R. v. Huynh, 2012 ABQB 378

Court of Queen ’ s Bench of Alberta Citation: R. v. Huynh, 2012 ABQB 378 Date: 20120607 Docket: 091159350Q1 Registry: Calgary Between: Her Majesty the Queen in Right of Canada Crown - and - Dinh Long Huynh Accused Corrected judgment: A corrigendum was issued on June 8, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision on the Voir Dire of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________ Introduction [ 1 ] The Accused, Dinh Long Huynh, the Applicant alleged the following in his Charter Notice:

Take Notice that this application will be made in part pursuant to

section 8 of the Charter of Rights and Freedoms , namely that the Applicant’s right to be secure against unreasonable search and seizure was violated. The search of the accused’s vehicle on September 19 th , 2009 was unreasonable, as it was not a search authorized by law. Take Notice that this application will be made in part pursuant to

section 9 of the Charter of Rights and Freedoms , namely that the Applicant’s right to not be arbitrarily detained or imprisoned has been violated. The accused was arrested pursuant to s.495 of the Criminal Code of Canada on September 19, 2009 , without the arresting officer forming the requisite reasonable and probable grounds to affect such an arrest. Take Notice that this application will be made in part pursuant to

section 10(

a) of the Charter of Rights and Freedoms , namely that the Applicants right to be informed for the reasons of his arrest promptly upon arrest has been violated. Constable Brown at the direction of Detective Wozney arrested the accused on September 19, 2009, however the accused was not informed of the reason for his arrest in a prompt manner. [ 2 ] The Applicant asks for an order of this court excluding all evidence derived, either directly or indirectly, as a result of the breaches of his rights guaranteed by the Canadian Charter of Rights and Freedoms .

Facts [ 3 ] Sargent Wozney and Detective Plamondon of the Calgary City Police Service were parked in unmarked police vehicles in the 8200 block on Horton Road Southwest, Calgary, Alberta on September 19, 2009 when at approximately 3:00 p.m., Sargent Wozney observed a purple Dodge Dakota pick-up truck enter the parking lot, perform a “button hook turn” and park. The vehicle was operated by the Accused/Applicant and had a female passenger who was seated in a small extra seat behind the main bench seat of the pick up truck. The passenger seat was unoccupied.

Within a very short period of time, less than 3 minutes, a male wearing a dark hoody and jeans entered the passenger side of the truck, was in that position for less than a minute, then get out of the truck and put his hands in the pouch of the hoody and left the scene. [ 4 ] While the male was in the truck with the Accused/Applicant, Sargent Wozney observed what he believed to be a transaction between the Accused/Applicant and this unknown male.

He observed them turn their bodies one to the other and that there appeared to be an exchange of some sort between the two males based on movements of their arms and body while they were carrying on a short discussion.

Sargent Wozney did not see the hands nor did he observe any actual transfer of any item between the Accused/Applicant and this unidentified male. [ 5 ] Immediately upon the departure of the male, the Dodge truck left the area, with Sargent Wozney and Detective Plamondon, following and maintaining visual continuity of the vehicle for approximately 15 minutes, while the vehicle travelled from southwest Calgary to northeast Calgary.

At a time convenient for stopping the motor vehicle, Sargent Wozney directed Constable Brown of the Calgary Police Service, a uniformed member in a marked police vehicle to conduct a stop of the truck being operated by the Accused/Applicant and to arrest the driver and the passenger. To effect the stop, The Accused/Applicant pulled into a parking lot where he stopped and was arrested. Sargent Wozney directed the arrest so that he could conduct a search “incidental to the arrest” of the motor vehicle being occupied by Accused/Applicant. The Evidence [ 6 ] Sargent Wozney was the only witness in the Voir Dire .

Sargent Wozney has 13 years experience with the Calgary Police Service. Three years in uniform, 8 to 9 years with drug investigations dealing specifically with organized crime, and within that 8 to 9 year, 4 years of undercover surveillance dealing with drug traffickers and their tactics. He is the supervisor of a tactical unit of the Calgary Police Service members and Royal Canadian Mounted Police members known as the Combined Forces Special Enforcement Unit.

During his service, Sargent Wozney has purchased narcotics in excess of 130 times, has been involved in over 400 investigations and has taken training in drug trafficking techniques. At the time of the incident involved in this case, Sargent Wozney had been with the Calgary Police Service for 11 years.

[ 7 ] He testified that he and his partner Detective Plamondon had just concluded an investigation in the area of Horton Road and had stopped in their separate motor vehicles adjacent to each other to discuss their notes and the transaction that had just been completed. They were stopped and located in a gravel parking lot in the 8200 block across from an apartment building known as London Towers.

He testified that the parking lot they were located in was out of the way and quiet, that the purple Dodge Dakota truck pulled into the parking lot and parked directly in front of him after performing the “button hook turn”. It was slightly staggered off to his right, about half a vehicle off, and parked about 20 feet in front of him. Shortly after stopping and within very few minutes, less than 3, the male walked up to the truck. Sargent Wozney was of the view that this was a prearranged meeting between the two, the male on foot and the driver occupier of the Dodge truck.

Immediately upon entering the vehicle he testified that there was a conversation between the two males. This lasted for “a minute or less”. Immediately after the male left the passenger seat, the female occupant in the back seat sat in the front passenger seat.

He then took down the licence plate number of the truck and both officers followed maintaining continuity until the stop by Constable Brown on the instructions of Sargent Wozney. [ 8 ] Sargent Wozney testified that in his experience as a peace officer, he formed the opinion that a drug transaction had taken place in the motor vehicle and that the driver of the motor vehicle was in possession of narcotics for the purpose of trafficking. He formed this opinion based on the following facts:

i) The truck pulled into a sparsely populated parking lot; parked in a conspicuous spot and within a very short period of time, a male approached; ii) The visitor entering the motor vehicle was creating an area of privacy so that any transaction would be unobservable or at least impaired from observation by third parties; ii) The meeting between the occupants of the truck and the male was obviously pre-arranged; iii) Immediately upon arriving at the truck, the male entered the passenger seat and a conversation was commenced immediately; iv) The male visitor was in the truck “for a minute or less” and then left closing the passenger door to the truck, placing his hands in the pouch of his hoody and walking away.

The truck then departed the parking lot;

v) Although Sargent Wozney did not see a “hand to hand” transaction, both males in the truck, the driver and the visitor, turned and faced each other, there was arm movements to indicate a transaction but no visibility with respect to the hands was possible. [ 9 ] Sargent Wozney testified that he formed the opinion that the driver of the motor vehicle was arrestable “based on my observations”. [ 10 ] When Sargent Wozney pulled into the parking lot where the Accused/Applicant had been stopped by Constable Brown, approximately two minutes after the stop and arrest, the Accused/Applicant was already being processed by Constable Brown and was placed in the back of Brown’s cruiser.

Sargent Wozney then commenced a search of the truck. He says when he placed his head inside the Dodge truck he could smell the odour of cocaine, he saw three cellphones in the truck in the centre console and in a concealed area in the dash of the truck, he seized a quantity of cocaine and cash. [ 11 ] In cross-examination, Sargent Wozney was clear that he had to have reasonable grounds to effect a search. That is to say, that he had a reasonable belief that a specific offence had been committed. He testified that he did.

He was of the view and he told Constable Brown and the court that he had formed the belief that “Huynh was arrestable “for possession for the purpose of trafficking” and that in his experience, what he saw in the parking lot in the 8200 block of Horton Road was a drug transaction. Analysis

[12] In this case the Crown concedes that there has been a breach of s.9 of the Charter of Rights and Freedoms and that theApplicant Huynh was arbitrarily detained and therefore his rights pursuant to the Charter have been violated. [13] In R. v.

Nguyen Michalyshyn, J. says this at paragraphs 127 and 128: 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 freedoms guaranteed bythis Charter, the evidence shall be excluded if it is established that, having regard to all of the circumstances, the admission of it in theproceedings would bring the administration of justice into disrepute. 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, 2009 SCC 32 , [2009] 2 S.C.R. 353, described theanalysis required by s. 24(2) as an objective one that asks "whether a reasonable person, informed of all relevant circumstances and thevalues underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice intodisrepute": para. 68.

The essence of the requisite 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), 36 C.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 a casualattitude towards legal requirements by a police officer or a failure to think about limits of power "rather than a conscious decision to

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 admission of theevidence as it will "reduce the need for the court to disassociate itself from the police conduct": R. v. Grant, supra, at para. 75. [14] Keeping the above in mind, has it been established that the admission of evidence would bring the administration of justiceinto disrepute?

I must determine whether the admission of this evidence would bring the administration of justice into dispute and thatthe test to be used in this regard is that of a reasonable person informed of all relevant circumstances and the values underlining theCharter. Keeping in mind throughout that the court must disassociate itself from any state of misconduct. What are some of the factorsthat I looked at with respect to this question. I am satisfied that that actions of Sargent Wozney were deliberate. That is to say, they werewillful and considered by him.

Sargent Wozney believed that he had witnessed a drug transaction. Based on the observations that hemade, he then proceeded “in good faith” to direct the arrest by a uniformed officer in a marked unit of the Accused/Applicant. [15] I am not satisfied on the evidence that I heard that there was a pattern off abuse, or that there was any misleading testimony bySargent Wozney, that he was aware of the Applicant’s Charter rights and was conscious of the decisions he had to make in order to 1) beable to order the arrest and 2) to conduct the search of the motor vehicle.

There is no question that this was not the result of a mistakeand the breach was not merely technical. [16] The charges that the Accused/Applicant faces are serious and in these kinds of cases the public has a “heightened interest” inseeing that there be determination of the case on the merits. Did the police Sargent Wozney and Detective Plamondon violate the Charter Rights of the Accused/Applicant. (

a) Was the Accused/Applicant’s detention arbitrary? [17] As stated in R. v. Squire, 2012 ABQB 194: In order for the police to lawfully detain an individual for criminal investigation the police must have reasonable grounds to suspect thatindividual's complicity in the criminal activity being investigated. The detention must be reasonably necessary on an objective view ofthe totality of the circumstances: R. v. Mann, 2004 SCC 52 , [2004] 3 SCR 59 at para. 34, R. v.

Storrey, (SCC), [1990] 1 SCR 241 at 250. [18] I find that Sargent Wozney held an honest subjective belief that the Accused/Applicant was involved in criminal activitywhen he engaged with the unidentified adult male in the motor vehicle in which he was the driver in the 8200 block of Horton Road SWCalgary. [19] By itself “subjective belief” is not sufficient to pass constitutional scrutiny. The question becomes “Was Sargent Wozney’sbelief objectively justifiable. In this case the Crown has conceded that it was not. This in my respectful opinion is a close call.

SargentWozney is a very experienced police officer dealing in the area of drugs and drug transactions. Many if not all individuals in the positionand with the experience of Sargent Wozney would be of the view that what he observed was a drug transaction. Nevertheless I have anadmission of Charter Breach. (

b) Would admitting illegally obtained evidence bring the administration of justice into disrepute? [20] After the arrest of the Accused/Applicant, Sargent Wozney searched the Accused/Applicant’s motor vehicle and found drugs(cocaine) and cash. The evidence, non-conscripted, has been preserved.

[ 21 ] Since the decision in R. v. Grant the Supreme Court of Canada has directed the analysis that the trial judge under goes to the central inquiry under pinning

section 24.2 which is “whether admitting unlawfully obtained evidence would bring the administration of justice into disrepute. As set out in Squire at para. 62 : That unifying question gave rise to a series of considerations aimed at assisting a judge determine whether evidence should be admitted notwithstanding one or more Charter breaches.

These considerations move away from the conscripted/non-conscripted divide, and take a more balanced approach to assessing the nature of the State conduct that led to the breach, the consequential impact on the protected interests of the person whose rights were infringed, and society's competing desires to have cases adjudicated on the merits versus a judicial system beyond reproach. [ 22 ] It is clear that an unreasonable search and an arbitrary detention are serious breaches and in Grant at paras. 71 to 86 , the Supreme Court expressly redefined how the

section 24 analysis should be undertaken. To determine in the end whether or not the evidence obtained should be admitted. [ 23 ] As I stated, the Charter breach in this case is serious and weighs in ways in favours of excluding the evidence. The impact of the breach on the Accused/Applicant’s Charter protected interest was serious and it too favours excluding the evidence. However, there is an important distinguishing feature in this case, the Accused/Applicant was not stopped because of some minor traffic violation or because of some unrelated activity to the actual charges that are before the court.

In this case, the Accused/Applicant was pulled over on directions of Sargent Wozney who believed that at the time of being pulled over and stopped and undergoing the arrest by Constable Brown, the Accused/Applicant was engaged in a criminal activity which is the charge before the court. That is, that on the 9 th of September in the mid-afternoon he was in possession of drugs for the purposes of trafficking and had contravened the CDSA. [ 24 ] At the time he was stopped there is no suggestion that he was engaged in lawful activities. In fact it is the opposite.

Sargent Wozney held at least a subjective belief that he was involved at that time in criminal activity. On the whole of it, the impact of detaining the Accused/Applicant in the parking lot for a very short period of time while his motor vehicle was searched for the purposes of securing and preserving evidence, did not appear all that egregious. The finding of the physical evidence that being the contraband drugs and cash is very reliable evidence and ways heavily in favour of admission. [ 25 ] It is important to realize that excluding the evidence would have the effect of completely destroying the Crown’s case.

Therefore I am of the view that admitting the evidence obtained in breach of the Applicant’s Charter Rights with respect to arrest, would not bring the administration of justice in dispute but in fact is the opposite. Therefore, the evidence will be admitted. Heard on the 5 th day of June, 2012. Dated at the City of Calgary, Alberta this 7 th day of June, 2012. W.P. Sullivan J.C.Q.B.A.

Appearances: Paul M. Bourassa for the Crown Jamil Sawani for the Accused/Applicant _______________________________________________________ Corrigendum of the Memorandum of Decision on the Voir Dire of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________ Page 9: Paragraph 25: Line 1: Delete word: completing Replace word with completely Line 3: Delete words: Mr. Squire’s Replace words with: Applicant’s