R v Nguyen, 2012 ABQB 752

Court of Queen ’ s Bench of Alberta Citation: R v Nguyen, 2012 ABQB 752 Date: 20121211 Docket: 091076430Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Duy Phuong Nguyen Accused _______________________________________________________ Voir Dire Ruling of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Duy Phuong Nguyen is charged with possession of cocaine for the purpose of trafficking. Two packages of cocaine, each weighing about 1.13 kg, were found in the rim of the spare tire located underneath the vehicle Mr.

Nguyen was driving when he was stopped about 50 km west of Edmonton, at about 2:00 p.m. on September 1, 2009. Mr. Nguyen was driving east towards Edmonton on Highway 16. [ 2 ] Mr. Nguyen alleges that his Charter s. 9 right to be free of arbitrary detention, his Charter s. 10(

a) right to be informed promptly of the reasons for arrest or detention, and his Charter s. 8 right to be secure from unreasonable search and seizure were violated and that the evidence obtained by police as a result of their stopping him and searching his vehicle should be excluded from the trial.

[ 3 ] The main issue to be resolved is as to the credibility of the officer who stopped Mr. Nguyen, Sergeant Topham. Sergeant Topham testified:

a) that, as he followed Mr. Nguyen ’ s vehicle, he observed a driving pattern – weaving within the lane – which justified requiring Mr. Nguyen to stop, and

b) that, after stopping Mr. Nguyen ’ s vehicle, when he stood at the open passenger side front window of the vehicle, he smelled the odour of marihuana emanating from the vehicle, and saw flakes of marihuana in the centre console area of the vehicle. Sergeant Topham testified that it was exclusively the driving pattern which caused him to stop Mr. Nguyen and that it was the sight and smell of marihuana that gave him grounds to arrest Mr. Nguyen and conduct the search of the vehicle during which the cocaine was found. [ 4 ] Mr. Wolch, counsel for Mr.

Nguyen, submits that several features of Sergeant Topham ’ s evidence combine to make it impossible for the Court to accept and rely on the evidence. If the evidence is not accepted, then, Mr. Wolch submits, the stop and the arrest were in breach of Mr. Nguyen ’ s right to be free from arbitrary detention, and the search was in breach of Mr. Nguyen ’ s right to be secure from unreasonable search and seizure. Sergeant Topham ’ s Evidence Following Mr.

Nguyen ’ s Vehicle Observation of Weaving Within Lane [ 5 ] Sergeant Topham testified that on September 1, 2009 at about 2:00 p.m. he was working traffic duties about 30 km west of Stony Plain, on Highway 16. He was parked on the side of the highway monitoring eastbound traffic. He was looking for a variety of infractions: “ no seatbelt, equipment violations, administrative type things, license plates, validation tags ” . He was in the process of changing locations to a position closer to Stony Plain when the black Toyota driven by Mr.

Nguyen went by him. [ 6 ] Sergeant Topham drove onto the highway and followed Mr. Nguyen. Initially, he testified, he had no intention of stopping Mr. Nguyen. He followed Mr. Nguyen for about 2 km. While he was following Mr. Nguyen, he testified, he noticed Mr. Nguyen ’ s vehicle weave within its lane. He observed 4 “ weavings ” , that is, a movement of the vehicle to the right or left and a correction and another movement to the right or left and a correction. The movements were not so extreme that Mr.

Nguyen ’ s vehicle left its lane. [ 7 ] Sergeant Topham testified: And so as a result of that driving behaviour I activated the emergency equipment on my vehicle and stopped it to ensure – or to determine whether or not the driver was sober, whether he was tired, or whether some other activity was going on within the vehicle that caused the vehicle to be weaving the way that it was. The officer ’ s concern, he testified, was that the driver might be impaired, talking on the phone, changing radio stations – that he was “ doing something there taking away from the task of driving ” .

He noted that Highway 16 is very busy with a large amount of commercial truck traffic, “ so that type of driving pattern behaviour may pose a significant risk, and it is certainly worthy of stopping and speaking to the driver to see what is going on to determine whether or not something is going on that poses a risk to the other motorists. And that was the intent of that traffic stop. ” Search of License Plate Number before Stop

Police Stop of Vehicle 12 Hours Earlier [ 8 ] Before Sergeant Topham activated his emergency equipment to stop Mr. Nguyen, he searched Mr. Nguyen ’ s license plate number using the computer in his police vehicle.

He testified as to the reason for doing so: It ’ s standard practice that before you stop the vehicle, if you can, you run the license plate of the vehicle to determine anything you can about the registered owner of the vehicle, whether or not the vehicle is currently registered, whether or not the registered owner has a history of criminal activity, whether or not they have outstanding warrants, whether or not they have a criminal record, whether or not they are flagged as police haters, whether or not they are flagged as being prohibited from firearms or some other type of activity, whether or not they have maintenance enforcement issues . . .

You run the license plate to see who it is you are dealing with, and then it puts you in the best position in the event there are officer safety concerns that you have the appropriate amount of backup if required. Or, at the very least, that you approach the vehicle knowing who it is you ’ re dealing with based on – on some data from databases. [ 9 ] Initially Sergeant Topham testified that there was nothing in the information obtained in the search that was of concern to him.

He learned that the vehicle was registered to a person in the City of Edmonton, and though he could not recall the name of the registered owner when he testified, he recalled that it was a Vietnamese name. [ 10 ] However, after testifying as to what occurred when he stopped Mr. Nguyen, Sergeant Topham added: And I should ’ ve mentioned that I also knew as a result of running that license plate prior to being stopped that that vehicle had been - the license plate had been checked in Hinton about 12 hours before I stopped it.

He testified that the computer search result (which he obtained before he initiated the stop of Mr. Nguyen ’ s vehicle) told him that the vehicle had been stopped by an officer stationed in Hinton, while it was travelling in a westerly direction, that is toward British Columbia, at 2:00 a.m. the same day - about 12 hours earlier. He testified that the search result also told him that the Hinton officer had reported that the driver had been uncooperative and had declined consent to a search of the vehicle. Stop of Mr.

Nguyen ’ s Vehicle “ Straddling ” the Fog Line [ 11 ] Sergeant Topham testified that after he engaged his emergency equipment the vehicle driven by Mr. Nguyen slowed and came to a stop.

He testified: I did make a note when he stopped that he was straddling the fog line, and based on other information this was of concern to me because if I had to do business from the driver ’ s side – and I don ’ t - but if I had to do business from the driver ’ s side I would ’ ve had to stand in the lane, in what would be the slow lane of traffic. [ 12 ] Later, in cross-examination, he explained the concern further: It means that if I have to deal with him from the passenger – or the driver ’ s side, it puts me in the lane of traffic, which would cause me to also have to deal with Mr.

Nguyen through the driver ’ s window and I would also have to be paying attention to the traffic coming and going on Highway 16. So I couldn ’ t focus my attention just on one thing, I would have to have getting struck by a car in my mind. He testified that parking in such a manner is a tactic. He believed that Mr. Nguyen had parked in that manner on purpose and that his suspicions were highly aroused by Mr. Nguyen ’ s manner of parking.

Smell of Fresh Marihuana in Mr. Nguyen ’ s Vehicle Sighting of Flakes of Marihuana in Mr. Nguyen ’ s Vehicle [ 13 ] Sergeant Topham testified that after Mr. Nguyen ’ s vehicle had stopped, and after he had made his note that it had stopped straddling the fog line, he walked up to the passenger side window which was open. Mr. Nguyen was the only occupant of the vehicle. Sergeant Topham testified: And I immediately noted when the window was down an odour of raw marihuana emanating from within the vehicle. And while I was talking to Mr.

Nguyen in reference to documents and driver ’ s license and that, I made an observation that along the centre console area were green type flakes, remnants of a substance I believed to be marihuana. And based on the smell of raw marihuana emanating from the vehicle and what I believed to be marihuana in front of me, I was confident that there was in fact marihuana in plain view on the centre console of the vehicle. [ 14 ] He made a mental note of his observations but said nothing about them to Mr. Nguyen. He asked Mr. Nguyen to produce the vehicle documents and his driver ’ s license and he did so.

It was a British Columbia driver ’ s license. He could neither see nor smell anything to suggest that Mr. Nguyen had consumed alcohol. There was no sign of impairment. Mr. Nguyen was polite and cooperative. Explanation for Weaving Decision to Arrest Mr. Nguyen for Possession of Marihuana Continuation of “ Weaving Offence ” Investigation [ 15 ] Sergeant Topham asked Mr. Nguyen where he was coming from and where he was going to. He said he had been in British Columbia for 2 days visiting family. He said the vehicle belonged to a friend. They also discussed the weaving that Sergeant Topham had observed.

He testified: When we spoke about the weaving in the lane he indicated that he had been changing the stations on the satellite radio and that was likely why he had been weaving in the lane. [ 16 ] At the end of the conversation, Sergeant Topham took the documents Mr. Nguyen had produced to the police vehicle. [ 17 ] Before he returned to the police vehicle, Sergeant Topham had determined that Mr. Nguyen would be arrested for possession of marihuana. He testified that there were, at that point, 2 investigations in progress - one for the “ weaving offence ” and the second for the possession of marihuana.

He said: Based on the totality of the circumstances, what I had in front of me, he was going to be arrested. And all that was left for me now was to go back, find out who he was, ensure his driver ’ s license – because he had produced a British Columbia driver ’ s license – was valid, to deal with the traffic stop, because that investigation was also still ongoing, because I wanted to ensure that his license was valid. Search of Mr. Nguyen ’ s Driver ’ s License Discovery of Mr. Nguyen ’ s Criminal Record [ 18 ] In the police vehicle, Sergeant Topham made database inquiries concerning Mr.

Nguyen ’ s driver ’ s license. The results were unclear because, as Sergeant Topham later learned, he had misspelled Mr. Nguyen ’ s middle name when making the search. He also searched Mr. Nguyen ’ s name on CPIC, a database which contains information as to criminal records and warrants for arrest. The search indicated some results for persons whose particulars were nearly, but not exactly, the same as Mr. Nguyen ’ s. Sergeant Topham testified:

And, so, not realizing that mistake at the time, I knew I would have to go back up and speak again with Mr. Nguyen about the driver ’ s license information, but I also knew, as a result of that, that several hits came back from the criminal database indicating a person matching Mr. Nguyen ’ s description and birth date was also present, and there was also another name, same last name, same first name, different middle name, same year of birth, same month of birth, different day of birth, that information also popped up.

And so wanting to apply that information to the indicia I already had in regards to the arrest for the marihuana, I wanted to be 100 percent sure that what I had in front of me in relation to criminal activity was in fact Mr. Nguyen, on top of ensuring that I had the right driver ’ s license information. And so I went back to Mr. Nguyen ’ s vehicle . . . [ 19 ] Sergeant Topham testified that from the criminal activity database he learned that Mr. Nguyen had only recently been released from gaol where he had been serving a sentence of 30 months for possession of cocaine for the purpose of trafficking.

He also had other drug offenses on his criminal record, including a conviction for trafficking. There was also an indication that the Edmonton City Police had issued a caution in relation to Mr. Nguyen for violent activity. There was also an indication that he was subject to a firearms prohibition. Sergeant Topham Solicits Mr. Nguyen ’ s Assistance Mr. Nguyen Placed in Back of Police Vehicle [ 20 ] Sergeant Topham testified that he returned to Mr. Nguyen who was still in his vehicle. He asked Mr. Nguyen to exit the vehicle. He asked Mr.

Nguyen to come back to the police car because he, Sergeant Topham, was having trouble finding the driver ’ s license information. Mr. Nguyen cooperated. Sergeant Topham opened the back door of the police vehicle. Before Mr. Nguyen got in, Sergeant Topham gave him, “ a quick cursory search. [I] just patted his pockets. I made sure there was no bulky items or anything, that he wasn ’ t carrying a knife . . . or had anything of concern to me in his pockets ” . [ 21 ] Sergeant Topham returned to the driver ’ s license database. He asked Mr. Nguyen to spell his names.

At that point Sergeant Topham realized the error he had made on the original search. With corrected information, the search indicated the license was valid. [ 22 ] Sergeant Topham acknowledged that his purpose in having Mr. Nguyen come to his car was twofold: first to assist with the driver ’ s license search, and second to facilitate arresting Mr. Nguyen. He said: I try not to ever arrest somebody while they are in, around, or near a vehicle.

Calmer heads might not prevail, he might try to take off on me, he may try and use the vehicle as a weapon, he may pull the vehicle out into oncoming traffic and cause a collision. So, if I can, I try to have those people get out of the vehicle and, ideally, in my vehicle when I arrest them. Traffic Offence Investigation Abandoned [ 23 ] Sergeant Topham testified that it was at that point that the investigation relating to the weaving driving pattern ended.

He said: I have him in the back of my vehicle, the driver ’ s license information gets sorted out, I ’ m satisfied based on our conversation and what I ’ ve gotten back that he has a valid driver ’ s license. The reason for the weaving is – has been satisfactorily explained away.

The satellite radio thing, there was nothing – the way he spoke to me or how he stood when he got out of the vehicle – that indicated his sobriety was in question, and so I believed at that point in time that the reason for the weaving in the lane was the changing of the satellite radio, that he wasn ’ t impaired, and that nothing else was going on that momentarily caused the lapse in driver attention. All that being done now then I directed my attention to the drug offense. He did not advise Mr. Nguyen that the traffic investigation was over. Arrest for Possession of Marihuana

[ 24 ] While Mr. Nguyen was in the back of the police vehicle, Sergeant Topham advised him that he had smelled and seen marihuana in the vehicle. Mr. Nguyen adamantly denied that there was marihuana in the vehicle. Sergeant Topham advised him he was under arrest for possession of a controlled substance. Reading from a card, Sergeant Topham advised Mr. Nguyen of his right to counsel and cautioned him about making a statement. Mr. Nguyen confirmed he understood his rights and indicated he did not wish to speak to a lawyer.

Search of Vehicle Incident to Arrest [ 25 ] Shortly thereafter, another officer, Constable Gaal, arrived on scene and assisted Sergeant Topham in searching Mr. Nguyen ’ s vehicle. Sergeant Topham testified that he conducted that search “ incident to arrest ” for purposes of preservation of evidence, discovery of further evidence to support the offense for which Mr. Nguyen had been arrested . . . and to a much lesser degree, officer safety. [ 26 ] Constable Gaal testified that in the search he had little or nothing to do with the interior of the vehicle so far as he could recall.

It was he who first observed the packages of cocaine in the place they had been hidden in the spare tire mounted on the bottom of the vehicle. Constable Gaal was not asked whether he perceived the odour of marihuana in the vehicle or saw flakes of marihuana on the centre console where Sergeant Topham testified he saw them. [ 27 ] Sergeant Topham seized some of the marihuana flakes he found in the vehicle.

He testified that he seized them from both the area around the cigarette lighter (which, as will be explained further below, was not visible from his original vantage point at the passenger window) and from the area to the left of the gear shift. His written report to the prosecutor indicated he seized them from around the lighter and did not mention the area to the left of the gear shift. The seized flakes were analysed and confirmed to be marihuana. Photographs [ 28 ] Sergeant Topham took several photographs in the course of his search of the vehicle.

These were identified and put in evidence by Sergeant Topham after he gave the previously described evidence. Among the photographs were: a. A photo taken of Mr. Nguyen ’ s parked vehicle from behind. The vehicle shows the vehicle positioned entirely to the right of the “ fog line ” . Its driver ’ s side tires are at least 6 inches to the right of the fog line. Its passenger side tires appear to be about the same distance from the edge of the pavement. It is clearly not “ straddling ” the fog line. The front of the police car parked behind it is in the picture.

It is parked much further to the right of the fog line than Mr. Nguyen ’ s car. The passenger side of the police vehicle is not pictured, but it must be well off the pavement and onto the grass to the right of the emergency stopping lane. b. Four closeup photos of the inside of the compartment under the centre console arm rest. Flake material is visible in all of these closeups. This area was not visible to Sergeant Topham when he was at the passenger side window when he first spoke to Mr. Nguyen because the cover, the armrest itself, was down.

In order to see the inside of the compartment it was necessary to raise up the arm rest. c. A closeup photo of the inside of the cigarette lighter socket located on the driver ’ s side of the centre console, and in which, Sergeant Topham testified, flakes of marihuana were visible. This area was also not visible to Sergeant Topham when he was at the passenger side window because the lid for the ashtray and lighter compartment was open and blocked the view of the area where the flakes were positioned. d. A photo taken from approximately the point from which Sergeant Topham conducted his first conversation with Mr.

Nguyen – the passenger side window. This photo shows what Sergeant Topham would have seen as he looked in the window. The centre console area is visible. The centre armrest (which is the lid of the compartment where the previously mentioned closeup pictures show the flakes of marihuana) is closed or down. That compartment under the armrest is not visible. The lid of the ashtray and lighter area is open and its open lid shields the ashtray and lighter socket area so that the inside of the lighter socket is not visible from the camera ’ s point of view. The visible portion of the centre console area is clean.

No flakes of anything are visible anywhere. Sergeant Topham acknowledged in his testimony that the photograph “ doesn ’ t depict very well the marihuana flakes that were visible to the left hand side of the gear shift ” . He said, “ Admittedly I should ’ ve taken a better series of photographs for there. ” In fact, it is not a case of the photograph not depicting the flakes very well. It is a case of the photograph not depicting any marihuana flakes whatsoever in the area

he described or in any other area visible in the photograph. Discovery of Cocaine [ 29 ] In the search Constable Gaal and Sergeant Topham found the cocaine in the spare tire which was positioned on the bottom rear of the vehicle. Cross-Examination of Sergeant Topham [ 30 ] Several features of Sergeant Topham ’ s testimony in cross-examination are important to the assessment of his credibility. “ Straddling ” the Fog Line [ 31 ] First, when examined in chief before he was shown the photographs, Sergeant Topham testified that Mr. Nguyen had stopped his vehicle “ straddling ” the fog line.

However, in cross-examination, after he had been shown the photographs described above, he said the vehicle had been parked “ too close to the fog line ” . As previously noted he stated that this was a feature of the incident which aroused his suspicion. He believed Mr. Nguyen had deliberately positioned his vehicle so as to make it more difficult for Sergeant Topham to conduct his investigation. His evidence on this point, that is, his statement that the vehicle straddled the fog line, prior to his being shown the photograph, was significantly exaggerated.

Purpose of Traffic Stop [ 32 ] Second, in examination in chief, Sergeant Topham testified as to his extensive experience with drug investigations. In his lengthy career as a police officer, he has been involved in thousands of drug investigations. He has seen marihuana flakes thousands of times. He has seized marihuana hundreds of times. He has seized 40 to 50 kg of cocaine in small amounts over the course of hundreds of cocaine seizures. He has been sent for training in the United States in relation to the behaviours and other indicia of criminal activity.

He has taken, and has been an instructor of, the Pipeline Convoy Criminal Interdiction Techniques Awareness Course. He believes he has a very good working knowledge of drug couriers and drug culture. [ 33 ] All of his drug investigation experience has been gained while working on traffic patrol.

The bulk of the drug seizures he has done have been on Highway 16 west of Edmonton and on 3 other highways in that area. [ 34 ] As to Highway 16, he testified: Based on information gathered from various other intelligence units, Highway Number 16 is a major conduit of contraband coming from British Columbia into the City of Edmonton. It ’ s the quickest, most direct route. Cash is usually – it is to the point where you can actually decide on any given day what it is you want to do. If you want to work drugs as a result of traffic stops, then you work eastbound traffic.

If you want to try and find cash, then you work westbound traffic. [ 35 ] Clearly, in his examination in chief, Sergeant Topham conveyed to the Court that his goal in patrolling Highway 16 west of Edmonton is to shut down, or at least seriously disrupt, the flow of illicit drugs on that highway.

From his evidence in chief, I would infer and understand that the method of doing so is to stop vehicles for traffic violations, to acquire grounds to arrest the drivers of the vehicles through observations made during contact with the driver, and to search the stopped vehicle incident to the arrest. [ 36 ] The operation so described is entirely legal and indeed laudable, so long as there truly is a legal reason to stop the vehicle and so long as true grounds for arrest are discovered.

[ 37 ] However, having described, in examination in chief, his extensive experience and having given the Court a basis for inferring that the true significance of the traffic offence is that it provides a legal basis to stop the vehicle, as a first step of a drug seizure, Sergeant Topham, in the cross-examination exchange quoted below, maintained that this was not so either generally or in Mr. Nguyen ’ s case specifically. Q. Now, you were parked on the highway or beside the highway watching traffic go by? A. Yes. Q. And you were looking for cars to stop? A. Yes. Q.

And based on your experience, you are looking for cars that might contain narcotics? A. I couldn ’ t tell you what that looks like. Q. Sorry? A. I don ’ t know what that looks like. Q. Perhaps I didn ’ t make myself clear. You were interested in drugs. A. No. Q. You were interested in highway traffic? A. Yes. Q. But to a much lesser degree? A. That ’ s my job. Highway traffic. Q. Yes. But you want the highway traffic as an excuse to look for drugs. A. No. Q. Well, you are trying to check for drugs, aren ’ t you, generally? A. No. Q. Okay. But you are highly experienced and trained in drug work. A. Yes. Q.

You have been doing it for quite a while. A. Yes. Q. And looking for it you have to have some reason to get to the car.

A. If that ’ s your intent, but, I mean, that ’ s not what I do, I stop people – Q. You are there just for – A. breaking the law. Q. – highway traffic? A. Yes. Q. You want to make sure the laws are obeyed? A. Yes. Q. And if the laws are obeyed you are happy. A. Very. Yes. Q. Because I am going to suggest to you that the reason you are out there is primarily to find an excuse to stop and search a car. A. Absolutely not. Q. Isn ’ t that what the program is all about? A. No, it ’ s not.

Information Regarding Earlier Police Stop Had No Role in Decision to Stop [ 38 ] Third, Sergeant Topham testified that after he observed the weaving within the lane, but prior to engaging his emergency equipment to stop Mr. Nguyen, he searched the license plate number of the Nguyen vehicle in the database, determined who the registered owner of the vehicle was, and learned that the vehicle had been stopped near Hinton 12 hours earlier when it was travelling west. Sergeant Topham testified that before commencing to stop Mr.

Nguyen ’ s car, he knew that the officer who had stopped it 12 hours earlier had entered a note on the database indicating that the driver had been uncooperative and refused a consent search. Mr. Wolch presented a copy of what was likely on the computer note to Sergeant Topham in cross-examination. The note actually probably said, “ Uncooperative during search ” . It said nothing about the search having been a consent search or having been refused. [ 39 ] Mr.

Wolch put it to Sergeant Topham that this information, that the driver of the vehicle had been going in a westerly direction just 12 hours earlier and had been uncooperative during a search, contributed to Sergeant Topham ’ s decision to stop the vehicle. Sergeant Topham insisted it was the weaving within the lane and nothing else that caused him to stop Mr. Nguyen. Here is the exchange: Q. And that ’ s [the weaving] what you are going to stop him for? A. That ’ s what I did stop him for. Q. Of course. Nothing to do with the fact that he was uncooperative in a different search. A. None whatsoever. Q.

Or somebody was uncooperative. Not a thing to do with it?

A. None. Q. That ’ s your evidence? A. It is. Q. Sure. You were not influenced. But you did check and know that before you stopped him? A. I did. . . . Q. Let me ask you specifically, did what you learned by computer have any bearing on your decision to stop the car? A. No. Q. It had zero bearing? A. None. Q. So, the fact that this car had been going in the opposite direction some hours earlier and the driver had been uncooperative had no bearing on you stopping the car? A. None. It was stopped for weaving. That ’ s it. Q. I understand that, but it had no bearing? A. No. Q. It didn ’ t influence you at all? A.

No. Q. Well, I am going to suggest to you that the fact that whoever was in this car a few hours earlier refused a search or messed up a consent search of whatever it might be would cause you to have all the more reason to effect a search, wouldn ’ t it? A. No. Inaccurate In Chief Suggestion that Mr. Nguyen Acknowledged Weaving When “ Weaving Offence ” Investigation Actually Abandoned [ 40 ] Fourth, as previously noted, Sergeant Topham testified in examination in chief, that in his initial conversation with Mr. Nguyen, it was Mr. Nguyen who provided the explanation for the weaving Sergeant Topham had observed.

Sergeant Topham testified, in chief: When we spoke about the weaving in the lane he indicated that he had been changing the stations on the satellite radio and that was likely why he had been weaving in the lane.

[ 41 ] This testimony strongly implied that Mr. Nguyen had acknowledged that he had been weaving and had provided Sergeant Topham with an explanation. [ 42 ] The following exchange occurred in cross-examination: Mr. Wolch: The issue about the satellite radio was one that you suggested. You said, “ Well, were you playing with the radio? ” A. Yes. Q. You said it. A. Yeah. I recall saying that. Q. Yeah. He said, “ Yeah, could be. ” A. Yeah. Q. So, it was your idea. At that point you could ’ ve let him go? A. For . . .? Q. Well, this weaving business. You weren ’ t going to give him a ticket for that? A.

No. [ 43 ] If, as he testified on cross-examination, it was Sergeant Topham who first suggested an explanation for weaving, the impression he gave in his examination in chief that Mr. Nguyen had to some extent acknowledged weaving was inaccurate. [ 44 ] Further, Sergeant Topham acknowledged in cross-examination that upon the explanation for weaving having been discovered, he knew he would not be giving a ticket for that. This is inconsistent with his testimony in chief where he indicated that the investigation into the “ weaving offence ” was not abandoned until much later, when Mr.

Nguyen was seated in the back seat of the police vehicle. Malfunctioning Video Equipment [ 45 ] Fifth, Sergeant Topham testified in cross-examination that the police vehicle he was driving that day was equipped with video recording equipment capable of recording the weaving which he testified he observed. However, the video equipment in Sergeant Topham ’ s vehicle was not working that day. He testified this is a common problem. He was aware that the video equipment was not working that morning.

He acknowledged that this malfunction resulted in evidence which would confirm his testimony regarding the weaving not being available. Conclusion [ 46 ] As previously noted, the question is whether I accept Sergeant Topham ’ s evidence that he observed Mr. Nguyen ’ s vehicle weaving in its lane, and that he saw marihuana flakes in Mr. Nguyen ’ s vehicle and smelled the odour of marihuana emanating from it. [ 47 ] For the following reasons I have concluded that I cannot.

1. The photograph taken from the vantage point Sergeant Topham had when he stood at the open passenger side window of Mr. Nguyen ’ s vehicle does not depict marihuana flakes in the location Sergeant Topham testified he saw them. The area where he testified he saw marihuana flakes is clean. No flakes are visible anywhere in the photograph. The areas where Sergeant Topham later found flakes are not visible. 2. Sergeant Topham is an extremely experienced officer who has been involved in countless drug investigations in the course of traffic stops. After he arrested Mr.

Nguyen, he took close up photographs which clearly show marihuana flakes in locations other than the location in which he testified he saw marihuana flakes before he arrested Mr. Nguyen. Yet he did not take a close up photograph of the latter location. 3. Sergeant Topham stated in his written report that he seized marihuana flakes from a location which had not been visible to him when he stood at the passenger window. He did not report that he seized marihuana from the location in which he testified he saw marihuana flakes when he stood at the passenger window.

In his testimony he said he seized marihuana flakes from both places. 4. Sergeant Topham testified that he smelled the odour of marihuana emanating from the vehicle. Another officer attended at the scene. That officer did not recall having any involvement with the interior of Mr. Nguyen ’ s vehicle. Despite Sergeant Topham ’ s extensive experience he did not utilize an obvious means of confirming his olfactory perception. 5. Sergeant Topham testified that Mr.

Nguyen stopped his vehicle “ straddling the fog line ” and that he took particular note of the position of the parked vehicle because it made him suspicious that Mr. Nguyen was trying to make his investigation more difficult to conduct. However, the photographs which he did not see during his testimony until after he had testified as to the “ straddling ” clearly show that the vehicle was not straddling the fog line. On a detail which Sergeant Topham considered important and of which he had made a particular mental note, his evidence, until corrected by the photograph, was significantly exaggerated. 6.

Sergeant Topham ’ s testimony in chief created an impression that Mr. Nguyen had explained why he had weaved in his lane, and accordingly had acknowledged that he had weaved. In cross-examination however this was revealed to be an inaccurate impression. It was Sergeant Topham who provided Mr. Nguyen the explanation. Mr. Nguyen did not therefore acknowledge weaving by explaining it. 7. Several aspects of Sergeant Topham ’ s evidence indicate that he was being disingenuous in his testimony. In particular: a.

His evidence in chief as to when he abandoned the investigation of the “ weaving offence ” was inconsistent with his evidence in cross-examination on that point. In chief he maintained that investigation continued up to the moment he advised Mr. Nguyen that he was under arrest for possession of marihuana. In cross he acknowledged that he abandoned the “ weaving offence ” investigation when he had a satisfactory explanation for the weaving. b.

His testimony that 2 weaves within the lane (2 movements in one direction and 2 corrections) over the course of 2 km, which were explained satisfactorily immediately upon his seeing the satellite radio mounted in the vehicle, were the sole and exclusive reason for stopping Mr. Nguyen ’ s vehicle, while the information he obtained before commencing the stop, that the vehicle had been stopped by police 12 hours earlier, going toward British Columbia, and that the driver had been uncooperative as to a search had no role whatsoever in his decision to stop the vehicle.

That it played no role is, in my view, highly unlikely. c. His insistence that the reason for stopping Mr. Nguyen had nothing to do with the possibility that he might be transporting illegal drugs – that the only reason was the weaving within the lane, though the interdiction of drug transportation on the Highway 16 corridor is clearly a central focus of his assigned duties.

These features of Sergeant Topham ’ s testimony indicate that in several instances he tailored his evidence so that it contained what he perceived, rightly or wrongly, the law would require it to contain. [ 48 ] I am for these reasons unable to accept or rely on Sergeant Topham ’ s evidence that he observed the weaving driving

behaviour or that he saw and smelled marihuana in Mr. Nguyen’s vehicle. [49] I am unable to conclude that Sergeant Topham’s stated reason for stopping Mr. Nguyen’s vehicle was true. I find thereforethat Mr. Nguyen was arbitrarily detained. His Charter s. 9 right was violated. [50] I am also unable to accept Sergeant Topham’s evidence that he saw and smelled marihuana in Mr. Nguyen’s vehicle beforehe arrested him for possession of marihuana. It has not been shown that Sergeant Topham had grounds to arrest Mr. Nguyen forpossession of marihuana. The search incidental to the arrest was therefore in breach of Mr.

Nguyen’s Charter s. 8 right. [51] I find it unnecessary for me to determine whether or not the third Charter breach alleged by Mr. Nguyen, a breach of hisCharter s. 10(

a) right to be informed promptly of the reasons for arrest or detention, has been established. Section 24(2) [52] Having found that Mr.

Nguyen’s Charter s. 8 and s. 9 rights were violated, I turn to the question of whether the evidencediscovered in the search, the cocaine, should be excluded from the trial pursuant to Charter s. 24(2): Where in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rightsor freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to the circumstances, theadmission of it in the proceedings would bring the administration of justice into disrepute. [53] In R v Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, the Supreme Court of Canada ruled that the application of s. 24(2)involves the balancing of three factors: 1) the seriousness of the Charter-infringing state conduct; 2) the impact of the breach on the Charter-protected interests of the accused; and 3) society’s interest in the adjudication of the case on its merits. [54] In R v Harrison, 2009 SCC 34 , [2009] 2 S.C.R. 494, the Supreme Court balanced those factors in a case similar tothis case, and concluded that cocaine found in a vehicle which had been stopped arbitrarily and searched without grounds should beexcluded.

Seriousness of the Charter-Infringing State Conduct [55] In addressing the first factor in Harrison, McLachlin C.J.C., writing for the majority of the Court, asked whether the Charterbreach involved misconduct from which the Court should be concerned to dissociate itself. She said: (para. 22) This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known)that their conduct was not Charter-compliant.

On the other hand, where the breach was of a merely technical nature or the result of anunderstandable mistake, dissociation is much less of a concern.

[56] In the case before me, I have rejected Sergeant Topham’s evidence that he observed a “weaving” driving pattern. I haverejected his evidence that he saw and smelled marihuana in the vehicle. If he did not see weaving and did not see or smell marihuana, thetraffic stop, the arrest and the search of the vehicle were all knowingly made without legal grounds. The Charter breaches weredeliberate. They involve misconduct from which the Court should dissociate itself. [57] In Harrison, McLachlin, C.J.C. also addressed the significance of the police officer giving misleading testimony.

She said:(para. 26) I note that the trial judge found the officer’s in-court testimony to be misleading. While not part of the Charter breach itself, this isproperly a factor to be considered as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself fromsuch behaviour. As Cronk J.A., [in the Ontario Court of Appeal in Harrison] observed, “the integrity of the judicial system and thetruth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter.

Few actionsmore directly undermine both of these goals than misleading testimony in court from persons in authority” [(2008) 2008 ONCA 85, 89 O.R. (3d) 161 at para. 160]. [58] McLachlin, C.J.C. concluded: (para. 27) In sum, the conduct of the police that led to the Charter breaches in this case represented a blatant disregard for Charter rights. Thisdisregard for Charter rights was aggravated by the officer’s misleading testimony at trial. The police conduct was serious, and notlightly to be condoned. In my view these words accurately describe the situation in the case before me.

The Impact of the Breach on the Charter-Protected Interests of the Accused [59] With respect to the second factor, McLachlin C.J.C. noted competing considerations. She observed first that a short durationpolice stop of a vehicle is, in some respect, not a severe intrusion on liberty and privacy. The expectation of privacy in a vehicle isrelatively low.

The activity in which the citizen is engaged, driving, is a highly regulated activity and a police stop pertaining to highwaysafety is not unexpected or unreasonable. [60] On the other hand, a stop without justification impacts “liberty and privacy in a way that is much more than trivial”.

McLachlin C.J.C. said, “A person in the appellant’s position has every expectation of being left alone – subject, as already noted, tovalid highway traffic stops.” [61] On the second factor she concluded: (para. 32) I conclude that the deprivation of liberty and privacy represented by the unconstitutional detention and search was therefore a significant,although not egregious, intrusion on the appellant’s Charter-protected interests. Society’s Interest in an Adjudication on the Merits [62] With respect to the third factor, in Harrison the application was to exclude 35 kg of cocaine.

McLachlin C.J.C. observed thatthe evidence was highly reliable and virtually conclusive of guilt. The offense charged was serious and the public interest in adetermination on the merits was high. She also observed on the other hand, that there is “a vital public interest in a justice system that isbeyond reproach, particularly where the penal stakes for the accused are high”. [63] The same considerations apply in this case, though perhaps not as strongly as in Harrison. It is not clear in the case at barthat the evidence sought to be excluded is virtually conclusive of guilt.

I understand there to be serious issues of knowledge and controlthat will need to be addressed if the trial continues.

Balancing the Factors [ 64 ] In Harrison McLachlin C.J.C. observed that her conclusions with respect to the first 2 factors favoured exclusion, the conclusion on the first factor more strongly than the conclusion on the second. Her conclusion with respect to the third factor weighed in favour of inclusion. She concluded: (para. 39, para. 42) The police misconduct was serious; indeed, the trial judge found that it represented a “ brazen and flagrant ” disregard of the Charter.

To appear to condone wilful and flagrant Charter breaches that constituted a significant incursion on the appellant ’ s rights does not enhance the long-term repute of the administration of justice; on the contrary, it undermines it. In this case, the seriousness of the offence and the reliability of the evidence, while important, do not outweigh the factors pointing to exclusion. . . . In

summary, the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards. That being the case, the admission of the cocaine into evidence would bring the administration of justice into disrepute. It should have been excluded. [ 65 ] These words precisely express the conclusion I have reached in the case at bar. Ruling [ 66 ] I exclude the evidence gathered by police in the search of the vehicle Mr. Nguyen was driving. Heard on the 6 th day of November 2012. Dated at the City of Edmonton, Alberta this 10 th day of December 2012. Brian R. Burrows J.C.Q.B.A. Appearances: James F. Johnson for the Crown Hershel Wolch, Q.C.

for the Accused