R. v. Navales, 2011 ABQB 404

Court of Queen ’ s Bench of Alberta Citation: R. v. Navales, 2011 ABQB 404 Date: 20110628 Docket: 071434005Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Eric John Navales Accused _______________________________________________________ Reasons for Judgment on Voir Dire of the Honourable Madam Justice E.A. Hughes _______________________________________________________ Introduction [ 1 ] On November 14, 2007, Mr. Navales disembarked from the Vancouver – Calgary overnight bus at the Calgary Bus Depot.

This particular bus route was regularly monitored by the R.C.M.P.’s Jetway Unit, a sub group of the Drug Unit, because Vancouver was known as a major hub for the supply of drugs. [ 2 ] Mr. Navales was observed by Sgt. MacPhee to disembark and enter the bus depot. As a result of Sgt. MacPhee’s

[ 2 ] Mr. Navales was observed by Sgt. MacPhee to disembark and enter the bus depot. As a result of Sgt. MacPhee’s observations, he followed Mr. Navales outside of the bus depot where he began to speak to him. During the brief conversation, Sgt. MacPhee gave a signal to another member of the team, Cpl. MacDonald, a dog handler, to get his police dog Moose. When Cpl. MacDonald and Moose came to the area where Sgt. MacPhee and Mr. Navales were speaking, Sgt. MacPhee indicated Moose was to sniff Mr. Navales’s luggage. As a result of Moose indicating he found a drug scent, Mr.

Navales was arrested for possession of a controlled substance for the purpose of trafficking, and his luggage was partially opened by Sgt. MacPhee who put his hand inside and felt what he recognized as kilo bricks of cocaine. Ten kilo bricks of cocaine were ultimately seized by the police. [ 3 ] As of November 14, 2007, the Alberta Court of Appeal had released its decision in R. v. Kang-Brown, 2006 ABCA 199 , 391 A.R. 218; the Supreme Court of Canada had heard the Kang-Brown appeal (May 22, 2007) but had yet to render its judgment in the case.

Judgment was rendered by the Supreme Court of Canada some five months later on April 25, 2008: R. v. Kang-Brown , 2008 SCC 18 , [2008] 1 S.C.R. 456. [ 4 ] The issue for me to decide in this voir dire is whether the reasonable suspicion standard, as set out for searches of this type in Kang-Brown, had been met by the time Moose was deployed to sniff Mr. Navales’s luggage. Position of the Parties [ 5 ] There is little dispute between the parties as to the facts. Rather, the primary issue is the significance, if any, that may be placed on the various observations of Mr. Navales by Sgt. MacPhee.

A second issue is whether Sgt. MacPhee directed Cpl. MacDonald to deploy Moose prior to Sgt. MacPhee’s suspicions being crystallized. In this case, I will set out any necessary findings of facts in the context of my legal analysis. [ 6 ] The Applicant, Mr. Navales, submits Sgt. MacPhee did not possess sufficient objective indicia to establish the reasonable suspicion standard prior to the search commencing – that being the deployment of Moose to sniff his luggage. Indeed, the Appellant submits this case differs little from that of R. v. Kang-Brown . Therefore, this search violated Mr.

Navales Charter rights. [ 7 ] The Respondent Crown submits the indicia, considered as a whole, does establish objective indicia which meet the reasonable suspicion standard for a dog sniff search. Therefore, I should find no

section 8 breach. Analysis [ 8 ] In R. v. Kang-Brown , 2008 SCC 18 , [2008] 1 S.C.R. 456, four sets of reasons were given. A majority of the Supreme Court of Canada found the police have power to investigate crime using sniffer dogs. All the judges held that a ‘sniff’ by a dog constitutes a s. 8 search.

The majority also found that “a proper balance between an individual’s s. 8 Charter rights and the reasonable demands of law enforcement permits sniff searches on a ‘reasonable suspicion standard’”. [ 9 ] Thus, police officers may use drug sniffer dogs, but before a sniffer dog is deployed, the police must have reasonable suspicion there is contraband. Binnie J., writing for himself and McLachlin C.J.C., stated at para. 25: In my view, for reasons developed in A.M. , the police are entitled to call in aid sniffer dogs where they have reasonable grounds to suspect the presence of contraband.

This Charter standard of “reasonable suspicion” is based, as stated, on the minimal intrusiveness, narrowly targeted objective and high accuracy of “sniffs” by specifically trained dogs like Chevy. [ 10 ] In Kang-Brown , Binnie J. stated that the fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that reasonable suspicion requires more than just a sincerely held subjective belief: Kang-Brown , para. 75. In the context of that analysis at paras. 75-79, Binnie J. discussed the reasonable suspicion standard and the reasonable grounds standard.

The reasonable suspicion standard, a lower standard, was defined this way at para. 75: The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an

expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something morethan a mere suspicion and something less than a belief based upon reasonable and probable grounds. [...] Reasonable suspicion must be supported by factual elements which can be adduced into evidence and which permit an independentjudicial assessment. Indeed, evidentiary requirements for meeting the reasonable suspicion standard are lower than that of reasonable andprobable grounds.

The distinction between “reasonable suspicion” and “reasonable and probable grounds” is merely the degree ofprobability that a person is involved in criminal activity. [11] Objectively ascertainable facts must exist under both standards to support a search. The rationale for the presence ofobjectively ascertainable facts is that it allows an independent judicial assessment to be made as observed by Binnie J. in paras. 77 and78 of Kang-Brown: It is important to emphasize the requirement for objective “articulable” grounds, as did the B.C. Court of Appeal in R. v.

Lal (1998), (BC CA), 113 B.C.A.C. 47, at para. 23: The fundamental point is that the trial judge must be in a position to make an independent assessment of the facts upon which thesuspicion is based. The importance of objective grounds in the present context, of course, is that where police initiate warrantless “sniff” searches there is nobefore-the-fact judicial authorization. The after-the-fact review can only truly be an “independent assessment” if there are objectivegrounds put forward to support the personal opinion of the police officer. As Doherty J.A. commented in Brown v.

Durham RegionalPolice Force (1998), (ON CA), 131 C.C.C. (3d), 1 (Ont. C.A.): The protection against police excess rests not only in the standard itself, but in its retrospective application. [para. 65] [Emphasis in original] [12] A hunch based on intuition or “feelings” gained by experience or a well-educated guess does not constitute a reasonablesuspicion. There must be objective grounds that support the subjective belief of the police officer: “‘reasonable suspicion’ requires thepolice officer’s subjective belief to be backed by objectively verifiable indications ...:” A.M at para. 80.

As Doherty J.A. writing for theCourt of Appeal for Ontario stated in R. v. Simpson (1993), (ON CA), 12 O.R. (3d) 182 at 202 (C.A.): These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that thedetainee is criminally implicated in the activity under investigation. The requirement that the facts must meet an objectively discerniblestandard is recognized in connection with the arrest power: R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241 at p. 251, 53C.C.C. (3d) 316 at p. 324, and serves to avoid indiscriminate and discriminatory exercises of the police power. A “hunch” based entirelyon intuition gained by experience cannot suffice, no matter how accurate that “hunch” might prove to be. Such subjectively basedassessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee’s sex, colour, age, ethnic originor sexual orientation. Equally, without objective criteria detentions could be based on mere speculation. A guess which proves accuratebecomes in hindsight a “hunch”.

In this regard, I must disagree with R. v. Nelson (1987), (MB CA), 35 C.C.C. (3d)347, 29 C.R.R. 80 (Man. C.A.), at p. 355 C.C.C., p. 87 C.R.R. where it is said that detention may be justified if the officer “intuitivelysenses that his intervention may be required in the public interest”. [13] In R. v. Yeh, 2009 SKCA 112, 337 Sask.

R. 1, the Saskatchewan Court of Appeal confirmed at para. 49 that the standard fordetaining a person for investigative detention is the same as for engaging a sniffer dog, but the search and the detention need toindependently meet the reasonable suspicion standard. [14] In Kang-Brown, Binnie J. reviewed the indicia observed by the officer at trial. After reviewing them one by one, he foundthat only two indicators were pertinent: the Vancouver- Calgary drug courier run and the fact that the appellant seemed nervous or“antsy”.

However, he held that these indicators did not meet the necessary threshold to afford grounds of reasonable suspicion “nor takenwith other factors (or “indicia”) mentioned by Sergeant MacPhee [officer in this case who was also the officer in Kang-Brown]” did it

reach that level: Kang-Brown, at para. 96. [15] Following the release of Kang-Brown, and particularly in light of Binnie J.’s reasons, it was unclear as to whether each factorshould be reviewed individually and independently, as opposed to collectively, when determining if reasonable suspicion is supported byobjective grounds.

In Kang- Brown, Justices Deschamps and Rothstein were critical of Binnie J.’s approach in his review of evidence.Deschamps J., for herself and Rothstein J., wrote at para. 202 that looking at the evidence in microscopic detail, piece by piece and stageby stage to determine whether each piece of evidence is relevant or probative rather than considering the evidence as a whole as itnaturally unfolded results in an artificial analysis.

Deschamps J. stated that “this recasting of the facts neither accurately nor fairlyreflects the totality of the facts and circumstances confronted by the police in this case.” [16] Considering the recent case law from appellate courts, it appears that Kang-Brown has been interpreted as meaning that trialjudges need to look at the totality of the circumstances and review all the relevant factors collectively when assessing whetherreasonable suspicion is supported by objective grounds: see R. v. Payette, 2010 BCCA 392, 259 C.C.C. (3d) 178 at para. 25; R.v.Bramley, 2009 SKCA 49, 324 Sask.

R. 286 at paras. 43-48; R.v. Schrenk, 2010 MBCA 38, 255 Man.R. (2d) 12 at para. 70 and 98; R.v.Savage, 2011 SKCA 65. In other words, the principle that trial judges must not piecemeal evidence still prevails. See R. v.

Morin, (SCC), [1988] 2 S.C.R. 345 at p. 359. [17] For example, in Bramley, Richards J.A. writing for the Saskatchewan Court of Appeal held that the trial judge erred when hefailed to take into account the collective significance of the evidence at paras. 43 and 44: It appears clear that the trial judge failed to take into account many of the considerations relevant to the issue of reasonable suspicion.This was an error of law which clearly affected the outcome of his decision.

That observation having been made, I note that even if it might be argued the trial judge somehow had all of the relevant evidence in hiscontemplation, he nonetheless failed to appreciate its significance. Most generally on this front, the judge discounted the evidenceconcerning reasonable suspicion by saying the existence of “similar characteristics” or a “similar profile” between the respondents and“the profile shown to the police officers in their training courses” could not give rise to reasonable grounds to detain.

He held this to beso because “it cannot be said that all or even a significant number of individuals displaying such characteristics are criminals.” It is not atall clear what characteristics the trial judge had in mind in this regard but, in my respectful view, his thinking on this point wasmisplaced. The question before the court was not whether the existence of any particular trait or circumstance demonstrated therespondents were in fact involved in criminal activity. It was whether all of the relevant evidence, considered collectively, raised areasonable suspicion that they might be so involved. See: R. v.

Mouland, 2007 SKCA 105 (Sask. C.A.), at para. 26. [Emphasis added] [18] Of note, this approach was recently applied by Binnie J., writing for the Court, in R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R.851, although not in a sniff search context. In Nolet, one of the issues was whether there was objective support for the officer’ssubjective belief that there was reasonable and probable grounds to arrest.

At para. 48 Justice Binnie said: The discovery of a large sum of cash may not on its own constitute objective, reasonable and probable grounds to arrest for possession ofproceeds of crime but the existence of the cash may contribute to such reasonable grounds when “‘circumstances or evidence’ ... existthat create a reasonable inference that the money is proceeds of crime” (trial judgment, at para. 35) [...] Here, the context was sufficientto supply the officer with the “something more”: three men in an empty, improperly licensed truck making a run across the prairies atmidnight on a highway where the truck was not entitled to be.

The explanation for where the cargo had gone, and why the truck wasapparently empty as it headed east, did not correspond to the documents, which were riddled with multiple discrepancies. Theunexplained $115,000 was in bills of small denominations wrapped in bundles which the police officer believed to be typical of drugdealings [...] [...] While the Crown did not attempt to qualify the officer as an expert on drug monies, the officer’s experience and training supported theprobative value of his evidence on this point.

The cumulative effect of the factual elements previously described provides objectivesupport for the officer’s subjective belief that he had reasonable and probable grounds to make the arrests. As stated in R. v. Marin,[1994] O.J. No. 1280 (QL) (Gen. Div.), at para. 16, and approved in R. v. Jacques, (SCC), [1996] 3 S.C.R. 312, atpara. 25, “Looked at individually no single one is likely sufficient to warrant the grounds for the detention and seizure. The whole isgreater than the sum of the individual parts viewed individually.” [Emphasis added; Citations omitted]

[19] While the case law establishes a trial judge must take the totality of the circumstances into account when determining whetherthe facts establish an officer reasonably suspected an individual was in possession of a controlled substance, it is important to note thatnot all factors are of equal relevance and probative value: Schrenk at paras.78-79; Savage at paras. 22-31; See also R. v. Lal (1999), (BC CA), 130 C.C.C. (3d) 413 at para. 27, leave to appeal to S.C.C. refused [1999] S.C.C.A.

No. 28 (April 29, 1999). [20] The objective reasonableness requirement must be viewed in the light of the investigation officer’s background andexperience: Payette, at para. 25, R. v. MacKenzie, 2011 SKCA 64; see also Nolet at para. 48. In Schrenk, Steel J.A. stated that “[w]hatmay appear to be innocent to the general public may have a very different meaning to an officer experienced in drug operations”: at para.77.

However, deference to an officer’s intuition must not render the objective element of the inquiry meaningless: Payette, at para. 25;Yeh at para. 53, MacKenzie, at para. 28. [21] In this case, the issue is whether the reasonable suspicion standard was satisfied in the circumstances of this case. In otherwords, this Court needs to assess whether the factors identified by Sgt. MacPhee provide an objectively reasonable basis for hissuspicion. [22] At the time of trial, Sgt. MacPhee had retired from the RCMP.

On November 14, 2007, he had 25 years experience in druginvestigations, including 8 years experience in the Jetway Unit. [23] On November 14, Sgt. MacPhee was in plain clothes at the bus depot. He was there to observe passengers who exited busesin the context of the Jetway program, which is designed to monitor public transportation systems in view of identifying drug courierswho carry large quantities of contraband. Sgt.

MacPhee explained that the Jetway program is designed to interdict the transportation ofdrugs in airports, train stations and bus depots and officers are watching for characteristics they believe indicate a person is carryingdrugs. [24] Working that day with Sgt. MacPhee were Cpl. MacDonald and his police service dog Moose and Constable Jakovljevic. Cpl.MacDonald’s role in this investigation was to watch Mr. Navales and in particular, watch Mr. Navales after he was approached by Sgt.MacPhee for officer safety reasons.

Constable Jakovljevic’s role was to watch the entire area to determine if any other people might beinvolved with Mr. Navales. [25] Sgt. MacPhee made certain observations which led him to suspect Mr. Navales was a drug courier and in possession ofcontraband. Sgt. MacPhee testified that although none of the below listed factors standing on their own necessarily mean something,when considered together, they formed the basis of his reasonable suspicion Mr. Navales was acting as a drug courier: i. Mr. Navales disembarked from the Vancouver-Calgary bus at 11:31 a.m.

This bus route was routinely monitored by the JetwayUnit because Vancouver was known as a major drug supply hub across Canada because of its various drugs, quantity of drugs and lowprices. ii. Mr. Navales stared at Sgt. MacPhee for about three to four seconds when Sgt. MacPhee locked eyes with Mr. Navales as he wasdisembarking from the bus. Sgt. MacPhee testified most people will meet his gaze and then look away. Sgt. MacPhee testified theelongated stare is unique. Sgt. MacPhee testified it is the intent of the police for the person they engage in the elongated stare to suspectthey are police. Once Sgt.

MacPhee and Mr. Navales entered the bus depot, Sgt. MacPhee observed Mr. Navales looked back over his shoulder at himwhich he described as a rubber neck back. Sgt. MacPhee testified that in his experience, if a person suspects he is a police officer, theperson will look back over at him inside the bus depot. iii. Mr. Navales’s movement inside the bus depot. Once inside the bus depot, Mr. Navales proceeded towards the exit. However, hemade the following changes in direction thereafter:

a) Mr. Navales changed direction to head to the washroom area where police dogs were training that day. Both Sgt. MacPhee and Cpl. MacDonald observed Mr. Navales notice the police dogs. Cpl. MacDonald testified Mr. Navales remained fixated on the police dogs at all times while he was in the bus depot; further, that while people routinely watch police dogs working, as was the case on this date, it is not usual for someone to watch the dogs the entire time they are in the bus depot area.

b) Mr. Navales, once he saw the police dogs, stopped and changed directions to the direction of the exit.

c) At a sign near the exit, Mr. Navales suddenly changed directions and made a U-turn heading back to the same direction he had just come from. As he walked in that direction, a police dog on a leash crossed the path Mr. Navales was appearing to take.

d) When the police dog crossed Mr. Navales’s path, Mr. Navales stopped suddenly, turned and headed back to the exit, and exited the bus depot. iv. At approximately 11:35 a.m. Sgt. MacPhee began to speak with Mr. Navales. Mr. Navales said he was coming from Vancouver. Mr. Navales showed Sgt. MacPhee his bus ticket explaining he “just decided to come out.” The ticket was purchased approximately 35 to 45 minutes prior to the bus departure. Sgt. MacPhee characterized this as a last minute purchase. Sgt. MacPhee testified: Q And again, what’s the significance of a last-minute ticket purchase?

A The last minute, again, is because when you’re a drug courier and sitting in Vancouver for delivery of the drugs, you don’t know exactly what time it’s going to be delivered. As soon as they get that, they don’t have the opportunity to book anything in advance. They get the supply. They then, in turn, hustle down, go down, buy a ticket, and jump on the mode of travel. And I have actually had drug couriers tell me that exact way that that is, transpires in the past. That’s the way I have been told by them that have been found with drugs. ...

Q Now, I’m going to suggest to you that, as opposed to air travel, that people travelling by bus frequently buy their tickets not long before boarding. Do you agree? A No. It depends. A lot of people will be on one-day advance purchase, three-day advance purchase. If you buy a ticket one day in advance, for example, you can get a round-trip ticket for the same price as a one way. If you buy it three days in advance, it discounts like 50 percent. The farther out you do it, it’s amazing the discount that goes with it.

So most people, which is a lot of times the people that are riding the bus, are people that are watching their money or they’re students or seniors, and quite often they do buy their tickets in advance just to save money. Q But certainly the Greyhound system allows people just to walk up to the kiosk and buy their ticket and get on the bus. A Yes. Q And within half-an-hour of the bus departure, you’re still entitled to get on that bus; is that correct? A Yes, as long as there’s room and there’s the odd occasion there’s not, but the most part, yes.

Q And in terms of – if we were able to calculate numbers of – the number of people that are riding a particular bus, you wouldn’t be able to tell us what percentage of those people bought their ticket shortly before the bus left and which percentage went on line or through some other method bought their tickets beforehand? A No. I was just giving you a perspective from people I have just kind of communicated with in the past, yes, and I know it’s available.

v. Mr. Navales’s ticket was a one way ticket. Sgt. MacPhee testified he had “countless” files where a courier would purchase a one way ticket via the bus and then fly home on an airline ticket after the deal was done. vi. Mr. Navales purchased the ticket in the name of Salazar. His identification was in the name of Navales; when asked for an explanation by Sgt. MacPhee with respect to the Salazar name, Mr. Navales explained it was a hyphenated name but Mr. Navales had no identification in the name of Salazar, Salazar-Navales or Navales-Salazar. vii. When Sgt. MacPhee asked Mr. Navales for identification, Sgt.

MacPhee saw Mr. Navales had a large quantity of $100 bills in his wallet. In cross-examination, Sgt. MacPhee testified that it was the denomination of the bills in Mr. Navales’s wallet that was unusual: “Well, all hundred dollar bills and in that denomination in a wallet of a bus traveller is very unusual, except for the people that I have briefed in the past – or debriefed after they’re arrested, et cetera. And I find out about courier fees and how courier fees work and how expenses are given upfront prior to the delivery.

These are the factors that are in the back of my mind and at the same time when I’m seeing this money. viii. Mr. Navales used cash to purchase his bus ticket. Sgt. MacPhee testified a cash transaction does not allow any tracing as would a debit card or a credit card. ix. When Sgt. MacPhee asked Mr. Navales how long he was staying in Calgary, Mr. Navales replied, “I don’t know, the weekend anyways.” A minute or two later Sgt. MacPhee asked Mr. Navales, “Okay, so you’re going home Friday? Mr. Navales replied, Ya.” x. Sgt. MacPhee observed Mr.

Navales’s physical demeanor change outside and his breathing became more rapid, consistent with nervousness. This rapid breathing was also observed by Cpl. MacDonald. xi. Sgt. MacPhee told Mr. Navales that drug couriers come through the Calgary Bus Depot and asked him if he was travelling with any drugs. Sgt. MacPhee observed Mr. Navales to start to bite his lip and breathe more heavily. xii. Sgt. MacPhee then asked Mr. Navales, “Did you pack your bags?”. After a 3 to 4 second delay Mr. Navales replied, “For the most part.” [ 26 ] Sgt. MacPhee testified his opinion crystallized at this point. However, Sgt.

MacPhee continued to ask Mr. Navales questions. At this point, Sgt. MacPhee observed Cpl. MacDonald was approximately 10 to 12 feet away with Moose. Sgt. MacPhee testified he “nodded the dog in” and Moose sniffed Mr. Navales’s luggage. Moose, within a few seconds, indicated positive on Mr. Navales’s luggage. [ 27 ] In assessing the indicia Sgt. MacPhee observed, I note Binnie J.’s assessment of the eye contact evidence at paras. 82 and 83 of Kang-Brown : Sergeant MacPhee was in plain clothes sitting on a “hitching” rail near the arriving bus. There was nothing in his appearance to identify him as a policeman.

Sergeant MacPhee testified that the appellant looked at him on three occasions over a period of a few minutes, initially an “elongated stare” of a few seconds as the appellant got off the bus, subsequently a “rubber-neck” look as the appellant entered the bus station washroom, and thirdly “eye contact” as the appellant came back into view and put on his winter coat. These “indicia” are part of the teaching of the Jetway program. On all three occasions, Sergeant MacPhee, to all outward appearances just a casually dressed individual, was also looking at the appellant.

The appellant was given no outward sign that he was in eyeball to eyeball contact with a policeman. Innocent members of the public might find it odd that a complete stranger was sitting on a railing staring at them, and react in different ways.

Exchanging looks in such circumstances may not be of much significance to the RCMP as is shown by another Alberta case, R. v. Dinh (2001), 284 A.R. 304, 2001 ABPC 48 . In that case, Sergeant (then Constable) Bouey and Sergeant (then Corporal) MacPhee were again teamed up at a bus station. Constable Bouey testified in that case that she found it suspicious that the accused Lam made eye contact with her when she entered the bus; however, she later testified that she would also have found it suspicious if he had not made eye contact: Corporal MacPhee testified that he “felt” Dinh and Lam appeared nervous.

He also testified that because the other passengers appeared to have just awakened, and were therefore also delayed in departing from the bus, they did not arouse his suspicion as possible drug couriers. ... Upon entering the bus, Constable Bouey had [the sniffer dog] Boh search empty seats near the front of the bus. Dinh and Lam and the other couple were at the back of the bus.

Bouey stated that Lam made eye contact with her and although this enhanced her suspicions she acknowledged on cross-examination that she would also have become suspicious if he had not done so. [Emphasis added in Kang- Brown. ] If “eye contact” or “no eye contact” are both of concern to the RCMP, this seems an ambiguous basis for particularized suspicion. Everyone getting off the bus will either be making eye contact or not making eye contact.

In Dinh , the Alberta Court of Appeal excluded the evidence. [ 28 ] In light of the above, I am not taking this indicia into account. [ 29 ] In Kang-Brown Binnie J. took judicial notice of the fact that people traveling by bus frequently buy their tickets not long before boarding. He stated at para. 88: As its name suggests, the Jetway program originated at U.S. airports. Sergeant MacPhee received his "hands-on" training at Los Angeles International Airport (R.R., at p. 4). Some of the airport "indicia" may have doubtful application at bus stations.

For example, Sergeant MacPhee considered significant the appellant's acknowledgment that he had bought his bus ticket at the "last minute" (R.R., at p. 53). This is a factor developed in the original Jetway program at airports where ordinary travellers usually book air transportation in advance and do not pay for an expensive ticket in cash (see, e.g., Money ). I think we can take judicial notice of the fact that people traveling by bus frequently buy their tickets not long before boarding. There is no evidence that cash payments are unusual. [ 30 ] In this case, Sgt.

MacPhee testified that it is not uncommon for individuals to book a ticket in advance. [ 31 ] Judicial notice is a substitute for the usual method of proof and requires that the threshold for it be strict. In R. v. Find, 2001 SCC 32 , [2001] 1 S.C.R. 863 at para. 48 McLachlin C.J.C. stated: Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination.

Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. [ 32 ] These legal principles were later affirmed by the Supreme Court in R. v. Spence, 2005 SCC 71 , [2005] 3 S.C.R. 458. The Court noted it is for the presiding judge to say whether judicial notice should be taken of a particular fact or facts in a criminal case.

When judicial notice is taken, apart from those cases where evidence is given to equip the judge to take judicial notice under the second category noted above, no evidence of the fact noticed is required.

[33] Further, the Court noted at para. 58 the distinction between adjudicative facts (the where, when and why of what the accusedis alleged to have done) and legislative or social facts which “have relevance to the reasoning process and may involve broadconsiderations of policy.” [34] The prevailing view in Canada is the conclusive approach, which means that generally when a Canadian court takes judicialnotice of an adjudicative fact during a criminal proceeding judicial notice is final. In R. v. Zundel, (1987), (ON CA), 35 D.L.R. (4th) 338 (Ont.

C.A.), leave to appeal refused [1987] 1 S.C.R. xii, the Court observed that "the generally accepted modern view ...is that where the court takes judicial notice of a matter, the judicial notice is final." In Sopinka, Lederman and Bryant, The Law ofEvidence in Canada, (Markam: LexisNexis, 2009) at 1282 the authors note that if the process is carried out properly the judge will havehad the benefit of all available information on the subject and it is unlikely that putting it in the form of evidence will have any greaterimpact on his or her decision. [35] With respect to judicial notice taken in previous matters, Sopinka, Lederman and Bryant note at 1282, the fact that a certainfact or matter has been noted by a judge of the same court in a previous matter has precedential value, and it is therefore useful forcounsel and the court to examine the case law when attempting to determine whether a fact can be noted: at 1269.

The example cited bythe authors is R. v. Kirton, 2007 MBCA 38, 219 C.C.C. (3d) 485 where the Manitoba Court of Appeal held that a court cannot takejudicial notice of the fact that the Hell’s Angel was a criminal organization. The conclusion had been reached in an earlier case in whichextensive expert evidence had been admitted. However, the Court found that the issue needed to be addressed each time on anevidentiary basis. [36] Further, in a recent Ontario Court of Appeal decision, R. v.

Levkovic, 2010 ONCA 830, 103 O.R. (3d) 1, the appellant reliedon Old Bailey authorities to advance a claim that judicial notice should be taken of certain social or legislative facts. The Court stated atpara. 48: To permit prior judicial precedent to ground a claim of judicial notice of an adjudicative or legislative fact in a later prosecution wouldpermit a party, in effect, to sidestep the traditional rules governing the introduction and testing of evidence, to dilute the standardrequired for judicial notice of facts and to substitute precedent for proof.

This use of authority harkens back to the protest of MahoneyJ.A. in Canada (Canadian Human Rights Commission) v. Taylor, (FCA), [1987] 3 F.C. 593 (C.A.), at p. 608 against"bootlegging evidence in the guise of authorities": Public School Boards' Association of Alberta at para. 3. [37] The difference here is that judicial notice was taken by the Supreme Court and not by an Old Bailey decision or a lower orequivalent court and therefore is arguably binding.

However, in Kang-Brown Justice Binnie noted there was no evidence to the contraryas to whether or not an individual would pay with cash and buy the bus ticket at the last minute and he was not provided with allavailable information on the subject. In this case, there is evidence to the contrary.

Therefore, I find the case at bar is distinguishablefrom Kang-Brown. [38] As I have read the case law to mean that a trial judge must look at the totality of the circumstances when assessing whetherreasonable suspicion is supported by objective ascertainable facts, it is then improper, in my view, for me to assess each indiciaindividually. [39] Collectively, the objective indicia to support Sgt. MacPhee’s opinion are:

i) The bus was from Vancouver; ii) Mr. Navales said he was from Vancouver; iii) Mr. Navales’s changes of direction in the bus depot and his attention to the police dogs; iv) Mr. Navales’s bus ticket was purchased last minute and he paid cash;

v) Mr. Navales used what appeared to be a false name when he purchased his ticket; vi) Mr. Navales’s wallet contained $100 bills, a denomination of bill Sgt. MacPhee testified is used in the drug business; vii) Mr. Navales gave two different version of how long he planned to stay in Calgary within one or two minutes;

viii) Mr. Navales’s increased nervousness; ix) Sgt. MacPhee’s question, “Did you pack your bags yourself?” to which Mr. Navales replied after a 3 to 4 second delay, “For the most part.” [ 40 ] Individually, no circumstance in the above list supports a reasonable suspicion. However, when I take into account all of the facts set out above, these observations support an objective suspicion by a reasonable person that Mr. Navales was in possession of contraband. [ 41 ] I must still consider the second issue – whether Sgt. MacPhee directed Cpl. MacDonald to deploy Moose prior to Sgt.

MacPhee’s suspicions being crystallized. [ 42 ] Sgt. MacPhee testified his suspicion was crystallized when he asked Mr. Navales, “Did you pack your own bags?” and Mr. Navales replied after the 3 to 4 second delay “For the most part.” Approximately one minute prior to this question, Sgt. MacPhee said to Cpl. MacDonald words to the effect “get ready to do what you do”or “go and do that thing you do.” Cpl. MacDonald understood this to mean he was to get Moose from his police vehicle and bring Moose back to search. [ 43 ] Cpl.

MacDonald ran to his vehicle which was parked close by, put Moose on his leash and deployed Moose. Moose began to sniff immediately. Cpl. MacDonald testified Moose began to work immediately upon his release from the vehicle and this would have been known by Sgt. MacPhee. Looking then at this evidence as a whole, Mr. Navales submits Sgt. MacPhee directed the search prior to him having reasonable suspicion. [ 44 ] In my view, this submission fails to take into account two other pieces of evidence. First, Cpl. MacDonald testified it was up to Sgt. MacPhee to decide whether to utilize Moose, and second, Sgt.

MacPhee testified that after Mr. Navales replied he had “packed his own bags for the most part, he “nodded the dog in.” [ 45 ] When I take into account these two pieces, I do not find Sgt. MacPhee directed the search prior to him having crystallized his reasonable suspicion. Rather, I accept his evidence that upon receiving Mr. Navales’s reply, he made the decision to “nod in the dog.” Conclusion [ 46 ] In conclusion, the observations of Sgt. MacPhee were sufficient to reasonably support his suspicion Mr. Navales was in possession of contraband. Therefore, I find no

section 8 breach of Mr. Navales’s Charter rights. Heard on the 2 nd day of May, 2011 to the 4 th day of May, 2011. Dated at the City of Calgary, Alberta this 28 th day of June, 2011.

E.A. Hughes J.C.Q.B.A. Appearances: Scott Couper For the Crown Karen Molle Molle Roulston Chow for the Accused