R v Au Yeung, 2016 ABQB 313

Court of Queen ’ s Bench of Alberta Citation: R v Au Yeung, 2016 ABQB 313 Date: 20160603 Docket: 140514126Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Kin Wa Au Yeung Accused Corrected judgment: A corrigendum was issued on June 24, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice K. D. Yamauchi _______________________________________________________ I. Introduction

[ 1 ] The Applicant Kin Wa Au Yeung seeks a declaration that Royal Canadian Mounted Police (“RCMP”) Cpl. Ryan Frost breached his rights under sections 8, 9, 10(

a) and 10(

b) of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK) , 1982, c 11 [the Charter ]. Those sections provide as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention (

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

b) to retain and instruct counsel without delay and to be informed of that right; ... [ 2 ] The Applicant asks this Court to consider granting him a remedy under Charter s 24, which provides as follows: 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. II. Background [ 3 ] On April 8, 2014, shortly before midnight, Cpl. Frost stopped the Applicant’s vehicle, as the vehicle was speeding through Banff National Park. Cpl. Frost’s police vehicle pulled up behind the Applicant’s vehicle.

Before exiting his police vehicle Cpl. Frost ran a license plate query through the Canadian Police Information Centre and observed that the registered owner had a Red Deer address and a drug-related criminal history. The vehicle’s registered owner was later confirmed to be the Applicant. Cpl. Frost approached the vehicle from the passenger’s side and spoke with the Applicant, who was driving, and his passenger, Michael Yee. Mr. Yee was later identified as the Applicant's nephew. Cpl. Frost told them why he had stopped their vehicle, and asked the Applicant for his driver’s license and vehicle documentation. Mr.

Yee told Cpl. Frost that the Applicant “doesn’t speak much English.” The following exchange took place between Cpl. Frost and Mr. Yee: Cpl. Frost: Where you guys coming from today? Mr. Yee: We came from … Okanagan. Cpl. Frost: Oh, nice. Excellent. Mr. Yee: We had a relative that had a party and, uh, the, uh, I don’t know, I had some wine (laugh). Cpl. Frost: Nice, excellent. Mr. Yee: I had a little clam too and everything. Cpl. Frost: Nice. Cpl. Frost: Where you guys off to? Mr. Yee: Uh, we’re off to … Edmonton, actually. Cpl. Frost: Oh wow, that’s a long drive. Mr. Yee: Yeah, pretty much, it’s a long drive.

The ellipses indicate pauses in Mr. Yee’s responses. Through Mr. Yee’s responses and, in particular, his pauses and the nervous laughter, Cpl. Frost noted that Yee displayed signs of nervousness. As well, despite Mr. Yee’s comment that he had consumed alcohol, Cpl. Frost did not observe any physical indicia of alcohol consumption. [ 4 ] The Applicant provided Cpl. Frost with his vehicle documents and his driver’s license, which was a British Columbia driver’s license. The vehicle registration was an Alberta vehicle registration. When asked about these discrepancies, Mr.

Yee, on the Applicant’s behalf, said the Applicant had recently moved to Alberta, and had not changed his driver’s license. Mr. Yee produced an Alberta driver’s license. [ 5 ] As Cpl. Frost was returning to his police vehicle, he looked into the rear compartment of the Applicant’s vehicle, with his flashlight. He noted that there was “lots of luggage,” which struck Cpl. Frost as odd given the explanation that they had just been in British Columbia to attend a family party. Cpl. Frost considered this to be suspicious. [ 6 ] Once he returned to his police vehicle, Cpl. Frost ran a check on the Applicant and Mr.

Yee through the police database. He learned that Mr. Yee had an outstanding warrant for public intoxication. He also learned that the Applicant had been twice charged (but not convicted) with serious drug offences, viz , production of a controlled substance and possession of a controlled substance for the purpose of trafficking. In 2003, the Applicant was acquitted on both charges. In 2005, the Crown stayed the charges.

[7] Based on his various observations, including the quantity of luggage in the vehicle, Mr. Yee’s nervous affect, and thedatabase searches, Cpl. Frost formed the suspicion that there might be drugs in the Applicant's vehicle. At 12:06 a.m. Cpl. Frost returnedto the Applicant’s vehicle and asked the Applicant and Mr. Yee to exit the vehicle. He advised them that he was detaining them for adrug investigation. To Cpl. Frost’s mind (and observations), Mr. Yee was interpreting for the Applicant, everything that Cpl. Frost wassaying to them. [8] Cpl.

Frost explained their Charter rights and “caution,” pausing to allow Mr. Yee to interpret for the Applicant. Both Mr.Yee and the Applicant indicated that they understood their Charter rights and the “caution.” [9] By this time, another officer, Cst. Cutcliffe had arrived on the scene. Cpl. Frost placed the Applicant in the back seat of hispolice vehicle and Cst. Cutcliffe placed Mr. Yee in the back seat of his police vehicle. [10] Cpl. Frost then deployed his service dog, Police Service Dog Gus to “search” the perimeter Applicant’s vehicle. Cpl.

Frostobserved that PSD Gus provided a positive "hit" (PSD Gus sat), indicating that there were drugs in the vehicle. As a result, at 12:15 a.m.,Cpl. Frost formed the belief that the Applicant and Mr. Yee were in possession of a controlled substance. [11] Because the Applicant’s primary language was Cantonese, and he allegedly had limited English-language skills, at 12:16a.m., Cpl. Frost contacted dispatch to try to locate a Cantonese-speaking RCMP member to assist him.

While waiting to hear back, Cpl.Frost attempted to explain to the Applicant the reasons for the arrest and to provide the Applicant with his Charter rights. To Cpl. Frost,the Applicant appeared to have difficulty understanding, although Cpl. Frost did not believe that the Applicant had no understanding ofhis rights. At 12:22 a.m., an RCMP operator contacted Cst. Wei He (a Cantonese-speaking member of the Cochrane RCMP detachment)and requested assistance in Cantonese language

interpretation services. [12] At 12:27 a.m., Cpl. Frost contacted Cst. He by telephone. Beginning at 12:32 a.m., Cst. He spoke with the Applicant andexplained the reasons for his arrest. Cst. He explained to the Applicant his Charter rights and the police caution, and read the right tocounsel verbatim to the Applicant. Cst. He spoke with the Applicant until 12:40 a.m., and explained to the Applicant that he would betaken to the nearest RCMP detachment and could then telephone a lawyer. The Applicant indicated to Cst.

He that he understood thereason for his arrest, his Charter rights, and that he wanted to speak to a lawyer. Cst. He then read the police caution to the Applicantand the Applicant indicated that he understood it. Cst. He read the secondary caution to the Applicant. Cst. He advised Cpl. Frost that theApplicant wanted to speak to a lawyer. At 12:54 a.m., Cpl. Frost turned the Applicant’s custody over to Cst. DeBow, who transported theApplicant to the Lake Louise RCMP detachment. [13] Cst. Cutcliffe and Cpl.

Frost seized 13.648 kilograms (approximately 30 pounds) of bulk packaged marihuana from a blackduffel bag found in the rear cargo area of the Applicant’s vehicle and 225 grams of marihuana from a black garbage bag foundunderneath the middle rear seat of the vehicle. Health Canada conducted tests on the materials that the officers seized from the vehicleand determined them to be cannabis marihuana, a substance listed in

Schedule II of the Controlled Drugs and Substances Act. [14] Cst. DeBow and the Applicant arrived at the Lake Louise RCMP detachment, at 1:20 a.m. Cst. DeBow placed the Applicantin the private telephone room. The Applicant spoke with a lawyer through the assistance of a Cantonese interpreter that Legal Aidprovided. The Applicant concluded his call to counsel at 1:46 a.m. At that time, Cst. DeBow gave the Applicant a glass of water and hisblood pressure medication. Thereafter, Cst. DeBow fingerprinted the Applicant and released him on a $500 recognizance.

The Applicantmaintained his right to silence and did not provide any of the officers with a statement. III. Discussion A. Unreasonable Search and Seizure (Charter s 8) and Arbitrary Detention (Charters 9) [15] The search that PSD Gus conducted was a warrantless search. Thus, the Crown bears the onus of proving that the search wasreasonable, and was based on a “reasonable suspicion” on Cpl. Frost’s part. [16] The parties agree that the Supreme Court of Canada established the “reasonable suspicion” standard in R v Kang-Brown,2008 SCC 18 , [2008] 1 SCR 456 [Kang-Brown].

That court, more recently, expanded on the Kang-Brown standard in R vMacKenzie, 2013 SCC 50, [2013] 3 SCR 250 [MacKenzie] and R v Chehil, 2013 SCC 49, [2013] 3 SCR 220 [Chehil]. [17] In Kang-Brown, Deschamps J at paras 164-69, held that when the police use a “sniffer dog,” they do not violate the accusedperson’s Charter rights, where the police had a reasonable suspicion that the target of the search was engaged in criminal behavior beforedeploying the sniffer dog.

She held that there will be a reasonable suspicion if, on an objective view of the totality of the circumstances,the police reasonably suspect that the person is involved in criminal activity. Although a reasonable suspicion requires more than meresuspicion or a hunch, it can be established based on grounds of a lesser quantity, content, or reliability than that which would be requiredfor reasonable grounds. Other judges of that court agreed with that analysis.

The court analogized “reasonable suspicion” with“reasonable possibility”; not reasonable grounds. [18] Despite this, in Chehil at para 28, Karakatsanis J, for the court, said the following: … [T]he suspicion held by the police cannot be so broad that it descends to the level of generalized suspicion, which was described byBastarache J., at para. 151 of A.M., as suspicion "that attaches to a particular activity or location rather than to a specific person". [19] She went on to say that the reasonable suspicion standard requires that the entirety of the circumstances, inculpatory andexculpatory, be assessed to determine whether there are objective ascertainable grounds to suspect that an individual is involved incriminal behavior.

Further, reasonable suspicion need not be the only inference available on a particular set of facts. There may well be

other reasonable

interpretations of facts, which may support completely innocent explanations, and this is acceptable, as reasonablesuspicion requires only the possibility of criminal behavior, not the probability: Chehil at paras 32-33. [20] Karakatsanis J went on to explain that it is the Crown’s onus to show “that the objective facts rise to the level of reasonablesuspicion, such that a reasonable person, standing in the shoes of the police officer, would have held a reasonable suspicion of criminalactivity”: Chehil at para 45.

She went on to say the following: An officer's training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonablesuspicion. However, this is not to say that hunches or intuition grounded in an officer's experience will suffice, or that deference is owedto a police officer's view of the circumstances based on her training or experience in the field … A police officer's educated guess mustnot supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard.

Evidence as to the specific natureand extent of such experience and training is required so that the court may make an objective assessment of the probative link betweenthe constellation of factors relied on by the police and criminality. The more general the constellation relied on by the police, the morethere will be a need for specific evidence regarding police experience and training. To the extent that specific evidence of theinvestigating officer's experience and training supports the link the Crown asks the court to draw, the more compelling that link will be.

Chehil at para 47. [21] Finally, she held that “police are not under a duty to investigate alternative explanations for constellations of factors givingrise to reasonable suspicion”: Chehil at para 67.

This narrows the broadness of the investigations that the police must undertake.Provided their suspicions are reasonable, they need not go on a “wild goose chase” investigating every theoretical, hypotheticalalternative explanations for the constellation of factors they observe. [22] In MacKenzie, Moldaver J said the following: Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Policeofficers are trained to detect criminal activity. That is their job. They do it every day.

And because of that, "a fact or consideration whichmight have no significance to a lay person can sometimes be quite consequential in the hands of the police" … Sights, sounds,movement, body language, patterns of behaviour, and the like are part of an officer's stock in trade and courts should consider this whenassessing whether their evidence, in any given case, passes the reasonable suspicion threshold.

Thus, in assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should beconducted through the lens of a reasonable person "standing in the shoes of the police officer" … MacKenzie at paras 62-63 [citations excluded]. [23] The Applicant argues that Cpl. Frost was not allowed to take into consideration the Applicant’s criminal history, as in onecase the Applicant was acquitted and in the other the Crown entered a stay of proceedings. The Crown argues that Cpl. Frost wasrequired to take this information into consideration.

In Chehil at para 33, Karakatsanis J quoted Doherty JA in R v Golub (1997), (ON CA), 34 OR (3d) 743 at 751 (CA), where he said, “[t]he officer must take into account all information available to himand is entitled to disregard only information which he has good reason to believe is unreliable” [emphasis added]. The Applicant’scriminal history is “information.” Cpl. Frost testified that he was “aware” of this information, but it did not ground his reasonablesuspicion. When one listens to the audio recording of Cpl.

Frost’s actions of that night, one can hear him say, “interesting” when he sawthis information. [24] This Court finds that the Applicant’s criminal history is merely one factor that Cpl. Frost took into account, and that it was nota critical factor. Cpl. Frost also took into account other, more important, factors. This Court listened to and observed a portion of theaudio-visual recording of Cpl. Frost’s interaction with Mr. Yee. Although much was made about whether Mr. Yee’s responses to Cpl.Frost’s inquiries were “nervous” and fabricated, this Court holds that the various pauses in Mr.

Yee’s responses were, indeed, nervousand fabricated. The pauses in his responses were not natural. And the story he gave to Cpl. Frost was one that rightfully caused Cpl. Frostto be suspicious of it. Cpl. Frost was also concerned about Mr. Yee’s veracity when Mr. Yee said he had consumed alcohol, when Cpl.Frost detected no sign of alcohol consumption. Besides, Mr. Yee’s comment was a voluntary, odd, unprompted comment, when Cpl.Frost had made no inquiry concerning the consumption of alcohol. Cpl. Frost was also concerned about the amount of luggage in thevehicle, when Mr.

Yee had told him they were returning from a family party in the Okanagan. [25] It should be noted, at this stage, that Cpl. Frost is a very experienced police officer. He testified that in his almost 11 years asan RCMP officer, he has been involved in traffic enforcement and education. He has conducted about 10,000 traffic stops in his career,many of which have involved drug investigations, which have included PSD Gus. He has been involved in about 500 drug investigations.PSD Gus has been involved in about 350 drug investigations. Cpl.

Frost has taken many courses that have involved “heightenedawareness,” which trains police officers to be aware of what is going on when they stop a vehicle. He referred to this as “criminalinterdiction training.” He is now an instructor in some of these programmes. The reason this Court has outlined Cpl. Frost’s backgroundis to illustrate that he was not making “guesses” at what he is observing. He was exercising his “stock in trade,” as Moldaver J observedin MacKenzie. [26] Thus, this Court finds that, in the totality of the circumstances, Cpl.

Frost’s suspicion that there were drugs in the Applicant’svehicle was reasonable. This is based on the totality of the circumstances, including the Applicant’s criminal history. Even without thatinformation, however, this Court finds that the balance of the information that Cpl. Frost gathered and observed would be sufficient toground his reasonable suspicion. It was not a mere hunch. Nor was he on a fishing expedition. [27] The Applicant argues that Cpl. Frost was undertaking a search when he shone his flashlight into the vehicle. This Courtdisagrees.

Police officers are entitled to shine a flashlight in a person’s vehicle when the officer stops the vehicle at night. In R vMellenthin, (SCC), [1992] 3 SCR 615, 135 AR 1, 5 Alta LR (3d) 232 [Mellenthin, cited to SCR], the court was dealingwith a check stop program. The comments that the court made concerning police officers’ use of flashlights is applicable to any stop thatpolice officers make at night. It said the following:

There can be no quarrel with the visual inspection of the car by police officers. At night the inspection can only be carried out with theaid of a flashlight and it is necessarily incidental to a check stop program carried out after dark. The inspection is essential for theprotection of those on duty in the check stops. There have been more than enough incidents of violence to police officers when vehicleshave been stopped.

Nor can I place any particular significance upon the fact stressed by the appellant that the police only made use of aflashlight after the request had been made of the appellant to produce the necessary papers and not when the constable first approachedthe car. Although the safety of the police might make it preferable to use the flashlight at the earliest opportunity, it certainly can beutilized at any time as a necessary incident to the check stop routine. Mellenthin at 623-24 [emphasis added]. [28] The Applicant’s argument that Cpl. Frost detained him arbitrarily is tied to his argument that Cpl.

Frost did not have areasonable suspicion that permitted him to deploy PSD Gus. The facts in MacKenzie are similar to those in the case at bar. In that case,Moldaver J said the following: In this case, the basis for the detention and the basis for the search are one and the same — reasonable grounds to suspect that theappellant was involved in an offence under the CDSA. Accordingly, the grounds for both the detention and the sniff must sink or swimtogether.

My conclusion that the police had reasonable suspicion sufficient to justify the sniffer-dog search … thus leads equally to theconclusion that the police had "reasonable grounds to detain" the appellant under the authority recognized in Mann … MacKenzie at para 37. [29] Earlier, Moldaver J described the holding in R v Mann, 2004 SCC 52, [2004] 3 SCR 59 as follows: Mann held that the police are entitled to detain a person for investigative purposes where they have reasonable grounds to suspect thatthe individual is connected to particular criminal activity and that such a detention is reasonably necessary in the circumstances … MacKenzie at para 35. [30] In the case at bar, this Court finds that Cpl.

Frost did not arbitrarily detain the Applicant, as this Court finds that he had areasonable suspicion that he might find drugs in the Applicant’s vehicle. As for the search, Lamer J, as he then was, said for the majorityin R v Collins, [1987] l SCR 265 at 278, "A search will be reasonable if it is authorized by law, if the law itself is reasonable and if themanner in which the search was carried out is reasonable." As mentioned earlier, it is the Crown’s burden to show on a balance ofprobabilities that the warrantless search was reasonable. [31] The search was authorized by law, as Cpl.

Frost had a “reasonable suspicion sufficient to justify the sniffer-dog search.” Thelaw is reasonable in the sense that it authorizes the police to conduct a search for the purposes of officer safety, and to determine whethertheir suspicions are borne-out.

Finally, the manner in which PSD Gus conducted the search was reasonable, as he did not require theApplicant to conscript himself, and PSD Gus was not required to move, or even touch the Applicant’s belongings; he simply sniffedaround the Applicant’s vehicle. [32] The Applicant argues that PSD Gus’s search was incident to arrest, and breaches the principles that the Supreme Court ofCanada articulated in R v Caslake, (SCC), [1998] 1 SCR 51. This Court finds that the search that PSD Gus undertookwas before Cpl. Frost arrested the Applicant. PSD Gus undertook the search after Cpl.

Frost had a formed a reasonable suspicion thatdrugs were in the Applicant’s vehicle. Once PSD Gus confirmed the “hit,” Cpl. Frost arrested the Applicant, as Cpl. Frost then hadreasonable and probable grounds to arrest the Applicant. [33] This Court finds that Cpl. Frost did not breach the Applicant’s rights under Charter ss 8 or 9, and accordingly, it dismisses hisapplication as it relates to these. B. Failure to Inform of Reasons for Detention and Right to Counsel (Charter ss10(

a) and 10(b)) [34] The Applicant argues that Cpl. Frost did not inform him of the reasons for his detention and arrest, because the Applicantallegedly had a limited understanding of the English language. He argues that Cpl. Frost failed to take the necessary steps to have aproper interpreter translate the Applicant's Charter s 10(

a) right to him. Rather, Cpl. Frost relied on Mr. Yee, who himself was a suspect,to interpret the Applicant’s Charter s 10(

a) right to him. [35] The Crown argues that it was reasonable for Cpl. Frost to rely on Mr. Yee for assistance in interpreting the Charter s 10(a)right to the Applicant at this early point of the investigation. It would not have been reasonable for Cpl. Frost to have waited an indefiniteamount of time to locate a Cantonese-speaking RCMP member, when Mr. Yee was present, was being read the same rights, and wascapable of providing an

interpretation. [36] Cpl. Frost immediately advised the Applicant and Mr. Yee of the reasons for their detention. After PSD Gus completed hissearch, Cpl. Frost immediately arrested the Applicant and Mr. Yee, and advised them of the reason for their arrest. He also “Charteredand cautioned” them. [37] Cpl. Frost neither speaks nor understands Cantonese. Mr. Yee does. Cpl. Frost spoke slowly and permitted Mr. Yee tointerpret what Cpl. Frost was saying for the Applicant’s benefit. As Mr. Yee was also a suspect, Cpl. Frost had no reason to believe thatMr. Yee would wrongly interpret what Cpl.

Frost was saying to the Applicant. It was not unreasonable for Cpl. Frost to believe that Mr.Yee was providing a proper and accurate

interpretation. He confirmed with the Applicant that the Applicant understood what was beingsaid. [38] Besides this, while the Applicant was still seated in his vehicle, and before Cpl. Frost and the Applicant came to the place

where Mr. Yee was located, Cpl. Frost was giving instructions to the Applicant. Those instructions were to get out of the vehicle, turnoff the vehicle and for the Applicant to place his wallet on the dashboard of the vehicle. The Applicant followed those instructions. Itshould be noted that Cpl. Frost was not barking those instructions to the Applicant. He was speaking, using a polite, slow, and deliberatevoice. The Applicant obeyed Cpl. Frost’s instructions. When Cpl. Frost and the Applicant arrived at the location where Mr. Yee wassituated, Cpl. Frost asked Mr. Yee to interpret. Cpl.

Frost spoke in short sentences, and gave Mr. Yee time to interpret what he had said tothe Applicant. [39] Cpl. Frost did not read from his Charter card. But that is not the test. In R v Mohamed, 2013 ABCA 406 at para 19, theAlberta Court of Appeal said the following: A court must not take a formalistic approach to assessing the adequacy of what an accused was told in considering a

section 10(a)breach. In R. v. Evans, (SCC), [1991] 1 S.C.R. 869 (S.C.C.), McLachlin J (as she then was) stated at 888: When considering whether there has been a breach of s. 10(

a) of the Charter, it is the substance of what the accused can reasonably besupposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what theaccused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision todecline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b). [40] It appeared from the audio-visual video that this Court viewed that both Mr. Yee and, through Mr.

Yee, the Applicant,understood the substance of the reason for their detention. Although this Court does not understand Cantonese, it had the services of aninterpreter during the voir dire, who interpreted what Mr. Yee told the Applicant. What Mr. Yee told the Applicant was not precise, butwas the gist of what Cpl. Frost was telling him concerning the reason for their detention. Again, this Court is satisfied that the Applicantknew the reason for their detention, either through Mr.

Yee, or through his limited understanding of English. [41] This Court finds that the Applicant has not satisfied the onus placed on him to show a breach of Charter s 10(a). This Courtfinds that Cpl. Frost immediately informed the Applicant of the reasons for his detention. [42] Similarly, Cpl. Frost relied on Mr. Yee to inform the Applicant of the Applicant’s Charter s 10(

b) right to counsel. The audio-visual video that this Court viewed showed that the interchange between Mr. Yee and the Applicant was very short, and Cpl. Frost cut-off their discussion. This Court could not see what was happening off-camera, but it appeared that Cpl. Frost was satisfied that theApplicant understood his Charter s 10(

b) right insofar as it related to the investigative detention. [43] Again, this was a situation where Cpl. Frost did not read from his card. He paraphrased the Charter s 10(

b) right. Did this“undermine his right to counsel,” to quote the phrase that McLachlin J, as she then was, used in R v Evans, (SCC),[1991] 1 SCR 869, which the Alberta Court of Appeal quoted in Mohamed? Viewing this reasonably in all the circumstances, this Courtfinds that it did not. Neither Mr. Yee nor the Applicant were arrested at this time. There were under investigative detention. Had theyrequested a right to contact counsel, they would not have been permitted to do so roadside. Although the Applicant argues that Cpl.

Frostshould have let the Applicant use the officer’s cellular telephone, the Supreme Court of Canada recognized the concerns with thissuggestion. In R v Taylor, 2014 SCC 50 at paras 27-28, [2014] 2 SCR 495 [Taylor], Abella J, for the court said the following: ... [T]he police are under no legal duty to provide their own cell phone to a detained individual … While s. 10(

b) does not create a “right”to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the firstreasonable opportunity. [44] This Court finds that the Applicant has not satisfied the onus placed on him to show a breach of Charter s 10(

b) insofar as itrelated to Cpl. Frost’s investigative detention. C. Failure to Inform of Reasons for Arrest and Right to Counsel (Charter ss 10(a)and 10(b)) [45] After PSD Gus indicated to Cpl. Frost that there was a controlled substance in the Applicant’s vehicle, Cpl. Frost arrested theApplicant. This was done while the Applicant was sitting in Cpl. Frost’s police vehicle, so Mr. Yee was not present to interpret. Cpl.Frost informed the Applicant of the reason for his arrest and articulated the Applicant’s Charter s 10(

b) right. The Supreme Court ofCanada summarized the contours of the Charter s 10(

b) right in R v Bartle, (SCC), [1994] 3 SCR 173 at 191-92, whereLamer CJC said the following: This Court has said on numerous occasions that s. 10(

b) of the Charter imposes the following duties on state authorities who arrest ordetain a person: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legalaid and duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise theright (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [46] The Applicant argues that Cpl.

Frost did not properly administer the informational component of the Applicant's Charter s10(

b) right. He argues that Cpl. Frost did not inform the Applicant of his Charter right “without delay.” In R v Suberu, 2009 SCC 33,[2009] 2 SCR 460 at para 2, McLachlin CJC and Charron J held that “[t]he immediacy of this obligation is only subject to concerns forofficer or public safety or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.” Immediately onarrest, Cpl. Frost determined from the Applicant, the language the Applicant understood and spoke. Cpl. Frost then contacted RCMP

dispatch to see if it could located a Cantonese-speaking RCMP officer. While this was being done, Cpl. Frost tried, as best he could, to explain the Applicant’s Charter ss 10(

a) and 10(

b) rights, given the Applicant’s limited understanding of the English language. The exchange was not, from this Court’s perspective, satisfactory. Although the Applicant appeared to understand some of the things that Cpl. Frost was saying, it is clear to this Court that he was not understanding everything. [ 47 ] What was important, was that Cpl. Frost was trying to explain the Charter s 10 rights to the Applicant. Within 3 minutes, he was told that a Cantonese-speaking RCMP member was going to assist, then there were discussions between Cpl. Frost and RCMP dispatch regarding the Cantonese-speaking RCMP member.

All the while, Cpl. Frost was trying to keep the Applicant advised of these goings-on. [ 48 ] Finally, Cst. He was reached, and advised the Applicant of his Charter rights and the caution. The Applicant makes no argument concerning the information he received from Cst. He. The Applicant advised Cst. He that he wanted to contact counsel. The Applicant argues that Cpl. Frost should have allowed the Applicant to use his cellular telephone. Cpl. Frost testified that he does not allow suspects to use his cellular telephone for 2 reasons.

First, he cannot guarantee the suspect’s privacy while the suspect is making the cellular telephone call. The suspect would be in the police vehicle, and cameras are recording the going-on in the vehicle. The second reason concerns officer safety and investigation. The officer does not know whether the suspect is travelling with others, who might be tipped-off to the arrest and either avoid detection, or arrive to protect the suspect. Again, the Supreme Court of Canada recognized these concerns in Taylor , quoted above. [ 49 ] This Court does not find that Cpl.

Frost breached this aspect of the Applicant’s Charter s 10 rights. Surely, neither the Charter nor the Supreme Court of Canada expects all police officers to speak all languages that are spoken in Canada. Cpl. Frost, in addition to trying to explain the Applicant’s Charter rights to the Applicant as best he could, immediately tried to elicit the services of Cst. He as soon as was practicable in the circumstances. In carrying out these steps, this Court finds that Cpl.

Frost fulfilled his duty advise the Applicant of the reasons for his arrest, and to inform the Applicant of his right to retain and instruct counsel without delay . In any event, Cpl. Frost was able to engage the services of Cst. He to interpret for him. Cst. He spoke with the Applicant 12 minutes after Cpl. Frost had arrested the Applicant, and Cst. He reiterated the Applicant’s Charter rights and caution. [ 50 ] The Applicant argues that Cpl. Frost did not fulfill his responsibility to fully articulate to the Applicant the Applicant’s Charter s 10(

b) right, as Cpl. Frost did not provide the full right from his “ Charter card.” Again, this comes down to a question of whether Cpl. Frost’s paraphrasing of the content of his “ Charter card” serves to “undermine [the Applicant’s] right to counsel.” Remembering that Cpl. Frost does not speak Cantonese, the complexity of the wording of his “ Charter card” would undermine the right that he was attempting to articulate to the Applicant. Cpl. Frost explained to this Court that he felt the better way to approach the Applicant was to provide him with the Charter right in simpler layperson’s language.

He recognized that this was not a “best practices” approach, but given the circumstances, he felt this was the best approach. [ 51 ] This Court finds that what Cpl. Frost did was the best he could do in the circumstances, and would perhaps give the Applicant some idea of his rights “without delay.” This attempt did not undermine the Applicant’s right to counsel, but, in fact, advised him of it. Cst. He then gave the Applicant a full explanation of that right. [ 52 ] In the case at bar, the first reasonable opportunity for the Applicant to exercise his Charter s 10(

b) right arose once Cst. DeBow took him to the RCMP detachment. Cst. DeBow then placed the Applicant in a private telephone room and was provided the opportunity to contact counsel, and in fact did speak with counsel through the assistance of a Cantonese interpreter that Legal Aid provided. [ 53 ] There has been no breach of the Applicant’s Charter s 10(

b) rights. D. Charter s 24(2) [ 54 ] This Court has found that Cpl. Frost did not breach any of the Applicant’s Charter -protected rights. It will, however, provide a brief review of its Charter s 24(2) analysis had it found a breach. It is undertaking this exercise, as it, in part, fortifies its findings that Cpl. Frost did not breach the Applicant’s Charter -protected rights. [ 55 ] A Charter s. 24(2) analysis starts from the position that there has been a breach of the Charter . This is important, as this fact has already brought the administration of justice into disrepute.

The Charter s. 24(2) analysis is seeking to ensure that courts do not allow a situation where there is further damage to the repute of the administration of justice through the admission of the evidence acquired as a result of that breach: R v Grant , 2009 SCC 32 [ Grant ] at para 69 . [ 56 ] The Supreme Court of Canada provides courts with a roadmap to follow when faced with the issue of whether to exclude evidence as a result of a Charter breach, when it said: When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

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. Grant at para 71 . [ 57 ] This Court will discuss each of steps. 1. The seriousness of the Charter -infringing state conduct

[58] This first stop along the journey of determining whether the effect of admitting the evidence on society's confidence in thejustice system is for the court to examine the police or state conduct that led to the Charter violation. When we look through society'sprism, we will see a spectrum of conduct ranging from deliberate, severe, reckless or wilful to inadvertent or minor. The more deliberateor severe the conduct, the greater the likelihood that society will not tolerate such conduct.

As a result, societal needs will direct thatcourts exclude the evidence that resulted from that conduct. [59] In R v Harrison, 2009 SCC 34, [2009] 2 SCR 494 at para 23, the court said: The metaphor of a spectrum used in R. v. Kitaitchik (2002), (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), per DohertyJ.A., may assist in characterizing police conduct for purposes of this s. 24(2) factor: Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard forCharter rights. ...

What is important is the proper placement of the police conduct along that fault line, not the legal label attached to theconduct. [60] In the case at bar, Cpl. Frost’s conduct was not deliberate, severe, reckless or wilful to inadvertent or minor. In fact, this Courtwould not even go so far as to call it blameless, as it found that he did not breach the Applicant’s Charter-protected rights. As for thedecision to deploy PSD Gus, it was based on his reasonable suspicion that there might be drugs in the Applicant’s vehicle. One cannotfault Cpl. Frost for having a certain level of experience.

In MacKenzie, Moldaver J recognized that police have experiential knowledgeand they can rely on that knowledge when they are undertaking their policing duties. [61] Cpl. Frost did the best he could in a difficult situation when he was advising the Applicant of the reasons for the detention andarrest and the Applicant’s right to counsel. He used the services of Mr. Yee, and was under the impression that Mr. Yee was interpretingthe goings-on to the Applicant. Once Mr. Yee and the Applicant were separated, Cpl. Frost explained to the Applicant in plain languagethe reason for his arrest and his right to counsel. Cpl.

Frost thought the Applicant was understanding him. Despite this, Cpl. Frostelicited the services of Cst. He. [62] For these reasons this Court finds that Cpl. Frost understood what was required of him and was actually acting in good faithby trying his best to fulfill the requirements that the Charter and courts have placed on him. 2. The impact of the breach on the Charter-protected interests of the accused [63] The second stop along the journey is to examine rights of the accused that the Charter protects and determine the impact ofthe Charter violation on the accused's rights.

Like the first stop along the journey, courts must examine this through society's prism. Themore intrusive the breach on the accused's rights, the more likely that society will see an individual's Charter-protected rights asmeaningless. Society will direct courts to exclude such intrusive evidence. [64] As for the deployment of PSD Gus, this had little effect on the Applicant’s Charter-protected interests. The search did notinfringe the applicant’s privacy rights, was non-intrusive and the Applicant did not have to participate in it.

The only negative effect thatthe search had on his interests was the fact that PSD Gus located the drugs that were hidden in the Applicant’s vehicle. Because Cpl.Frost had a reasonable suspicion that there might be drugs located within the Applicant’s vehicle, he was authorized by law to deployPSD Gus. [65] Cpl. Frost thought that the Applicant understood, to a certain extent, what he was telling him about the detention, arrest andCharter rights and caution. With respect to the detention and the right to counsel on detention, Mr. Yee was providing

interpretationservices, which Cpl. Frost thought was proper, given that, to him, the Applicant was providing appropriate responses. As for the arrestand right to counsel on arrest, Cpl. Frost explained the Applicant’s Charter rights and caution in lay language, which he felt theApplicant understood. To ensure that the Applicant completely understood his rights and the caution, he enlisted the services of Cst. He.Cpl. Frost did not attempt in any way to elicit information from the Applicant during this time. In fact, given the Applicant’s limitedknowledge of the English language, why would Cpl.

Frost attempt to elicit such information? Accordingly, there was nothing thatprejudiced the Applicant’s legal position. [66] The circumstances of the Applicant’s detention and arrest were not inhumane or offensive. In fact, Cpl. Frost did not evenplace the Applicant in handcuffs. He treated the Applicant with respect. 3. Society's interest in the adjudication of the case on its merits [67] This stop along the journey requires courts to determine "whether the truth-seeking function of the criminal trial processwould be better served by admission of the evidence, or by its exclusion." Grant at para 79.

This analysis requires courts to examine thequality of the evidence against the means by which the evidence was obtained. The latter, in part, is examined during the first two stopsalong our journey. The former examines the reliability of the evidence. This examination cannot be done in a vacuum. For example,society has no interest in having a court adjudicate a case based on such unreliable evidence and, accordingly, society will direct courts toexclude such evidence.

On the other hand, society will not tolerate a court excluding evidence that is relevant and reliable. [68] The Supreme Court of Canada also pointed to the importance of the evidence to the prosecution's case when it said thefollowing: The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it formsthe entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on therepute of the administration of justice where the remedy effectively guts the prosecution. Grant at para 83.

[ 69 ] In this case, the evidence is reliable, and as this Court has found, the way in which Cpl. Frost obtained the evidence did not breach the Applicant’s Charter -protected rights. Even if he did, he did so minimally. [ 70 ] The possession of controlled substances for the purpose of trafficking is a serious offence. The evidence that Cpl. Frost seized is important to the Crown’s case. This Court finds that the truth-seeking function of the criminal trial process would be better served by admission of the impugned evidence. 4.

Whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute [ 71 ] Once it has made all the stops along its journey, this Court must then examine what it has found along those stops, balance them and complete its journey by determining the effect of admitting the evidence will have on society's confidence in the justice system. This is not a scientific exercise. In fact, the Supreme Court of Canada said, "No overarching rule governs how the balance is to be struck.

Mathematical precision is obviously not possible": Grant at para 86 . [ 72 ] This Court must repeat that it did not find that Cpl. Frost breached any of the Applicant’s Charter -protected rights. Even if he did, this Court finds that, balancing the 3 factors that the Supreme Court of Canada requires this Court to examine, excluding the evidence would diminish society’s confidence in the justice system and bring it into further disrepute. Accordingly, this Court dismisses the Applicant’s application under a Charter s 24(2), as well. Heard on the 9 th day of May, 2016 to the 11 th day of May, 2016.

Dated at the City of Calgary, Alberta this 3 rd day of June, 2016. K. D. Yamauchi J.C.Q.B.A. Appearances: Sarah Curtis Public Prosecution Service of Canada for the Crown Andrew Fong for the Accused _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice K. D. Yamauchi

_______________________________________________________ The Defendant’s last name is Au Yeung, which has been corrected in the neutral citation line to read R v Au Yeung.