R. v. X.Y.Z., 2011 ABQB 95

Court of Queen ’ s Bench of Alberta Citation: R. v. X.Y.Z., 2011 ABQB 95 Date: 20110301 Docket: 090139098Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent / Crown - and - X.Y.Z. Applicant / Accused Restriction on Publication: By Court Order, information that may identify the persons described in this judgment as X.Y.Z. and Cst. C.P. may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.5. _______________________________________________________ Voir Dire Reasons for Judgment of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________

Introduction [ 1 ] The Crown charged X.Y.Z. (the “accused”) with one count of possession of cocaine for the purposes of trafficking, contrary to the Controlled Drugs and Substances Act , S.C. 1996, c. 19, s. 5(2). The accused has brought an application to have this Court stay proceedings against him, acquit him, or exclude all evidence that members of the Edmonton Police Service (“EPS”) obtained during their investigation. He argues that members of the EPS breached certain of his rights under the Canadian Charter of Rights and Freedoms ,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “ Charter ”). [ 2 ] In particular, the accused alleges that EPS members breached Charter ss. 7, 8 and 10(b) , which provide as follows: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8. Everyone has the right to be secure against unreasonable search or seizure. 10. Everyone has the right on arrest or detention ... (

b) to retain and instruct counsel without delay and to be informed of that right; ... Testimony [ 3 ] In the early morning of September 15, 2008, EPS Cst. Todd Hudec and Cst. C.P. were on patrol in the Dickensfield area of Edmonton, Alberta. It should be noted that the Crown applied for, and this Court granted, a publication ban on Cst. C.P.’s name. Cst. Hudec was driving a marked EPS patrol vehicle. He testified that, from his experience, police officers often find stolen vehicles driving in this area of Edmonton. Cst. Hudec, at that time, had been on the EPS force for seven and half years and Cst.

C.P. had been on the EPS force for three and a half years. [ 4 ] Cst. Hudec saw a silver Chrysler Neon vehicle (“Neon”) approaching his vehicle from the opposite side of the street. This model of vehicle, according to Cst. Hudec and Cst. C.P., is a target for car thieves. As a result, Cst. Hudec turned the police vehicle around so that he could see the licence plate on the Neon and do a check on it. [ 5 ] As the officers were following the Neon, it started to pick up speed and continued through two stop signs without stopping. Cst.

Hudec believed that the Neon was trying to evade his police vehicle, so he turned on the police vehicle emergency lights and the Neon braked hard, pulled over to the curb and stopped. [ 6 ] Cst. Hudec and Cst. C.P. approached the Neon; Cst. Hudec from the driver’s side and Cst. C.P. from the passenger’s side. The accused was the sole occupant of the Neon. Cst. Hudec told the accused to get out of the Neon, which he did. Cst. Hudec then handcuffed the accused and told him that he was "under arrest for dangerous driving and for traffic violations" (Trial Transcript, p. 16, ll. 15-16). Cst.

Hudec then took the accused back to the police vehicle. Before placing the accused in the police vehicle, Cst. Hudec did a pat-down search for weapons in the interests of officer safety. He found a wallet and $270 cash in the accused’s possession. Cst. Hudec, ultimately, did not issue the accused a ticket or summons for the alleged traffic violations.

[ 7 ] Once the accused was in the police vehicle, Cst. Hudec “cautioned and Charter ed” the accused, which means that he advised the accused of his right to contact counsel and that anything that the accused said could be used against him. Cst. Hudec testified that he read this from a card that he carried.

The accused responded by saying, in response to the reason for his arrest, “Yeah, I know”; in response to whether he wanted to talk to a lawyer, “Yeah, if I had one”; in response to whether he wanted to call a lawyer from a free legal advice service or any other lawyer, “I don’t know what I want”; and in response to whether he had anything to say, “No” (Trial Transcript, p. 17, ll. 6-13, p. 19, ll. 1-3). [ 8 ] Cst. Hudec discerned from this exchange that the accused did not say he wanted to contact a lawyer.

The accused, during his cross-examination, conceded that he knew he had a right to contact a lawyer. [ 9 ] Cst. Hudec asked the accused to identify himself. Cst. Hudec confirmed the accused’s identity with the accused’s driver’s licence. Cst. Hudec testified that he did not seek an explanation from the accused about the accused’s driving. [ 10 ] While this was going on in the police vehicle, Cst. C.P. was searching the area around the Neon. In response to an inquiry as to why she conducted that search, she responded by saying: ... for officer safety reasons. We don’t know who’s around us, what’s around us.

Check the area around us, the ground; don’t know if somebody we’ve just arrested may have dropped something on the ground. Observe what’s inside the vehicle (Trial Transcript, p. 81, ll. 3-5). Cst. Hudec and Cst. C.P. were not communicating with each other during this time. Cst. C.P. was aware of the reason why Cst. Hudec had arrested the accused, as she was standing very near to them as Cst. Hudec uttered those words. [ 11 ] When the accused exited the Neon, he left the driver’s side door open. Cst.

C.P. noticed that there was a sandwich bag in the driver’s side door pocket within which there were a number of other sandwich bags. To Cst. C.P.’s mind this is the type of packaging that drug dealers use for packaging drugs. As well, she noticed some folded currency in the cup holder on the console of the Neon. The currency ended up to be 10-dollar and five-dollar bills. [ 12 ] Cst. C.P. noticed the sandwich bags and the bills while standing outside of accused’s car. She noticed nothing else on this first observation.

The accused testified that the currency was in an ashtray-like compartment on the front of the console with its lid closed. He testified that he would throw money into this compartment after he bought fast food or for parking. This Court finds it unbelievable that fast food change and parking change would be in the form of folded bills. This Court does not accept this portion of the accused’s testimony and accepts Cst. C.P.’s testimony as to the nature and location of the money. [ 13 ] Because Cst. C.P. formed the opinion that there might be drugs in the Neon, she looked under the driver’s seat.

She testified that, from her experience, this is where drivers will discard their drugs when the police stop them. There, she found a bag and what she believed were 36 spitballs of crack cocaine. To obtain the drugs, she did not enter the Neon; she merely crouched down, reached in and extracted the drugs. After finding the drugs, she further searched the console of the Neon and found a drug pipe, some marijuana and a Motorola cellular telephone. [ 14 ] Cst. C.P. did not ask the accused’s permission to conduct her search. Nor did she have or obtain a warrant so to do. [ 15 ] Cst.

C.P. seized these items and turned them over to Cst. Hudec. Cst. Hudec then advised the accused that he was now under arrest for trafficking in cocaine. Cst. Hudec again “cautioned and Charter ed” the accused, but did not write down the accused’s responses. Cst. Hudec did not recall if the accused expressed a desire to contact a lawyer at that time. [ 16 ] Cst. Hudec learned that the accused had no criminal record. The accused told Cst. Hudec that he started selling drugs to make money quickly. While looking through the accused’s wallet, Cst. Hudec found a business card of another EPS officer. When Cst.

Hudec inquired why the accused had this card, the accused told Cst. Hudec that the accused “sold to this person” (Trial Transcript, p. 20, ll. 11-

12). Cst. Hudec then ceased his discussion with the accused concerning these matters. [ 17 ] The accused left the cellular telephone on when Cst. Hudec and Cst. C.P. stopped the Neon, which led Cst. Hudec to believe that the accused was new to the drug trade. Cst. Hudec testified that drug dealers usually turn off and lock their cellular telephones when the police stop them. During his conversation with the accused, Cst. Hudec left the accused’s cellular telephone on. It rang constantly. Cst. Hudec exited the police vehicle so that the caller would not hear the police radio and answered two of these calls.

The callers were looking for drugs. [ 18 ] The officers and the accused waited in the police vehicle for a tow truck that would tow the Neon. They then departed with the accused for the North Division police station. Cst. C.P.’s role in this matter then ceased. [ 19 ] While Cst. Hudec was walking with the accused to the cell area, the accused told Cst. Hudec that he had seen several police stations. Cst. Hudec learned only then that the accused was the son of an EPS officer. [ 20 ] Cst. Hudec then sat the accused on a bench by the telephone room and left. When Cst.

Hudec returned, he placed the accused into the telephone room so that the accused could contact a lawyer. Cst. Hudec testified that he would check the telephone to make sure there was a dial-tone on the telephone and instruct the accused to dial “9" before placing a telephone call. On the wall of the telephone room were the legal-aid number and the “1-866" number. Cst. Hudec suggested that the accused call his father. Cst. Hudec then left the accused alone in the room. Eventually, the accused exited the telephone room, although Cst. Hudec does not remember how or when. Cst.

Hudec did not ask the accused whether he had made any calls. Cst. Hudec then placed the accused in a cell. [ 21 ] The accused testified that Cst. Hudec’s only suggestion before leaving the accused in the telephone room was that it would be a good idea for the accused to contact his father. The accused further testified that Cst. Hudec did not tell the accused how to contact a lawyer, although the accused was aware of the posters on the wall instructing him on how to contact legal aid. The accused testified that he did call his father but he made no other telephone calls.

By the time the accused called his father, his father already knew that the accused had been arrested. [ 22 ] Cst. Hudec testified that throughout this ordeal, from the time he and Cst. C.P. stopped the Neon, the accused was very polite and cooperative. [ 23 ] Cst. Hudec explained to the accused that “he wanted to catch the bigger fish,” being the “accused’s boss” or the person who supplied the accused with the drugs. He further advised the accused that if the accused could provide information that would result in the arrest of the accused’s boss, Cst.

Hudec could deal with the charges that the accused was facing. Cst. Hudec understood that the accused wanted to assist the police in this regard. [ 24 ] This was Cst. Hudec’s first drug investigation. He had never handled informants before. After leaving the accused sitting on the bench, but before placing the accused in the telephone room, Cst. Hudec went to speak with his sergeant and staff sergeant and explained the situation. Cst. Hudec’s intended approach was to have the accused provide him with information concerning the accused’s drug supplier and Cst.

Hudec would pass that information on to the drug unit, who had expertise in surveillance and investigation of drug matters. In other words, the drug unit would do the leg work. Cst. Hudec testified that he could not do any surveillance on his own. He also testified that he had not told the accused this. The sergeant and staff sergeant confirmed to Cst. Hudec that they would ratify any agreement that Cst. Hudec entered into with the accused. [ 25 ] The accused’s father attended the police station to pick up the accused. Cst. Hudec advised the accused’s father of the “deal” he had made with the accused. Cst.

Hudec testified that he told the accused’s father that the accused was to provide information that would lead to the arrest and charge of the accused’s “foodboss” or drug supplier. [ 26 ] The accused and his father testified that the accused’s father dropped the accused off at the accused’s condominium. In the early afternoon of September 15, 2008, the accused’s father picked up the accused and they went to have breakfast. The accused’s father asked the accused if he would provide the information that Cst. Hudec was seeking. The accused responded in the affirmative.

The accused’s father took notes of their discussion and added to these notes by attending, with the accused, the location where the accused

thought his drug supplier lived. The accused’s father wrote down the address and confirmed that the vehicles the accused saw his drug supplier driving were the ones in the driveway of the residence. The accused’s father wrote down the licence plate number of one of the vehicles. He could not see the licence plate of the other vehicle. The accused’s father told the accused that he would provide this information to Cst. Hudec. [ 27 ] On the afternoon of September 15, 2008, Staff Sgt. Aston approached Sgt. Coughlan, who was then a detective in EPS’s drug unit, regarding the accused’s matter. Staff Sgt.

Aston contacted Sgt. Coughlan and Sgt. Coughlan’s then partner, Det. Czernik, and asked them to come to the North Division police station. Sgt. Coughlan was advised that the accused wanted to provide information in lieu of being charged. However, Sgt. Coughlan was not aware of the details of the alleged agreement between the accused and Cst. Hudec. [ 28 ] Sgt. Coughlan and Det. Czernick met with Staff Sgt. Aston and Sgt. Bond. Cst. Hudec testified that he was present at that meeting or a meeting involving Sgt. Coughlan, but Sgt. Coughlan did not testify to this effect. During this meeting, Sgt.

Coughlan learned that the accused had reported that he was regularly selling drugs and regularly selling to another police officer. Those in attendance agreed that the latter issue was the most serious issue with which they had to deal. This matter had to go to Internal Affairs, which is now known as Professional Standards, for investigation. Sgt Coughlan testified that he would not get involved with this matter until Internal Affairs had completed its investigation. [ 29 ] Cst. Hudec testified that he met with Sgt. Coughlan to explain how he planned to proceed with this matter. Sgt. Coughlan confirmed to Cst.

Hudec that EPS “does this all the time.” [ 30 ] A few days after the accused’s arrest, Cst. Hudec received the handwritten note that the accused’s father had prepared. It was a one-sheet piece of paper containing information that the accused’s father obtained from the accused. The piece of paper was entered as an exhibit in the voir dire .

It contained a first name, telephone number, address, a description of an individual (including height, weight, skin colour, ethnicity), a description of two motor vehicles, including the licence plate number of one of the vehicles and other somewhat cryptic information. [ 31 ] Cst. Hudec immediately forwarded this piece of paper to Sgt. Coughlan. Sgt Coughlan advised Cst. Hudec that he would have to await the conclusion of the Internal Affairs investigation before he would do anything with the information on the piece of paper. When the accused’s father inquired of Cst.

Hudec whether the information on the piece of paper was sufficient, Cst. Hudec told the accused’s father that he felt the information was “pretty decent.” At that time, Cst. Hudec felt he still had the assistance of other EPS units and he told this to the accused’s father. [ 32 ] Cst. Hudec did not call the telephone number or attend the address that was on the piece of paper. He felt that if he attended the address or called the telephone number on the piece of paper, this would “heat up” the possible drug supplier and the case would immediately “go cold.” [ 33 ] Sgt.

Coughlan examined the piece of paper and determined that the information was insufficient for him to begin a drug investigation. Furthermore, Cst. Hudec advised Sgt. Coughlan that the accused was “out of the game,” so the information was not fresh, in any event. Sgt. Coughlan testified that because of the paucity of information contained on the piece of paper, the drug unit would have to undertake a great deal of work to investigate this matter. Sgt. Coughlan did not feel it was worthwhile to begin an investigation based on this information. Accordingly, he returned the piece of paper to Cst.

Hudec and advised Cst. Hudec that he would not be getting involved. [ 34 ] Sgt. Coughlan elaborated as to why the information was insufficient. He testified that one of the more important things is that drug groups change their routine once a group member is arrested. If the drug unit tried to use any of the information that the accused provided, such as the telephone number or attending at the address, the information would “go cold.” [ 35 ] As far as the geographic locations outlined on the piece of paper, Sgt. Coughlan had no idea of the relevance of these locations.

Even if they were relevant, the locations change once there is an arrest of someone in the drug group. In

summary, Sgt. Coughlan testified that the information was essentially “ground zero” for an investigator; it provided very little information. It certainly contained insufficient information to support an arrest of the accused’s drug supplier. [ 36 ] In October, before the accused was to appear in court pursuant to the original promise to appear, the accused’s father

contacted Cst. Hudec with respect to it. Cst. Hudec replied “what PTA?” when the accused’s father asked about it. The accused’s father thought that Cst. Hudec was trying to be humourous, by suggesting that the promise to appear “never existed.” [ 37 ] On October 30, 2008, Sgt. Coughlan sent Cst. Hudec an email to confirm a prior conversation between them. In the email, Sgt. Coughlan confirmed that the piece of paper did not contain sufficient information. As well, he told Cst. Hudec that the drug unit did not have the resources or time to pursue this matter. Although Sgt. Coughlan invited Cst.

Hudec to set up a meeting between Sgt. Coughlan and the accused, Cst. Hudec did not pursue this. At Sgt. Coughlan’s suggestion, Cst. Hudec also inquired whether the criminal investigation

section could pursue this. That unit also told Cst. Hudec that it did not have the resources to commit to this. [ 38 ] During cross-examination, Sgt. Coughlan testified that the information on the piece of paper was not completely useless. It would, in his mind, carry more weight had he received it directly from a source, or informant, with whom he was working. If provided from another person, Sgt. Coughlan would have to confirm the information independently. Sgt.

Coughlan testified that when he was dealing with an informant, he would give the informant “homework.” In other words, he would try to have the informant obtain more information and facts. Neither Sgt. Coughlan nor Cst. Hudec gave the accused any “homework.” [ 39 ] Cst. Hudec testified that he had no further discussions with the accused or the accused’s father from the time that the accused’s father provided the piece of paper to him until December 2008. In December of 2008, Cst.

Hudec advised the accused’s father that the other units in the EPS were not cooperating with him in relation to the alleged agreement between Cst. Hudec and the accused. Cst. Hudec’s superior ordered him to charge the accused. Cst. Hudec played “telephone tag” with the accused, who continued to be cooperative, until Cst. Hudec finally met with the accused and issued a new promise to appear. [ 40 ] Cst. Hudec testified that he was disappointed that the other units would not assist him. As well, he testified that the accused’s father was disappointed and angry with him.

Eventually, the accused laid a complaint with the EPS against Cst. Hudec. [ 41 ] The accused did not deny that he was “on duty” selling drugs in the early morning hours of September 15, 2008, and that he wanted to get out of the area when he saw the police vehicle that Cst. Hudec and Cst. C.P. occupied. He testified that he did not know that Cst. Hudec had turned the police vehicle around and that they were following him. He also acknowledged, however, that he was speeding up after he saw the patrol car.

He also conceded that he threw the drugs under the driver’s seat. [ 42 ] During cross-examination, the accused confirmed that he had other information that he did not provide to his father. This information included such things as the telephone numbers of other drug runners, the quantity of cocaine that was apparently in his drug supplier’s home, the fact that the drug supplier would meet with the accused and the other runners at the “shift-change time” and a description of other runners. He was under the impression that what he provided to his father was all that Cst.

Hudec was looking for, even though he acknowledged that this other information, which was within his knowledge, could have been useful to Cst. Hudec. The accused felt he had provided sufficient information to Cst. Hudec. The accused and his father could not agree on how one could interpret some of the information that the accused’s father wrote on the piece of paper; it was vague. [ 43 ] There was a discussion as to the sufficiency of the information that the accused provided to Cst.

Hudec and whether the information had to be simply information with respect to the accused’s drug supplier, information that would lead to the arrest of the accused’s drug supplier or information that would lead to the arrest and charge of the accused’s drug supplier. Issues [ 44 ] The following issues are raised in this voir dire : 1) Do the proceedings breach the accused’s Charter s. 7 rights or otherwise constitute an abuse of process because of Cst. Hudec’s alleged failure to honour the agreement he had with the accused? 2) Was the accused arbitrarily detained in violation of his Charter s. 9 rights?

3) Did Cst. Hudec breach the accused’s Charter s. 10(

b) right to retain and instruct counsel without delay and to be informed of thatright? 4) Did Cst. C.P. breach the accused’s Charter s. 8 rights by undertaking an unreasonable search and seizure? Analysis Breach of the Principles of Fundamental Justice - Charter s. 7 [45] This issue relates to the alleged agreement between Cst. Hudec and the accused. As outlined above, the essence of the allegedagreement was that the accused would provide information to Cst. Hudec about the accused’s drug supplier. In consideration therefor,Cst. Hudec would withdraw or not proceed with the charges against the accused.

The accused argues that he provided the informationthat Cst. Hudec requested, but Cst. Hudec nonetheless proceeded with the charges against him. [46] The accused applies to this Court for a stay of the proceedings against him. He argues that it would be unfair for this Court toproceed, and that his prosecution would be abusive and constitute a breach of the principles of fundamental justice that Charter s. 7guarantees. [47] The Supreme Court of Canada in R. v.

Jewitt, (SCC), [1985] 2 S.C.R. 128 at para. 20, articulated the natureof the courts’ inherent power to stay abusive proceedings, when it adopted a statement from the Ontario Court of Appeal in R. v.

Young(1984), (ON CA), 13 C.C.C.(3d) 1, 1984 CarswellOnt 57 (C.A.): 87 ... [T]here is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial wouldviolate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse ofa court’s process through oppressive or vexatious proceedings ... [48] The Supreme Court of Canada in Jewitt went on to say: 25 ...

I would also adopt the caveat added by the court in Young that this is a power which can be exercised only in the “clearest ofcases.” [49] The majority of the Supreme Court of Canada expanded on its explanation of the policy reasons underlying this discretion inR. v. Conway, (SCC), [1989] 1 S.C.R. 1659, 1989 CarswellOnt 94 when it said: 22 Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on withthe prosecution of the charge.

The prosecution is set aside, not on the merits ... , but because it is tainted to such a degree that to allow itto proceed would tarnish the integrity of the court. ... It acknowledges that courts must have the respect and support of the community inorder that the administration of criminal justice may properly fulfil its function. Consequently, where the affront to fair play and decencyis disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best servedby staying the proceedings. [citations excluded]

[50] The Supreme Court of Canada in R. v.

Power, (SCC), [1994] 1 S.C.R. 601, 1994 CarswellNfld 9 explains how trial courts will determine whether they have one of the “clearest of cases” before them, when it said: 11 ... [I]n criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the "clearest ofcases", which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the properadministration of justice that it warrants judicial intervention. 12 To conclude that the situation "is tainted to such a degree" and that it amounts to one of the "clearest of cases", as the abuse ofprocess has been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair tothe point that they are contrary to the interest of justice. ...

Where there is conspicuous evidence of improper motives or of bad faith or ofan act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then,and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute.Cases of this nature will be extremely rare. [51] In R. v.

O’Connor, (SCC), [1995] 4 S.C.R 411, L’Heureux Dubé J. discussed the power to stay proceedingsfor violation of a Charter right: 75 Where there has been a violation of a right under the Charter, s. 24(1) confers upon a court of competent jurisdiction the powerto confer "such remedy as the court considers appropriate and just in the circumstances".

Professor Paciocco, at p. 341, hasrecommended that a stay of proceedings will only be appropriate when two criteria are fulfilled: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by itsoutcome; and (2) no other remedy is reasonably capable of removing that prejudice.

I adopt these guidelines, and note that they apply equally with respect to prejudice to the accused or to the integrity of the judicialsystem. [52] To determine whether the abuse has caused an accused prejudice, courts look to, among other things, whether it hasprevented the accused from making a full answer and defence or caused the accused some other direct prejudice, e.g. R. v. Rudko(1999), 1999 ABQB 691 , 138 C.C.C. (3d) 150 at para. 32 (Alta. Q.B.), R. v. Burton, (NL SC), 2000CarswellNfld 323, 149 C.C.C. (3d) 521 (S.C. (T.D.)). See also the pre-Charter case of R. v.

Crneck, (ON SC), 1980CarswellOnt 48, 55 C.C.C. (2d) 1 (H.C.J.), in which the court would not permit the Crown to resile from its agreement with the accusednot to prosecute her after she testified against her co-accused. [53] A stay may also be warranted in a "residual category." That category relates not to conduct affecting the fairness of the trialor impairing other procedural rights that the Charter enumerates, but instead addresses the particular circumstances in which the Crownconducts a prosecution that undermines the integrity of the judicial process.

In such cases, a stay of proceedings is not aimed primarily atredressing a wrong perpetrated on an individual accused, but rather a systemic problem. The Supreme Court of Canada in Canada(Minister of Citizenship & Immigration) v. Tobiass, (SCC), [1997] 3 S.C.R. 391 at para. 91, explains that if such aproblem is left alone, it will continue to trouble the parties and the community as a whole, in the future. The court in Tobiass, went on tosay: 91 The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings.

For astay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely tocontinue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter conditionwill not be met unless the former is as well — society will not take umbrage at the carrying forward of a prosecution unless it is likelythat some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the merefact of going forward in the light of it will be offensive.

But such cases should be relatively very rare.

[54] The court must undertake a broader analysis, weighing the misconduct against the interest that society has in having a finaldecision on the merits. The court may grant a stay only when it determines that the abuse will continue to plague the judicial process,and that no remedy other than a stay can rectify the problem, R. v. Regan, 2002 SCC 12 , [2002] 1 S.C.R. 297, 161 C.C.C. (3d)97 at paras. 56, 57. [55] The decision as to whether to prosecute falls within the ambit of prosecutorial discretion, and as such attracts a high degree ofdeference.

The test for a stay because of repudiation of an agreement not to prosecute requires "conspicuous evidence of impropermotives or of bad faith or of

an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair andindecent to proceed,” R. v. Nixon, 2009 ABCA 269, 246 C.C.C. (3d) 149 at para. 41 and the cases cited therein, appeal heard andreserved [2009] S.C.C.A. No. 514. [56] The accused argues that he fulfilled the terms of his bargain with Cst. Hudec and, accordingly, it would be unfair for thisCourt to allow the police to resile from this agreement.

The Crown, on the other hand, argues that the accused did not fulfill the terms ofhis bargain and therefore, this Court should not enforce the agreement based on this partial fulfilment. The Crown cites R. v.MacDonald, (ON CA), 1990 CarswellOnt 82, 54 C.C.C. (3d) 97 (S.C., C.A.) in support of its position. With respect,this type of analysis unduly simplifies the court’s responsibility. It is not a mere determination of whether or how much a party hascontributed to the bargain. The Supreme Court of Canada has instructed courts to undertake a much more rigorous analysis.

The court inMacDonald undertook that analysis on the facts before it. Those are not the facts before this Court, see also a survey of the various pre-Charter and post-Charter cases and an excellent analysis of the approach trial courts might consider taking in these types of cases in R.v. Crosbie Industrial Services Ltd., (NL PC), 2003 CarswellNfLd 27, 104 C.R.R. (2d) 135 (Nfld. and Lab. Prov. Ct.). [57] The accused, as well, provided this Court with an analogy involving a commercial transaction and the breach of an agreementin that context.

Equating the situation with which this Court is dealing with a commercial transaction is not an appropriate analogybecause of the disparate interests involved in criminal prosecutions, Nixon, at para. 26. [58] Finally, we must remember that the accused bears the onus of proving, on a balance of probabilities, that allowing this matterto proceed against him would violate the community’s sense of fair play and decency or that his trial would be an oppressive proceeding,R. v. D.(E.), (ON CA), 1990 CarswellOnt 104, 57 C.C.C. (3d) 151 at para. 22 (C.A.). [59] In the case at Bar, Cst.

Hudec was not entirely forthright with the accused concerning the amount of information the accusedwas required to provide for the accused to reap the benefit that Cst. Hudec held out. Did the accused have to provide informationsufficient to result in his drug dealer’s arrest or did the information have to result in the drug dealer’s arrest and charge? It matters not, inthe end, because the accused did not provide information sufficient even to identify the drug dealer.

The accused acknowledged that hehad much more information that he failed to provide. [60] Furthermore, it was the accused who had the burden of providing the information. He did not even attempt to follow up withCst. Hudec. After the accused met with his father, the accused left it to others to deal with this matter. The alleged agreement was thatthe accused was to supply the information to Cst. Hudec. Cst. Hudec was under no obligation to attempt to pry the information from theaccused. The accused gave Cst. Hudec partial, and insufficient, information. [61] Much was made of the fact that Cst.

Hudec did not follow up in the investigation based on the information that the accusedprovided to him. This may be so, but Cst. Hudec, admittedly, was not a drug crime investigator. He had to rely on the help of other unitsin EPS to assist him. With the paucity of information that the accused provided to him, none of those other units was in a position to helphim. It is arguable that Cst. Hudec might have been lax in following up with the accused, but this Court does not find this to be the case.Furthermore, this Court does not find that Cst.

Hudec was acting in bad faith or in an improper, vexatious, malicious or oppressivemanner. The onus was on the accused to provide the information that Cst. Hudec requested and he did not. [62] The accused’s father provided this Court with a narrative of what he would have done with the information that he providedto Cst. Hudec. This was hypothetical and in reviewing the narrative, this Court finds that it provides very little additional information onwhich this Court can rely. [64] Furthermore, as the court in Crosbie Industrial at para. 59, points out, the court must recognize that it is necessary for the Crown

to be able to change its view or to disagree with an investigator as to whether a matter should proceed to trial. An investigator cannot be allowed to bind the Crown or to interfere with the Crown's constitutional responsibility and duty to determine what charges will and will not proceed. Again, that prosecutorial discretion attracts a very high degree of deference. [ 63 ] Did the accused suffer prejudice as a result of his thinking that he had complied with his obligation pursuant to the alleged agreement? He argues that by providing the information, he risked his safety and that of his family.

That may be so, but the danger was more apparent than real. Had the EPS used the information the accused provided to conduct an investigation resulting in an arrest of the accused’s drug dealer, or even a direct investigation of that drug dealer, there could have been a risk to the accused’s safety. Here there was no such arrest or even an investigation.

Furthermore, this Court, through its use of initials and a publication ban on anything that might identify the accused, has taken steps to reduce any likelihood of risk. [ 64 ] Unlike the cases where an accused enters a plea on one charge in consideration for which the Crown agrees not to proceed with others and then proceeds, or where an accused agrees to testify against her co-accused, the accused in the case with which this Court is dealing has not suffered any “actual prejudice of such magnitude that the public’s sense of decency and fairness would be affected," Blencoe v.

British Columbia (Human Rights Commission) , [2000] 2 S.C.R. 307 , 2000 SCC 44 at para. 133 . The accused is facing the exact charges that he faced at the outset and he has given up no part of his liberty or his safety. Put another way, the accused did not make any real concession nor did he compromise his position in a manner that cannot be addressed by a remedy short of a stay, Nixon at para. 42 . [ 65 ] This Court finds that there has not been any abuse of process or breach of fundamental justice in this case that would justify a stay for a breach of Charter s. 7.

The EPS has not treated the accused unfairly or oppressively in any way. Quite the contrary. The EPS gave the accused an opportunity to benefit by assisting it in locating his drug dealer. The accused did not provide adequate information to fulfil that purpose. [ 66 ] Even if this Court were to find that the EPS committed a breach of fundamental justice, this is not a case in which a stay of proceedings should be granted pursuant to Charter s. 24(1). It does not meet the test that the Supreme Court of Canada outlined in Power at para. 17 , supra .

It is not one of the “clearest of cases.” [ 67 ] There was no evidence that this situation reflects a systemic problem to which the Supreme Court of Canada referred in O’Connor at para. 75 and Tobiass at para. 91 . Society requires a final decision on the merits of this case. [ 68 ] The accused has not met his onus. Accordingly, this Court declines to grant a stay of these proceedings. Detention, Charter s. 9 [ 69 ] The accused did not provide any notice that he was going to argue that he was arbitrarily detained or arrested. Charter s. 9 provides: 9.

Everyone has the right not to be arbitrarily detained ... [ 70 ] Despite his lack of notice, the accused attempted to establish such a breach during argument, in the sense that he argued that Cst. Hudec had no right to arrest him under the Traffic Safety Act , R.S.A. 2000, c. T-6 (“ TSA ”). [ 71 ] In R. v. Henry , 2004 ABQB 440 , 362 A.R. 309 , Martin J., as he then was, said: 16 I will accept that even without notice, the court retains the discretion to permit such applications to proceed with the Crown's consent or to adjourn the case to allow counsel to comply with the notice provisions.

This comports with the common law as found in R.

v. Dwernychuk (1993), 1992 ABCA 316 , 77 C.C.C. (3d) 385 (Alta. C.A.), leave to appeal to S.C.C. refused, [1993] S.C.C.A.No. 30, (1993) 79 C.C.C. (3d) vi; R. v. Kutynec (1992), (ON CA), 70 C.C.C. (3d) 289 (Ont. C.A.); and R. v.Loveman (1992), (ON CA), 71 C.C.C. (3d) 123 (Ont. C.A.), and avoids situations that would cause the accused tolose his or her constitutional rights because of counsel's omissions and oversights.

The Crown did not seek an adjournment in this case and, in fact, thoroughly and ably argued the issue concerning the accused’sdetention and arrest and pointed to the evidence that he teased out of the witnesses. [72] In Henry, Martin J. went on to say: 20 ... [A] trial judge has the discretion to hear, or refuse to hear, a s. 24(2) application depending on the merits of each case.Counsel’s lack of diligence, while a significant factor, will not be automatically dispositive of the matter.

However, the burden will be onthe applicant to establish that, notwithstanding a lack of proper notice, the application should proceed or an adjournment should begranted to allow compliance with the notice requirement. In support of this proposition, Martin J. cited an Ontario Court of Appeal case, R. v. Loveman (1992), (ON CA), 71C.C.C. (3d) 123 and the Alberta Court of Appeal case R. v. Dwernychuk (1992), 1992 ABCA 316 , 77 C.C.C. (3d) 385. Thecourt in Dwernychuk at para. 18, endorsed the guidelines that the court set forth in Loveman.

The Loveman court said at para.7,“Clearly, where a Charter right is at stake, a trial judge will be reluctant to foreclose an inquiry into an alleged violation.” [73] Even though the accused did not provide the notice, this Court permitted this argument to proceed. Why did this Court allowthis argument to proceed? It felt that this argument was necessary to set the stage for the arguments that followed involving the allegedbreaches of Charter ss. 8 and 10(b). In other words, the legality of the detention and subsequent arrest are relevant to the legality of thesearch and seizure.

It would be difficult to examine the search and seizure in a vacuum, because a purposive approach and Charter s.24(2) requires this Court to examine “all the circumstances.” [74] The TSA ss. 169 and 115 provide: 169(1) A peace officer may arrest a person without warrant if the peace officer, on reasonable and probable grounds, believes that (

a) the person has committed an offence in respect of any of the provisions set out in subsection (2), and (

b) the person (

i) will continue or repeat that offence if not arrested, or (ii) has provided the peace officer with inadequate or questionable information as to the person's identification...

(2) For the purposes of subsection (1), the following are the provisions for which a person may be arrested without a warrant: ... (g) section 115(2)(

b) relating to driving a motor vehicle carelessly;

... (i) section 115(2) and the Rules of the Road relating to the speed of motor vehicles; ... 115(1) For the purposes of this section, a driver of a vehicle is driving carelessly if that driver drives the vehicle (

a) without due care and attention, or (

b) without reasonable consideration for persons using the highway.

(2) A person shall not do any of the following: (

a) except where otherwise provided for under this Act, drive a vehicle in a manner contrary to the Rules of the Road or regulationsgoverning the operation of vehicles; (

b) drive a vehicle on a highway in a manner that constitutes driving carelessly; ... The Rules of the Road are contained in the Use of Highway and Rules of the Road Regulation, Alta. Reg. 304/2002. They haveprovisions that deal with speed of travel, turn signalling and stopping at controlled and uncontrolled intersections. [75] This Court accepts the testimony of Cst. Hudec and Cst. C.P. that the Neon started to pick up speed and that the accused didnot obey the stop signs, which is confirmed by the accused’s acknowledgement that he sped up after he saw the patrol car.

Thus, theyhad the right to detain the accused, given his breaches of the TSA. The TSA also provides statutory authorization for random stops: ss. 166, 167. As in R. v. Dhuna, 2009 ABCA 103, 3 Alta. L.R. (5th) 47, there was some evidence in this case that the officers intended tocheck for ownership of the vehicle due to suspicious and evasive driving activity and their belief that the Neon may have been recentlystolen. Thus, they were entitled to stop and detain the Accused for all of these reasons. [76] The question then becomes whether Cst. Hudec lawfully arrested the accused. Cst.

Hudec told the accused to get out of theNeon, which he did. Cst. Hudec then handcuffed the accused and told him that he was "under arrest for dangerous driving and for trafficviolations" (Trial Transcript, p. 16, ll. 15-16). The arrest power under TSA s. 169 has two requirements. The police officers, in this case,met the first requirement, as the accused was allegedly driving carelessly or speeding.

They did not, however, provide this Court withany evidence that they had a concern that the accused would “continue or repeat that offence if not arrested,” nor that he provided theofficers with inadequate or questionable identification information. Even if we were to take the most extreme example that Cst. Hudecarticulated, namely, that the accused was trying to evade the police, the moment Cst. Hudec activated his emergency lights, the accusedpulled over to the curb and stopped the Neon.

The accused was not, under these facts, going to engage the officer in a high-speed chase.Furthermore, the facts that were presented to this Court might support charges for careless driving under the TSA, but they do not, primafacie, indicate criminal dangerous driving. [77] This Court finds that there was no evidence that either Cst. Hudec or Cst. C.P. had reasonable and probable grounds, or anygrounds for that matter, to believe the accused would continue or repeat dangerous driving (if there was any) or traffic violations, hadthey not arrested the accused.

Such a belief defies common sense on the facts of this case. The Supreme Court of Canada in R. v.Storrey, (SCC), [1990] 1 S.C.R. 241, 1990 CarswellOnt 78 said:

17 ... [T]he Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which tobase the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placedin the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the otherhand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required toestablish a prima facie case for conviction before making the arrest. See also R. v.

Petrin, 2007 ABQB 687 at para. 42. [78] If the officers had a concern that the Neon was a stolen vehicle, they could have asked the accused to produce registrationand driver’s licence information and, if necessary, followed up with a licence plate check while the accused remained in the Neon. Theydid not testify that they had any concerns for officer safety which required them to remove the accused from the Neon. [79] In R. v.

Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725 at para. 22, Abella J. approved of the following statement from Brown v.Durham Regional Police Force (1998), (ON CA), 131 C.C.C. (3d) 1 at 23-24 (Ont. C.A.): Where the prosecution relies on the ancillary power doctrine to justify police conduct that interferes with individual liberties, atwo-pronged case-specific inquiry must be made. First, the prosecution must demonstrate that the police were acting in the exercise of alawful duty when they engaged in the conduct in issue.

Second, and in addition to showing that the police were acting in the course oftheir duty, the prosecution must demonstrate that the impugned conduct amounted to a justifiable use of police powers associated withthat duty ... The court in Clayton continued: 25 In R. v. Godoy, (SCC), [1999] 1 S.C.R. 311, at para. 18, this Court accepted the following test developed byDoherty J.A. in R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont.

C.A.), at p. 499, for assessing whetherpolice interference with individual liberties was justified: [T]he justifiability of an officer's conduct depends on a number of factors including the duty being performed, the extent to which someinterference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to thepublic good, the liberty interfered with, and the nature and extent of the interference. 26 In determining the boundaries of police powers, caution is required to ensure the proper balance between preventing excessiveintrusions on an individual's liberty and privacy, and enabling the police to do what is reasonably necessary to perform their duties inprotecting the public.

It was expressed by Le Dain J. in Dedman, as follows: The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regardto the nature of the liberty interfered with and the importance of the public purpose served by the interference. [p. 35] [80] Cst. Hudec may well have had a basis for acting as he did, had the accused shown any aggressive propensity or had Cst.Hudec felt, on reasonable grounds, that officer safety was an issue, see e.g. R. v. Feeney, (SCC), [1997] 2 S.C.R. 13 atpara. 53; R. v. Chuhaniuk, 2010 BCCA 403 at para. 65; R.

Hnetka, 2010 ABQB 56 at para. 29; R. v. Whyte, 2009 ONCJ 389 at paras.15-20. However, there was no evidence placed before this Court that the accused showed any such propensity and, in fact, Cst. Hudectestified that the accused was cooperative (Trial Transcript, p. 15, ll. 36-37). Likewise, there was no evidence that the accused was aflight risk, or that his arrest was required to preserve evidence. [81] Thus, this Court finds that the arrest was unlawful and the manner of detaining the accused was excessive and therebyarbitrary. Accordingly, Cst. Hudec breached the accused’s Charter s. 9 rights.

Unreasonable Search and Seizure, Charter s. 8 [82] The accused argues that Cst. C.P. breached his Charter s. 8 rights by searching the Neon which led to discovery of the drugs.He bases his argument on a number of factors, including that Cst. C.P. did not obtain the accused’s permission to search the Neon andCst. C.P. did not have a warrant. [83] Warrantless searches are presumed to be unreasonable, unless the Crown can rebut the presumption, R. v. Evans, (SCC), [1996] 1 S.C.R. 8.

The Crown must establish, on a balance of probabilities, that the search was lawful and that themanner in which it was carried out was reasonable, R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851. [84] If the search that Cst. C.P. undertook was incident to an arbitrary detention or unlawful arrest, the search that she undertookand the arrest that followed are similarly unlawful, R. v. Stillman, (SCC), [1997] 1 S.C.R. 607 at para. 27; R. v. O.(N.), 2009 ABCA 75, 2 Alta. L.R. (5th) 72 at para. 45; R. c. Murray (1999), (QC CA), 136 C.C.C. (3d) 197 at para. 70(Que. C.A.). [86] Significantly, Cst.

C.P.'s observation of the plastic sandwich bags in the driver's door, which formed part of her subjectivegrounds for searching under the seat, would not have occurred but for the removal of the accused from the Neon, his arrest and hisplacement in the back of the police vehicle. Had the accused been detained briefly for the purpose of issuing a summons or ticket forTSA breaches, Cst. C.P. would not have observed the bags in the door. [87] The Neon was not stopped on suspicion of drug dealing and, unlike cases such as R. v. Volk, 2010 SKCA 3, 343 Sask. R. 133and R. v.

Harding, 2010 ABCA 180, in which the officers could smell drugs, Cst. C.P. did not testify that she could smell drugs, nor dideither officer testify that they detected any sign of impairment in the accused. There was no evidence of anything occurring in theinteractions between the officers and the accused that would lead the officers to suspect that drugs were present in the vehicle.

Asmentioned above, there was no evidence that the officers acted out of concern for their safety. [88] Having found the arrest to be arbitrary, this Court finds that the search of the Neon was not reasonable and, accordingly, Cst.C.P. breached the accused’s Charter s. 8 rights. [85] If this Court is wrong, however, in finding that Cst. Hudec breached the accused’s Charter s. 9 rights, it must considerwhether the search and seizure that Cst. C.P. undertook was Charter-compliant. [86] In R. v.

Edwards, (SCC), [1996] 1 S.C.R. 128, the court said that an accused’s right to challenge thelegality of a search depends on whether the accused had a reasonable expectation of privacy in the area that the police are searching. Ifthe accused had such a reasonable expectation, the police must conduct the search reasonably, see also Canada (Director ofInvestigation & Research, Combines Investigation Branch) v. Southam Inc., (SCC), [1984] 2 S.C.R. 145. [87] In the case of motor vehicles, the Supreme Court of Canada said in Caslake: [15] ...

Automobiles are legitimately the objects of search incident to arrest, as they attract no heightened expectation of privacy thatwould justify an exemption from the usual common law principles ... [88] In Nolet, Binnie J. said the following, citing, among others, Edwards at para. 45 and Kang-Brown at paras. 8-10 and 48: 30 ...drivers ordinarily have some expectation of privacy ...in ...the space behind the front seats...

Whether or not an individual has asubjective expectation of privacy, and whether or not that expectation is objectively reasonable, is an assessment to be made havingregard to the totality of the circumstances.

[89] It is a reasonable inference that the accused, as any other driver, would in the normal course have a reasonable expectation ofprivacy in the space under the front seat, although that expectation would be lower than the expectation of privacy in one’s home.However, that expectation must be examined in the light of all the circumstances. [90] If a search involves an arrested person, the police have a common law right to search that person incidental to that arrest forthe purposes of officer and public safety, to protect against the destruction of evidence and for discovery of evidence, Caslake at para.19, Clayton at paras. 30-31.

The police need not have any additional grounds, be they suspicion or reasonable and probable grounds, asthe search derives from the lawful arrest. In such a case, the police may search the surrounding area and seize anything they find in thisarea, Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158. The police, however, are not, by virtue of the arrest, givencarte blanche to search wherever, whomever and whatever they like. In Harding, the Alberta Court of Appeal said, citing R. v.

Caslake, (SCC), [1998] 1 S.C.R. 51: 31 ... [W]here there was a lawful arrest, the police are entitled to search the accused incidental to arrest, and a vehicle may also besearched if there is some rational connection between the offence for which the accused is arrested and the areas of the vehicle that thepolice search. (Emphasis added). [91] Caslake provides us with an example that is on all fours with the situation with which we are dealing: 22 Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, theremust be some reasonable prospect of securing evidence of the offence for which the accused is being arrested.

For example, when thearrest is for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching anyfurther ... [92] In the case with which we are dealing, the accused was arrested for “dangerous driving and traffic violations.” Thus, Cst.C.P. could conduct a search incident to that arrest. As well, she was well within her duty to conduct a search for officer safety reasons.However, Cst.

C.P. acknowledged during cross-examination that the accused was in the police vehicle in handcuffs, there were no otherpeople in the Neon and there did not seem to be anyone around. Thus, officer safety was not an issue, whether one views this objectivelyor subjectively.

There was no need to protect evidence from destruction at the hands of the accused, as he was handcuffed and in thepolice vehicle and there were no other people around. [93] Even if the officers thought the Neon might have been a stolen vehicle, they could easily have satisfied such a suspicion byasking the accused for his driver’s license and vehicle registration while he was still sitting in the Neon, or if necessary searching theNeon’s licence plate number on their computer. Neither action would have required the accused’s removal from the Neon. There was noevidence that Cst.

Hudec even asked the accused for his driver’s license and registration before he asked the accused to step out of theNeon and enter the police vehicle. [94] Thus, this Court finds that Cst. C.P.’s search and seizure were not Charter-compliant. Right to Counsel - Charter s. 10(b) [95] The accused conceded that Cst. Hudec offered him the right to counsel and that the accused understood he had such a right.The issues here are whether the accused expressed an intention to exercise the right to contact counsel and if he did, whether Cst.

Hudeccomplied with his duty to direct the accused on how to exercise his right once they were at the police station. The accused also arguesthat Cst. Hudec did not provide him with a “Prosper warning.” [96] The Supreme Court of Canada described a “Prosper warning” in R. v. Willier, 2010 SCC 37, as follows: 38 ... [A] Prosper warning is warranted in circumstances where a detainee is diligent but unsuccessful in contacting a lawyer andsubsequently declines any opportunity to consult with counsel. ... The Prosper warning ensures that detainees are aware that their right to

counsel is not exhausted by their unsuccessful attempts to contact a lawyer. This additional informational safeguard is warranted when adetainee indicates an intent to forego s. 10(b)’s protections in their entirety, ensuring that any choice to do so is fully informed. The exchange between Cst. Hudec and the accused in which the accused said “Yeah, if I had one” and “I don’t know what I want,” tookplace in the context of the arrest following the alleged traffic violations. The parties presented no evidence as to whether there was anyfurther discussion between the accused and Cst. Hudec until Cst.

C.P. returned with the drugs. Thus, there was no need for a Prosperwarning at that stage. When Cst. C.P. returned with the drugs, Cst. Hudec testified that he, again, provided the accused with his Charterrights and the warning. Cst. Hudec did not take notes of, nor did he recall how the accused responded. [97] In R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, 1994 CarswellOnt 100, the court said: 18 This court has said on numerous previous occasions that s. 10(

b) of the Charter imposes the following duties on state authoritieswho arrest or detain a person: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aidand duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). (See, for example, Manninen, at pp. 1241-42, R. v.

Evans, (SCC), [1991] 1 S.C.R. 869, at p. 890, and Brydges, at pp.203-4.) The first duty is an informational one which is directly in issue here. The second and third duties are more in the nature ofimplementation duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel. [98] This Court finds that Cst. Hudec complied with his informational duty, while roadside. Cst. Hudec’s

interpretation of thisexchange that the accused did not say he wanted to contact a lawyer is wrong. When asked whether he wanted to contact a lawyer, theaccused said, “Yeah, if I had one.” The accused, by this comment, indicated “a desire” to exercise his right to contact counsel. This wassufficient to trigger the duty on Cst. Hudec to cease all questioning of the accused. The innocuous question as to why the accused had apolice officer’s business card in his wallet was still a question, albeit an innocent one in Cst. Hudec’s mind. This leaves aside the issue ofwhether Cst.

Hudec even had the right to search through the accused’s wallet at all. [99] Further, although it may not have constituted questioning, the discussion between the accused and Cst. Hudec about the“agreement” involved Cst. Hudec eliciting evidence from the accused and resulted in the accused inculpating himself. Whether one callsthis questioning or discussion, the result is still the same. [100] The accused argues that when they arrived at the police station, Cst. Hudec did not comply with the informational componentof a Charter s. 10(

b) caution because he did not inform the accused of the applicable duty counsel and legal aid systems available to theaccused when he placed the accused in the telephone room at the police station, R. v. Brydges, (SCC), [1990] 1 S.C.R.190. Rather, the accused testified that Cst. Hudec advised the accused to call his father. Cst. Hudec, on the other hand, testified asfollows: I’m putting him into the phone room to contact his legal counsel to deal with the charges that he’s up against. As well, while he’s inthere, he maybe should be giving his dad a phone call, Voir Dire Transcript, p. 80, ll. 4-6.

As well, Cst. Hudec testified that on the wall of the telephone room was a list of Legal Aid lawyers, as well as the 1-866 number. [101] Cst. Hudec then left the accused alone in the telephone room. He did not check on the accused. Nor did he disturb theaccused. He simply left the accused alone in the telephone room. He did not ask the accused if the accused made any calls. The accusedtestified that he called his father, but that he did not contact legal counsel. Because the accused intimated to Cst. Hudec in the policevehicle that he wanted to contacted legal counsel when he said, “Yeah, if I had one,” Cst.

Hudec should have provided the accused with aProsper warning, at this stage. [102] This Court finds that the accused was well aware of his right to contact counsel. He said as much in the police vehicle. Thedifficulty in this case is that Cst. Hudec did not give the accused any opportunity to exercise those rights roadside before discussing thepolice officer’s business card or before they commenced their discussion about the potential “agreement.” Certainly, Cst.

Hudeccomplied with the implementational component once they arrived at the police station by placing the accused in the telephone room andmaking sure the telephone was working. He instructed the accused on how to obtain a line-out. He did not bother the accused while theaccused was in the telephone room, such as by peering in or tapping on the door. The accused had as much time as he wanted while hewas in the telephone room. However, by that time, the damage had been done; the accused had discussed his role in the drug trade withCst. Hudec. [103] Accordingly, Cst. Hudec breached the accused’s Charter s. 10(

b) rights. Remedy - Charter s. 24(2) [104] Inasmuch as this Court has found that the EPS officers breached the accused’s Charter rights, it must determine whether theevidence that Cst. C.P. found and the statements that the accused made to Cst. Hudec should excluded pursuant to Charter s. 24(2). Inother words, would the admission of the evidence bring the administration of justice into disrepute? [105] Charter s. 24 provides: 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [106] To conduct this analysis, we must turn to the lines of inquiry that the Supreme Court of Canada provided us in R. v. Grant,2009 SCC 32, [2009] 2 S.C.R. 353.

Grant said: 71 ...When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidenceon society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission maysend the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interestsof the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of thecase on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determinewhether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute... [107] The majority in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 353 said that when a court attempts to determine theseriousness of the state conduct: 23 ...The metaphor of a spectrum used in R. v. Kitaitchik (2002), (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), perDoherty J.A., may assist in characterizing police conduct for purposes of this s. 24(2) factor:

Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights. ... What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct... [ 108 ] The Charter s. 9 breach was on the more serious end of the spectrum. If, indeed, Cst.

Hudec detained the accused for traffic violations, which, on the facts of this case, were not serious offences, handcuffing the accused and placing the accused in the patrol vehicle was more than was reasonably necessary to address the risk. The accused stopped immediately after Cst. Hudec engaged the emergency lights and was cooperative when Cst. Hudec asked the accused to turn off and exit the Neon. Certainly, the accused could have had a weapon, but there was no evidence that the officers’ actions were informed by that possibility. Even had Cst.

Hudec been of the view that the accused was evading him or that a high-speed chase was about to ensue, that view was allayed completely when he engaged his emergency lights. There was no evidence of continued concern of the accused’s flight at the time of the stop. Cst. Hudec provided no reason why he felt he had to remove the accused from the Neon and handcuff him. [ 109 ] When Cst. C.P. was walking around the Neon looking for items that might compromise officer safety or to see if there were any items that the accused might have dropped, there was no Charter breach.

The accused had no privacy interest in the bare ground surrounding the Neon. However, we cannot examine this issue in a vacuum. Cst. C.P. was searching the Neon incident to the accused’s arrest for traffic violations. The door would not have remained open but for the Charter s. 9 breach. She would not have been able to see the baggies or the cash but for the open door. As the search of the interior of the vehicle, specifically under the driver’s seat, was not incidental to the arrest, it constituted a relatively serious intentional Charter s. 8 breach. [ 110 ] Cst.

Hudec advised the accused of the accused’s right to contact counsel. While sifting through the accused’s wallet, Cst. Hudec found the business card of the other officer and asked the accused why he had the card. Although Cst. Hudec may have viewed the question as being innocuous, he should not have asked it in the first place, given the accused’s response to the Charter warning and caution. This Court accepts that Cst. Hudec meant for any discussion concerning the potential “agreement” with the accused to assist the accused.

However, he could have had the same discussion after providing the accused with the opportunity to contact counsel. The possibility that the accused may have been less inclined to enter into such a discussion after speaking with counsel simply underlines the importance of the principle that police refrain from eliciting evidence until after an accused has had the opportunity to speak with counsel. The posing of the question and the discussion concerning the potential “agreement” were, at best, negligent on Cst. Hudec’s part. At worst, they constituted a serious breach of the accused’s s. 10(

b) right and his right to silence. [ 111 ] The second line of inquiry, as set out in Grant , requires this Court to examine the accused’s Charter rights and determine the impact of any Charter violations on those rights. Courts must examine this through society’s lens. The more serious or intrusive the breach on the accused’s rights, the more likely that society will see an individual’s Charter -protected rights as meaningless.

Society will direct courts to exclude such evidence. [ 112 ] Grant provided us with an example, which helps this Court in its analysis, when it said: 78 ... [A]n unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity.

An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not. [ 113 ] In Harrison , the Supreme Court of Canada found that even though the detention and search were not egregious intrusions on the accused’s liberty and privacy, they were significant. It found, in that case, however, that the initial stop by the police was unjustified, as was the search, Harrison at para. 31 . In the case with which this Court is dealing, this Court has found that the initial stop was justified.

However, the subsequent police actions were not justified. There was no need to handcuff the accused and place him in the patrol car for traffic violations. This was a “serious infringement from the perspective of the accused,” Grant at para. 28 , which, no doubt, was demeaning to his dignity. [ 114 ] The accused had a lower expectation of privacy, as the search took place in the Neon. However, although there is a reduced expectation of privacy in a vehicle as compared to a home, a driver nevertheless has some reasonable expectation of privacy in his vehicle.

Being subjected to a search by the police without justification has an impact on the motorist's rightful expectation of liberty and privacy in a way that is much more than trivial. As the court stated in Harrison :

31 This said, being stopped and subjected to a search by the police without justification impacts on the motorist's rightful expectation of liberty and privacy in a way that is much more than trivial. As Iacobucci J. observed in Mann , the relatively non-intrusive nature of the detention and search "must be weighed against the absence of any reasonable basis for justification" ... A person in the appellant's position has every expectation of being left alone — subject, as already noted, to valid highway traffic stops. [ 115 ] There can be no doubt that society has an interest in police detection of crime.

This Court is mindful that police officers on the streets must make decisions without the luxury of long reflection, R. v. Loewen , 2010 ABCA 255 at para. 16 . As well, dual purpose traffic stops are not unlawful. The Alberta Court of Appeal in Dhuna held that there was no reason to draw a bright line between traffic safety concerns and an investigation of a possible stolen vehicle.

Further, there are numerous cases where police interaction with a driver during a routine traffic stop along with a particular constellation of facts, including things such as nervousness, inability to establish identity, smell of drugs, suspicious itineraries, together have provided reasonable and probable grounds to search a vehicle for drugs.

Here, however, the absence of any such evidence speaks to the seriousness of the officers’ intrusion on the accused’s right to be left alone. [ 116 ] The third line of inquiry, as set out in Grant , requires this Court to determine whether society's confidence in the justice system is better served by admitting the evidence or excluding it having regard to “society's interest in the adjudication of the case on its merits.” This analysis requires the court to examine the quality of the evidence against the means by which the evidence was obtained.

The latter, in part, is examined through the first two lines of inquiry. The former examines the reliability of the evidence. This examination cannot be done in a vacuum. As stated in Grant : 81 ... If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth.

Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute. [ 117 ] The British Columbia Court of Appeal in R. v. Reddy , 2010 BCCA 11 , 251 C.C.C. (3d) 151 said: 94 ...

Although "seriousness of the offence" remains a consideration, it has far less importance than under the Collins / Stillman framework, because s. 24(2) focuses on the long-term implication for the repute of the administration of justice, and not the public's short-term desire for a conviction ... [ 118 ] The statements that the accused provided to Cst. Hudec as a result of the question concerning the police officer’s business card and the subsequent discussion that led to the alleged “agreement” occurred before Cst. Hudec facilitated the accused’s exercise of his s. 10(

b) rights. One could argue that the accused might have spontaneously volunteered the information in the absence of any discussion with Cst. Hudec. However, that proposition is speculative. The reliability of the accused’s statements may have been affected by the prospect of a deal with the police. Such a breach has the potential to undermine the truth-seeking function. Exclusion of the accused’s statements would not “gut” the prosecution’s case.

This Court concludes that society's confidence in the justice system is better served by excluding the evidence of statements that the accused made. [ 119 ] The Charter breaches in this case do not undermine the reliability of the drugs that Cst. C.P. seized; they are what they are. Because this evidence is highly reliable, its exclusion by this Court may have a more negative impact “on the repute of the administration of justice where the remedy effectively guts the prosecution,” Grant at para. 83 .

As in Harrison at para. 34 , “the third line of inquiry under the Charter s. 24(2) analysis favours the admission of the evidence as to do so would promote the public's interest in having the case adjudicated on its merits.” Trafficking in cocaine is a serious societal problem and therefore society has an interest in the prosecution of this charge of possession of cocaine for the purpose of trafficking. [ 120 ] However, the Charter s. 8 breach is aggravated by the fact that it occurred while the accused’s Charter ss. 9 and 10(

b) rights were in the process of being breached. The temporal and causal interrelation is a significant and relevant consideration. [ 121 ] Finally, Grant tells this Court that it must examine what it has found in its three-part inquiry, balance the factors and complete its analysis by determining the effect of admitting the evidence on society's confidence in the justice system. This is not a scientific

exercise. In fact, Grant at para. 86 said, “No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible.” [ 122 ] As noted in Grant at para. 92 , the three lines of inquiry support the presumptive general, although not automatic, exclusion of statements obtained in breach of the Charter .

Balancing all of the factors in this case, this Court finds that the statements made by the accused before he could exercise his right to counsel are inadmissible. [ 123 ] Further, balancing all of the factors, this Court finds that the repute of the administration of justice would be adversely affected by the inclusion of the drugs that Cst. C.P. seized from the Neon.

A reasonable person, informed of all the circumstances would find that admitting this evidence would not serve the long-term interests of the administration of justice. [ 124 ] Although decided on different facts under the pre- Grant regime, the Alberta Court of Appeal’s comments in O.(N.) are apposite, when it said: 49 ... [T]he rapidity with which the events unfolded demonstrate that [the officer] neglected to take advantage of other available investigative techniques. He initiated no preliminary conversation with the cross-appellant to inquire about what he was doing.

Instead, he immediately yelled at him to get out of the car. He did not run a check on the vehicle licence plate to see if its owner had a criminal record. He did not call for back-up. Both the resulting hand-cuffing and the search of the cross-appellant's pants pocket (in which there was a strong privacy interest) were serious breaches of his Charter right under

section 8 . 50 The public has a strong interest in the detection of drug traffickers. On the other hand, it also has a deep interest in the right of citizens to come and go as they please, free from police interference. Without the unlawful detention and search, the evidence implicating the cross-appellant would not have been discovered. On all the facts of this case, it is our view that admission of the evidence would bring the administration of justice into disrepute. Therefore, the evidence should be excluded.

Conclusion [ 125 ] For the foregoing reasons, this Court finds no Charter s. 7 breach in relation to the alleged agreement and declines to grant a stay on that basis. [ 126 ] The Court does find that the accused’s Charter ss. 8, 9 and 10(

b) rights were violated. Having balanced the factors relevant to the three-part inquiry in Grant , this Court excludes the evidence that Cst. Hudec and Cst. C.P. collected. Heard on the 1 st , 2 nd and 3 rd days of December, 2010. Dated at the City of Edmonton, Alberta this day 1 st of March, 2011. K.D. Yamauchi J.C.Q.B.A.

Appearances: C. Kloot for the Respondent/Crown R.W. Hladun, Q.C. for the Applicant/Accused