R. v. Wright, 2012 ABQB 414

Court of Queen ’ s Bench of Alberta Citation: R. v. Wright, 2012 ABQB 414 Date: 20120618 Docket: 081316044Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Kayla Elizabeth Wright, Anthony Raymond Middlekoop, and Roberto Stanley Olmedo-Rajo Accused Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _________________________________________ Voir Dire Decision given orally on March 23, 2012 by the Honourable Madam Justice Hunt McDonald __________________________________________ I.

Introduction [ 1 ] The Accused, Kayla Elizabeth Wright, has applied for an order excluding evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms .

[ 2 ] Counsel for Ms. Wright challenges the seizure of two kilograms of cocaine based on a breach of her right pursuant to s. 8 of the Charter to be free from unreasonable search and seizure. [ 3 ] My analysis on this application must proceed in three steps. First, I must decide whether Ms. Wright’s arrest was lawful. Then, I must determine whether the search of the trunk of her vehicle was a lawful search incident to her arrest. Finally, I must decide whether to exclude the evidence in question. II.

Facts [ 4 ] Staff Sergeant Bossley was lead investigator (a.k.a. the “Team Boss”) on a joint Calgary City Police and RCMP Investigation named “Operation High Noon” into suspected cocaine trafficking between British Columbia and Alberta. The investigation was conducted by the Drug Undercover Street Team (“DUST”) from November 2007 to December 2008. [ 5 ] In giving background evidence regarding Operation High Noon, Staff Sergeant Bossley explained that one of the suspect vehicles believed to be transporting kilograms of cocaine was a 1997 green Nissan Quest (the “Quest”) with B.C. license plates [...].

That vehicle came to DUST’s attention in May 2008 as a result of surveillance after a police search at a Hawthorn Drive NW address in Calgary in January 2008 yielded 67 kilograms of cocaine and a significant stash of guns and cash. A fingerprint of Ms. Alicia LeBruyn was found on one of the bricks of cocaine found during that search. [ 6 ] Subsequently, police installed a video camera to conduct surveillance on the back of Ms. LeBruyn’s residence. On May 15, 2008, the Quest was observed entering the garage of that residence from the alley.

Duffle bags were viewed being transferred to the house from the garage in which the Quest was parked and back. [ 7 ] On May 22, 2008, the Quest was pushed out of the garage into the alley. After the Quest was jump started, it was driven to Edmonton in the company of another vehicle driven by a suspect in Operation High Noon, a Mr. Rivas-Franco. The Quest was abandoned (or “dead dropped”) in a Superstore parking lot on Calgary Trail. The two drivers then returned to Calgary in Mr. Rivas- Franco’s vehicle.

The Quest was later observed being picked up by someone and driven to an address in Edmonton that was known to police. [ 8 ] In furtherance of Operation High Noon, a tracking device warrant was obtained and was installed on the Quest in June 2008 while it was still located at the Edmonton address. Later, the Quest was driven back to Calgary and parked in the garage of the residence of Mr. Rivas-Franco’s brother-in-law, a Mr. Leopoldo Beltran. [ 9 ] The Quest then returned to Vancouver the next day on June 12, 2008 and went dormant for a period of approximately 4 months.

For almost the whole of that time, the Quest was stationary, either in an underground parking garage in Surrey, BC or parked in front of a home in Burnaby, BC occupied by Mr. Beltran’s sister. [ 10 ] Registration and licensing of the Quest were changed to BC license plate [...]. On October 17, 2008, the tracking device indicated that it was on the Trans Canada highway heading back towards Calgary. [ 11 ] While the Quest proceeded east from British Columbia, Staff Sergeant Bossley contacted the RCMP in Canmore and spoke to Constable Enrique Ortega.

Staff Sergeant Bossley requested that Constable Ortega make an interdiction stop of the Quest if there were grounds. The Quest subsequently came under surveillance by members of the DUST Team commencing near Lake Louise, Alberta. [ 12 ] The sole occupant and driver of the Quest (later determined to be Mr. Roberto Olmedo-Rajo) was stopped by Constable Ortega just east of the Banff Park Gates for a speeding offence. The Quest was searched with the driver’s permission. After being stopped for approximately one and one-half hours, Mr. Olmedo-Rajo received a speeding ticket.

[ 13 ] Mr. Olmedo-Rajo then proceeded east to Calgary, first to a 7-11 located at 16 Avenue and Edmonton Trail NE for the purpose of refueling, and then to the North Hill Mall located at 16 Avenue and 14 Street NW, Calgary. [ 14 ] Mr. Olmedo-Rajo entered the Mall to make a phone call from a public pay phone and returned to the Quest fifteen minutes later. Constable Lines of the DUST team, who was conducting surveillance, said that Mr. Olmedo-Rajo looked around more than usual before entering the Quest. A man wearing a black T-shirt (later identified to be Mr.

Anthony Middlekoop) then ran up to the door of the Quest, had a brief conversation with Mr. Olmedo-Rajo and returned to the passenger seat of a green Chevrolet Cavalier with Alberta license plate [...] (the “Cavalier”). [ 15 ] The Quest then left North Hill Mall in the company of two vehicles, the Cavalier and a silver Acura with Alberta license plate [...]. The three vehicles, led by the Cavalier, proceeded south on 14 Street SW to an apartment/ condominium building located at 14[...]-1 Street SE.

The three vehicles were followed by DUST team members in various vehicles. [ 16 ] At approximately 7:41 p.m., the three vehicles entered the parkade of the building. The driver of the Cavalier exited the vehicle and punched in the access code to open the garage door. That female, later identified to be Ms. Wright, was the registered owner of the Cavalier. [ 17 ] The parade of vehicles was followed into the parkade by an undercover police vehicle driven by Constable Sullivan, also of the DUST team. The suspect vehicles proceeded down to the lowest level of the parkade, being P4.

The Quest parked on the left side and the Cavalier and Acura parked across the middle driving lane on the right side. All the vehicles were located across from each other at the far end of the parkade. [ 18 ] Not wanting to be detected, Constable Sullivan exited his vehicle after parking and walked up the ramp nearby to P3, then entered the stairwell to go back down to P4. He made brief observations of the group through the window in the exit door to the P4 level. He testified he saw Mr.

Olmedo-Rajo “taking a lap” in the middle driver laneway of P4. [ 19 ] Constable Sullivan proceeded to the main floor of the building to report his observations to Staff Sergeant Bossley as neither his radio nor cell phone would work in the P3 and P4 levels of the parkade. [ 20 ] Constable Sullivan then drove in a vehicle with Staff Sergeant Bossley back down to the P4 level of the parkade. Staff Sergeant Bossley parked the vehicle and exited while Constable Sullivan remained in the back seat keeping an eye on the activity in the area at the far end of the parkade where the three vehicles had parked.

Constable Sullivan could see only a portion of the Quest, as there were pillars in the parkade which obstructed his view. He could not see the Cavalier or Acura at all. Constable Sullivan observed the activity from this vantage point for approximately 10 minutes. [ 21 ] Constable Sullivan testified that three males were milling about the Quest; Mr. Olmedo-Rajo’s head was bobbing up and down by the passenger door of the Quest, and Mr. Middlekoop and another male, later identified to be Mr. Duncan Bailey, were standing at the rear of the vehicle faced towards the middle driving lane. Mr.

Bailey had a black glove on one of his hands. Constable Sullivan did not see Ms. Wright. [ 22 ] After Constable Sullivan made observations that he determined gave him reasonable and probable grounds to effect an arrest, he exited Staff Sergeant Bossley’s vehicle. He was trying to be inconspicuous, but he set off the alarm as the vehicle had been locked. He went back up in the parkade and found Constable Lines and Detective Young. The three officers returned to the P4 level of the parkade and jointly arrested all five occupants of the three vehicles.

The suspects were ordered “prone” on the floor of the parkade while the officers waited for uniformed police officers to assist. [ 23 ] Ms. Wright was one of the five individuals arrested. The four others were Mr. Olmedo-Rajo, the driver of the Quest, Mr. Middlekoop, the passenger in the Cavalier, and Mr. Bailey and Mr. Kevin Wambolt, the driver and passenger in the Acura.

[ 24 ] Constable Sullivan indicated that it is the policy of the police when conducting an arrest to clear the target vehicles to ensure that no one is hiding in them. No one was found, but in searching the trunk of the Cavalier, two kilograms of what was believed to be cocaine was found in a woman’s brown duffle type bag. [ 25 ] The charge of possession for purposes of trafficking cocaine against Mr. Wambolt was subsequently dropped by the Crown. Mr.

Bailey plead guilty at a previous court hearing and was sentenced. [ 26 ] Staff Sergeant Bossley confirmed that none of the five people arrested was ever a suspect in Operation High Noon. The only common thread was the Quest on which the tracking device had been placed. [ 27 ] In cross-examination, Staff Sergeant Bossley confirmed that no warrant was obtained to search the vehicles in the parkade.

He stated that the police conducted a search of the vehicles as they were in the middle of a take down and were concerned with the officers’ safety. [ 28 ] Constable Sullivan testified that he couldn’t recall how he opened the trunk of the Cavalier or whether he unzipped the brown bag containing the cocaine. However, Constable Lines testified that it was Constable Sullivan who opened and lifted up the trunk of the Cavalier, removed the brown duffle-type bag, and opened the bag which contained the cocaine. [ 29 ] After the suspects were taken to police headquarters, Staff Sergeant Bossley inspected the Quest.

There was a partially open secret compartment located under the front seat passenger air bag cover which extended the entire width of the dashboard. Later, at the police impound lot, it was determined the entire lid of the airbag cover was removable and was secured by a sophisticated latching mechanism using a magnetic relay switch and operated by the Quest driver following a series of pre-determined steps. III.

Section 8 Charter Challenge A. Defence Position [ 30 ] The defence argues that the totality of the police testimony can be distilled to the following facts: (

a) None of the accused was a person of interest prior to October 17, 2008. (

b) Police were aware the Quest sat largely inactive for upwards of 120 days in Vancouver. (

c) Police knew no drugs were ever confirmed going to or from the Quest. (

d) The arresting police officers - Constable Sullivan and Staff Sergeant Bossley - were not aware of any information to support the existence of a secret compartment at the time of arrest. They did not speak to Constable Ortega prior to arresting Ms. Wright. (

e) Mr. Olmedo-Rajo was not previously known as a suspected drug dealer, transporter, mule or associate. (

f) There was nothing suspicious about the Quest stopping for gas at a 7-11. (

g) There was nothing suspicious about Mr. Olmedo-Rajo traveling to North Hill Mall.

(

h) The telephone used by Mr. Olmedo-Rajo in North Hill Mall was a payphone for public use. (

i) There was no information Mr. Olmedo-Rajo was ever in possession of another communications device, such as a cellular telephone. (

j) No suspicious conversations were overheard while Mr. Olmedo-Rajo was using the payphone. (

k) There was nothing suspicious about Mr. Olmedo-Rajo attending the HMV music store in North Hill Mall. (

l) Nothing was exchanged between Mr. Middlekoop and Mr. Olmedo-Rajo in the North Hill Mall parking lot. (

m) The police were aware Mr. Olmedo-Rajo had driven from British Columbia. (

n) The police had no information as to where Mr. Olmed-Rajo was staying. (

o) The police had no information as to whether Ms. Wright (or anybody else) had a colour of right to enter the underground parkade in the apartment complex. (

p) Constable Sullivan conceded the police were the only known strangers in the parkade. (

q) No police officer ever saw any bags or items consistent with drugs moving between people or vehicles in the parkade. (

r) No police officer overheard any suspicious communications between anybody in the parkade. (

s) Constable Sullivan admitted that drug transactions are usually conducted quickly. The time period in the instant case was not consistent with the expedient nature of conducting drug deals. (

t) The three males milling about in the parkade were never observed to attend at Ms. Wright’s Cavalier. (

u) Ms. Wright was never observed within the parking garage until she was arrested from the driver’s seat of the Cavalier. (

v) At the time of arrest, neither Constable Sullivan nor Staff Sergeant Bossley knew the Quest was equipped with a secret compartment. (

w) Constable Sullivan conceded he never heard an electrical sound - such as a buzz - consistent with a secret compartment being operated or opening. (

x) Not a single previously known suspect (such as Mr. Rivas-Franco or Ms. LeBruyn) was ever observed in the parkade.

(

y) The police had no information drugs were actually being exchanged at 14[...] - 1st Street S.E. For instance, the police had notreceived any confidential informant information. (

z) The length of Staff Sergeant Bossley’s observation was less than one minute. (aa) Constable Sullivan’s initial observations were fleeting at best, and during the ten or so minutes he watched the three males millabout the Quest, he saw no exchanges, heard no suspicious communications, did not see Ms. Wright and did not see anybody attend atthe Cavalier. [31] The issue is whether the warrantless search of the Cavalier registered to Ms. Wright and seizure of the brown bag containingthe cocaine was lawful. Ms. Wright’s counsel contends that the warrantless search was conducted in the absence of reasonable andprobable grounds to arrest Ms. Wright. [32]

Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable search and seizure whichextends at least so far as to protect the right of privacy from unjustified state intrusion. [33] Counsel for Ms. Wright contends that a warrantless search is presumed to be unreasonable. Justice Dickson (as he then was)said this in Canada (Hunter) v. Southam Inc. (SCC), [1984] 2 SCR 145: A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid search andseizure both at common law and under most statutes.

Such a requirement puts the onus on the state to demonstrate the superiority of itsinterest to that of the individual. As such it accords with the apparent intention of the Charter to prefer, where feasible, the right of theindividual to be free from state interference to the interests of the state in advancing its purposes through such interference. I recognize that it may not be reasonable in every instance to insist on prior authorization to validate governmental intrusions uponindividuals’ expectations of privacy.

Nevertheless where it is feasible to obtain prior authorization, I would hold that such authorizationis a valid precondition for a valid search and seizure. ...I would in the present instance respectfully adopt Stewart J.’s formulation as equally applicable to the concept of “unreasonableness”under s.8, and would require the party seeking to justify a warrantless search rebut this presumption of unreasonableness. [34] Justice Dickson, at p. 167 of Hunter describes reasonable and probable grounds to mean that point where “credibly-basedprobability replaces suspicion”: The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point wherecredibly-based probability replaces suspicion.

History has confirmed the appropriateness of this requirement as the threshold forsubordinating the expectation of privacy to the needs of law enforcement... In cases like the present, reasonable and probable grounds,established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search,constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure. [35] The defence contends that Constable Sullivan, the officer who directed the arrest, had, at best, suspicion, but nothing more. [36] Counsel for Ms.

Wright cites R. v. Storrey, (SCC), [1990] 1 SCR 241, which stands for the proposition thatreasonable and probable grounds have both an objective and a subjective component. Justice Cory stated in Storrey at 250: In

summary then, the Criminal Code requires that an arresting officer must subjectively have 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 personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. Onthe other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not requiredto establish a prima facie case for conviction before making the arrest. [37] All Constable Sullivan observed in the parkade was that Mr. Bailey, Mr. Middlekoop and Mr. Olmedo-Rajo were standingoutside the Quest.

Nothing was observed in any of the parties’ hands during the surveillance, nor were they seen making a hand-to-handexchange, nor were they seen removing any articles from the Quest or walking over to the Cavalier. Ms. Wright was never observed byConstable Sullivan to be outside of her Cavalier. In fact, he never saw Ms.

Wright during his observations in the P4 level of the parkade. [38] Defence counsel argued on several occasions that neither Staff Sergeant Bossley nor Constable Sullivan had spoken to RCMPConstable Ortega to learn of his suspicion that the Quest was being used to transport drugs due to the raised prominence of the air bagcompartment located on the vehicle’s dash he observed during the traffic stop. Further, Defence argues the police had never previouslyconfirmed that the Quest was used to transport drugs.

Therefore, Defence argues, Constable Sullivan cannot rely on that fact to justifythe subsequent arrest of Ms. Wright. [39] Defence contends that Constable Sullivan lacked reasonable and probable grounds to believe Ms. Wright was in the process ofcommitting an indictable offence and that Constable Sullivan’s observations at the P4 level of the parkade gave rise to suspicions, atbest. Defence argues Constable Sullivan did not have the appropriate reasonable and probable grounds under s. 495 of the CriminalCode, to lawfully ground the arrest and justify the search of Ms. Wright’s car incident to her arrest. In R. v.

Debot (SCC), [1989] 2 SCR 1140, Justice Lamer stated at 1155 that the trial judge found that the police had no grounds to search aside from“pure speculation and pure hope”. That is what the Defence argues here. [40] Defence counsel contends that an arrest based on suspicion constitutes serious Charter infringing state conduct and a seriousbreach of the accused’s Charter protected interest that overrides society’s interest in adjudicating on the merits. B.

Crown Position [41] The law on which the Crown is relying on for authorization to search is the common law doctrine of search incident to arrest.It is not necessary for the police to establish independently reasonable and probable grounds to conduct a search incidental to arrest. TheCrown cited R. v. Golub (1997), (ON CA), 34 OR (3d) 743 for the proposition that a “take down” situation isdifferent from the situation in which the police seek a search warrant. The Crown asserts that judicial reflection is not a luxury the policecan afford in a volatile and rapidly changing situation.

The Court in Golub held at para. 18 that the law does not expect the same kind ofinquiry of a police officer deciding whether to make an arrest as it demands of a judge faced with an application for a search warrant. [42] The Crown also cited the decision in R. v. Whitaker, 2008 BCCA 174, 170 CRR (2d) 309, in which the Court at para. 40quoted Wilson J. in R. v. Debot (SCC), [1989] 2 SCR 1140 at 1166 for the proposition that the standard for reasonableand probable grounds is “reasonable possibility” or “reasonable belief” rather than “proof beyond a reasonable doubt” or “prima faciecase”.

Further, the Crown cited R. v. Lam, 2002 BCCA 99 at para. 10, where the Court stated “[i]t is important that the information beexamined as a whole and not one piece of evidence at a time, because each piece of evidence colours other pieces of evidence and afuller picture emerges by considering all of the evidence together.” [43] The Crown argued that Operation High Noon provided sufficient backdrop to justify Constable Sullivan’s determination thathe had reasonable and probable grounds to arrest Ms.

Wright. [44] The Court heard evidence from Constable Sullivan that it is standard procedure for the police in a “take down situation” tosearch the vehicles operated by the suspects in order to safeguard the officers’ safety by ensuring no one is hiding in the trunk or back ofany of the vehicles while suspects are being detained. [45] The Crown argues that, while doing so, Constable Sullivan discovered a brown duffle bag located in the trunk of the Cavalierregistered to Ms. Wright, in which 2 kilograms of a substance suspected to be cocaine was found wrapped in duct tape.

The Crownconceded in argument that Constable Sullivan may have unzipped the brown duffle bag.

[46] Chief Justice Lamer in R. v. Caslake (SCC), [1998] 1 SCR 51 stated at paragraph 15 that automobiles arelegitimately the objects of search incident to arrest, as they attract no heightened expectation of privacy that would justify an exemptionfrom the usual common law principles in respect of searches and seizures authorized by law. Further, he stated at paragraph 17 that “searches which derive their legal authority from the fact of arrest must be truly incidental to the arrest in question. The authority for thesearch does not arise as a result of a reduced expectation of privacy of the arrested individual.

Rather, it arises out of the need for the lawenforcement authorities to gain control of things or information which outweighs the individuals interest in privacy.” [47] The Crown argues that police were facing a dynamic and fluid situation and there was a need to act quickly. If they took timeto obtain a search warrant prior to looking in the trunk of Ms. Wright’s Cavalier, there was danger that they would lose evidence. [48] The Crown also argues that excluding the evidence would exact too great a toll because if the cocaine is not admitted, theCrown’s case fails.

Accordingly, the Crown argues that, in balancing all the factors in this case, the admission of the cocaine isfavoured. IV. Was Ms. Wright’s Arrest Reasonable? [49] Constable Sullivan’s testimony was that his observations gave him the subjective belief that he had reasonable and probablegrounds to arrest Ms. Wright. However, applying the objective test, it is my finding that his observations were merely speculative anddid not justify an arrest. Accordingly, the search of the Cavalier incident to the arrest of Ms.

Wright breached her s. 8 Charter right to befree from unreasonable search and seizure. [50] The arrest itself requires reasonable and probable grounds under s. 495 of the Criminal Code. However, since the legality ofthe search is derived from the legality of arrest, if the arrest is later found to be invalid, the search will be also. V. Section 24(2) Charter Analysis [51] A s. 24(2) Charter analysis starts from the position that there has been a breach of the Charter, therefore bringingadministration of justice into disrepute.

The s. 24(2) Charter analysis seeks to ensure that courts disallow a situation where there isfurther damage to the repute to the administration of justice through the admission of the evidence acquired as a result of that breach: R.v.

Grant, 2009 SCC 32 , [2009] 2 SCR 353 at para. 69. [52] The Supreme Court of Canada in Grant at para. 71 provided courts with a process to follow when faced with the issue ofwhether to exclude evidence as a result of a Charter breach: When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence onsociety’s confidence in the justice system having regard to: 1. the seriousness of the Charter-infringing state conduct (admission may send the message the justice systems condones serious statemisconduct), 2. the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rightscount for little), 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 the assessments under each of these lines of inquiry to determine whether,considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [53] These criteria have been applied in many cases post-Grant. Not surprisingly, each case is determined based on its on facts. A. Seriousness of the Charter-Infringing State Conduct [54] The court must examine the police or state conduct constituting the Charter violation.

When looking at the facts fromsociety’s viewpoint, a spectrum of conduct can be seen ranging from deliberate, severe, reckless or willful at one end to inadvertent orminor at the other.

The Supreme Court stated in Grant at para. 72 that “[t]he more severe or deliberate the state conduct that led to theCharter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to theconduct, in order to preserve public confidence and ensure state adherence to the rule of law.” [55] In numerous cases, the courts have held that good faith on the part of the police reduces the seriousness of the Charter breach;see, for example, R. v. Crocker, 2009 BCCA 388, 247 CCC (3d) 193 at para. 105 and R. v. Blake, 2010 ONCA 1, 251 CCC (3d) 4 atpara 24.

The argument is that good faith on the part of the police reduces the need for the courts to dissociate themselves from theCharter-infringing state conduct. [56] In this case, Constable Sullivan testified to his subjective belief that he had reasonable and probable grounds for the arrest ofMs. Wright and the search of the Cavalier incident to that arrest. However, while I make no comment on the sincerity of ConstableSullivan’s belief, I have found that what he observed was not sufficient to give rise to an objective belief that reasonable and probablegrounds existed.

While Constable Sullivan’s long term involvement in Operation High Noon may have lead him to believe that drugswould be found if the vehicles were searched, that belief must be characterized as a “hunch”. I conclude that Constable Sullivan acted onthe basis of speculation, rather than the credibly-based probability required. In my view, this significant deviation from the objectiverequirement increases the seriousness of the Charter breach. [57] The Crown argues that the search of the Cavalier was incident to the arrest of Ms. Wright.

The Supreme Court in Caslakeheld that where an arrest is properly grounded, a search incident on that arrest is also properly grounded and requires no additionalgrounds. In this case, however, the arrest of Ms. Wright was not properly grounded. [58] Further, I am concerned that the search of the Cavalier was not conducted for a proper purpose. The Supreme Court ofCanada in Cloutier v. Langlois (SCC), [1990] 1 SCR 158 at para. 61 noted that a search incident to arrest must be donefor a valid criminal justice purpose. Such purposes would include: 1. To ensure the safety of the police, the accused and the public. 2.

To prevent escape by the accused. 3. To preserve evidence of the offence for which the arrest is made. [59] Constable Sullivan testified that it was the police’s usual practice to ensure that there was not anything or anyone that couldbe a threat to police safety in the trunk or back of the vehicles in question. However, the evidence is that Constable Sullivan did notmerely search the Cavalier, but also opened the brown bag found in the trunk of that vehicle. I can find no valid purpose for searchingthe bag incident to the arrest of Ms. Wright.

The pictures in evidence show that the bag was far too small to conceal a person and therewas nothing in evidence to suggest that it posed some other threat to safety. The police were in control of the Cavalier and had Ms.Wright and the other accused parties prone on the floor of the parkade, so there was no reason for concern that any evidence contained inthe bag would be lost or destroyed. In short, I can see no reason why the police could not have obtained a search warrant prior tosearching the bag. Since the evidence in question was found in the bag, this also increases the seriousness of the Charter breach.

B. The Impact of the Breach on the Charter-Protected Interest of the Accused

[ 60 ] The second step is to examine the rights of the accused that the Charter protects and to determine the impact of the Charter violation on the accused’s rights. The more intrusive the breach on the accused’s rights, the more likely it is that society will see an individual’s Charter -protected rights as meaningless. This concern directs the courts to exclude evidence obtained through such intrusive means. [ 61 ] As noted above, the Supreme Court of Canada noted in Caslake that there may be a reduced expectation of privacy in respect of a vehicle. More recently, this was the finding of the Court in R. v.

Volk , 2010 SKCA 3 , 343 SaskR 133. However, the Court in R. v. Reddy , 2010 BCCA 11 , 251 CCC (3d) 151 noted that an accused could reasonably expect that he would not, in the absence of lawful authority, be directed to get out of his vehicle and have a jacket left in the vehicle searched. [ 62 ] In this case, Constable Sullivan searched not only the Cavalier, but the bag found in the trunk of the Cavalier. In my view, this breach had a significant impact on Ms. Wright’s rights under s. 8 of the Charter ; it was not an insignificant or trifling breach.

This is particularly so given that, as I stated above, there is nothing in the evidence to indicate that the police could not have obtained a search warrant prior to opening the bag. C. Society ’s Interest in Adjudication on the Merits [ 63 ] The Supreme Court in Grant at para. 79 summarized this last step as determining whether the effect of admitting the evidence on society’s confidence in the justice system would be better served by admission of the evidence or by its exclusion. This analysis requires the court to examine the quality of the evidence against the means by which the evidence was obtained.

It is in the public interest to have the case tried fairly on its merits. This may lead to a consideration of the reliability and relevance of the evidence. [ 64 ] The Supreme Court in Grant at para. 83 also took into account the importance of the evidence to the prosecution’s case. The Court said: “The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused.

Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.” [ 65 ] Once the court has made its assessment respecting the three sub-headings set out above from the Grant case, it then must take the step of determining, on balance, whether admitting the evidence would bring the administration of justice into disrepute. This is not a scientific exercise. In fact, the Supreme Court in Grant at para. 86 said “no over arching rule governs how the balance is to be struck.

Mathematical precision is obviously not possible.” [ 66 ] In several cases, the courts have been reluctant to find in favour of exclusion when the evidence in question is real evidence and is critical to the Crown’s case; see, for example, Blake and Crocker . In Crocker , the Court held at para. 107 that these factors, while not determinative, weigh heavily in favour of admission. [ 67 ] In this case, however, I conclude that the evidence must be excluded. The paucity of grounds for the arrest of Ms. Wright and for the subsequent search of the Cavalier and of the bag compel me to this conclusion.

On balance, I am of the view that the public interest is better served by exclusion of the evidence. In this, I am guided by the comments of the British Columbia Court of Appeal in Reddy at para. 107 : There can be no question that the public has an interest in the successful prosecution of persons who unlawfully carry loaded handguns. The dangers that such conduct creates cannot be overstated. However, the public also expects those engaged in law enforcement to respect the rights and freedoms we all enjoy by acting within the limits of their lawful authority. VI.

Conclusion [ 68 ] For these reasons, the application to exclude the cocaine found in the trunk of the Cavalier is granted.

Heard on the 27 th , 28 th and 29 th day of February and the 1 st , 2 nd and 3 rd day of March, 2012. Dated at the City of Calgary, Alberta this 18 th day of June, 2012. S. L. Hunt McDonald J.C.Q.B.A. Appearances: Scott Couper, Public Prosecution Service of Canada for the Crown David Chow, Roulston Chow for the Defendant, Kayla Elizabeth Wright Adriano Iovinelli, Van Harten Foster for the Defendant, Anthony Raymond Middlekoop Patrick Horner, Kensington Law Group for the Defendant, Roberto Stanley Olmedo-Rajo