Counsel [ 39 ] Under s. 10(

b) of the Charter everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. [ 40 ] Between 4:20 a.m. and 4:25 a.m. Heiberg and Kelleher were under investigative detention. They were only advised of such after the arrival of McKendrick at 4:25 a.m., following which a pat down search of each occurred. A knife was found on Heiberg. Camp then began a search of the vehicle and found the crack cocaine in the Juicy Fruit container at 4:31 a.m. McKendrick Chartered and cautioned Heiberg at 4:34 a.m. and Kelleher at 4:36 a.m.

Each of them indicated they understood their right to counsel and said that they did want to exercise that right and speak to a lawyer. They both also indicated that they had nothing further to say.

[ 41 ] The knife was discovered on Heiberg sometime between 4:26 a.m. and 4:31 a.m. The crack cocaine was found at 4:31 a.m. Heiberg was Chartered and cautioned at 4:34 a.m. There is no evidence of anything transpiring between 4:31 a.m. and 4:34 a.m. that may have somehow prejudiced Heiberg and I do not believe that the brief delay in Chartering and cautioning him amounted to a breach of his s. 10(

b) right. Officer safety was a paramount consideration of Camp and McKendrick during that time. [ 42 ] The same analysis applies to Kelleher. The pat down search was incidental to his investigative detention and once a knife was found on Heiberg, officer safety was even a more pressing concern of Camp and McKendrick. Kelleher was Chartered and cautioned at 4:36 a.m. and in the circumstances, I do not find that the brief delay resulted in any breach of his s. 10(

b) Charter right. E. Exclusion of Evidence [ 43 ] There has been an acknowledged breach of the accused’s s. 10(

a) Charter right to be informed promptly of the reasons for their arrest or detention and a breach of their s. 8 Charter right to be secure against unreasonable search of seizure. [ 44 ] Section 24(2) of the Charter provides: 24(2) Where...a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 45 ] In R. v.

Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 , the Supreme Court of Canada directed that a s. 24(2) analysis requires a court to 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 breach; 2. The impact of the breach on the protected interests of the accused; 3. Society’s interest in the adjudication of the case on its merits. 1. Seriousness of the breach [ 46 ] The accused were stopped for speeding and an illegal u-turn. Det.

Camp was entitled, under ss. 166 and 167 of the Traffic Safety Act to stop the vehicle and request information and documentation from the driver of the vehicle and any passengers in the vehicle, and the accused were obliged to remain stopped for that purpose until permitted to leave. They knew the initial reason for the detention. The Alberta Court of Appeal in R. v. Dhuna , 2009 ABCA 103 , 448 A.R. 296 cautioned against drawing a bright line between traffic safety concerns and an investigation of a possible stolen vehicle. A police officer is entitled in a routine traffic stop to verify vehicle registration.

In this particular case, as a result of discussions arising from production of the documents, an issue arose as to the circumstances under which the occupants had the owner’s permission to drive the vehicle. [ 47 ] Det. Camp waited approximately five minutes to provide his reasons to the two accused for their detention because of a bad experience he had had in similar circumstances, and the possibility that they would either fight or take flight. He wanted to wait for backup.

Once the backup arrived, approximately five minutes after he had formulated grounds for a criminal investigation, he advised each of the accused that they were under investigative detention. [ 48 ] Det. Camp deliberately delayed informing Heiberg and Kelleher of the reasons for their detention. The delay totaled approximately five minutes. While deliberate, Camp’s grounds for doing so lead to the conclusion that the s. 10(

a) breach was not serious in all of the circumstances.

[49] Regarding the s. 8 breach, Det. Camp was operating on the basis of a belief that the subject vehicle may have been stolen. Hehad reasonable grounds for that belief. A weapon was then found on Heiberg. Heiberg was then arrested by McKendrick. Once theweapon was found on Heiberg, the occupant of a vehicle suspected to be stolen, Camp believed it possible that there were additionalweapons in the subject vehicle. This was a reasonable belief. In all of the circumstances existing at that time, it was objectivelyreasonable for Camp to search the vehicle for the possible presence of other weapons.

There was sufficient circumstantial evidence tojustify a search (see R. v. Caslake, (SCC), [1998] 1 S.C.R. 51). It was a lawful search incidental to the arrest ofHeiberg for possession of a prohibited weapon and a weapon dangerous to the public peace. [50] Det. Camp testified that his experience in drug investigations informed him that the Juicy Fruit container, and similarcontainers, are often used in the drug trade for carrying drugs.

While he also indicated that the ringing cell phone (though not ringinguntil after he discovered the crack cocaine in the container) and the finding of a wad of cash and a weapon on Heiberg all would haveprovided sufficient grounds to obtain a warrant, those were not the grounds he articulated as existing at the time he searched the contentsof the container. The information he relied on to search the container was the knowledge he had gained as a drug investigator as to theuse of those types of plastic containers.

The question is whether the search of the container was a serious infringement of the s. 8 right ofthe accused’s right to be secure from unreasonable search. [51] In the process of conducting his search for weapons, Camp discovered the Juicy Fruit container. While it could never beargued that a weapon of any kind, such as a miniature gun or diminutive knife, could have been secreted in the container, Camp wasinvolved in a lawful search of the vehicle for weapons.

His subjective belief as to the contents of the container based on previousexperience, together with the finding of a wad of cash and a knife on Heiberg may well have justified the granting of a search warrant atthe time. Later evidence of a consistently ringing cell phone would have provided additional support for the obtaining of a warrant had aninformation been later sworn to obtain one. [52] Whether or not an individual has a subjective expectation of privacy, and whether or not that expectation is objectivelyreasonable, is an assessment to be made having regard to the totality of the circumstances: R. v.

Edwards, (SCC),[1996] 1 S.C.R. 128, R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851. Drivers ordinarily have some expectation of privacy in theirvehicles, although it is greatly reduced in comparison to that expected of a home or office and it is further reduced when the car belongsto another: R. v. Belnavis, (SCC), [1997] 3 S.C.R. 341. [53] In short, Det. Camp’s search of the vehicle for weapons was lawful. He had the authority to conduct the vehicle search. Hiserror related to the scope of the search undertaken; he essentially used the occasion of the lawful search to expand the scope based onsuspicion only.

This militates toward a finding of a serious breach. However, Heiberg and Kelleher had a reduced expectation of privacyin the vehicle as it belonged to another person, and Camp thought it was possibly stolen. These factors weigh somewhat against theseriousness of the breach. Given all of the circumstances, the s. 8 breach in this case, while not trivial, was not an egregious one. 2. Impact on the Accused [54] Any impact on the accused of the s. 10(

a) breach was minimal. They were properly detained under the powers provided forby the Traffic Safety Act. The change in jeopardy to suspicion of vehicle theft related to ownership of the vehicle, which again was aproper inquiry under the Traffic Safety Act. The accused were aware from the discussion which had gone on that the circumstance oftheir possession of the vehicle was in issue. In fact, Kelleher offered the information that the vehicle was not stolen. Nothing arose as aresult of the five minute delay in advising the accused of the reason for their continued detention.

There was little to no impact on theaccused. [55] As for the s. 8 breach, neither Kelleher nor Heiberg owned the vehicle. So the first question is whether there is a reasonableexpectation of privacy in a Juicy Fruit container located in a pouch in a passenger door of a vehicle that is not owned by either of theoccupants. What was the impact due to the s. 8 breach in this case on any protected interests of these accused? [56] As mentioned above, the expectation of privacy in a vehicle is less than that in one’s home (see Belnavis and Grant).

In thiscase, the expectation of privacy would be even further reduced by the fact that the operator of the vehicle, Kelleher, was not the owner. [57] While Heiberg, as passenger, also had less of an expectation of privacy than the owner or driver of the vehicle, he did havesome reduced expectation of privacy with respect to the area surrounding him in the vehicle (see Belnavis at para. 22 and R. v. Logan,2005 ABQB 321).

[ 58 ] Kelleher, as the driver of the vehicle with the consent of the owner, and Heiberg, who was seated in the vicinity of the Juicy Fruit container, arguably have standing to assert this Charter right. I have accepted that they do for the purposes of considering the impact of the unreasonable search of the Juicy Fruit container on them. [ 59 ] As stated by the court in Grant at para. 78 , an unreasonable search may not only impact on the protected interests of privacy but also on the greater interests of human dignity.

Where the individual reasonably enjoys a high expectation of privacy, or the search demeans his or her dignity, the breach is more serious than would otherwise be the case. In the circumstances of this case, neither Kelleher nor Heiberg enjoyed a high expectation of privacy.

Nor did the search of the Juicy Fruit container demean the dignity of either. [ 60 ] The reasonable expectation of privacy that Kelleher and Heiberg may have in the contents of the Juicy Fruit container, while less than that which might be expected by an owner operator of the vehicle, when considered alone, operates to favour the exclusion of the evidence in this case.

However, in my view the drugs ultimately would have been discovered in this case in any event, due to the finding of a weapon and the wad of cash during the pat-down of Heiberg, Camp’s sighting of the Juicy Fruit container during the search for a weapon, and the constantly ringing cell phone.

Although Camp articulated his reason for searching the Juicy Fruit container as being the knowledge he had gained in drug investigations, an officer in his shoes considering the entirety of the information available to them at the scene would have had grounds to search the container by the time the search for weapons was completed. This factor considerably mitigates the impact on the accused’s protected interests. That is, in all of the circumstances the impact on the accused’s protected interests was minimal and would favour inclusion of the evidence. 3.

Society’s Interest in an Adjudication on the Merits [ 61 ] The Supreme Court in Grant acknowledged the general expectation of society that criminal allegations will be adjudicated on their merits and posed the third line of inquiry relevant to the s. 24(2) analysis as whether the truth-seeking function of the criminal trial process will be better served by admission of the evidence or by its exclusion (at para. 79). Some of the factors to be considered include the reliability of the evidence, the importance of the evidence to the prosecution’s case and the seriousness of the offence ( see also R. v.

Harrison , 2009 SCC 34 , [2009] 2 S.C.R. 494 ). [ 62 ] It is a delicate balance when considering the seriousness of the offence as the failure to prosecute a serious charge may have an impact on how people view the justice system. However, it is the long term repute of the justice system that is the focus of this analysis and while the public has a high interest in seeing a determination on the merits of a serious offence, it also has a vital interest in having a justice system that is above reproach ( Grant at para. 84 ). [ 63 ] The evidence seized from the vehicle in this case was real evidence.

There was a total of 39 individual pieces of crack cocaine found in the Juicy Fruit container. This evidence is non-conscriptive and reliable. It is clearly important evidence to the Crown’s case, and without it, the Crown’s case as it relates to the drug charge will fail. Possession of crack cocaine for the purpose of trafficking is a very serious offence. [ 64 ] In all of the circumstances of this case, I believe that the long term repute of the justice system will be diminished if the evidence seized in this case is excluded.

Accordingly, in considering the factors relevant to this issue, I conclude that the admission into evidence of the contents of the Juicy Fruit container would not bring the administration of justice into disrepute. Conclusion on Section 24(2) [ 65 ] In considering all of the facts, I have determined that the nature of the conduct of Det. Camp was not a serious breach of the Charter rights of either Kelleher or Heiberg.

I believe that a reasonably informed member of the public would understand the reasons why Camp delayed advising the accused of his suspicion that the vehicle was stolen and why he searched the vehicle, and would view his looking inside the Juicy Fruit container in the context of all of the information available to the officers at the scene. His conduct would not demean public confidence in the adherence by the police to the rule of law. While a breach of the Charter rights of the two accused did occur, the impact on their interests was not significant.

Finally, I believe that the criminal trial process is better served by the admission of the evidence and allowing the matter to be adjudicated on the merits.

[ 66 ] The physical evidence in therefore admissible. V. Conclusion [ 67 ] The Crown conceded a breach of the accused’s s. 8 and s. 10(

a) Charter rights. The Court has found no breach of their s. 9 or s. 10(

b) rights. The evidence seized is admissible under s. 24(2) of the Charter . Heard on the 21 st , 22 nd and 25 th days of March 2011. Dated at the City of Edmonton, Alberta this 25 th day of March 2011. Eric F. Macklin J.C.Q.B.A. Appearances: Ms. Monique Dion for the Crown Ms. Anna Konye Pringle MacDonald & Bottos for Gunnar William Heiberg Mr. Jordan Stuffco Davidson Gregory Danyliuk Stuffco for Samuel Hudson Helleher