R v Tieu, 2016 ABQB 344

Court of Queen ’ s Bench of Alberta Citation: R v Tieu, 2016 ABQB 344 Date: 20160628 Docket: 130218605Q2 Registry: Calgary Between: Her Majesty the Queen Applicant - and - David Tieu Accused _______________________________________________________ Memorandum of Voir Dire Decision of the Honourable Mr. Justice W. A.

Tilleman _______________________________________________________ Introduction [ 1 ] This drug case focused on surveillance of two individuals, Christopher Pearson and Jeremiah Amero. [ 2 ] The accused, David Tieu, entered the scene at the last minute, was unknown to police, and otherwise had nothing to do with the surveillance of the key individuals. Yet the Crown charged Tieu and Pearson with possession of cocaine for the purposes of trafficking, contrary to

section 5.2 of the Controlled Drugs and Substances Act , SC 1996, c 19 . Pearson and Tieu were also charged with possessing proceeds of crime, contrary to

section 354 of the Criminal Code , RSC 1985, c C-46 (the “ Code ”). These two charges against Pearson, as well as a third charge, were stayed on March 22, 2016, shortly before trial.

[ 3 ] The Crown is proceeding against Tieu on the trafficking and proceeds counts of the indictment. [ 4 ] Tieu seeks a declaration that the Crown breached his rights under sections 8, 9 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 ... (

b) to retain and instruct counsel without delay and to be informed of that right; and Focus of the Investigation [ 5 ] As stated above this case initially had little, if anything, to do with Tieu. Rather the RCMP had a task force under the leadership of Cpl. (now Sargent) Dahl who along with Sgt. Smart and several others were to surveil two individuals in Calgary targeted for a drug investigation. Tieu entered the surveillance unexpectedly on November 27 th , 2012, the day when he was arrested after a short meeting with Pearson.

Summary of the Evidence Corporal Kent Dahl [ 6 ] As stated above, Dahl, now a Sargent, and with approximately 18 years with the RCMP, was the lead investigator on the surveillance of Pearson. Earlier in October of 2012, Dahl and others started surveilling Pearson, leading eventually to his arrest on November 27, 2012, shortly after the arrest of Tieu. [ 7 ] On November 27 th , 2012, while surveilling Pearson, Dahl received information that a male individual, Tieu, drove into the lot where Pearson was parked.

Tieu had arrived in a Mitsubishi, opened the trunk, went to Pearson’s truck and entered on the passenger side. Tieu and Pearson then left the lot in the truck and returned a short while later, at which time Tieu exited the truck. Tieu then walked back to his car with a laptop bag. [ 8 ] After hearing this information, Dahl believed reasonable and probable grounds existed to arrest Tieu. He was not on the scene himself, so he ordered those RCMP officers on the scene to arrest Tieu. [ 9 ] When giving evidence about his grounds to arrest Tieu, Dahl stated: 1.

He directed the RCMP officers to arrest Tieu because of the real-time observations of Pearson: initially Pearson was seen likely texting, then with Tieu parked close by, they left together in Pearson’s truck, and circled back after about one block; 2. Though he had nothing on Tieu, Dahl had some general information from confidential informants on Pearson; 3. Pearson appeared to be on parole for PPT and conspiracy; 4. Dahl’s experience led him to believe Pearson’s quick short “meets” were likely drug exchanges; 5. Dahl’s experience with quick pickups and drop offs such as Tieu would involve drugs; 6.

Tieu now carried a laptop bag which he did not have before; and 7. Taken as a whole on November 27, 2012, this constituted a drug transaction. [ 10 ] Dahl had other reasons for the arrest, including the confidential informants related to the other target, Amero ( voir dire Exhibit #2) who, like Pearson, had a target sheet. Both informants spent time either in Medicine Hat or being together at the Drumheller Institution. Additionally, Dahl knew Pearson’s residence was not far from where Tieu met Pearson on November 27, 2012.

Further, Dahl did police database checks enough to know that the target Amero had convictions from 2010 including several for possession for the purpose of trafficking. The database search also indicated conditions on both Pearson and Amero to avoid certain persons and for Amero to abstain from alcohol and drugs. [ 11 ] The target sheets for both.

Pearson and Amero included their pictures and other information which assisted Dahl in linking Pearson, in his mind, with drug trafficking. [ 12 ] Dahl gave evidence regarding several other days of surveillance between October and November 27 th , 20102, including surveillance on Amero, Pearson and Pearson’s residence. According to Dahl, some but not all of those days included potential drug deals.

[ 13 ] But Tieu was new. When he entered the picture, Dahl again felt that he had reasonable and probable grounds for his arrest because of what unfolded – Pearson pulling into a parking lot and waiting; Tieu going into the passenger side of Pearson’s truck; the fact that neither used the strip mall services of the lot where they parked; Tieu obtaining a laptop bag (in which over 30 ounces of cocaine were subsequently discovered); and, both Pearson and Tieu leaving in different directions with Tieu leaving on foot. [ 14 ] Once arrested, both Tieu and Pearson were Chartered and cautioned. However, and although the individuals were informed of their

section 10(

b) Charter rights, Dahl decided to “suspend” the right to call counsel. This decision somehow came from Dahl and Sgt. Smart’s choice to search Pearson’s house prior to attaining a warrant. They wanted to “clear” the residence themselves. Their search pre-empted the warrant because they had concerns that Pearson’s evidence would disappear. [ 15 ] Thus, Smart and Dahl entered Pearson’s residence at 10:35 p.m. and secured it at 10:37 p.m.

The warrant did not arrive until 3:03 a.m., and the officers reopened the suite at 3:17 a.m. finally under the authority of the warrant. [ 16 ] Significantly, in the meantime Tieu was not permitted to call counsel until later at the Airdrie station, where Tieu had been sitting in a cell. Both Dahl and Smart told or had other officers tell Tieu that he could not call counsel.

From Dahl’s perspective, suspending the Charter right was not a matter of RCMP policy, but was rather due to the circumstances that arose on that evening. [ 17 ] Dahl was cross examined on roughly five issues: first, suspending the right to counsel; second, “: officer safety”; third, when the warrants arrived; fourth, the weakness of the information in the hands of the confidential informants; and fifth, the reasonable and probable grounds to arrest Tieu. [ 18 ] First, on the issue of suspending the right to counsel, Dahl admitted that he knew it was a Charter right and it should be facilitated as “reasonable as possible” to the accused.

Despite this, Dahl stated that the circumstances of that evening supported suspension of the right. In a surprising admission that there were no cell blocks in Calgary, where Tieu might have called counsel much earlier, Dahl felt he had no choice but to leave Tieu unattended in Airdrie except for the presence of one guard.

To repeat, the right to counsel was suspended until they got a warrant, though Dahl had a hard time explaining why they decided to clear the house before the warrant arrived. [ 19 ] With regard to officer safety, Dahl stated it was always an issue in a drug arrest and even if Pearson did not have any previous weapons offences, officer safety would still be an issue. [ 20 ] Dahl testified in cross examination that he did not wait for the search warrant before entering Pearson’s residence because: i. There were unanswered calls to Pearson’s cell phone, and ii.

The arrest of Tieu and Pearson near to the residence would have been visible to the public. [ 21 ] Dahl felt there was urgency to conduct the search, notwithstanding the hours passing and that there was still no warrant. That precipitated the continued failure to implement the right to counsel for the arrestees, Pearson and Tieu.

When questioned about why he did not order the Tac(tical) Team to perform the search to protect the apartment, Dahl stated that the Team is not trained in surveillance and the post-arrest case was “fluid.” [ 22 ] On the issue of warrants, Dahl felt it was acceptable to perform a partial search without a warrant because it was incident to arrest. When asked if he was aware that police are no longer permitted to search a cell phone incident to arrest, because the law has now changed, Dahl answered he was now aware of the status of the law.

Dahl also admitted that the house was entered (without a warrant) 2 ½ hours after the initial arrest. Dahl had a hard time explaining why the house was entered with a warrant pending when he did not first look for any lights or listen for noise or any activities in the house. His answer included that he had limited police resources. [ 23 ] Dahl answered questions about the confidential informants and the overall small amount of information provided to police by those informants.

Dahl felt that Amero and Pearson, being known to each other, plus a third individual by the name of Leonovich, combined with short meets in October and November with these individuals or others throughout the city, led to reasonable and probable grounds on November 27 th , 2012. On that night, Dahl felt that the new suspicious activities of Tieu amounted to reasonable and probable grounds to arrest him. Dahl admitted he saw no such grounds on all of the other days in October or November. [ 24 ] In explaining the grounds to arrest Tieu, Dahl agreed it was dark because it was 7:00 p.m. in November.

As to whether Tieu went into the trunk, Dahl “understood” that is what happened. Dahl admitted he did not know for sure if Tieu took the laptop out of the trunk in the first instance.

He agreed that Pearson and Tieu had a short drive in Pearson’s truck, and the reason that Tieu was stopped and arrested is because he now had a laptop bag. [ 25 ] Dahl also answered some questions about the potential trafficker Amero and agreed he never saw Amero return to Medicine Hat, which would have corroborated some of the earlier information about his trafficking in Medicine Hat. [ 26 ] Finally, Dahl admitted this case involved a two month extended investigation and their focus was on Amero and Pearson, not on Tieu.

Tieu was neither a subject nor had he been previously observed during the surveillance at all. While much of the information, if not all of it, focused on Pearson, Dahl admitted that the accused Tieu had nothing to do with the residence as it was Pearson’s and not his. Dahl further admitted that nobody checked Tieu’s background and the police had no information about any relationship he had with Pearson.

Furthermore, the ringing phone may have been a concern about evidence disappearing or not, but the phone was Pearson’s, not Tieu’s. [ 27 ] In re-direct, Dahl again stated that he believed Pearson was trafficking on November 27 th , 2012, and that all of the days previous to that were leading up to the eventual reasonable and probable grounds of the eventual arrest of the newly-discovered Tieu. Constable Yaworski

[ 28 ] Cst. Yaworski, with just short of 10 years with the RCMP, gave evidence that he was involved in this surveillance. He was the officer with direct eyes on Tieu. Yaworski was under the direction of two road bosses, Dahl and Smart. He stated that both of these senior officers traded the responsibility for being the road boss, and it depended on the day in question as to who was the boss. [ 29 ] Yaworski admitted surveillance prior to November 27, 2012 was not focused on Tieu; instead, the focus was on Pearson.

Indeed, on November 27 th , when they arrested Tieu, Yaworksi was surveilling Pearson; Tieu was not known to the surveillance team. At 18:45 hours, when Pearson’s truck parked at Avenue Deli, Yaworski parked nearby and walked to the lot to surveil Pearson. When he did so, in his opinion he was 50 ft. away from Pearson’s vehicle. [ 30 ] Yaworski called Smart to inform him of the updated events, including the arrival of Tieu in the Mitsubishi a few minutes later. Tieu parked his car and went into the trunk to get something. From there, he got into the passenger side of Pearson’s truck and the truck left the lot.

Yaworoski called Smart and updated him as to what was happening next. Once the two men left, Yaworski (not Smart or Dahl) walked by Tieu’s car and saw: (

a) It was still running; (

b) He got the Alberta plate off the car; (

c) He went eastbound to get back in his car and saw the Asian male ( Tieu) walking back to his car a very short time later, but this time the male had a black laptop bag on his shoulder. [ 31 ] Thus, Yaworski called Smart again to update him including that he (Yaworski) saw Tieu put the bag in his trunk. [ 32 ] From there, Dahl, not Smart, called or radioed and told Yaworski to:

(1) Arrest the driver of the Mitsubishi, and

(2) Arrest him for trafficking. [ 33 ] Upon arresting Tieu, Yaworski, with gun at the ready and assisted by Constables Burge and Burton, took him out of the car. Yaworski read Tieu his Charter rights. He asked Tieu if he understood, and Tieu said yes. Further, he asked Tieu if he wanted to call a lawyer, and Tieu said “yes.” No other statements were given by Tieu at the time; however, they did chat occasionally on the drive to Airdrie, which is where Yaworski took Tieu and booked him into the cells. [ 34 ] Yaworski admitted that the car and trunk search was for: (

a) Officer safety, and; (

b) The evidentiary search upon arrest. [ 35 ] The search produced three phones in the front jeans’ pocket of Tieu and the laptop bag in the trunk. He did not provide Tieu the right to call a lawyer because of Dahl’s decision to withhold it. [ 36 ] In the interim, Yaworski admitted knowing that Smart along with Dahl and others had entered the Pearson residence before the search warrant in order to “clear it”.

Yaworski, who was the exhibit handler, did not know exactly when Tieu was permitted to call his counsel, but he did release him on a promise to appear knowing that Tieu likely spoke to counsel sometime in the early morning of the next day, November 28, 2012. [ 37 ] Yaworksi went to process the exhibits seized from Tieu and Pearson the following day, and located the cocaine and cash. [ 38 ] Under cross examination, Yaworski admitted only sampling nine samples, meaning 28 samples were not analyzed. He admitted finding roughly two pounds of cocaine in the bag.

Yaworski further admitted that it was “fair to say” that it would be inconsistent with drug dealing to leave a car running during a transaction. [ 39 ] As to the arrest of Tieu, Yaworski admitted that Tieu wanted to talk to a lawyer and that they had general conversation during the drive to Airdrie.

Though he could not recall with certainty, Yaworski said it might be possible that he and Tieu talked about attaining a better deal if he cooperated with police. [ 40 ] Yaworski admitted that there were serious discrepancies between the distances he perceived between himself and the activities he observed, once he assessed the Google map against his recollection of the distances on the night in question. Yaworski had nothing in his notes about the time inside Pearson’s residence, though he agreed that some details “should have been noted in my notes.” Constable Burge [ 41 ] Cst.

Burge, with 15 years in the RCMP, was a member of the surveillance team. On the night in question, it was Burge that opened the trunk and located the laptop bag following Yaworski’s arrest of Tieu. Burge also saw cocaine in cookie and powder form in the bag, and admitted that the officers arrested and searched Tieu under the instruction of Dahl. [ 42 ] Burge said he opened the trunk because he believed there was evidence located therein. He formed these observations from what Yaworski had been saying over the radio. He found the suspected contraband in the trunk and took pictures of it.

Burge eventually gave the evidence to Cst. Burton to take back to the RCMP drug office in Calgary. Burge admitted the surveillance previous to that night, of others, could have happened under an awning with quick handshakes between Pearson and another individual, with money changing hands one way. He confirmed the police did not have solid information on any of the previous surveillance days that could have led to an arrest.

Sgt. Smart [ 43 ] Sgt. Smart, with almost 19 years in the RCMP, was the highest ranking officer on the night of November 27 th , 2012. While doing the afternoon shift, he learned from radio traffic that Pearson went to the strip mall where he then met the accused Tieu, who went to his trunk, got into Pearson’s truck, left for about 90 seconds, and then returned. [ 44 ] Referring to his notes, he agreed he did not take

part in the arrest and that it was Yaworski who advised Smart by phone of what had happened. Smart admitted that it was Dahl who gave the direction to arrest Tieu; Dahl and Smart were not present. Smart’s responsibilities included supervisor, as he was the Sergeant on the team, as well as a street boss for the surveillance project. [ 45 ] With regard to the eventual facilitation of Tieu’s right to contact counsel, it was Smart who arrived in Airdrie at 12:30 a.m. and, while Smart did not speak with Tieu, at 12:36 a.m. Tieu was finally allowed to contact counsel.

He advised the police at 1:09 a.m. that he had spoken with a lawyer. [ 46 ] In explaining the delay to call counsel, Smart pointed the finger to Dahl because it was Dahl’s decision, and not his. Regardless, consistent with Dahl’s testimony, Smart felt the delay was proper because of:

a) the need to preserve evidence; and

b) to ensure officer safety. [ 47 ] Defence counsel asked about Smart’s decision to overrule the Charter and Supreme Court of Canada in this exchange: Q So when Mr. Tieu is arrested -- A Yeah. Q -- do you and Dahl talk to each other and say, let’s evaluate whether we should overrule the Charter and the Supreme Court, or do you just do it? A No, it’s -- we discussed it, whether a phone call would be given right away, or have to be held for preservation of evidence. Q This is after the arrest? A It’s after the arrest. We didn’t even know David Tieu until the arrest.

Q Then you discussed the right to counsel, whether he should be allowed to call? A Yes, it was discussed after his arrest. Q Well, how would the arresting officers know not to give him the right to counsel? A It would have came through Sergeant Dahl. Q Not through you? A Not through me. Q So there was no discussion evaluating it between you and Dahl before it was done? A I believe there was discussion on it, but I don’t have any note of that. Q You have no memory of any discussion? A I don’t -- not specific to that, no. Q Is it automatic, in cases where search warrants are going to be looked at?

A No, it’s not automatic, every case can be different. Q So you have got to evaluate? A You have to evaluate, yeah. Q And in this case, there was no evaluation? A Well, evaluation would have been done by the primary investigator, Sergeant Dahl. [Emphasis added.] [ 48 ] Smart did state that the right to counsel should be given after an evaluation of every case, but that would still include issues of evidence and safety of officers. [ 49 ] Chronologically, Smart confirmed that at 7:02 p.m.

Tieu was arrested; at 8:06 p.m., Pearson was arrested; at 9:55 p.m., Smart decided to enter Pearson’s residence without a warrant; at 10:35 pm., they made the exigent entry into Pearson’s residence; and at 12:10

a.m. Dahl told Smart that he could tell Tieu to call his counsel which he did shortly after 12:30 a.m. the next day. [ 50 ] Tieu was not provided the opportunity to contact counsel for 5 ½ hours after his arrest, 4 ½ hours after Pearson’s arrest, and 2 hours after Pearson’s apartment was entered without a warrant. Constable Troy Burton [ 51 ] Officer Burton, the ITO affiant, was also on the job on November 27 th , 2012. He was part of the team that went to Pearson’s residence and surveilled Pearson.

Burton was also one of the three officers directed by Dahl to take Tieu into custody and arrest him for trafficking. Burton identified the laptop bag with cocaine in it. He took it back to the RCMP office and was the officer who prepared the ITO and search warrant. In fact, he admitted working on the search warrant two days before the arrest took place. Burton testified that as the days went by, he would add information to the ITO. [ 52 ] He also admitted that Tieu should have had the right to call counsel earlier and that the police regularly withhold the

section 10(

b) Charter right of an arrested person. On cross-examination, when asked about the

section 10(

b) delay, Burton said: typically, the phone calls are not given to the accused -- the suspect in this matter, to preserve evidence and for, you know, the safety of the police. We tend not to give phone calls right away until we are able to go in to do the search warrant, for our safety and for the destruction of evidence. Because we don’t want people to phone their friends or phone people in the houses that we may be going into. Q So what you’re saying is it’s systemic? A Right . But in this case, with Mr. Tieu, we weren’t -- I guess it wasn’t his house. Q So there was no reason not to give him right to counsel?

A That wasn’t my decision, sir. Q Well you’re there, I’m trying to get an idea. So you’re saying it’s systemic to not give the right to counsel? A No. Q You’re not saying that? A No, I’m saying that we don’t give -- the phone calls aren’t given right away to protect ourselves and to protect the evidence within the house. Q I misspoke myself. I didn’t mean giving him the right to counsel, I mean giving him the opportunity to call a lawyer? A Right. Q So that is normally suspended until the search warrant is prepared and executed; is that your normal practice?

A That’s a normal practice if we believe that there’s a chance of evidence destruction or jeopardizing police safety . That’s when we would withhold those phone calls. Q There’s always a chance . Any time a warrant is executed, there’s always a chance you’re going into a room that somebody could be in

with bad intent, there’s always a chance, isn’t there? A Okay. But doesn’t that, I guess -- that’s all the more reason to hold the phone calls, is because we don’t want to give anybody theheads up who is inside these houses, or whatever we’re looking in, we don’t want to give them the heads up to destroy the evidence orjeopardize our safety. Q But in this case, you would not have had that concern because it wasn’t Mr. Tieu’s apartment you were going to, so he should havebeen able to call a lawyer? A But that wasn’t my decision, though. ... Q You knew you weren’t going into Mr. Tieu’s apartment? A That’s correct.

Q So given that knowledge, and given all the facts, knowing there’s no particular connection between Tieu and Pearson in anyinvestigation, then obviously Mr. Tieu should have been given an opportunity to call a lawyer? A Okay. Q Do you agree with that? A Yeah, I believe he should have been given an opportunity to call a lawyer. [Emphasis added.] Analysis [53] Tieu seeks an order excluding the evidence acquired by police on the evening of November 27th, 2012. He claims that thepolice breached the following three sections of the Charter: (

i) Section 10(b), his right to counsel, as he was not permitted to call counsel for 5 ½ hours following his arrest; (ii)

Section 9, his right not be arbitrarily detained or imprisoned, as the police did not have reasonable and probable grounds to arresthim, and; (iii)

Section 8, his right to be secure from unreasonable search and seizure, related to the search of his car and person incident to arrest,which were unreasonable because the arrest itself was unreasonable. [54] Tieu has the onus to prove, on a balance of probabilities, that the conduct of the police breached his Charter rights as claimed.

Section 10(b) [55]

Section 10(

b) of the Charter gives every person the right to retain and instruct counsel without delay, and to be informed ofthis right upon arrest. The police must first advise the arrestee of their rights under

section 10(b), which is the informational componentof the right. Second, the police must facilitate contact with counsel. This is the implementation aspect of the right. [56] The police must not question or elicit evidence from an arrestee until he or she has had a reasonable opportunity to retain andinstruct counsel: R v Manninen, (SCC), [1987] 1 SCR 1233 (“Manninen”). In R v Suberu, 2009 SCC 33 (“Suberu”), theSupreme Court reiterated that from the moment an individual is detained,

section 10(

b) is engaged and the police have a positiveobligation to inform the detainee of his or her right to counsel without delay. “The immediacy of this obligation is only subject toconcerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under

section 1 of the Charter”

at para 2. [57] Any delay in facilitating an arrestee’s

section 10(

b) rights will amount to a breach, except in those rare instances when“urgent,” exigent or extraordinary circumstances interrupt the facilitation of the right to counsel: see Manninen at para 22. [58] While exigent and extraordinary circumstances are often discussed by courts in the warrantless search context, the equivalentstandard has been applied to 10(

b) analyses; see this Court’s reasons in R v Schmidt, 2010 ABQB 349 (“Schmidt”) and R v Lim, 2015ABQB 273 (“Lim”). Further, the Ontario Court of Appeal held in R v Kelsy, 2011 ONCA 605 at para 35 that exigent circumstances areextraordinary: ... [I]t is the nature of the exigent circumstances that makes some less intrusive investigatory procedure insufficient.

By their nature,exigent circumstances are extraordinary and should be invoked to justify violation of a person's privacy only where necessary. [59] Though Tieu was informed of his Charter rights upon arrest, the time that elapsed between the arrest and the provision of aphone to contact counsel was 5 ½ hours. This is a serious and significant length of time, and constitutes a prima facie breach of section10(b). The onus therefore shifts to the Crown to justify the delay. [60] The Crown concedes that the delay in facilitating Tieu’s right to counsel constitutes a breach of

section 10(b); it argues, however, that exceptional circumstances surrounding the events of November 27th, 2012, justify the delay until 10:37 p.m. It is thereforethe Crown’s position that the breach lasted approximately two hours, between 10:37 p.m. and 12:36 p.m., when the police allowed Tieuto contact counsel. The defence posits that the breach began immediately upon arrest and therefore totaled 5 ½ hours. [61] In R v Mian, 2014 SCC 54 (“Mian”), the Crown argued that a 22 minute suspension of the accused’s 10(

b) right was justifiedto avoid compromising the integrity of a separate ongoing investigation; see para 73. The Crown claimed this ongoing investigationamounted to “exceptional circumstances” which justified the breach. The trial judge in Mian did not accept that there was a concern forofficer safety or any other circumstance sufficient to justify the delay. He found that the accused’s

section 10(

a) and (

b) Charter rightswere breached. The Supreme Court upheld the trial judge’s findings. [62] The extraordinary or exigent circumstance justification under 10(

b) is reserved for rare situations in which police havereasonable grounds to suspect that delay is (

i) necessary to prevent imminent bodily harm or death to any person, and; (ii) to believe thatevidence is present and that the delay is required to prevent the imminent loss or imminent destruction of evidence; see Schmidtgenerally, and Lim at para 8. [63] The exigent circumstance exception to facilitating a person’s 10(

b) rights is not and must not become a common or defaultapproach used by police on a regular basis. The justification is necessarily narrow and will only excuse a breach of

section 10(

b) ingenuinely extraordinary circumstances. To find otherwise would effectively condone police behaviour that blatantly disregards theCharter rights of accused persons, while also undermining those situations in which extraordinary circumstances are actually present anda delay is properly justified. [64] For the reasons that follow, I do not find such urgent circumstances existed on November 27th, 2012. The Crown submits thatthe police were facing a “dynamic situation” on the night in question. It emphasizes that Tieu was an “unknown” player, as he had notbeen present during any of the previous surveillance.

Because Dahl believed a warrantless entry into Pearson’s was necessary to preserveevidence, the Crown submits it was also necessary to prevent Tieu from contacting a lawyer. [65] This position fails for several reasons. First, these situations are always dynamic in nature; second, the fact that Tieu wasunknown to police prior to the evening in question weakens any reasonably believable connection he might have had to Pearson’s apartment.

In the months of surveillance leading up to November 27th, 2012, Tieu had never been observed in the presence of Pearson orany of his known associates, nor was he observed in the vicinity of the apartment. I am doubtful that the circumstances were sufficientlyextraordinary so as to permit a warrantless search of Pearson’s apartment.

There is no link between Tieu and the apartment that wassearched, as it was Pearson’s apartment, not Tieu’s and Tieu was not known to police. [66] While the Court acknowledges that cocaine was found during the search of Tieu’s trunk, the cocaine and the brief meetingbetween Tieu and Pearson were the only links known to police that connected these two men.

These last minute links are too remote forthe police to defensibly piggy-back the circumstances that they believed justified the search of Pearson’s apartment as also justifying thebreach of Tieu’s Charter rights. [67] Further, there are several events that occurred between Tieu’s arrest and his eventual call to counsel that aggravate theseverity of the breach. First, following his arrest, Tieu was taken to the Airdrie RCMP detachment which was a 50 minute drive awayfrom the surveillance area.

This location was staffed only by guards without any authority to provide telephones to arrested persons.When questioned on why a police station nearby was not utilized to provide Tieu with his Charter rights, Burke responded that it ispolice policy to take any person arrested by the RCMP in Calgary to the Airdrie detachment, or else to another station outside the city ofCalgary that contains an RCMP cell block. When asked why a Calgary cell block location closer to the scene of the arrest could not havebeen used, Burke stated: We utilize RCMP detachments and resources.

We don’t take prisoners to the Calgary Police Service stations. We’re not familiar withtheir processes. We’re not familiar with how they do things. So we would typically take anyone that we arrested within Calgary andshuttle them up to Airdrie detachment, as being the closest serving detachment for the RCMP. [68] During the 50 minute drive through Calgary to the Airdrie RCMP detachment, Yaworski, the arresting officer and driver ofthe police vehicle, gave evidence that he and Tieu engaged in conversation.

He made no notes of this conversation, nor could he recallwith any certainty what was or was not talked about. This is significant in a

section 10(

b) analysis, as the Supreme Court of Canada hasimposed a duty of restraint on police officers to refrain from eliciting evidence from detainees until he or she has been given a reasonableopportunity to retain and instruct counsel. In R v Prosper (SCC), [1994] 3 SCR 236, Chief Justice Lamer stated at para

34: ... once a detainee asserts his or her right to counsel, the police cannot in any way compel him or her to make a decision or participate in aprocess which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonableopportunity to exercise that right. [69] Though Yaworski does not explicitly remember what he spoke about with Tieu, the Court cannot be sure of the contents ofthe conversation because no notes were recorded. This is problematic.

Counsel for the defence asked Yaworski whether he recalledtelling Tieu during the drive that he could “get two years” for a drug offense, and that if he cooperated with police then the sentencemight be lessened.

Yaworski responded that he did not recall exactly what he said, but that potentially said something along those lines,“because that is something that we do in our type of work.” This comment concerns the Court, as it suggests such conversations betweenarrested persons and police officers, about the case and before access to counsel has been provided, are not rare occurrences. [70] Finally, the Court notes the time that elapsed after Pearson’s arrest and the search of his residence.

The hours between Tieu’sarrest and the time the search was completed formed the justification, according to the police, for delaying Tieu’s right to call counsel.Yet it took the police another two hours following the search to provide Tieu access to a telephone. This further delay is inconsistent withthe reasoning of the police; if they intentionally delayed Tieu’s 10(

b) rights because they were waiting to complete the search, it wouldfollow that upon learning the search was complete, Tieu would be provided a telephone immediately. Such provision would be consistentwith the “immediacy” required under the Charter. Yet a further two hours elapsed. This is not acceptable, and suggests that the delaywas inevitable due to the police policy, and that the facilitation of Tieu’s Charter rights was not a priority. [71] I do not accept that the circumstances involving the search of Pearson’s apartment were exigent or extraordinary.

They werecertainly not sufficiently so with regard to Tieu, whose connection to that dwelling was remote, if it existed at all. Tieu was arrested at 7:02 p.m. on November 27th, and was not provided a telephone to call counsel until 12:36 a.m. the following day. That is a 5 ½ hourbreach of his rights under

section 10(b). I find this to be a significant breach of Tieu’s Charter rights that was, again, not justified. [72] Taken together, these factors – the lack of initiative to arrange custody at a cell block nearby, the failure to provide Tieu witha telephone once the search of Pearson’s apartment was complete and the undocumented car conversation – cause this Court graveconcern regarding the conduct of police.

Finally, the Court notes the evidence of Burton, whose forthright testimony acknowledged thatit is common police practice to deny an arrested person their right to counsel: Like typically, the phone calls are not given to the accused -- the suspect in this matter, to preserve evidence and for, you know, thesafety of the police. We tend not to give phone calls right away until we are able to go in to do the search warrant, for our safety and forthe destruction of evidence.

Because we don’t want people to phone their friends or phone people in the houses that we may be goinginto. [73] The evidence in this case demonstrates that this RCMP detachment – indeed, it appears the same detachment whose conducthas previously been censured by this Court – continues to employ a policy that intentionally prevents an arrested person from exercisingtheir

section 10(

b) Charter right to contact counsel. As discussed by Erb J at para 14 of Lim: It was also the evidence of the police that they 'habitually' delay exercise of Charter rights of accused persons due to exigentcircumstances. Constable Burton, the officer who took charge of Mr. Lim during transport and after arrival at the Airdrie RCMPdetachment, testified that delaying facilitating those rights is habitually done to protect evidence. See also R v Nicholson, 2011 ABCA 218 at para 18. [74] This apparently deliberate, systemic and ongoing disregard for the Charter by the RCMP is hard to understand.

It is difficultto contemplate a more problematic infringement of the Charter than a continuous policy that is perpetuated by law enforcement anddesigned to deny a seemingly fundamental right to persons whose liberty is at stake. The severity of this disregard for the Charter willbe applied in the analysis under section 24(2), below.

Section 9 [75]

Section 495 of the Code governs police authority to make warrantless arrests: 495

(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence ... [76] Reasonable and probable grounds must be present for an arrest to be valid under

section 9 of the Charter, which protectsindividuals against arbitrary arrest and detainment. The Supreme Court set out the test for establishing reasonable grounds for arrest in Rv Storrey (SCC), [1990] 1 SCR 241 (“Storrey”): 1. it must have been objectively reasonable (a reasonable person would think it was appropriate); and 2. the arresting officer must subjectively believe that there were reasonable and probable grounds for the arrest at the time the arrestis made. [77] The standard of what will constitute reasonable grounds is more than mere suspicion, but does not require proof on a balanceof probabilities.

The police do not need to establish that their belief with regard to the grounds for arrest is the only possible conclusion.Further, the law recognizes that police often operate in time-sensitive situations where they have to make split-second decisions in

potentially dangerous situations; see R v Aucoin, 2012 SCC 66 at para 40. [78] In the present case, Dahl was the officer who directed Tieu’s arrest, and the Court must therefore assess whether he hadsufficiently reasonable and probable grounds. Yaworski, as the officer who carried out the arrest, is entitled to rely upon Dahl’sdirection, as he was officer in charge at the material time; see R v Debot, (SCC), [1989] 2 SCR 1140 at para 35.Whether the Crown has proven Dahl got this information from Yaworski – or Sgt. Smart, since Yaworski acted as if Sft.

Smart was theone making decisions – is problematic and discussed below at paras 95, 97. [79] Part two of the above test, that Dahl subjectively believed that reasonable and probable grounds existed, is not contested here.The issue before the Court is whether that belief was objectively reasonable. For the reasons that follow, I find that the first prong of theStorrey test is not made out.

Dahl’s belief that there were reasonable and probable grounds to arrest Tieu, though held in good faith, wasnot objectively reasonable. [80] The Court acknowledges Dahl’s experience, with 18 years as an RCMP officer and extensive service with the Calgary FederalDrug Section. He has also spent over one thousand hours in covert surveillance situations. i. Informant evidence [81] Dahl referred to information obtained by police from several confidential informants as contributing to his belief that therewere reasonable and probable grounds to arrest Tieu.

The Supreme Court in Debot set out the following factors to assess the reliability ofinformant evidence, at para 60: 1. Whether the informant was credible; 2. Whether the information predicting the commission of a criminal offence was compelling; and 3. Whether the information was corroborated by police investigation. [82] These factors are not separate tests, as weaknesses in one may be overcome by strengths in the other two.

It is not necessarythat every aspect of the source information be corroborated in order for it to be considered reliable; however, the level of verificationrequired will vary depending on the quality of the information and the reliability of the source. [83] The information attained from the confidential informers in the present case was very general in nature. There were twoinformers, C.I. #1 and C.I. #2, who provided information to police earlier in the fall of 2012. C.I. #1 told police that “Jeremiah” was anindividual living in Marda Loop near Original Joe’s restaurant.

C.I. #1 said that this individual was involved in regular trafficking ofcocaine and that he was approximately 20 years old with multiple tattoos on his neck. [84] C.I. #2 provided information to police regarding “Chris Pearson,” specifically that he was living in Calgary, traffickingcocaine and marihuana, and was part of a group with members operating in positions above and below him.

C.I. #2 said that MichaelLeonovich was one individual who ranked below Pearson in the group and was trafficking cocaine for him. [85] Dahl later corroborated the information from C.I. #1 with a photograph of Jeremiah Amero, who had tattoos on his neck, wasabout 20 years old and lived in the Marda Loop area. Dahl corroborated C.I.#2’s information insofar as confirming a Chris Pearson livedin Calgary and was seen meeting with a male individual driving a car registered to Michael Leonovich. [86] Dahl consulted police databases and discussed details of each man with Corrections employees who knew Amero andPearson.

Dahl also gave evidence that he was “absolutely sure that a reliability was provided for both informants that provided theinformation.” He did not provide any further detail on the nature of the reliability assessment. [87] The information provided by the confidential informants was not objectively reliable regarding the grounds for Tieu’s arrest.Not only was it lacking in detail, but the information that was provided did not mention nor was it concerned with Tieu.

While the factthat Pearson had some people working below him in the trafficking hierarchy was mentioned, there was never an indication that one ofthese people was Tieu. The Court is not willing to make the leap of assuming Tieu was one such individual without more compellinginformation. On balancing the three factors in Debot, the evidence on a whole is insufficient to form reliable grounds for arrest. [88] The Court is required to assess reasonable grounds in the totality of the circumstances, and not on the informant evidencealone.

With totality in mind, the Court will therefore go on to assess the surveillance evidence. ii. Surveillance evidence [89] The Crown referred the Court to events that took place throughout the surveillance of Pearson and Amero prior to November 27th, 2012. As with the informant evidence discussed above, none of the pre-November 27th surveillance contained or was concernedwith Tieu.

He was unknown to police until the night of his arrest. [90] The previous instances of surveillance where drug activity was potentially observed (of which there were only four: October10, October 2, October 18 and November 7, 2012), involved brief meetings between Pearson, Amero or both men, with other individualsin parking lots and vehicles. Dahl found both the locations of these meets, as well as driving patterns before and afterward, to beconsistent with drug trafficking.

However, Dahl testified that these instances alone did not provide sufficient grounds for the arrest ofPearson. [91] It is therefore surprising that, although the four meetings described above were insufficient to lead to an arrest of. Pearson,who was himself one of the surveillance targets, Dahl nevertheless found it appropriate to authorize the arrest of a brand new individual,Tieu, after one such meeting. He cited additional indicia of drug trafficking that occurred during the meeting between Pearson and Tieu,including: the direction of.

Pearson’s truck in the deli parking lot; Tieu opening his trunk before walking to Pearson’s truck; Tieu

entering Pearson’s truck and the two men driving around the block for a short period of time; the fact that Tieu was observed carrying a laptop bag that he may not have carried before entering the truck; and that neither of the men used any of the shops or services near to where they had parked. [ 92 ] While these factors from Yaworskimay have led Smart (and perhaps through him to Dahl) to a genuinely held subjective belief that a drug deal had taken place between Pearson and Tieu, these factors cannot sustain objective analysis.

The Alberta Court of Appeal upheld the decision of the trial judge in R v O(N) , 2009 ABCA 75 (“ O(N) ”), where the evidence was excluded because the accused was found to have been arbitrarily detained by police. In that case, the accused was observed by the arresting officer entering an apartment lobby where he met another man and the two had a brief exchange, followed by a handshake, and the accused then left the building and returned to his car. As with Tieu in the present case, the accused was previously unknown to the arresting officer. [ 93 ] The detention of the accused in O(

N) failed to meet the standard of reasonable suspicion, which is a lower standard than the reasonable and probable grounds required for a warrantless arrest. While the evidence now before the Court may have been sufficient to meet the standard with regard to Pearson or. Amero, those two men do not stand accused before this Court, and there is no finding to be made on that question. Rather, it is Tieu whose arrest police are now attempting to justify by referring the Court to facts and observances of entirely separate individuals. While the Court appreciates that the previous surveillance of.

Pearson gives some weight to the meeting observed between him and Tieu, it cannot form objectively reasonable grounds for the arrest of Tieu. [ 94 ] The Crown, Dahl and Yaworski all emphasized that the presence of the laptop bag on Tieu’s person after he got out of the car was a significant indicator of a drug deal. Yet on cross-examination Yaworski testified that his view of the ongoing events, and of Tieu before and after he was in Pearson’s truck, was from a distance of at least 55 feet. It was also dark outside at the time.

The vantage point of these observations is particularly frail upon the Court’s review of the satellite and street image of the area in question, not to mention the darkness of the area. [ 95 ] Finally, the Court notes the communication methods used by the surveillance team on the night in question. Evidence was given that both radios and cell phones were used, depending on the circumstances at hand, to communicate between those officers who were on the street, in unmarked cars, and those were not on the scene at all.

While the nature of police work, particularly surveillance, surely requires radios and cell phones, there are several instances where the events occurred in rapid succession, and the evidence of where the communication came from or goes to, gets lost. Yaworski, it should be remembered, communicated with Smart by cell phone , not radio, and Smart had issues in his testimonial recollection of communications with Dahl; see para 47, supra . Yet, Dahl made all of the decisions. iii.

Were there reasonable grounds to arrest in the totality of the circumstances? [ 96 ] Considering the above evidence as a whole, in the totality of the circumstances, the Court does not accept that there were reasonable and probable grounds to authorize Tieu’s arrest.

The grounds proffered by the Crown are not only disconcerting in what they say – virtually nothing in regard to previous police knowledge of Tieu – but also in what they do not say. [ 97 ] While it is true that the objective element of the grounds to arrest can be established from any observations or events up to the point the arrest is made, see R v Clayton , 2007 SCC 32 at paras 47-48 , in this case, Yaworski’s actual observations of Tieu were being relayed to Smart via cell phone and not radio.

As stated above, there is no Crown evidence linking whatever Yaworski knew to Dahl, because Yaworski was not reporting the evidence to Dahl during the material time. Rather, he was phoning it in to Smart. Therefore Smart must have been somewhat in charge on that day as the evidence was that it was one or the other. (see para 28 supra ). Yet, Smart denied being the officer that authorized the arrest; both Smart and Dahl gave evidence that the in charge officer was Dahl. Thus the evaluation of the Charter right was up to Dahl but the key informational grounds for arrest (through Yaworski) was in Smart’s hands.

There is a lack of evidence or confusing evidence on this point. [ 98 ] More important, on the evidence before the Court, nothing passed between Pearson and Tieu that resembled drugs or money. Yaworski initially said the laptop bag he saw Tieu carrying was after he exited Pearson’s truck; yet he later testified that he was not sure if Tieu was carrying the laptop bag before he entered the truck.

Further, Yaworski did not observe Tieu give anything else to Pearson; nothing was seen occurring between the two in the truck, nor was there anything unusual about how Tieu or Pearson operated their vehicles. [ 99 ] The police had no information connecting either Pearson or Tieu’s vehicle to any illegal or suspicious activity in the area, nor did they have information about potential drug activity in the strip mall or the parking lot where Tieu and Pearson met. There were no police tips about drugs in the mall area, and there was no evidence of any previous meeting between Tieu and Pearson.

There was no reason prior to this one meeting to connect Tieu to Pearson. On the night in question, neither Tieu nor Pearson met with anybody else suspected of drug or any criminal activity. [ 100 ] Even if the police had observed Pearson pass something to Tieu in the truck, which the Court emphasizes they did not, the Court could not conclude on more than a mere hunch that such a meeting, from the evidence, was a drug transaction.

While the reasonable and probable grounds standard does not require all of the scenarios set out above to be present, the dearth of objective ascertainable facts that permit independent judicial assessment, and which would lead one to properly believe that Tieu had committed an offence, is significant. [ 101 ] Without reasonable and probable grounds, which the Court concludes Dahl did not have with regard to Tieu, his arrest was arbitrary and was therefore a breach of

section 9 of the Charter .

Section 8 [ 102 ]

Section 8 of the Charter guarantees a broad and general right to be secure from unreasonable search where the person who is the object of the search has a reasonable expectation of privacy. [ 103 ] First, Tieu had a reasonable expectation of privacy over his car and his person, and when the police conducted the search, they

interfered with that expectation. It is well established in law that an individual has some expectation of privacy over a vehicle, and agreater privacy interest with regard to their own body: see R v Simmons, (SCC), [1988] 2 SCR 495; R v Wise, (SCC), [1992] 1 SCR 527. [104] The second stage of the

section 8 analysis asks whether the search was reasonable. A reasonable search must be authorized bylaw, the law itself must be reasonable and the manner of the search must also be reasonable; see R v Collins (SCC),[1987] 1 SCR 265 at para 23 (“Collins”). [105] Like the arrest, the search of Tieu’s car and his person were performed by police without a warrant. A warrantless search isprima facie unreasonable under

section 8 of the Charter; see Hunter v Southam, (SCC), [1984] 2 SCR 145; R vCaslake, (SCC), [1998] 1 SCR 51. Once the accused has demonstrated that the search was warrantless, the Crown hasthe burden of showing that the search was, on the balance of probabilities, reasonable. In this case the Crown has failed to do so. [106] Search incident to arrest is a common law doctrine, wherein the legitimacy of the search arises from the fact of a lawful arrest.A valid search incident to arrest is defensible because the police are required to control the situation, and that purpose outweighs anindividual’s privacy interest when the arrest is justified. [107] As discussed with regard to

section 9 above, there were not sufficient grounds for Tieu’s arrest in the present case. The arrestwas arbitrary and therefore unlawful. The subsequent search cannot be justified as being incident to that arrest when the arrest was notvalid at law. The first requirement under Collins, that a search be authorized by law, cannot be established in Tieu’s case. [108] The Crown has not discharged its burden of establishing that the search of Tieu, which was a prima facie infringement ofsection 8, was reasonable in the circumstances.

As with his rights under sections 9 and 10(b), Tieu’s right against unreasonable search and seizure was also breached by police on the night of November 27th, 2012. The Court will therefore consider whether the evidenceseized is admissible under section 24(2) of the Charter. Section 24(2) [109] Evidence that is unconstitutionally obtained by police is subject to exclusion under section 24(2) of the Charter.

This sectionoperates to “oblige law enforcement authorities to respect the exigencies of the Charter” and to “preserve public confidence in the rule oflaw and its processes:” see R v Burlingham, (SCC), [1995] 2 SCR 206 at para 25 and R v Grant, 2009 SCC 32 at para73 (“Grant”). Whether evidence ought to be excluded pursuant to section 24(2) of the Charter requires a two-pronged analysis: 1. Was the evidence obtained in a manner that violated the accused’s Charter rights? 2.

Would the inclusion of the evidence at trial bring the administration of justice into disrepute? [110] Courts have indicated recently that a broad and generous approach should be taken in assessing the “... evidence obtained in amanner ...” of s. 24(2) of the Charter. R v Pino, 2016 ONCA 389.

The Charter’s s. 24(2) analysis according to Pino at para 72 shouldbe: •... generous, consistent with the purpose of s. 24(2) •The court should consider the entire “chain of events” between the accused and the police •The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct •The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these threeconnections. •But the connection cannot be either too tenuous or too remote. [111] The arbitrary search of Tieu’s car incident to his arrest resulted in the location of the impugned evidence.

The evidence wastherefore obtained in a manner that violated the Charter and thus the analysis moves on to consider the Grant factors as to whether itsinclusion would bring the administration of justice into disrepute. [112] The Supreme Court in Grant set out the following factors for trial courts to consider when assessing whether evidence whichwas obtained in violation of the Charter would bring the administration of justice into disrepute were it to appear before a trier of fact: 1.

Seriousness of the Charter-Infringing State Conduct, which requires an assessment of whether the admission of the evidencewould bring the administration of justice into disrepute, and focuses on the severity of the state conduct that led to the Charter breach(which includes an analysis of whether the breach was deliberate or willful, and whether the officers were acting in good faith); 2.

Impact on the Charter-Protected Interests of the Accused, which focuses on how the accused person was affected by the stateconduct (which includes an analysis of the intrusiveness into the person's privacy, the direct impact on the right not to be forced to self-incriminate, and the effect on the person's human dignity), and 3.

Society's Interest in an Adjudication on the Merits, which focuses on how reliable the evidence is in light of the nature of theCharter breach. [113] In conducting this balancing exercise, the Court is required to assess the above factors to determine whether a reasonableperson, informed of the circumstances of the case and the values underlying the Charter, would conclude that the admission of theimpugned evidence would bring the administration of justice into disrepute. For the reasons that follow, the Court finds that the balanceweighs in favour of exclusion.

i. The Seriousness of the Charter -infringing State Conduct [ 114 ] This stage assesses the blameworthiness of the police conduct that infringed the Charter rights of the accused. The Supreme Court in Grant stated that “the more severe or deliberate the state conduct that led to the Charter violation, the greater the need for courts to dissociate themselves from that conduct, by excluding the evidence linked to that conduct” see para 72. Systemic or institutional abuse of the constitutional rights of an accused may be an aggravating factor making the misconduct more serious. R v.

McGuffie , 2016 ONCA 365 at para. 67 . [ 115 ] The Court has already noted the severity of the police conduct in this case in the discussion under

section 10(b). Though the denial of Tieu’s 10(

b) rights was not causally related to the location of the impugned evidence, it was one of three Charter rights that were breached by police and therefore compounds the effect of the severity of police conduct. Because of this conduct, Tieu was arbitrarily arrested and was denied his liberty. The cocaine evidence was obtained as a result of the search that was incident to the unlawful arrest. [ 116 ] While the Court does not find that the police were operating in bad faith, there was knowledge of and intention to delay Tieu’s right to counsel.

It was not a mistake or result of oversight; rather the breach was deliberate. This places the conduct at the serious end of the spectrum, and is the type of police conduct the Court must denounce and distance itself from. This factor therefore weighs in favour of exclusion. ii. Impact on the Charter -Protected Interests of the Accused [ 117 ] Courts treat the cumulative effect of Charter breaches by police as particularly reprehensible, for obvious reason.

In R v Bohn , 2000 BCCA 239 (“ Bohn ”), the British Columbia Court of Appeal referred to the impact of multiple breaches of the accused rights as indicative of “the inattention of the police to the rights of the appellant” and as “part of a larger pattern of disregard for Charter rights.” In Bohn , the accused’s rights under sections 8 and 10(

b) were breached. In the present case those same rights were breached, as well as Tieu’s right against arbitrary arrest. Further, the implementational aspect of Tieu’s 10(

b) right was breached with particular severity. [ 118 ] Though Bohn was decided prior to Grant , the principle with regard to multiple Charter breaches has since been endorsed by the British Columbia Court of Appeal in R v Lauriente , 2010 BCCA 72 (“ Lauriente ”). See also R v Trieu , 2010 BCCA 540 . [ 119 ] In Lauriente , the Court concluded that the cumulative effect of the Charter breaches was sufficiently serious that the admission of evidence could bring the administration of justice into disrepute. The Court agrees and applies that assessment to the present case.

While each breach of Tieu’s rights was serious in its impact on his liberty interests, the compound affect serves to exacerbate that impact. This factor therefore weighs in favour of exclusion. i. Society's Interest in an Adjudication on the Merits [ 120 ] There was a significant amount of cocaine seized following the unlawful search of Tieu’s car. It is well established in law that society has an interest in the adjudication of a case with probative evidence like that of a large quantity of illegal substances.

All things being equal, these cases should be adjudicated. [ 121 ] It is also true, however, that society has a strong interest in ensuring unlawful police conduct is not overlooked by courts. As Grant says, it can cut both ways (at para 84). To admit the evidence in spite of the Charter breaches would, in effect, condone the actions of police in this case.

The following statement by Doherty J at paras 31 - 32 of R v Blake , 2010 ONCA 1 , articulates this principle of balancing admission against exclusion: 31 Society's interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded. The evidence in issue here, particularly the crack cocaine, was entirely reliable and essential to the Crown's case.

The charge is also a serious one, although as the majority point out in Grant , at para. 84 , the seriousness of the charge will "cut both ways" when assessing society's interest in an adjudication on the merits. 32 Having conducted the inquiries mandated by Grant , examined the application of those inquiries to non-bodily physical evidence in Grant ... I would hold that the nature of the state conduct and society's interest in an adjudication on the merits militate strongly in favour of admitting the evidence. The impact on the appellant's s. 8 rights points strongly toward exclusion.

How does one balance these directly conflicting assessments? Without diminishing the important negative impact on the appellant's legitimate privacy interests occasioned by the unreasonable search, I find compelling the argument that the exclusion of reliable crucial evidence in circumstances where the propriety of the police conduct stands unchallenged would, viewed reasonably and from a long-term perspective, have a negative effect on the repute of the administration of justice.

The Court agrees with this assessment; both the impact of the breaches on Tieu and the blatant disregard of the Charter by police, including the same police unit censured by Erb J of this Court over a year ago, outweigh society’s interest in the probity of the impugned evidence. The final factor of Grant therefore also weighs in favour of exclusion.

Conclusion [ 122 ] To conclude, the Court finds that the evidence following arrest including the seized quantity of cocaine must be excluded from the evidence on this trial because its admissibility would have a short and long term negative impact upon the reputation of the administration of justice. Therefore all of this evidence is excluded pursuant to s. 24(2) of the Charter . Dated at the City of Calgary, Alberta this 28 th day of June, 2016. W.A. Tilleman J.C.Q.B.A. Appearances: Alisa Webber for the Applicant Hersh Wolch, Q.C. and Derek Jugnauth for the Accused