R v Hoffman, 2016 ABQB 51

Court of Queen ’ s Bench of Alberta Citation: R v Hoffman, 2016 ABQB 51 Date: 20160126 Docket: 130952211Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent (Crown) - and - Darrin Christopher Hoffman Applicant (Accused) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Gerald A. Verville _______________________________________________________ Introduction [ 1 ] The accused is charged with possession for the purposes of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act .

Two kilograms of cocaine were found in the spare tire of a rental vehicle he was driving. The accused asserts that his ss 8, 9 and 10(

b) Charter rights were violated and seeks exclusion of evidence seized during the search. The Crown argues that the searches were a lawful incident of an investigative detention and subsequent lawful arrest. This is a decision in a voir dire .

The Evidence [ 2 ] Corporal Frost testified that he has been a member of the RCMP since 2005. After initially being assigned to general duty in Canmore, Alberta, he became involved in traffic enforcement with Banff traffic services. In 2008, while stationed in Banff he became a member of the province's roving traffic unit (RTU).

In October of 2009, he (with his police service dog Gus) took and successfully completed a 10-week course to become a special narcotics K-9 handler. [ 3 ] Corporal Frost stated that he has taken a number of other courses in both Canada and the United States dealing with criminal interdiction. These courses have created an operational awareness that, at times, more may be going on than the initial reason for a traffic stop. [ 4 ] He estimated that he has been involved in over 10,000 traffic stop encounters.

In particular, he stated that he has participated in various types of controlled substances investigations and has become familiar with behavioural indicators of drug couriers on public highways. [ 5 ] The RTU works throughout the province. [ 6 ] On August 13, 2013, at approximately 23:12 hours, Corporal Frost was seated in an unmarked police vehicle in the center median of highway 63 south of Fort McMurray, at the start of the four lane

section south of highway 881. His vehicle was parked perpendicular to the highway with its lights on. It was pitch dark outside. [ 7 ] Corporal Frost testified that he observed a Volkswagen Jetta, with British Columbia license plates, pass by at approximately 100 km/hr. He noted that the driver was hunched over the steering wheel with his forearms resting on the wheel and his head was forward of his arms.

He testified that he wanted to see what was going on as he was concerned that the driver was possibly driving tired, impaired or in medical distress. [ 8 ] He entered onto the highway after two other vehicles passed by, activated the police lights on his vehicle and conducted a traffic stop about a minute later. He stated that the driver, later identified as the accused, brought the Jetta to a stop on the shoulder of the highway.

Prior to the stop he noted that the accused's vehicle was travelling approximately 100-102 km/hr in what had become a posted 110km/hr zone and that the two other vehicles had proceeded to pass it on the left. He confirmed that he was aware the accused was driving a rental vehicle at the time of the stop. The stop took place approximately 30 kilometres south of Fort McMurray. [ 9 ] The traffic stop is captured in part on audio and video.

A record was prepared which, together with timelines, sets out the exchanges between Corporal Frost and the accused during the stop. [ 10 ] Corporal Frost approached the vehicle, knocked on the window which was then lowered approximately half way down. A conversation ensued which lasted for approximately three and a half minutes. The initial portion of the conversation went as follows: Corporal Frost Hi there. Accused Hello, what's the problem? Corporal Frost The problem is you were hunched over your steering wheel, You looked like you were having problems there.

Accused I (indiscernible) having problems seeing in the construction zone. Corporal Frost Do you mind putting the window down so we can talk there please? Thank you Accused Yeah Corporal Frost Do you have your driver's license and vehicle .... Accused Yeah I do Corporal Frost I'm sorry, did you say the construction zone? Accused Well, yeah. Corporal Frost There isn't one. There hasn't been for about 25 kilometres or so. [ 11 ] Corporal Frost confirmed that the accused complied with his request to fully lower the window. No odour of alcohol or illegal drugs was detected.

He told the accused that he was a little confused about what the accused was referring to when he mentioned having problems seeing in the construction zone given the fact that he had driven about 25 kilometers past it before being stopped. As the conversation ensued, Corporal Frost asked the accused if he had any medical conditions, as his hands were shaking. The accused said he did not but informed Corporal Frost that he was tired as he had driven from Kamloops.

He also informed Corporal Frost that he had not consumed alcohol as he did not drink. [ 12 ] During his interaction with the accused, Corporal Frost obtained the accused's driver's license and the rental agreement which was in the name of the accused's father. He questioned the accused as to whether he was listed on the rental agreement. The accused advised that that he was an authorized driver, but Corporal Frost stated he was not able to confirm this when briefly looking at the document.

He was informed by the accused that he was travelling to Fort McMurray to look for work and that he intended to visit a friend.

[ 13 ] Corporal Frost stated that the shaking hands did not abate during his conversation with the accused. He asserted that the level of nervousness presented by the accused during the encounter far exceeded what was typically observed at a traffic stop. He said that from his experience, this was consistent with someone who has an underlying issue that is unrelated to a traffic stop where a person is simply asked for his driver's license and vehicle information. [ 14 ] Further drawing on his investigative experience, Corporal.

Frost stated that he was cognizant that individuals who courier contraband often use rental vehicles as it provides anonymity while travelling on the highway, as well as, prevents the seizure of a personal vehicle as offence related property. [ 15 ] Corporal Frost stated that as he began walking back to his police vehicle to verify the status of the accused's operator's license, he observed a work jacket that appeared to be new hanging in the rear passenger window of the accused's vehicle.

He described it as a Carhartt jacket stating that from his experience this type of jacket was normally stuffed in a bag rather than hung up like a suit jacket. From his investigative experiences he was suspicious that it was a "prop jacket" deployed in the window to support the accused's story that he was on his way to Fort McMurray to look for work. [ 16 ] Corporal Frost stated that after returning to his vehicle he conducted a number of searches. He determined that the accused's driver's license was valid.

He stated that further checks were conducted from an officer safety perspective including checks with the Canadian Police Information Centre (CPIC), Police Reporting Occurrence System (PROS) and Police Information Portal (PIP). Information gleaned from these checks confirmed that the accused had a drug-related criminal record, a 10-year weapons prohibition and was potentially violent. [ 17 ] Corporal Frost stated that he then requested backup assistance as he perceived the accused could be a potential flight risk.

After two other officers arrived, namely Constable Scheck and Constable Burchett, Corporal Frost directed the accused to turn off and exit the Jetta. He stated that the accused was initially non-compliant but ultimately complied and was placed under investigative detention. [ 18 ] The accused was informed that he was being detained for a drug investigation as Corporal Frost was suspicious that there were drugs in the Jetta. He was given his Charter cautions at about 23:22. When asked, the accused indicated that he wished to speak with a lawyer.

Corporal Frost advised him however that unfortunately this could not be done on the side of the road because of privacy and officer safety reasons. Corporal Frost also informed the accused that he was going to deploy his sniffer dog around the Jetta. The accused was further advised that if the dog indicated the presence of drugs, he would be arrested and the Jetta searched. The accused was then handcuffed and placed in the rear of Constable Scheck's police vehicle. [ 19 ] Corporal Frost testified that he then deployed his police service dog, Gus.

While walking around the accused's vehicle, Gus did a sit confirmation for what was believed to be the presence of a controlled substance. At about 23:29 Corporal Frost advised the accused that his dog was trained to indicate seven different odors of illegal drugs and that he was now under arrest for possession of a controlled substance. After being given his Charter cautions, the accused again at about 23:31 confirmed that he wished to speak with a lawyer.

Corporal Frost’s response was as follows: And again, I’m going to explain to you uh, what’s going to happen here is because I can’t ensure my safety with you having a phone nor can I ensure your privacy. I’m not going to grant you that right on the side of the road here. We are going to search incidental to your arrest and if all that’s there is some personal use we are going to let you go and you’re actually going to be out of my custody quicker than if I let you exercise that right by dragging you all the way to Fort McMurray and giving you the phone call.

If there’s something significant that changes your jeopardy I’m going to get you to a phone as quickly as I possibly can, okay. [ 20 ] The officers then conducted a search of the vehicle incidental to the accused's arrest. They located four freezer-sealed packages in the spare tire containing what they believed to be a controlled substance.

It was subsequently determined that the packages contained two kilograms of cocaine and two kilograms of phenacetin which is a cutting agent. [ 21 ] After locating the suspected controlled substances, Corporal Frost advised the accused that he was under arrest for possession for the purposes of trafficking and again provided Charter warnings. At about 23:50, the accused again advised that he wished to speak with a lawyer.

Corporal Frost then advised the accused his goal was to get moving as quickly as possible after doing a couple of things that needed to be done at roadside. [ 22 ] The accused arrived at the detachment in Fort McMurray at about 00:35 the next morning. At that time, the accused declined his opportunity to exercise his right to counsel. He was given a Prosper warning and expressly waived his right to counsel.

Corporal Frost then asked the accused if he wished to say anything and was advised by the accused that he was not interested in giving a statement. [ 23 ] At about 18:00 the next day, Corporal Frost again spoke with the accused. He understood at this time that the accused had taken the opportunity earlier in the day to speak with counsel. He said that, at this point, the contents in two of the packages had been identified as cocaine but that the contents in the other two packages were unknown.

He stated that this discussion was in the context of the accused’s pending bail application and the nature of the contents would impact the Crown’s position at the hearing. He was advised by the accused that the two packages contained “super buff” which he later learned was a mixer used in the making of crack cocaine. Positions of the Parties [ 24 ] It is the position of the Crown that the subject stop was a valid routine traffic stop in compliance with s 9 of the Charter .

The Crown relies on the general authority of a peace officer to stop a vehicle and request information provided for in ss 166 and 167 of the Traffic Safety Act , RSA 2000, c T-6. The questioning and observations noted during the subject period were permissible and limited to traffic safety and did not expand from there into general criminal inquisition. The Crown says that given the experience gleaned from numerous traffic stops and in the circumstances of this case, Corporal Frost had reasonable suspicion to detain the accused and deploy a sniffer dog.

In addition, the Crown says that Corporal Frost did not breach the accused’s s 10 rights as he gave the accused a reasonable

opportunity to contact counsel upon their arrival at the RCMP detachment and that after the accused declined the opportunity, he received a Prosper warning and expressly waived his rights. The Crown says further that the subsequent arrests were warranted and therefore Charter compliant within the permissible bounds of ss 8, 9 and 10 of the Charter . [ 25 ] The accused argues that the police cannot use a traffic stop as a ruse to conduct an investigation, but acknowledges that a traffic stop can lead to further investigation.

The accused says further that in the circumstances of this case, there were insufficient facts to warrant a finding that Corporal Frost had reasonable suspicion and that, accordingly, the detention and subsequent arrests were unlawful. The accused also says there was insufficient evidence to confirm the reliability of the sniffer dog. Accordingly, the accused says that his s 8 and 9 Charter rights were breached. Finally, the accused says that his 10(

b) rights were breached at the roadside and the next day at the RCMP detachment. Given the seriousness of the breaches, the evidence should be excluded under s 24(2). Analysis The Traffic Stop Traffic Safety Act [ 26 ] Pursuant to the Traffic Safety Act an officer is permitted stop a vehicle and request information.

However to do so on a pretext, while acting on a hunch that a person may be involved in illegal activity, constitutes an arbitrary detention and is in violation of a person's rights under s 9 of the Charter : R v Fleury , 2014 ABQB 199 , at paras 29-30 . [ 27 ] In the instant case, the accused was proceeding along the highway at about 100 km/hr. Corporal Frost was seated in his police vehicle which was parked perpendicular to the highway with its lights on. He noticed that the accused was hunched over the wheel and engaged in a pursuit and subsequent traffic stop.

Corporal Frost admitted that his opportunity to observe the accused was very brief. He confirmed that nothing else untoward was observed about the accused's driving prior to the stop. [ 28 ] I am mindful that one of the goals of the RTU is to identify persons transporting contraband. I am also cognizant that a vehicle travelling at 100 km/hr is moving 27.7 metres a second. Accordingly, Corporal Frost had only what can be referred to as a "split second" to make his observations. While this creates suspicion that the stop was arbitrary, the audio/video recording of the stop confirms Corporal Frost's testimony.

I accept the evidence of Corporal Frost that the traffic stop was conducted because of concerns that the accused was possibly driving tired, impaired or in medical distress and find further that he was a credible witness. [ 29 ] I find that in light of the answers given by the accused about having problems seeing in "the construction zone", it was not unreasonable for Corporal Frost to continue his conversation with the accused and ask further questions.

Further, while the accused's answers may have created some suspicion, Corporal Frost's further questions did not expand into an investigation of an illegal activity. [ 30 ] Accordingly, I find that the traffic stop, while not made because of a clear traffic violation (speeding, impaired driving, etc.), was nonetheless conducted pursuant to the Traffic Safety Act . It was not a random stop to check for drugs. The Charter [ 31 ] The relevant sections of the Charter in this voir dire read 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; 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.

Section 8 (Search and Seizure) and

Section 9 (Arrest and Detention) [ 32 ] In R v MacKenzie , 2013 SCC 50 , Moldaver J for the Court stated at para 36: 36 It is important that the detention and search issues in this case be kept analytically distinct because they stem from different police powers and must respect different Charter rights ( R v Yeh , 2009 SKCA 112 , 337 Sask R 1, at paras 48-49 ; R v Schrenk , 2010 MBCA 38 , 255 Man R (2d) 12, at para 105 ). We have never suggested that a sniffer-dog search is authorized as a search incidental to a detention.

On the contrary, the detention and the sniff must be independently justified, even if both are based on the same underlying facts that led police to reasonably suspect that the appellant was involved in a drug-related offence.

[ 33 ] Like in MacKenzie , the events in this case that resulted in the alleged breaches of ss 8 and 9 occurred simultaneously. As such, I will deal with them together – cognizant of the Supreme Court's direction on the proper analysis. Reasonable Suspicion [ 34 ] It is well established that an assessment of reasonable suspicion must bear in mind the experience and training of the investigating officer. However, it must stand up to independent scrutiny.

In MacKenzie , Moldaver J succinctly sets out what must be considered in applying that scrutiny at paras 62-65: 62 Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. That is their job. They do it every day. And because of that, "a fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police" ( Yeh , at para 53 ).

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 when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold. 63 Thus, in assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should be conducted through the lens of a reasonable person "standing in the shoes of the police officer" ( R v Tran , 2007 BCCA 491 , 247 BCAC 109, at para 12 ; see also R v Whyte , 2011 ONCA 24 , 272 OAC 317, at para 31 ). 64 That is not to say, however, that police training and experience must be accepted uncritically by the courts.

As my colleague Karakatsanis J notes in Chehil , "hunches or intuition grounded in an officer's experience will [not] suffice", nor is deference necessarily owed to a police officer's view of the circumstances because of his or her training or experience in the field (para 47).

Reasonable suspicion, after all, is an objective standard that must stand up to independent scrutiny. 65 In sum, while it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engaging in indiscriminate or discriminatory practices, it is equally vital that the police be allowed to carry out their duties without undue scepticism or the requirement that their every move be placed under a scanning electron microscope.

The Constellation of Factors [ 35 ] Corporal Frost testified that his reasonable suspicion to deploy his sniffer dog Gus was based on the following constellation of factors: 1. The unusual position of the accused hunched over the steering wheel; 2. The accused driving 100-102 km/hr in a posted 110km/hr zone; 3. The accused only partially rolled down the window after the traffic stop (creating a physical barrier); 4. The accused’s initial response “Hello what’s the problem?”; 5. The B.C. license plate on a rental vehicle which was rented by a third party (the accused’s father); 6.

The accused’s strange response about the construction zone, when the nearest construction zone was 25 km back; 7. The accused’s comment about a long drive (from Kamloops to Fort McMurray); 8. The accused’s shaking hands and extreme nervousness; 9. The accused’s nervousness did not abate throughout the conversation; 10. The accused’s "on-the-fly" and random responses to questions (such as that he was going to Fort McMurray to look for work and to visit a friend): 11. The Carhartt jacket hanging in the back window on the passenger side; and 12.

The information gleaned from the CPIC, PROS and PIP checks. [ 36 ] In MacKenzie , Moldaver J stated at para 72: 72 Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances?

If so, the objective component of the test will have been met. If not, the inquiry is at an end. [ 37 ] In considering the constellation, I am mindful of Corporal Frost’s training and experience. As stated previously, I found him to be a credible witness.

However, I also formed the view from his testimony (perhaps because of his experience and training) that he is a hyper-vigilant and suspicious individual. [ 38 ] For example, when the speed limit changed, he found the fact that the accused did not immediately speed up to 110 km/hr suspicious, while nonetheless acknowledging that accused’s vehicle was in the outside or “slow” lane of the four-lane highway when the other two vehicles passed it. Similarly, he found the accused’s initial response “Hello what’s the problem” to be suspicious.

Again, while a half rolled down window might initially cause suspicion, one might expect that the suspicion would immediately evaporate when the

window was fully rolled down and it was determined that there was no smell of alcohol or drugs, or visible indicia common to drugcouriers, such as cell phones, food wrappers or energy drinks in plain view. [39] Having made the above observations, I am also cautioned by Moldaver J’s comments at para 84 where he stated in part: 84 ...I pause here to reiterate that courts, under the banner of rigorous judicial oversight, must guard against upping the ante forreasonable suspicion to the point that it virtually mirrors the test for reasonable and probable grounds.

To do so would be especiallyproblematic given the clear warning in Chehil that "reviewing judges must be cautious not to conflate it with the more demandingreasonable and probable grounds standard" (para 27). [40] In the circumstances, I am mindful that we are looking at possibilities, not probabilities. While an untrained observer mightfind nothing untoward about a Carhartt jacket hanging in the window of a vehicle, Corporal Frost gave a valid reason as to why he foundit to be suspicious.

He explained that this type of work jacket is usually found stuffed in a duffel bag or laying on the back seat (nothanging on a hanger like a suit), and that he viewed it as a prop used by the accused to support his underlying story that he was going toFort McMurray to look for work. Corporal Frost stated that, from his experience, people had pre-arranged work when they went to FortMcMurray and did not just show up looking for work. Similarly, he noted from his training and experience that drugs are brought intoAlberta from British Columbia (Kamloops) and that drug couriers commonly use rental vehicles.

Again, the excessive and unabatednervousness of the accused support the possibility of criminal activity. [41] The accused asserts that Corporal Frost did not give sufficient detail with respect to the information gleaned from the CPIC,PROS and PIP checks for it to be of value, arguing, for example, that the 10-year fire arms prohibition might have been in its last monthand the criminal record dated. Nonetheless, it is a factor to be considered in the constellation. [42] In my view, the factors in this case are close to borderline.

For the reasons stated above, some are neutral while a number ofothers attract some suspicion that the accused was involved in drug activities. I find, however, that the suspicion is sufficientlyparticularized and not a generalized suspicion. Further, on balance, I find that the factors that withstand judicial scrutiny are sufficient tosupport a reasonable suspicion that the accused was involved in a drug-related offence. Accordingly, I find that when Corporal Frostdeployed the sniffer dog he had reasonable suspicion.

Sniffer Dog [43] As stated above, only a reasonable suspicion is required to justify the use of a narcotics detection dog. The accused argues,however, that insufficient evidence was adduced by the Crown as to the reliability of the sniffer dog Gus to justify his use. The accusedcites R v Chehil, 2013 SCC 49, where Karakatsanis J for the Court discussed the reliability of sniffer dogs at paras 48-54. [44] Corporal Frost testified that in October of 2009, he was selected to become a special narcotics K-9 handler and went toInnisfail, Alberta, where the RCMP kennels are located.

He stated that he took a 10-week course to become a special narcotics K-9handler working with police service dog, or PSD, Gus. He stated that he and Gus successfully completed the course in December of 2009and have been working together since that time. He went on to state that Gus has been successfully validated each year. [45] In Chehil, Karakatsanis J stated at paras 53 and 55: 53 In the absence of legislated standards, trial judges must continue to scrutinize the evidence before them in order to determinewhether the particular sniff search meets the Collins criteria.

Thus, even though indicia like a dog's past performance and the risk ofcross-contamination can be relevant to determining a dog's reliability, no specific evidentiary requirements will apply mechanically toevery case. The prosecution does not have to prove that the dog is infallible, just as it does not have to prove that an informer's tip isinfallible. ... 55 Once a sniffer dog has delivered a positive indication, the police often seek consent for a verification search. Provided that theconsent is properly sought and obtained, the search will respect s 8 of the Charter: see R v Borden, (SCC), [1994]3 SCR 145.

Alternately, the police may determine that they have the grounds required under the Charter to proceed with a warrantlessarrest, namely reasonable and probable grounds to believe that the accused has committed an offence: see R v Storrey, (SCC), [1990] 1 SCR 241, at pp 249-51. If the arrest is validly made, the police may conduct a search incident to arrest in order tosecure evidence that could be used at the accused's trial: see Caslake.

That is what occurred in this case, and in the majority of reportedcases dealing with sniff searches occurring post-Kang-Brown in which the police conducted a search to confirm the presence of drugs. [46] I find on the facts of this case that sufficient evidence was adduced as to the qualifications of Gus to warrant the sniff search,proceed with a warrantless arrest, and conduct a search incidental to arrest. In my view, it was conducted reasonably.

I find further thatthe positive indication raised the reasonable suspicion previously discussed to the level of reasonable and probable grounds to arrest theaccused. [47] Therefore, I find that there was no breach of the accused’s s 8 or 9 Charter rights.

Section 10 (Right to Counsel) At Roadside [48] The right to counsel arises immediately on detention: R v Suberu, 2009 SCC 33 at paras 41-42. In R v Montgomery, 2009BCCA 4, the Court stated at paras 33 and 35: 33 If an arrested person indicates that he or she wishes to exercise the right to counsel, the police have the duties, except in urgent or

dangerous circumstances, to provide the person with a reasonable opportunity to exercise the right, and to refrain from eliciting evidencefrom the person until he or she has had a reasonable opportunity to retain and instruct counsel: see R v Manninen, (SCC), [1987] 1 SCR 1233, 34 CCC (3d) 385, and R v Bartle, (SCC), [1994] 3 SCR 173, 92 CCC (3d) 289. ... 35 The trial judge concluded that it was neither reasonable nor practical to allow the appellant to use a cell phone at the scene of hisarrest. I agree with him. The police considered the arrest to be one of high risk.

The appellant was believed to be associated with anorganization that used violence. It would have been difficult for the police to ensure that the call was not used for an improper purposeand to provide the appellant with privacy at the scene of his arrest while ensuring that he was secure. [49] In R v Nelson, 2010 ABCA 349, the Court stated at para 17: 17 In R v Suberu, 2009 SCC 33, [2009] 2 SCR 460, the Supreme Court held that the words "without delay" in

section 10(

b) of theCharter mean "immediately". The trial judge interpreted this immediacy requirement to mean that the arresting officers should havetaken steps to ascertain if the RCMP facilities were available as soon as the appellant indicated that he wanted to speak with a lawyer.We doubt that this was a Charter breach at all, as investigating what the RCMP had to offer might well have entailed further delays.There was no guarantee that the appropriate facilities existed, or if they did exist, that they were not required for RCMP purposes.

Peopleare not always arrested in locations where it is possible for police to implement access to counsel. The delay that was involved in thiscase was, in the circumstances, minimal and the police refrained from questioning the appellant until after he had a chance to meet withcounsel of his choice face to face. Immediacy does not mean instantaneous; practical considerations still play a role, particularly withrespect to the police's obligation to implement an arrested person's contact with counsel. [50] In the instant case, the accused received Charter cautions at approximately 23:23, 23:31 and 23:50.

Each time he indicatedthat he wished to speak with a lawyer. He arrived at the RCMP detachment in Fort McMurray at about 00:35 the next morning. At thattime, the accused was given the opportunity to exercise his right to counsel. This opportunity arose approximately one hour and 12minutes after the first caution (detention) and one hour and 4 minutes after the second caution (arrest for possession). The fact that hedeclined the opportunity at the detachment is, in my view, irrelevant. [51] I am not satisfied from the evidence of Corporal Frost that the facts in this case are akin to those in Montgomery.

The stopwas approximately 30 kilometers or 20 minutes from the detachment in Fort McMurray. There were three officers and two policevehicles at the scene at the time of the detention. In my view, given the number of officers at the scene, steps could have been taken tofacilitate the accused’s right to counsel while at the same time ensuring privacy and officer safety. Alternatively, one of the officerscould have immediately driven the accused to the RCMP detachment. [52] For the reasons set out above I find that the accused’s

section 10(

b) rights were violated when Corporal Frost did not permitthe accused to contact a lawyer at or near the times of his detention and arrests. Next Day [53] The accused argues that Corporal Frost's discussion with him the next day at approximately 18:00 was an egregious breach ofhis s 10(

b) rights, or at least amounted to trickery. He says that the context of the conversation is important because Corporal Frostintimated that the accused would be more likely to get out on bail if the then-unidentified substance was not an illicit substance, such asheroin. On this basis, the accused identified the substance as "super buff". [54] Given that the accused had been given a Prosper warning and had expressly waived his right to counsel, I disagree with theaccused. The conversation the day following the accused's detention and arrests did not breach the accused's s 10(

b) rights. Admission or Exclusion of the Evidence under s. 24(2) [55] Where a person’s Charter rights are violated, it is necessary to consider whether the evidence should be excluded because themanner in which it was obtained brings the administration of justice in disrepute. I have found that the accused’s s 10(

b) Charter rightswere violated at roadside. [56] In R v Grant, 2009 SCC 32, the Court stated at para 68: 68 The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining theintegrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediatecriticism. But s 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of thejustice system, viewed in the long term, will be adversely affected by admission of the evidence.

The inquiry is objective.

It asks whethera reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission ofthe evidence would bring the administration of justice into disrepute. [57] At paragraph 71, Grant provides that Courts must assess and balance the effect of admitting or excluding the evidence onsociety’s confidence in the justice system by having regard to: 1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious statemisconduct), 2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rightscount for little), and 3) society's interest in the adjudication of the case on its merits.

[ 58 ] With respect to the first line of inquiry, Grant states that the more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct. [ 59 ] In this case, Corporal Frost informed the accused promptly of the reasons for his detention and subsequent arrest in compliance with 10(

a) of the Charter. He also advised him of his right to counsel, but failed to implement access to counsel when the accused advised that he wished to speak with same. Instead, he explained to the accused each time why, in his view, it was not possible in the circumstances to facilitate his request and proceeded with the sniffer dog search and subsequent search of the accused’s vehicle.

Corporal Frost’s excuses included the inability to provide the accused his required privacy while maintaining officer safety (for example, the accused could potentially phone accomplices in the area). [ 60 ] As mentioned above, these excuses ignore the fact that there were at all material times at least two other officers present with vehicles to transport the accused to the Fort McMurray detachment which was, at most, 20 minutes from the scene of the traffic stop. [ 61 ] On the other hand, the accused was not questioned while at the scene and did not make any inculpatory comments.

In other words, the s 10 violations are not linked to the finding of the cocaine. [ 62 ] Accordingly, I find that the s 10(

b) breaches were technical in nature and only minimally impacted the accused’s interests. [ 63 ] As to society’s interest in an adjudication on the merits, the Court in Grant stated at paras 81 and 83 : 81 ...public interest in truth-finding remains a relevant consideration under the s 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence.

The admission of unreliable evidence serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute. ... 83 The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry.

Like Deschamps J, we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution. [ 64 ] In this case, the “drug evidence” is non-conscriptive and reliable. The s 10(

b) violations were not causally related to the seizure of the cocaine. Evidence was not elicited from the accused following his detention or arrests. On balance, taking into consideration the circumstances of this case and the factors set out in Grant , I find that the justice system, when viewed in the long-term, favours the admission of the evidence. Expert Evidence Possession for the purposes of trafficking [ 65 ] With the consent of the accused’s counsel, Staff Sergeant Mark Anderson was qualified to give expert evidence in the area of cocaine trafficking.

He sat in the courtroom throughout the testimony of Corporal Frost. He testified with respect to the manner of packaging, distribution and pricing of cocaine, consumption patterns, and practices and habits of couriers. [ 66 ] Counsel for the accused objected to Staff Sergeant Anderson giving much of his evidence, on the basis that it was unnecessary. He conceded that if the accused is found in possession of the cocaine, it was for the purposes of trafficking.

I am mindful that this case involves two kilograms of cocaine [ 67 ] Staff Sergeant Anderson stated that, in his view, this is a “possession for the purposes of trafficking case”. I accept his testimony and agree it is a “possession for the purposes of trafficking case”. Conclusion [ 68 ] I have found that: 1) the accused's s 8 and 9 Charter rights were not breached; 2) the accused's s 10(

b) Charte r rights were breached; 3) the long-term interests of justice nonetheless favour the admission of the evidence in this case; and 4) this is a “possession for the purposes of trafficking” case. Heard on the 14 th to 17 th days of December, 2015

Dated at the City of Edmonton, Alberta this 26 th day of January, 2016. Gerald A. Verville J.C.Q.B.A. Appearances: Aleksandra Simić and Kathryn Laurie (Alberta Federal Prosecution Agents) for the Respondent (Crown) J. Douglas Jevning (J. Douglas Jevning Law Corporation) for the Applicant (Accused)