R v Malapan, 2013 ABQB 706

Court of Queen ’ s Bench of Alberta Citation: R v Malapan, 2013 ABQB 706 Date: 20131205 Docket: 100660703Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Yuthasas Bun Malapan Accused _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice P.M.

Clark _________________________________________ ______________ [ 1 ] Yuthasas Bun Malapan was arrested on the 2nd day of June 2010 and was charged with possession of a controlled substance, crack cocaine, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act .

On the following day, June 3, 2010, he was charged that he did unlawfully have in his possession property (or proceeds of property) Canadian currency of a value not exceeding $5,000 knowing that all (or part) of the property or proceeds of the property was obtained or derived, directly or indirectly, by the commission in Canada of an offence punishable by Indictment contrary to

Section 355 (

b) of the Criminal Code of Canada . Mr. Malapan entered pleas of not guilty to both charges. [ 2 ] Following his arrest, Mr. Malapan was held in custody for four hours without being permitted to contact or obtain counsel. He was eventually able to contact counsel, Ms. Deborah Hatch, who represented Mr. Malapan at the trial before me on October 29 and October 30, 2012. Appearing as counsel for the Federal Crown was Ms. Monique Dion.

[3] At the outset of the trial, Ms. Dion advised the Court that a Notice of Motion – Charter notice – had been filed by Ms. Hatchon behalf of Mr. Malapan. The Charter Notice alleges that Mr. Malapan’s rights under s. 8 and 9 of the Canadian Charter of Rights andFreedoms were infringed and that he was entitled to a remedy pursuant to s. 24(2) of the Charter. The grounds alleged were that thepolice conducted searches purportedly incident to Mr. Malapan’s arrest and that the arrest was conducted in the absence of reasonableand probable grounds and in breach of Mr.

Malapan’s rights pursuant to s. 8 to be free from unreasonable search and seizure; that thearrest and seizure were conducted in breach of s. 495(1)(

a) and the arrest breached Mr. Malapan’s rights to be free from arbitrarydetention pursuant to s. 9 of the Charter and, in consequence thereof, any evidence obtained subsequent to the arrest should be excludedpursuant to s. 24(2) of the Charter. [4] Ms. Hatch is relying on R v Storrey, (SCC); R v Debot, [1989] 2 SCR 114 (SCC); R v Simpson, (ONCA); R v Mann, 2004 SCC 52 ; R v Arabi, 2007 ABQB 303 ; i, 2009 ABCA 75 ; i, 2010ABQB 607; R v Golub, (ONCA).

The Charter notice expressly reserves the right to raise additional Charter argumentsthat are disclosed by the evidence advanced at trial and not reasonably disclosed by the disclosure materials which are not the subject ofthe within notice: R v Baker, [2004 AJ No. 1335 (Alta Prov Ct) and R v Dwernychuk (1992), 1992 ABCA 316 , 77 CCC (3d)385 (Alta CA). [5] Ms. Dion requested that the trial commence with a voir dire hearing of the Crown evidence up to the date of arrest and shethen advised the Court that that would be all of the evidence to be advanced on behalf of the Crown. [6] Ms. Hatch, on behalf of Mr.

Malapan, made admissions as to the nature of the exhibits to be placed before the Court and thatthe exhibits are the drugs that were seized at the time of the arrest of Mr. Malapan. There was agreement between counsel with respect tothe continuity of the exhibits. The exhibits that were presented to the Court were the exhibits that were seized incidental to the arrest ofMr. Malapan. [7] The first witness for the Crown was Detective Blayne Eliuk, a detective with the Edmonton Police Service who, at the timeof Mr.

Malapan’s arrest, on June 2, 2010, had been a member of the Edmonton Police Service for a period of fourteen years. [8] Detective Eliuk testified that at the time of the arrest he was the team leader in charge of a special projects team that includedhimself and five constables.

The role of the special projects team was to “pro-actively investigate and target criminal activity in crimes ofdrugs and disorder throughout the City of Edmonton”. [9] On June 2, the team was conducting covert surveillance of an apartment house municipally described as 11115 - 130 Street inthe City of Edmonton in relation to a Controlled Drugs and Substances Act (“CDSA”) investigation.

In cross-examination, DetectiveEliuk testified that on the evening of June 1, 2010, the day prior, the city police attended before a Justice of the Peace with anInformation seeking a search warrant with respect to the property under surveillance. The Justice of the Peace refused to grant the searchwarrant on the basis that the application was based simply on “reasonable suspicion”.

Without the warrant, the special projects team wasrestricted to surveillance activities and members of the team were in various locations in the vicinity of the targeted apartment house. [10] All of the members of the surveillance team were equipped to make observations through a secure radio channel to which allmembers of the team were party. One specific member of the team, Constable Rob Naykowski, was assigned as a surveillance note-taker, and his role was to collect the specific observations that various members of the team might make from time to time.

In histestimony before the Court, Constable Naykowski explained that his role was specifically to detail the surveillance observations of thevarious members of the team as those observations were made. He had a laptop on which he typed out the observations of individualmembers of the team as the observations were made. When a member of the team would make an observation over the secure channel,the person making the observation would identify themselves and note where they were and what they saw. Constable Naykowski wouldtype the observations verbatim.

At the end of the day, his notes were compiled and each person was required to sign off with respect tohis or her specific observations. [11] If, at the end of the day, a discrepancy was noted, it was discussed amongst the members of the team and, if appropriate,would then be corrected. Each member of the team was required to sign off with respect to the observations at the end of each dayincluding the correct observations. The types of observations that were made were “anything that had to do with the target of thesurveillance operation”.

The observations were recorded and ultimately made available to other members of the team. [12] This matter came to trial approximately two years after the arrest of Mr. Malapan. This is a very significant period of time andone would expect that in the normal course, members of the team might be expected to have to review their personal notes to permitthem to testify before the Court. In this case, the members of the surveillance team simply had to review the Naykowski notes that weretyped as observations were made and subsequently reviewed and corrected for consistency.

None of the officers were required to maketheir own notes or to resort to their own notes during the course for examination or cross-examination. [13] I have no doubt that the testimony before the Court reflected what was in the Naykowski notes.

As I listened to the testimonyof the various officers involved in the surveillance operation, I was concerned about the evidence that I was hearing was not necessarilyan accurate portrayal of the events as they actually unfolded on the evening in question. [14] Detective Eliuk in his testimony conceded that the surveillance that was initially conducted on the apartment building at 1115- 130 Street was in no way associated with Mr. Malapan and that on the evening of the arrest, Detective Eliuk was not aware of anyassociation that Mr.

Malapan might have had with respect to the building or the occupant of the building that was the target of the initialsurveillance operation. [15] Unfortunately for Mr. Malapan, he became the target of the surveillance operation as a result of a very brief interaction that hehad with the individual who was the subject of the original surveillance operation. The evidence before the Court is that a person drivinga white truck past the building under surveillance engaged in a meeting of very short duration with the person that was the object of thesurveillance operation.

Constable Sauve, a member of the surveillance team, reported that he had observed what he had suspected was ahand-to-hand transaction occurring between the driver of the white truck and the person whom the police believed was involved in drugtrafficking and was the intended target of the initial surveillance operation. It was Constable Sauve’s observation that the target of the

surveillance operation got into the white truck for about three seconds and, according to Constable Sauve, “the hands of these two individuals were in close proximity inside the truck”.

As a result of this three-second observation, a member of the surveillance team “suspected a hand-to-hand drug operation” – a transaction that was suspected but apparently not actually observed because it took place inside the truck. [ 16 ] On the basis of the suspected hand-to-hand transaction inside the white truck, Detective Eliuk decided to re-focus the surveillance activities on the white truck and the driver of the truck – the unidentified Asian male. [ 17 ] As the truck drove away from the vicinity of the apartment building that was under surveillance, one of the members of the team was able to obtain the license plate number.

One of the officers involved in the surveillance was able to “run the license plate” and it came back as a 1995 Chevy “S” truck white in colour registered to a female who was born in 1987 and was obviously not the person operating the truck. There was no further evidence with respect to the owner of the truck or whether there was any association between the registered owner of the truck and the person driving the truck. [ 18 ] Detective Eliuk testified that the driver of the truck “was only another unidentified male at that point in time.

I conducted some further computer checks along the way during the surveillance and was able to identify a male, via a mug shot in our police computer, and I was able to send a picture of the possibility of this male to the other members of this team and it was verified that it was Mr. Malapan after observing the picture”. It is the Detective’s evidence that he was able to pull up a picture on a laptop that he had in his vehicle at the time – a laptop that was hooked up to the internal police service database. Detective Eliuk did not explain how he managed to identify Mr.

Malapan at a time when he had not yet had an opportunity personally to view “the Asian male”. He apparently was satisfied that Mr. Malapan was the appropriate target and he took a picture of the photograph on his Blackberry and then distributed Mr. Malapan’s picture and a physical description to the other members of the surveillance team. Other members of the surveillance team were able to view the driver of the truck as the surveillance was continued and they positively identified Mr. Malapan as the driver of the white truck on the basis of the photo that had been transmitted by Detective Eliuk.

It is noteworthy that the picture that Detective Eliuk transmitted to each of the members of the team was not available for viewing in court. Detective Eliuk and all the members of the team had removed the picture they had received from their Blackberrys and the picture that was alleged to be Mr. Malapan was simply not available for the Court to review. [ 19 ] As the surveillance team continued their surveillance of the truck, Detective Eliuk now had the team following a white truck with “an unidentified male” in the driver’s seat.

It is Detective Eliuk’s testimony that “it was only another unidentified male at that point in time. [ 20 ] The surveillance continued and eventually two members of the surveillance team, Constable Naykowski and Constable McCann, both had a sufficiently close look at Mr. Malapan to determine that he was in fact the driver of the vehicle and they were able to provide a further physical description of Mr. Malapan as being a person with a shaved head, 20 to 25 years old, possibly Filipino, wearing a white t-shirt, black track pants with a thin white strip down the side. They had an address for Mr.

Malapan and they followed the white truck to Mr. Malapan’s address where he parked the truck and went inside the residence and re-emerged with a dog that he took for a short walk. He then took the dog back to the residence, re-emerged and got back into the truck and drove to 125 Street and 113 Avenue with members of the surveillance team in close pursuit. It was in this area that an unknown native female came up to the white truck and got in the passenger side. The vehicle continued southbound for approximately a block and the native female was subsequently dropped off again outside the vehicle.

A member of the team making this observation concluded that this activity was consistent with another suspected hand-to-hand drug transaction notwithstanding that she did not see anything that took place inside Mr. Malapan’s vehicle.

They came to this conclusion on the basis of Detective Eliuk’s believing that this information he was receiving was “something that I have seen hundreds of times over in CSA investigations so I am very familiar with these types of transactions so to speak.” This observation was made notwithstanding that whatever happened took place inside a motor vehicle and there was no actual observation of a hand-to-hand transaction. [ 21 ] Mr. Malapan and the white truck were then followed to a location of downtown Edmonton – 104 Street and 99 Avenue. At that time, Mr.

Malapan parked his vehicle on the north curb of 99 Avenue just west of 104 Street facing westbound at the time. He exited his vehicle and proceeded to walk across 99 Avenue into a city park. There was a gazebo in the park and there was a building immediately to the east of it. It is the evidence that Mr. Malapan headed southbound into the park where he met up with another unknown person, who was described as “the other Asian”. Detective Eliuk suspected, from the previous transactions that were noted, that there was another possibility of another meet-up for a suspected hand-to-hand drug transaction.

The two males subsequently walked north again through the park and sat on a concrete ledge on 99 Avenue near 104 Street. [ 22 ] Detective Eliuk, having positively identified Mr. Malapan as the driver of the vehicle, stated “I conducted a CPIC check on Mr. Malapan and confirmed on CPIC that Mr. Malapan also had an outstanding warrant for his arrest at the time. It was for “no dog license” or something to the effect of that. It was an Edmonton bylaw outstanding warrant.” So at the time of Mr. Malapan being with the other Asian male at 104 Street and 99 Avenue, Detective Eliuk had already concluded that Mr.

Malapan was arrestable for the bylaw warrant but also, in his opinion, given the “totality of what we were involved in with already being set up on a CSA investigation at 11115 - 130 Street observing the person we were watching meet up with Mr. Malapan and engage in a suspected hand-to-hand transaction, and then again a second hand-to-hand transaction at 125 and 113, I formed enough reasonable and probable grounds to believe that he was involved in trafficking offences and subsequently we approached Mr. Malapan and the other male and placed him under arrest. I arrested Mr.

Malapan for trafficking in a controlled substance and also for the outstanding bylaw offence.” [ 23 ] Detective Eliuk justified the arrest: … primarily from the previous history that we had already noted. Like I said, the initial suspected hand-to-hand was our drug target. Then the second hand-to-hand, which I should further elaborate on. The first suspected hand-to-hand, I would not have been comfortable arresting Mr. Malapan in the sense that I would not have any reason to believe that he was either the customer and/or the trafficker at that point.

It was after the second meeting with the native female and the short duration in that area that now led me to believe that Mr. Malapan was indeed the trafficker and not the customer, right.

It was Detective Eliuk’s opinion that what had been observed either directly or communicated to him by the surveillance team, that Mr. Malapan was involved in some sort of a dial-a-doping operation and that there was sufficient evidence to justify the arrest. [ 24 ] I am satisfied from the evidence that I have heard that at no time is there any evidence of a “hand-to-hand transaction” that would justify an arrest, and in fact, Detective Eliuk admits that he never saw a hand-to-hand transaction between the two parties in the park prior to moving in for the arrest.

He confirmed, though, that it was his decision to arrest. A Well, subsequently myself and Constable Tames move in to affect the arrest on Mr. Malapan. And it was Mr. Vergara at that time. Mr. Malapan was cooperative. I don’t recall any issues with his arrest but as soon as I arrested Mr. Malapan Mr. Vergara reached quickly with his hand into his waistband. So Constable Tames and I immediately grabbed on to him and took him down on the ground. From my recollection upon getting handcuffs on him, we were able to confirm that he had a knife on his person and that appeared to be what he was reaching for at the time.

Q And Mr. Vergara was the person that you originally described as the Asian male? A Yes, that’s correct. [ 25 ] I had the good fortune of having two very capable lawyers representing the Crown and the Defence. Early on in the proceedings, it was acknowledged that if the arrest of Mr. Malapan was upheld, then the search of Mr. Malapan was a valid search incident to arrest. [ 26 ] For an arrest to be found to be lawful, it has to be demonstrated that the arresting officer subjectively had reasonable and probable grounds on which to base the arrest, and that the grounds were objectively justifiable.

Detective Eliuk took the position that he had reasonable and probable grounds on which to base the arrest of Mr. Malapan and that the grounds for the arrest were objectively justifiable. [ 27 ] With all due respect, after listening to the evidence of the various witnesses, I am of the opinion that Detective Eliuk did not have reasonable and probable grounds to arrest Mr. Malapan or the “other Asian male”. [ 28 ] In approaching argument, both counsel agreed on certain aspects. It was agreed that if the arrest was upheld then the items found on Mr.

Malapan would result from a valid search incident to the arrest. [ 29 ] Counsel for the Crown acknowledged that it is an admitted fact that after Mr.

Malapan was arrested, he was detained for a number of hours – for approximately 3 or 4 hours – before being permitted to contact counsel. [ 30 ] Counsel also agreed that this was not a case where there is an application to exclude evidence based on a breach of s.10(b); however, it is an aspect to be considered when addressing s. 24. [ 31 ] For an arrest to be lawful, it has to be demonstrated that the arresting officer subjectively held reasonable and probable grounds on which to base the arrest and that the grounds were objectively justifiable.

In this case, there appears to be a lack of subjective grounds on the part of Constable Tames, one of the officer participating in the actual arrest, who acknowledged she felt she had a strong hunch that trafficking was going on. Secondly, from the issue dealing with subjective grounds, the police have to have subjectively reasonable and probable grounds for making the arrest. There was nothing observed that was consistent with a drug transaction. There was no suspicious demeanour, no one looking over the shoulder trying to shield his or her identity, or anything of that nature.

There was no suspicious demeanour and no suspicious driving. What the police are entitled to consider, and must consider, is the totality of the evidence that is available to them. [ 32 ] The police in this case did not have a warrant and did not have reasonable and probable grounds for conducting an arrest. Detective Eliuk decided to arrest because he believed there had been three reported incidents of suspected hand-to-hand transactions, but in fact, on the evidence before me, I am not satisfied that there is any evidence with respect to hand-to-hand transactions.

Hand transactions may have been suspected but none were witnessed. [ 33 ] When Detective Eliuk conducted the arrest, he testified that he felt he had reasonable and probable grounds to believe that drug trafficking had taken place. I do not agree that there is any evidence in support of that position. [ 34 ] I do not understand how Detective Eliuk was able to pull up a picture or other information with respect to Mr. Malapan. There was no search warrant.

An attempt to obtain a search warrant on the 21st, the day before these events unfolded, was declined by the Justice of the Peace before whom the application was made. The Justice of the Peace declined to provide a search warrant based simply on “reasonable suspicion”. [ 35 ] Ms. Hatch speculated during the course of her argument that perhaps they realized they did not have reasonable and probable grounds to make the arrest, but they proceeded with it on the basis that grounds notwithstanding, if they determined that Mr.

Malapan had drugs in his possession, that might be grounds that could be used in support of an application for a search warrant of the premises in the apartment building that was the original target of this surveillance activity. [ 36 ] There is support for the defence position in the decision of R v Arabi , 2007 ABQB 303 , a decision of Madam Justice Moreau in a 2007 decision. [ 37 ] At page 3, para 7 of that decision, Justice Moreau found: “Nor did he [a police officer] observe any interactions between the pedestrian and the occupants of the convertible, or any hand-to-hand movements.” Just as we have in this case, there is an absence of observations that would support a criminal offence.

In Arabi , the officer making the arrest saw no movement in the convertible and specifically no hand-to-hand contact between the occupant and the pedestrian, nor could he see the pedestrians hands while leaning into the convertible to speak to someone within.

[ 38 ] In order to find Mr. Malapan guilty of the charges against him, I would have to come to that conclusion on reasonable and probable grounds. I would need much more than simply reasonable suspicion.

The testimony before me amounts to nothing more than speculation or a mere possibility. [ 39 ] Moreau J, suggested at para 30 in Arabi that the courts must consider the totality of the circumstances, and in her case, she states that the courts must consider as well that there were no hand-to-hand movements observed; the fact that the individuals were not acting in a suspicious way in terms of demeanour and made no apparent effort to drive evasively. There was nothing unusual about the movements of the white truck driven by Mr. Malapan. [ 40 ] The search was illegal.

The police did not have reasonable and probable grounds to make the arrest. [ 41 ] Both counsel agreed in argument on certain aspects. It was agreed that if the arrest was upheld, then the items found on Mr. Malapan would result from a valid search incident to an arrest. That is not the situation before me. The items found on Mr. Malapan did not result from a valid search incident to an arrest. [ 42 ] Detective Eliuk mentioned that after Mr. Malapan was positively identified as the driver of the vehicle: I conducted a CPIC check on Mr. Malapan and confirmed on CPIC that Mr.

Malapan also had an outstanding warrant for his arrest at the time. It was for a “no dog license” or something to the effect of that.” Counsel for the Crown chose not to argue that there was a valid arrest arising from the outstanding warrant with respect to “no dog license or something to that effect”, nor was there any suggestion that a search incident to an arrest arises with respect to an outstanding warrant for “no dog license”. [ 43 ] I am of the view that Ms. Hatch’s Charter challenge on behalf of Mr. Malapan is appropriate. The police conducted searches purportedly incident to Mr.

Malapan’s arrest and the arrest was conducted in the absence of reasonable and probable grounds and in breach of Mr. Malapan’s rights pursuant to s. 8 to be free from reasonable search and seizure; that the arrest and seizure were conducted in breach of s. 495(1)(

a) and the arrest breached Mr. Malapan’s rights to be free from arbitrary detention pursuant to s .9 of the Charter and, in consequence thereof, any evidence obtained subsequent to the arrest should be excluded pursuant to s.24(2) of the Charter . [ 44 ] The charges against Mr. Malapan are dismissed Heard on the 29 th day of October, 2012. Delivered Orally on the 29 th day of October, 2012. Dated at the City of Edmonton, Alberta this 2 nd day of December, 2013. P.M. Clark J.C.Q.B.A. Appearances: M.B. Dion for the Crown D.R. Hatch for the Accused