Alberta (Justice and Attorney General) v. Petros, 2011 ABQB 541

Court of Queen ’ s Bench of Alberta Citation: Alberta (Justice and Attorney General) v. Petros, 2011 ABQB 541 Date: 20110906 Docket: 1001 18297 Registry: Calgary Between: Alberta (Minister of Justice and Attorney General) Applicant - and - Daniel Lejam Petros and the Chief of Police of the Calgary Police Services Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________ I.

INTRODUCTION [ 1 ] This action is brought by the Minister of Justice and Attorney General for Alberta to confiscate a motor vehicle belonging to the Respondent, Mr. Daniel Lejam Petros, which the Minister alleges is an instrument of crime. The Minister advances this application pursuant to the Victims Restitution and Compensation Payment Act , S.A. 2001, c. V-3.5 (the “Act”).

For the reasons that follow I hereby grant the order of forfeiture sought by the Minister. [ 2 ] One of the novel issues raised by this case is whether the Minister can rely on unlawfully obtained evidence in these civil forfeiture proceedings. In my view, the answer must be no. To hold otherwise would leave an individual without recourse to a remedy after the full and considerable power of the State has been used to undermine that person’s constitutionally protected rights. The Minister must be held to a higher standard.

[ 3 ] On the facts I find the police lacked reasonable and probable grounds to arrest Mr. Petros and search him incident to that arrest. Accordingly, I find that Mr. Petros’ rights under ss. 8 and 9 the Canadian Charter of Rights and Freedoms ( Charter ) were violated, and the factors informing the s. 24(2) analysis militate against admitting any evidence unlawfully obtained. [ 4 ] However, I also find Mr. Petros severed any privacy interest he might have had in five individually wrapped packages of cocaine when he abandoned those drugs in the back seat of the police vehicle. As a consequence, Mr.

Petros’ right to be secure against unreasonable search and seizure was not engaged when Cst. Boekelheide searched the back of the police vehicle. Therefore, evidence relating to the discovery of those drugs is admissible, as is evidence related to additional drugs discovered during the subsequent strip search of Mr. Petros at the arrest processing centre. [ 5 ] On the strength of the admissible evidence I am satisfied that the Minister has met his onus pursuant to the Act to demonstrate, on a balance of probabilities, that the restrained vehicle was an instrument of crime. On the other hand Mr.

Petros has elected not to adduce any independent evidence in an attempt to satisfy his onus under s. 19.93(1)(b). In the result, the property disposition order sought by the Minister is granted. II. FACTS [ 6 ] In 2010 Mr. Petros was arrested and charged with possession for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c-19. The basis for both Mr. Petros’ arrest and the Minister’s application to confiscate Mr.

Petros’ motor vehicle arise from the following events, described in detail in the affidavit of Detective Michael Shute of the Calgary Police Service. [ 7 ] On August 9, 2010 Det. Shute was undertaking surveillance on an unrelated matter near 17 th Ave. and 14 th St. S.W. in Calgary, Alberta. He observed a female acting suspicious and suspected she was looking for drugs. This female proceeded to enter a small, blue vehicle occupied by two unknown males.

Continuity of the vehicle was not maintained, but a few minutes later that same small, blue vehicle reappeared with the same occupants and parked approximately 100 yards from Det. Shute’s position. [ 8 ] One of the male passengers exited the vehicle and appeared to be “tweaking”, a behaviour Det. Shute believed to be indicative of cocaine use. Det. Shute formed the opinion that this individual was waiting to pick up drugs. Det. Shute then observed a 2003 Volkswagon Jetta with Saskatchewan license plates, subsequently discovered to belong to Mr.

Petros, pull alongside the unknown male and slow down to allow that person to enter the rear of the vehicle. Once the unknown male was inside, the Jetta sped up and turned into an alley running parallel to 17 th Ave. Approximately 20 seconds after the Jetta parked in the alley, Det. Shute observed the unknown male walk out of the alley and cross 15 th St. clutching something in the closed fist of his left hand, before re-entering the passenger side of the small, blue vehicle. At this point Det.

Shute formed the opinion that a drug transaction had taken place and communicated his observations and conclusion over the police radio to his fellow officers. [ 9 ] A second officer, Det. Haddad, observed the Jetta travelling eastbound on 17 th Ave. and through an open window he observed a male driver, later identified as Mr. Petros, and a second person in the passenger seat. A few minutes later Det. Shute noticed the Jetta parked along 17 th Ave. and observed Mr. Petros accept a call on a cell phone while standing in front of the car. After the call Mr. Petros and Mr.

Zafra entered the Jetta and continued travelling eastbound on 17 th Ave. [ 10 ] A few blocks later Det. Shute, with assistance from Det. Carriere and Cst. Boekelheide in a marked police vehicle, intercepted the Jetta and conducted a traffic stop at which time both Mr. Petros and his passenger were arrested for possession for the purpose of trafficking. A search incident to arrest of both suspects did not disclose any drugs on their person, after which both suspects were detained in the rear of two separate police vehicles.

A search of the Jetta incident to the arrest did not disclose any drugs in the vehicle. [ 11 ] During the vehicle search a cellular phone from the vehicle continually rang. Det. Shute covertly answered the phone and engaged in a conversation regarding the sale of crack cocaine. Det. Shute and the caller agreed to the sale of drugs and a location where the sale would be completed. The caller advised Det. Shute that he would be driving a white Suzuki Sidekick. Approximately ten

minutes later a white Suzuki Sidekick attempted to enter the parking lot where the caller had agreed to meet Det. Shute. The entrance was blocked so the driver of the Sidekick parked along the street and exited the vehicle. As Det. Shute approached the driver tried to escape but was caught and subsequently arrested. During questioning at the scene the driver told Det. Shute that he was told to call the cell phone to purchase half an ounce of cocaine. As a drug transaction had not actually taken place, the driver of the white Suzuki Sidekick was released. [ 12 ] Det.

Shute subsequently engaged in another conversation on the cell phone from the Jetta in which a second caller asked for an “80”. Det. Shute asked the called to clarify whether he was looking for an 80 of hard or soft, and the caller stated he wanted an 80 of hard. Based on his experience Det. Shute concluded this communication was for the purpose of purchasing drugs. [ 13 ] Having not found any physical evidence of drugs on his person or in Mr. Petros’ vehicle, Det. Shute was ready to release Mr. Petros pending further investigation. Once Mr. Petros was removed from the rear of the police vehicle, Cst.

Boekelheide searched the back seat whereupon he discovered five individually wrapped packages of cocaine totalling five grams. Det. Shute was advised by Cst. Dyck that he had searched the police vehicle prior to his shift and there was no cocaine under the back seat at that time, and Mr. Petros was the only person to occupy the back seat of that police vehicle on the day these events took place. Mr. Petros was re-arrested and taken to the arrest processing centre where Cst. Dyck strip searched Mr. Petros and discovered a further 13.7 grams of crack cocaine hidden under his scrotum. [ 14 ] Det.

Hudacin of the Calgary Police Drug Unit provided a professional opinion that the use of the Jetta by Mr. Petros was consistent with a ‘dial-a-dope’ operation for drug trafficking. Det. Hudacin formed this opinion based exclusively on the police report and his professional experience. [ 15 ] On December 7, 2010 the Minister obtained a restraint order against the Jetta pursuant to the Act , and initiated proceedings for legal forfeiture alleging the motor vehicle was an instrument of crime, namely an instrument used in the trafficking of illicit drugs. III.

ISSUES [ 16 ] The primary issues that I have considered include: (

i) Does the Charter apply under these circumstances? (ii) If so, was the evidence adduced by the Minister that tended to prove illegal activity unlawfully obtained? (iii) If so, do the circumstances justify a remedy under s. 24(2) of the Charter ? (iv) If so, is there sufficient evidence remaining for the Minister to satisfy his onus to demonstrate the restrained property was an instrument of crime? IV. POSITIONS OF THE PARTIES [ 17 ] The Minister alleges Mr. Petros was running a ‘dial-a-dope’ operation from the restrained motor vehicle, which brings the vehicle within the meaning of “instrument of illegal activity” and subject to forfeiture pursuant to s. 19.94 (

b) of the Act . In advancing this application the Minister relies exclusively on the affidavit evidence of Det. Shute. The Minister argues that since Mr. Petros has not denied the allegations, adduced any evidence to the contrary, or adduced any evidence to satisfy Mr. Petros’ onus pursuant to s. 19.93(1) (

b) of the Act, the Minister’s onus to demonstrate the restrained property is an instrument of illegal activity has been satisfied. Therefore, according to the Minister, an order of forfeiture should be forthcoming.

[18] Mr. Petros alleges he was unlawfully arrested on the day in question because Det. Shute lacked reasonable and probablegrounds to make the arrest. Mr. Petros also alleges that as a consequence, the search incident to his arbitrary arrest was itself unlawful.Last, Mr. Petros alleges his s. 10(

b) rights were infringed because he was not provided with a timely opportunity to obtain and instructcounsel without delay after indicating his desire to do so. [19] Mr. Petros asks this Court to excise from the affidavit of Det. Shute any reference to evidence obtained in violation of Mr.Petros’ Charter rights, as described above. Mr. Petros argues that if this information is removed from consideration there is aninsufficient basis to support the restraint order and it should be revoked. Additionally, Mr. Petros argues that if Det. Shute’s affidavit isexcised of any and all reference to unlawfully obtained evidence the Minister is unable to meet his onus pursuant to s. 19.93(1)(

a) of theAct. V. ANALYSIS (

i) Does the Charter apply under these circumstances? [20] The Minister and Mr. Petros dispute the applicability of the Charter in this civil forfeiture proceeding. In determining thisquestion, I note that the purpose of the Charter “is to guarantee and to protect, within the limits of reason, the enjoyment of the rightsand freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms ...”: Hunter v.Southam Inc., (SCC), [1984] 2 S.C.R. 145 at 156. Dolphin Delivery Ltd. v.

R.W.D.S.U., Local 580, (SCC), [1986] 2 S.C.R. 573 at 599-601, makes it clear that the Charter does not apply to strictly private litigation. However, this matter,while civil in nature, is not strictly private. The Alberta government, on behalf of the public, is advancing an action based on its ownstatute in order to confiscate the property of an individual. [21] As a starting point I take the view that the Charter does apply as evinced by s. 32 of The Constitution Act, 1982, beingSchedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 32.

(1) This Charter applies ... (

b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. [22] As a preliminary matter I note that the Supreme Court of Canada has found civil forfeiture legislation that targets the proceedsand instruments of crime, like the Victims Restitution and Compensation Payment Act, is validly within the jurisdiction of provinciallegislatures: Chatterjee v.

Ontario (Attorney General), 2009 SCC 19 , [2009] 1 S.C.R. 624 at para 1. [23] In this case the impugned police conduct was an exercise of government authority delegated to peace officers through thePolice Act, R.S.A. 2000,c. P-17, s. 38. In my opinion, where the full force of the state operates against the interests of an individual, withthe potential to impart significant legal consequences, it is a matter of fairness to afford a remedy to a person whose constitutionallyprotected rights have been infringed by government actors. [24] The Minister makes three arguments against the applicability of the Charter.

First, the Minister contends that Mr. Petrosfailed to advance any evidence to substantiate an illegal search or seizure in this matter. In oral submissions Mr. Petros pointed to theaffidavit of Det. Shute for evidence of the alleged Charter violations. I find this affidavit evidence satisfies the information requirementsof the Court in relation to making a determination respecting the allegations of arbitrary detention and illegal search and seizure.However, the record is insufficient to determine whether Mr. Petros’

section 10(

b) rights were infringed. [25] Second, the Minister argues that court-ordered forfeiture is not dependent on whether there has been an illegal search and

[25] Second, the Minister argues that court-ordered forfeiture is not dependent on whether there has been an illegal search andseizure. I understand this argument to mean that the Minister can satisfy his onus pursuant to s. 19.93(1)(

a) based solely on Det. Shute’sobservations prior to Mr. Petros being put under arrest. In other words, the Minister’s allegation that Mr. Petros used the restrainedproperty to transport drugs, pick up a buyer, and exchange an unknown amount of drugs is sufficient to demonstrate the Jetta was aninstrument of crime. [26] The difficulty with this position is that it necessarily relies on findings from the search incident to arrest to satisfy this Court,on a balance of probabilities, that the restrained property was an instrument of crime. Prior to finding the physical drugs, Det.

Shute hadno conclusive evidence that Mr. Petros was transporting illicit material in the Jetta. Moreover, Det. Shute’s affidavit discloses only hisspeculation that the person who entered and then exited Mr. Petros vehicle was, in fact, a buyer of drugs, or that Mr. Petros did exchangewith this person an unknown quantity of drugs. At no time did Det. Shute speak with the alleged buyer or verify what was in his lefthand, and Det. Shute did not have the benefit of any other witness who could describe what happened in the Jetta while it was parked inthe alley.

In my view, this evidence is insufficient for the Minster to discharge his onus under the Act. On this basis alone, the Minister’sapplication would fail. For the Minister to succeed something more is required, and that something is the physical evidence discoveredonly after Mr. Petros was detained. [27] Third, the Minister argues that a more flexible approach to evidentiary issues is required in the civil context. Specifically, theMinister relies on P. (D.) v. Wagg, (2004) (ON CA), 239 D.L.R. (4th) 501 at para. 77 (Ont.

C.A.) for the propositionthat “the analysis of whether or not to exclude evidence for a Charter breach is entirely different in the civil context than in the criminalcontext”. In that case the question before the Court was whether a civil matter arising from the same facts was bound by an earlierdecision of the criminal court to render inadmissible certain statements made by the defendant to the police in breach of the accused’s s.10(

b) rights. [28] In the same paragraph the Ontario Court of Appeal held that a subsequent civil proceeding was not bound by an early criminalruling on admissibility, and left open the possibility that Charter-infringing conduct in a criminal context would not necessarily be so in acivil context. [A]ccepting the comment from the Divisional Court that a statement "cannot be taken contrary to the Charter for criminal purposes butnot contrary to the Charter for civil purposes" does not require accepting, in the civil proceedings, the determination of admissibilitymade for the purpose of the criminal proceedings. [29] I agree with this principle.

For example, I do not expect the judge that will preside over Mr. Petros’ criminal proceedingshould be bound by my decision with respect to Charter violations. For one, it is likely that judge will have additional information uponwhich to base his or her decision, such as viva voce evidence from Det. Shute’s examination-in-chief and cross-examination, as well asthat from other attending officers. It is also possible that Mr. Petros will testify and provide additional evidence in support of the allegeds. 10(

b) infringement. [30] It would perpetrate unfairness on the parties to bind any subsequent criminal proceedings to my findings in relation to Charterviolations. Furthermore, since each proceeding is litigating discrete and unrelated matters - whether a motor vehicle is an instrument ofillegal activity versus Mr. Petros’ criminal culpability in respect of possessing and trafficking drugs - neither the doctrine of res judicatanor issue estoppel apply. [31] That said, in my view the Minister has taken the principle in Wagg too far.

The suggestion that evidence may be treateddifferently in civil versus criminal proceedings does not necessarily imply that this will always be so. Countervailing considerationsinclude the Court’s duties to ensure justice is done between the parties, and to ensure that any decision to exclude evidence pursuant tothe Charter does not bring the administration of justice into disrepute.

I am of the opinion that to bypass Charter scrutiny incircumstances where the Minister wants to rely on unlawfully obtained evidence to permanently deprive an individual of his or her realor personal property would have an adverse impact on public confidence in the administration of justice. [32] The Minister also advances Gonzales v.

Alberta (Driver Control Board), 2003 ABCA 256, for the proposition that proceduralsafeguards necessary in a criminal context do not play the same role in a civil context because the legal ramifications for an accused aremuch more significant (loss of liberty) versus consequences of a purely civil nature (loss of driving privilege). In that case Mr. Gonzaleschallenged the constitutionality of a provincial program that automatically suspends an operator’s license for 90 days based on a peaceofficer’s belief, on reasonable and probable grounds, that an individual has been driving under the influence of alcohol.

[33] The Court of Appeal upheld the constitutionality of the law and dismissed the applicant’s contention that the program forcedthe Alberta Transportation Safety Board (ATSB) to consider unlawfully obtained evidence when a driver appealed a suspension. In itsjudgment, the Court noted the ATSB was not a court of competent jurisdiction under s. 24(1) and thus lacked authority to excludeunlawfully obtained evidence as a remedy pursuant to the Charter.

However, at para. 58, the Court observed that administrative tribunalsare bound by a duty of procedural fairness, which varies given the circumstances, but could require a tribunal not to consider evidence. [34] I find Gonzales to be a case distinguishable on its facts largely on account of the administrative context for the decision.

First,the instant case is before the Court of Queen’s Bench of Alberta, which is a court of competent jurisdiction under the Charter that hasjurisdiction to award remedies under s. 24. [35] Second, the administrative consequences in Gonzales were much less severe than under the terms of the Act. In that case theproduct of the administrative scheme was a temporary loss of driving privileges. Under the Act the government can permanentlyconfiscate an individual’s property, which could include his or her home.

While not rising to the level of loss of liberty, there can be nodoubt that the permanent loss of a person’s home is a significant legal outcome. [36] Third, the content of procedural fairness in the context of a tribunal varies with the circumstances: Baker v. Canada (Ministerof Citizenship & Immigration), (SCC), [1999] 2 S.C.R. 817 at 837. By contrast, fairness in superior court is dictated bythe applicable rules of court and the concept is not as elastic as in the administrative realm.

I accept the Court of Appeal’s statement atpara. 30 of Gonzales that [i]n the criminal context, swiftness must yield to procedural safeguards. In a civil context, the balance of societal interests againstindividual privilege changes the balance in favour of the former. However, in my view society’s interest in ensuring the government cannot use unlawfully obtained evidence to permanently dispossessan individual of his or her property tips the balance in favour of more, not fewer, procedural safeguards. [37] To conclude my analysis on this question and give effect to the words of La Forest J. in McKinney v.

University of Guelph, (SCC), [1990] 3 S.C.R. 229 at 261, that “the Charter is essentially an instrument for checking the powers of governmentover the individual”, the present circumstances must attract Charter scrutiny. Consequently, I find Charter protection and remediespursuant to s. 24 apply in order to insulate the fairness of civil forfeiture proceedings under the Act. (ii) Was the evidence adduced by the Minister that tended to prove illegal activity unlawfully obtained? (

a) The search incident to arrest [38] The search of Mr. Petros and his motor vehicle was a warrantless search incident to his arrest. Since it is not contended thatthe search was executed in an unreasonable manner, the lawfulness of the search depends on whether the arrest was itself lawful, whichturns on whether or not there were reasonable and probable grounds to make the arrest. [39] Cst. Boekelheide arrested Mr. Petros pursuant to an instruction received from Det. Carriere. Det. Carriere’s first directobservation of Mr. Petros was approximately fifteen minutes earlier. While Det.

Carriere was following the last known direction of the suspect’s vehicle he came upon the Jetta parked on 17th Ave. near 8th St. S.W., where he observed Mr. Petros engaging in a mobilephone conversation prior to entering his vehicle and driving away. Without more, Det. Carriere’s observations are insufficient to formreasonable and probable grounds to lawfully justify the arrest. [40] However, I accept the affidavit evidence of Det. Shute that he communicated his observations over the police radio to Det.Carriere in respect of a drug transaction he believed had taken place inside the Jetta a few minutes earlier.

As such, the inquiry turns towhether Det. Shute’s observations, in conjunction with Det. Carriere’s observations, can satisfy the threshold for reasonable andprobable grounds to arrest Mr. Petros.

[41] Det. Shute observed a female in a MacDonald’s parking lot “acting suspicious” and concluded she was looking for drugs. Healso witnessed a male, who he had observed riding in the same passenger vehicle as the female, standing near the street demonstratingbehaviour he believed was consistent with cocaine use, and concluded this individual was waiting to pick up drugs. Next Det. Shute sawMr. Petros’ vehicle drive up to this unknown male and slow down while the male entered through the rear door.

The vehicle proceededto enter a nearby alley, apparently beyond the view of the detective, and 20 seconds later that same unknown male emerged from thealley and crossed the street clutching something in his left fist. At this point Det. Shute formed the opinion that a drug transaction hadjust taken place inside Mr. Petros’ vehicle. [42] I do not find these observations constitute reasonable and probable grounds. First, Det. Shute’s characterization of the whitefemale’s conduct as “suspicious”, which led to his conclusion that she was looking for drugs, is completely without support. There is nodescription in Det.

Shute’s evidence of why he considered the activity suspicious, or any objective foundation for his conclusion that thisperson was looking for drugs, versus looking for some non-illicit thing or simply undertaking some other innocuous activity. [43] Second, from Det. Shute’s affidavit it appears he did not actually observe what happened in Mr. Petros’ vehicle during thealleged drug transaction. He did not witness an exchange between the unknown male and any other occupant of the vehicle. Morever,Det. Shute’s evidence is silent on whether the unknown male had anything in either hand while Det.

Shute was observing him on thestreet before the alleged buyer entered Mr. Petros vehicle. It is possible the alleged buyer entered the vehicle holding something, andperhaps the same thing, in his left hand. [44] Third, Det. Shute was not relying on information from an informant as to who was in the vehicle or for what purpose. Neitherdid Det. Shute have the benefit of any other witness to provide an account of what might have transpired during the 20 second interludein the alley.

There is also no evidence that running the license plate identified the Jetta as belonging to someone known to police andassociated with the drug trade. While it was open to Det. Shute to detain the alleged buyer for investigative purposes and question him,he opted not to do that. [45] Fourth, there is no evidence before the Court that the location of the alleged drug transaction was known to police as a regularplace for such things to occur. [46] Fifth, Det. Shute’s affidavit is silent with respect to any credentials and experience he may possess that might otherwiseprovide a foundation for Det.

Shute’s ability to form a reliable opinion about the behaviour of strangers using cocaine, or with respect tothe indicia of a drug transaction. [47] Based on the foregoing I am unable to conclude the police had reasonable and probable grounds to arrest Mr. Petros. WhileDet. Shute clearly held a subjective belief that he had reasonable and probable grounds to make the arrest, those grounds were notobjectively reasonable: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 at 250. Instead Det.

Shute acted on a hunch - a hunchthat ultimately proved correct - but the end cannot justify the means. [48] I find the unlawful arrest violated Mr. Petros’ right not to be arbitrarily detained pursuant to s. 9 of the Charter, which in turnrenders the consequential search incident on arrest unlawful. As a result, I hold that all evidence acquired by the police pursuant to thesearch incident on arrest was unlawfully obtained. For clarity, I am referring to derivative evidence acquired through the covert use ofthe mobile phone found in Mr. Petros’ motor vehicle.

The physical evidence of the drugs is dealt with separately, below. (

b) The search of the police vehicle [49] A further question arises as to whether Mr. Petros’ s. 8 Charter right is engaged in respect of the search of the back of thepolice vehicle, which I view as distinct from the search incident to arrest. An individual’s right to be secure against unreasonable searchand seizure is only capable of being infringed if that person has a reasonable expectation of privacy in the place searched. [50] A person’s reasonable expectation of privacy is determined based on the totality of the circumstances: R. v. Patrick, 2009SCC 17 at para. 26 affirming R. v. Tessling, 2004 SCC 67 at para. 19 and R. v. Edwards, (SCC), [1996] 1 S.C.R. 128 atpara. 45:

... 5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. ... 6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (

i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and vii) the objective reasonableness of the expectation. [ 51 ] Using these factors as a guide, on the totality of these circumstances I conclude that Mr. Petros did not have a reasonable expectation of privacy in the area of the police vehicle where he was temporarily detained. While Mr.

Petros was present at the time of the search; he did not possess or control the police vehicle; he did not have the ability to regulate access to it; and he had no historical use or association with the police vehicle whatsoever. In addition, I find as fact that Mr. Petros abandoned the drugs in the back of the police vehicle. In other words, viewed objectively, Mr. Petros’ conduct was inconsistent with a continued assertion of a privacy interest in the drugs or any information about him or his lifestyle that may be inferred therefrom: Patrick at paras. 25 and 42 . [ 52 ] Consequently, if Mr.

Petros had no reasonable expectation of privacy his s. 8 Charter rights could not have been breached in respect of this search. Therefore, I find that the evidence discovered in the police vehicle was lawfully obtained and served as reasonable and probable grounds for Mr. Petros re-arrest. Moreover, the fact that a previous pat down search did not disclose the presence of drugs that were evidently contained on Mr. Petros’ person provided further reasonable and probable grounds for the strip search carried out at the arrest processing centre.

The strip search disclosed an additional 13. 7 grams of hidden cocaine, which in my view was also lawfully obtained. (iii) Do the circumstances justify a remedy under s. 24(2) of the Charter ? (a) Section 24(2) analysis [ 53 ] First, as noted above, Mr. Petros’ s. 8 rights were not engaged in relation to the search of the police vehicle.

Therefore, evidence of the drugs found in the police vehicle, and evidence of the drugs found as a product of the strip search are admissible and do not attract any form of Charter remedy. [ 54 ] The question is whether admitting the unlawfully obtained evidence would bring the administration of justice into disrepute. For the reasons that follow I would exclude this evidence in the manner sought by Mr. Petros, subject to my conclusions regarding the proper procedure prescribed by the Act . [ 55 ] In R. v.

Grant , 2009 SCC 32 at paras. 133-139 , the Supreme Court of Canada set out three primary considerations that inform the s. 24(2) analysis. First is the seriousness of the Charter infringing conduct. Second is the impact of the breach of the individual’s protected Charter interests. Third is the impact of admitting the evidence on society’s interest in having the case adjudicated on its merits.

[ 56 ] Within the context of this case, the first consideration weighs in favour of admitting the evidence. I do not find the police conduct was abusive, and there is no evidence that Mr. Petros was the subject of discriminatory police practices. In my view the police were acting in good faith in arresting Mr. Petros based on Det. Shute’s direct observations that, when combined with his skills and experience, brought him to the conclusion a drug transaction had taken place. While I find Det.

Shute’s subjective belief that he had reasonable and probable grounds was not objectively reasonable, this case is close to the line. It would not have taken much more on the part of Det. Shute or Det. Carriere to lawfully ground the arrest. [ 57 ] The second consideration, the impact of the breach on the individual Charter protected interests, weighs in favour of exclusion. As in R. v.

Ramsum , 2003 ABQB 45 at para. 32 , I agree the police tactic of using a seized cellular phone to impersonate an arrested person in order to set up drug transactions is simply good investigative police work based on fortuitous circumstances (presuming the cell phone was lawfully obtained). However, Mr. Petros’ undoubtedly holds a very high expectation of privacy in his mobile phone. This conclusion finds support in R. v.

Manley , 2011 ONCA 128 at para. 39 , where the Court of Appeal stated Cell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information — all manner of private voice, text and e-mail communications, detailed personal contact lists, agendas, diaries and personal photographs.

An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant invasion of the Charter -protected privacy interests of arrested persons. [ 58 ] In a similar vein, the Supreme Court of Canada referred to an exceptionally high expectation of privacy in an individual’s personal computer in R. v.

Morelli , 2010 SCC 8 at paras. 2-3 : [2] It is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer. [3] First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you.

There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created.

The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet — generally by design, but sometimes by accident. [ 59 ] In my view Justice Fish’s comments apply with equal force to modern cellular phones, which are essentially ultra portable computers featuring many of the same capabilities as a conventional personal computer. Thus, if the police acquired Mr.

Petros’ mobile phone unlawfully the impact of the breach on his privacy interests is very serious. [ 60 ] The third consideration, the impact of admitting the evidence on society’s interest in having the case adjudicated on its merits, embodies countervailing factors. On one hand, I find the evidence derived from the seized cellular phone very reliable, which points in favour of admission. The most obvious conclusion to be inferred from the cell phone conversations and consequential events is that Mr. Petros was trafficking narcotics, which society has a genuine interest in preventing.

However, this is also a case where excluding the impugned evidence does not cripple the Minister’s case. Whatever my conclusion in respect of the evidence derived from the seizure and use of Mr. Petros cell phone, the Minister can still rely on evidence of the physical drugs. In other words, society’s interest in having this case adjudicated on the merits can still be satisfied even where the derivative evidence is excluded. [ 61 ] Taken together, I am of the view that admitting the evidence derived from the use of the seized cellular phone would bring the administration of justice into disrepute.

Therefore, the evidence derived from the covert use of the cell phone should be excluded. (

b) Giving effect to the remedy

[62] Given that some circumstantial evidence tending to prove the Jetta was an instrument of crime was ascertained in breach ofMr. Petros Charter rights, the inquiry now turns to how to give effect to the exclusion of evidence. Mr. Petros analogizes the issuance ofthe restraint order to circumstances where a search warrant was improperly obtained. Specifically, Mr.

Petros asks that the affidavitsworn to support the ex parte restraint order be excised of any and all reference to illegally obtained evidence, leaving the remainingevidence to be evaluated for its sufficiency by a reviewing judge charged with determining whether the restraint order was properlyissued: R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 at 1460-61; Attorney General of Quebec v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708 at 742. [63] In principle, I agree.

I find this approach is just and appropriate in the circumstances, and accords with the statutory procedureset out in the Act respecting forfeiture of property that is an instrument of crime. The steps of that procedure relevant to this proceedingare summarized below. Step 1, s. 19.3: Restrain order application. The Minister may apply to the Court for an ex parte restraint order against theproperty alleged to be an instrument of crime. Step 2, s. 19.4: Determination of the restraint order application.

On hearing the Minister’s application, the Court may grantthe restraint order if the Court is satisfied that there are reasonable grounds to believe the property in question is an instrument of illegalactivity. Step 3, s. 19.6(1)(b): Restraint order review. A respondent may, but is not compelled to, apply for a review of the restraint orderprovided this application is made after the granting of a restraint order but prior to the property disposal hearing (see also s. 19.7). Step 4, s. 19.8: Property disposition hearing.

If the restraint order is unchallenged or survives a challenge, the Minister andrespondent submit arguments at a property disposal hearing to determine, on a balance of probabilities, whether the property in questionwas used as an instrument of crime; and whether the respondent was associated with, or had knowledge of, illegal activity carried outusing the restrained property (see also s. 19.93). [64] On my reading of the legislation I conclude that a respondent’s singular opportunity to challenge the admissibility of evidenceis Step 3 - the restraint order review.

This is the precise procedural step where a respondent should bring a challenge premised onunlawfully obtained evidence. If a court agrees that revision of the affidavit supporting the original restraint order is necessary, theprocess of excision and amplification should follow the guidelines set out in Garofoli and R. v. Araujo, [2000] S.C.R. 992 at 1020-21. [65] I also agree with Mr.

Petros that the Supreme Court of Canada’s ruling in Laroche informs the appropriate standard withrespect to the jurisdiction of a court reviewing a restraint order pursuant to the Act (which is different than the standard for reviewingsearch warrants and wiretaps as set out in Garofoli at 1452). Specifically [t]he judge must decide whether he or she would have made the same decision as the authorizing judge, having regard to all of theevidence in the judge’s possession following the hearing of the application for review.

If the reviewing judge does not share the opinionof his or her colleague ... the reviewing judge must correct the previous judge’s error. [66] The necessary implication flowing from my

interpretation of the Act is the loss of a respondent’s opportunity to challenge theadmissibility of evidence after Step 3. In other words, if a respondent does not apply for a restraint order review, the affidavit filed insupport of the restraint order will be received into the property disposition hearing as originally submitted. At that point the evidence willbe immune from further challenge regarding admissibility. Other evidentiary attacks at Step 4 directed at the sufficiency, reliability, orlawfulness of the evidence will only go to weight.

I believe this reading is consistent with the intent of the Legislature as evinced fromthe procedure set out in the Act. (iv) Is there sufficient evidence remaining for the Minister to satisfy his onus to demonstrate the restrained property was aninstrument of crime? [67] In the instant case certain of the evidence was acquired in breach of Mr. Petros’ ss. 8 and 9 Charter rights. However, based on

my procedural conclusions above, I find it fatal to Mr. Petros’ position that he did not apply for a restraint order review. As a result, Mr. Petros has lost the opportunity to challenge the admissibility of that evidence and have the related paragraphs excised from Det. Shute’s affidavit. [ 68 ] As such, I have considered the entirety of Det. Shute’s affidavit and find that Mr. Petros’ Jetta was, in fact, used as an instrument to possess illegal drugs for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . Consequently, I find the Minister has met his onus pursuant to s. 19.93(1) (

a) of the Act . In addition, since Mr. Petros has not adduced any evidence that could be used to satisfy his onus under s. 19.93(1)(b), Mr. Petros has failed to meet his burden. [ 69 ] I also note that in this particular case my conclusion would not differ had the evidence derived from the use of the cell phone been excised from Det. Shute’s affidavit. In my view, the evidence of the physical drugs abandoned by Mr. Petros and the evidence of the drugs discovered during Mr. Petros’ strip search is sufficient for the Minister to succeed in this application. VI.

CONCLUSION [ 70 ] In the result, the property disposition order sought by the Minister is hereby granted. The Minister shall also have party and party costs in relation to this action. Heard on the 8 th day of June, 2011. Dated at the City of Calgary, Alberta this 6th day of September, 2011. W.P. Sullivan J.C.Q.B.A. Appearances: C. Smith for the Applicant, the Minister of Justice & Attorney General K. B. Molle for the Respondent, David Lejam Petros