R v MacDonald, 2016 ABQB 98

Court of Queen ’ s Bench of Alberta Citation: R v MacDonald, 2016 ABQB 98 Date: 20160304 Docket: 130892771Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Edward Clifford R. MacDonald Accused _______________________________________________________ Memorandum of Decision ( Voir Dire – Re wrongful arrest and seizure) of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ Table of Contents Introduction . 3 Background Facts . 3 Positions of the Parties . 5

Issues . 6 Analysis on Issue No. 1 – Has MacDonald established that his rights under ss 8 and 9 of the Charter have been breached? . 6 Analysis on Issue No. 2 – If MacDonald’s rights under ss 8 and 9 of the Charter have been breached, then what is the appropriate remedy pursuant to s 24(2) of the Charter ? . 8 Conclusion . 11

Schedule “A” . 13 Introduction [ 1 ] This is my decision on the lawfulness of the arrest of Edward Clifford R. MacDonald (“MacDonald”) and the admissibility of evidence of controlled substances discovered in the course of a warrantless search of a motor vehicle operated by MacDonald. [ 2 ] MacDonald was charged with the two offences under the Controlled Drugs and Substances Act , SC 1996, c 19 (“ CDSA ”) reflected in the Indictment, attached as

Schedule “A”. [ 3 ] In the course of the voir dire dealing with MacDonald’s Charter motion for exclusion of evidence, a question about the nature of the controlled substance included in Count No. 2 arose. Crown counsel indicated that he was withdrawing that charge. Because the matter had proceeded to trial and all of the evidence which the Crown had to call had been heard in the voir dire, I proceeded to dismiss Count No. 2 on the merits and directed that an acquittal be entered. The disposition of Count No. 1 in the Indictment remains outstanding and is dealt with in this decision.

Background Facts [ 4 ] On July 31, 2013, at approximately 7:05 a.m., Constable Gary Lee (“Cst. Lee”) of the RCMP, stopped an eastbound motor vehicle (the “Vehicle”) on Highway 16, near the Snaring River crossing in Jasper National Park, Alberta. MacDonald was driving the Vehicle. Cst. Lee was in his RCMP uniform, was driving a marked police vehicle, and activated his emergency equipment to effect the stop. [ 5 ] Cst.

Lee stopped the Vehicle because it was travelling at 99 km/hr in a posted 90 km/hr zone, and the Vehicle had crossed the “white fog line” on the right side of the travelling lane on several occasions. Further, Cst. Lee suspected that the driver of the Vehicle was using a cell phone and was distracted. [ 6 ] After the Vehicle stopped, Cst. Lee made a number of observations about the Vehicle and MacDonald, namely: (

a) The Vehicle displayed an Alberta license plate for a rental car; (

b) MacDonald watched Cst. Lee intently as he approached the Vehicle and spoke to the driver through an open window on the passenger side; (

c) Upon Cst. Lee requesting a driver’s license, MacDonald provided an “Indian Status Card”, and indicated that he had forgotten his license. MacDonald also provided the registration and a rental agreement for the Vehicle; (

d) MacDonald appeared to be “very nervous” and his voice was “shaking and quivering” as he spoke to Cst. Lee who stated that MacDonald’s “speech was almost unintelligible at times and he just, he wouldn’t stop fidgeting around, like he was moving around a lot”; (

e) There were at least two cans of Red Bull energy drink and a can of Mountain Dew in the Vehicle; (

f) The Vehicle was “a little bit messy” which was out of keeping with a rental vehicle according to Cst. Lee. There was a little plastic bag with clothes in it and a hoodie or jacket on the back seat. Cst. Lee opined that the amount of clothing in the Vehicle was not “typical” of the clothing needed for a three day trip; (

g) There were two cell phones visible in the console area of the Vehicle and a set of keys for another automobile, thought to be a Ford; (

h) In response to a question from Cst. Lee about where he was travelling from, MacDonald said that he had been in Langley, BC “visiting a girl” and “had been there for three days”; (

i) When Cst. Lee returned to his police car and conducted some inquiries on the database, he discovered that the license plates on the Vehicle had been “queried” by members of the RCMP for investigative purposes on July 29, 2013 at 4:24 CPIC time (i.e. 4:24 p.m. EDT

or 2:24 p.m. MDT) in Boyle, Alberta, and on July 30, 2013 at 10:40 a.m. CPIC time (i.e. 10:40 a.m. EDT or 8:40 a.m. MDT) by a member of the Wood Buffalo (Fort McMurray) RCMP Detachment. Cst. Lee testified that “querying” a vehicle involved checking the license plate on CPIC, and (

j) The rental agreement indicated that the Vehicle had been picked up in Fort McMurray on July 28, 2013 and was to be returned to that location at noon on July 31, 2013. [ 7 ] Based on the information about the Vehicle being “queried” in the Fort McMurray area and at or near Boyle, Alberta, Cst. Lee concluded that MacDonald was lying about his three day visit to Langley, BC. Based on this conclusion and taking all of his other observations and experience into account, Cst. Lee further concluded that MacDonald was in possession of a controlled substance. [ 8 ] Cst.

Lee testified, “... like I knew there was drugs in that vehicle, and as such, based on everything that I saw in the vehicle and my interaction with Mr. MacDonald, um and my ... like I said my experience, I knew there was drugs in the vehicle and I had a reasonable – I formed my reasonable and probable grounds to believe there were drugs in that vehicle. I then went and I went back to speak with Mr. MacDonald and I asked him to step out of the vehicle”. [ 9 ] At approximately 7:10 a.m. Cst. Lee arrested MacDonald for possession of a controlled substance. Cst.

Lee stated that “... the accused demanded to know why, why he was being arrested for possession of a controlled substance, at which time I Chartered him ...”. Cst. Lee did not tell MacDonald the grounds for making the arrest. [ 10 ] Cst. Lee then advised him of his Charter rights and delivered the standard police caution. He walked MacDonald back to the police car, handcuffed him, searched him and placed him in his police vehicle. [ 11 ] Upon completing these steps at 7:17 a.m., Cst. Lee proceeded to search the Vehicle. This was a warrantless search. [ 12 ] Cst.

Lee found two substances: one was ultimately confirmed to be cocaine, and the other which he thought initially to be an additional amount of another controlled substance, MDMA (ecstasy), ultimately turned out to be “phenacetin”. This latter substance is the one referred to in Count No. 2 in the Indictment, on which I have found MacDonald to be not guilty and have entered an acquittal. [ 13 ] A trained drug sniffer dog, managed by a Parks Canada officer, was available to assist in a vehicle search. While Cst.

Lee believed that this dog was in Jasper, about 10 miles away from where MacDonald was arrested, he did not call for the dog and a trained dog handler. Cst. Lee said that he did not make the call because he had concluded that he had reasonable and probable grounds to arrest MacDonald, and had arrested MacDonald already. [ 14 ] There is no evidence in this case that Cst. Lee smelled any controlled substances in the Vehicle at any time, nor were there any controlled substances in plain view. [ 15 ] Cst. Lee became a member of the RCMP on June 25, 2009.

He was sent to the Jasper Detachment shortly thereafter and was assigned to general duties as a Constable. [ 16 ] Many of his duties with the Jasper Detachment involved traffic and drug enforcement activities. Cst. Lee took a particular interest in the latter line of work. He had worked on a number of occasions with a group of RCMP members known as the roving traffic unit and had been involved in drug arrests with that group. On a number of occasions a police sniffer dog had been used to detect drugs, sometimes unsuccessfully. Cst.

Lee had taken a two-day training course called Operation Pipeline/Convoy, which dealt with policing in the Jasper area, particularly in respect to drug enforcement. He had also taken a five-day course dealing with interviewing techniques for suspects.

Otherwise, he had no formal training with respect to drug enforcement, beyond his normal everyday police experience. [ 17 ] In the course of his traffic and drug enforcement work prior to July 31, 2013, he came to know that couriers used Highway 16, which passes through Jasper National Park, as a route for transporting illegal drugs from west to east (i.e. into Alberta from the Province of British Columbia) and that the proceeds of the extensive drug trade in Alberta (i.e. money) flowed west down Highway 16 back to BC. Cst. Lee described Highway 16 as a major pipeline route for illegal drugs.

Positions of the Parties [ 18 ] The essence of MacDonald’s argument on this application is that there were insufficient objective factors present to provide reasonable grounds to Cst. Lee for the arrest, in breach of the s 9 Charter rights of MacDonald. If there were not reasonable grounds for the arrest of MacDonald, then it follows that the ensuing warrantless search, which discovered the controlled substance (cocaine), would also result in a breach of the s 8 Charter rights of MacDonald, because the ensuing search and seizure would be unreasonable.

MacDonald’s counsel urges the Court to exclude the evidence obtained as a result of Cst. Lee’s search of the Vehicle under s 24(2) of the Charter . [ 19 ] The essence of the Crown’s argument is that Cst. Lee had reasonable grounds to arrest MacDonald and these grounds are justifiable from both a subjective and an objective perspective. As such, the arrest was lawful and the subsequent search of the Vehicle was likewise lawful, being a search incidental to arrest.

However, even if this is not the case and MacDonald’s Charter rights were breached, the Crown argues for admission of the evidence obtained as a result of Cst. Lee’s search of the Vehicle under s 24(2) of the Charter , applying the analysis set out in R v Grant , 2009 SCC 32 . Issues [ 20 ] Two issues require resolution:

(1) Has MacDonald established that his rights under ss 8 and 9 of the Charter have been breached; and

(2) If MacDonald’s rights under ss 8 and 9 of the Charter have been breached, then what is the appropriate remedy

pursuant to s 24(2) of the Charter? Analysis on Issue No. 1 – Has MacDonald established that his rights under ss 8 and 9of the Charter have been breached? [21] In this case, MacDonald alleges a wrongful arrest, an unlawful search, and a subsequent unlawful seizure – all separatebreaches of his Charter rights. [22] Counsel for MacDonald suggested in his oral submissions that Cst. Lee had arbitrarily stopped MacDonald because he wasdriving a rental vehicle. The Traffic Safety Act, RSA 2000 c T-6 (“TSA”) gives general authority to peace officers to stop vehicles underss 166 and 167. Cst.

Lee observed MacDonald speeding (travelling 99 km/h in a posted 90 km/h zone), crossing the “white fog line” onmore than one occasion, and noted that MacDonald seemed to be using a cell phone. I find that Cst. Lee had authority to stop and detainMacDonald under the TSA. The initial traffic stop was not arbitrary and did not breach the s 9 rights of MacDonald. [23] The s 9 issue then must focus on the arrest of MacDonald, which occurred approximately five minutes after the initial trafficstop. Section 495(1)(

a) and (

b) of the Criminal Code, RSC 1985, c C-46, provides for arrest without a warrant as follows: 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, (

b) a person whom he finds committing a criminal offence ... [24] In R v Harding, 2010 ABCA 180 (at para 16), the Court of Appeal stated that the Criminal Code requirement that an arrestingofficer must have reasonable grounds on which to base the arrest has been construed by the Supreme Court of Canada in R v Storrey, (SCC), [1990] 1 SCR 241 at para 17, as requiring both a subjective and objective basis. The arresting officer mustpersonally believe that reasonable grounds exist and those grounds must, in addition, be justifiable from an objective point of view.

Thismeans that a reasonable person placed in the position of the officer must be able to conclude that there were reasonable grounds forarrest. [25] On the first aspect of the Storrey test, I am satisfied that Cst. Lee honestly believed that he had reasonable grounds to arrestMacDonald in these circumstances. He actually took his state of mind further; he referred to having reasonable and probable grounds,which I take to mean that he believed that a criminal offence (i.e. a breach of the CDSA) had been committed.

Therefore, from asubjective perspective, he had more than a mere suspicion; he had the “full meal” deal. He believed an offence had been committedbased on the observations which he had made, his experience as a police officer, and the information which he had gathered in his briefinteraction with MacDonald. [26] During oral submissions, counsel for MacDonald conceded that the subjective element is not at issue. Rather, the outstandingquestion here is whether the grounds on which Cst. Lee relied in arresting MacDonald are justified from an objective point of view.

Putanother way, are there sufficient objective factors to provide reasonable grounds for arrest in this case? [27] The Crown relies on R v Loewen, 2010 ABCA 255, R v Whyte, 2011 ONCA 272, and R v Wu, 2015 ONCA 667, in supportof its argument that this analysis requires a consideration of the totality of the circumstances and that the Court should not“compartmentalize” them or view each of them in isolation of the others. [28] While I agree that this statement of the law is accurate, I note that the cases submitted by the Crown are distinguishable ontheir facts.

Unlike the case at bar, both Whyte and Wu involved police action (including police surveillance) after receiving informationfrom a confidential informant. Loewen more closely reflects the scenario in the present case, as it involved a traffic stop that led to anarrest for possession of a controlled substance. However, there were certain observations giving rise to the reasonable grounds for arrestthat are not present in the present case, including the noticeable odor of freshly-burnt marijuana. [29] I turn now to assess the circumstances identified by Cst.

Lee as forming the basis for his decision to arrest MacDonald. [30] I have already outlined the circumstances leading up to MacDonald’s arrest, including the observations of Cst. Lee. Some ofthese observations are innocuous or neutral, and could apply to many travellers driving through Jasper National Park in July, 2013,including driving a rental vehicle with Alberta license plates in an easterly direction, having energy and soft drinks in the vehicle, havinga jacket or hoodie or other clothes on the rear seat, and the vehicle being “a little messy”.

I do not consider it unusual for a member of thepublic to be nervous when interacting with a police officer in a traffic stop, to “intently watch” the police officer’s movements, or to havethe vehicle registration documents in hand ready for delivery to the police officer. Other factors may be somewhat more unusual,including failing to produce a driver’s license, the observation of keys belonging to another car inside the Vehicle, and having two cellphones – though Cst. Lee acknowledged that there was nothing particularly alarming about that latter fact.

In my view, the apparentinconsistencies in the story about visiting a girl in Langley, B.C., especially after Cst. Lee queried the license plate on the Vehicle, couldarouse more suspicion. I must say, however, that the rather “pat” nature of the story told by Cst. Lee does raise a real concern for me asto the believability of his account.

Further, the very fast jump to a conclusion that both reasonable and probable grounds existed for arrestalso raises a concern for me. [31] The result of all of this is that for me the factors outlined add up to little more than a bunch of suspicions, which do not evenamount to the threshold of a “reasonable suspicion”. Counsel for MacDonald suggested that these suspicions may have given groundsfor a sniffer dog search. However, that is not the question which I am called upon to decide. Rather, I must decide whether all of thecircumstances described by Cst.

Lee accumulate to constitute reasonable grounds for the arrest which was made in this case. [32] For the reasons which I have stated and looking at the circumstances on a factor-by-factor basis, and also taking them as a

whole, I am not convinced that they form reasonable grounds for an arrest.

In the absence of objectively justified grounds, I find that thearrest of MacDonald was not lawful and his rights under s 9 of the Charter were breached. [33] I turn now to analyze whether the search of the Vehicle was lawful. [34] Police officers have authority to conduct searches incidental to an arrest, provided that the arrest itself is lawful: R v Caslake,[1998] 1 SCR 51, (SCC); R v Stillman, [1997] 1 SCR 607, (SCC) at para 27, per Cory J; see also R vPhung, 2013 ABCA 63. [35] The law is well settled that a warrantless search is prima facie unreasonable; the Crown bears the onus of establishing itsreasonableness (see Hunter v Southam Inc, [1984] 2 SCR 145, (SCC); and R v Collins, [1987] 1 SCR 265, (SCC)).

This is done if: (1) the search is authorized by law, (2) the law itself is reasonable, and (3) the manner in which thesearch was carried out is reasonable (Collins at 278). The Crown characterized the search of the Vehicle as a search incident to arrest,and did not put forward any other basis upon which Cst. Lee had lawful authority to conduct that search. Because the arrest wasunlawful, the search of the Vehicle was not authorized by law.

Accordingly, I find that the Crown has not met its onus of establishing thereasonableness of the warrantless search of the Vehicle. [36] MacDonald has established that both his arrest and the subsequent search of the Vehicle were not lawful. It follows that theseizure of the controlled substance (cocaine) was also unlawful. Therefore, I find that the rights of MacDonald under both ss 8 and 9 ofthe Charter were breached by the actions of Cst. Lee.

Analysis on Issue No. 2 – If MacDonald’s rights under ss 8 and 9 of the Charter havebeen breached, then what is the appropriate remedy pursuant to s 24(2) of theCharter? [37] Turning to the analysis under R v Grant, 2009 SCC 32, the first line of inquiry requires an assessment of the seriousness ofthe breaches. This involves locating the alleged Charter-infringing state conduct on a spectrum, which extends from blameless behavior,through negligent conduct, to blatant disregard of the Charter rights of an accused person. Central to this inquiry is an assessment of theconduct of the state actor – in this case Cst.

Lee, as he was the only police officer involved in the arrest, search and seizure. [38] In R v Harrison, 2009 SCC 34, the Supreme Court of Canada described the manner in which to conduct the first Grant line ofinquiry (at para 22): [22] ... Did [the Charter-infringing conduct] involve misconduct from which the court should be concerned to dissociate itself? Thiswill be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) thattheir conduct was not Charter-compliant.

On the other hand, where the breach was of a merely technical nature or the result of anunderstandable mistake, dissociation is much less of a concern. [39] Unlike the police officer in Harrison, Cst. Lee had lawful authority to initiate the traffic stop. Cst. Lee testified that he wasconcerned for MacDonald’s Charter rights – and that is why he immediately arrested him after making his observations, instead ofproceeding with further investigation. The Crown points to this as proof of good faith.

However, in my view, evidence of good faith andthe subjective understanding of a police officer do not settle the matter. Cst. Lee should have known that he did not have reasonablegrounds to make an arrest. Though he may have had a “hunch” about the possession of drugs, it was not enough to proceed from hissuspicions to an arrest.

As McLachlin CJC stated in Harrison, “While an officer’s ‘hunch’ is a valuable investigative tool — indeed,here it proved highly accurate — it is no substitute for proper Charter standards when interfering with a suspect’s liberty” (at para 20). [40] The Crown argues that the discovery of the evidence from the Vehicle was inevitable, or in other words, if Cst. Lee had calledin the sniffer dog, it was inevitable that the drugs would have been discovered.

Therefore, argues the Crown, the Court should admit theevidence. [41] In R v Côté, 2011 SCC 46, Cromwell J, writing for the majority of the Supreme Court of Canada, stated (at para 74): [74] The lawful discoverability of evidence may thus be a relevant consideration when a court must determine whether to excludeevidence pursuant to s 24(2) of the Charter.

When relevant, courts should assess the effect of the discoverability of the evidence underthe first and second Grant lines of inquiry in light of all the circumstances. [42] Cromwell J also cautioned that, “A finding of discoverability should not be seen as necessarily leading to admission ofevidence” (at para 70). [43] Here, several options were available to Cst. Lee. As suggested by counsel for MacDonald during cross-examination, Cst. Leecould have sought a “telewarrant”, or he could have called for the assistance of a trained sniffer dog and handler from the nearby town ofJasper.

Other options may also have been available. When cross-examined about why he did not get a warrant to search the Vehicle, Cst.Lee responded that he did not feel the need to get one because he “knew” there were drugs in the Vehicle. He also testified that this waswhy he did not feel the need to call in the sniffer dog. [44] I am somewhat troubled by Cst.

Lee’s testimony of a prior experience where he had been “100 percent sure” that marijuanawas present in a vehicle, but that a sniffer dog had failed to find any. [45] When all of the evidence and the facts which I have found are taken into account, I conclude that the seriousness of the state-infringing conduct of Cst. Lee is at the higher end of the conduct spectrum. These were serious breaches of MacDonald’s ss 8 and 9Charter rights. This favours exclusion of the evidence.

[46] The second line of the Grant inquiry involves an assessment of the impact of the breaches on the Charter-protected interestsof MacDonald. At this stage, courts often look at factors such as the privacy interests of the accused and whether the evidence wouldhave been discovered if the Charter breaches had not occurred. [47] Determining whether a reasonable expectation of privacy exists requires the Court to look at the totality of the circumstances:R v Edwards, [1996] 1 SCR 128, (SCC). Expectations of privacy are reduced in motor vehicles: R v Wise, [1992] 1SCR 527, (SCC).

This is even more so when the vehicle is rented. In this case, MacDonald had rented the Vehiclehimself and when lawfully stopped by Cst. Lee, he was driving on a public highway. [48] As with the first Grant line of inquiry, the (inevitable) discoverability of the evidence is an important consideration. In Côté,Cromwell J stated that “the absence of a warrant when one was legally required constitutes an infringement of an accused’s privacy....The greater the expectation of privacy, the more intrusive the unauthorized search will have been” (at para 73).

Because of s 495(1) ofthe Criminal Code, a warrant may not have been legally required in the circumstances of this case and so, the absence of a warrant is notdeterminative. However, Cromwell J’s comments are nonetheless instructive in the assessment of an infringement of MacDonald’sprivacy. [49] By driving a rented vehicle on a public highway, MacDonald enjoyed a lower expectation of privacy than if he had been in hisown home.

At the same time, he enjoyed a greater expectation of privacy travelling in a private vehicle than if he had been using publictransportation. [50] In Harrison, the majority of the Supreme Court of Canada stated at para 31: [31] ... [B]eing stopped and subjected to a search by the police without justification impacts on the motorist’s rightful expectation ofliberty and privacy in a way that is much more than trivial.

As Iacobucci J observed in Mann, the relatively non-intrusive nature of thedetention and search “must be weighed against the absence of any reasonable base for justification (para 56 (emphasis in original)). Aperson in the appellant’s position has every expectation of being left alone – subject, as already noted, to valid highway traffic stops. [51] As I have stated, Cst. Lee had lawful authority under the TSA to stop MacDonald’s vehicle. This distinguishes the present casefrom Harrison. However, MacDonald’s arrest was not lawful, nor was the resultant search or seizure of the controlled substance(cocaine).

In my view, MacDonald’s deprivation of liberty and his moderate expectation of privacy means that there was a serious,although not egregious, impact on his Charter-protected interests. This line of inquiry favours exclusion of the evidence. [52] Moving to the third branch of Grant, the remaining charge faced by MacDonald is possession of a controlled substance,namely cocaine, in a substantial amount. The people of Alberta and Canada have a profound interest in the trial of this charge.

As statedin Grant, society will not tolerate a court excluding evidence which is relevant and reliable (at para 81). [53] The evidence seized from the search of the Vehicle is reliable and is capable of playing an important role in the determinationof the merits of the adjudication, which could take place if the trial were to proceed. The Crown argues that its case would be “gutted”by the exclusion of the drug evidence. These considerations point towards admission of the evidence.

Further, counsel for MacDonaldconcedes that this line of inquiry favours admission. [54] I must now balance the outcomes of the three lines of inquiry which I have just discussed to determine whether admission ofthe evidence obtained from the Charter breaches would bring the administration of justice into disrepute.

Writing for the majority of theSupreme Court in Grant, McLachlin CJ and Charron J described what this means at paras 68-70: 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. 69 Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been doneto the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breachdoes not do further damage to the repute of the justice system. 70 Finally, s 24(2)’s focus is societal.

Section 24(2) is not aimed at punishing the police or providing compensation to the accused,but rather at systemic concerns. The s 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of thejustice system. [55] The first two avenues of inquiry point in the direction of exclusion, and the final one points in the direction of inclusion.Recognizing that the balancing of the results of the Grant lines of inquiry is not simply a mathematical exercise, I must decide whetherto admit the evidence.

After consideration of the evidence and my findings of fact, I conclude that the appropriate remedy under s 24(2)of the Charter is to exclude the evidence seized from the search of the Vehicle. Conclusion [56] I repeat my conclusions stated above that MacDonald has shown to my satisfaction that his s 8 and s 9 Charter rights werebreached. I have also determined that the appropriate remedy under s 24(2) of the Charter is to exclude all evidence related to thecontrolled substances which Cst.

Lee found in the trunk of the Vehicle. [57] The parties had indicated at the outset of the trial that the charges against MacDonald stood or fell on my determination as to

the admissibility of the evidence related to possession of controlled substances. Accordingly, I find MacDonald not guilty on the outstanding charge contained in Count No. 1 of the Indictment and direct that an acquittal be entered. I further direct that any property seized from MacDonald (except the controlled substances) be returned to him promptly. The drugs are forfeited to the Crown and shall be destroyed. If any further directions are required from me, I request counsel to contact my assistant to

schedule an open court session in Edmonton to hear any such applications. Heard and argued on the 26 th day of November, 2015, at Hinton, Alberta, followed by the submissions of written argument by the parties and delivered by the Crown on December 4, 2015 and December 11, 2015 by counsel for the defence. Dated at the City of Edmonton, Alberta this 4 rd day of March, 2016. D.R.G. Thomas J.C.Q.B.A. Appearances: Mr. Kevin J. Short and Ms. Kathryn Laurie (Alberta Federal Prosecution Agents) for the Crown Mr. Akram Attia (Attia Reeves) for MacDonald

Schedule “A”