R. v. Nguyen, 2012 ABQB 199

Court of Queen ’ s Bench of Alberta Citation: R. v. Nguyen, 2012 ABQB 199 Date: 20120326 Docket: 101002228Q1 Registry: Red Deer Between: Her Majesty the Queen - and - Dominic Nguyen Accused _______________________________________________________ Reasons for Decision on Voir Dire of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ Introduction [ 1 ] Just after lunch on August 18, 2010 the accused Dominic Nguyen was pulled over by police for a stop sign violation near Red Deer, Alberta.

Some 20 minutes later he was charged with possession of cocaine for the purposes of trafficking. This is a decision on a voir dire. At issue are Charter objections on Nguyen’s initial detention based on “reasonable suspicion”, his rights to counsel, and the exclusion of evidence. [ 2 ] No one disagrees Nguyen ’ s vehicle contained some 193 grams of cocaine. Nguyen denies he knew the cocaine was in the vehicle. That aside, he also says his rights under the Charter were breached: he was illegally detained; the search of his vehicle was illegal; and his right to counsel was breached.

Nguyen says that owing to those breaches the cocaine should be excluded from evidence.

[ 3 ] The Crown says the detention and search were without fault. It is conceded the right to counsel was breached. But I should not care because the Crown agrees Nguyen ’ s statements were inadmissable. On the whole the Crown says the physical evidence should be admitted. [ 4 ] The Crown called its entire case in the voir dire. It concedes if the evidence is excluded Nguyen should be acquitted. If the evidence is admitted, Nguyen contests whether he was in possession of the cocaine. [ 5 ] For reasons which follow I find Nguyen was both detained and searched illegally. His right to counsel was breached.

In the voir dire the evidence must be excluded. Whether he was in possession need not be adjudicated. He is entitled to be acquitted. Facts [ 6 ] On August 18, 2010 Nguyen was stopped by RCMP near Red Deer for an alleged failure to stop for a stop sign. Nguyen was alone in his vehicle. The officers involved were Constables Paquin and Johanson. They were accompanied by police service dog Hogan. [ 7 ] Paquin described himself as a 15-year RCMP veteran with five years experience in a ‘ roving traffic unit ’ . For the past four years he has handled police service dog “ Hogan ” .

There was no serious challenge to Paquin ’ s qualifications as a police dog handler. There was much evidence regarding his dog handling qualifications, much less, if any, evidence regarding Paquin ’ s qualifications around drug operations. [ 8 ] PSD Hogan is exclusively a sniffer dog trained to find various substances controlled by the Controlled Drugs and Substances Act , S.C. 1996, c. 19 ( “ CDSA ” ) . No serious challenge was made to PSD Hogan ’ s track record for indicating the presence of CDSA barred substances. [ 9 ] The stop in question occurred in the early afternoon of August 18, 2010.

Most of it was caught on a police DVD audio/visual recording system. As will be noted in what follows, parts of the police encounter with Nguyen were purposely not recorded. [ 10 ] Once summoned to stop, Nguyen pulled to the side of the road without hesitation. [ 11 ] Johanson took the lead in the stop-sign investigation. He approached Nguyen ’ s vehicle from the passenger side rather than, as might be expected, from the driver ’ s side. Paquin testified this was a police tactic to catch a suspect “ off guard ” .

He did not testify about what he or Johanson were attempting to catch Nguyen off guard for. [ 12 ] Johanson had an initial discussion with Nguyen regarding the stop sign violation. The usual documents were requested and handed over. Nguyen was at first unable to find the vehicle registration. He eventually found and produced it. Johanson engaged Nguyen in a “ casual conversation ” about where he had been, where he was going. [ 13 ] Moments later Paquin approached Nguyen from the driver ’ s side of the vehicle. Nguyen began to engage Paquin in conversation. Paquin told him to deal only with Johanson.

As will be detailed further, Paquin made certain observations about the interior of the vehicle. [ 14 ] Nguyen told Johanson he was operating a friend ’ s vehicle as his was in the shop. Nguyen did not disclose, nor was he asked, if he had any other vehicles registered in his name.

[ 15 ] Nguyen told Johanson he was travelling between Edmonton and Calgary after visiting friends for a few days. No luggage was visible in the vehicle compartment. Neither officer asked Nguyen at the scene about the absence of visible luggage. [ 16 ] Following their initial encounter with Nguyen the officers returned to their police vehicle. A series of computer searches followed.

Those searches revealed: • that the identity of the owner of the vehicle matched records provided by Nguyen; nothing adverse turned up regarding the vehicle ’ s owner in his own right; • that Nguyen had not one but two vehicles registered in his name. Paquin testified he found it odd Nguyen was driving a third party vehicle when two vehicles were registered in his name; Johanson testified the officers concluded the other vehicle was “probably up and operational” yet there was no evidence of the status of that other vehicle.

As noted, neither officer asked Nguyen about the second registered vehicle; • that Nguyen had no known criminal record; however, in some three months’ time he was to appear on an outstanding charge for being in possession of a CDSA controlled substance for the purposes of trafficking. [ 17 ] Following the initial encounter with Nguyen Paquin alone approached Nguyen. He had a further conversation with him. Johanson “ could not recall ” why Paquin decided to return to Nguyen to further question him at this point in time.

Johanson testified however that Paquin was obviously aware at this time of Nguyen ’ s outstanding charge. Johanson acknowledged the officers were very much in the midst of forming their grounds for reasonable suspicion to detain Nguyen for a further criminal investigation. [ 18 ] Following Paquin ’ s further conversation with Nguyen, the officers again convened in the police vehicle. It was at this point the audio in the recording system went silent. It stayed muted for a period of some 3-4 minutes.

Each officer testified that during this time they compared notes as to whether they had reasonable suspicion to detain Nguyen for further investigative purposes. [ 19 ] Until this point in time, all the officers ’ dealings with Nguyen were recorded, either on video or audio or both. [ 20 ] Paquin controlled the audio. He acknowledged muting the audio out of a concern police tactics might otherwise be disclosed in any subsequent proceedings.

He stated he did not feel the need to record the “ techniques of our investigation ” for public consumption . [ 21 ] Johanson denied he was aware the 3-4 minute conversation with Paquin had been muted. [ 22 ] Questioned at voir dire as to the off-the-record conversation, Paquin testified he and Johanson considered the following grounds for reasonable suspicion: • the presence of a “masking odor” very strongly coming from the vehicle in the nature of an air freshener; Paquin described the odor as “overwhelming”; yet he also testified an equally strong smell of “smoke” was also evident; the “masking odor” was consistent in the officers’ minds with an individual wishing to disguise an illicit odor; • no evidence existed of any illicit odor, or of any actual burning of tobacco, for example ashes, cigarette butts, and the like; while he initially identified the odor of “smoke”, Paquin also testified the odor could be of either burned or fresh tobacco; he testified he was unable to distinguish between the two; • for his part, Johanson noted a “stronger than normal” air freshener scent; he did not testify what he considered “normal” to be; he

recalled no smell of tobacco whatsoever, even though at points in his dealings with Nguyen his head was almost inside the vehicle; • both officers noted a fast-food drink container in the cup holder in the center console of Nguyen’s vehicle; based on what they called their training and experience, this was an indication of an individual who was in a hurry, for example, to pick and deliver contraband; it was an indication the individual preferred not to leave his vehicle alone at a restaurant owing to a risk the contraband might be stolen; neither officer asked Nguyen anything about the fast-food drink container; • Paquin noted a bottle of what he initially called an “energy drink” in the rear seat of the vehicle, behind the driver; again, based on what he called his training and experience, this indicated an individual who might use such an energy drink to battle fatigue while on a long, wearying trip, for example transporting contraband; neither officer asked Nguyen about the bottles in the back seat of the vehicle; • Paquin acknowledged, later in his evidence, that neither bottle was in fact labeled an “energy drink” as he had initially testified; one was labeled a type of bottled water, the other was labeled a type of iced tea; at the voir dire Paquin speculated that the bottle labeled ice tea might have actually contained an “energy drink” substance; • both officers noted that Nguyen’s hands were shaking when he handed documents over to Johanson, who again was standing at the passenger’s side of the vehicle; Paquin testified that in his experience, Nguyen was more nervous than “normal”; he gave no evidence as to what he considered “normal”; both officers acknowledged Nguyen was at least initially very concerned he might lose his driver’s licence on account of the stop sign violation points; neither officer identified any other indicia of nervousness; • both officers considered it significant that in the initial “casual conversations” each officer had with Nguyen, to Johanson he stated he was visiting “friends” while to Paquin he stated he was visiting “family”.

Neither officer made any attempt to reconcile what they believed were suspiciously divergent stories; Johanson testified the reference to “friends” - as distinct from “family” - only became relevant some time after the information was conveyed to him, and that he made no note of exactly what he was told until later; he testified that it was “possible but not normal” that a person would say he was visiting ‘just friends’ when in fact he was visiting both ‘friends and family’; • both officers were suspicious Nguyen was operating a third party vehicle even though with consent; this was, they testified, an indication of an individual attempting to avoid detection if inquiries were made of his motor vehicle profile; related to this was the officers’ conclusion Nguyen had a second vehicle he could well have been driving other than the third party vehicle; as noted, according to Johanson they concluded the second vehicle was “up and operational” although no one asked Nguyen to confirm, or deny, that fact; • that while Nguyen had no known criminal record, he was facing an outstanding charge for possession of a CDSA controlled substance for purposes of trafficking; no further details regarding that outstanding charge were in evidence. [ 23 ] On the basis of these grounds, the officers each testified they formed reasonable suspicion there was suspected criminal activity afoot. [ 24 ] Paquin testified in cross examination he was “ getting to the point of reasonable suspicion ” that based just on the air freshener and smoke smell, Nguyen ’ s nervousness, and the drink containers in the car. [ 25 ] He also agreed in cross examination that he considered, in forming grounds for reasonable suspicion, that no luggage was seen in Nguyen ’ s vehicle compartment, and that Nguyen was travelling between Edmonton and Calgary.

He agreed that nothing was noted in his notebook regarding a tobacco smell in the vehicle. [ 26 ] Neither officer was prepared to commit as to just what criminal activity he believed had or was occurring at the time of the investigative detention. Each officer was also careful to note he considered the various elements noted above to be part of the “ totality ” of circumstances. Paquin in particular agreed however that the fact of the outstanding charge was the “ tipping point ” or the “ straw that broke the camel ’ s back ” in terms of the finding of reasonable suspicion.

[ 27 ] Both officers testified repeatedly they relied on their training and experience when assessing grounds for reasonable suspicion. Paquin ’ s CV was exhibited in evidence. Nothing was brought out beyond his qualifications as a dog handler.

No evidence was before me regarding Johanson ’ s training or experience in drug investigations. [ 28 ] Having concluded they had reasonable suspicion, the officers divided the subsequent investigation as follows: Johanson continued to deal primarily with Nguyen; Paquin deployed PSD Hogan to conduct a free air sniff of Nguyen ’ s vehicle. [ 29 ] Johanson thus went about formally detaining Nguyen for investigative purposes. Johanson escorted Nguyen from his vehicle and walked him toward the ditch. Nguyen was not personally searched. He was not informed any more specifically what he was being detained for.

He was told he was being detained for a “ criminal investigation ” . He was told that “ something ’ s not right. ” [ 30 ] In cross examination Paquin testified that at this point in time “ I don ’ t know what I ’ m investigating ... I believed there was some kind of criminal activity going on in that vehicle ” . He further testified that if the sniff search was inconclusive for drugs, he would have continued to investigate for other criminal activity.

He testified: “ How did I know there wasn ’ t a dead body, or firearms, in the trunk? ” [ 31 ] In the initial detention, Johanson testified he had a conversation with Nguyen about the right to counsel and right to silence. Johanson made no notes of what he said. He could not testify reliably as to exactly what information he provided. He did not read verbatim from his right to counsel/right to counsel card. The conversation was only partially picked up on the audio recording system. [ 32 ] Apparently in response to whatever information was provided, Johanson testified Nguyen stated he “ had a good lawyer ” .

It was unclear at the voir dire however if Johanson believed this statement meant Nguyen was expressing a wish to call that lawyer.

In any event, Johanson took no steps to confirm whether Nguyen, having been detained, was waiving his right to counsel. [ 33 ] Nguyen can be heard on the recording asking words to the effect ‘ why are you detaining me? ’ No answer is apparently given. [ 34 ] In the face of this uncertainty regarding Nguyen ’ s detention and wish to speak with counsel, Johanson proceeded to question Nguyen at the roadside regarding, amongst other things, what was happening with the outstanding charges before the court. [ 35 ] While Johanson dealt with Nguyen, Paquin went about deploying PSD Hogan. [ 36 ] Paquin testified that during the air sniff of Nguyen ’ s vehicle Hogan indicated on four occasions the presence of a prohibited substance. [ 37 ] Based on those findings, Paquin signaled to Johanson that he should arrest Nguyen for being in possession of a CDSA controlled substance. [ 38 ] During the formal arrest Johanson again only informally provided Nguyen information about his right to counsel and right to silence.

Again, the audio recording system does not pick up the information provided. Johanson kept no notes. He testified he told Nguyen “ what he needed to know... ” . [ 39 ] After being so advised, Johanson acknowledged that Nguyen immediately asked if he could call a lawyer “ right now ” . In response, Johanson stated that “ … you know what, we ’ ll get back to that ” and indicated he needed to “ finish some things ” . [ 40 ] Johanson proceeded to perform a pat-down search of Nguyen “ for weapons ” . The pat-down included a search of the contents of Nguyen ’ s pockets.

[ 41 ] At this point Nguyen offered to surrender his cell phone. Johanson declined to take it from him. Johanson also declined to hand-cuff Nguyen because, to that point – as throughout the detention and arrest – he had been cooperative and compliant. [ 42 ] Nguyen was placed in the back seat of the police vehicle. [ 43 ] Both officers then proceeded to search Nguyen ’ s vehicle incidental to the arrest for possession.

There is no evidence any consideration was given to impounding the vehicle to enable the search to take place elsewhere. [ 44 ] Within minutes the search turned up the cocaine noted earlier in these reasons. The cocaine was wrapped in a series of bags tucked well under the front passenger seat of the vehicle. [ 45 ] Given this finding, Johanson returned to Nguyen and re-arrested him for being in possession of cocaine for the purposes of trafficking. [ 46 ] At this point, Johanson formally read to Nguyen verbatim Charter s. 10(

b) right to counsel and right to silence warnings. He informed Nguyen amongst other things that he could contact a lawyer “ immediately ” and “ without delay. ” [ 47 ] As he had when arrested earlier for possession, Nguyen immediately responded that he wished to speak with his lawyer. [ 48 ] Johanson responded immediately that Nguyen could not call a lawyer from the police vehicle because he could be afforded no privacy. “ That ’ s the only problem with having you call a lawyer right now … ” . [ 49 ] In cross examination, Johanson agreed it may have been feasible to provide Nguyen with privacy at the scene.

He testified however that “ officer safety ” precluded any access to counsel at the scene. He expressed concern Nguyen might use the call to beckon persons to the scene. [ 50 ] At the voir dire Johanson appeared to have difficulty recalling what immediately happened next in his dealings with Nguyen.

He testified he was unable to recall if he asked Nguyen more questions after he asked to speak with a lawyer. [ 51 ] The audio recording system however reveals that immediately after he informed Nguyen that he could not yet exercise his right to counsel, Johanson commenced to ask Nguyen a series of questions regarding his alleged further involvement in criminal drug- related activities. Not fewer than 18 discrete questions were put to Nguyen. Many of them elicited potentially incriminating answers.

The questions and answers dealt with the source of the cocaine, Nguyen ’ s history for transporting drugs, for whom, how that person might be contacted, whether Nguyen used drugs himself. [ 52 ] Before commencing this questioning, Johanson retrieved Paquin ’ s recording device and deliberately recorded his conversation with Nguyen. Johanson discontinued the questioning at the point Nguyen started to ask whether “ some kind of deal ” might be worked out in exchange for the information he was providing.

At that point Johanson advised Nguyen really should first talk to a lawyer. [ 53 ] Shown the recording, Johanson acknowledged the questioning took place. He was asked by Nguyen ’ s counsel why he conducted the “ interrogation ” in the face of Nguyen ’ s unequivocal request to speak to a lawyer. Johanson testified that it was ‘ in my nature as a police officer ’ to carry on the questioning. He testified that “ curiosity got the better of me ” . [ 54 ] At some point in his re-arrest Johanson seized Nguyen ’ s cell phone. At some point before doing so however Johanson

allowed Nguyen to send a text message to a third party, apparently to inform that person he would be late. [ 55 ] Many questions were asked and much evidence given at the voir dire whether Nguyen could have been afforded an earlier opportunity to exercise his right to counsel. Many options were suggested: he could have called from the police vehicle, with the audio system turned off; he could call from the confines of his own vehicle; he could have called from the nearby ditch, out of earshot of the officers. [ 56 ] As noted, officer safety became Johanson ’ s justification for allowing no call from the scene.

Johanson was unable to explain however why he had allowed Nguyen to keep his cell phone before his re-arrest, or why he was allowed to send a text message to a third party. [ 57 ] Many of these questions regarding the timely exercise of the right to counsel were also put to Paquin during the voir dire . As noted, Paquin had few dealings with Nguyen after the initial investigative detention. Like Johanson, however, Paquin raised concerns for Nguyen ’ s privacy if allowed to make a call from the scene. Paquin also raised “ officer safety ” concerns.

He expressed concern for example that if given an opportunity to use his own cell phone, Nguyen could be calling anyone - he could be calling accomplices who might attend the scene “ with AK 47s ” . [ 58 ] Paquin testified he was unaware Johanson had allowed Nguyen to retain his cell phone and had allowed Nguyen to send a text-message to a third party. [ 59 ] In response to the suggestion officer safety concerns could be resolved by an officer placing the call to Nguyen ’ s lawyer, Paquin brusquely stated “ That ’ s not going to happen ” . [ 60 ] Paquin agreed that if Nguyen had asserted his right to counsel, then immediately he should be given that opportunity, so long as his exercise of that right did not unduly interfere with his investigation.

In that regard, Paquin testified Nguyen ’ s right to counsel could not be implemented immediately because “ … we were still doing some stuff … ” . [ 61 ] Paquin further testified it was his “ standard practice ” to suspend the right to counsel until an accused reaches the police detachment. The detachment was 12 to 15 kilometers from the scene. [ 62 ] While as to timing there is some confusion in the evidence, it appears that from the initial traffic stop to the arrival at the RCMP detachment just over a full hour passed.

It appears more than 45 minutes went by between Nguyen ’ s formal arrest for possession for the purposes of trafficking, and his arrival at the detachment. During that time, Nguyen was confined in the police vehicle. For part of that time of course he was questioned by Johanson.

Otherwise, he was kept waiting while the following events occurred: • after the cocaine was found, Paquin went about “rewarding” PSD Hogan with a further run around the Nguyen vehicle: he told Johanson “I’m going to run Hoagie again, just to reward him”; • Constable Frost attended the scene not long after the cocaine was found; Frost was also equipped with a sniffer dog.

Paquin and Frost went about using Nguyen’s vehicle to conduct a “practice” run with Frost’s own sniffer dog; • Nguyen’s vehicle was further searched and extensively photographed by Paquin; [ 63 ] For much of this same time Johanson sat in the front of the police vehicle completing his notes. He gave little if any thought about transporting Nguyen sooner to the detachment. “I was in all honesty more concerned with writing my notes at that time.”

[ 64 ] Johanson acknowledged that once Frost arrived, one of the officers could have left the scene to transport Nguyen to the Red Deer detachment where he could exercise his right to counsel. That option was not in his mind at the time. He believed the time between Frost ’ s arrival and the departure from the scene for the detachment was fairly short. He did not recall that it was as long as 25 minutes. [ 65 ] Soon before they departed the scene, Paquin approached Johanson to discuss the possibility that more contraband was hidden in Nguyen ’ s vehicle.

In turn, Johanson questioned Nguyen whether more drugs were hidden in the vehicle. He stated: “ I ’ d rather you tell us because we really don ’ t want to rip the car apart but we will if we have to. ” Nguyen is heard to respond that he is aware of no other drugs in the vehicle. Issues [ 66 ] The issues are as follows: Did police have grounds for reasonable suspicion to detain Nguyen for investigative purposes, and to conduct a sniffer search of his vehicle? If not, should the cocaine found in Nguyen ’ s vehicle be excluded from evidence on account of (

i) the illegal detention and search; (ii) the admitted right to counsel breach. Reasonable Expectation of Privacy [ 67 ] The Crown raised a preliminary issue whether Nguyen had standing to invoke the Charter ’ s right against unreasonable search and seizure. The Crown suggests he had no reasonable expectation of privacy. Nguyen was driving a private third party vehicle. No one disagrees he was driving with the owner ’ s consent. There is no evidence that owner is suspicious. The evidence suggests Nguyen ’ s own vehicle was out of commission.

There is evidence, without more, that Nguyen had a second vehicle registered to his name. [ 68 ] I was invited by the Crown to decide at the outset Nguyen had no standing to allege s. 8 Charter breaches owing to his lack of a reasonable expectation of privacy in the borrowed vehicle. [ 69 ] I declined to deal with the standing issue on a preliminary basis. It was meant to be revisited at the end of the day. However, the Crown failed to return to the standing issue in argument on the voir dire . Perhaps the issue was abandoned.

In any event I do not hesitate to find Nguyen had a reasonable expectation of privacy in the vehicle he was operating. [ 70 ] Whether an reasonable expectation of privacy exists depends on whether the individual concerned has (

a) a subjective expectation of privacy in the subject matter of the alleged search, and (

b) whether that subjective expectation is objectively reasonable. The test for subjective expectation of privacy is a low hurdle, the objective expectation less so. [ 71 ] That expectation may be reduced in a motor vehicle. Nevertheless, as McLachlin C.J. noted in R. v. Harrison 2009 SCC 34 : ... 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 thedetention and search “must be weighed against the absence of any reasonable basis for justification”. A person in the appellant’s positionhas every expectation of being left alone -- subject, as already noted, to valid highway traffic stops. (at para. 31) [72] No one argues the highway traffic stop was invalid.

In relation to the subsequent sniffer dog search, however, I am satisfiedNguyen has met his obligation to show he has standing to seek a remedy based on an alleged breach of his s. 8 rights under the Charter. Reasonable Suspicion [73] In R. v. Kang-Brown, 2008 SCC 18 a majority of the court found the police have power to investigate crime using snifferdogs. A ‘sniff’ by a dog constitutes a s. 8 search.

The proper balance between an individual’s s. 8 Charter rights and the reasonabledemands of law enforcement permits sniff searches on a ‘reasonable suspicion standard’. [74] For a sniff-search, the must court ask: (

a) Did the peace officer subjectively believe that there were reasonable grounds to suspect the accused was in possession of a controlledsubstance? (

b) Were there sufficient objective grounds to reasonably suspect the accused was in possession of a controlled substance? [75] Binnie J. In Kang-Brown 2008 SCR 18 commented at length on the requirement of reasonable suspicion. In

summary: • a “suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity • to be a “reasonable suspicion” it must be supported by factual elements which can be adduced in evidence and permit anindependent judicial assessment. What distinguishes “reasonable suspicion” from the higher standard of “reasonable and probable grounds” is merely the degree ofprobability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in bothcases, must exist to support the search. [pp. 125-26] • As stated in by the B.C.

Court of Appeal in R. v.

Lal (1998) (BC CA), 113 B.C.A.C. 47, at para. 23: The fundamental point is that the trial judge must be in a position to make an independent assessment of the facts upon which thesuspicion is based. [76] Binnie J. emphasized in Kang-Brown that because such searches are conducted without prior judicial authorization, theafter-the-fact judicial scrutiny of the grounds for the alleged reasonable suspicion must be rigorous; citing earlier, unequivocalauthorities, he speaks of the need for “objectively verifiable evidence supporting reasonable suspicion”; he notes ... where the citizen’s only protection against unlawful searches by police dogs is after-the-fact scrutiny of the stated grounds of“reasonable suspicion”, it is important that the after-the-fact judicial scrutiny be conducted with serious diligence and rigour.

Officer Training and Experience

[ 77 ] R. v. MacKenzie 2011 SKCA 64 is just one of many cases emphasizing the importance of evidence regarding officer training and experience when assessing particularly the objective validity of grounds for reasonable suspicion. As stated by Caldwell J.A.: [27] A number of cases in Canada, including R. v.

Nolet and Yeh from this Court, and in the United States indicate it is important that a trial judge take into consideration the experience and training of peace officers when determining the objective existence of a standard of probability like reasonable suspicion or reasonable and probable grounds... [the] cases support what Richards J.A., in Yeh at para. 53, called the “established notion” that a trial judge is to consider and give some weight to the training and experience of the peace officer in determining whether the officer’s subjectively held reasonable suspicion is objectively verifiable. (para. 27, citations omitted) [ 78 ] Before turning to a consideration of the grounds or indicia relied on both subjectively and objectively, I will comment on the evidence regarding the investigating officers ’ training and experience.

As noted, the evidence was sparse. Each officer testified as to his length of service at various postings, much of which involved general policing and highway patrol in particular. Paquin was closely examined and cross examined regarding his narcotic police dog experience . He gave little if any evidence regarding his training and experience investigating drug-related crimes. He gave no evidence specific to his training, experience or indeed track record assessing grounds for reasonable suspicion.

Johanson was asked few if any questions along the same specific lines. [ 79 ] It is often said in cases dealing with reasonable suspicion that what may appear to be innocent to the general public may have a very different meaning to an officer experienced in drug operations. It is right however to question whether the officer or officers in question are in fact “ experienced in drug operations ” . If not, their evidence based on vague and unsubstantiated references to “ training and experience ” is of little assistance to the court. [ 80 ] Paquin ’ s CV was in evidence. Johanson ’ s CV was not.

Neither officer gave evidence whether anything on their CVs or policing history related particularly to their professed “ training and experience ” to detect and interpret indicia of suspected drug-related activity. [ 81 ] In contrast to the sparse evidence before me, in many cases considerable evidence is adduced regarding courses described as “ Operation Jetway ” training (e.g., Kang-Brown , Navales 2011 ABQB 404 ) or “Pipeline Convoy” training (e.g., R. v.

Loewen 2010 ABCA 255 ) - both programs designed to curtail drug trafficking in which authorities contend that certain types of behaviour, demeanour, dress and other visible personal characteristics of travellers may be indicative of criminal activity. In some cases (e.g., R. v. Calderon 2004 ONCA 7569) there is evidence of the officer’s track record, comparing the number of times the officer formed grounds for reasonable suspicion, with the number of arrests result from the ensuing search. [ 82 ] I am aware that Paquin ’ s CV refers to his attendance on pipeline convoy training. His CV was exhibited at trial.

He was not taken through it. How his apparent course attendances may have contributed to his training and experience was not raised in the evidence before me. [ 83 ] No evidence was before me of Johanson ’ s training. No detailed evidence was before me regarding either officer ’ s actual experience in drug operations. It is critical evidence to have. It is not something upon which I am prepared to speculate. It significantly affects my ability to assess objectively the validity of the officers ’ subjective observations.

Grounds for reasonable suspicion [ 84 ] Turning then to the grounds in this case, I have to begin by asking whether either one or both of Paquin and Johanson concluded subjectively they had grounds to form reasonable suspicion. Relevant to this inquiry is the unusual evidence regarding just what the officers were reasonably suspicious about. [ 85 ] The officers say that before detaining Nguyen and deploying Hogan they had formed a reasonable suspicion of criminal

activity but not of a particular criminal offence or even class of offences. Paquin in particular testified, relentlessly, that he only formed ageneralized reasonable suspicion. He insisted it was all the law required him to do. As noted, he testified that if drugs were not foundafter Hogan’s sniff, he would have persisted to investigate further alleged criminal activity. He stated baldly he did not know what hewas investigating.

As he put it to Nguyen, he only knew that ‘something was not right’. [86] At the close of the voir dire and argument I asked counsel for further submissions/ authorities on the question of whether thereasonable suspicion could be merely of criminal activity, or needed to be of a particular crime or at least class of crimes. Unfortunatelyno further submissions/authorities were provided to me by counsel. [87] That said, the following authorities have come to my attention. [88] R. v. Mann 2004 SCC 52 is the prevailing authority on investigative detention on a reasonable suspicion standard.

Mannspeaks of detention for a “particular crime”. [89] In Mann, Iacobucci J. for the majority refers to Doherty J.A.’s often-cited decision in R. v. Simpson (1993) (ON CA), 12 O.R. (3d) 182 (Ont.

C.A.) at 202, addressing the notion of articulable cause (synonymous with reasonable suspicion)as a: “...constellation of objectively discernable facts which give the detaining officer reasonable cause to suspect that the detainee iscriminally implicated in the activity under investigation.” (emphasis added) [90] Further in Mann, Iacobucci notes at para. 34 that: “The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’ssuspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

Reasonable groundsfigures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated inthe criminal activity under investigation.” (emphasis added) [91] I do not interpret Mann as permitting a detention – or for that matter a warrantless search – on the basis of reasonablesuspicion of just some criminal activity. This

interpretation is consistent with the comment in R. v. Savage 2011 SKCA 65, anothersniffer dog search case, in which Smith J.A. stated reasonable suspicion must be of a particular criminal activity, and “ a generalizedsuspicion of something wrong cannot justify a search using a sniffer dog... (para. 29). It is consistent as well with the often-cited case ofR. v. Yeh 2009 SKCA 112, at paras. 84, 91: ... The reference in this passage to a “particular crime,” read in context, reflects the idea that the police may not detain an individual outof a general sense he or she might be doing something unlawful.

As discussed above, police suspicions must relate to specific criminalwrongdoing. .... ...

As noted, a generalized feeling on the part of the police that an individual is doing something wrong can not serve as the basis for alawful detention. [92] Assuming the correctness of this approach, I am unable to conclude Paquin and/or Johanson, on their own evidence, hadsubjective reasonable suspicion of a particular crime or class of crimes (e.g., a drug-related offence). [93] If I am wrong, in my view any reasonable suspicion formed on a subjective basis fails to stand up to objective scrutiny. [94] In the recent case of R. v.

Navales 2011 ABQB 404 the court dealt with the concept of reasonable suspicion and whether the

grounds underlying its formation could be assessed piecemeal or only collectively. [ 95 ] No one doubts that trial judges need to look at the totality of the circumstances and review all the relevant factors collectively when assessing whether reasonable suspicion is supported by both subjective and objective grounds. [ 96 ] It is proper to approach reasonable suspicion based on all, or a “ totality ” , of the circumstances. Yet I am unable to agree this approach preludes some initial assessment of each of the indicia individually.

A review of the cases suggests that is very often what courts do, if only as part of the process of giving reasons, before ultimately concluding whether overall reasonable suspicion is made out. [ 97 ] I turn now to what Paquin and Johanson had before them in Nguyen ’ s case: Air freshener smell • In many cases the presence of a “masking agent” (e.g., perfume or cologne, “Bounce” sheets, an air freshener) is held up as a ground contributing to reasonable suspicion. Here an air freshener smell was noted to be “stronger than “normal” by Johanson, though no “normal” was identified.

It was called “overpowering” by Paquin, although not stronger than the smell of tobacco. Paquin could not say however if the latter was of burned or fresh tobacco. In any event it was not the smell of any illicit substance. Johanson, who had his head nearly inside the vehicle at a point or points in his initial dealings with Nguyen, detected no tobacco smells whatsoever. Each officer testified that in his “training and experience” drug couriers may mask odours in the interior of vehicles to escape detection.

At the risk of undue repetition, I have little concrete evidence of either officer’s training in that regard, and no evidence of their experience. The officers’ evidence conflicts fundamentally and irreconcilably on whether a tobacco smell emanated from the vehicle compartment. They cannot both be right in their evidence and therefore I can only conclude, charitably, that one is mistaken. Fast-food drink container • In many cases the presence of fast-food litter in a vehicle is held up as a ground contributing to reasonable suspicion.

Here there is a lone KFC cup in the center console of the vehicle, and two bottles in the back seat; neither officer asked anything about them. Again there is no evidence to back up the officers’ testimony that in their training and experience the cup and bottles for them are at all an indication of criminal activity. Energy drink • It is impossible to ignore that Paquin testified without hesitation, initially, he noted an energy drink was in the rear seat of Nguyen’s vehicle - the presence of such a drink he testified supported his reasonable suspicion of criminal activity.

Paquin had to admit however that neither of the bottles in the rear seat was obviously an “energy drink” - one was water, the other ice tea – his evidence was reduced at trial speculating that perhaps the amber-colored contents of the ice-tea bottle was in fact an energy drink. Again, there was no evidence based on concrete training or experience that the presence of an energy drink contributed to reasonable suspicion.

Nguyen ’ s nervousness • In many cases a driver’s nervousness is held up as a ground contributing to reasonable suspicion. Both officers testified that in their experience, again unquantified and thus difficult to weigh objectively, that Nguyen was more nervous than “normal”; his shaking hands on the initial traffic stops was the only concrete indicia of that nervousness. Both officers acknowledged Nguyen was at least initially very concerned he might lose his driver’s licence on account of the stop sign violation points.

Friends vs. family • Both officers seized on Nguyen’s apparent contradiction when he said he was visiting family, or friends. No one asked for clarification. Johanson went so far as to testify it was “possible but not normal” that a person would say he was visiting ‘just friends’ when in fact he was visiting both ‘friends and family’. Third party vehicle • The presence of a non-owned vehicle (e.g., borrowed or rented) is sometimes held up as a ground contributing to reasonable suspicion.

Both officers were suspicious Nguyen was operating a third party vehicle particularly in view of the assumed fact Nguyen’s second vehicle registered to him was “up and operational”. As noted, no evidence existed to support this latter assertion. Nguyen was asked no questions regarding the status of his second vehicle. Outstanding charge • While Nguyen had no known criminal record, he was facing an outstanding charge for possession of a CDSA controlled substance for purposes of trafficking; no further details regarding that outstanding charge were offered in evidence.

As will be more fully dealt with in what follows, it is difficult to find authority for the proposition that an outstanding charge is a proper ground contributing to reasonable suspicion. Analysis [ 98 ] I am attracted to the test for considering factors individual and on the whole, as stated in R. v. Savage 2011 SKCA 65 : The test is not whether there might be an innocent explanation. It is whether the presence of such a fact enhances or makes more likely the possibility of the crime at issue. [ 99 ] R. v.

Savage is a case in which the presence of an air freshener was accepted as a fact which enhanced or made more likely the possibility of a crime at issue. I do not discount it is a factor in Nguyen ’ s case. But as noted above I have real concerns for the consistency and thus credibility of the evidence that it was serving as a “ masking agent ” . I am unable to accept at face value Paquin ’ s evidence the air freshener was overpowering when in the same breath he testified about an equally strong smell of tobacco.

Yet there was no other evidence of tobacco presence or use, and Johanson, with as good if not a better opportunity to make the observation, smelled no tobacco whatsoever. [ 100 ] I am satisfied the existence of the KFC is not a fact which enhances or makes more likely the possibility of any crime, or the crime at issue. This is not a case in which the car is littered with fast food containers and wrappers suggestive of a lengthy, uninterrupted trip transporting contraband.

[ 101 ] Equally, I am not satisfied the ice tea bottle and water bottle in the rear seat are evidence which enhance or make more likely the possibility of any crime or the crime at issue. I am skeptical of Paquin ’ s evidence when he first testified his suspicions were raised by the presence of an energy drink bottle in the vehicle, then abandons that evidence in favour of speculation the ice tea bottle may have contained energy drink. Paquin ’ s evidence on these points is nothing more than speculation and is thus no evidence. [ 102 ] How nervous was the accused?

It proves little that each officer testified they had experience with less nervous individuals. Few if any details of that experience, and more particularly that drug-related “experience”, were provided. The only concrete sign of nervousness was shaky hands at the initial detention. [ 103 ] In R. v. Kang-Brown , 2008 SCC 18 Binnie J. was skeptical of evidence the accused seemed nervous or “antsy”. Evidence in that case was an insufficient marker of unusual conduct to afford grounds of reasonable suspicion, taken alone and taken in concert with all the circumstances. [ 104 ] In R. v.

Turpin 2010 SKQB 444 police relied on the accused ’ s nervousness. They said it went “ beyond the typical ” for a highway stop and was “ more typical in cases in which [the officer] had found a motorist hauling drugs ” . Ball J. found the officer ’ s assertion the accused was more nervous that a “ typical ” driver was neither measurable or objectively verifiable. [ 105 ] In Nguyen ’ s case, the evidence further discloses a reasonable alternative for Nguyen ’ s apparent anxiety, being the prospect of losing his license for the stop sign violation. [ 106 ] Was Nguyen visiting friends, or family, or both?

Is it suspicious that he would say friends to one officer, family to the other? I find that proposition difficult to accept at face value. The real question is whether Nguyen is lying, and thus raising suspicion. Without question lying or evasion may contribute to a finding of reasonable suspicion. I am unable to conclude that on the evidence Nguyen was lying about whether he was visiting friends or family or both. [ 107 ] Granted, Nguyen was operating a third-party vehicle.

Again, the officers testified about what their “ training and experience ” tells them in this regard but again details of that was not before me. What ’ s more, neither officer bothered to inform himself regarding the status of the second vehicle. Johanson ’ s assumption it was “ up and operational ” was without foundation. It is another example of speculation, and adds to my concerns for the credibility of the evidence as a whole. [ 108 ] What is left to address is the outstanding charge.

This is a factor which attracted some attention at trial in terms of its very relevance to reasonable suspicion as understood in Mann and other authorities. Again, I asked counsel for any further authorities or submissions on this point. None were provided. [ 109 ] Some authority can be found in R. v. Payette 2010 BCCA 392 , at para. 27 where Neilson J.A. includes “ pending drug charges ” in a list of suspicious factors. There was no evidence of pending charges in Payette itself. Two cases however were cited in support of this proposition: R. v. Dinh 2008 MBQB 332 and R. v.

Madill 2005 BCSC 1564 . [ 110 ] In Dinh there was evidence the registered owner of the vehicle in question, and one of the vehicle ’ s occupants, both faced outstanding charges for drug-related offences. It is telling, however, that no evidence existed police relied on the outstanding charges when they went about forming reasonable suspicion. [ 111 ] In Madill the trial judge did rely on information the accused had been investigated twice for CDSA -related offences some 2-3 years before the date of the offence before the court.

There is no evidence in that case whether those investigations ever resulted in charges. [ 112 ] With respect, I have difficulty agreeing that an investigation short of a charge for a drug-related offence could ever contribute to grounds for reasonable suspicion. That being said, and despite a level of discomfort around the Charter-protected presumption of innocence, I am not prepared to conclude an outstanding charge is irrelevant. It is some information. As compared to, say, the presence

of a recent and related criminal record, an outstanding charge however would be a weak factor. Without more it minimally enhances ormakes more likely the possibility of the crime at issue. Undoubtedly an outstanding charge could lead investigators to other, strongerfacts, for example if the circumstances giving rise to the charge were like those being investigated in the instant case.

No such evidencewas before me. [113] It is worth noting finally that on their own evidence, neither Paquin nor Johanson could have weighed the significance ofNguyen’s outstanding charge as a related offence because each denied he had reached a reasonable suspicion of any particular crime orclass of crimes. [114] In conclusion, I am guided by the observation of Binnie J.

In Kang-Brown : To repeat, where the citizen’s only protection against unlawful searches by police dogs is after-the-fact scrutiny of the stated grounds of“reasonable suspicion”, it is important that the after-the-fact judicial scrutiny be conducted with serious diligence and rigour. [115] Having adopted such an approach, on the whole of the evidence I have considerable doubts on the officers’ own evidence thatsufficient subjective grounds existed to form reasonable suspicion of a certain crime or class of crimes.

In any event, I am not persuadedthat the collective picture of the factors taken together even comes close to providing grounds for any objective reasonable suspicion ofcriminal activity. [116] In that I have found the officers lacked grounds for reasonable suspicion, it follows that Nguyen was unlawfully detained forcriminal investigative purposes, violating his s. 9 Charter rights. Further, the deployment of PSD Hogan was a groundless and thusillegal search and on its face violated s. 8 of the Charter. Right to Be Informed/right to Counsel [117]

Section 10(

a) of the Charter provides that everyone has the right on detention to be informed promptly of the reasonstherefor.

Section 10(

b) provides that everyone has the right on arrest or detention to be informed of their right to retain and instructcounsel without delay. [118] There is and can be no serious denial that Nguyen’s right to counsel was breached on the facts before me. [119] Nguyen, met with his initial detention, arguably asserted his right to counsel. Johanson’s evidence was equivocal on thepoint, but Nguyen did not testify and the burden is on him to establish a Charter breach.

It can be concluded Nguyen’s right to beinformed of the reason for his initial detention was breached, again on the officers’ own evidence they only suspected generalizedcriminal activity. [120] Nguyen, met with his arrest for possession, asserted he wish to speak with a lawyer. He was told he would have to wait. [121] Nguyen, met with his re-arrest for possession for the purposes of trafficking, asserted again he wished to speak with a lawyer. He was again told he would have to wait. He was then aggressively questioned. This conduct violated constitutional norms establishedas long ago as 1987 in R. v.

Manninen, (SCC), [1987] 1 SCR 1233 reaffirmed in R. v. Bartle (SCC),[1994] 3 SCR 173 and R. v. Prosper (SCC), [1994] 3 SCR 236. [122] The nature of the subsequent questioning violated Nguyen’s constitutional rights flagrantly. The spectre police would tear hiscar apart if he failed to answer a further question, aggravated an already intolerable state of affairs.

[123] I find that Johanson’s evidence disingenuous when he testified as to an apparent inability to remember if he asked Nguyen anyquestions after he invoked his right to counsel. It is impossible to accept he would forget the intentional and deliberate questioningwhich he took pains to record. [124] Nguyen’s right to counsel was further breached as he was impermissibly held at the scene for more than 45 minutes for novalid reason. Paquin testified his investigation came first. Johanson was more concerned about writing his notes.

As noted in R. v.Suberu 2009 SCC 33 , 2009 2 SCR 460 (per McLachlin C.J.): Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, thepolice have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediatelyupon detention. [125] I do not accept that officer or public safety was on either officer’s mind.

It could not have been on Johanson’s, given theevidence he allowed Nguyen to keep his cell phone while initially confined alone in the police vehicle, and given the evidence heallowed Nguyen to send a text message. [126] There was much questioning about Nguyen’s right to call a lawyer from the scene. Whether or not that was a practical solutionin the circumstances misses the point. If not sooner, from at least the stage three officers were on the scene, one of them could easilyhave transported Nguyen to the secure, private telephone room at the nearby RCMP detachment. No one gave this a moment’sconsideration.

Section 24(2) Charter [127] Section 24(2) of the Charter provides: 24(2) Where ... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedomsguaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all of the circumstances, theadmission of it in the proceedings would bring the administration of justice into disrepute. [128] In R. v.

Loewen 2010 ABCA 255 Berger J.A., although dissenting in the result, provided what I subscribe to as a helpful s.24(2) analysis, as follows: [82] McLachlin C.J. and Charron J, on behalf of the majority in R. v. Grant described the analysis required by s. 24(2) as anobjective one that asks “whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter,would conclude that the admission of the evidence would bring the administration of justice into disrepute”: para. 68.

The essence of therequisite 24(2) analysis is set out in para. 71 of the majority’s decision: “A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewedin a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court mustassess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousnessof the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) theimpact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count forlittle), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance theassessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidencewould bring the administration of justice into disrepute. ...” [83] The test for seriousness of state conduct requires consideration of the following factors:

⋅ Was the breach “inadvertent or minor” or a result of willful or reckless or deliberate disregard for the Charter? ⋅ Did the police act in good faith? ⋅ Were there “extenuating circumstances”? [84] In an

article entitled “Common Law Police Powers and Exclusion of Evidence: the Renaissance of Good Faith” (2006), 36C.R. (6th) 353 at 356-357, Steve Coughlan has stated: “Good faith has always been a flexible concept within s. 24(2), and courts have applied it in a number of ways.

Some cases have treatedgood faith as the mere absence of bad faith, and have therefore held either that a lack of malice is a factor favouring admission, or haveheld that a failure to act in good faith is not automatically bad faith, and therefore is not necessarily a factor favouring exclusion.Similarly, there has been confusion over whether bad faith requires a conscious decision by police to ignore the limits on their powers, orwhether simple ignorance of the limits of those powers is sufficient.

To a certain extent, it is only relatively recently that courts havebegun carefully distinguishing between these two situations.” [85] In reliance upon R. v. Buhay, 2003 SCC 30 , 2003 SCC 30, [2003] 1 S.C.R. 631, Coughlan goes on to explain that acasual attitude towards legal requirements by a police officer or a failure to think about limits of power “rather than a conscious decisionto ignore those limits, can also both destroy a good faith claim and be a factor favouring exclusion.” [footnotes omitted] [86] Good faith is now considered under the first stage of the revised s. 24(2) framework.

If made out, it will favour the admissionof the evidence as it will “reduce the need for the court to disassociate itself from the police conduct”: R. v. Grant, supra, at para. 75. [129] With these principles in mind, amongst others, I turn to Nguyen’s case. The seriousness of the Charter infringing state conduct [130] I have found an unlawful detention and subsequent unlawful search of Nguyen’s vehicle, followed by egregious right to counselviolations.

Where do these breaches fall on the spectrum ranging from inadvertent or minor violations as distinct from those committedwith wilful or reckless disregard for Charter rights? [131] As to the s. 8 and 9 breaches, I have concluded on the evidence that viewed subjectively the officers wrongly detainedNguyen and searched his vehicle based on suspicion of generalized criminal activity. I have concluded that objectively, the absence ofproper grounds for reasonable suspicion was not a “close call”which fell just short of the mark (see. e.g., R. v.

Payette, 2010 BCCA 392at para. 32) [132] While I cannot say the detention and search were wilful or flagrant, nor were they inadvertent. That said, I have expressedsome concern in these reasons as to the manner in which the officers formed grounds for reasonable suspicion, and for how they testifiedabout forming those grounds. In all the circumstances, I would characterize the seriousness of these breaches toward the higher end ofthe spectrum. [133] My comments regarding the s. 9 and s. 8 breaches aside, there was a significant and blatant disregard for Nguyen’s s. 10(b)right to counsel.

Johanson in particular acted without good faith in his deliberate and repeated violations of Nguyen’s rights. Johansonknew or ought to have known he was breaching Nguyen’s rights. His explanations - that to continue questioning was in his nature as a

police officer, and that “curiousity got the better of me” - ring hollow. The questioning was deliberate and persistent. Johanson made a point of recording it.

He could not have hoped to gain information to use in the prosecution against Nguyen, and must therefore have been motivated to obtain information for other purposes. [ 134 ] I have commented already on the final question, framed by what defence counsel called a “ threat ” to tear the car apart. [ 135 ] As to delay in facilitating the right, I find there were no genuine officer or public safety issues that justified the roughly 45- minute suspension of Nguyen’s right to access counsel. There were no extenuating circumstances.

The evidence supports the conclusion that particularly Johanson could not have cared less about Nguyen’s constitutional rights to counsel. [ 136 ] Each of the s. 10(

b) breaches was significant, and taken together they are egregious. Taken together with the illegal detention and subsequent sniff search, the s. 10(

b) breaches weigh in favour of excluding the evidence. Taken together the Charter breaches represent misconduct from which the court should be concerned to dissociate itself. The departure from Charter standards was major in degree, and the officers knew or should have known their conduct was not Charter -compliant: Harrison , at para. 22 . [ 137 ] The seriousness of the Charter infringing state conduct weighs in favour of exclusion. The impact of the breach on the Charter protected interests of the Applicant. [ 138 ] The nature of the sniffer dog search of course was fleeting.

A highly aggravating feature of what followed however was the right to counsel breaches, and the continuing detention at the scene for over an hour from the original traffic stop. [ 139 ] It is clearly a factor that Nguyen had a reduced expectation of privacy in a third party vehicle, but the authorities are clear that a driver in Nguyen ’ s position has a significant interest in being left alone to drive on public roads without being subjected to unlawful detention or searches. [ 140 ] As noted by McLachlin C.J. in Harrison at this stage of the s. 24(2) analysis: ... 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” (para. 56(emphasis in original)). A person in the appellant’s position has every expectation of being left alone — subject, as already noted, to valid highway traffic stops.

I conclude that the deprivation of liberty and privacy represented by the unconstitutional detention and search was therefore a significant, although not egregious, intrusion on the appellant’s Charter -protected interests. [ 141 ] I consider these comments apply with equal force to the case before me, and weigh in favour of exclusion.

Society ’ s interest in the adjudication of the case on its merits [ 142 ] Grant acknowledges the general expectation of society that criminal allegations will be adjudicated on their merits and posed the third line of inquiry relevant to the s. 24(2) analysis as whether the truth seeking function of the criminal trial process will be better served by admission of the evidence or by its exclusion. Some of the factors to be considered include the reliability of the evidence, the importance of the evidence to the prosecution’s case and the seriousness of the offence.

[ 143 ] The evidence seized was just under 200 grams of grams of cocaine. The evidence is real evidence and reliable. Without it the Crown is unable to prove its case.

The offence of possession of cocaine for the purpose of trafficking is a very serious offence. [ 144 ] Harrison cautions however that the factor of the seriousness of the offence must not take on disproportionate significance: As noted in Grant , while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. (at para. 34) [ 145 ] That being said, overall this step of the analysis must favour the admission of the evidence as to do so would promote the public’s interest in having the case adjudicated on its merits.

Balancing the factors [ 146 ] Weighing the evidence relevant to the first three factors, in all of the circumstances would admission of the evidence bring the administration of justice into disrepute? [ 147 ] The long-term repute of the administration of justice is a key factor in the balance. Here I have found multiple Charter violations. The detention and search violations are toward the higher end of the scale of severity.

The right to counsel violations at the highest end of the scale of severity. [ 148 ] Again to quote from Harrison at paras. 39, 42 : To appear to condone wilful and flagrant Charter breaches that constituted a significant incursion on the appellant’s rights does not enhance the long-term repute of the administration of justice; on the contrary, it undermines it. In this case, the seriousness of the offence and the reliability of the evidence, while important, do not outweigh the factors pointing to exclusion. ... In

summary, the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards. [ 149 ] In Kang-Brown evidence was excluded on account of a s. 8 Charter breach in the absence of the kind of egregious treatment Nguyen faced regarding his right to counsel.

In the face of a mere s. 8 violation, Binnie J. commented (at para. 104): While I agree that the evidence obtained in the illegal search was non-conscriptive, and was found by the trial judge to have been obtained by the RCMP in good faith, I agree with Paperny J.A. that the evidence obtained in this case should be excluded.

The administration of justice would be brought into disrepute if the police, possessing an exceptional power to conduct a search on the condition of the existence of reasonable suspicion, and having acted in this case without having met the condition precedent, were in any event to succeed in adducing the evidence. Drug trafficking is a serious matter, but so are the constitutional rights of the travelling public. In the sniffer-dog cases, the police are given considerable latitude to act in the absence of any requirement of prior judicial authorization .

The only effective check on that authority is the after-the-fact independent assessment. I conclude that the police initiated a warrantless search on inadequate grounds. In my view, on the facts here, the evidence should be excluded.

[105] While the context of the search in Kang-Brown was different from Nguyen’s case, more similar were the facts in R. v. Yeh involving a road-side stop and sniffer dog search with resulting again only in a s. 8 breach. The trial judge’s decision to exclude the evidence in Yeh was upheld on appeal. A similar case is R. v.

Payette again involving only a s. 8 breach arising from a road-stop and sniffer dog search, again resulting in the exclusion of evidence. [105] Finally, I have considered the recent decision in R. v Mian , 2011 ABQB 290 , a case in which evidence of cocaine was excluded not on account s. 8 or s. 9 breaches but for a failure to inform the accused of his right to counsel, and owing to what Macklin J. found was police misconduct in the giving of evidence at trial. While in Nguyen’s case I have commented critically on some aspects of the police evidence at voir dire , I have not found misconduct in that regard.

On the other hand, in Mian the s. 10(

b) breach was mild in comparison to Nguyen’s case, and Nguyen was subjected to s. 8 and s. 9 breaches. Conclusion [105] I have weighed the Charter infringements in the instant case and society’s interest in adjudication of the charge on the merits. In my opinion, viewed reasonably and from a long-term perspective, the admission of the evidence against Nguyen would have a serious negative effect on the repute of the administration of justice. The evidence is therefore excluded. Heard at the City of Red Deer, Alberta on the 16 th and 17 th days of February, 2012.

Dated at the City of Edmonton, Alberta this 23 rd day of March, 2012. Peter Michalyshyn J.C.Q.B.A. Appearances: David A. Inglis Lee Inglis Albrecht for the Crown Howard K. Poon Chadi & Co. for the Accused