R v Franko, 2012 ABQB 282

Court of Queen ’ s Bench of Alberta Citation: R v Franko, 2012 ABQB 282 Date: 20120430 Docket: 100087840Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Travis Franko Applicant /Accused Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment in the Voir Dire of the Honourable Mr. Justice Donald Lee _______________________________________________________ Background

[ 1 ] The Accused is charged with one count of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (“CDSA”). [ 2 ] The Charter Notice filed by the Applicant alleges breaches of the accused s. 7, 8 and 9 Charter Rights . The Applicant alleges violations of his rights under ss. 8, 9 and 10 of The Canadian Charter Rights and Freedoms (“ Charter ”). [ 3 ] The following admissions have been made by the Accused during the voir dire in an Agreed Statement of Facts:– 1. The identity of the Accused is not in issue. 2.

At all times material to the prosecution, including, but not limited to January 21, 2010, the Accused was the registered owner of a black 2006 Chrysler 300, bearing Vehicle Identification Number [...], with Alberta License plate [...] (“the Accused’s Vehicle”). 3. That continuity of all exhibits seized by police, including, but not limited to drug exhibits seized during the search of the Accused’s Vehicle on January 21, 2010 is not in issue. 4.

Service upon the Accused of copies of Certificates of Analyst in relation to drug exhibits entered by the Crown and Notice of Intention of the Crown to tender them in evidence at trial, is admitted. 5. Members of the Edmonton Police Service (“EPS”) surveilled the Accused driving the Accused Vehicle on January 21, 2010 proceeding to the Anthony Henday Road in Edmonton and then southbound on Highway 2. 6.

The Accused’s Vehicle was followed by Police past Leduc, Alberta still proceeding southbound on Highway 2 until surveillance was terminated by Edmonton City Police Service members at about 13:37 hours on January 21, 2010. 7. · On January 21, 2010 1410 hrs - Red Deer RCMP Cst. Jon England receives a phone call from Det. Trevor Czemick of EPS Gang Unit requesting assistance with surveillance of a black Chrysler 300 with AB - [...]. Driver is Travis Franko, 61 ‘tall, 280 lbs, black hair. The car has large shiny wheels. · 1427 his - Cst. England and Red Deer RCMP Cst.

Bigras (in the same vehicle) establish surveillance on Hwy 2 at the Hwy 11a overpass. · 1442 his - Red Deer RCMP Sgt. Jack Cormack sets up surveillance at Hwy 2 and Blackfalds overpass. · Sgt. Cormack observed a possible target vehicle northbound on Hwy 2. Sgt. Cormack caught up with the vehicle at Wolf Creek golf course which is between Lacombe and Ponoka. 1527 his - Sgt. Cormack confirmed the last three digits of the licence plate on the target vehicle as [...]. The car has a yellow object or sticker on the right side of rear window, a cell phone charger or similar item hanging from the rear view minor.

Male driver has a hair cut that looks like an old motorcycle helmet. · 1533 hrs - Sgt. Cormack phoned Cst. Colin Hughan of EPS and advised him of the target vehicle location. EPS will attempt to take over surveillance. · 1542 hrs - Sgt. Cormack updated EPS on location of vehicle.

· 1552 hrs - Sgt. Cormack - EPS gang unit have a visual on the target vehicle and take over surveillance. EPS took over surveillance near Wetaskiwin. Sgt.

Cormack returned to Red Deer. [ 4 ] It is submitted that the detention and warrantless search of the Applicant’s vehicle contravenes sections 8 , 9 and 10 of the Charter and that all evidence obtained as a result of the detention and warrantless search is inadmissible in the Trial proper pursuant to the provisions of s. 24 of the Charter . [ 5 ] It is the position of the Crown that the Applicant was the subject of a lawful arrest by police, and that he and his vehicle were then subsequently lawfully searched incidental to that lawful arrest. [ 6 ] The primary Charter issues raised relate to the acknowledged warrantless arrest of the Applicant, and the subsequent search of his person and vehicle incidental to the arrest.

Summary of the Evidence [ 7 ] Over the past several months prior to January, 2010, Edmonton Police Service Detective Trevor Czernik had been receiving information from a confidential informant who he believed to be of past proven reliability, regarding the drug dealing activities of Travis Franko (“Franko”).

Detective Czernik had known this informant for more than two years and he/she had proven reliability on at least two occasions where information received, led to the seizure of controlled substances and subsequent arrest of various individuals. [ 8 ] The informant relayed the following information specific to Franko in November and December of 2009: · Franko was supplying lots of guys in Edmonton with cocaine; · Franko has a good connection for kilos; · Franko supplies large quantities of cocaine to other dealers in Edmonton; · Franko’s drug connection is from Calgary. [ 9 ] Detective Czernik had been a member of the Edmonton Police Service Gang Unit since 2000 and had been involved with the investigation of gang and drug activity for the most part often years as of January, 2010. [ 10 ] During Detective Czernik’s tenure in the gang unit, Franko was well known to him as a long-time drug trafficker who went by the street name and was very well known within the Gang Unit as “Papaya”.

Franko was also known to Detective Czernik as a mid to high level drug trafficker and a one time member of an organized crime group in Edmonton, a gang called the “Crazy Dragon Killers” which group became defunct in about 2004 or 2005. Detective Czernik knew this group to be very active in drug trafficking, assaults, weapon offences and kidnappings. [ 11 ] After receiving the information from the informant, police conducted various inquiries on police databases to establish a residence and vehicle for Franko.

It was determined that Franko was the registered owner of a Honda Civic, Alberta licence plate [...] and provided an address of 18[...] - 65 Avenue, Edmonton. In the three months prior to January 2010, brief surveillance was conducted by the police at the address which revealed the Honda Civic parked on the driveway. Franko was not observed during that initial surveillance. [ 12 ] In January, 2010 the informant provided Detective Czernik with the following information regarding Franko:

· Franko is moving lots of cocaine; · Franko used to be with the CDK (“Crazy Dragon Killers”); · Franko is still supplying multi ounces to dealers in Edmonton; · Franko drives a dark Chrysler 300; · Franko goes by the street name of “Papaya’; · Franko went to Mexico and will be obtaining a quantity of cocaine upon his return. [ 13 ] Police Members of EDGE Unit Squad 1, conducted additional police database checks and determined that Franko now had a black 2006 Chrysler 300 associated to the same Alberta licence plate [...].

Additional inquiries were conducted by EPS Constable Jay in December, 2009 and in January, 2010 which included the monitoring of Franko’s computer on-line Facebook profile. During this time, Franko made several status updates on his Facebook profile which confirmed when he was leaving for Mexico and the date of his return. There was a Facebook posting on January 20, 2010 indicating Franko had returned from Mexico that day. These checks further corroborated information received from the Informant.

On January 21, 2010 Detective Czernik received information from the confidential source that Franko was back from Mexico and Franko is picking up a load of cocaine today. [ 14 ] At about 12:21 hours on January 21, 2010, Detective Czernik established surveillance at 18[...] - 65 Avenue. He observed Franko arrive in his 2006 Chrysler 300 and saw him remove a large duffel bag from the rear seat of the vehicle. Franko proceeded to the back door and appeared to use a key to gain entry into the residence.

At about 12:24 hours Franko then left the residence with nothing in his hands, entered his Chrysler 300 and drove eastbound from his residence. Continuity of Franko was lost momentarily but he was quickly reacquired by the surveillance team leaving the parking lot of a nearby YMCA at about 12:29 hours. Detective Czernik observed Franko return to his residence, exit the Chrysler 300 carrying a rectangular shaped object wrapped tight in a plastic bag. Detective Czernik believed this package to be a bundle of cash that was wrapped in a plastic bag.

Detective Czemik further believed that Frank had obtained cash from an unknown person at the YMCA parking lot and that this money was obtained to satisfy a drug debt. [ 15 ] Franko was then observed leaving the residence by Constable Hughan another member of the surveillance team. Detective Czernik was advised over the police radio that Franko was carrying a green canvas type bag that appeared to be weighted and that this bag had been placed in the trunk of the Chrysler 300 by Franko before his departure from the residence.

The Chrysler 300 was followed by members of the surveillance team to the Anthony Henday and then southbound on Highway 2. Franko was followed by police past Leduc, proceeding southbound on Highway 2 until surveillance was terminated at about 13:37 hrs. At that point, Detective Czernik believed that Franko was driving south to Calgary to obtain a quantity of cocaine from his supplier. [ 16 ] Arrangements were made to utilize Red Deer RCMP to intercept Franko at or near Red Deer in the hope of monitoring his movements and determining if he continued towards Calgary.

Detective Czernik spoke with Red Deer RCMP Constable Jon England and provided him with a description of Franko and his Chrysler 300. Cst. England then arranged for surveillance of the major highways coming into Red Deer. [ 17 ] At approximately 15:27 hrs, Sgt. Jack Cormack of the Royal Canadian Mounted Police (“RCMP”) Red Deer Drug

Section spotted Franko’s black Chrysler 300 Alberta licence plate [...] heading northbound on highway 2, this being about two to three hours after police observed him departing Edmonton. [ 18 ] This information was communicated to Detective Czernik who directed that other BPS members head south on Highway 2 in order to take over surveillance from Red Deer RCMP. At this point Detective Czernik believed that Franko had met with his cocaine supplier and was currently in possession of large quantities of cocaine. Detective Czernik directed Temporary Acting Sgt.

Chow to follow Franko into Edmonton City limits, conduct a vehicle stop and arrest Franko for possession of a controlled substance for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act . Members of the EPS Tactical Unit were to be utilized for the vehicle stop and Detective Czemik reiterated those instructions over a police radio to Cst. Hermanutz who was the team leader for the tactical unit.

When Detective Czernik realized that Franko was already northbound toward Edmonton on Highway 2, in such a short time frame he was of the belief that Franko and his supplier had possibly met in Red Deer, half-way between Edmonton and Calgary.

[ 19 ] The EPS tactical unit conducted a vehicle stop of Franko’s Chrysler 300 at about 16:32 hrs as it was proceeding northbound into Edmonton at about 52 nd Avenue and Dechene Road in Edmonton. At approximately 16:34 hrs Cst. Hughan arrested Franko for possession of a controlled substance for the purposes of trafficking contrary to s. 5(2) CDSA . Chartered and Cautioned him then transported him to Edmonton Police headquarters.

An initial search of Franko was performed at the scene with a more comprehensive search including a strip search being performed at headquarters. $1,235.00 was found in Franko’s right jacket waist pocket. This money was ultimately returned to Franko. [ 20 ] At approximately 16:37 hours Cst. Toma seized Franko’s black Chrysler 300 and began to search the vehicle. Inside the trunk of the vehicle was a green bag which was believed to be the same bag seen by surveillance team members earlier in the day. Inside the bag were two medium sized mixing bowls.

Within those mixing bowls there was a functioning digital scale and a box fill of sandwich sized baggies. There was a white powder residue on the top bowl as well as the scale. Cst. Toma conducted a presumptive test of the residue on the bowls which indicated to be positive for cocaine. [ 21 ] Cst. Toma drove the black Chrysler 300 from the scene of the arrest back to police headquarters to conduct a more detailed search of the vehicle, arriving at police headquarters at about 1720 hours and resuming his search of the vehicle at approximately 1725 hours. Hidden behind the glove box Cst.

Toma found two clear plastic vacuum-sealed bags of what was later weighed to be 505 grams each respectively for a total of about 1 kilogram of a substance later determined to be cocaine. One of the packages of cocaine was labelled “trip” and the other was labelled “dub”. [ 22 ] Cst. Toma also located two Blackberry cell phones in the vehicle. Both of the seized cell phones were functioning but the older Blackberry Curve model was locked. One was sitting in the console cup area, was active and its content later downloaded.

The other was an older model Curve Blackberry located on the front passenger seat close to the console and was plugged into the lighter. The older model blackberry phone was locked and unable to be downloaded. The cell phone which was examined by Cst. Toma and its contents ultimately downloaded contained numerous text messages, a number of which were believed by police to be associated to the drug trade, a number of these messages having been received prior to the arrest date. [ 23 ] In the rear seat area of the vehicle, Cst.

Toma located and seized a black hunting knife with a black handle and a sharpened ten inch blade inside a black sheath, located on the floor of the rear passenger seat area. [ 24 ] Mr. Franko alleges: (1) his detention was arbitrary; (2) the search of his person and his black Chrysler 300 unreasonable; and (3) his strip search was unreasonable. [ 25 ] The Crown submits that the detention were not arbitrary and the searches were reasonable, meaning there were no Charter breaches. Issues

(1) Whether or not there were reasonable and probable grounds to arrest Franko?

(2) Whether or not the search of the vehicle was incidental to a lawful arrest?

(3) Whether or not the search of the vehicle and the search of the data on the cell phone contravened

section 8 of the Charter and was an “unreasonable search or seizure”?

(4) Whether or not if Charter violations arose the evidence obtained ought to be excluded pursuant to

section 24 of the Charter ?

[ 26 ] The determination of the above issues requires a careful analysis of the evidence of Det. Czernik as it was Det. Czernik, who instructed that Franko be arrested. [ 27 ] This involves a consideration of:

a) Informant Information;

b) What, if any, Corroboration exists;

c) Surveillance. [ 28 ] Respecting informant information, Det. Czernik testified that he spoke to the informant 2-3 times per week, however, only used the informant twice in the two years that Det. Czernik had known him/her. His evidence is unclear as to whether or not these earlier two occasions were by way of a “traffic stop”, some form of warrantless search, or by way of judicial authorization such as a search warrant. [ 29 ] Det. Czernik testified that the informant has no record for deceit and went on to define deceit as he defines it. [ 30 ] The informant is a paid informant. [ 31 ] Det. Czernik acknowledged that there can be a variety of motivations to be an informant including:

a) Fear such as the threat of incarceration;

b) Revenge;

c) Perverse motivation;

d) Egotistical motivation;

e) Mercenary motivation such as the receipt of money. [ 32 ] Det. Czernik testified that the police often times approached an informant with caution as the informant may/can turn upon the police. [ 33 ] Det. Czernik acknowledged the importance of making detailed and accurate notes and reports as these detailed notes and reports may later become the police officer's "memory" because of the passage of time. [ 34 ] The following information was obtained from the informant in November - December, 2009: · Franko was supplying lots of guys in Edmonton with cocaine; · Franko has a good connection for kilos; · Franko supplies large quantity of cocaine to other dealers in Edmonton;

· Franko's drug connection is from Calgary. [ 35 ] In January of 2010 the informant provided the following details, namely: · Franko is moving lots of cocaine; · Franko use to be with the Crazy Dragon Killers; · Franko is still supplying multi ounces to dealers in Edmonton; · Franko drives a dark Chrysler 300; · Franko goes by the street name of “Papaya”; · Franko went to Mexico and will be obtaining a quantity of cocaine upon his return. [ 36 ] Det.

Czernik testified although there is nothing in any of his source debriefing notes disclosed and nothing in his notes or reports that on January 21, 2010 the informant told him that Franko was going to get a quantity of cocaine. Furthermore, Det. Czernik acknowledged that at the Preliminary Inquiry he never gave this testimony because “it was sensitive”. For an unknown reason it appears that the information is now no longer sensitive and the Detective acknowledges that he made no notes of any nature whatsoever regarding this conversation.

It is submitted that this stretches the credibility of the Detective to the breaking point. [ 37 ] It is submitted that the information provided by the informant was nonspecific and historical, stale and anecdotal. [ 38 ] Det. Czernik also testified that the Crazy Dragon Killers existed in approximately 2002-2003 and were involved in drugs and violence but that the Crazy Dragon Killers became defunct in approximately 2005. Mr.

Franko was associated with the Crazy Dragon Killers by way of police intelligence and other informants but was never arrested or convicted of any offence that related to the Crazy Dragon Killers. Det. Czernik testified that he was unclear as to what criminal record, if any, Franko had as of January 21, 2010. [ 39 ] There had been some form of surveillance off and on with respect to Franko from November, 2009 to January 2010. This surveillance however revealed nothing material. It did not reveal Franko taking any trips to Calgary or anywhere else.

It did not reveal Franko meeting with anyone who was of interest to the police. It did not reveal Franko involved in any exchanges. It did not reveal persons of interest or vehicles of interest being observed at or near what was thought to be Franko's residence. The only thing observed was a Honda registered to Franko with the plate number [...] at the residence. [ 40 ] Furthermore, Det. Czernik had never heard Franko being referred to as "Papaya" since 2005.

It is submitted that it is significant that five years had elapsed from 2005, the Crazy Dragon Killers became a defunct group, and the name “Papaya” had not been heard by Det. Czernik since. What, If Any, Corroboration Exists? [ 41 ] The corroboration relied upon by the police is twofold, namely:

1) A data search of the motor vehicle's branch established that Franko was the registered owner of a black Chrysler 300 with platenumber [...]; 2) A Facebook search established that Franko was going to go to Mexico and the date of his departure and the date of his returnfrom Mexico and the announcement on his Facebook page that he had returned from Mexico. [42] A source debriefing note referred to by Det.

Czernik in cross-examination did not state that the informant said Franko wasgoing to Mexico. [43] The Facebook search is open to the entire world and requires only a person to be a member of Facebook and then search thename Travis Franko because he has a public open posting whereby anything that Travis Franko posts on his Facebook will be availablefor the world to read. [44] In essence, it is submitted that all the informant was telling the police was vague:– · Franko was a cocaine dealer, a member of the Crazy Dragon Killers five years earlier in time and had the street name “Papaya”,drove a dark Chrysler 300 (with no other details provided), and had a cocaine connection in Calgary.

See: R v Debot (1989), (SCC), 2 S.C.R. 1140 (S.C.

C) at pp 6-7 "the facts" and the detailed information provided bythe informant; R v Simpson (1993), (ON CA), O.J. 308 (Ont. C.A.) at p. 13 para. 61. Surveillance [45] It is submitted that the surveillance of January 21, 2010 is meaningless and does not assist in providing further reasonable andprobable grounds to believe that Franko is engaged in any criminal activity of any nature whatsoever. [46] At 12:21 on January 21, 2010 Det. Czernik observes Franko carrying a large duffel bag from the black Chrysler and entering18[...] - 65 Avenue. [47] At 12:24 Det.

Czernik observes Franko exit the residence apparently carrying nothing and enter into the black Chrysler. [48] Surveillance of Franko is lost from 12:24 hours to 12:29 hours. At 12:29 hours, Cst. Chow observes the vehicle exiting theparking lot at the YMCA at 178 street. [49] At 12:32 hours Det. Czernik sees Franko "carrying a small boxy object in left hand" exit the black Chrysler and enter theresidence. [50] Det.

Czernik testifies that Franko must have met someone at the YMCA to collect a drug debt because Franko requiredmoney to travel to Calgary to purchase the cocaine and what was within the small boxy object in his left hand at 12:32 hours wascurrency. There is nothing whatsoever by way of facts and observations to support this complete speculation.

[ 51 ] It is submitted that there is evidence is to the contrary as Cst. Chow stated if Det. Czernik had reported seeing cash in this “small boxy object” which Det. Czernik testified he did not see, that it would have been noted in the surveillance logs as it was an important observation. Furthermore everyone who was involved in the surveillance signed the surveillance logs at the end of the surveillance as to the authenticity and accuracy of the logs and Det. Czernik did not request any amendment to his observations at 12:32 hours about the “small boxy object in Franko's left hand”. [ 52 ] Det.

Czernik also acknowledged in cross-examination that the small boxy object could have always been inside the black Chrysler as the black Chrysler had never been examined by anyone that particular morning. [ 53 ] There was nothing seen at the YMCA by any police officer. [ 54 ] Det. Czernik acknowledged that in his experience people can acquire cocaine on credit, a “front”, whereby you need no cash to purchase the cocaine. [ 55 ] Det.

Czernik acknowledged that there can be change of plans, for example, he stated that he is aware from his prior experience as a police officer that A may be going to meet B for the purpose of B providing A with cocaine. This is the information from the informer and the police go to where the meeting between A and B is to occur and nothing happens.

The police later go back to the informant and inquire as to why there never was a meeting, and the informant informs the police that B could not acquire the cocaine for whatever reason or B may of had his car break down and there by not have any transportation to get to the meeting. [ 56 ] It is submitted that the “fronting” of cocaine as opposed to cash purchases and the failure of A and B to meet one another are all entirely plausible explanations and do not involve the speculation utilized by Det.

Czernik in attempting to formulate and develop reasonable and probable grounds for the arrest of Franko. [ 57 ] Furthermore, it is clear and Det. Czernik acknowledges that it was impossible for Franko to have travelled from Edmonton to Calgary having regard to the time. Surveillance over Franko by the Edmonton police is terminated at 13:37 hours and the first sighting by the RCMP at Red Deer who were asked to assist is at 15:27 hours (almost two hours later) when the vehicle was proceeding northbound towards Edmonton. [ 58 ] Again, it is submitted that there is no observation or facts to support Det.

Czernik's speculative theory that Franko met somebody somewhere and there was an exchange of cash for cocaine with the cash having come from the YMCA parking lot and the cocaine having been delivered by an unknown party somewhere on the highway (Highway 2). [ 59 ] Finally it is submitted that the grounds for the arrest is given by Det. Czernik at the time of the Preliminary Inquiry and the grounds for the arrest at Trial are different. [ 60 ] Det.

Czernik testified that he gave no consideration to getting any form of warrant, arrest warrant, search warrant or telewarrant, and it is obvious from the evidence given at the Trial that if he had applied for any warrant that no warrant would have been issued to him. [ 61 ] Det. Czernik believes that the green Enviro bag that Franko placed into the truck of the car contained the cash that was required to purchase to cocaine. This observation was made by Cst. Hughan at 13:13 hours, who candidly testified that he had no idea what was in the green Enviro bag.

Although many officers were involved in the arrest of Franko, none of those officers were ever provided any grounds by Det. Czernik for the arrest. [ 62 ] Cst. Chow testified that at 15:05 hours that he debriefed Tactical Unit and advised Tactical Unit that there were no other occupants to the vehicle, that he had no knowledge of any flight risk posed by Franko and no knowledge of Franko being in possession of any weapons.

[63] A number of tactical unit police officers testified and Cst. Pipke testified that "Det. Czernik instructed a 'high risk takedown'".Det. Czernik never testified to issuing these instructions. [64] There appears to be confusion as to who was instructing the tactical unit, whether it was Det. Chow or Det. Czernik and theconfusion is further compounded with Cst. Innes of the tactical unit stating that the name he recorded as the person to be arrested was“Travis MacKinnon”. Cst. Innes was uncertain as to where he got this information from but assumed that it was during the briefing. [65] Sgt.

Toma searched the vehicle and the cell phone and gave "no thought of any Search Warrant as he was operating under thepremise that his search was incident to a lawful arrest although he had never heard Franko being arrested but assumed that he had beenarrested". (Cst. Hughan testified that he was responsible for the arrest of Franko.) [66] There was nothing visible within the vehicle and the green Enviro bag had to be opened, the glove box had to be opened andthen moved before anything was discovered behind it. There were no fingerprints although there may be an identifiable fingerprintbelonging to someone else.

Sgt. Toma had no notes or any recollection of visually examining any text messages upon the cell phonebefore he used the cellbrite program to download the text messages. [67] Franko appears to have been arrested around 4:30 p.m. and the search of his vehicle by Sgt. Toma was conducted at thepolice station between 5:25 p.m. and 6:00 p.m. [68] Sgt. Toma was uncertain as to what the Edmonton Police Service policy is regarding driving an arrestee's vehicle. The Law [69]

Section 495 and authorities respecting the test for reasonable and probable grounds involve both a subjective and objectivebelief are set forth in R v Storrey, (SCC), [1990] 1 S.C.R. 241 and in Nagy v Canada, 2006 ABCA 227. [70] For a peace officer to have reasonable and probable grounds, his belief in the person's guilt must take into account all theinformation available to him and he is entitled to disregard only what he has good reason for believing is not reliable. [71] In the case at bar, it is submitted that Det. Czernik simply acted upon suspicion and conjecture in arriving at the basis for hisarrest of Franko: R v Payne

(2005) ABCA 261 (Alta. C.A.); R v Janvier (2007) 2007 SKCA 147 , S.J. 646 (Sask. C.A.) pp.8-9. [72] The requirements for both the subjective and objective elements in reasonable and probable grounds have been establishedfor 20 years by the Supreme Court of Canada and earlier in time by other authorities. [73] The defence relies on these authorities during the oral submissions made on behalf of Franko, namely: - R v Cayer (March 4, 1991, B.C. S.C.); - R v Tang (November 8, 1991 Alta. Q.B.); - R v Woods (No. 00031488-C4 October 24, 2000 Alta. Q.B.); - R v Carlson; 2002 A.J. No. 616; - R v N.O. 2009 ABCA 75 , 2009, A.J. No. 213 (Alta. C.A.);

- R v Forster 2009, A.J. No. 1093 (Alta. Prov. Ct.); - R v Dufault 2009, A.J. No. 285 (Alta. C.A.); - R v Goodwin 2009, A.J. 1360 (Alta. Q.B.); - R v X.Y.Z. 2011, A.J. 207 (Alta. Q.B.); - R v Petros

(2011) A.J. No. 972 (Alta. Q.B.); - R v Gill 2008 SKQB 445 , 2008, S.J. No. 679 (a very useful review of all relevant legal principles and factualconsiderations); - R v Frieburg

(2011) M.J. No. 90 (Man. Q.B.); - R v Madge

(2009) O.J. No. 1061 (Ont. Sup. Ct.); - R v White 2008, O.J. No. 3577 (Ont. Sup. Ct.); - R v Pereira 2000, O.J. No. 3741 (Ont. Sup. Ct.); - R v Johnson 2000 BCCA 204 , 2000, B.C.J. No. 824 (B.C.C.A.); - R v Detilleux 2002, B.C.J. No. 1332 (B.C. Prov. Ct.); - R v Caron 2011 BCCA 56 , 2011, B.C.J. No. 200 (B.C. C.A.). [74] R v Rajaratnam (2006) 2006 ABCA 333 , A.J. No. 1373 (Alta.

C.A.) states that decisions about detention, searchand reasonable grounds for arrest are highly fact-dependent, and it is submitted that the facts in the case at bar support the defencesubmissions that the arrest was unlawful and the search was unlawful. In Rajaratnam, the accused testified on the voir dire and wasdisbelieved and the evidence of the police accepted.

Further, the Court of Appeal stated at p. 7, para. 20 “police may arrest a person, andperform a search incidental to the arrest, provided they subjectively believe that person is committing an indictable offence and theirbelief is based on objectively reasonable grounds. The trial judge found that the purchase of the last minute ticket with cash and in a falsename constituted a reasonable ground to arouse the suspicion of the officers. Rajaratnam acknowledged that he became nervous duringthe conversation.

The suspicious circumstances turned into reasonable grounds for arrest when the name on the bag was discovered to bethe same false name on the ticket ("Bob Gill"), Rajaratnam's travel plans and explanation for the phoney name were unconvincing, andthe officers could smell a very strong scent of Bounce fabric-softener sheets, a known drug-camouflage agent, when they sniffed his bag. [75] Considering all these facts together, the trial judge had “no difficulty in concluding that they had reasonable and probablegrounds to arrest Mr.

Rajaratnam”: at para. 34... p. 8, para. 23 “although the facts relied on by the trial judge, considered in isolation,may not satisfy the test, when viewed as a whole, we cannot say that the trial judge committed any demonstrable error. The false nameon the ticket, combined with the false name on the bag, particularly when Rajaratnam told the officer the bag was tagged in his realname, could be evidence of some covert plan. Rajaratnam explained the discrepancy as the "ticket girl" having made a mistake.

He dughimself in deeper when he could not provide a believable explanation for how he could visit his brother and sightsee in Montreal on aseven-day bus ticket, when it would take six days to travel to Montreal and back. On cross-examination, he said that he thought he hadpurchased a thirty-day pass.

The trial judge's finding of reasonable and probable grounds is highly dependent on her findings of fact and,particularly, her disbelief of Rajaratnam's evidence.” [76] In R v Le, 2009 BCCA 14 , 2009 B.C.C.A. 14 the Court of Appeal stated at paras. 9, 10 and 11: 9 Constable Lane subjectively believed that anyone leaving the residence was arrestable, and communicated that belief to ConstableGrimsmo. The trial judge was properly critical of Constable Lane's broad opinion, (at para. 38).

Her subjective belief was not objectivelyreasonable and she testified that without more evidence she did not have grounds to arrest the appellant. 10 Constable Grimsmo, who was entitled to rely on Constable Lane's subjective belief, acquired further information. He saw theappellant's vehicle leaving the previously closed garage, which, the trial judge inferred, showed that the appellant had some control overthe home.

Constable Grimsmo's observation of the appellant leaving the home provided the objective grounds for believing that therewas an offence being committed at the residence, and linked those grounds with the appellant.

11 I find no error in the trial judge's conclusion that the arrest of the appellant was, in these circumstances, a valid arrest. The Failure to Maintain a Record [77] It is submitted that Det.

Czernik failed to maintain adequate notes and reports with respect to any conversation with theinformant on January 21, 2010. [78] In any criminal case, the accused has a right to full and fair disclosure in order to make full answer and defence (s. 7 of theCharter). [79] In an effort to guarantee the integrity of the justice system, Canadian courts have held that the deliberate destruction ofrelevant evidence will not be tolerated and may lead to a stay of proceedings against the person charged with an offence. [80] The failure to record evidence has been subjected to criticism where the party failing to make the record is a police officer:– R. v.

Vangent and Green (1978) (ON CJ), 42 C.C.C. (2d) 313 (Ont. Prov. Ct.) R. v. Lim (1990) 1 C.R.R. (2d) 148 (Ont. Sup. Ct.) R. v. Barrett (1993) (ON CA), 82 C.C.C. (3d) 266 (Ont. C.A.), overruled by the Supreme Court (SCC), 96 C.C.C. (3d) 319 on the basis that the trial judge was not required to give fuller reasons for his decision as per R. v. Burns(1994) (SCC), 89 C.C.C. (3d) 193 (S.C.C.). The importance of the case is that the failure to take notes was the subjectof significant criticism and the Supreme Court of Canada did not disagree. R. v. Saplys

(1999) O.J. 393 (Ont. C.A.) R. v. Hayes

(2000) O.J. 73 (Ont. Sup. Ct.) Martin Committee Report "Report of the Attorney-General's Advisory Committee on Charge Screening, Disclosure, and ResolutionDiscussions Recommendation 26" [81] In R v Vangent and Green, Langdon PCJ stated at para. 36:– There remain however, some considerations of credibility. In determining credibility it is necessary always to bear in mind the frailty ofhuman memory. The events about which Detective Mortimer and Officer Richards were testifying occurred on February 1, 1978. Theirevidence was given on June 5, 1978, over four months later.

It was obvious in assessing their evidence that both relied heavily on the oneset of notes that Officer Mortimer had prepared and which Officer Richards had adopted. The Court cannot refrain from criticism of thissystem, (which it has observed in other cases in the past) of two officers purporting one to corroborate the other, and yet relying on oneset of notes made up as an aid memoire, as a single aid memoire, by the two officers in collaboration, after the event.

Why, the Courtasks would the officers not have sat down and made their own notes based on their own independent recollection? [page327] Is itbecause they feared that their independent recollection recorded on the very day of the events might differ? How could it differ, if onlythe truth were recorded? This is not to suggest that the officers are lying. It is merely an attempt to point out the undesirability of such apractice. It is not too strong, as Mr.

Wright has suggested in argument, to suggest that both officers were "reading from the same script".They were refreshing their memory from the same set of notes, and bearing in mind the weight which they placed on that set of notes,and bearing in mind particularly, the extent to which their independent recollections differed on matters not dealt with by the notes, thereis every cause to be suspicious of the accuracy of their evidence. The officers differed substantially in their accounts of how the noteswere made.

Richards says the notes were made by Mortimer continuously over the period of the evening and handed to him for checkingand verification and that as I understand it, he checked them over at the end to verify them. Mortimer, on the other hand, suggests in hisevidence, that he made his notes only at the conclusion of the evening and in collaboration with Richards, a collaboration which Richardsdenies. The officers differ as to who admitted them into the apartment, not only from each other, but also with respect to the recollectionof the accused person.

and further stated at paras. 41:– 41 The point of the matter is that again, procedures adopted by the police, in a setting which the police entirely control , have effectively negatived the Court obtaining the best evidence. This Court has had occasion to comment on this unfortunate practice on previous cases. In the decision of R. v. James J. Byrne (unreported) released January 26, 1978, the Court then had occasion to comment upon a confession, which in that case was admitted in evidence, in a trial on a charge of rape.

In dealing with the issue of what weight should be attached to the statement of the accused, the Court said at p.25: However, the method chosen by the officers to record their perception of the interview, effectively negates there being any value or weight to the presence of a second officer. Detective Cover should not have sat like a bump on a log while Fleeton took the statement. At least he should have made his notes as events transpired. Fleeton should have made his own notes based on his own recollection.

That the two officers sat down and collaborated to produce what is effectively one set of notes, after the fact, does nothing so much as leave them open to a charge of 'cooking' their notes after the event. The defendant's cooking of the facts has been ample for this trial without the suspicion being raised that the police were up to it.

At the time of the voir dire , and on previous occasions, this Court deplored the failure indeed the refusal of the police department in this jurisdiction to record prisoner interviews in accordance with the fact that we are now in the twentieth century, not the nineteenth, and that the Court is entitled to the best evidence that can be got, not just in [page329] accordance with what happens to be convenient. There is little to stand in the path of making videotaped recordings of the images and sounds in the interview room.

There is less, in fact almost nothing, blocking the use of a sound recording device, even one as simple as the simple inexpensive (and ubiquitous) cassette recorder to record the sounds of interviews. It is emphatically not an answer to say that the defence will challenge the integrity of the recording. Of course it will, but it is especially in serious cases like this, far and a way easier to guarantee the integrity of a tape recording than the accuracy of human recollection, after the event as recorded by the two officers acting in concert, on what is essentially one set of notes.

It is no tribute to the primitive practices employed in this case that ex. "A" (the confession) squeaked through the voir dire by the skin of its teeth. The Court intends no criticism of the individual officers involved; they work with the tools they are given, but the Court is entitled, not only to the best recollection of statements made as dispassionately related by a trained policeman. Where possible the Court is entitled to be as effectively present at the taking of the statement as it could be if the sounds, or sounds and images were recorded.

The Court is entitled to hear and weigh the intentions of voice, the shades of meaning and nuances of words and gestures in coming to a conclusion. Those would be available and apparent in a recording ... the facilities are easily available but not employed.

In serious cases, in a police interview room, so called, in this urban and sophisticated jurisdiction, that that occurs is fact which unfortunately is capable of the inference that law enforcement officers have in their methods of interrogation something to conceal or at the very least that they are indifferent to the right of the judicial process to the best evidence. I believe that not only the Courts but more particularly the citizen who is arrested, and interrogated are entitled to better justice.

If interviews are properly conducted, confessions will then be admitted and doubts removed: if not, they quite properly will be excluded. Either way the administration of justice wins. It may be past time for Parliament or the Appellate Courts to show some leadership in this area.

In this case it will suffice to say, first, the Court is convicting the defendant notwithstanding the circumstances of the confession rather than because of it ... 44 Simply stated, the inadequate and primitive facilities and methods provided and adopted by the police in this case have made impossible any determination beyond a reasonable doubt.

Whether or not a doubt is raised in the circumstances must surely depend to a certain extent on the accuracy with which observations can be made and recorded, and if the best evidence is consistently denied to the Court by persons in position to furnish it, whether through negligence or design, doubts will continue to exist. [ 82 ] The Supreme Court of Ontario and the Court of Appeal of Ontario have echoed similar sentiments. [ 83 ] In R. v.

Lim , Doherty J. (as he then was) stated at p. 3:– In this day and age, where the technology associated with audio recording (if not video recording) is readily available, very reliable, relatively inexpensive and usable even by the electronically illiterate such as myself, it is difficult to understand why a permanent video or audio record of the interview process was not made. This is particularly so when it was apparent to the police that Mr. Lim was not fluent in the English language, and it had to be apparent to those officers as experienced policemen that Mr.

Lim's ability to understand what was being said to him, and to respond intelligibly to those questions, could be of crucial importance should the statements ever be offered as evidence. A video or audio recording would have provided cogent and trustworthy evidence of Mr. Lim's ability to speak and understand English. [ 84 ] In R. v. Barrett , Arbour J.A. (as she then was) stated at para. 17:–

...It is not for me to tell the hold-up squad how to proceed for investigative purposes, but in so far as there are evidentiary consequencesto those practices, I can say that they are unsatisfactory. Whenever possible, every officer in attendance at the interview who will want torefer to his or her notes as a memory aid for the purpose of giving evidence should take contemporaneous, independent notes. I wouldnot expect as complete notes from the person conducting the interview and it is surprising here to find that those are the only notes andthat they purport to be verbatim. [85] In R. v.

Saplys, Mackenzie J. entered a stay of proceedings as a result of an abuse of process. In doing so, the Court stated atpara. 11:– 11 It is clear from the evidence that there has been a significant inconsistency in practice of the investigators in making andpreserving notes of meetings and other steps involved in the investigation in this case. The applicants contend that the failure to eithermake or preserve, i.e. properly record, investigative steps in the face of internal guidelines and practices requiring the maintenance ofnotes suggests a deliberate attempt to frustrate the applicant's right to disclosure.

Even if the failure to properly record such investigativesteps does not result from a deliberate course of conduct but rather negligence, the applicants contend that such failure has substantiallyimpaired and prejudiced the ability of the applicants to make full answer and defence as they are entitled to under s. 7 of the Charter. Insupport of this proposition, the applicants cite Sopinka J. in the case of R. v. La (1997), (SCC), 148 D.L.R. (4th) 608(S.C.

C.) at p. 619: ... [S]erious departures from the Crown's duty to preserve material that is subject to production may also amount to an abuse of processnotwithstanding that a deliberate destruction for the purposes of evading disclosure is not established. In some cases an unacceptabledegree of negligent conduct may suffice.

The applicants further submit that the failure of the Special Investigations Branch to properly maintain and preserve investigative recordshas created crucial gaps in the narrative of the course of the pre-audit SI investigation of the applicants..... and Mackenzie J. continued at para. 12:– 12 In support of the contention of inconsistent practices with respect to record-making and maintenance by the investigators, thedefence refers to the evidence of investigator D.

Watson to the effect that she never made contemporaneous notes during investigationsbut rather that she would prepare a memorandum concerning such investigation or steps therein after the events, sometimes days after theevents. In contrast to this evidence is the evidence of Alvidas Saplys, a relative of the applicant Saplys, who was interviewed byinvestigators D. Watson and J. Helming. The evidence of Alvidas Saplys was that during such interview, D. Watson took notes in aleather-bound portfolio and J. Helming took notes on a white, lined legal size pad.

This evidence was not challenged and in my viewestablishes that it was at the very least inconsistency on the part of the investigators in their record-making and maintenance in thecircumstances of the present case.

I find that even if the investigators involved in this case did not deliberately fail to make and maintainrecords, their failure to do so in circumstances where they would have appreciated the Crown's disclosure obligations could have noother result but impairing the ability of the applicants to bring before the court evidence of any improper, unconstitutional conduct in thecourse of such investigation. [86] Lastly, the failure to take notes properly or record the best evidence was also the subject of comment by the MartinCommittee Report, supra which recommended:– ...

The Attorney-General request the Solicitor-General issue a statement to all police officers emphasizing the importance of takingcareful, accurate and contemporaneous notes during their investigation (the statement should emphasize that disclosure requirementsafter Stinchcombe cannot be thwarted by making less accurate or comprehensive notes). See Also: · R v Rajalingam

(2003) O.J. 530 (Ont. Sup. Ct.) where the accused successfully obtained a stay of proceedings for non-disclosure oncharges of attempted murder and weapons offences where inter alia demand for disclosure of police officer notes resulted in the Crownadvising the police officer notes had been lost.

· R v Rajalingam

(2004) O.J. 3920 (Ont. C.

A) where a Crown appeal was dismissed. · R v Gregoire

(2005) A.J. 79 (Alta. O.B). · R v Gregoire

(2005) A.J. 529 (Alta. O.B.) [87] In R. v. Morrissey (1995) (ON CA), 97 C.C.C. (3d) 193 at para. 33 (Ont. C.A):– Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingnessto speak the truth as the witness believes it to be. The latter concern relates to the actual accuracy of the witness's testimony. Theaccuracy of a witness's testimony involves consideration of the witness's ability to accurately observe, recall and recount the events inissue. When one is concerned with a witness's veracity, one speaks of the witness's credibility.

When one is concerned with the accuracyof a witness's testimony, one speaks of the reliability of that testimony. Obviously, a witness's whose evidence on a point is not crediblecannot give reliable evidence on that point. The evidence of a credible, honest witness may, however, still be unreliable. ... [88] The Applicant submits that the evidence of Det. Czernik is unreliable as a result of his failure to make any record keeping ofany nature whatsoever. Conclusion Issues 1. Whether the police had reasonable grounds for the lawful arrest of Franko; 2.

Whether the search of Franko's vehicle was incidental to his lawful arrest; 3. Whether or not the search of Franko's vehicle and contents of the cell phone seized from his vehicle violated Franko's s. 8; Reasonable Grounds for Arrest [89] A seminal case on the

interpretation of s. 495 of the Criminal Code and its relationship to

Section 9 of the Charter is R. v.Storrey. Although the facts in Storrey are not particularly relevant in the case at bar, the Trial Judge in Storrey found that theinvestigating officer had reasonable and probable grounds for arrest but the arrest was unlawful because it did not meet the criteria of s.450(2) of the Criminal Code now s. 495(2). He concluded that the arrest was arbitrary and in violation of s. 9 of the Charter, andordered a stay of proceedings. The Court of Appeal allowed the Crown's appeal and ordered a new Trial.

There was an appeal todetermine whether the Appellant's arrest and detention violated s. 9 of the Charter. The Supreme Court of Canada held that the Appealshould be dismissed, and that the Appellant's arrest was lawful and proper. Section 450(1) of the Criminal Code (now s. 495(1)) wasapplicable to the case, not s. 450(2) of the Criminal Code. [90] With respect to the application of s. 450(1) CC [now s. 495(1)] the Court stated at para. 17 of R v Storrey:–

In

summary then, the Criminal Code requires that an arresting officer must subjectively have [page 251] reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person, placed in the position of the officer, must be able to conclude that they were indeed reasonable and probable grounds for the arrest.

On the other hand, the police need not demonstrate anything more than reasonable and probable grounds, specifically they are not required to establish a prima facie case for conviction before making the arrest. [ 91 ] Our Court of Appeal considered and applied R. v. Storrey in R. v. Rajaratnam . Rajaratnam involved an appeal by the accused from his conviction on a charge of possession of cocaine for the purpose of trafficking. The accused was arrested at a bus depot after being questioned and admitting that he was travelling on a false name.

An officer smelled the appellant's checked bag and detected a strong odour of fabric softener. The issues on appeal were as follows from para. 8 of the decision:– 1. Whether Rajaratnam was detained when McPhee began conversing with him, asked to see his ticket and identification, and inquired into his travel plans and whether he was carrying drugs or large quantities of money. 2. Whether the following facts found by the Trial Judge, constituted reasonable grounds for arrest: that Rajaratnam:

a) purchased this ticket in a false name, at the last minute with cash;

b) could not provide a credible explanation regarding the timing and duration of his trip;

c) became nervous when the police noticed that the name on his identification and ticket did not match;

d) had checked a bag that smelled of Bounce fabric softener sheets which is known by the police to be an agent to camouflage the smell of drugs;

e) tagged that bag with a false name. 3. Whether the sniffing of Rajaratnam's checked bag by the police officers was a search and if so, whether that search was unreasonable. [ 92 ] Our Court of Appeal in Rajaratnam then goes on to state the following:– Decisions about detention, search and reasonable grounds for arrest are highly fact-dependant. This Court had occasion to consider other detentions, searches and arrests at bus depots. Invariably, each case presents a particular set of facts and circumstances on which the decision is based.

Although framed in specifics, the respective legal tests involve a review of the totality of the circumstances. Thus, cases involving dog sniffs or bags in a storage locker or in an individual's personal possession are of limited assistance. Decisions involving detentions at police stations or check stops, searches at private homes or searches using technology are similarly of limited value.

Although there may be factual similarities among cases, each set of facts drives its own conclusion. [ 93 ] In Rajaratnam , the Court dealt with the grounds for arrest as follows at paras. 20-27:– 20 Police may arrest a person, and perform a search incidental to the arrest, provided they subjectively believe that person is committing an indictable offence and their belief is based on objectively reasonable grounds. The trial judge found that the purchase of the last minute ticket with case and in a false named constituted a reasonable ground to arouse the suspicion of the officers.

Rajaratnam acknowledged that he became nervous during the conversation. The suspicious circumstances turned into reasonable grounds for arrest when the name on the bag was discovered to be the same false name as on the ticket ("Bob Gill"), Rajaratnam's travel plans and explanation for the phoney name were unconvincing, and the officers could smell a very strong scent of Bounce fabric-softener sheets, a known drug-camouflage agent, when they sniffed the bag. Considering all these facts together, the trail judge had "no difficulty in concluding that they had reasonable and probable grounds to arrest Mr.

Rajaratnam": at para. 34. 21 The trial judge accepted the officers' testimony as to their subjective belief, and also found that, objectively, these factors

constituted reasonable and probably grounds. Rajaratnam contends, however, that the officers had nothing more than a reasonablesuspicion; they did not have a reasonably based belief that Rajaratnam was in possession of illegal drugs. 22 In assessing whether there are objectively reasonable grounds for arrest, the test is whether a reasonable person in the position ofthe officer would conclude that there were reasonable and probable grounds. A prima facie case for conviction is not required: R. v.Storrey, [1990J (SCC), 1 S.C.R. 241 para. 17.

The trial judge did not misapprehend the evidence and applied thecorrect legal test. Accordingly, this ground raises a question of mixed fact and law, reviewable only for palpable and overriding error dueto the significant factual element. R. v. Feeney, [199712 S.C.R. 13 at para. 30. 23 Although the facts relied on by the trial judge, considered in isolation, may not satisfy the test, when viewed as a whole, wecannot say that the trial judge committed any demonstrable error.

The false name on the ticket, combined with the false name on the bag(particularly when Rajaratnam told the officer the bag was tagged in his real name) could be evidence of some covert plan. Rajaratnamexplained the discrepancy as the "ticket girl" having made a mistake. He dug himself in deeper when he could not provide a believableexplanation for how he could visit his brother and sightsee in Montreal on a seven-day bus ticket, when it would take six days to travelto Montreal and back. On cross-examination, he said that he thought he had purchased a thirty-day pass.

The trial judge's finding ofreasonable and probable grounds is highly dependent on her findings of fact and, particularly, her disbelief of Rajaratnam's evidence. 24 Rajaratnam points out that there are innocent explanations for many of the facts relied on by the trial judge to support her findingof objectively reasonable grounds. The difficulty with this argument is that the drawing of factual inferences from the evidence isexclusively with the province of the trial judge.

While it was open to the trial judge to draw innocent inferences, her failure to do so doesnot amount to a palpable and overriding error: R. v. Luu, 2006 BCCA 73, 222 B.C.A.C. 275 at para. 23 (leave to appeal to S.C.C.refused, [2006] S.C.C.A. No. 174). 25 Rajaratnam attacks the trial judge's reliance on the strong odour of Bounce sheets the officers smelled on the seams and zipper ofthis bag, and the officer's testimony that Bounce is a common drug-camouflage agent. He points out that Bounce is not a prohibitedsubstance, and is commonly used by the general population.

However, a judge is entitled to consider a police officer's training andexperience in determining objective reasonableness. See R. v. Smith, 1998 ABCA 418, 219 A.R. 109 at para. 30; R. v. Sinclair, 2005MBCA 41,192 Man. R. (2d) 283 at para. 14. What may appear to be innocent objects to the general public may have a very differentmeaning to an officer experienced in drug operations: R. v. Kluczny, 2005 ABQB 350, 385 A.R. 182 at para. 51. For example, thepresence of tin foil balls, combined with other indicia, can provide reasonable and probable grounds.

Like Bounce, tin foil is commonlyused by the general public for lawful purposes. See Sinclair at para. 14; R. v. Lo, [1977) B.C.J. No. 1384,35 W.C.B. (2d) 140(B.C.S.C.)at paras. 2-3, 19, 32. 26 Rajaratnam's concern about common household items providing reasonable grounds for arrest is not misplaced. One would hateto think that people who use fabric softener on their clothes are in danger of being arrested every time they travel. But that is not whathappened in this case and a number of facts are of particular relevance: 1.

Factors that contributed to reasonable grounds included the ticket and checked bag in a phoney name, Rajaratnam's non-credibleexplanation for the trip and his demeanour. It was these factors that led the officers to sniff Rajaratnam's bag. 2. When the officers sniffed the bag, they did not detect the "classic freshness of line-dried fabric", indicating a sheet of Bounce hadbeen placed in the dryer with a load of clothing; they detected the strong odour of unused sheets of fabric softener. 3.

The odour was detected in the checked bag of a passenger traveling by bus from Vancouver to Montreal, not, for example, in aLaundromat, where one might expect to find unused fabric softener sheets. 4. Both officers were familiar with the smell of Bounce sheets, had smelled them hundreds of times and were well aware that fabricsoftener sheets are the primary camouflage agent to mask the smell of drugs. They detected a very strong odour of fabric softener sheetswhen they sniffed the zipper and seams of the bag.

Combined with the other factors, the smell of Bounce was synonymous with thepresence of drugs for these officers. 5. The trial judge rejected Rajaratnam's evidence and made adverse credibility findings.

27 The cases do not deal in absolutes. An odour of fabric softener or other known camouflage agent will not always provide reasonable grounds for arrest, or even articulable cause to detain. Similarly, the presence of a common household item will not always be dismissed as a neutral factor and ignored in the reasonable grounds calculus. Context and circumstances are key. Here the trial judge carefully examined the totality of the evidence, considered the correct legal tests and concluded the grounds for arrest were objectively reasonable. She committed no reversible error.

Grounds for Arrest in Case at Bar [ 94 ] The evidence given by Det. Czernik during the voir dire established that he had the following grounds upon which he based his decision to arrest Franko:

a) Det. Czernik has personal knowledge derived from his significant 10 years experience in drug investigations about the habits of drug traffickers.

b) Det. Czernik is aware, during his time in drug and gang investigations, and other police investigators that Franko was believed to be involved in the drug trade;

c) Det. Czernik had reliable source information that Franko was involved in the drug business, namely trafficking in cocaine.

d) Information from a confidential informant of previous proven reliability in late November, December 2009 that Franko was a supplier of large quantities of cocaine to other dealers in Edmonton that Franko was a good connection for kilos and that Franko's drug connection is from Calgary.

e) The confidential source provided Det. Czernik with information in January, 2010 that Franko was moving lots of cocaine, that Franko used to be with the Crazy Dragon Killers, that Franko was still supplying multi-ounces to dealers in Edmonton, that Franko drives a dark Chrysler 300, that Franko goes by the street name of "Papaya", that Franko went on vacation to Mexico and would be obtaining kilos upon his return, that people were waiting.

f) Det. Czernik also had information from police investigation corroborating the informant information including the fact that Franko now had a black 2006 Chrysler 300, the address of 18[...] - 65 Avenue, in Edmonton associated to Franko.

g) Information from the informant received by Det. Czernik in January, 2010 that Franko was on vacation and will likely be obtaining kilos very soon people are waiting.

h) Facebook entries on Franko's Facebook profile monitored by Cst. Jay which included postings indicating that Franko was travelling to Mexico during a certain period of time and had returned from Mexico to Edmonton on January 20, 2010 (see Exhibit V-I).

i) Information from the informant received by Det. Czernik on January 21, 2010 indicating that Franko was back from vacation and that he would be picking up a load of cocaine that day.

j) Surveillance by Det. Czernik on January 21, 2010 where Franko arrives at 18[...] - 65 A venue, removes a duffel bag from the rear of the black Chrysler 300 and enters the residence apparently using a key.

k) Surveillance of Franko on the same date a short time later from the residence to the YMCA, (visual contact lost for about 5 minutes), with Franko returning to the residence about 7 minutes later in the black Chrysler 300 carrying a rectangular shaped object

wrapped tight in a plastic bag which Det. Czernik believed to be a bundle of cash which Det. Czernik further believed that Franko had obtained from an unknown person at the YMCA parking lot in satisfaction of a drug debt.

l) Surveillance of Franko leaving the residence carrying a green canvas type bag that appeared to be weighted, placing it in the trunk of the black Chrysler 300 then proceeding to drive southbound on Highway 2.

m) Within about two hours later, at 15:27 hours, Red Deer RCMP advised Edmonton City Police that Franko has been spotted northbound on Highway 2 proceeding towards Edmonton. At this point, Det. Czernik has the belief that given the short time frame after Franko had been seen leaving Edmonton, that he had most likely met with his cocaine supplier in Red Deer, a point about halfway between Edmonton and Calgary and that he was now in possession of a large quantity of cocaine.

n) Det. Czernik then directed other EPS members to head south on Highway 2 in order to take over surveillance from Red Deer RCMP and provided instruction for EPS members to conduct a vehicle stop and arrest Franko for possession of a controlled substance for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 95 ] Some of the information making up Det. Czernik's grounds to arrest Franko came from a confidential source.

A seminal case in evaluating information from a confidential source to form reasonable and probable grounds is the Supreme Court of Canada's decision in R. v. Debot . In Debot , a reliable informant informed the police that the Appellant and two others were going to meet to complete an illegal drug deal and take delivery of substantial amount of speed being brought in to the area by a supplier. The informant had obtained this information in conversation with one of the persons who was to be a party to the deal.

All the individuals named were known to the police to have had an involvement with drugs in the past. [ 96 ] In Debot , two officers, on orders from an RCMP Sergeant, intercepted and searched the Appellant's vehicle shortly after it left the house where the transaction was to occur. A Constable told the Appellant that he had reasonable and probable grounds to believe that the Appellant had speed on him and proceeded with a warrantless search as authorized by 37(1) of the Food and Drugs Act . The Appellant was ordered to assume a "spread eagle" position and told to empty his pockets. A quantity of speed was found.

The Constable placed the Appellant under arrest and advised him of his Charter right to counsel. The Trial Judge acquitted the accused. He found the search to be unreasonable contrary to

section 8 of the Charter and excluded the evidence under s. 24(2) . The Court of Appeal unanimously allowed the Crown's Appeal and ordered a new Trial. The circumstances of the search raised charter issues as to the reasonableness of the search under s. 8, the right to counsel under s. 10(b), and the exclusion of evidence under s. 24(2). The Supreme Court of Canada (Headnote page 1,2) held: that the Appeal should be dismissed. Justice Wilson in her decision at para. 53 provided the often cited three concerns to be addressed in weighing evidence relied upon by the police to justify a warrantless search.

First, was the information predicting a commission of a criminal offence compelling? Secondly, where the information was based on a tip originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur that Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weakness in one area, may to some extent, be compensated by strengths in the other two.

Compelling [ 97 ] The information received by Det. Czernik by the confidential informant was actually compelling. The informant identified Travis Franko specifically as a person not just involved in the drug trade but in the trafficking of large amounts of cocaine. He provided a nickname associated to the accused. The informant said Franko obtained his drugs from Calgary. In addition that Franko used to be with a gang, The Crazy Dragon Killers, that Franko drove a dark Chrysler 300. During Det.

Czernik's ten years in the gang unit, Franko was well-known to him as a long-time drug trafficker, that he was known by other investigators in the gang unit as a drug trafficker and well-known in the gang unit by the nickname of Papaya. Franko was known to Det. Czernik as a one-time member of the organized crime group, the Crazy Dragon Killers which became defunct in about 2004-2005. Det. Czernik knew this group to be very active in drug trafficking, assaults, weapons offences and kidnappings. [ 98 ] In January 2010, the informant tells Det.

Czernik that Franko is on vacation and will be picking up kilos soon people are waiting. On January 21, 2010, the informant tells Det. Czernik Franko is back from vacation and picking up a load of cocaine that day.

[ 99 ] The informant information, especially when combined with Det. Czernik's knowledge of Franko's reputation was sufficiently specific to warrant the attention of the police. The information did not take the form of bald conclusory statements or mere rumour or gossip, to use the words of Martin, J.A. in R. v. Debot Ont. C.A. (1986), 30 CCC, 3'd, 207 at page 219. Credibility of the Source [ 100 ] Based on the evidence provided by Det. Czernik in the voir dire , it was established that the confidential source in this case was of past-proven reliability. [ 101 ] Det.

Czernik's evidence was that he had known the confidential source for over two years. Information received from that confidential source had resulted in arrests and the seizure of controlled substances on at least two prior occasions. In his evidence in the voir dire , Det. Czernik would not confirm precisely the number of occasions the information had resulted in arrests or seizures as to do so may tend to identify the source. [ 102 ] Det. Czernik's evidence in the voir dire was that he was very familiar with the source, having contact with the source about every three weeks over the time he'd known the source.

Det. Czernik testified that the source had no criminal record for offences involving deceit, and that the source had been paid for information. Corroboration [ 103 ] In the case at bar, police did further investigation to corroborate information received from the informant. Some corroboration already existed in that police were already familiar with Travis Franko who they believed to have long-term involvement in the drug trade in Edmonton was a one-time member of the defunct organized crime group, the Crazy Dragon Killers and was well-known to Det.

Czernik and other members of the gang unit as having the street nickname Papaya. Det. Czernik further knew that while active, the Crazy Dragon Killers had been very active in drug trafficking, assaults, weapons offences and kidnappings. [ 104 ] Police conducted various inquiries on police computer data bases to establish a residence and vehicle for Franko. They determined that consistent with the informant's information, Franko was the registered owner of a 2006 Black Chrysler 300. The monitoring of Franko's on-line Facebook account by Cst.

Jay in December of 2009 and January of 2010 confirmed that Franko was vacationing in Mexico, including the date he was leaving and returning to Edmonton. This was consistent with the informant's information provided to Det. Czernik in January, 2010 that Franko was on vacation and will likely be obtaining kilos very soon people are waiting. There may be some uncertainty based on the evidence given by Det.

Czernik on the voir dire as to whether or not the informant specifically indicated that Franko was vacationing in Mexico as opposed to simply being on vacation, but the Crown submits that given the information as a whole, whether or not Mexico was specifically specified by the informant is not of great significance to Det. Czernik's objective grounds. [ 105 ] Cst. Jay gave evidence on the voir dire that she saw a Facebook posting on January 20 th , 2010 indicating Franko had returned from Mexico that day. Det.

Czernik gave evidence in the voir dire that he received information from the confidential source on January 21, 2010 that Franko was back from Mexico and that Franko would be picking up a load of cocaine that day. The information from the informant in January 2010 is compelling and must be considered and given context in light of the corroborative information police obtained from Facebook postings about the return of Franko from Mexico, surveillance conducted by Det. Czernik and other police members on January 21, 2010 and both the subjective and objective reasonableness of the conclusions that Det.

Czernik arrived at when evaluating those observations he and other members made on January 21, 2010. Surveillance

[ 106 ] On January 21, 2010 at about 11:50 hours, Det. Czernik established surveillance at Franko’s residence 18[...] - 65 Avenue. At about 12:21 hours he observed Franko arrive in the Black 2006 Chrysler 300 and saw him remove a large duffel bag. Franko then proceeded to the back door and appeared to use a key to use entry to the residence. Only a couple of minutes later at 12:24 hours Franko was seen to leave the residence with nothing in his hands, enter his vehicle and drive eastbound to his residence. [ 107 ] It is clear from the evidence given by Det.

Czernik and other surveillance members that observation of Franko was lost for a period of 5 minutes and that Franko was quickly reacquired by the surveillance team leaving the parking lot of a nearby YMCA at about 12:29 hours. Det. Czernik gave evidence that he observed Franko return to his residence only about three minutes later at about 12:32 hours, the total trip lasting about 8 minutes. Det. Czernik sees Franko exit his vehicle. In his evidence in voir dire Det. Czernik says Franko is carrying a rectangular package wrapped in a plastic bag which he takes into the residence. Det.

Czernik further gave evidence in the voir dire that he believes this package to likely be a bundle of cash that was wrapped in a plastic bag and that he further believed that Franko had obtained the cash from an unknown person at the YMCA parking lot and that this money was obtained to satisfy a drug debt. Det.

Czernik provided evidence during his cross-examination in the voir dire that he based this belief, in light of his long-term experience in drug investigations, the fact that the illicit drug trade was a cash based business, the information from the confidential informant that Franko would soon be picking up a quantity of cocaine from his supplier and the fact that Franko was exiting his vehicle with his package in hand during the brief period of only about five minutes that visual continuity was lost by the surveillance team members. [ 108 ] Cst.

Hughan gave evidence in the voir dire that he then observed Franko at 13:30 hours, only about 40 minutes after his return to the residence observed by Det. Czernik, exit the residence with a green bag that was weighted down described by Cst. Hughan as a canvass like enviro bag with green handles. He observed Franko place the bag into the trunk of his vehicle, get into the vehicle and then proceed ultimately southbound on Highway 2 past Leduc and surveillance by Edmonton Police members is then terminated at about 13:37 hours. At the voir dire , Det.

Czernik testified he believed there was likely cash in the bag. [ 109 ] Det. Czernik gave evidence in the voir dire that he made arrangements with RCMP Cst. Jon England to put police surveillance into place close to Red Deer given Det. Czernik's belief that at that point that Franko was heading to Calgary to pick up cocaine from his supplier as per the information he received that day, and earlier in January, 2010 from the confidential informant. As set out in the Agreed Statement of Facts filed with the Court as Exhibit V -9 in voir dire , Sgt. Jack Connack of the Red Deer RCMP Drug

Section ultimately spots Franko's vehicle at about 15:27 hours proceeding in a northbound direction on Highway 2 towards Edmonton. That information is then relayed by Red Deer RCMP to Det. Czernik. Det.

Czernik gave evidence in the voir dire that upon receipt of that infonnation he fonned the belief that given the very short length of time that had passed since Franko was observed departing Edmonton southbound at 13:37 hours and the fact that he now appeared to be northbound again outside of Red Deer at 15:27 hours, less than two hours later, that Frank had likely met with his supplier somewhere in the Red Deer area and had not gone all the way to Calgary.

He formed his belief at that point that Franko was in possession of cocaine and was arrestable for the offence of possession of a controlled substance contrary to s. 5(2) of the CDSA . Det. Czernik gave evidence that he then made arrangements through EPS Cst. Chow and EPS Tactical Sgt. Hennanutz for EPS members to take over surveillance of Franko's vehicle closer to Edmonton and to ultimately arrest Franko shortly after his entry into Edmonton. [ 110 ] According to the Agreed Statement of Facts, EPS members took over surveillance from Red Deer RCMP member Sgt.

Connack at about 15:52 hours at about Wetaskiwin, Alberta on highway 2, and continued to maintain constant surveillance of Franko's vehicle until the tactical stop was effected at about 16:27 hours at 184 Street and 52 Avenue in Edmonton. [ 111 ] During argument after the voir dire , the Applicant suggested that it was possible that given the short duration of the trip the circumstances could be equally consistent with a scenario where a scheduled meeting did not end up taking place for whatever reason. This was put to Det. Czernik during his cross-examination during the voir dire . Det.

Czernik acknowledged that in his experience there were reported drug meetings that did not materialize, but this was not his common experience, that usually these meetings happened as arranged particularly when people are waiting for a supply as Det. Czernik believed to be the case from the confidential informant information.

He further indicated that given the common availability of cell phones and other electronic communications, he believed it was more likely that people would be aware of changes in plans before they incurred driving long distances as was the case here. [ 112 ] Based on the totality of the evidence given on the voir dire that Det. Czernik did in fact have subjective grounds for the arrest of Franko and those grounds were objectively reasonable when applying the test of whether a reasonable person in the position of the officer would conclude that there were reasonable and probable grounds.

A prima facie case for conviction is not required as per the test set out in R. v. Storey and reiterated in R. v. Rajaratnum . It is critical that the Court assess the totality of the circumstances. The facts should not be considered individually in isolation; rather, they could be considered together as a whole. Further, in assessing the reasonableness of the circumstances, the Court must consider the police officers training and experience to assess the significance of the facts. In other words, the Court must assess the facts as a whole through the eyes of the police officer R. v. Rajaratnum at paras. 22-27.

[ 113 ] In the case at bar, Det. Czernik is a veteran police officer with about ten years of experience investigating drug and gang related offences. In applying the test to see whether or not Det. Czernik's grounds were objectively reasonable, there should not be a review of each individual fact in isolation and an attempt to consider and negative all potential explanations for the existence of that fact. Lack of Notes Re: January 21, 2010 Informant Information and Timing of its Disclosure [ 114 ] It is clear from the evidence provided by Det.

Czernik in the voir dire that he did not make a written note of the information that he received from the informant on January 21, 2010 which consists of the following:– · Franko is back from Mexico. Travis Franko is picking up a load of cocaine today. [ 115 ] The January 21, 2010 information was only disclosed after a request from counsel for the applicant for further disclosure for source information. (Transcr

[…]