R v. Jarvis, 2012 ABQB 602

Court of Queen ’ s Bench of Alberta Citation: R v. Jarvis, 2012 ABQB 602 Date: 20121002 Docket: 091298257Q1 Registry: Edmonton Between: Her Majesty the Queen in Right of Alberta Applicant - and - Douglas Lee Jarvis Accused ___________________________________________________ Reasons for Decision on Voir Dire of the Honourable Madam Justice M.T. Moreau _______________________________________________________ I.

Introduction [ 1 ] Douglas Lee Jarvis is charged with possession of cocaine for the purpose of trafficking, trafficking in cocaine, possession of 4-Methylene dioxyamphetamine (“MDMA”), and possession of cannabis marijuana arising out of a vehicle stop near Jasper, Alberta on October 20, 2009. He alleges that his ss. 8, 9 and 10 Charter rights were violated by police when he was detained following a highway traffic stop, a sniffer dog search having then been conducted of the rental vehicle he was driving, followed by a full interior search of the vehicle.

He also alleges that his informational and implementational rights under s. 10 of the Charter were violated. He seeks the exclusion of the evidence seized as a result of the searches. The Crown maintains that the sniffer dog deployment was based on the officer’s reasonable suspicion that Mr. Jarvis was in possession of controlled substances and that the interior vehicle search was

incidental to a lawful arrest. II. The evidence [ 2 ] Constable Kane was a general duty officer employed by the RCMP for just under four years in Canmore when he was transferred to the roving traffic unit in Edson in August 2009, approximately three months before his arrest of Mr. Jarvis. [ 3 ] He attended an RCMP observational awareness seminar entitled Operation Pipeline-Convoy in late 2008. The course teaches officers to look for indicators of things that may be outside the normal when dealing with motorists on highways.

He gave as examples of such indicators the excessive use of air fresheners, excessive nervousness compared to what the motorist is being stopped for, third party ownership of the vehicle, and the presence of food wrappers and drink containers within the vehicle consistent with couriers taking longer journeys without stopping. [ 4 ] Up to October 20, 2009, Constable Kane had been involved in thousands of traffic stops and over 150 drug seizures connected with motor vehicles stops.

However, he had stopped a motor vehicle and detained or arrested the driver for drug possession on less than six occasions. [ 5 ] He stated that this was his first detention involving the use of a sniffer dog since joining the Edson roving traffic unit. Prior to that, while working at the Canmore detachment, he had been the primary investigator in two highway vehicle searches involving the use of a sniffer dog. The dog indicated a negative result for drugs in both cases, however, in one of the cases, an arrest ensued for an unrelated offence and marijuana was ultimately recovered from within the vehicle.

He also assisted with another vehicle search on a highway in the south of the province in which a sniffer dog had been deployed, had given a positive indication for the presence of drugs, and drugs were found within the vehicle. [ 6 ] Constable Kane was aware in October 2009 that his obligation was the same whether detaining or arresting suspects as regards advising them of their Charter rights.

He also understood at the time that a reasonable suspicion meant more than a hunch and involved some concrete discernible facts giving rise to the suspicion, not just a “gut feeling” or whim. [ 7 ] He testified that on October 20, 2009 he and his partner, Constable Kuca, were in Jasper as part of a high volume vehicle stop program and were stopping a large number of vehicles within the national park. Constable Kuca had considerably more experience with highway policing and had also taken the Pipeline Convoy training. Constable Kane considered Constable Kuca to be his mentor at work.

He acknowledged that one of the goals of the roving traffic unit was to identify persons transporting contraband and that a dog was attached to the unit for that purpose. He acknowledged that he conducted traffic stops with the hope of finding something more serious than what the stop was for. [ 8 ] Constable Kane recalled being in a stationary position in an unmarked police vehicle on Highway 16 near the Jasper gates when he observed two vehicles proceed through the gates then accelerate eastbound up the hill.

He observed the vehicle being operated by the accused, Douglas Jarvis, tailgating the vehicle in front of it for about three to five seconds. He pursued in his unmarked vehicle and, when close enough to observe the license plate of the Jarvis vehicle, ran the plate on his computer. It was registered to Devon Transport of Nanaimo, British Columbia, with registration and insurance showing as valid to the end of the month but with a notice of an ICBC record change. This meant to him that the registration and insurance were no longer accurate.

He denied, however, that this was a piece of information that made him suspicious that Mr. Jarvis was in possession of controlled substances. He stated that it took a kilometer or two to catch up to the Jarvis vehicle. The highway was narrow and dipped and dived; he waited for a straight and wider area to safely pull the Jarvis vehicle over. [ 9 ] Constable Kane activated his vehicle’s overhead lights and Mr. Jarvis pulled over immediately. Constable Kane approached the passenger side. Mr. Jarvis was the only occupant. He observed a bag, a newspaper and an ICBC transfer of ownership document in the back seat.

While he stated that his usual practice is to advise the driver immediately why he is being stopped, on this occasion he was immediately confronted with a very nervous individual, holding a blackberry down between his legs and texting. His knees were bouncing and both legs were visibly shaking. Constable Kane felt that the driver’s visible nervousness was beyond that expected for a traffic stop relating to tailgating and beyond what he had observed in most traffic stops he had conducted in his entire career. He stated

that Mr. Jarvis’ nervousness made him nervous. [ 10 ] Having seen the computer entry of a record change and the ICBC form on the back seat, he asked Mr. Jarvis if he had bought the vehicle. Mr. Jarvis just looked at him and appeared confused by the question. Constable Kane stated that his mind was drawn to whether the vehicle was stolen given Mr. Jarvis’ level of nervousness. In response to his question, Mr. Jarvis told him it was a rental car. When he asked Mr.

Jarvis if he had rented the vehicle, he replied that he and a friend had each rented vehicles but had swapped them for his trip from Vernon to Edmonton as his friend’s rental contract had unlimited kilometers. Constable Kane asked Mr. Jarvis for the rental agreement. He produced his driver’s license and a pre-inspection report on the vehicle but no rental agreement. Constable Kane asked him if he was an authorized driver of the vehicle; he responded that he was. [ 11 ] Constable Kane observed that Mr. Jarvis’ face was flushed and his voice was “kind of shaky”.

There was some water build-up in the bottom of his eyes which he had learned through his training can be an indication of nervousness or a “fight or flight” response. Constable Kane acknowledged under cross-examination that Mr.

Jarvis’ nervousness could have been attributable to being unable to produce a valid rental agreement but he did not believe it would be to the level he had observed. [ 12 ] Constable Kane also noticed an energy drink container and an iced tea container within the vehicle along with a food wrapper which from his training could be indicative of long-distance travel without stopping, with the energy drink helping to fight fatigue. [ 13 ] Constable Kane had, on activating his lights to stop the Jarvis vehicle, also automatically activated a camera within the police vehicle that recorded visually what was occurring in front of the police vehicle at the scene.

He was aware at the time that the video camera was on. There was no audio being recorded as the vehicle that he was using had no microphone. He believed that the clock on the video camera was out by three or four minutes when he compared the times it displayed to the times he recorded in his notebook from his watch. [ 14 ] Constable Kane stated that on returning to his police vehicle after obtaining initial information from Mr. Jarvis, he saw a Tahoe vehicle being operated by Constable Kuca pass by in the westbound lane, as seen in the video recording.

He stated that at that point he radioed Constable Kuca to come back as he was concerned that something wasn’t right based on the visible nervousness of Mr. Jarvis. While he acknowledged testifying at the preliminary inquiry that he “flagged down” Constable Kuca, Constable Kane’s recollection at trial was that he radioed him. He denied defence counsel’s suggestion that he had already contacted Constable Kuca requesting the deployment of his sniffer dog before the Tahoe passed by his location. [ 15 ] Computer checks of Mr. Jarvis indicated that he held a valid driver’s license.

A CPIC check indicated a dated record from 1991 as a youth for theft under $1,000 for which Mr. Jarvis had received six months’ probation and from 1994 for possession of stolen property under $1,000 for which he had received a $350 dollar fine. Constable Kane acknowledged that the record had nothing to do with drugs or violence. [ 16 ] Constable Kane returned to the Jarvis vehicle a second time. He believed it was at this point that he asked Mr. Jarvis for any information he had so that he (Constable Kane) could contact the rental company. [ 17 ] Having also conducted a PIRS check for police intelligence on Mr.

Jarvis, he noted a 2003 file listing Douglas Jarvis as a “suspect” in relation to a “production” investigation that he believed from the entry would have involved cannabis. A couple of entries he believed to date from prior to the 2003 file listed Douglas Jarvis as “other” in relation to a CDSA investigation. He knew that meant that Douglas Jarvis was not the subject, complainant, or a suspect but had some link to a CDSA file. He acknowledged that the PIRS entries would not have referred to situations in which charges had been laid.

He also acknowledged that the PIRS information was dated and did not refer to any direct drug involvement. He stated that while the PIRS record was relevant it was less so than other factors in his initial investigation. [ 18 ] It was at about this time that Mr. Jarvis called Constable Kane over, indicating that he had the rental car company on the line. He passed his blackberry to Constable Kane who then spoke to a male who identified himself by name and as a representative of Budget Rental Cars, and provided a phone number. He stated that Mr.

Jarvis was authorized to have the vehicle and that he should “let him go”. Constable Kane stated that he was a little stunned by this call. He was also told by the male that a gentleman had come to his office, advised him that the vehicle had been stopped, and asked him to call Mr. Jarvis, all of this apparently within about four to five minutes

after the traffic stop. Constable Kane stated that the phone call increased his suspicions that Mr. Jarvis was in possession of a controlled substance and that this was the “last piece”. He acknowledged under cross-examination that from the time of the initial traffic stop, Mr. Jarvis could have been texting his friend to go to the Budget Rental car agency as he had observed him to be texting when he first approached the Jarvis vehicle. [ 19 ] Constable Kane believed that it was at that point he told Constable Kuca, who had arrived at his vehicle’s location a minute or two earlier, that he was going to detain Mr.

Jarvis. He could not recall how much information he gave to Constable Kuca or whether he instructed him to deploy the sniffer dog. [ 20 ] While he was aware that Const. Kuca had about 2 ½ more years of service and a lot of experience in investigations of this kind, he did not consult with him with respect to his grounds for detention before proceeding to detain Mr. Jarvis. [ 21 ] At 16:57 hours, Constable Kane asked Mr. Jarvis to exit the vehicle.

He told him he was detaining him for a controlled drugs and substances investigation, that he could not leave, that he had the right to contact a lawyer and the right not to answer any questions. He stated that his practice at a roadside stop was not to use the pre-printed Charter warning card he kept on hand with his notebook. Standing on the side of highway with the subject in front of him between two vehicles was not the safest environment to pull out and read the card.

He did not believe he needed to read from the card at the initial point of detention as he would not want to take his eyes off the suspect who, based on his experience, could suddenly become non-compliant. He maintained that he had officer safety concerns despite Constable Kuca having positioned himself about four feet away. He did not handcuff Mr. Jarvis when he removed him from his vehicle. He performed a pat-down search for officer safety but did not search Mr. Jarvis’ pockets as he did not believe he had the authority to do so. He stated that Mr.

Jarvis understood his rights but said he did not understand what was going on. He believed Mr. Jarvis told him he wanted to contact a lawyer. He was cooperative, sober and coherent. Constable Kane placed Mr. Jarvis in his police vehicle but could not recall if he handcuffed him before doing so. [ 22 ] Constable Kuca deployed the sniffer dog around the exterior of the Jarvis vehicle and advised Constable Kane that the dog had given a positive indication for controlled substances. With this piece of information, added to all the factors he had observed, Constable Kane made the decision to place Mr.

Jarvis under arrest at 16:59 hours for possession of controlled substances. From his pre- printed card, he read the s.10(

a) and 10(

b) Charter rights to Mr. Jarvis who was still seated in the back of the police vehicle. When he asked Mr. Jarvis if he wanted to call a lawyer, his response was “If I am being taken over to your shop, yeah”. He then read the caution at 17:01. Mr. Jarvis told him that he had forgotten there was a joint in the vehicle. Constable Kane asked him where it was located and he responded that it was in a plastic bag in his bag on the back seat. Constable Kane asked him if there was anything else and he responded "no". [ 23 ] Constable Kane searched the bag on the back seat and located a bud of marijuana.

He then proceeded to search the trunk. He noticed that the carpet was slightly pulled away on the driver's side. He pulled the carpet away and retrieved a sealed bag admitted by defence to contain 509 grams of cocaine. Also within the package were 23 tablets of MDMA. Constable Kane returned to his vehicle and at 17:05 advised Mr. Jarvis he was under arrest for possession of cocaine for the purposes of trafficking, and re-read his s.10 Charter rights from the same card along with the caution which Mr. Jarvis acknowledged he understood. [ 24 ] The officers continued to search the vehicle.

Constable Kane arranged for a tow truck then left the scene with Mr. Jarvis in the back of his police vehicle at 17:59, arriving at the Jasper detachment at 18:16. [ 25 ] Constable Kane stated that almost all the time at the scene following his arrest of Mr. Jarvis was taken up searching and taking photos of the vehicle interior incidental to arrest, and removing panels and carpeting in an attempt to locate a ringing sound he had heard coming from the interior of the vehicle. It did not occur to him to allow Mr.

Jarvis to use his own blackberry to make a phone call or the officer’s cell phone either within or outside the police vehicle given privacy concerns. He was also concerned about maintaining continuity of exhibits as primary investigator. He stated that he has been involved in other court cases and believed that as long as he was not interrogating the person arrested, these other steps were part of what he was entitled to do. Constable Kane did not believe he asked any further investigative questions of Mr.

Jarvis from the time he searched the vehicle to when he gave him access to a phone at the police detachment. [ 26 ] Constable Kane acknowledged that he was not involved in some portions of the vehicle search. It also did not occur to him to ask Constable Kuca to drive Jarvis to the detachment. Although two other officers had arrived on the scene, at least one of whom was operating a Tahoe, it did not cross his mind to ask either of them to transport Jarvis to the Jasper detachment while he and Constable Kuca completed the vehicle search.

He acknowledged under cross-examination that the decision to look for more drugs incidental to arrest was more important than Mr. Jarvis having access to a lawyer at that time, a period of approximately one hour from the time Mr.

Jarvis was placed in the back seat of his police vehicle. He was aware that the driving time to the Jasper detachment was 15 to 17 minutes. [ 27 ] After arriving at the Jasper detachment at 18:16, Constable Kane gave Mr. Jarvis access to a phone at 18:21. Mr. Jarvis asked to retrieve two phone numbers from his blackberry that had been seized by Constable Kane. He provided these at 18:31. He saw Mr. Jarvis speaking on the phone.

At 18:35, Jarvis completed his call and confirmed he had spoken to a lawyer. [ 28 ] Constable Kuca, also a member of the Edson roving traffic unit on October 20, 2009, had about six years’ experience as a police officer at the time and was a qualified dog handler. He was aware of the “reasonable suspicion" requirement for detention relating to possession of controlled substances and for the deployment of a sniffer dog. He had previously deployed his dog on four roadside investigations.

He stated that he was driving a Tahoe motor vehicle on Highway 16 when he passed by Constable Kane who was involved in a traffic stop. He recalled that Constable Kane radioed him to return. He did so, recording his arrival at 16:50 hours, exited his vehicle and approached Constable Kane's vehicle where he saw Constable Kane on his computer. [ 29 ] Constable Kuca stated that Constable Kane started to explain to him what he was doing then indicated that the driver was waving him over. He told him that the driver was exceptionally nervous and that he was driving a rental car rented by someone else.

He observed Constable Kane speaking to someone on the phone, whom Constable Kane explained to him was a person claiming to be a rental car agent. Right after the call, Constable Kane told him he was going to detain the driver on a controlled drug and substances investigation and that he should be prepared to deploy the sniffer dog. He saw Constable Kane detain the driver although he could not recall what was said to him. Constable Kuca deployed the sniffer dog at 16:57 who gave a positive indication for the presence of drugs in the trunk area of the Jarvis vehicle, which he then reported to Constable Kane.

After placing the dog back in his Tahoe, Constable Kuca searched the Jarvis vehicle. Both he and Constable Kane testified that there was room for one person in the back of the Tahoe along with the dog cage. [ 30 ] Under cross-examination, Constable Kuca stated that he was not concerned that Constable Kane had not read the s.10 Charter rights to the driver off his card after removing him from his vehicle. The driver had not been handcuffed nor had a pat-down search been conducted at that point and reading from a card would involve the officer having his head down.

While handcuffing was an option, his practice, one he believed was shared by Constable Kane, was not to put handcuffs on a suspect immediately upon exerting physical control over him at a traffic stop, as otherwise the situation could end up in a fight. He could not recall if Constable Kane handcuffed the driver before placing him in his police vehicle or at any time afterward. He recalled that two other officers arrived at the scene and that it was possible that all were involved in searching the vehicle with him, the driver of the vehicle remaining in the back seat of Constable Kane’s vehicle for about an hour.

He acknowledged that the driver could have been transported back to the Jasper detachment in one of the police vehicles at the scene but that this had not been discussed. III. Arguments of Counsel [ 31 ] Defence counsel submitted that the sniffer dog search was a warrantless search in violation of s.8 of the Charter as Constable Kane did not have a reasonable suspicion to justify the deployment of the dog. His experience was very limited as a primary investigator involved in roadside detentions using a sniffer dog. He did not consult with the more senior officer on hand before making the decision to detain Mr.

Jarvis. Counsel submitted that it was not Constable Kane’s intention from the outset to pull the Jarvis vehicle over for a traffic violation but rather to look for something more significant, as he could have pulled the vehicle over within 30 seconds of having observed the driving violation. Instead, he chose to gather information on the driver through the license plate check. The officer was aware from his previous residency in British Columbia, even before approaching the Jarvis vehicle, that it was a rental vehicle given that it was registered to Devon Transport, a company related to Budget Rental.

Defence counsel submitted that Mr. Jarvis’ nervousness could have related to the fact that he did not have the documents on hand to establish that he was authorized to drive the vehicle. [ 32 ] Defence counsel maintained that Constable Kuca did not happen upon the scene by coincidence but that he had already been contacted by Constable Kane to deploy the sniffer dog. Defence counsel submitted that Constable Kane placed excessive reliance on the dated results of the PIRS check that did not substantiate any actual prior drug involvement.

The presence of food and drink containers in the vehicle was almost neutral as this was consistent with someone driving a long distance and not carrying drugs. While the third party ownership of a rental vehicle was suspicious, it was more directed to whether Mr. Jarvis was an authorized driver. The officer completely discounted the information provided to him by phone from the individual purporting to represent Budge Rental Car, information he could easily have verified.

[ 33 ] Defence counsel submitted that on an objective assessment, all these factors gave rise to only a generalized suspicion about criminal activity and not to a reasonable suspicion that Mr. Jarvis was in possession of controlled substances. Accordingly, the investigative detention was unlawful and the sniffer dog search of the vehicle was unreasonable. The arrest of Mr. Jarvis based upon the positive result obtained from the unreasonable sniffer dog search was also unlawful as was the interior vehicle search conducted incidental to Mr. Jarvis’ arrest. [ 34 ] Defence counsel submitted that compounding the ss. 8 and 9 violations were: (

i) Constable Kane’s violation of his informational duties imposed by s.10(

b) of the Charter when he placed Mr. Jarvis under investigative detention, having provided a very abbreviated version of his s. 10(

b) rights; and (ii) Constable Kane’s violation of his implementational duties imposed by s.10(

b) following his arrest of Mr. Jarvis, who had twice requested access to counsel and was detained at the scene for approximately one hour before he was transported to the Jasper detachment. [ 35 ] Defence counsel submitted that there was no real issue of officer safety given the proximity of Constable Kuca to assist if necessary. The officer did not attach importance to Mr. Jarvis’ Charter rights when he detained him as he planned on releasing him if he did not find drugs. He did not desist in questioning Mr. Jarvis after he volunteered the information about there being a joint in the vehicle.

The suspension of his right to consult with counsel for at least an hour at the scene was not justifiable given the number of police vehicles and officers available to return him to the detachment and the fact that the delay primarily involved searching a vehicle in which drugs had already been found. [ 36 ] Defence counsel submitted that given multiple and serious Charter violations, the evidence obtained from the unlawful searches should be excluded under s. 24(2) . [ 37 ] Crown counsel submitted that Constable Kane had a sufficient subjective and objective basis for his reasonable suspicion that there were controlled substances in the Jarvis vehicle to justify his investigative detention of Mr.

Jarvis and the deployment of the sniffer dog. The positive indication for the presence of drugs elevated his reasonable suspicion to reasonable grounds to arrest Mr. Jarvis. The interior vehicle search was incidental to the arrest of Mr. Jarvis and was therefore lawful in order to locate and preserve evidence. The informational and implementational duties of the officer under s.10(

b) were not violated. Even if they were, the violations were minor, Mr. Jarvis having received a full rendition of his Charter rights when arrested approximately two minutes after his detention, and the evidence having been found independently of any s. 10(

b) violations. The evidence was real and reliable and the charges were serious. Based on a balancing of the three lines of inquiry under s. 24(2), the evidence should not be excluded. [ 38 ] Crown counsel submitted that assessing on a piecemeal basis each factor considered by Constable Kane in formulating his reasonable suspicion detracts from a proper analysis of what the officer was considering and processing in a brief window of time. The Court should also examine the facts through the lens of the officer’s training and experience.

In this case, Constable Kane had special training and some experience relating to assessing what might appear to be innocent factors being indicative of drug possession including: Mr. Jarvis’ extreme nervousness; the location of the vehicle on a major thoroughfare from British Columbia to Alberta having regard to the officer’s training regarding the flow of drugs on major highways between the two provinces; the vehicle being a rental car with no documents being produced that would prove that Mr.

Jarvis was an authorized driver; the presence of the food wrapper and drink containers within the vehicle; and, to a lesser extent, the computer data search results. [ 39 ] Crown counsel submitted that while incomplete, the important elements of the right to counsel were conveyed to Mr. Jarvis immediately upon his detention and there were legitimate officer safety concerns.

The information about there being marijuana in the vehicle was offered spontaneously and Constable Kane’s questioning as to its location and whether there was anything else was more of a knee-jerk response than a deliberate elicitation of information. While the delay of one hour in leaving the scene was of some concern, the officer explained the delay and the unusual factor of trying to track down where in the vehicle he had heard a cell phone ringing. Crown counsel also noted that none of the officers at the scene were regular Jasper-based officers and it was some distance to the detachment.

Most importantly, Constable Kane held off from any investigative questioning of Mr. Jarvis after his arrest. All of these factors diminished the seriousness of any violation of Mr. Jarvis’ s.10(

b) rights.

IV. Findings [ 40 ] Having reviewed the evidence and the arguments of counsel, I make the following findings: 1. Constable Kane observed a highway traffic violation, albeit of very short duration, namely, the Jarvis vehicle following the vehicle ahead too closely. This is supported to some extent by the video evidence showing a vehicle initially positioned a short distance ahead of the Jarvis vehicle in the eastbound lane. 2. Constable Kane’s purpose in conducting the traffic stop was to discuss the traffic violation with Mr. Jarvis.

He did not delay stopping the Jarvis vehicle; he performed a routine license plate check to confirm registered ownership while waiting for a safe spot on the highway to pull over the Jarvis vehicle. 3. Constable Kane accurately recorded all times in his notes from his watch which was not synchronized to the clock on his police vehicle’s video camera. 4. When initially checking the license plate, it did not immediately come to Constable Kane’s mind that Devon Transport was related to Budget Rental Cars. 5.

Constable Kane radioed Constable Kuca for the first time after he saw Constable Kuca’s Tahoe vehicle pass by the location of his vehicle stop on the highway. His testimony in that regard is consistent with Constable Kuca’s testimony as to how he came to stop at the scene. The video recording in that regard is also consistent with the officers’ testimony. It shows that after looking up in the westbound direction in which the Tahoe was proceeding, Constable Kane immediately left the passenger side of the Jarvis vehicle and used his shoulder radio, continuing to look in the direction of the Tahoe vehicle. 6.

Constable Kane had not made a decision on detention until after he spoke on the phone to the male purporting to be from Budget Rental Car in Vernon. It was at that point that he told Constable Kuca to deploy the sniffer dog. 7. I do not accept that Constable Kane was concerned with officer safety when he removed Mr. Jarvis from the vehicle, Constable Kuca having already arrived and having taken up a position near theirs, and Constable Kane not being able to recall if he placed Mr. Jarvis in handcuffs at any point after his initial detention. 8. Constable Kane gave no thought while at the scene to facilitating Mr.

Jarvis’ access to counsel, despite Mr. Jarvis having requested access to counsel both upon his detention and his arrest by Constable Kane. V. Discussion [ 41 ] The sections of the Charter relevant to this voir dire state: 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Reasonable suspicion [42] A warrantless search is presumed to be unreasonable. To be considered reasonable, a search must be authorized by law, thelaw itself must be reasonable, and the search must be carried out in a reasonable manner: R v.

Collins (S.C.C.). Once ithas been shown that the search was without warrant, the Crown has the burden of showing that the search was, on a balance ofprobabilities, reasonable: R v. Caslake (1997), (SCC), 121 C.C.C. (3d) 97 (S.C.C.), at para. 10. [43] A majority of the Supreme Court of Canada in R v. Kang-Brown 2008 SCC 18 concluded that the police may use sniffer dogsto investigate crime and that a “sniff” by a dog constitutes a s.8 search. Sniff searches are permitted based on the standard of “reasonablesuspicion”.

In determining whether the officer in deploying a sniffer dog has met that standard, the following factors are considered: (

a) whether the officer subjectively believed that there were reasonable grounds to suspect the individual was in possession of a controlled substance; and (

b) whether there were sufficient objective grounds to reasonably suspect the individual was in possession of a controlled substance. [44] If the suspicion of the officer is not reasonable, then the search will not be authorized by law. The standard of “reasonablesuspicion” is less demanding than “reasonable and probable grounds”.

[45] “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable”suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. Asincerely held subjective belief is insufficient; it must be supported by factual elements which can be adduced in evidence and permit anindependent judicial assessment: Kang-Brown, at para. 75. There is no comprehensive set of evolved criteria that control whether thestandard of reasonable suspicion has been met and each case turns on its own facts: R v.

MacKenzie 2011 SKCA 64, at para. 2. [46] Defence counsel conceded in argument that Constable Kane held the subjective belief that there were reasonable grounds tosuspect Mr. Jarvis was in possession of a controlled substance. I agree and turn to whether there were sufficient objective grounds for hissubjective belief. Because sniff searches are conducted without prior judicial authorization, the after-the-fact judicial scrutiny of thegrounds for the alleged “reasonable suspicion” must be rigorous: Kang-Brown, at para. 26.

As noted in MacKenzie, at para. 25, thefactual circumstances must be examined with an appreciation of the officer’s training and experience; see also R v. Rajaratnam 2006ABCA 333, at para. 25. As noted in MacKenzie, at para. 28, the courts must look carefully at what is held out to be “experience” or“training”. Constable Kane had extra training in detecting markers of criminal activity on highways, considerable experience in highwaytraffic stops resulting in drug seizures, but little experience as a primary investigator involved in sniffer dog searches on highways. [47] Binnie J. observed in R v.

Nolet (2010), 2010 SCC 24 , 256 C.C.C. (3d) 1(S.C.C.) at paras. 33 and 37 that it is notobjectionable for a police officer who stops a vehicle for traffic purposes to be interested in the possibility of contraband. As noted in Rv. Turpin 2012 SKCA 50 , at para. 52: The Charter protects against arbitrary detentions and unreasonable searches. So long as these limits on their authority is respected, the Charter does not prevent the police from using specialized or specifically-trained traffic units. [48] Constable Kane based his suspicion on Mr.

Jarvis’ extreme nervousness given the circumstances; the vehicle being rented andMr. Jarvis not being the renter and not having any documents to prove he was an authorized driver; the presence of drink containers anda food wrapper within the vehicle indicative of a long-distance trip without stopping; Mr. Jarvis’ indication that he was driving fromVernon to Edmonton, British Columbia being a known drug source; to a lesser extent Mr.

Jarvis’ criminal record albeit dated andunrelated to drugs and the police intelligence that potentially tied him to CDSA investigations; and his telephone conversation with theunknown male indicating that Mr. Jarvis was authorized to drive the vehicle and to “let him go”. [49] Constable Kane was entitled to take into account what he perceived to be excessive nervousness. However, he needed toassess the elevated level of nervousness not only in the context of a traffic stop, the purpose of which he had not disclosed to Mr. Jarviswhen he first noticed his nervousness.

His initial questioning was solely directed to Mr. Jarvis’ ownership of the vehicle and hisauthorization to drive it. [50] The nervousness was not coupled with other indicators of drug possession such as a masking scent or any illicit odour withinthe vehicle. The presence of one fast food wrapper and two drink containers, one an energy drink, are consistent with any highwaytraveler’s habits. While Constable Kane was entitled by virtue of his training to consider where Mr.

Jarvis was driving from, BritishColumbia being a source location for the movement of drugs into Alberta, Highway 16 is also a major thoroughfare for travelers whoare not in possession of drugs. [51] The fact that the vehicle was a rental vehicle and Mr. Jarvis was not the renter was a legitimate source of objective concernconsidering the officer’s training as to the popularity of rental vehicles among drug couriers. While I accept that Constable Kane wouldhave been surprised by the conversation he had on Mr.

Jarvis’ phone with the male identifying himself as a representative of BudgetRental Car, as well as the timing of the call just moments after the traffic stop (given the indication received by the caller that the renterwas with him), this too must be placed in the context of his earlier discussion with Mr. Jarvis. During his second interaction with Mr.Jarvis, Constable Kane requested information about how he could go about contacting Budget Rental Car. Thus, it would not have beenparticularly surprising for Mr. Jarvis, using his blackberry, to have taken steps himself to verify that he was an authorized driver.

There isno evidence to suggest that by this point in the investigation, Constable Kane had advised Mr. Jarvis of any concerns related to the trafficstop other than those relating to whether he was an authorized driver of the rental vehicle. The comment by the male on the phone that hewas an authorized driver and to “let him go” must be considered in the context of Mr. Jarvis’ own information as to why he was beingdetained on the highway.

[52] While the time-frame was suspicious in terms of how quickly the caller was able to contact the officer after the vehicle stop,the call did flow directly from the officer’s inquiries of Mr. Jarvis. Finally, Constable Kane had been supplied with information and hadthe means at hand to verify the caller’s identity but elected to proceed immediately with the detention. [53] Constable Jarvis testified that before speaking to the male on the phone, he had not yet made a decision to detain Jarvis.

Thediscussion with the male might have heightened his suspicions about whether Jarvis was an authorized driver but added little objectivelyto his suspicion that Jarvis was in possession of controlled substances. [54] Mr. Jarvis’ very dated and unrelated criminal record of theft and possession of stolen property would have had some minorpotential relevance to Constable Kane’s concerns as to whether Jarvis was an authorized driver but could add little objectively to hissuspicion that Jarvis was in possession of controlled substances.

The PIRS searches, as Constable Kane acknowledged, were also datedand did not reveal any direct involvement with controlled substances, except for the “suspect” entry relating to production that did notresult in any charges. The police intelligence data indicated nothing about the sources for the dated information. [55] I find that while there are some indicators or markers that rendered the situation suspicious, they did not bring the suspicionsof Constable Kane to the required “reasonable”standard relating to possession of drugs. Accordingly, the detention of Mr.

Jarvis was notbased on “reasonable grounds to suspect” and the sniffer dog search was not based on “reasonable suspicion”. The arrest of Mr. Jarvisthat flowed from the sniffer dog search was accordingly unlawful as was the interior search of the vehicle which yielded the cocaine,MDMA and the marijuana bud. Right to Counsel [56] The right to counsel arises immediately upon detention, whether or not the detention is solely for investigative purposes: R v.Suberu 2009 SCC 33 , 2009 S.C.C. 33. It is clear that the police are not required to use formulaic language or to recite thewording of the Charter.

The key is that detained persons be informed of every aspect of the right to counsel in a manner comprehensibleto them: R v. Bartle, [1994] S.C.C. 173. A mandatory component of this advice is the availability of free legal services, including accessto Legal Aid and duty counsel: R v. Brydges, (SCC), [1990] 1 S.C.R. 190. [57] The Charter rights given to Mr. Jarvis when he was placed under investigative detention did not include any reference toaccess to counsel without delay or to the existence and availability of Legal Aid and duty counsel.

Constable Kane cited officer safety ashis reason for providing the abbreviated advice. I have found that there were no such legitimate concerns given that Constable Kuca wasclose at hand. Constable Kane did not read to Mr. Jarvis his s. 10(

b) Charter rights when he secured him in the back of the police vehicleuntil after the sniffer dog was deployed and he placed Mr. Jarvis under arrest. Accordingly, there was a violation of the informationalcomponent of his duties under s. 10(

b) when he detained Mr. Jarvis for investigative purposes. [58] R v. Luong 2000 ABCA 301 , 2000 Carswell Alta 1238 (C.A.) sets out in succinct form at para. 12 the informationaland implementation duties of police officers imposed by s. 10(b). As for their implementational duties, Berger J.A. stated: 4. The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise his right to counsel. 5. The first implementational duty is “to provide the detainee with a reasonable opportunity to exercise the right (except in urgent or dangerous circumstances). R v.

Bartle (1994), (SCC), 92 C.C.C. (3d) 289 (S.C.C.) at 301. 6. The second implementational duty is “to refrain from eliciting

evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger). R v. Bartle, supra, at 301. 7. A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonable opportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counsel was provided with a reasonable opportunity to exercise the right. 8. If the trial judge concludes that the first implementational duty was breached, an infringement is made out. 9.

If the trial judge is persuaded that the first implementational duty has been satisfied, only then will the trial judge consider whether the detainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden of establishing that he was reasonably diligent in the exercise of his rights. R v. Smith (1989) (SCC), 50 C.C.C. (3d) 308 (S.C.C.) at 315-16 and 323. [59] Constable Kane’s implementational duties arose on Mr. Jarvis expressing to him both on his detention and his arrest his desireto exercise his right to counsel.

I accept that providing access to counsel on a public highway is problematic as privacy issues are difficultto address; advice based on guarded communication might well be no advice at all: R v. Nelson 2010 ABCA 349, at para. 20. WhileConstable Kane as lead investigator could be justifiably desirous of remaining at the scene to deal with continuity of exhibits and tosecure the vehicle, there were other officers available, with vehicles, to transport Mr. Jarvis to the detachment within15 to 20 minutes’driving time from the scene. While Mr.

Jarvis spontaneously offered to Constable Kane on his arrest for possession of a controlledsubstance that he had a joint in the vehicle, Constable Kane did question him about its location and whether there was anything else. ThisI am satisfied was a more technical violation of his s. 10(

b) rights, given the spontaneous utterance of Mr. Jarvis and that the elicitedinformation was not used as a further basis for deploying the sniffer dog. [60] Accordingly, I conclude that Mr. Jarvis’ s.10(

b) informational rights on his detention and implementational rights on hisarrest were violated. Admission or exclusion of the evidence under s. 24(2) [61] As noted in R v. Grant 2009 SCR 32, at para. 68: The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of,and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s.24(2) does not focus on immediate reaction to the individual case.

Rather, it looks to whether the overall repute of the justice system,viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonableperson, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence

would bring the administration of justice into disrepute. [62] Grant, at para. 71, sets out three lines of inquiry to be assessed and balanced in determining the effect of admitting theevidence on society’s confidence in the justice system: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct); (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little); and (3) society’s interest in the adjudication of the case on its merits. [63] As to the first line of inquiry, the more severe or deliberate the state conduct that led to the Charter violation, the greater theneed for the courts to dissociate themselves from that conduct by excluding evidence linked to that conduct.

Admission of evidencethrough inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law, while a wilful orreckless regard of Charter rights will inevitably have a negative effect: Grant, paras. 72, 74. “Good faith” on the part of police will alsoreduce the need for the court to dissociate itself from the police conduct. Ignorance of Charter standards should be neither rewarded norignored: para. 75.

The court can also consider whether there were extenuating circumstances. [64] The discovery of the cocaine and other drugs was temporally and causally connected to the ss. 8 and 9 breaches. The breacheswere not wilful or flagrant in that the officer subjectively believed he had sufficient grounds to detain Mr. Jarvis and deploy the snifferdog, the traffic stop was not merely a ruse, and there were some indicators of suspicious activity based on the officer’s training albeit notsuch as to ground a reasonable suspicion.

I find the breaches to be on the less serious end of the scale. [65] Constable Kane did not initially advise Mr. Jarvis of the reason for the traffic stop, namely, the tailgating. Instead hequestioned him regarding his ownership of the vehicle. He provided abbreviated and incomplete s. 10(

b) advice when he detained himfor investigative purposes. There were no pressing officer safety concerns with Constable Kuca observing in the immediate vicinity.Constable Kane did not, however, ignore Mr. Jarvis’ s. 10(

b) rights entirely; within two minutes, he provided him with a full recitation ofhis s.10(

b) Charter rights when he arrested him (after the sniff search) for possession of controlled substances for the purposes oftrafficking and again six minutes later when he re-arrested him (after the vehicle search) for possession of controlled substances for thepurpose of trafficking. [66] Also of importance to the first line of inquiry, there is no suggestion in the evidence that Constable Kane relied on Mr. Jarvis’spontaneous statement as to the presence of a joint in the vehicle in deciding to deploy the sniffer dog. That decision had already beenmade immediately after he had completed the call from the unknown male. Accordingly, I find the breach of the informationalcomponent of s. 10(

b) to be on the less serious end of the scale. [67] As for the implementation aspect of the officer’s s. 10(

b) duties, Constable Kane’s conduct in prioritizing a full interiorvehicle search over providing Mr. Jarvis with access to counsel within a reasonable time is more serious. There were no exigent orextenuating circumstances that would justify his suspension of that right for one hour, there being vehicles and officers available totransport Mr. Jarvis to the detachment only 15-20 minutes drive away. That it didn’t occur to either him or his partner Constable Kucathat they had implementational duties does not excuse what they knew or ought to have known. [68] However, the situation is unlike that in R v. Nguyen 2012 ABQB 199 where the accused was “aggressively

questioned” (para. 121) before he was given access to counsel. The situation is also unlike that in R v. Harrison 2009 SCC 34 , where the original vehicle stop was not for legitimate highway purposes and there was misleading testimony given by the officer at trial. Nor are the s. 10 violations linked to the finding of evidence in the sense that the denial of counsel did not trigger a violation of s. 8 or s. 9.

In my view, the first line of inquiry would only slightly favour exclusion. [ 69 ] As to the second line of inquiry, it calls for an evaluation of the extent to which the breach actually undermined the Charter- protected interests of the accused: Grant , para. 76. The more serious the incursion on the accused’s interests, such as the right to silence, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

Similarly with unreasonable searches; an intrusion into an area involving a high expectation of privacy or that demeans an individual’s dignity is more serious than one that does not: para. 78. A dwelling house attracts a higher expectation of privacy than an automobile: para. 113. I am of the view that Mr. Jarvis, as operator of a vehicle, albeit one rented by another individual, had a reasonable but reduced expectation of privacy in the vehicle.

McLachlin C.J. observed in Harrison , at para. 31 : ... being stopped and subjected to a search by the police without justification impacts on the motorist’s rightful expectation of liberty and privacy in a way that is much more than trivial.

As Iacobucci J. observed in Mann , the relatively non-intrusive nature of the detention and search “must be weighed against the absence of any reasonable basis for justification.” A person in the appellant’s position has every expectation of being left alone –subject, as already noted, to valid highway traffic stops. [ 70 ] The external search of the vehicle by the sniffer dog was brief and minimally intrusive: Kang-Brown at para. 25 .

In my view, this line of inquiry would only slightly favour exclusion. [ 71 ] The third line of inquiry asks whether the truth-seeking function of the trial process would be better served by the admission of the evidence or by its exclusion, reflecting society’s collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to law. The reliability of the evidence is an important factor as is the importance of the evidence to the Crown’s case: Grant , at paras. 79-80, 83.

While the seriousness of the offence can be factored into this third line of inquiry, the long- term repute of the justice system is the focus of s. 24(2): para. 84. [ 72 ] In his concurring reasons Kang-Brown pointed out, at para. 100 , that neither the sniff search nor the arrest in that case could be upheld because it was known with the benefit of hindsight that contraband was eventually discovered after the arrest. [ 73 ] As in Kang-Brown , Binnie J. the evidence here is non-conscriptive and reliable. The offences of possession for the purposes of trafficking and trafficking in cocaine are very serious.

Having said this, the penal stakes for the accused are high. Overall this line of inquiry favours the admission of the evidence. [ 74 ] Balancing the factors relevant to the admissibility of the evidence, while as defence counsel argued, there are multiple Charter violations, I have considered those relating to the detention and searches of the rental vehicle were not of the more serious type; they were not egregious or willful. Although the lengthy suspension of Mr. Jarvis’ right to counsel was more serious, it was not used to elicit evidence from him following his arrest. The s. 10(

b) violations were not causally connected to the search for and seizure of the controlled substances. Considering and weighing all of the circumstances within the balancing exercise mandated by Grant , I find that the long-term interests of justice favour the admission of the evidence in this case. VI. Conclusion [ 75 ] For the reasons given, the application to exclude the evidence of the cocaine, MDMA and marijuana recovered from the police search of the Jarvis vehicle is dismissed. Heard on the 24 th , 25 th , and 26 th days of September 2012.

Dated at the City of Edmonton, Alberta this 2 nd day of October, 2012. M.T. Moreau J.C.Q.B.A. Appearances: Kevin Short for the Crown Howard K. Poon for the Accused