R. v. Thomas, 2011 ABQB 61

Court of Queen ’ s Bench of Alberta Citation: R. v. Thomas, 2011 ABQB 61 Date: 20110204 Docket: 090652512Q1 Registry: Edmonton Between: Her Majesty the Queen Crown (Respondent) - and - Sally Thomas Accused (Applicant) _______________________________________________________ Reasons for Ruling on Voir Dire of the Honourable Mr. Justice M.A. Binder _______________________________________________________ [ 1 ] The Accused applies for an order excluding evidence on the grounds that her ss. 8, 9, 10(

a) and 10(

b) rights were breached when she was arrested and searched. Background [ 2 ] The facts are fairly straightforward. Cst. Johnson, a member of a five team RCMP drug unit (the Unit) operating out of the Stony Plain detachment in the Province of Alberta, received informer information on May 29, 2009 that Sally Thomas, a resident of Enoch Cree Nation near Edmonton, would be obtaining an unknown quantity of crack cocaine later that day in Edmonton, Alberta for distribution at Enoch. The informer advised that the Accused is a relative of Cody Thomas, and drove a brand new bright orange Chevrolet Camaro.

[ 3 ] Cst. Johnson knew there were files in the past regarding Cody Thomas. He ascertained that a Sally Thomas did indeed reside at Enoch, and on a CPIC check found that the Accused did have a new 2010 orange Camaro, a rare model at that time. The police decided to further investigate through surveillance. [ 4 ] Cst. Humbke was called to see if he would assist. He had previously been assigned to Enoch for over two years and could identify the Accused due to having met her on occasion in the band office where she worked, and where Cst. Humbke’s RCMP satellite office was located during his time at Enoch.

A number of other officers were engaged in the surveillance. [ 5 ] The vehicle was located at the Keg restaurant in the West End, the Accused and a male entered the vehicle and Unit followed it to a discrete location off the Yellowhead and 97 th Street in Edmonton. The officers on site observed another white vehicle drive up and park opposite the Accused's vehicle. Cst. Johnson witnessed the driver of the orange Camaro who was identified by Const.

Humbke at the Keg Restaurant as the Accused, exited the Camaro, entered the back seat of the white Acura, then exited within one or two minutes, re-entered the Camaro and proceeded in a westward direction while the Acura proceeded in a northerly direction on 97 th Street. Each member of the Unit was kept informed over the radio by the other members on a real time basis of what was transpiring during the investigation. [ 6 ] The Unit discussed what they had seen and heard and collectively formed the opinion that a drug transaction had taken place based on their experience, which confirmed the informer information.

As a result, Cpl. Creaser, the Supervisor of the Unit, made the decision to stop the Camaro and arrest the Accused for possession for the purpose of trafficking. [ 7 ] The Accused was arrested, the vehicle was searched and police located a bag of crack cocaine (29.2

g) in the purse on the driver's side against the centre console (“Cocaine”), as well as a cell phone (“Cell Phone”). The Accused argues that the arrest was unlawful and constituted a breach of her s. 9 Charter rights, and therefore the subsequent search incidental to the arrest was also unlawful and in breach of her s. 8 Charter rights. [ 8 ] The Accused was Chartered and cautioned at the scene, however after being strip searched at the detachment, she did not have access to counsel for approximately two hours. Cst.

Stiller who had escorted the Accused to the detachment and strip searched her, intended to give the Accused the opportunity to call counsel, but someone was in the phone room when the Accused had finished being processed, and as Cst. Stiller had to go out to another call she placed the Accused in cells and informed Cst. Wiebe of the situation. Eventually, Cst. Wiebe realized that the Accused had not had the opportunity to call counsel, and gave her access to the phone room. [ 9 ] The Crown concedes that the Accused’s s. 10(

b) rights were violated by the delay. I agree - a two hour delay is unacceptable. Analysis 1. Should the Cocaine, Cell Phone and other items of evidence made exhibits (collectively “Exhibits”) be admitted into evidence notwithstanding the breach of the Accused’s s.10(

b) Charter rights? [ 10 ] The Accused is correct in stating that such a breach is always serious in the sense that an accused should be provided with the means to exercise the right whether or not the police intend to attempt to elicit evidence from him or her. The Accused relies on R. v. Weaver , 2005 ABCA 105 , 363 A.R. 253 for the proposition that a nexus is not always required in order to establish the appropriateness of a remedy. However, the evidence in this case establishes that the failure to facilitate the Accused’s right to counsel at the earliest reasonable opportunity was due to oversight.

As well, there is an absolute lack of nexus between the evidence in this case and the breach, nor did the breach affect steps taken by the Accused in the interim. [ 11 ] The test in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 requires the Court to consider: (1) the seriousness of the Charter -infringing state conduct, (2) the impact of the breach on the Charter -protected interests of the accused, and (3) society's interest

in the adjudication of the case on its merits. I have found that the breach was due to an oversight. If there were any evidence that suchoversights constituted a systemic problem, this may well amount to serious Charter-infringing state conduct, however there was no suchevidence. The breach had little to no impact on the Charter-protected interests of the Accused, and society has an interest in theadjudication of the case on its merits in the circumstances of this case where there is no nexus between the real evidence and the s. 10(b)breach. 2. Was the Accused’s arrest lawful? [12] Peace officers are authorized to arrest persons under s. 495 (1) (

a) of the Criminal Code which provides that a peace officermay arrest without warrant a person who, on reasonable grounds, he believes has committed or is about to commit an indictable offence. [13] The Accused referred to R. v. Vollrath, 2010 ABQB 196 as indicating the type of investigatory steps which must be taken bypolice to confirm informant tips. Crown referred to R. v.

Debot, (SCC), [1989] 2 S.C.R. 1140. [14] In Debot Wilson J. stated at para. 53 that in weighing evidence relied on by the police to justify a warrantless search, there arethree concerns: Was the information predicting the commission of a criminal offence compelling? Was the source of the tip credible?Was the information corroborated by police investigation prior to making the decision to conduct the search? Wilson J. emphasized thateach of these factors does not form a separate test.

Rather, the "totality of the circumstances" must meet the standard of reasonableness,and weaknesses in one area may, to some extent, be compensated by strengths in the other two. [15] In discussing reliability of tips, Sopinka J. in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 at para. 68 statedthat the court must look to a variety of factors including the degree of detail, the informer’s source of knowledge, indicia of theinformer’s reliability such as past performance or confirmation from other investigative sources.

However, the tip must be assessed byrecourse to the totality of the circumstances and there is no formulaic test as to what this entails. [16] It is clear that Cpl. Creaser subjectively believed that he had grounds to arrest the Accused for possession of controlledsubstances. The issue is whether there is an objective basis to support his subjective belief: R. v. Loewen 2010 ABCA 255. I amsatisfied that he did. [17] The informant information was not anonymous and it was very specific. Registration of a 2010 orange Camaro in theAccused’s name was confirmed. She was identified as the driver at the Keg.

While neither the tip, nor what was perceived to be the drugtransaction, would constitute reasonable grounds on their own, a reasonable person possessing the experience of the officers in similardrug transactions (“short meet - discreet location”) would conclude that the interaction of the Accused with the occupant(

s) of the whiteAcura strongly corroborated the informant information received by Cst. Johnson. Together, the tip and the observed conduct providedreasonable grounds. [18] The Accused submits that there could be many explanations for her entry and exit of the Acura. However, the test isreasonable grounds. These officers were all experienced in investigating drug offences. They appropriately investigated the tip receivedby undertaking surveillance. They collectively agreed that what had been observed was a drug transaction.

While there might have been other possible fanciful explanations for what took place on 97th Street, those other possibilities do not detract from supporting theirsubjective belief on an objective basis. [19] Because I have found that the arrest of the Accused on drug charges was lawful, it follows that the search of the vehicle forevidence of drugs was also lawful as being incidental to the arrest. The Accused did not argue otherwise. 3.

If the Arrest had been found unlawful should the Exhibits nevertheless be admitted into Evidence? [20] If I had found that the police lacked reasonable grounds, I would not exclude the evidence in any event. As noted above, thetest in Grant, requires the Court to consider: (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach onthe Charter-protected interests of the accused, and (3) society's interest in the adjudication of the case on its merits. Any breach in termsof assessment of reasonable grounds in this case cannot be viewed as serious.

The officers undertook in good faith an investigation in

furtherance of information obtained about a crime to be committed. There was no evidence of any inappropriate conduct. If there was a breach, it simply amounted to a mistaken conclusion on the strength of the grounds. While an arrest and search without grounds is a serious incursion of rights, the evidence is reliable, essential to the Crown’s case. Society has a strong interest in an adjudication of this case on its merits given the seriousness of the offence and the circumstances of the police conduct. [ 21 ] I am mindful that there has been a breach of the Accused’s s. 10(

b) rights. In some cases, cumulative breaches may militate in favour of exclusion. In my view, the facts in this case do not support such a conclusion. Assuming the police made a mistake in assessing the strength of the grounds for arrest, that fact combined with the s. 10(

b) breach would not indicate any pattern of disregard for the Accused’s rights. Conclusion [ 22 ] The application to exclude evidence is dismissed. Heard on the 2 nd and 3 rd days of February, 2011. Dated at the City of Edmonton, Alberta this 4 th day of February, 2011. M.A. Binder J.C.Q.B.A. Appearances: Jonathan Martin for the Crown Nicole R. Sissons for the Accused