Alberta (Minister of Justice and Attorney General) v. Squire, 2012 ABQB 194

Court of Queen ’ s Bench of Alberta Citation: Alberta (Minister of Justice and Attorney General) v. Squire, 2012 ABQB 194 Date: 20120321 Docket: 1001 09104 Registry: Calgary Between: Alberta (Minister of Justice and Attorney General) Applicant - and - Chad Squire Respondent _______________________________________________________ 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 $27,020 in cash from the Respondent, Chad Squire, which the Minister alleges is proceeds of crime. The Minister advances this application pursuant to the Victims Restitution and Compensation Payment Act , S.A. 2001, c. V-3.5 (Act). For the reasons that follow I dismiss the Minister’s application. [ 2 ] I find the police lacked an objective basis for the reasonable suspicion necessary to lawfully detain Mr. Squire for

investigative purposes, thereby violating Mr. Squire’s s. 9 right pursuant to the Canadian Charter of Rights and Freedoms ( Charter ). As a result, both the search using Hogan, Constable Paquin’s police service dog, and Mr. Squire’s interrogation in the back of the police vehicle, were executed in breach of Mr. Squire’s right to be secure against unreasonable search and seizure. Moreover, Mr.

Squire acquiesced to signing a Statement of Relinquishment in respect of the property after he was arrested and indicated a desire to speak with counsel, but without the police providing him a reasonable opportunity to do so. This failure to provide Mr. Squire with a reasonable opportunity to contact a lawyer was a violation of his s. 10(

b) right to counsel. [ 3 ] In my view, admitting the unlawfully obtained evidence would bring the administration of justice into disrepute. As a result, I have excised from the affidavit of Constable Maetche all references to illegally obtained evidence and reviewed the original decision to grant the restraint order on that basis. In the result, I conclude that the restraint order must be vacated and the seized property returned to Mr. Squire. [ 4 ] If I am wrong with respect to the noted violations of Mr.

Squire’s Charte r rights and the admissibility of the evidence such that adjudication of the matter should have advanced to the property disposal stage of the proceeding, I would have concluded that: (

i) the Crown discharged its burden to prove the property was acquired by illegal means, pursuant to s. 13(1) (

a) of the Act , and (ii) Mr. Squire satisfied his onus to prove the origin, nature, and extent of his interest in the property, that he has not been involved in any illegal activity in respect of which the property was restrained, and that Mr. Squire did not know, and could not reasonably be expected to know, that the property was acquired by illegal means. [ 5 ] In the result, even under the rubric of a property disposal hearing I would order the property to be returned to Mr. Squire. II.

Facts [ 6 ] In the early afternoon of March 17, 2010 Constables Maetche and MacPhail of the RCMP were on highway patrol travelling westbound approximately 20 km east of Brooks, Alberta. Shortly before 1:30 pm the officers passed a pickup truck travelling eastbound that Constable Maetche noticed was missing a rear mud flap. [ 7 ] The officers turned their vehicle around and began to follow the pickup truck, and at the same time one of the officers ran the Ontario license plate through the Canadian Police Information Centre (CPIC) information system.

That CPIC inquiry revealed that the truck’s license plate had been queried twice: first on March 12, 2010 by the Dryden police in Ontario, and again on March 15, 2010 by Vancouver police in British Columbia. At approximately 1:30 pm the officers pulled over the truck that Mr. Squire was driving. [ 8 ] Constable Maetche approached the passenger door, which Mr. Squire opened for him. Constable Maetche explained that Mr. Squire had been pulled over because his mud flaps did not meet Alberta’s road safety requirements in that one mud flap was missing entirely and the other was only haphazardly attached. Mr.

Squire seemed unaware that the mud flaps were out of order, and told Constable Maetche that the truck belonged to his brother. When asked where he was coming from, Mr. Squire told the police that he had been down to Vancouver to see a friend. [ 9 ] During this time Constable Maetche formed the opinion that Mr. Squire was nervous. According to Constable Maetche, Mr.

Squire was bouncing his knees up and down, he seemed hesitant to make eye contact, and his hands seemed shaky when handing over his license and the vehicle registration documents. [ 10 ] Constable Maetche also observed two cell phones on the front passenger seat and a medium sized suitcase located behind the centre console in the cab of the truck. Constable Maetche thought the location of the suitcase was odd given that, presumably, there was plenty of cargo space in the covered box of the truck.

At this point Constable Maetche considered that the box of the truck might be full, or the suitcase contained something valuable.

[ 11 ] Constables Maetche and MacPhail then returned to the police vehicle, ran Mr. Squire’s and his brother’s names through CPIC. Neither inquiry turned up any relevant criminal history on either person, and the police confirmed that Richard Squire, Mr. Squire’s brother, was indeed the registered owner of the truck. [ 12 ] The two officers then discussed their observations. Constable Maetche testified that at this point he was extremely suspicious that some form of contraband was in the truck.

In particular, the officers found it odd that someone would drive a pickup truck from southern Ontario to Vancouver, spend only a few days in the Vancouver area, and then drive all the way back. In Constable Maetche’s opinion this was an uneconomical decision and contrary to the conduct of most people. [ 13 ] Constable Maetche then radioed for Constable Paquin to attend the scene with his police dog, Hogan. When Constable Paquin arrived, Constable Maetche and Constable Paquin approached the truck. Constable Maetche asked Mr.

Squire to step outside of the vehicle and accompany him to the back of the truck, where, at 1:40 pm, Constable Maetche advised Mr. Squire that he was being detained for investigative purposes based on suspicions that he was transporting contraband. [ 14 ] Constable Maetche then advised Mr. Squire of his right to counsel and recited the standard police caution from memory. Mr. Squire was then subjected to a pat-down search, placed in the back of Constable Maetche’s police vehicle, and told a second time that Constable Maetche suspected that the truck might contain some illegal material.

Constable Maetche then read Mr. Squire his Charter rights and police caution from a prepared card. Mr. Squire advised Constable Maetche that he understood his rights and declined to contact a lawyer at that time. Constable Maetche then proceeded to interview Mr. Squire. [ 15 ] During questioning Mr. Squire advised Constable Maetche that the purpose of his trip to Vancouver was to see a friend about playing lacrosse and that he wanted to stop in Calgary and look at housing, but in the end he had only passed through Calgary. In response to other, direct questions Mr.

Squire advised that there was nothing illegal in the truck, the box of the truck was empty, and he was not carrying any drugs. Mr. Squire later clarified that he was carrying prescription Ativan in the truck because he suffered from panic attacks. When Constable Maetche asked how much currency was in the vehicle, Mr. Squire advised that he was carrying approximately $20,000 in cash inside of his suitcase, which he later clarified to be closer to $27,000 or $28,000. [ 16 ] While Mr.

Squire was in the back of the police vehicle being interrogated, Constable Paquin and Hogan performed a ‘sniffer dog’ search of the area around the exterior of the truck. Hogan indicated the presence of the odour of a controlled substance. [ 17 ] After Constable Maetche was informed of Hogan’s positive indication, and given Constable Maetche’s other observations – including Mr. Squire’s admissions – Constable Maetche testified that he formed reasonable and probable grounds that there was a controlled substance in the vehicle, and that Mr. Squire was in possession of proceeds of crime.

At approximately 1:50 pm, Constable Maetche put Mr. Squire under arrest for both offences, and re-read Mr. Squire his Charter rights and the police caution. At this time Mr. Squire indicated he understood his rights and that he wanted to contact a lawyer. [ 18 ] With Mr. Squire under arrest, Constable Maetche assisted with a search of the truck incidental to that arrest. Inside the suitcase Constable Maetche discovered three large bundles of Canadian currency totalling $27,020 strapped together with elastic bands and further wrapped in a plastic bag.

Based on his police experience, Constable Maetche formed the opinion that this currency was proceeds of crime. No illicit drugs were discovered in the truck, and while Constable Maetche’s affidavit refers to finding tobacco shavings in the box of the truck, this is inconsistent with his evidence-in-chief, where he testified that the only evidence discovered was the currency. [ 19 ] Constable Maetche then presented Mr. Squire with two options. The first option was for Mr. Squire to surrender the cash and sign a Statement of Relinquishment indicating he was not the lawful owner of the money.

The second option was to not sign the Statement of Relinquishment, maintain his position that the cash was his, be charged with possession of proceeds obtained by crime and further detained. [ 20 ] At some point close to, or during, this conversation there was some discussion between Constable Maetche and Mr. Squire regarding the ability of the police to seize vehicles in circumstances where the police believed a vehicle was being used to transport contraband. While Constable Maetche testified that he told Mr. Squire that it was not his intention to seize the truck in this case, I accept Mr.

Squire’s evidence that, in the circumstances, he believed that Option 2 meant he would lose his brother’s truck, the cash, and be

arrested and charged with a crime. [ 21 ] Upon hearing the options Mr. Squire told Constable Maetche that he picked Option 2, even though by his words and conduct he clearly did not dissociate himself from the money. Mr. Squire then proceeded to sign the Statement of Relinquishment. All of this activity happened while Mr. Squire was still located in the back of the police vehicle, and without the benefit of Mr. Squire ever having spoken with counsel in spite of his indicated desire to do so. [ 22 ] At approximately 2:25 pm Constable Maetche released Mr.

Squire without charge and advised that a copy of the Statement of Relinquishment could either be faxed or mailed to him, or that Mr. Squire could follow the police to the nearest RCMP detachment to obtain a copy. Mr. Squire opted to follow the police back to Brooks where he was given a copy of the Statement of Relinquishment. On receipt, this ended Mr. Squire’s interaction with the police. [ 23 ] In terms of additional investigation, the police undertook a series of follow-up steps. First, at the Redcliff RCMP detachment Hogan was given the opportunity to sniff the currency in a controlled environment.

Hogan again gave a positive indication for the presence of an odour relating to a controlled substance. [ 24 ] Second, the seized currency was run through the police Currency Recording and Tracing System (CRATS). This search revealed that two of the seized bills were registered in the system as having been previously deployed in Vancouver by the police in undercover drug investigations. Times, dates, and other details relating to those investigations are not before this Court. [ 25 ] Third, Constable MacPhail contacted a member of the RCMP close to where Mr.

Squire resides on the Six Nations reserve near Ohsweken, Ontario and confirmed that Mr.

Squire was, in fact, a lacrosse player. [ 26 ] Fourth, Constable Maetche contacted the Crown prosecutor in Medicine Hat and was informed that criminal charges were unlikely in the circumstances. [ 27 ] Fifth, Constable Maetche contact Sergeant Scott of the Calgary integrated proceeds of crime unit and commenced the process to proceed with civil forfeiture of the seized currency. [ 28 ] On June 17, 2010, the Minister initiated proceedings for legal forfeiture alleging the money was proceeds of crime, and obtained an ex parte restraint order against the seized property pursuant to the Act . III.

Issues [ 29 ] Following are the issues before the Court. (

i) Did the police violate Mr. Squire’s ss. 8 , 9 or 10(

b) Charter rights during the traffic stop? (ii) Would admitting illegally obtained evidence bring the administration of justice into disrepute? (iii) Can the restraint order stand as validly issued? (iv) Has the Minister proved the seized property was acquired by illegal means?

(

v) Has Mr. Squire discharged his onus under s. 13(1)(

b) of the Act? IV. Positions of the Parties [30] The Minister alleges the traffic stop was legal and that Mr. Squire’s investigative detention was lawfully grounded based onthe totality of the information before Constable Maetche at the relevant time. The Minister further argues that the police dog’s positiveindication to the presence of an odor related to a controlled substance provided reasonable and probable grounds for Mr. Squire’s arrest,thereby rendering lawful the search incident to arrest whereupon the seized currency was discovered. [31] The Minister denies that any of Mr.

Squire’s Charter rights were infringed, and that if they were, excluding the evidencewould bring the administration of justice into disrepute. The Minister argues that this Court should find the restraint order was validlyissued, that the Minister has discharged its onus under s. 13(1)(

a) of the Act to prove that the currency was obtained by illegal means (i.e.the sale of a controlled substance), and that the property should be forfeited to the Crown as proceeds of crime. [32] Mr. Squire alleges that Constable Maetche lacked reasonable suspicion to put Mr. Squire under investigative detention andthereby breached his s. 9 Charter right not to be arbitrarily detained. As a consequence, Mr. Squire argues that his interrogation and theK-9 search were not authorised by law and in violation of Mr. Squire’s s. 8 Charter right to be secure against unreasonable search andseizure.

Mr Squire further argues that the RCMP’s failure to provide Mr. Squire with an opportunity to consult counsel after hespecifically indicated his desire to do so was in violation of his s. 10(

b) Charter right. [33] Mr. Squire argues that, in this case, admitting evidence illegally obtained would bring the administration of justice intodisrepute. Mr. Squire asks this Court to excise all references to the illegally obtained evidence from Constable Maetche’s affidavit andfind that, on review, the restraint order should not have been issued. [34] In the alternative, Mr.

Squire asks this Court to accept his explanation as to the origin, nature, and extent of his interest in theseized currency, and to find that he did not participate in, or know about, any illegal activity in respect of which the currency was seized,and that he could not have been reasonably expected to know about the same. V. Analysis (

i) Did the police violate Mr. Squire’s ss. 8, 9 or 10(

b) Charter rights during the traffic stop? (

a) Was Mr. Squire’s detention arbitrary? [35] In order for the police to lawfully detain an individual for criminal investigation the police must have reasonable grounds tosuspect that individual’s complicity in the criminal activity being investigated. The detention must be reasonably necessary on anobjective view of the totality of the circumstances: R. v. Mann, 2004 SCC 52 , [2004] 3 SCR 59 at para. 34, R. v. Storrey, (SCC), [1990] 1 SCR 241 at 250. [36] I accept Constable Maetche’s evidence that he held a subjective belief that it was possible Mr.

Squire might be involved intransporting contraband between British Columbia and Ontario. However, subjective belief is, by itself, insufficient to pass constitutionalscrutiny. Constable Maetche’s suspicion must be objectively justifiable. Thus, the question of arbitrary detention turns on whether thefactors identified by Constable Maetche form an objectively reasonable basis for him to suspect Mr. Squire was involved in a crime. [37] In R. v. Navales, 2011 ABQB 404, Hughes J. canvassed the law with respect to judicial assessment of reasonable suspicion.The legal principles relevant to the case at bar follow.

(

i) The police may deploy a sniffer dog when the police have satisfied the reasonable suspicion standard: R. v. Kang-Brown, 2008SCC 18, [2008] 1 SCR 456. (ii) The standard for detaining a person for investigative purposes is the same as for engaging a sniffer dog, but the search and thedetention need to independently meet the reasonable suspicion standard: Navales at para. 13 referring to the Saskatchewan Court ofAppeal in R. v.

Yeh, 2009 SKCA 112, 337 Sask R 1. (iii) Trial judges need to look at the totality of the circumstances and review all of the relevant factors collectively when assessingwhether reasonable suspicion is objectively justified: Navales at paras. 16 and 18 referring to R. v. Payette, 2010 BCCA 392, 259 CCC(3d) 178 at para. 25; R. v. Bramley, 2009 SKCA 49, 324 Sask R 286 at paras. 43-48; R.v. Schrenk, 2010 MBCA 38, 255 Man R (2d) 12at para. 70 and 98; R. v. Savage, 2011 SKCA 65; R. v. Morin, (SCC), [1988] 2 SCR 345 at 359; and R. v.

Nolet, 2010SCC 24, [2010] 1 SCR 851 at para. 48. (iv) While a trial judge must assess reasonable suspicion against the totality of the circumstances, not all factors are equally relevantor probative in the analysis: Navales at para. 19 referring to Schrenk at paras.78-79; Savage at paras. 22-31; and R. v. Lal (1999), (BC CA), 130 CCC (3d) 413 at para. 27 (BC CA) leave to appeal to denied [1999] SCCA No 28 (April 29, 1999). (

v) Objective reasonableness must be assessed in light of the investigating officer’s background and experience, however, deferenceto the officer’s intuition must not render the objective inquiry meaningless: Navales at para. 20 referring to Payette at para. 25, R. v.MacKenzie, 2011 SKCA 64 at para. 28; Nolet at para. 48; Schrenk at para. 77; and Yeh at para. 53. [38] In this case, Constable Maetche had been employed by the RCMP for almost six years at the time of the traffic stop.Approximately four years of his career has been spent with the roving traffic unit responsible for traffic safety and the interdiction ofcontraband and criminals travelling on Canada’s highways.

Constable Maetche is also a specialty police canine handler, and hascompleted several training courses aimed at enhancing officers’ observational skills and criminal interdiction techniques. [39] After performing the traffic stop on Mr. Squire in respect of the missing mud flap, Constable Maetche made severalobservations that caused him to form an opinion that Mr. Squire was involved in transporting some form of contraband. As discernedfrom Constable Maetche’s supporting affidavit and viva voce evidence, the objective factors to support Constable Maetche’s opinion are: (

i) Mr. Squire was bouncing his knees, he seemed hesitant to make eye contact, and his hand appeared shaky while turning overdocuments for inspection. According to Constable Maetche the nervousness underpinning that body language did not appear to subside.In Constable Maetche’s experience, Mr.

Squire’s level of nervousness was greater than the average person pulled over during a trafficstop. (ii) The truck was in Ontario on March 12th, in Vancouver on March, 15th, and in Alberta heading eastbound on March 17, 2010.The CPIC inquiry did not yield any additional information with respect to why the license plate was queried in those locations. (iii) When the police asked Mr. Squire where he was coming from, he replied that he was returning home after visiting a friend inVancouver. (iv) Mr.

Squire advised Constable Maetche that he was unaware that a mud flap was missing because he had borrowed the vehiclefrom his brother. The vehicle registration confirmed that Richard Squire was the registered owner. (

v) Police queries on the names of Chad Squire and Richard Squire did not yield any relevant criminal history. (vi) Mr. Squire was transporting a medium sized suitcase in the cab of the truck behind the centre console.

(vii) The box of the truck was covered with an unlockable tonneau cover. (viii) There were two cell phones visible on the front passenger seat. [ 40 ] These factors, whether considered individually or in aggregate, do not rise to the level of reasonable suspicion. I recognize the law prohibits me from assessing each factor based on its probative value. With this in mind, I have reach my conclusion having considered these factors collectively and in the totality of the circumstances.

However, in the interest of providing intelligible reasons, I offer the following comments. [ 41 ] While Constable Maetche’s experience with the RCMP puts him in a better position than most to assess the relative behaviour of individuals pulled over in a traffic stop, I do not find that a significantly heightened (or by necessary implication, lessened) degree of nervousness amplifies or reduces the strength of the collective assessment of reasonable suspicion.

This is because it is not uncommon for individuals actually carrying contraband to attempt to appear particularly calm and collected in order to avoid raising suspicion. The police, being wise to this tactic, often refer to this type of behaviour as contributing to the basis for their reason to suspect. Therefore, in my view this factor is ambiguous and it did not impact on my conclusion. [ 42 ] Constable Maetche gave evidence that he thought it odd that someone would drive across the country, keep luggage inside of the cab of a truck, and keep the box of the truck covered from view.

In his view, driving was an uneconomic and slow way to traverse the country unless a person was doing so for some ulterior purpose. Constable Maetche’s suspicion was also raised because, in his view, it was illogical to transport luggage in the cab of truck rather than the box.

Constable Maetche was also prepared to infer some nefarious meaning from the fact that the box of the truck was covered thus preventing a plain view visual inspection, though he agreed a person might cover the box to protect the contents from the elements. [ 43 ] In my opinion, each of those considerations speak to Constable Maetche’s subjective belief – not to objective grounds that support Constable Maetche’s opinion. There are many reasons why people travel the country by road, as there are for why a person would keep a suitcase or overnight bag in the cab, versus cargo area, of a truck.

That the truck was travelling with a tonneau cover may simply be a reflection of the owner’s decision to outfit the truck in that way, or perhaps that is how the truck was delivered when it was purchased a few weeks earlier. [ 44 ] These observations, even taken together in all of the circumstances, are not probative that Mr. Squire was involved in any criminality. I say this with a full appreciation of the nature of a reasonable suspicion assessment where the inquiry is based on whether there were grounds to suspect , not whether there were grounds to believe that Mr.

Squire was, in fact , involved in some crime. [ 45 ] I also note that Mr. Squire was honest with the police when asked where he was coming from. I view this factor as particularly significant because Mr. Squire had no way of knowing that the police were aware the truck had recently been in Vancouver. Had Mr. Squire lied about where he was coming from that certainly would have raised the suspicions of an objective observer. [ 46 ] Constable Maetche stated that he became suspicious, in part, based on the third party nature of the vehicle.

However, these circumstances are not akin to a drug runner couriering product using a commercially rented automobile. In those circumstances the courier is trying to decouple any link between himself and the vehicle being used to transport illicit material, which is the foundation for suspicion that arises from third party ownership. [ 47 ] In this case, Mr. Squire was forthright regarding the true ownership of the vehicle prior to the police demand to produce vehicle registration documents. In response to Constable Maetche pointing out the missing mud flap Mr.

Squire admitted that he was not aware of the problem because he had only recently borrowed the truck from his brother. That answer hardly seems in keeping with basis for nefarious third party ownership. My conclusion is informed by the reality that Mr. Squire’s answer would not hide or remove the link between himself and the target vehicle. Furthermore, Mr. Squire’s admission would cast the light of suspicion directly onto a member of his own family. [ 48 ] Constable Maetche also found it suspicious that Mr. Squire possessed two cell phones.

While I agree this is a common practice for drug runners, Constable Maetche also testified that it is also a common practice for ordinary, law abiding citizens. Given the obvious plurality of this factor it does not carry much persuasive weight. I do not consider that this factor, taken in combination with the other considerations and viewed in light of the totality of the circumstances, provided Constable Maetche with objective grounds to place

Mr. Squire under investigative detention. [ 49 ] In the result, I find the police lacked a lawful basis to detain Mr. Squire for investigative purposes unrelated to the traffic stop, or to deploy Hogan. Therefore, I find the evidence acquired from Mr. Squire during his investigative interrogation, and the evidence relating to the police dog’s positive indication, was unlawfully obtained in breach of Mr. Squire’s ss. 8 and 9 Charter rights. (

b) Was Mr. Squire denied his right to counsel? [ 50 ] On the facts, Mr. Squire was plainly denied his right to counsel.

Section 10(

b) of the Charter states: 10. Everyone has the right on arrest or detention ... (

b) to retain and instruct counsel without delay and to be informed of that right; ... [ 51 ] In R. v. Suberu , 2009 SCC 33 , [2009] 2 SCR 460 at paras. 2 and 42 , the majority of the Supreme Court confirmed that “without delay” means the police informational and implementation duties under s. 10(

b) are triggered immediately upon detention. The rationale for this

interpretation is to insert a degree of balance into a situation where a person is suddenly facing the critical eye, and immense power, of the State. The benefit to the individual in consulting counsel is the opportunity to better understand and appreciate the jeopardy he or she might be facing before saying or doing anything that might prejudice that person’s legal interests.

That rationale is squarely engaged in the case at bar. [ 52 ] The immediacy of these obligations is subject only to concerns for officer or public safety, and to reasonable limits prescribed by law and justified under s. 1 of the Charter : Suberu at para. 2 . Since the facts of the instant case do not engage concerns for officer or public safety, and the Crown has not advanced any argument in respect of a reasonable limit prescribed by law, this issue turns on whether the police complied with their duties to provide Mr. Squire his s. 10(

b) rights without delay. [ 53 ] Mr. Squire does not take issue with the how the police conducted themselves with respect to the informational component of s. 10(b) – i.e. to be advised of the right to retain counsel. In fact, Cst Maetche did properly advise Mr. Squire of his right to contact a lawyer when Mr. Squire was initially detained, and again when the circumstances changed and Mr.

Squire was put under arrest. [ 54 ] The issue is the implementation duty under s. 10(b), i.e. the obligation on the police to provide a reasonable opportunity for the detainee to contact a lawyer once that person indicates a desire to do so. In these circumstances, when Mr. Squire was put under arrest at approximately 1:50 pm, he told Constable Maetche that he wished to speak to a lawyer. Mr. Squire’s indication triggered the police implementation duty at that point in time. [ 55 ] On the facts, Mr. Squire was never provided with an opportunity to consult counsel.

Constable Maetche explained that the reason for this was because he could not provide Mr. Squire with a private setting while the vehicles were pulled over on the side of the road in rural Alberta. Assuming, without deciding, that it was unreasonable to require the police to provide Mr. Squire an opportunity to contact to counsel on the side of the road, this explanation does not excuse the failure to do the same once the officers and Mr. Squire arrived at the Brooks RCMP detachment. [ 56 ] The Crown argues that instead of acting on his right to counsel at the side of the road, Mr.

Squire chose to sign the Statement of Relinquishment rather than be further detained. The Crown’s legal argument is not clear to me, but it appears the Crown contends that Mr. Squire, by his conduct, waived his right to counsel. [ 57 ] This argument is utterly unpersuasive, if not totally illogical. The point of Mr. Squire contacting counsel was to help him understand the trouble he was in, the choices he was facing, and the ramifications of electing either option. Mr. Squire was denied the

benefit of that advice. To then say that this uninformed choice excused the police conduct, and therefore there was no Charter breach, isto render meaningless the spirit, intent, and purpose of s. 10(b). [58] Mr. Squire’s right to retain and instruct counsel was violated. That breach arose at the point when Mr.

Squire was arrestedand indicated his desire to speak with a lawyer without any steps being taken by Constable Maetche, or any other officer, to facilitate thatrequest. (ii) Would admitting illegally obtained evidence bring the administration of justice into disrepute? [59] The Crown argues that the factors considered under a s. 24(2) analysis in a forfeiture proceeding do not apply with the sameforce when the Respondent’s liberty is not at risk. The Crown cites R. v.

Daley, 2001 ABCA 155, 281 AR 262 at para. 24, as authorityfor this proposition. [60] In my view Daley is distinguishable given the Supreme Court’s restatement of the s. 24(2) analysis in R. v. Grant, 2009 SCC32, [2009] 2 SCR 353. Daley was premised on a prior version of the s. 24(2) test originally set out in R. v. Collins, (SCC), [1987] 1 SCR 265 and R. v. Stillman, (SCC), [1997] 1 SCR 607.

The Collins/Stillman framework was explicitlyreplaced by the Court’s decision in Grant. [61] The emphasis of the Collins/Stillman framework was centred on the nature of the evidence (conscripted versus non-conscripted), so much so that over time a virtual auto-exclusion rule evolved in respect of conscripted evidence.

However, in Grant, theSupreme Court shifted the analysis back to the central inquiry underpinning s. 24(2), which is whether admitting unlawfully obtainedevidence would bring the administration of justice into disrepute. [62] That unifying question gave rise to a series of considerations aimed at assisting a judge determine whether evidence should beadmitted notwithstanding one or more Charter breaches.

These considerations move away from the conscripted/non-conscripted divide,and take a more balanced approach to assessing the nature of the State conduct that led to the breach, the consequential impact on theprotected interests of the person whose rights were infringed, and society’s competing desires to have cases adjudicated on the meritsversus a judicial system beyond reproach. [63] Under the Grant paradigm it is difficult to accept the proposition that State conduct somehow becomes less egregious if thejudicial context changes from criminal to civil, or where an individual’s at-risk interest is something other than liberty.

The State’sconduct is fixed. The police did what they did and the past cannot be changed or undone. In my view the government should be held to aconsistently high standard in respect of how it employs its considerable resources against its citizenry, and that standard should existindependent of the government’s choice of how it wishes to proceed legally. [64] Similarly, an unreasonable search or an arbitrary detention is no less unreasonable and no less arbitrary simply because thegovernment chooses one form of legal proceeding over another.

This election is something the respondent/accused has no choice orcontrol over. Charter protected interests are not an elastic concept that expand or contract based on the seriousness of the offence ornature of the judicial forum. Charter rights – and their underlying purpose – remain fixed, subject only to broad and liberalinterpretations that give effect to those rights in contemporary times: R. v. Big M. Drug Mart, (SCC), [1985] 1 SCR 295at 334-336; Edwards v.

Canada (Attorney General), (UK JCPC), [1930] AC 124. [65] In Grant, at paras. 71-86, the Supreme Court expressly redefined how a s. 24(2) analysis should be undertaken in respect ofexcluding evidence. The Court stated that the fundamental question is whether admitting the evidence would bring the long termadministration of justice into disrepute. To answer that question, a judge must engage in three lines of inquiry and then make a finaldetermination. Those lines of inquiry are: (

i) The seriousness of the Charter infringing conduct; (ii) The impact of the breach on the individual’s Charter protected interests; and

(iii) The impact of admitting the evidence on society’s interest in having the case adjudicated on the merits. [ 66 ] Within the context of this case, the seriousness of the Charter infringing conduct weighs in favour of excluding the evidence. While I do not find the police were particularly abusive, reasonable suspicion and investigative detention are well established concepts that the police need to get right in order to avoid relegating the operation of the Charter into a purely ex post facto role.

In my view, this is a good example of where courts need to distance themselves from the fruits of unlawful conduct in order to give effect to the rule of law. Condoning the State’s behaviour in this circumstance would serve the opposite purpose. [ 67 ] The impact of the various breaches on Mr. Squire’s Charter protected interests was serious and favours exclusion. The Charter protected interests at issue include Mr. Squire’s liberty to go about his lawful business without fear or threat of State interference; Mr.

Squire’s privacy interests in the contents of the vehicle he was operating and the suitcase containing his personal belongings; and Mr. Squire’s right to silence and right against self-incrimination. [ 68 ] The right to liberty and freedom is at the heart of Canada’s democracy. Similarly, the right to silence and to remain free from compulsion to say or do things that will incriminate oneself are cornerstones of the Canadian criminal justice system. State conduct that undermines these fundamental values is serious. And while Mr.

Squire has a lower expectation of privacy in a motor vehicle, and particularly in one that he does not own, his privacy interest is not zero. On the other hand, he has a high expectation that the police will not search his personal belongings without a justifiable reason to do so. On the whole, the impact of detaining Mr. Squire on the side of the road for an hour without just cause, searching the vehicle as well as Mr.

Squire’s personal belongings, and denying him the ability to obtain legal assistance to appreciate and navigate the jeopardy he was facing, all point toward excluding the evidence. [ 69 ] The impact of admitting the evidence on society’s interest in having the case adjudicated on the merits engages countervailing considerations. On one hand, I find the physical evidence of the seized property very reliable, which favours admission. On the other hand, I find Mr. Squire’s admissions during his interrogation and his acquiescence to the Statement of Relinquishment to be highly unreliable.

In fact, I am satisfied that Mr. Squire’s signature on that document was not even voluntary. That consideration strongly favours exclusion. I also note that excluding the evidence would have the effect of completely undermining the Crown’s application. However, in this circumstance, I do not find that too high a price to pay to insulate public confidence in the justice system. [ 70 ] Taken together, I am of the view that admitting any evidence obtained in breach of Mr. Squire’s Charter rights would bring the administration of justice into disrepute. In the result, all references to Mr.

Squire’s statements made to the police during his interrogation in the back of Constable Maetche’s police vehicle, the seized property and all derivative evidence related thereto, Hogan’s positive indication of the presence of an odour relating to an illicit substance, and the Statement of Relinquishment should all be excluded from consideration during any part of this civil forfeiture proceeding. (iii) Can the restraint order stand as validly issued? [ 71 ] The appropriate remedy in these circumstances is to excise from Constable Maetche’s supporting affidavit any and all reference to illegally obtained evidence, leaving the remaining evidence to be evaluated for its sufficiency by a reviewing judge charged with determining whether the restraint order was properly issued: Alberta (Minister of Justice & Attorney General) v.

Petros , 2011 ABQB 541 , 52 Alta LR (5th) 55 at paras. 62-64 . [ 72 ] The standard of review is whether the reviewing judge would have made the same decision as the judge who originally authorized the restraint order, having regard to the evidence before the Court at the review hearing. If not, the reviewing judge must correct the previous judge’s error: Petros at para. 65 referring to Quebec (Attorney General) v.

Laroche , 2002 SCC 72 , [2002] 3 SCR 708 at para. 66 . [ 73 ] In this case, excising Constable Maetche’s affidavit of all references to the seized currency, all references to evidence derived from the seized currency (such as the expert opinion of Sargent Scott), all evidence related to the Statement of Relinquishment, and any statements Mr. Squire made to the police while being interrogated in the back of the police vehicle, make it clear that the restraint order could not have properly issued.

[ 74 ] Therefore, the restraint order should be vacated and declared a nullity, and the property returned to Mr. Squire forthwith. Given my conclusion on this question, it is unnecessary to address the questions that would arise if matters were to be adjudicated at the property disposal stage of the proceeding. [ 75 ] However, even if I am wrong with respect to finding breaches of Mr. Squire’s Charter rights and my s. 24(2) analysis, the ultimate outcome in this case would not change.

To demonstrate, I offer my analysis of the core issues that would otherwise be before the Court but for the disposition flowing from the restraint order review. (iv) Has the Minister proved the seized property was acquired by illegal means? [ 76 ] In these circumstances if all of the evidence was admissible at the subsequent property disposal stage of the proceeding I would conclude that the Minister did satisfy, on a balance of probabilities, its onus pursuant to s. 13(1) (

a) of the Act . My conclusion is significantly influenced by the credible and compelling expert evidence of Sargent Scott. of the Calgary Integrated Proceeds of Crime unit. [ 77 ] Of particular significance is the manner in which the currency was packaged and bundled into successively smaller denominations.

I accept Sargent Scott’s evidence that particularized methods for packaging currency is common in the drug trade whose participants are interested in exchanging money for product quickly, without having to make a detailed accounting of the value of the cash at the time of a transaction. [ 78 ] In Sargent Scott’s evidence he described this method of packaging through an example whereby a series of notes might be wrapped by two elastic bands forming a series of $1000 bundles. Then, five $1000 bundles would be combined with two more elastic bands forming one $5000 bundle.

Then, two $5000 bundles would be combined with two more elastic bands forming one $10,000 bundle. According to Sargent Scott, this method of packaging the money facilitates quick counting during the sale of controlled substances. [ 79 ] In addition, Sargent Scott gave evidence that people involved in the drug trade are increasingly forced to deal with large sums of cash on account of government regulation that increases the difficulty by which illegal transactions can be facilitated through Canada’s financial institutions.

By comparison, according to Sargent Scott, law abiding citizens typically behave differently when it comes to handling currency. Rather than packaging money as described above, a law abiding citizen is more likely to sort and keep bills of the same denomination together, irrespective of the value of that collection of bills. [ 80 ] Moreover, in Sargent Scott’s view, it is extremely uncommon for law abiding citizens to carry tens of thousands of dollars in cash on their person.

Instead, people and businesses who respect the law are interested in proper accounting and record keeping in order to accurately report business cash flows and tax information. [ 81 ] In the instant case three bundles of cash were discovered, each wrapped by two elastic bands. Two of the three bundles further contained sub-bundles of notes again wrapped by two elastic bands.

While each bundle was not counted to determine the monetary value, I am satisfied that the seized money was packaged in a manner consistent with how a person in the drug trade would bundle large sums of currency. [ 82 ] Other considerations include the fact that two of the seized $20 bills were linked by CRATS to undercover drug operations in Vancouver; most of the seized currency was in $20 bills which is consistent with Sargent Scott’s opinion that this is the most common denomination used in the drug trade and product is often priced in multiples of $20; and Hogan indicated the presence of an odour of an illicit substance on the currency on two separate occasions. [ 83 ] In the result, I am satisfied, on a balance of probabilities, that the Minister has proved the seized currency was, at one point, acquired by illegal means.

That illegal means was likely the sale and trade of one or more controlled substances.

(

v) Has Mr. Squire discharged his onus under s. 13(1) (

b) of the Act ? [ 84 ] Where the Minister has proven the illegality of the seized property, a Respondent must satisfy his own burden, pursuant to s. 13(1) (

b) of the Act , or risk forfeiture. Section 13(1) (

b) states: 13(1) At a property disposal hearing (a) ... (

b) the onus is on a respondent ... to establish, with respect to the restrained property, (

i) the origin and the nature and extent of that respondent’s interest in the property, (ii) that the respondent has not been involved in the commission of the illegal act in respect of which the property was restrained, and (iii) where the property had been acquired by illegal means and subsequent to the acquisition of the property by illegal means the property was acquired by the respondent, that the respondent did not know and would not reasonably be expected to know that the property had been acquired by illegal means; ... [ 85 ] Section 13(1)(b)(iii) charges a respondent with a negative, reverse onus.

In other words, in order to succeed a respondent bears the burden to prove an absence of knowledge. This is inherently more difficult than a requirement to prove a positive state of affairs. On this point Justice Macleod’s analysis in Alberta (Minister of Justice) v. Chau , 2010 ABQB 758 is instructive. That case dealt with forfeiture of an alleged instrument of crime, versus proceeds of crime, but under the same statutory authority.

Justice Macleod’s analysis at paras. 31 and 34-38 is relevant in all material respects and reproduced below. 31 A specific problem raised on the facts of this case involves the operation of the negative reverse onus in s.19.93(1)(b)(ii)(B) [equivalent in substance to s. 13(1)(b)(iii)]. The Alberta Act is the only one in Canada mandating a negative reverse onus in respect to property being used as an instrument of an illegal activity.

That is, as set out above, the Respondent must establish on balance that she did not know or could not be reasonably expected to know that the property was being used as an instrument of crime. ... 34 A negative reverse onus is rare. In an ordinary action, the Plaintiff is required to prove their case and then upon doing so the Defendant must respond to overcome that proof. Indeed, courtroom procedure is adapted to follow this standard operation.

Requiring instead that the Respondent prove a reasonable absence of knowledge is importantly different and problematic. 35 Assuming the Respondent is credible, is it enough for her to merely say, under oath, that she did not know the property was being used in crime? If that were the case then the onus on the Respondent would be met by the bald assertion that she had no knowledge. Normally, the party with the onus is expected to raise convincing evidence to satisfy the balance of probabilities test. ...

However, I see no reason why a reasonable assertion of an absence of knowledge, made under oath, should not be sufficient in circumstances where the Minister subsequently fails to raise convincing evidence against the Respondent. Otherwise, the Act would permit the forfeiture of property merely on a lack of evidence, an outcome not in the interests of justice.

36 In my view, the Minister must raise convincing evidence to rebut the Respondent's reasonable assertion of an absence of knowledge. The practical result is that there is a de facto shifting onus on the Minister to raise evidence against a credible Respondent who swears to a reasonable absence of knowledge . To illustrate, the Respondent begins by swearing a reasonable absence of knowledge that the property was used in the crime. This establishes that the Respondent has prima facie satisfied her onus.

The onus then de facto shifts to the Minister to raise convincing evidence that the Respondent knew or must have known that the property was used in crime. I stress that the Minister must raise convincing evidence; baseless assertions and allegations are not sufficient for the reasons detailed in the preceding paragraph. Once the Minister raises this evidence, it is on the Respondent to demonstrate that, on the totality of the evidence, she reasonably did not know the property was used in crime. [Emphasis added] 37 The use of a de facto shifting onus to deal with a negative onus is not a novel idea.

A similar approach was taken in the law of unjust enrichment ... [b]ecause requiring a party to prove a negative is problematic ... 38 In the final analysis, therefore, I do not think the Alberta Act relieves the necessity that the Court must be satisfied on the totality of the evidence that an order of forfeiture should properly issue. [ 86 ] I accept and adopt these legal principles set out by Justice Macleod in Chau . I also note a similar approach was taken by Justice Burrows in Alberta (Minister of Justice and Attorney General) v. Robblee , 2011 ABQB 516 at paras. 9 and 16-18 .

This was a situation where the Crown was applying for civil forfeiture in respect of a vehicle seized during a drug trafficking arrest. In that case the Respondent testified that he had loaned his vehicle to a friend and was unaware of that friend’s involvement in the drug trade. [ 87 ] Justice Burrows was satisfied that so long as the Respondent was credible, testimonial evidence denying knowledge of the illegal activity was sufficient to discharge the onus under s. 19.93(1)(b)(ii)(

B) of the Act , absent any evidence to the contrary adduced by the Minister to undermine the witness’s credibility. In that case the Court found the respondent credible and was not persuaded by any evidence adduced by the Minister to the contrary. In the result, the Court ordered the Respondent’s motor vehicle returned to him. [ 88 ] In the instant case I am satisfied that Mr. Squire has demonstrated the origin, nature, and extent of his interest in the seized property flowed from a cash payment received by him upon the sale of his house, which was precipitated by the threat of bank foreclosure.

I am also satisfied that Mr. Squire is an honest and credible witness with limited formal education. In my view, his denials of participating in, and knowledge of, any illegal activity in respect of the seized property establishes the remaining elements of his onus under s. 13(1) (b). [ 89 ] While the position of the Minister is strong with respect to the illegal source of the currency, nothing in the Minister’s evidence establishes that Mr.

Squire’s knew or ought to have known that the money was likely linked to the sale of controlled substances, as required of the Minister under the shifting onus paradigm. [ 90 ] While Sargent Scot testified that it is unusual for most people to carry large sums of cash, that normative standard is not culturally appropriate to the reality of the Six Nations Reserve where, as described by Mr. Squire, it is very common for people to deal almost exclusively in cash. It may be the case that someone close to Mr. Squire is involved in the criminal underworld, but absent evidence demonstrating Mr.

Squire’s knowledge of this and consequential tainting of the money in his possession, the Minister cannot succeed in this application. [ 91 ] Had the matter proceeded to the property disposal stage of the proceeding I would have ordered the seized property be returned to Mr. Squire pursuant to s. 14 (b)(

i) of the Act . VI. Other considerations (

a) Forfeiture due to a respondent ’s failure to provide undertaking [ 92 ] The Minister asks this Court to consider the failure of Mr. Squire to provide an undertaking to ask his sister-in-law for information regarding the source of the money as sufficient to forfeit Mr. Squire’s interest in the restrained property, pursuant to s. 12 of

the Act , reproduced below. 12 Unless the Court directs otherwise, a respondent forfeits all of that respondent’s rights to the restrained property if that respondent fails, without a reasonable excuse, ... (

c) to answer questions put to the respondent during questioning or cross-examination; (

d) to provide, as directed by the Court or pursuant to an undertaking given by the respondent, any information or any documentation, whether in written or electronic form; ... [ 93 ] In the transcript of the cross examination of Mr. Squire, at page 37 lines 15-23, the following exchange takes place between Ms. Nugent, representing the Minister, and Ms. Madison, prior counsel representing Mr. Squire: Ms. Nugent: Mr. Squire, I am going to ask you if you would undertake to ask your sister-in-law where, in fact, she got the $30,000 that she gave you with respect to the sale of your house? Ms.

Madison: And I am objecting to that. I am not agreeing to produce that information, so you don’t have to answer that, okay. [ 94 ] The objection was noted and the cross-examination continued. This passage, in concert with the record before me, reveal several important considerations. First, Mr. Squire did not refuse to answer the question. He was advised not to by counsel. Second, no undertaking was actually provided.

Third, there is no evidence on the record that the Minister challenged the basis for the objection in court by seeking an order compelling that undertaking or an answer to the underlying question. [ 95 ] It is apparent from these facts that neither s. 12 (

c) or (

d) apply. First, Mr. Squire did not refuse to answer the question. He accepted the advice of counsel. In my view s. 12 (

c) of the Act cannot be interpreted to force a respondent to answer a question in cross- examination against the advice of counsel or risk losing the substantive case. [ 96 ] The language “without reasonable excuse” employed in s. 12 lends support for this

interpretation. In other words, the Act itself contemplates situations where a failure justified by a reasonable excuse will not cause a respondent to forfeit his interest in the restrained property. In my view, following the advice of counsel is a reasonable excuse for opting not to answer a question in this situation. [ 97 ] There are many valid reasons for counsel objecting to questions or undertakings. If a respondent’s counsel raises an objection, as in the case here, the opposing party can press the issue in court.

If, after hearing both sides, a court orders the question to be answered and the respondent then fails to comply, s. 12 operates to forfeit that person’s interest in the restrained property, but not before. It is not open for the Minister to fail to challenge the basis for an objection and then claim the same results in the ultimate prejudice to the respondent’s property rights. [ 98 ] Similarly, s. 12(

d) operates when information is not produced further to an undertaking to produce it. In this case no such undertaking was provided.

Section 12(

d) is not applicable. (

b) Jurisdiction of the Act where there is non-compliance with s. 6 [ 99 ] While it bears not on the decided disposition of this case, I take note of s. 6 of the Act , which states:

6(1) Where, by reason of exigent circumstances, it is impractical to obtain a restraint order, a peace officer who has reasonable grounds to believe that property has been acquired by illegal means may give directions in writing doing one or more of the following: (

a) prohibiting any person from doing anything with respect to the property except as provided in the direction; (

b) directing any person having possession of or control over the property to turn that property over to a peace officer, a civil enforcement agency or another person; (

c) providing for matters that are ancillary to any direction given under clause (

a) or (b).

(2) A peace officer must give the person to whom a direction is given under subsection (1)(

b) a written receipt for any property that is turned over pursuant to that direction. ... [ 100 ] In effect, this

section prescribes the procedure a peace officer must employ in order to seize property pursuant to authority granted under the Act . In particular, s. 6(1)(

b) states that if a peace officer decides to exercise his or her discretion to direct a person in possession or control of property to turn over that property, that direction should be in writing. Second, s. 6(2) requires a peace officer to provide a written receipt for the property that is turned over pursuant to a direction to do so under subsection (1)(b). [ 101 ] In this case, it appears none of the attending police officers complied with s. 6 of the Act . Rather, it appears the property was seized under the statutory authority of s. 489(2) of the Criminal Code .

Further evidence of this is the Report to a Justice filed by Constable Maetche on August 30, 2010, pursuant to s. 489.1(3) of the Code. As such, it appear the post-seizure procedure ought to have been that set out in s. 490 of the Criminal Code , not the Victims Restitution and Compensation Payment Act . [ 102 ] However, a final determination of that issue and any consequential impact on the Minister’s ability to proceed under the Act is not relevant to the disposition of this case, so I choose to leave it for another day. VII.

Conclusion [ 103 ] My answers to the issues set out at the beginning of this judgment follow. (

i) Did the police violate Mr. Squire’s ss. 8 , 9 or 10(

b) Charter rights during the traffic stop? Yes, all three Charter rights were violated in these circumstances. (ii) Would admitting illegally obtained evidence bring the administration of justice into disrepute? Yes. (iii) Can the restraint order stand as validly issued? No. (iv) Has the Minister proved the seized property was acquired by illegal means? While this question does not impact on the disposition of this case, I would answer it in the affirmative.

(

v) Has Mr. Squire discharged his onus under s. 13(1) (

b) of the Act ? While this question does not impact on the disposition of this case, I would answer it in the affirmative. [ 104 ] In the result, the property disposal order sought by the Minister is denied. Further to s. 8(2) (

b) of the Act , the Crown shall return the seized property in question to Mr. Squire forthwith. Furthermore, pursuant to s. 48(2) of the Act, Mr. Squire shall have party and party costs per Column 1 of

Schedule C, including disbursements and judgment interest on the value of the seized property calculated from the date of seizure through the date of this judgment. Heard on the 29 th day of September, 2011. Dated at the City of Calgary, Alberta this 21 ST day of March, 2012. W.P. Sullivan J.C.Q.B.A. Appearances: Christine Nugent for the Applicant, the Minister of Justice & Attorney General for Alberta Alias A. Sanders for the Respondent, Chad Squire