R. v. Mian, 2011 ABQB 290

Court of Queen ’ s Bench of Alberta Citation: R. v. Mian, 2011 ABQB 290 Date: 20110429 Docket: 090019043Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Mohammed Hassan Mian Applicant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I. Introduction [ 1 ] The Accused, Mohammed Hassan Mian, is charged with possession of cocaine and currency obtained by the commission of an offence.

Mian applies to exclude all evidence seized from his person and his vehicle on the grounds that the police arbitrarily detained and arrested him contrary to s. 9 of the Charter , performed an unreasonable search and seizure contrary to s. 8, and failed to advise him of the reason for his detention and his right to counsel contrary to ss. 10(

a) and 10(b). II. Evidence A. Background Facts

[ 2 ] In 2008, the Edmonton Police Service were investigating a number of homicides and attempted homicides that had occurred in Edmonton, Alberta. Robin Flynn Chelmick (“Chelmick”) was one of the principal targets of the investigation. The investigation included surveillance of Chelmick’s activities and interception of his private communications. [ 3 ] The police commenced surveillance on September 2, 2008. They obtained a wiretap authorization and began intercepting Chelmick’s private communications on November 20, 2008.

The investigation continued into January 2009. [ 4 ] Detective Werth (then Constable Werth) was the lead investigator. Between 20:12 on January 5, 2009 and 15:37 on January 6, 2009, six telephone calls were intercepted from Chelmick’s line. The calls were either originated by Chelmick or received by him and were between Chelmick and an individual identified as “Jay”. Chelmick and Jay were careful not to divulge names or anything that might indicate to a listener that they were arranging a drug transaction. The six calls all related to a drug transaction for the purchase by Jay of 0.5 kg of cocaine.

Chelmick was acting as the middle man (“middler”), Jay was the purchaser and the supplier remained unidentified. The intercepted communications revealed that the transaction was scheduled to occur at 16:30 at “Duke’s Pub”. [ 5 ] Detective Werth arranged visual surveillance at Chelmick’s home on St. Thomas Street in St. Albert. Surveillance was in place by 16:02 on January 6, 2009. [ 6 ] At 16:14, Chelmick drove away from his home in a white Infiniti which was followed by a Pontiac G6 rented from Enterprise Rent-a-Car in Calgary.

The G6 followed the Infiniti to Duke’s Bar and Grill at 127 Street and 151 Avenue in Edmonton. The Infiniti pulled into the Duke’s Bar parking lot while the G6 continued northbound along 127 Street and parked in a 7-11 parking lot on 153 Avenue. At that point, surveillance was discontinued on the G6. [ 7 ] At 16:41, the Infiniti parked alongside a black Cadillac Escalade which was already parked in the Duke’s Bar lot. Two unidentified males exited the Cadillac and entered the Infiniti. [ 8 ] At 16:47, a grey Chevrolet Malibu pulled into the lot with a lone male driving.

The Malibu was also rented from Enterprise in Calgary. It parked beside the Infiniti. [ 9 ] At 16:48, Chelmick exited the driver’s side of his Infiniti and got into the passenger side of the Malibu. Chelmick then left the Malibu and got back into the driver’s seat of the Infiniti. He was in the Malibu for approximately 30 seconds. [ 10 ] At 16:49, the two unidentified males exited the Infiniti and returned to the Escalade. All three vehicles then left the Duke’s Bar parking lot with the Infiniti and Escalade proceeding northbound on 127 Street and the Malibu heading southbound.

The driver of the Malibu was described as an “olive skinned driver/approx. 23 years old with long thin sideburns, wearing a black ball-cap”. Detective Werth believed the operator of the Malibu to have been the supplier of the cocaine. [ 11 ] The Malibu travelled to the parking lot of a Pizza 73 location at 132 Avenue and 127 Street in Edmonton, arriving at 16:57. The Malibu remained in the parking lot, with no one entering or exiting the vehicle, until 17:03. The Malibu then proceeded southbound on 127 Street. [ 12 ] At 17:20 the Malibu arrived at an A&W location at 101 Avenue and 75 Street.

It remained in the parking lot of the A&W until 17:34. [ 13 ] In an intercepted communication from Chelmick’s cellular phone at 17:13, Jay expressed to Chelmick his displeasure at the quality of the cocaine he had received. The conversation ended with Chelmick telling Jay that he would call him back.

[ 14 ] At 17:34, the Malibu left the A&W and proceeded southbound on 75 Street. [ 15 ] At 17:35, another intercepted communication between Jay and Chelmick revealed that Chelmick was going to meet with the supplier somewhere on the south side to get Jay’s money back. He would then try to meet with another supplier who might have higher quality cocaine which he would pick up and take to Jay in exchange for the lower quality cocaine. [ 16 ] At 17:55, the Malibu arrived at an Enterprise car rental office at 38 Avenue and 99 Street in Edmonton.

Chelmick’s Infiniti was already parked in the lot with Chelmick standing outside the vehicle. He walked up to the Malibu, opened the front passenger door and leaned into the vehicle, talking to the driver. [ 17 ] After a very brief conversation, Chelmick closed the passenger door of the Malibu and got back into his Infiniti. He then drove away northbound on 99 Street. Visual contact with the Malibu was then broken. [ 18 ] Between 17:55 and 18:09, Chelmick drove the Infiniti to an underground parking lot at Commerce Place in downtown Edmonton. At 18:15, Chelmick was seen getting into his vehicle.

An unknown male was getting into the passenger seat. The Infiniti then travelled to 127 Street and 127 Avenue where Chelmick and the other individual went into the rear of the premises of Anonymous Tattoo at 18:30. [ 19 ] At 18:40, the Infiniti proceeded northbound in the alley behind the tattoo shop and returned to Duke’s Bar and Grill at 127 Street and 151 Avenue, arriving at 18:46. [ 20 ] At 18:43 another communication was intercepted between Chelmick and Jay.

The essence of the conversation was that another exchange was to take place at 19:00, but since the parties were both there Chelmick indicated that he would make the switch “right now”. [ 21 ] Between 18:46 and 18:52, Chelmick and the other individual in the Infiniti remained in the vehicle with no one entering or leaving.

At 18:52 Chelmick and the other individual got out of the Infiniti and went into Duke’s Bar. [ 22 ] At 18:53, another conversation between Jay and Chelmick was intercepted wherein Chelmick advised that he was waiting for his “buddy” who “should be here in a couple minutes...” [ 23 ] At 19:00, an Escalade similar to the one that had been there earlier entered the Duke’s Bar lot and parked beside Chelmick’s Infiniti. An unidentified male exited from the driver’s seat while, at the same time, Chelmick came out of Duke’s Bar into the parking lot. The unidentified male got back into the Escalade and closed the door.

Chelmick approached the passenger side of the Escalade and appeared to be talking through an open window. [ 24 ] At 19:01, while Chelmick was apparently speaking with the driver of the Escalade, a G6 similar to the one seen earlier in the day pulled into the lot. [ 25 ] At 19:02 the Escalade left the parking lot. Chelmick went up to the G6 and had a brief conversation with the driver. He walked away from the G6 to the driver’s side of his Infiniti, opened the door for a few seconds and did something inside the vehicle. He then closed the driver’s door and ran back to the front doors of Duke’s Bar.

The G6 drove away from the lot. [ 26 ] At 19:17, the Malibu returned to the lot and parked a few stalls away from the Infiniti. Chelmick came out of Duke’s Bar and ran in the direction of his Infiniti. The individual in the Malibu got out of the driver’s side as Chelmick ran towards his Infiniti. The driver then got back into his car and closed the door.

[ 27 ] At 19:18, Chelmick went to the driver’s side of his Infiniti and opened the door. He leaned inside for a moment and appeared to take something out of the vehicle which he seemed to hold under his left arm. He went up to the passenger door of the Malibu, opened it and leaned inside. He spoke to the driver and then closed the door. Whatever he had been carrying in his left hand was no longer in his left hand and he ran back to Duke’s Bar. The Malibu drove away southbound onto 127 Street. [ 28 ] At 19:19, the Malibu proceeded southbound on 127 Street from the parking lot of Duke’s Bar to Yellowhead Trail.

It then proceeded east to the area of 17 Street, south of Baseline Road, where a marked Edmonton Police patrol car stopped the vehicle at 19:40. Constable Michael McGill was driving the police vehicle and Constable Dennis Dalziel was riding as a passenger. [ 29 ] According to the surveillance, the two officers approached the Malibu at 19:41 and one of them spoke to the driver of the vehicle. At 19:42, the two officers were back in the patrol car with the driver of the Malibu still sitting in the driver’s seat of the Malibu.

Constable Drynan, a member of the surveillance team, indicated that he noticed the driver reaching over to the front passenger seat area and doing something with his hands, possibly between the seats or under them. At 19:44, the two officers returned to the Malibu, the driver was taken out of the vehicle, searched, handcuffed and taken back to the police vehicle. Drynan had been observing the Malibu through binoculars at right angles to the passenger side. It was dark and there was very little street light. He could not recall if the interior lights of the Malibu were on.

His vehicle was parked about 100 feet from the Malibu. [ 30 ] At 19:46 one of the officers went back to the Malibu and searched the vehicle. He removed something from the passenger side door area and placed it on the roof of the car. At that point, surveillance terminated. [ 31 ] The Malibu was found to contain 539 grams of cocaine with an estimated street value of between $22,000 and $30,000. Two bundles of Canadian currency were found on Mian at the time of arrest. One bundle contained $1,600 in $100 denominations and the second bundle contained $1,110 in 15 x $50 denominations and 18 x $20 denominations.

In addition, the sum of $1,340 made up of denominations of $100, $50, $20, $10 and $5, were found in a bundle located in the centre console of the vehicle. The total value of the currency located and seized by the police from Mian and his vehicle was $4,050. B.

Expert Evidence [ 32 ] Corporal James Janczek provided expert evidence to the Court for the purposes of interpreting the jargon used in the intercepted telephone conversations between Chelmick and Jay and explaining the two transactions that occurred at Duke’s Bar and Grill. [ 33 ] It was Janczek’s opinion that Chelmick acted as the middler to facilitate the purchase of 0.5 kg of cocaine by Jay from Mian, the operator of the Malibu.

He testified that the actions of the individuals in the Escalade were consistent with those of a buyer while the actions of the individual operating the Malibu were consistent with those of a supplier. [ 34 ] According to Janczek, the first meeting at Duke’s Bar was for the purpose of Chelmick facilitating the purchase of the 0.5 kg of cocaine by Jay from Mian. The purpose of the second meeting at Duke’s Bar was to exchange the 0.5 kg of cocaine initially supplied by Mian to the individuals in the Escalade for better quality cocaine.

Mian’s return to Duke’s Bar was for the purpose of having Chelmick return the original unsatisfactory cocaine to him. [ 35 ] Janczek conceded that the involvement of the G6 might suggest that it was also associated with Chelmick and could have been either a supplier, or a purchaser, or even a minion providing security. However, it was his opinion that the actions that took place at Duke’s Bar involving the Malibu were consistent with the transactions having occurred at Duke’s Bar though there may have been another later transaction involving the G6. C. Evidence of the Arresting Officers

[ 36 ] Constables McGill and Dalziel were not part of either the investigating team or the surveillance team. They came on duty at 17:00 on January 6, 2009. Once in their police vehicle they received a telephone call from Detective Werth, the lead investigator and the coordinator of the surveillance team. They were asked to meet Werth at headquarters. [ 37 ] At 18:45, McGill and Dalziel met with Werth at Police Headquarters. They were advised that surveillance was in place with respect to an individual involved in a drug transaction who was believed to have drugs in his vehicle.

They were provided with a surveillance radio so that they could listen to the surveillance reports as they were transmitted and were advised that at some point, they would be instructed by Werth to stop the target vehicle, a Chevrolet Malibu. [ 38 ] They were told that once they received instructions to stop the target vehicle, they were to make every effort to find appropriate grounds to search the vehicle without having to rely on the information provided by Werth.

They were not advised of the extent of the investigation and told to try and obtain their own grounds for searching the vehicle so that the overall and ongoing investigation would not be compromised. Werth said he did not want the ongoing investigation compromised, so he did not want the driver of the target vehicle to know that the police had been conducting surveillance of Chelmick and others. [ 39 ] Constables McGill and Dalziel were told to make a “cool” stop, or a routine traffic stop of the vehicle, once instructed to effect a stop.

The targeted car was a rental vehicle and there were already grounds to arrest the driver which would be relied upon if they could not establish their own grounds to do so. [ 40 ] After meeting with Werth, McGill and Dalziel left in the police vehicle and arrived in the area of Duke’s Bar between 19:15 and 19:30. They parked a few blocks away. The target vehicle, the Malibu, was moving and proceeding southbound along 127 Street. A surveillance vehicle was following the Malibu. McGill and Dalziel followed behind.

They were approximately eight or ten blocks behind the target vehicle. [ 41 ] The Malibu headed east on Yellowhead Trail to 17 Street. Werth then instructed McGill and Dalziel stop the Malibu. They were to perform a normal traffic stop as though they had received none of the information passed on by Werth. [ 42 ] At approximately 19:40, the overhead lights were activated and the Malibu was pulled over to the side of the road. The police vehicle parked about 40 feet behind it with its lights focussed on the Malibu. [ 43 ] Constable Dalziel noted that it was a rental vehicle by a sticker on the back bumper.

He punched the licence plate number into the computer in the police vehicle. A CPIC check confirmed that it was not stolen. McGill testified that it was his normal practice to pull over rental vehicles to ensure that they were not stolen. [ 44 ] The two officers exited the police vehicle and McGill approached the driver’s side of the Malibu. Dalziel approached the passenger side. McGill recognized the driver immediately as Mian who he said had a history of, or association with, violent activities. He asked Mian for identification and the vehicle documents.

While both Constables noted that Mian appeared to be shaking and nervous, they also noted that he was wearing shorts and the temperature outside was below -12 degrees Celsius. [ 45 ] Constable McGill signalled to Dalziel that the driver was Mian and then advised Dalziel that he had had some past dealings with Mian. [ 46 ] The two officers then returned to the police vehicle and Dalziel put the information from Mian’s driver’s license into the computer. They received information back that Mian had been subject to a weapons prohibition. [ 47 ] Constable Dalziel then received a telephone call from Werth.

Werth told Dalziel that Mian was reaching under the seats of the vehicle and that they, being Dalziel and McGill, should go to the vehicle, get Mian out and arrest him. McGill testified that he also noticed Mian reaching forward towards the front passenger compartment or foot well of the vehicle.

[ 48 ] McGill indicated to Dalziel that he was going to get Mian out of the vehicle. Both officers left the police vehicle to do so. They approached the driver’s side of the Malibu, opened the door and directed Mian to get out of the vehicle. Dalziel testified that he was concerned as to what was underneath the seats. McGill testified that he had officer safety concerns when he saw Mian reaching forward in the vehicle.

He testified that he went to the Malibu very quickly and, as he did so, he had his hand on his gun though he did not remove it from the holster. [ 49 ] When Mian got out of the vehicle, he had a cell phone in his hand which McGill placed on the roof of the vehicle. He then handcuffed Mian and conducted a pat down search. He found no weapon but he did find $2,710 in cash. Both officers then looked in the Malibu for something visible that might justify a search. They did not see anything. Mian was then taken back to the police vehicle and placed in the back. McGill got into the driver’s seat.

Dalziel got into the front passenger seat. [ 50 ] After a minute or two, Constable Dalziel went back to the Malibu and conducted a search. Under the passenger seat he found a large amount of cocaine, which he thought to amount to 0.5 kg. Dalziel returned to the police vehicle and advised Mian that he was under arrest for possession for the purposes of trafficking. This occurred at 20:02. Between 20:04 and 20:07, Dalziel Charter ed and cautioned Mian. [ 51 ] While Dalziel was doing so, McGill went back to the Malibu to conduct a further search.

He testified that as he approached the vehicle, he noticed a small baggie with about two ounces of cocaine in plain view between the seats. He also seized $1,340 in cash from the center console, another cellular phone and Mian’s wallet. [ 52 ] The officers testified that throughout the questioning, Mian appeared very nervous and was repeating each question as it was asked of him by McGill. However, they both confirmed that Mian was cooperative with them throughout the process. [ 53 ] A call was then made for a tow truck to attend and seize the Malibu.

Mian was taken to the southwest police station, searched and held. [ 54 ] Constables Dalziel and McGill acknowledged that at no time did they believe they had sufficient grounds, independent of Werth’s grounds, to search the Malibu or arrest Mian before McGill saw Mian lean forward in the vehicle. Indeed, just before McGill saw Mian lean forward, one of them stated that “we’ve got nothing” to arrest him. Mian had not committed any traffic safety offence. From the moment they stopped him, they planned to arrest Mian and he would not be free to leave.

Mian was never advised that he was under detention prior to being advised by Dalziel that he was under arrest. Nor was he advised why he was being detained. He was not advised why he was being handcuffed nor why he was being patted down. [ 55 ] Constable McGill was adamant in stating that his basis for removing Mian from the vehicle and searching the vehicle was a concern for officer safety, which manifested itself when he saw Mian reaching forward in his vehicle for about 5 to 6 seconds.

While Mian could have been doing anything, such as reaching for the vehicle rental papers or other documents, or the telephone he was holding when McGill returned to the vehicle, McGill stated that his concern was that Mian may indeed have been reaching for a weapon of some sort. III. Issues [ 56 ] Mr.

Mian asserts the following Charter breaches and remedy: A. he was arbitrarily detained on the initial stop of his motor vehicle, when he was removed from the vehicle and when he was subsequently handcuffed (s. 9 of the Charter ); B. the pat down search by Constable McGill and the searches by Constables McGill and Dalziel of his vehicle were unreasonable (s. 8);

C. he was not informed promptly of the reasons for his detention nor of his right to retain and instruct counsel without delay (ss. 10(

a) and (b)); D. the admission of evidence seized would bring the administration of justice into disrepute and should therefore be excluded (s. 24(2)). IV. Discussion A. Arbitrary Detention [ 57 ]

Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. [ 58 ] Constable McGill testified that he had authority under the Traffic Safety Act to stop the Malibu to ensure that the driver had a valid licence and the vehicle documents were in order. While he may have had that authority under the Act, that is not the reason why the Malibu was stopped nor was that reason even contemplated by McGill land Dalziel at that time. Mian’s vehicle was stopped because McGill and Dalziel received instructions from Werth to stop it.

Werth believed that the vehicle contained a significant amount of cocaine. While Werth instructed McGill and Dalziel to try and establish their own grounds to arrest the driver, he also made it clear at 18:45 that there were already grounds to arrest the driver which they could rely upon in the event they were unable to establish their own grounds to do so. [ 59 ] Mian takes the position that Werth did not have reasonable and probable grounds to direct McGill and Dalziel to stop the vehicle.

Mian points to the fact that Werth did not know (and never knew) who was driving the Malibu and continuity of the Malibu was lost between 17:55 and 19:17 when it returned to Duke’s Bar the second time. Further, he says that the vehicle was seen at the rental lot and a reasonable inference could be drawn that it was being returned.

Werth did testify that he did not know if the vehicle had any money or drugs in it when it was last seen nor did he know that it would be returning to Duke’s Bar to complete the second transaction. [ 60 ] The intercepted communications and the initial surveillance at Duke’s Bar between 16:41 and 16:49 satisfied Werth that the driver of the Malibu was the supplier. While he could not have been absolutely sure at that time, it was a reasonable conclusion to draw from the facts before him.

Importantly, the communications intercepted later, beginning at 17:13, relating to Jay’s displeasure at the quality of the cocaine and its exchange, as well as the meeting between Chelmick and the driver of the Malibu at the Enterprise lot, and then the appearance of the Malibu at Duke’s Bar at the time of the second transaction, all provided ample basis to reasonably conclude that the operator of the Malibu was the original supplier and in possession of the returned cocaine when he left Duke’s Bar the second time. [ 61 ] The Crown’s position is aided by the expert evidence of Corporal Janczek.

While Janczek was hesitant to draw any absolute conclusions based on limited information and the rather cryptic or coded intercepted telephone communications, he was able to assess the evidence that had been available to Werth and he too ultimately reached the conclusion that it was consistent with Chelmick acting as the middler facilitating the purchase of 0.5 kg of cocaine by “Jay” from Mian.

He further opined that the second transaction at Duke’s was for the purpose of facilitating an exchange of the cocaine initially supplied by Mian for better quality cocaine with the original unsatisfactory cocaine returned to Mian. [ 62 ] At 18:45, Werth advised McGill and Dalziel that there were already grounds to arrest the driver of the Malibu.

The only basis upon which he could have concluded that the driver was “100% arrestable” at that time was that he was convinced that the drug transaction had occurred and he had sufficient evidence from the intercepted communications that the Malibu driver was the supplier. I find that after the second transaction at Duke’s bar, Werth had reason to believe that the Malibu then contained the cocaine initially supplied by the driver of the Malibu but returned because of its poor quality.

Therefore, notwithstanding what Werth may have believed when he first spoke with McGill and Dalziel around 18:45, he did have reasonable and probable grounds to believe that the driver of the Malibu was in possession of a significant quantity of cocaine after the second transaction at Duke’s Bar. [ 63 ] In

summary, the intercepted telephone communications combined with the observations of the surveillance team as to the events that occurred during and between the two transactions at Duke’s Bar provided an objective basis to believe that the driver of the

Malibu was involved in the drug transaction as a supplier. Detective Werth’s conclusion to this effect and his conclusion that the drugswere in the Malibu when he instructed McGill and Dalziel to stop the vehicle were both justified on an objective analysis and rationallyprovided Detective Werth with the subjective belief that reasonable grounds did exist. That is, he had reasonable and probable grounds tobelieve that the driver of the Malibu was in possession of a significant quantity of cocaine when he instructed McGill and Dalziel to stopthe vehicle.

Further, McGill and Dalziel were entitled to rely on the reasonable and probable grounds held by Detective Werth when heprovided instructions to stop the vehicle. [64] An arresting officer is entitled to rely on the instruction of another officer when detaining and arresting (R. v. Debot, (SCC), [1989] 2 S.C.R. 1140). The critical question is whether the directing officer possessed reasonable and probablegrounds required for the arrest to be valid.

Wilson J. in Debot held at paras. 49 that it was immaterial what knowledge the arrestingofficer had when executing the request of another officer, because the arresting officer was simply following orders and had no decisionto make upon which to bring his own knowledge and belief to bear. She held that it would have made no difference in that case had thearresting officer known nothing about the case and had merely been on patrol in the area at the opportune time.

Wilson J. explained: 50 The police officer who must have reasonable and probable grounds for believing a suspect is in possession of a controlled drug is theone who decides that the suspect should be searched. That officer may or may not perform the actual search. If another officer conductsthe search, he or she is entitled to assume that the officer who ordered the search had reasonable and probable grounds for doing so. Ofcourse, this does not prove that reasonable grounds actually existed.

It does make clear, however, that the pertinent question is whetherSergeant Briscoe and not Constable Birs had reasonable and probable grounds... [65] I would emphasize at this point that notwithstanding the fact that officers do have the right to stop vehicles under the TrafficSafety Act for limited purposes, McGill and Dalziel never intended to effect such a stop. The sole basis for stopping the Malibu was theirreliance on Werth’s direction. At the time he directed them to stop the vehicle, they did so on the basis of their belief that Werth hadgrounds.

They were entitled to rely on Werth’s direction and belief and the stopping of the Malibu was not arbitrary. [66] After obtaining Mian’s identification and whatever other documents he provided, McGill and Dalziel returned to the policevehicle. They began checking the information provided to them. Dalziel then received a telephone call from Werth telling him that Mianwas reaching under the seats of the vehicle and directing him to go to the vehicle, get Mian out and arrest him.

McGill also noticed Mianreaching forward towards the front passenger compartment or foot well of the vehicle and testified that he had officer safety concerns.McGill and Dalziel got out of the police vehicle and McGill rushed back to the Mian vehicle, directed Mian to get out, handcuffed himand did a pat down search. [67] Constable Drynan was part of the surveillance team watching these events. Werth testified that Drynan said something to himlike “he is messing under the front seat of the vehicle, better get someone up there as soon as possible”.

He said he was told by Drynanthat he had officer safety concerns, the driver should be removed from the vehicle and arrested. This evidence stands in marked contrastto that of Drynan. Drynan testified that he noticed the driver of the Malibu reaching over the front passenger seat area and doingsomething with his hands, possibly between the seats or under them. He did not indicate a concern about officer safety or that someoneshould act upon what he saw.

Indeed, he testified that members of the surveillance team (as he was) simply reported their observations tothe investigative team and it was the investigative team (led by Werth) who decided what steps to take. Werth did not record thecommunication he received from Constable Drynan nor his exact communication to Dalziel. [68] Constable Drynan was a credible witness who gave his testimony in a forthright and direct manner. I believe his testimonyregarding the comments he made to Werth.

On the other hand, Werth gave his evidence in a very cavalier fashion and in a mannerintended to justify a direction he gave for the purpose of providing McGill and Dalziel with grounds to search the Malibu whiledisguising the true purpose for stopping and searching the vehicle in the first place. When confronted with the contrary evidence ofDrynan, Werth responded that he did not care what Drynan said and that Drynan was mistaken.

This displayed a callous and arrogantattitude towards the evidence given by another police officer which happened to contradict the evidence he felt he needed to give inorder to justify his actions. I do not believe the evidence of Werth in this respect and believe he was intentionally misleading the Courtwith a view to justifying his instructions to Dalziel. [69] There was no evidence that could be considered as a basis for a concern by Detective Werth over officer safety based upon thecomment of Constable Drynan.

Werth did not know that Mian was even the driver of the vehicle, let alone had been subject to anyweapons prohibition.

[70] Constable McGill also noted that Mian was fumbling around for five to six seconds while reaching forward in the vehicle.McGill testified to a concern that Mian may have been reaching for a weapon. However, he did not broadcast that concern to anyone nordid he seek any assistance. He did not draw a weapon as he moved towards the vehicle, though he did have his hand on his gun while thegun remained in the holster. [71] When McGill and Dalziel arrived at the Malibu, Mian was on a cell phone. He was not in possession of a weapon.

His actionswhile alone in the vehicle are most consistent with his reaching for the cell phone and dialing it. Notably, once Mian was out of thevehicle, McGill did not instruct Dalziel to search for a weapon. [72] McGill and Dalziel were approaching the Malibu on a reasonably secluded and dark stretch of road. McGill’s failure to seekassistance and his hurried return to the Mian vehicle would indeed have placed both him and Dalziel at considerable risk had Mian beenin actual possession of a weapon. I do not believe a trained officer would be so careless.

In my view, Constable McGill’s actions belie hisstated belief of a concern for officer safety. In short, I do not accept the evidence of either Detective Werth or Constable McGill thatthere was a concern for officer safety caused by Mian leaning forward in the Malibu for five or six seconds. [73] McGill and Dalziel were justified in relying upon the initial direction from Werth to stop the vehicle and on Werth’s beliefthat the vehicle contained a significant quantity of cocaine.

This belief and direction by Werth also justified removing Mian from thevehicle and conducting a pat down search as incidental to a lawful detention or arrest. These grounds were never articulated. Instead, and despite having proper grounds, their articulated grounds were based on non-existent safety concerns fabricated to conceal the actualgrounds from Mian. As discussed below it is unclear from the evidence exactly what Werth may have feared in having Mian advised ofthe true reason for his vehicle being stopped.

That is, it is unclear why Mian could not have simply been advised that he was beingdetained for possession of cocaine. [74] Mian’s s. 9 Charter right not to be arbitrarily detained was not breached when his vehicle was stopped. Had the only groundsrelied upon for the removal of Mr. Mian from the vehicle been the pretense of officer safety concerns, I would have found that his s. 9Charter right not to be arbitrarily detained was breached, as I believe no such concerns legitimately existed.

However, as I believe that hewas in fact detained and arrested pursuant to Werth’s direction, which was based on reasonable grounds, his s. 9 Charter right was notbreached. B. Unreasonable Search [75]

Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. [76] Police may perform a search, including search of a vehicle, incidental to arrest for the purpose of discovering evidencerelating to the reasons for the arrest: R. v. Caslake, (SCC), [1998] 1 S.C.R. 51, Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158. [77] Mr. Mian was removed from the Malibu, placed in handcuffs and patted down. No weapon was found in the pat down searchof Mian by McGill.

Once removed from his vehicle, he was not free to go back to his vehicle nor would McGill and Dalziel have allowedhim back to the vehicle at any time for any reason. [78] Once the pat down search revealed no weapons on Mian, there could not have been any concern whatsoever for officer orpublic safety that would justify a warrantless search of the vehicle.

Further, there is no evidence to suggest that it was necessary to searchthe vehicle in order to protect evidence from destruction at the hands of Mian or anyone else. [79] Had the pat down search of Mian and the searches of the vehicle by Dalziel and McGill been based solely on officer safety orpublic safety concerns, I would have found that such searches breached Mian’s s. 8 Charter right to be secure against unreasonablesearch or seizure. However, as I am satisfied that were carried out pursuant to the instructions given by Werth, who again had reasonablegrounds for his belief, the searches were justified.

C. Right to be Informed/Right to Counsel [80]

Section 10(

a) of the Charter provides that everyone has the right on detention to be informed promptly of the reasonstherefor.

Section 10(

b) provides that everyone has the right on arrest or detention to be informed of their right to retain and instructcounsel without delay. [81] After Mian’s vehicle was stopped, McGill and Dalziel approached the vehicle and spoke to Mian. He was not informed at thattime of the purpose for his detention. He was left in the vehicle. [82] When McGill and Dalziel returned to Mian’s vehicle and removed him from the vehicle, he was not advised of the reason forhis detention.

When he was handcuffed and a pat down search was performed, he was not informed of the reason for his detention.When Mian was placed in the back of a police vehicle, he was not informed of the reason for his detention. While in the back of thepolice vehicle, McGill asked him some questions. Still, he was not informed of the reason for his detention. To that point in time, he wasnever advised of his right to retain and instruct counsel. [83] The right to be promptly advised of the reason for one's detention embodied in s. 10(

a) is founded most fundamentally on thenotion that one is not obliged to submit to an arrest if one does not know the reasons for it. A second aspect of the right lies in its role asan adjunct to the right to counsel conferred by s. 10(b): R. v. Evans, (SCC), [1991] 1 S.C.R. 869. [84] Clearly Werth wished for Mian to think he was stopped for reasons other than police surveillance of the drug transactionwhich had just occurred. There was some evidence of concern that the ongoing investigation might be compromised if Mian deducedthat he had been the subject of police surveillance. [85] The Court in R. v.

Archambault, 2010 QCCQ 4710, citing R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233, R.v. Strachan, (SCC), [1988] 2 S.C.R. 980, and R. v. James, [2001] J.Q. no 5232 (C.A.) noted: 19 For over twenty years the jurisprudence has made plain that the right to counsel may be suspended only in exceptionalcircumstances. The reason for this strict limitation is obvious. If the right could be suspended for any other reason it would no longerserve the generous and purposive

interpretation given to it by the Supreme Court. Exceptional circumstances signify emergency or periland they do not include tactical advantage or investigative convenience. They include the prevention of imminent harm to police officersand other persons. They include the preservation of material items against imminent loss.

And they include the necessity to protect theintegrity of a police operation in progress if there is a real and present danger that the operation would be frustrated or compromised. [86] Once Mian was out of the Malibu, and the pat down search revealed no weapon, there was no reason for any concern for thesafety of the police or the public which would justify withholding from Mian the reason for his detention. Once Mian was out of thevehicle, there could not have been any concern for the destruction or loss of any evidence in the vehicle.

Although concerns wereexpressed regarding the ongoing investigation, none of the evidence before the Court articulated the nature of the concern. There was noevidence of a real and present danger that the operation would be frustrated or compromised if Mian was immediately advised of thereason for his arrest.

No satisfactory reason has been given as to why he was not simply advised that he was being detained forpossession of cocaine, nor has any reason at all been given for the failure by McGill and Dalziel to advise Mian of his right to retain andinstruct counsel before 20:02. [87] The total period of time that elapsed between the initial stop (19:40) and Mian being arrested and advised of his rights (20:02)was relatively brief. Individuals who are detained must be informed promptly, in clear and simple language, of the reasons for thedetention (R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59).

Here, there was no reasonable basis for not advising himimmediately upon detention of the reasons for it. The Charter requirement is to promptly inform someone of the reasons for detention.The only reason McGill and Dalziel stopped and detained Mian was that the vehicle had been used in a drug transaction and was believedto contain a large quantity of cocaine. This remained the only lawful basis which could have justified the detention and removal of Mianfrom the vehicle, his handcuffing and the pat down search.

While Werth testified that he did not want to compromise the integrity of theongoing investigation of Chelmick and others, it is impossible to see how simply advising Mian why he was being detained would havedone so. Further, even if there was a valid officer safety concern which resulted in his removal from the vehicle by McGill and Dalziel,he should have been promptly informed of the reason. He was not and there was no reason not to.

[88] The same analysis applies to Mian’s s. 10(

b) right to be informed of his right to retain and instruct counsel. He could havebeen so advised when he was removed from the vehicle, when he was handcuffed, when he was subject to the pat down search, or whenplaced in the back of the police vehicle. No reason has been put forward as to why he could not have been so advised or how such advicemight have somehow compromised the ongoing investigation into Chelmick’s activities.

If the concern was that Mian might use hisphone call to alert his associates to a police investigation, that concern could have been addressed by Dalziel and McGill touching basewith Werth upon arriving at the station, prior to allowing Mian to exercise his right to counsel. Again, there was little to no articulationby the witnesses as to how exactly Mian’s exercise of his right to counsel might have compromised the investigation. [89] Mr. Mian’s s. 10(

b) right to be informed of his right to counsel was triggered at the moment he was detained. He had the rightto be so informed without delay. The only basis for delay would be a concern for officer safety, or reasonable limitations imposed bylaw. Neither existed here (see R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460). [90] Mr. Mian’s s. 10(

a) Charter right to be informed promptly of the reasons for his detention was breached. His s. 10(

b) Charterright to be informed of his right to retain and instruct counsel was similarly breached. D. Exclusion of Evidence [91] There have been breaches of Mr. Mian’s s. 10(

a) right to be informed promptly of his reasons for detention, and his s. 10(b)right to be informed of his right to retain and instruct counsel.

If the only evidence before the Court were the grounds relied upon byDalziel and McGill at trial for the detention and search, there would also be s. 8 and s. 9 breaches. [92] 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 bythis Charter, the evidence shall be excluded if it is established that, having regard to all of the circumstances, the admission of it in theproceedings would bring the administration of justice into disrepute. [93] 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 theCourt 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 breach; 2. the impact of the breach on the protective interests of the accused; 3. society’s interest in the adjudication of the case on its merits. 1. the seriousness of the breach [94] McGill and Dalziel had a number of opportunities to advise Mian of the true reason for his detention.

They could have doneso when they initially stopped the vehicle, when he was removed from the vehicle, when he was handcuffed, when he was patted down,when he was placed in the back of the police vehicle, or during the discussion initiated by McGill prior to Dalziel’s return to the policevehicle after searching the Malibu. He further could have been advised of his right to retain and instruct counsel at any of those times. Hewas not. [95] Lamer J. in R. v. Debot, (SCC), [1989] 2 S.C.R. 1140 at 1147 explained that the right to search incident toarrest derives from the fact of arrest or detention of the person.

The right to retain and instruct counsel derives from the arrest ordetention, not from the fact of being searched. Therefore immediately upon detention, the detainee has the right to be informed of theright to retain and instruct counsel. However, the police are not obligated to suspend the search incident to arrest until the detainee hasthe opportunity to retain counsel, except for example where the lawfulness of the search is dependent on the detainee's consent.

Consequently, it will only be in exceptional circumstances that the denial of the right to counsel will trigger a violation of s. 8. Usually as. 10(

b) violation does not go to the very lawfulness of the search. [96] It follows that the s. 10(

a) and s. 10(

b) breaches of Mian’s Charter rights did not affect the lawfulness of the search. However,in my view, the s. 10(

a) and s. 10(

b) breaches in this case are extremely serious and deliberate. There was no evidence before the Courtas to how simply providing Mian with this information would have created a real and present danger of compromising the ongoinginvestigation. Each of the breaches is serious and combined they are egregious. This weighs in favour of excluding the evidence. 2. the impact on the accused [97] From the time Dalziel and McGill received instructions from Werth, Mr. Mian was going to be stopped, arrested, and hisvehicle searched. [98] Mr. Mian was detained. He was not free to go from the moment his vehicle was stopped.

Without being advised of thereasons for his detention or for the search of his body or vehicle, he was held, handcuffed and placed in the back of a police vehicle.There was evidence that he was questioned while in the police vehicle, but the Crown is not seeking to introduce any statements that Mr.Mian may have made at that time. [99] Though the vehicle he was driving was a rental, Mian was the operator of the vehicle and did have a subjective expectation ofprivacy except for items in plain view: R. v. Edwards (SCC), [1996] 1 S.C.R. 128, R. v. Nolet, 2010 SCC 24, [2010]1S.C.R. 851.

Mian could enjoy a reasonable expectation of privacy in the vehicle he was operating, though not as high an expectation ofprivacy as in his own home or in his own vehicle. [100] Mr. Mian was not advised of the reason for his detention nor his right to counsel. This may well have had an influence on anyresponses he provided to questioning which occurred in the police vehicle.

The impact on the accused resulting from the breaches of hisCharter rights in this case were significant and weigh in favour of excluding the evidence. [101] With respect to non-bodily physical evidence, McLachlin C.J. and Charron J. explained at paras. 113 to 115 of Grant that theCharter breach most often associated with non-bodily physical evidence is the s. 8 protection against unreasonable search and seizure,and privacy is the principal interest involved in such cases.

Lamer J. in Debot at p. 1149 noted that evidence obtained as a result of anunreasonable search is quite different from determining the exclusion or admission of evidence obtained as a result of a search which wasperfectly valid but which was carried out contemporaneously with a s. 10(

b) violation. While the violation of s. 8 is directly linked to theobtaining of the evidence, the violation of s. 10 could be totally unrelated to the finding of the evidence. [102] The majority in Grant stated that an illegal search of a house will be seen as more serious than search of a vehicle at this stageof the analysis. An unjustified strip search or body cavity search is demeaning to the suspect's human dignity and would be viewed asextremely serious on that account. [103] In the present case, Mr.

Mian may well have exercised his right to silence in the police vehicle had he been apprised of the realreason for his detention and his right to counsel. This would have militated in favour of exclusion of any statements the Crown may havetried to introduce. As for the pat down search and the search of his vehicle in which he had some privacy interest, these would haveoccurred with or without Mr. Mian’s consent and were not demeaning. Therefore, the impact of the s. 10(

a) and s. 10(

b) violations hadlittle impact on his privacy interests. 3. society’s interest in an adjudication on the merits [104] The Supreme Court in Grant acknowledged the general expectation of society that criminal allegations will be adjudicated ontheir merits and posed the third line of inquiry relevant to the s. 24(2) analysis as whether the truth seeking function of the criminal trialprocess 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). [105] It is a delicate balance when considering the seriousness of the offence as the failure to prosecute a serious charge may have animpact on how people view the justice system.

However, it is the long term repute of the justice system that is the focus of this analysisand 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 ajustice system that is above reproach (Grant at para. 84). [106] In Debot, the evidence obtained was real evidence the existence of which, and the seizure of which, was totally unrelated to thes. 10(

b) Charter violation. The lack of such a link was significant when assessing whether the repute of the system of justice would beharmed by the admission of the evidence. Although the test under s. 24(2) has been modified since that decision, Grant makes clear thatdiscoverability and reliability of the evidence continue to be relevant on the third branch of the test. The majority at para. 115 stated thatthe third inquiry, whether the admission of the evidence would serve society's interest in having a case adjudicated on its merits, like theothers, engages the facts of the particular case.

Reliability issues with physical evidence will not generally be related to the Charterbreach. Therefore, this consideration tends to weigh in favour of admission. [107] The evidence seized included 539 grams of cocaine and $1,340 in cash seized from the Malibu and $2,170 in cash seized fromMian in the pat down search. The evidence is real evidence and reliable. The offence of possession of cocaine for the purpose oftrafficking is a very serious offence. While less serious, the offence of possession of property obtained by crime is serious as it lendssupport to the view that crime pays.

These factors weigh in favour of the admission into evidence of the cocaine and the money. [108] While I have ultimately found no breach of Mian’s s. 8 and s. 9 Charter rights, I am satisfied that the continued reliance byDetective Werth and Constable McGill on alleged officer safety concerns even during their evidence at trial was an attempt to underminethe truth seeking function of the criminal trial process. I also consider the questioning of Mr.

Mian by McGill in the back of the policevehicle prior to him being advised of the reason for his detention and arrest to be an aggravating factor. [109] Rather than relying on grounds that did exist, McGill ostensibly relied on a mistaken impression of Mian’s actions in thevehicle, which he should have realized when he got to the vehicle and before removing Mian from the vehicle.

Dalziel relied ondirections given on the spot by Werth which were, at best, grossly exaggerated from the comments actually made to Werth by Drynanor, at worst, simply fabricated. [110] While the nature of the real evidence seized would support their admission into evidence, the serious temporally connectedCharter breaches and the misleading evidence at trial as to the grounds for detaining Mian and searching him and his vehicle lead to theconclusion that the truth seeking function of the criminal trial process will be better served by exclusion of the evidence. 4. conclusion on the admissibility of the evidence [111] Considering the three factors directed by Grant, I have concluded that the combined effect of the seriousness of the breachesand their impact on the protective interests of Mian outweigh society’s interest on the adjudication of this case on its merits.

The Courtcannot be seen to condone wilful and flagrant Charter breaches or attempts to mislead the Court (see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494). The admission of the evidence in these proceedings would bring the administration of justice intodisrepute by causing the reasonable member of the public to question the integrity of the justice system. The evidence is excluded. V. Conclusion [112] The Charter rights of Mr. Mian under ss. 10(a), and 10(

b) were breached in this case. The admission of the evidence seizedfrom Mr. Mian and his vehicle into the proceedings would bring the administration of justice into disrepute. The evidence is excluded. Heard on the 14th-18th days March, 2011 and the 18th day of April, 2011.

Dated at the City of Edmonton, Alberta this 29 th day of April 2011. Eric F. Macklin J.C.Q.B.A. Appearances: Adam Halliday for the Respondent Michael R. Danyluik for the Applicant