R v Guerrette, 2015 ABQB 735

Court of Queen ’ s Bench of Alberta Citation: R v Guerrette, 2015 ABQB 735 Date: 20151120 Docket: 140542457Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent/Crown - and - Michael Anthony Guerrette Applicant/Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.H.

Goss _______________________________________________________ INTRODUCTION [ 1 ] Michael Anthony Guerrette (the Accused) is charged with seven counts of possession of drugs for the purpose of trafficking, one count of simple possession, and one count of unlicensed possession of a prohibited weapon. [ 2 ] The Accused alleges breaches of his ss. 7, 8, 9, and 10(

b) Charter rights in relation to the traffic stop, his arrest, and seizure of the vehicle and evidence. Also at issue is whether the Crown has established knowledge and control of items seized from the vehicle. BACKGROUND [ 3 ] Constables Dowhaniuk and Li conducted a traffic stop at 00:44 a.m. in the area of 29 th Avenue and 109 th Street on October 3, 2013. The officers were travelling south. The Accused was driving a white Chrysler 300 from the east toward a four way stop at a curved intersection. He travelled straight through the intersection without stopping.

[ 4 ] The officers immediately stopped the Accused’s vehicle. Cst. Dowhaniuk testified that upon observing the licence plate, it was clear that it was a rental vehicle. The Accused advised Cst. Li that he had borrowed the vehicle. Cst. Li noted a cell phone in the middle console. While Cst. Li was speaking with the driver through the open driver’s side window, Cst. Dowhaniuk looked through the closed passenger side front window. At some point, the Accused opened the centre console and Cst. Dowhaniuk saw a cell phone and a large flat bundle of cash, ¼ to ½ inches thick, wrapped in elastic bands. Cst.

Dowhaniuk moved his flashlight to the open console and the Accused turned his head fast, quickly slammed the console shut, and put his elbow on it. Cst. Dowhaniuk also saw another cell phone in the cup holder in the centre console. He confirmed on cross examination that he became suspicious that the Accused was involved in drug trafficking when he saw the cash in the console and wished to conduct a further search, and to investigate further.

However, he did not take any active steps at that time, aside from being very vigilant. [ 5 ] Upon reviewing the documentation provided by the Accused, including the car rental agreement with Enterprise Rent-A- Car, the officers noted that the Accused had not rented the vehicle himself and was not named on the agreement as a driver. The vehicle was rented by another individual, Mr. Culver. The car rental agreement did not specify any additional drivers. No additional insurance boxes were ticked off. Cst. Dowhaniuk confirmed that at this point his suspicion of drug trafficking grew further.

However, he testified that he did nothing in response to his suspicion other than to become extra alert and observant. [ 6 ] The officers returned to the driver’s side of the vehicle and Cst. Dowhaniuk spoke with the Accused about the fact that his name was not on the car rental agreement. The Accused explained that the vehicle was rented by another person for him because his registration had expired on his personal vehicle. Cst.

Dowhaniuk thought this explanation was odd as it did not seem to be cost effective, considering the registration renewal fee was low compared with the cost of renting a vehicle. [ 7 ] As they spoke, Cst. Dowhaniuk observed that the cell phone in the cup holder was ringing and making constant noises from receiving texts and emails. Cst. Li also had somewhat of a memory of the phone ringing but had no notes of the exact operation of the cell phone. The Accused contacted Mr. Culver, who had rented the vehicle, on a third cell phone which the Accused retrieved from his pocket. Mr.

Culver confirmed that he had rented the vehicle and that the Accused was driving the vehicle with his permission. Mr. Culver was unable to attend at the scene to retrieve the vehicle. The officers advised him that there was no place to park the vehicle, so they would have to seize it. The conversation was cooperative. [ 8 ] The officers advised the Accused that he could not drive the vehicle. They gave the Accused a stop sign violation ticket and the seizure forms for the vehicle and told him that he would have to walk from there.

They seized the vehicle as the vehicle was stopped in a five minute loading zone next to a bus lane, and no available parking spot could be identified in which to park the vehicle. Cst. Dowhaniuk testified that seizing a vehicle in such circumstances is the general or common practice. If he could have left the vehicle there, he would have done so. He testified that he was relying on authority under the Traffic Safety Act , RSA 2000, c T-6 ( TSA ) to seize the vehicle in these circumstances. Cst.

Dowhaniuk confirmed that he was aware that the vehicle was insured as it was a rental, but he was of the view that there was no evidence of insurance because the Accused was not listed on the rental agreement, and a driver is not necessarily covered by the insurance on a rental if he is not listed as a driver. No evidence was led which would undermine his understanding. [ 9 ] Cst. Dowhaniuk did not issue a ticket for driving without insurance. [ 10 ] At that point, the traffic stop was at an end and the Accused was free to go.

They told him to gather anything valuable from the vehicle, explaining that it should be secure in the police lot, but he should not take any chances. The Accused then got out of the driver’s seat and exited the vehicle. Cst. Dowhaniuk was standing back beside the driver’s rear door area as the Accused exited the vehicle. He was intently watching the Accused to make sure that he did not pull a weapon from the vehicle. Cst. Dowhaniuk noted that the Accused left the cell phones and cash in the centre console. He found this to be strange. Neither officer could recall where the keys were.

Both testified that they usually ask that the ignition keys be left in the vehicle for the tow truck. [ 11 ] Cst. Dowhaniuk testified that he walked with the Accused to the back of the vehicle. He stated that he moved closer to the trunk, off to his side at the rear of the vehicle. He was not able to see or tell if the Accused touched the trunk to open it or if it was already open. Cst. Dowhaniuk testified that the trunk was unlocked but it did not pop open; it may have been ajar an inch or as much as a foot, but he could not recall.

He confirmed that the vehicle likely had a keyless remote entry or unlocking system, as it was a 2014 vehicle. He specifically recalled the Accused physically lifting the trunk up into the full open position, leaning in one to two inches, and grabbing a green backpack from the trunk. He was focussed on the Accused and what he was reaching to grab from the trunk for officer safety reasons, as he was uncertain what the Accused might pull out of the trunk. Cst. Dowhaniuk observed that the trunk was clean with only a five litre jerry can and the green bag in the trunk.

He testified that the vehicle was brand new and was very clean. [ 12 ] The green bag was at the rear portion of the trunk, just left of centre. As the Accused pulled the green bag from the trunk, Cst. Dowhaniuk saw a small green pill, smaller than a dime, directly below where the bag had been sitting. From his experience, the green pill looked like an OxyContin pill. The pill was not contained in a pill box. Through his experience and training, he understood that OxyContin was a commonly used and popular controlled substance.

He did not recall having come into contact with another drug in the form of a similar green pill; he testified that it is very distinctive. On close inspection of the pill, Cst. Dowhaniuk could see the writing on the pill. It said 80 on one side, CND on the other. [ 13 ] Cst. Dowhaniuk arrested the Accused for possession of a controlled substance at 01:00 and placed him in handcuffs. He testified that his reasonable and probable grounds for arrest were the small green pill that appeared to be OxyContin and the Accused’s apparent control over the vehicle. [ 14 ] Cst.

Li was either in front of, or sitting in, the police vehicle at this point. He stated that the Accused obtained the backpack from the trunk and confirmed on cross examination that he saw him grab the backpack even though he wrote in his report “Constable Dowhaniuk had observed Guerrette take out his backpack”. He explained that he wrote his report this way to reflect that Cst. Dowhaniuk was the member in charge. He made no notation at the time of having seen the backpack in the Accused’s hands. Cst. Li was challenged on his independent recollection of these events. He stated that Cst.

Dowhaniuk likely handed the backpack to him. Cst. Dowhaniuk told him that he had seen the Accused pick it up.

[ 15 ] The Accused was put in the police vehicle and Cst. Dowhaniuk read him his Charter rights at 01:01 and caution at 01:02. The Accused did not speak to a lawyer while roadside as there was no access to a phone or a lawyer. [ 16 ] Cst. Li searched the Accused, the backpack and a Gucci bag. Cst. Li testified that he found a large sum of money ($6,065) sectioned into bundles entwined or folded together in the Accused’s front left pocket. He went through the backpack and found a red bolt safety box and a Pepsi bottle with a thick clear substance in it which he believed to be GHB. Cst.

Li obtained a key from the Accused’s key chain which was in the Accused’s possession, and was able to open up the red safety box with that key. He testified that the vehicle key would have been separated from the Accused’s personal keys by that time. In the red safety box, Cst. Li found a large quantity of drugs all packaged separately, each in its own bag, stuffed into the red safe. The Gucci bag was searched and nothing of note was found inside. [ 17 ] Cst. Dowhaniuk then searched the vehicle. Brass knuckles and a collapsible baton were found in the driver’s lower side door pocket.

Three cell phones were located in the console along with a bundle of $2,850 in cash. A cell phone located in the cup holder continued to ring but Cst. Dowhaniuk did not look at the messages, and has no recollection of looking at the cell phones, taking calls, or investigating them. He testified that it was not his practice to do so. A small green pill identical to the one found in the trunk was also found in the vehicle. [ 18 ] The officers took the Accused back to the police station where Cst. Dowhaniuk looked at more information, including the Accused’s previous drug related record.

Staff Sergeant Anderson authorized a strip search. They found a bag of methamphetamine in the Accused’s jeans pocket. Cst. Li examined all of the exhibits and provided Cst. Dowhaniuk with the quantities for the report. [ 19 ] Cst. Dowhaniuk had a charge consultation with Sgt. Anderson, and further charges were laid which increased the Accused’s jeopardy from that associated with the original arrest. The Detainee Log shows that the Accused was “out of cell” at 03:20 for “reason: phone room”. Cst.

Dowhaniuk did not re-arrest the Accused for possession for the purpose of trafficking until 04:00 as it had skipped his mind. He read the Accused his Charter rights at 04:08, and his right to counsel and standard caution at 04:09. The Accused was still in the phone room when Cst. Dowhaniuk left at 04:09 after having turned custody over to the Commissionaire. The Detainee Log reflects that the Accused was back in cells at 04:27. [ 20 ] The substances were sent for analysis. The nature of the substances analysed and the quantity thereof is not disputed. The green pill found in the trunk was not sent for analysis.

It is identical to other pills found as a result of the searches, which were sent for analysis. They were identified as being fentanyl. The two loose pills found in the vehicle were entered as exhibits. [ 21 ] The Accused’s wife, Ralana Guerrette, was called for the defence. She testified that she was at her girlfriend’s house with her young son for a sleepover earlier that evening, when she received a call from her husband to meet him, as he had a friend’s vehicle that he needed to return. She thought this was at around 20:00 or 22:00, but was not sure.

She got her son ready and they left to meet the Accused at an agreed meeting spot. [ 22 ] The Accused asked her to follow him from the meeting spot. He was in someone else’s vehicle. Ms. Guerrette followed her husband and saw him roll through a stop sign at a four way stop. She then saw police lights and a police car come from the side road. She saw her husband pull over close to the right curb and the police pull in behind him, parking their police vehicle away from the curb.

She testified that she went through the intersection and pulled in behind another vehicle parked along the curb behind where the police car had parked. She parked parallel to, but away from, the curb such that her passenger side would have been aligned with the middle of the car in front. She testified that no cars could have passed her car. On cross examination she testified that she had a full view of the road, which had a curve in it, and the side of the vehicle the Accused was driving, but could only see about half of the back of that vehicle.

She confirmed on cross examination that there were a few feet between each vehicle and she was more than 15 to 20 feet away from her husband’s vehicle. [ 23 ] Ms. Guerrette saw two police officers get out of the police car and go to her husband’s vehicle, speaking to him at his driver’s side window. She saw one officer speak on a cell phone. She then saw her husband put his hand out of the window and pass the officer some keys. Her husband then got out of the vehicle and walked toward the back of his vehicle with an officer behind him.

She testified that she then saw the lid of trunk of the vehicle pop open and go up, but she did not see how that happened. She saw her husband put his hands up, palms up, to each side when the trunk popped open. At that point he was toward the back of the car, close to the sidewalk. She testified that she then saw an officer grab a bag out of the trunk and put it on the hood of the car. Her husband had stopped near the curb, either before or after the bag was pulled out of the trunk, and his hands were up. The officer then searched the trunk of the vehicle with a flashlight.

She then saw the officer shout and hold his hand up. She saw the officers search her husband and put him in handcuffs. An officer then opened the bag. Then she saw the officers place the Accused in the police vehicle. The two officers and the Accused left the scene between one to seven minutes later. Ms. Guerrette was very upset. She also left after she pulled herself together. The entire stop took about 20 minutes. She did not see another police vehicle come to deal with the rental vehicle. [ 24 ] Ms. Guerrette testified that she sat in her vehicle with the car running and just her low lights on the entire time.

The police did not look over or acknowledge her presence. She did not get out of her car or make any inquiries of the police because she did not want her son to see anything. Her son has autism and ADHD. He was awake and distracted, playing with his iPad in the back. He apparently did not notice the police lights. [ 25 ] After leaving the scene, Ms. Guerrette returned to her friend’s home. The Accused called her the following day. She did not make any inquiries of the police as she did not think of it, and did not know whom to call. This was her first interaction ever with police.

She wrote down what she saw about one to two months later. [ 26 ] Cst. Dowhaniuk was recalled by the Crown. He could not remember what was behind the police vehicle. He indicated that the police vehicle and the rental were the only two vehicles he recalled. He could not recall any traffic on the road. He did not notice another unrelated vehicle. There is a natural curve in the road but no interruption in the sightline for two blocks or more.

He confirmed on cross examination that the police vehicle was parked four to five feet away from the curb, half off of the vehicle in front, and that it was possible that someone could have pulled up behind them. He confirmed having looked around for a spot to park the rental vehicle

and saw a couple of other cars parked on the road. Cst. Dowhaniuk confirmed that he searched the rental vehicle for about five minutes, and thereafter called for an additional unit to assist and for a tow truck. He stated that he left with Cst. Li and the Accused in the police car when another unit showed up to wait with the rental vehicle for the tow truck. He confirmed that they did not leave immediately, but they left within thirty minutes. FINDINGS OF FACT [ 27 ] The Crown argued that Ms.

Guerrette’s evidence was not credible, not only with respect to her observations, but also with respect to her presence at the scene. She was challenged on cross examination with respect to what she saw. However, the fact of her presence was not expressly put to her on cross examination. I will assume for the purposes of this analysis that she was present. [ 28 ] Ms. Guerrette testified that she saw the Accused hand the keys of his vehicle over to an officer through the open driver’s side window before he exited the vehicle. [ 29 ] I am satisfied that from her vantage point as she described it, Ms.

Guerrette probably would have been able to see her husband handing something out the window to the officer. She testified that she was parked away from the curb, almost in the middle of the road, more than 15 to 20 feet away with a full view of the road and the side of the vehicle the Accused was driving. [ 30 ] Cst. Dowhaniuk was not able to see or tell if the Accused touched the trunk to open it or whether it was already open. He confirmed that it was likely a keyless entry system as the vehicle was a 2014 vehicle. [ 31 ] Ms.

Guerrette saw her husband walk toward the back of his vehicle with an officer behind him. Next she saw the lid of the trunk of the vehicle pop open and go up but she did not see how that happened. [ 32 ] Given the position of the vehicles and Ms. Guerrette’s inability to clearly see the trunk of the rental vehicle from her position on the road and her distance from it, I am not satisfied that she would have been able to see the trunk pop or unlock. I do not accept her evidence on this point. [ 33 ] The evidence is not clear as to who unlocked the trunk.

I find that one of the officers had the keys in his possession just before the Accused exited the vehicle. The trunk was popped open, presumably with the key fob or with the release in the interior of the vehicle, at some point before the Accused raised his hands. [ 34 ] Ms. Guerrette saw her husband put his hands up, palms up, to each side when the trunk popped open. At that point, he was toward the back of the car, close to the sidewalk. Cst. Dowhaniuk testified that the Accused lifted the trunk up into the full open position. [ 35 ] I find that the Accused opened the trunk. Even accepting that Ms.

Guerrette could see the back of the vehicle, this is not inconsistent with the evidence of either witness. I accept Cst. Dowhaniuk’s evidence on this point as he has a specific recollection of who opened the trunk, whereas Ms. Guerrette does not. [ 36 ] The evidence of Ms. Guerrette and Cst. Dowhaniuk is directly conflicting regarding who removed the bag from the trunk of the rental vehicle. Cst. Dowhaniuk testified that he saw the Accused remove the bag. Ms. Guerrette testified that she saw one of the police officers remove it. Cst. Li was either in front of, or sitting in, the police vehicle at this point.

He confirmed on cross examination that he did not write in his report that he saw the Accused take the bag out of the trunk. Cst. Li did not remember if the backpack was in Cst. Dowhaniuk’s hands. His evidence does not assist in determining who actually took the bag out of the trunk. [ 37 ] Even on Ms. Guerrette’s own evidence, she could see only about half of the entire back of the rental vehicle.

I do not accept her evidence that she could see past both the vehicle parked in front of her, and the police vehicle which was also pulled out from the curb, such that she had an unobstructed view of the back of the rental vehicle. From the evidence of where the vehicles in front of Ms. Guerrette were parked, essentially in a row with her vehicle and the police vehicle out the same distance from the curb, I find that in fact more of the back of the rental vehicle, parked further to the right, next to the curb, would have been obscured.

She was further away, behind two vehicles which likely blocked her view, and the police lights were flashing. [ 38 ] In assessing the evidence of Cst. Dowhaniuk, I find that he had both the opportunity and ability, through his close proximity, to observe the removal of the bag from the trunk. His evidence on this point was credible and reliable. Again, I find that Ms. Guerrette would not have been able to see who removed the bag from the trunk. Cst. Dowhaniuk’s evidence is essentially uncontradicted on this point. I find that the Accused removed the bag from the trunk. [ 39 ] The defence questions Cst.

Dowhaniuk’s evidence that he observed a single small green pill in the trunk of the rental vehicle in the dark from his position standing beside the Accused as he lifted his bag out of the trunk. Cst. Dowhaniuk’s evidence was that he moved closer to the trunk, and was focused on the Accused and what he was reaching to grab from the trunk, for officer safety reasons. Cst. Dowhaniuk observed that the trunk was clean with only a five litre jerry can and the green bag in the trunk. Therefore, it would have been easier to see with more detail what was in the trunk, as it was not cluttered with numerous items. Cst.

Dowhaniuk testified that the green bag was at the rear portion of the trunk. That would presumably have been the easiest portion of the trunk to see into with the trunk fully opened, as Cst. Dowhaniuk stated it was. His view may have been momentarily obstructed by the Accused leaning into the trunk to retrieve the bag, but Cst. Dowhaniuk was off to his side. He did not say that his view was obstructed by the Accused. His evidence was that as the Accused pulled the green bag from the trunk, Cst. Dowhaniuk saw a green pill below the bag.

It was not in a pill box, and from his experience, it looked to him like an OxyContin pill. I accept this evidence. VOIR DIRE ISSUES

[40] As previously noted, the Accused alleges that the officers breached his ss. 7, 8, 9, and 10(

b) Charter rights. [41] The following issues must be determined: 1. Was the Accused arbitrarily detained prior to being arrested? 2. Did the officers have authority to seize the vehicle? 3. Were Cst. Dowhaniuk’s activities in relation to the trunk lawful? 4. Was the Accused’s arrest lawful? 5. Were the searches of the Accused and his backpack lawful? 6. Did the officers breach the Accused’s right to counsel? 1. Was the Accused arbitrarily detained prior to being arrested? [42] I accept the officers’ evidence that they stopped the Accused because he had not stopped at a stop sign.

They requested thathe produce vehicle related documents for inspection. They were authorized to do both under ss. 166 and 167 of the TSA. [43] Cst. Dowhaniuk testified that his observations soon made him suspicious that the Accused was involved in drug trafficking,and this suspicion grew throughout his interaction with the Accused. However, the fact that an officer conducts a traffic enquiry whileobserving grounds for a drug related offence does not make the detention arbitrary.

An officer conducting a traffic stop is naturally opento the possibility that the driver may be involved in any number of potential federal or provincial infractions: R v Nolet, 2010 SCC 24 atpara 37, [2010] 1 SCR 851, R v Pearson, 2012 ABCA 239 at para 47, 536 AR 37. A dual purpose stop must be assessed on a step bystep analysis of the interaction between police and the citizen in order to determine whether the police stayed within their authority: R vChan, 2013 ABCA 385 at para 27, 561 AR 347. [44] I find no breach of s. 9 as the Accused was lawfully detained in relation to the traffic stop. 2.

Did the officers have authority to seize the vehicle? [45] Defence counsel argues that the officers had no legal authority to seize the vehicle. The issue of whether or not Mr. Culverhad the authority to permit the Accused to drive the vehicle he rented is a matter of contract as between Enterprise and Mr. Culver, and isirrelevant to the officers’ authority to seize the vehicle. Defence submits that the officers determined, based on their own

interpretation ofa private contract, that the Accused was not authorized to drive the vehicle and that it would need to be towed. [46] The Crown notes that the Accused was not named on the car rental agreement. The registered owner of the vehicle, EnterpriseRent-A-Car, allowed only those noted on the car rental agreement to drive its vehicle. Enterprise had not given the Accused its expressor implied consent to drive the vehicle. Mr. Culver was unable to retrieve the vehicle.

The Crown submits that the police wereauthorized, in these circumstances, to seize the vehicle under ss. 54 (1.1) and 171 of the TSA. [47] A warrantless search or seizure is prima facie unreasonable: Canada (Director of Investigation & Research, CombinesInvestigation Branch) v Southam Inc, (SCC), [1984] 2 SCR 145, 14 CCC (3d) 97.

In order to establish that a search orseizure was reasonable, the Crown must establish that it was authorized by law, the law itself must be reasonable, and the search orseizure must be carried out in a reasonable manner: R v Collins, (SCC), [1987] 1 SCR 265, 33 CCC (3d) 1. [48] Sections 54 (1.1) and 171 of the TSA provide: 54(1) Except as otherwise permitted under this Act, a person shall not do any of the following: (

a) drive a motor vehicle on a highway unless the motor vehicle is an insured motor vehicle; (

b) have a motor vehicle on a highway unless the motor vehicle is an insured motor vehicle; (

c) where a person is the registered owner of a motor vehicle, permit another person (

i) to drive the motor vehicle on a highway, or (ii) to have the motor vehicle on a highway, unless the motor vehicle is an insured motor vehicle...

(1.1) If a person drives or has a motor vehicle on a highway without the expressed or implied consent of the registered owner of thevehicle, that person is deemed for the purposes of subsection (1)(

a) or (

b) to drive or have on a highway a motor vehicle that is not aninsured motor vehicle… 171(1) Where a peace officer believes, on reasonable grounds, that a person has committed an offence in respect of

section ... 54(1)(a),(

b) or (

c) in relation to the operation of a motor vehicle, the peace officer may seize or immobilize that vehicle and cause it to beremoved, taken and stored in a suitable place pending the granting of an order pursuant to subsection (3).

[49] The Accused was not named on the car rental agreement. I am satisfied that it was reasonable in the circumstances for theofficers to believe that Enterprise Rent-A-Car, the registered owner, had not provided its express or implied consent for Mr. Guerrette todrive the rental vehicle. They contacted Mr. Culver who had rented the vehicle to determine if he could retrieve the vehicle. He couldnot. The officers determined that there was no safe place to park the vehicle until Mr. Culver could retrieve the vehicle at a later point intime.

The vehicle was in a no parking zone and could not be left where it was stopped. [50] I find no significance in the fact that the officers issued a stop sign violation ticket, but not a ticket for driving withoutinsurance.

Section 171 of the TSA only requires that a peace officer believe, on reasonable grounds, that a person has committed theoffence of driving without insurance. There is no requirement stated therein that the officers must issue a ticket for driving withoutinsurance. The evidence in this case supports a subjective and objectively reasonable belief that the vehicle was not insured in relation tothe Accused. [51] Cst. Dowhaniuk stated in cross examination that he did not have the vehicle towed for driving without insurance. Cst.

Litestified under cross examination that the authority to tow the motor vehicle was based on the owner being unavailable to retrieve thevehicle, and the fact that it was parked in a no parking zone. He also testified that driving a vehicle when not authorized is not illegal. [52] However, the evidence was clear as to the chronology of events and the officers’ reasoning at the time: they were of the viewthat the Accused was not covered by the rental agreement and could not continue to drive the vehicle. As there was nowhere to park it,they decided to have it towed. Cst.

Dowhaniuk testified that the Accused was not named on the rental agreement, no additional insuranceboxes were ticked off on the rental agreement, and there was no evidence of insurance. As there was no place to park the vehicle and Mr.Culver was not available to retrieve it, the officers seized it. [53] Neither officer was able to articulate the specific relevant TSA provisions.

However, they were correct in their understandingthat it is contrary to the TSA to drive a vehicle without insurance, and driving a vehicle without the expressed or implied consent of theregistered owner is deemed to be driving a vehicle that is not an insured: s. 54(1.1). They were also correct in their understanding thatthey had authority to seize the vehicle and to have it towed in the circumstances. [54] As for Cst.

Dowhaniuk’s suspicion that the Accused might be involved in criminal activity, this is a factor to be considered,but it does not render a lawful seizure unlawful: Chan at para 27. [55] I find that the officers had the authority under the TSA to seize the vehicle, and the manner in which the vehicle seizure wascarried out was reasonable in the circumstances. The police did not exceed their authority under the TSA in seizing the vehicle. [56] Therefore, the seizure of the rental vehicle in the circumstances of this case did not breach the Accused’s s. 8 Charter right. 3. Were Cst.

Dowhaniuk’s activities in relation to the trunk lawful? [57] Defence counsel argues that Cst. Dowhaniuk removed the backpack and searched the trunk with the flashlight. [58] The officers’ evidence was that once they had issued a stop sign violation ticket and the seizure forms, the Accused was freeto go. They told the Accused to remove his items from the vehicle, as it would be towed. Cst.

Dowhaniuk testified that his concernsabout officer safety led him to closely watch the Accused as he removed his personal belongings from the trunk. [59] The officers had taken custody of the vehicle at that point in time, having provided seizure forms to the Accused. In thecircumstances, in my view it is irrelevant whether it was the Accused or one of the officers who unlocked the trunk. [60] I have found that the Accused lifted the trunk lid prior to removing the backpack. I have also found that Cst.

Dowhaniuk wassufficiently close that he had both the opportunity and ability to observe the removal of the bag from the trunk, as well as the pill. It wasdark outside. Cst. Dowhaniuk was not asked whether he was using a flashlight at that point, but the Crown was prepared to accept that hepresumably had the flashlight and was directing it into the trunk. [61] The officers were in lawful custody of the vehicle at that point. The Accused had been given, and availed himself of, theopportunity to remove his belongings prior to the vehicle being towed. It was late at night and Cst.

Dowhaniuk was concerned aboutofficer safety. I find no breach of ss. 8 or 9 in relation to the removal of the backpack from the trunk. 4. Was the Accused’s arrest lawful? [62] Defence counsel argues that Cst. Dowhaniuk only knew at the time of the arrest that the Accused was operating a borrowedrental vehicle. There was no information as to how long the Accused had possession of the vehicle, the condition of the vehicle at thetime it was rented, or whether Mr. Culver had any belongings in the vehicle. It could be that the Accused was on a 20 minute trip toMcDonald’s.

Counsel submits that in the circumstances, it was not objectively reasonable to believe that the Accused would haveknowledge of, and control over, the single pill on the bottom of the trunk of the vehicle. [63] Defence counsel submits that Cst.

Dowhaniuk’s suspicions about the circumstances of this vehicle and that something wasgoing on, together with the presence of the pill, did not amount to reasonable and probable grounds to believe that the Accused was inpossession of drugs: R v Calderon (2004), (ON CA), 188 CCC (3d) 481, 2004 CarswellOnt 3405 at para 69 (CA).Defence argues that the police were launching an investigation unrelated to the traffic infraction: R v Rutten, 2006 SKCA 17 at para 25,29 MVR (5th) 17. [64] The Crown argues that Cst. Dowhaniuk had sufficient grounds to arrest the Accused in the circumstances. Cst.

Dowhaniuktestified that he had become hyper vigilant, given his suspicions. The officers’ observations raised suspicions up until the point where theAccused took possession of the backpack which was sitting on top of this pill in an otherwise empty trunk, but for the jerry can. Cst.

Dowhaniuk testified that the small green pill was consistent, in his experience, with OxyContin. He did not need to determine at theroadside that the little green pill was OxyContin before making the arrest. The Crown argues that all of the circumstances known to Cst.Dowhaniuk constituted reasonable grounds. [65] The Crown submits that the reasonable grounds standard does not require an officer to satisfy him or herself that there isevidence of proof beyond a reasonable doubt or even a prima facie case.

In marijuana smell cases, all that the officer must have is anobjectively reasonable basis for believing the suspect is presently in possession of marijuana, without necessarily ruling out potentiallyinnocent inferences, defences or lawful excuses: R v MacCannell, 2014 BCCA 254 at para 45, 359 BCAC 1.

The reasonable groundsstandard is not only less than that required for conviction, it is also less than the civil standard of proof: R v Jir, 2010 BCCA 497 at para27, [2010] BCJ No 2171. [66] An officer may arrest without warrant a person who, on reasonable grounds, he believes has committed or is about to commitan indictable offence, or whom he finds committing a criminal offence: s. 495(1) of the Criminal Code, RSC 1985, c C-46.

The arrestingofficer must subjectively have reasonable and probable grounds to make the arrest and those grounds must be justifiable from anobjective point of view: R v Storrey, (SCC), [1990] 1 SCR 241 at 250-251, 53 CCC (3d) 316. [67] The Court must consider the totality of the circumstances in assessing whether there were reasonable and probable groundsfor arrest. The following were the circumstances known to Cst.

Dowhaniuk when he arrested the Accused: - the Accused was stopped while driving a rental vehicle which he had not rented - there was a cell phone in the cup holder in the centre console of the vehicle - the Accused opened the centre console containing a second cell phone and a large flat bundle of cash, ¼ to ½ inches thick,wrapped in elastic bands - when Cst. Dowhaniuk moved his flashlight to the console, the Accused quickly slammed the centre console shut and put hiselbow on it with a fast turn of the head - the vehicle was rented by an individual named Mr.

Culver and the agreement did not specify any additional drivers - the Accused said that the vehicle had been rented by another person for him because his registration had expired on his personalvehicle - the Accused retrieved a third cell phone from his pocket which he used to contact Mr. Culver - although Mr.

Culver confirmed to the police that he had rented the vehicle, he was unable to attend at the scene to retrieve thevehicle - the cell phone in the cup holder was ringing and making constant noises from receiving texts and emails - the vehicle was new and clean - the trunk appeared to be empty except for a jerry can and a green bag - the officers advised the Accused to remove his belongings as the vehicle would be towed - the Accused removed the green bag from the trunk - when the Accused removed the bag, Cst.

Dowhaniuk saw a loose green pill, smaller than a dime, directly below where the bag hadbeen sitting - Cst. Dowhaniuk believed, based on his experience, that the pill was OxyContin. [68] I accept that Cst. Dowhaniuk formed a subjective belief that the Accused was in possession of the green pill, and that the pillwas a controlled substance. [69] I must also determine whether Cst. Dowhaniuk had an objectively reasonable basis for believing the Accused was inpossession of a controlled substance. [70] In all of the circumstances of this case, I am satisfied that Cst.

Dowhaniuk had reasonable grounds to arrest the Accused forsimple possession of a controlled substance when he observed the green pill in the trunk after the Accused grabbed the backpack. As theAccused was taking possession of the backpack in the trunk, it was reasonable to infer that he had placed the bag there. Cst. Dowhaniukdescribed the vehicle as being very clean; the trunk was empty except for three items, including the pill. [71] I find that Cst.

Dowhaniuk had objectively reasonable grounds to believe, in all of the circumstances, that the Appellant wasin possession of the contents of the trunk. [72] I find no Charter breach in relation to the arrest. 5. Were the searches of the Accused and his backpack lawful? [73] I have found that Cst. Dowhaniuk had reasonable and probable grounds to arrest the Accused for possession of drugs. I furtherfind that the searches of the Accused and his backpack were justified as being incident to the arrest. I find no Charter breach in relation

to those searches. 6. Did the officers breach the Accused’s right to counsel? [ 74 ] The Accused was arrested for simple possession at the roadside. [ 75 ] Cst. Dowhaniuk read him his Charter rights at 01:01 and cautioned him at 01:02. The Accused did not speak to a lawyer while roadside as there was no access to a phone or a lawyer. The Accused was searched and over $6,000 in cash was found on his person, along with 1.7 g of methamphetamine. Over $2,850 was found in the centre console. Cst. Li obtained from the Accused the key to open the red box which contained a variety of packaged drugs.

The vehicle and the backpack were also searched at roadside. Weapons, numerous cell phones, drug paraphernalia and additional, separately packaged drugs were found. [ 76 ] At the station, Cst. Li weighed the drugs. Cst. Dowhaniuk had a charge consultation with Staff Sgt. Anderson, as a result of which further charges were laid. However, the Accused was not re-arrested and re- Charter ed and cautioned until 04:00, as it had skipped Cst. Dowhaniuk’s mind. He re-arrested the Accused for trafficking at 04:00, read him his Charter rights at 04:08 and his right to counsel and standard caution at 04:09.

The Accused had access to a phone at the police station both before and after he was re-arrested and re- Charter ed and cautioned. [ 77 ] The Crown concedes that the delay in re-advising the Accused of his rights based on the increased jeopardy constituted a breach of his s. 10(

b) Charter rights. 7. Section 24(2) [ 78 ] As a result of the s. 10(

b) breach, I must address admissibility of the evidence under s. 24(2). [ 79 ] Defence counsel argues that Cst. Dowhaniuk took a rather lackadaisical approach to the Accused’s rights when he failed to re- Charter him within moments of the original arrests with respect to the new, serious offences, which he knew the Accused faced. Cst.

Dowhaniuk acknowledged that he was aware of the importance of an accused understanding his full jeopardy in order to obtain proper advice from counsel. [ 80 ] The Crown argues that the failure to re-advise the Accused of his rights on the possession for the purpose of trafficking charges is a technical breach resulting from the officer’s absent-mindedness, and was not a flagrant disregard of those rights. Immediately after charging him with the more serious offences, the Accused was re- Charter ed and cautioned and was again provided access to counsel immediately thereafter.

As a result, the impact of that breach on the Accused was fairly insignificant. [ 81 ] In determining an application for exclusion under s. 24(2) of the Charter a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

a) the seriousness of the Charter -infringing state conduct,

b) the impact of the breach on the Charter -protected interests of the accused, and

c) society's interest in the adjudication of the case on its merits. The Court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute: R v Grant , 2009 SCC 32 at para 71 , [2009] 2 SCR 353.

a) The seriousness of the Charter -infringing state conduct [ 82 ] The nature of the police conduct that infringed the Charter was a failure to re- Charter the accused in a timely fashion after becoming aware of the increased jeopardy this Accused was facing upon discovery of the large quantity of controlled substances and the weapons. I accept the evidence of Cst. Dowhaniuk that the delay was due to an oversight and was not deliberate.

There was no suggestion that this was a systemic or habitual oversight. [ 83 ] As stated in Grant at para 74 , admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. I find that the gravity of the offending conduct is on the less serious end of the spectrum, given the circumstances. I am satisfied that admission of the evidence on the basis of this officer’s oversight would not bring the administration of justice into disrepute, nor would it erode public confidence in the rule of law.

Therefore, I find that this factor does not support exclusion as being necessary to ensure state adherence to the rule of law.

b) The impact of the breach on the Charter -protected interests of the Accused [ 84 ] The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute: Grant at para 77 .

In order to determine the seriousness of the infringement from this perspective, the Court must look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. [ 85 ] In this case, the breach engaged the interest in the right to obtain informed advice from counsel. The right to counsel is of primordial importance. However, in the circumstances, I find that the denial only minimally impacted that interest. The Accused was aware of the nature of the charges he was facing. He was aware of some, if not all, of the results of the roadside search.

A significant amount of cash and further drugs had been seized directly from his person. There is no evidence that the police sought or obtained statements from the Accused prior to being re-arrested. He was re-arrested shortly after exercising his right to counsel the first time, and was again given access to a phone immediately after being re-arrested.

c) Society's interest in the adjudication of the case on its merits

[86] At the third stage, the Court must ask whether the truth-seeking function of the criminal trial process would be better servedby admission of the evidence or by its exclusion. This requires a broad inquiry into all the circumstances, not just the reliability of theevidence. [87] In this case, the evidence is highly relevant and reliable. There is no connection between the s. 10(

b) breach, which occurredafter the seizure of the drugs, and the reliable nature of the evidence. The breach was not intentional. [88] The offences at issue are very serious. The drugs seized included heroine, cocaine, methamphetamine, ketamine, MDMA,fentanyl, and GHB. Trafficking in these drugs is a scourge on society. There is a strong societal interest in the prosecution of individualsinvolved in the trafficking of such drugs. The evidence is critical to the Crown’s case. [89] In my view, the repute of the administration of justice will not be diminished, nor will public confidence be eroded, by theadmission of the evidence.

d) Conclusion [90] Having made these inquiries, I conclude on balance that the admission of the evidence in this case would not bring theadministration of justice into disrepute. The Accused’s application to exclude the evidence is dismissed.

TRIAL ISSUES [91] The Accused is charged with one count of simple possession, seven counts of possession of narcotics for the purpose oftrafficking, and one count of unlicensed possession of a prohibited weapon. [92] The Crown must, on the evidence before the Court, establish beyond a reasonable doubt that the events alleged in factoccurred and that the Accused was the person involved in them. The Crown must prove each and every element of the offences chargedbeyond a reasonable doubt.

There is no burden on the Accused to prove his innocence. [93] Counsel agreed that there is really only one trial issue, being whether the Crown has established beyond a reasonable doubtthat the Accused had sufficient knowledge and control to be in possession of the seized items. [94] Defence counsel conceded that if the evidence is admissible, then the final simple possession count on the indictment hasbeen made out. On the whole of the evidence, I find that the Crown has established beyond a reasonable doubt all of the elements of theoffence for simple possession of methamphetamine.

I find the accused guilty on count 9. [95] Defence counsel submits that the counts of possession for the purpose of trafficking turn on whether the Accused hadknowledge or control of the items in the trunk. Defence counsel points to the evidence that Cst. Dowhaniuk described a “surprised”reaction when he shone the flashlight on the open console. Further, the Accused did not retrieve the money and cell phones from thecentre console. There is no evidence that the key to the locked box was on the Accused’s own keyring.

There was no evidence as to howlong he had been in control of the vehicle. [96] Defence counsel puts forward a number of alternative inferences. The Accused may have been a meth user who was involvedwith disreputable people. Perhaps Mr. Culver was a drug dealer and the Accused borrowed the car for a brief period without knowingwhat was in the trunk. Mr. Culver may have told him not to access the trunk. Mr.

Culver may not have realized the backpack was in thetrunk at the time the Accused took possession of the vehicle. [97] Regarding the seven counts of trafficking narcotics, the Crown argues that knowledge and control required for possession ofthose items is made out as the Accused made an active effort to take possession of the backpack containing the drugs before leaving thevehicle when he grabbed the bag from the trunk upon being told he would have to leave the vehicle. In grabbing the bag from thetrunk, he exerted control over it. He chose to remove that item while he left other items behind.

This, together with the other evidence ofthe significant amount of cash, the methamphetamine in his pocket, the ringing cell phone, the OxyContin pill in the centre console,other valuables not taken, such as the $2,085 cash in the centre console, leads to the only reasonable inference that he had knowledge andcontrol of what was in that backpack.

Furthermore, the fact that he was driving this rental vehicle with that significant quantity in thetrunk, is strong evidence that he was transporting the drugs. [98] The defence called evidence that put credibility in issue and therefore I must conduct an analysis under R v W(D), (SCC), [1991] 1 SCR 742. [99] I have already made a number of findings of fact regarding the evidence of Ms. Guerrette on the points of relevance to thistrial. Although I accept the evidence of Ms. Guerrette regarding the handing of keys over to over of the officers, I do not accept herversion of events on the other critical points.

Specifically, I have not accepted her evidence that she saw Cst. Dowhaniuk remove thebackpack from the trunk. In my view, this is the most significant point in terms of this analysis. [100] I accept the evidence of both officers regarding the balance of the evidence given, in particular the evidence of Cst. Dowhaniukthat the Accused removed the backpack from the trunk. In the context of the evidence as a whole, I am not left in reasonable doubt byMs. Guerrette’s evidence about who removed the bag from the trunk.

That leaves me to consider whether, on the basis of the evidencewhich I do accept, I am convinced beyond a reasonable doubt by that evidence that the Crown has proven all of the elements of eachoffence beyond a reasonable doubt. [101] Personal possession requires that an accused had actual physical possession of the item, knew that he had actual physicalpossession of it, and exerted control over it while he had actual physical possession of it.

Knowledge can be established by proof ofwilful blindness where the accused deliberately chooses not to inquire about the contents of something when he knows there is reason for

inquiry but prefers not to know its true contents. All of the surrounding circumstances are relevant in determining whether an item is in a person’s possession. [ 102 ] In order to establish constructive possession, where a person does not actually have the item on his person, the Crown must prove that the item was in a particular place, the accused knew it was in the particular place, and he exercised control over it while it was in the particular place.

Again, the Court must look at the surrounding circumstances to decide whether these elements have been met. [ 103 ] I find that in lifting the bag out of the trunk, the Accused exerted control over it and its contents. I am also satisfied that it is reasonable to conclude that he was aware of the contents of the bag, the safe and the bottle of GHB. Cst. Li obtained a key from the key chain in the possession of the Accused, and was able to open up the red safety box with that key.

I am satisfied that it is reasonable to infer that the Accused had knowledge of the contents of that safe in that he had the key to the safe in his possession. The key was clearly in his possession after he exited the motor vehicle and after he had handed the keys to the rental vehicle to an officer just before he exited the vehicle. As for leaving some items in the vehicle, it would not necessarily have been illogical for him to leave the cellphones and bundle of cash in the console which he had abruptly closed when detected by Cst.

Dowhaniuk, while at the same time taking the closed backpack that he knew contained drugs. He was under the watchful eye of the officers, and without the drugs, the phones and cash alone would not have provided reasonable and probable grounds but would have raised suspicions. I also note that the Accused had on his person a large amount of cash in denominations as described by Cst. Li. [ 104 ] Defence counsel has put forward a number of hypotheses. However, mere speculation is insufficient to create a reasonable doubt: R v Clouden , 2012 ABCA 175 at para 23 , [2012] AJ No 583.

Considering the whole of the evidence, I find that it is an implausible inference that the backpack belonged to Mr. Culver or another, and that the Accused was simply retrieving it for his friend. [ 105 ] On the whole of the evidence, I find that there is no other reasonable inference than that the Accused had knowledge of the contents of the backpack and the safe. I find that the Crown has established the elements of the offence for possession for the purpose of trafficking beyond a reasonable doubt.

The specific drugs and quantities thereof were confirmed by Certificates of Analysis and the evidence of Constable Li. I find the accused guilty on counts 1 to 7. [ 106 ] As for count 8, defence counsel argues that possession of the brass knuckles was not made out. There was no evidence regarding the style of the pocket on the door where the brass knuckles were located, other than that it was a little pocket at the bottom of the door. There was no evidence of the depth or width of the pocket, whether anything else was in it, or whether the weapon was visible when the door was opened.

Defence counsel notes that the officers were conscious of their safety and were on the lookout for weapons throughout the interaction. [ 107 ] In fact, there is no evidence before the Court that the brass knuckles were visible. They were not spotted by the officers when the Accused exited the vehicle. He did not take possession of those items when he exited the vehicle. Cst. Dowhaniuk was standing beside the driver’s rear door area as the Accused exited the vehicle. Cst. Dowhaniuk testified that he was intently watching the Accused in case he pulled a weapon from the vehicle.

Given that the Accused was involved in drug trafficking, one might find on a balance of probabilities that he was in possession of the brass knuckles. However, the vehicle was rented by Mr. Culver, and the weapon was not visible. I am not satisfied beyond a reasonable doubt that the Accused was aware that they were located in the pocket of the door. I find Mr. Guerrette not guilty on count 8. Conclusion [ 108 ] The Accused is convicted of counts 1 to 7 and 9. He is acquitted on count 8. Heard on the 27 th and 28 th days of October, 2015. Dated at the City of Edmonton, Alberta this 20 th day of November, 2015.

J.H. Goss J.C.Q.B.A. Appearances:

Jared Bialowas Public Prosecution Service of Canada for the Crown Kathryn A. Quinlan Royal & Company for the Accused