R v Rodriguez, 2021 ABQB 372

Court of Queen’s Bench of Alberta Citation: R v Rodriguez, 2021 ABQB 372 Date: 20210511 Docket: 181346792Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - David Rodriguez Accused _______________________________________________________ Reasons for Decisions in a Voir Dire (s. 10(b), Search Incident to Arrest, Fearon , Strip Search) of the Honourable Mr. Justice W.N. Renke _______________________________________________________ The following is an edited version of an oral decision.

I’d reserved the right to complete citations and quotations, add a Table of Contents and headings, and make minor stylistic changes. [ 1 ] On November 2, 2018 at around 5:00 p.m., Mr. Rodriguez was sitting in a Jeep Cherokee at a red light at the intersection of 109 Street and Jasper Avenue in Edmonton, heading westbound. He was texting. He did not realize that Constables Todd Leach and Hector Lloyd of the EPS, on traffic enforcement duty, were in the unmarked vehicle to his right. [ 2 ] Mr. Rodriguez was pulled over for texting while driving. When asked to produce his licence and registration, Mr. Rodriguez

handed Cst. Leach a Mexican driver’s licence. Mr. Rodriguez, it appears, holds dual citizenship. Further inquiries disclosed that Mr. Rodriguez’s Alberta driver’s licence was suspended. Mr. Rodriguez was charged with driving while disqualified (CC s. 259(4)). [ 3 ] Mr. Rodriguez had been the sole occupant of the vehicle. The registered owner of the vehicle was his brother. [ 4 ] Searches incident to the drive while disqualified arrest were conducted. Cst. Leach saw a knife in plain view in the driver’s door cubby area. Mr.

Rodriguez was charged with possession of a weapon for a purpose dangerous to the public peace (CC s. 88(1)). Cst. Lloyd searched Mr. Rodriguez’s vehicle and came upon a bag or satchel under the front passenger seat. That bag was found to contain a quantity of packaged cocaine. Mr. Rodriguez was charged with possession for the purpose of trafficking (CDSA s. 5(2)). [ 5 ] Mr. Rodriguez was, eventually, transported to EPS Downtown Division, where he had an opportunity to consult counsel and was strip searched. [ 6 ] Mr.

Rodriguez’s trial opened with a “blended” voir dire , “blended” in the sense that several Charter issues fell to be decided on the basis of a single interwoven factual narrative. The issues for determination were the following: • was Mr. Rodriguez’s arrest for the drive while disqualified offence unlawful because of a violation of Mr. Rodriguez’s s. 10(

b) rights? • did the search of Mr. Rodriguez’s vehicle violate his s. 8 rights because the search was not truly incident to arrest? • were Mr. Rodriguez’s s. 10(

b) rights violated by a failure to permit an on-site consultation with counsel? • were Mr. Rodriguez’s s. 10(

b) rights violated by delay in being provided with an opportunity to consult counsel? • were Mr. Rodriguez’s s. 8 rights violated by the observation of his cellphone alerts and notifications? • were Mr. Rodriguez’s s. 8 rights violated by the strip search? At this point, only issues under ss. 8 and 10(

b) of the Charter were argued. Argument on ss. 24(1) and (2) was deferred pending my conclusions on the ss. 8 and 10(

b) issues. [ 7 ] The initial detention of Mr. Rodriguez was properly not challenged. Cst. Leach was driving the patrol vehicle. He maneuvered the patrol vehicle close to the lane marking and observed Mr. Rodriquez texting for about 30 seconds. The officers stopped Mr. Rodriguez’s vehicle after it went through the intersection, at 5:14 p.m. Cst. Leach informed Mr. Rodriguez that he was stopped for using his cellphone while driving. Table of Contents I. Was Mr. Rodriguez’s arrest for the drive while disqualified offence unlawful because of a violation of Mr. Rodriguez’s s. 10(

b) rights? . 4 A.

Section 10(

b) of the Charter . 5 B. Without Delay . 6 C. Arrest and Duties on Arrest Distinguished . 7 II. Did the search of Mr. Rodriguez’s vehicle violate his s. 8 rights because the search was not truly incident to arrest? . 7 A. Search Incident to Arrest 8 B. Truly Incident to Arrest 9 1. Purposes, Objectives . 9 2. Standard of Reasonableness . 9 3. This Search . 9 C. Conclusion . 14 III. Were Mr. Rodriguez’s s. 10(

b) rights violated by a failure to permit an on-site consultation with counsel? 15 IV. Were Mr. Rodriguez’s s. 10(

b) rights violated by delay in being provided with an opportunity to consult counsel? . 16 A. Facts . 16 B. Duty to Provide Access to Counsel “Without Delay” . 16 1.

Interpretation . 16 2. Assessment 17 V. Were Mr. Rodriguez’s s. 8 rights violated by the observation of his cellphone alerts and notifications? 19

A. Search and Seizure . 19 B. Compliance with s. 8 . 20 1. Search Contents . 21 2. Prompt Search . 22 3. Notes . 22 VI. Were Mr. Rodriguez’s s. 8 rights violated by the strip search? . 25 A. Strip Search . 25 B. The Grounds for the Search . 27 1. Team Work . 27 2. Testimony and Strip Search Authorization Record . 28 3. Facial Assessment of Strip Search Authorization Record Grounds . 29 4. Subfacial Concerns . 33 5. Conclusion . 34 VII.

Summary . 34 I. Was Mr. Rodriguez’s arrest for the drive while disqualified offence unlawful because of a violation of Mr. Rodriguez’s s. 10(

b) rights? [ 8 ] Mr. Rodriguez was initially stopped and ticketed for distracted driving. [ 9 ] After he provided his Mexican driver’s licence, Mr. Rodriguez explained that he was visiting family and was staying with his brother for four months. The officers did some database searches using the computer in the patrol vehicle (I’ll return to these searches below). [ 10 ] At 5:26 p.m., Cst. Leach arrested Mr. Rodriguez for driving while disqualified. Mr. Rodriguez was not advised of his right to counsel at this time. [ 11 ] Mr. Rodriguez was handcuffed. [ 12 ] Cst. Leach and Cst. Lloyd searched Mr.

Rodriguez incident to arrest. A folded bundle of cash was found in his left jacket pocket, totaling $280. A cellphone was found in his right front pants pocket. I’ll discuss search incident to arrest doctrine below. [ 13 ] Mr. Rodriguez was placed in the patrol vehicle. [ 14 ] Mr. Rodriguez had put his wallet on the driver’s seat of his vehicle. Cst. Leach retrieved the wallet. It contained a TD Bank debit card in Mr. Rodriguez’s name but no photo identification or other identification. A hunting knife with a 4” fixed blade was observed in the driver’s side door panel. [ 15 ] Cst.

Leach returned to the patrol vehicle. Cst. Lloyd continued to search Mr. Rodriguez’s vehicle. [ 16 ] Cst. Leach advised Mr. Rodriguez of the reason for his arrest. Cst. Leach was “in the process” of getting to Mr. Rodriguez’s Charter rights. Mr. Rodriguez, though, said he was told by Alberta Registries that he could drive on a Mexican licence and he had questions about how he could be regarded as a suspended driver. Mr. Rodriguez explained to Cst. Leach that in Mexico, the mother’s maiden name is included on identification documents.

He also said that he has dual citizenship and travels on a Canadian passport. [ 17 ] In cross-examination, Cst. Leach stated that “he’s creating delay by asking questions” and by asking for clarification. [ 18 ] Cst. Lloyd then found a black bag under the rear of the front passenger seat that contained some packaged cocaine. [ 19 ] At 5:27 p.m., Cst. Lloyd advised Cst. Leach of what he had located and showed him what he had located. Cst. Leach arrested Mr. Rodriguez for possession of cocaine for the purpose of trafficking. Cst. Leach provided Mr.

Rodriguez with his rights to counsel after he was arrested for the possession for the purpose of trafficking offence. [ 20 ] The Defence contended that Mr. Rodriguez was not lawfully arrested for driving while disqualified because his Charter rights respecting this offence were violated.

[21] I find that Mr. Rodriguez’s arrest for the drive while disqualified offence was not rendered unlawful by a violation of s. 10(b).Cst. Leach did not violate s. 10(b). A.

Section 10(

b) of the Charter [22]

Section 10(

b) of the Charter provides that 10. Everyone has the right on arrest or detention … (

b) to retain and instruct counsel without delay and to be informed of that right …. [23] In R v Taylor, 2014 SCC 50, Justice Abella wrote as follows at paras 21-23: [21] The purpose of the s. 10(

b) right is “to allow the detainee not only to be informed of his rights and obligations under the law but,equally if not more important, to obtain advice as to how to exercise those rights”: Manninen, at pp. 1242-43. The right to retain andinstruct counsel is also “meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”: R. v.Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460, at para. 40.

Access to legal advice ensures that an individual who is under controlof the state and in a situation of legal jeopardy “is able to make a choice to speak to the police investigators that is both free andinformed”: R. v. Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310, at para. 25. [22] In R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, Lamer C.J. explained why the right to counsel must be facilitated“without delay”: This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position ofdisadvantage relative to the state.

Not only has this person suffered a deprivation of liberty, but also this person may be at risk ofincriminating him- or herself. Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate needof legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty ....Under s. 10(b), a detainee is entitled as of right to seek such legal advice “without delay” and upon request ... [T]he right to counselprotected by s. 10(

b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process. [Emphasisadded; p. 191.] [23] He also confirmed the three corresponding duties set out in Manninen which are imposed on police who arrest or detain anindividual: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aidand duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger) …. [24] In Suberu, Chief Justice McLachlin and Justice Charron specified at para 42 that In our view, the words “without delay” mean “immediately” for the purposes of s. 10(b).

Subject to concerns for officer or public safety,and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or herright to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [25] The Defence claim was that none of the s. 10(

b) duties was performed immediately, particularly the informational duty. Thisviolation rendered the arrest unlawful. [26] I do not accept the Defence argument, for two reasons. B. Without Delay [27] First, Cst. Leach did not fail to advise Mr. Rodriguez of this right to counsel “without delay.” The time from arrest for thedrive while disqualified charge to arrest for the possession for the purpose charge was very short. On the evidence, about one minuteelapsed. Within that time, the officers searched Mr. Rodriguez incident to arrest and Mr. Rodriguez was lodged in the back of the patrolvehicle.

Both steps were required for officer safety. The officers were entitled to attend to these steps before Chartering Mr. Rodriguez.That left only a short temporal gap before Cst. Leach learned that Mr. Rodriguez should be arrested for an additional charge. [28] It is true that Mr. Rodriguez spoke to Cst. Leach in that short temporal gap. Cst. Leach’s testimony was that this sort ofspontaneous and unsolicited response by an arrestee is common. The evidence did not suggest that Cst. Leach attempted to elicit anyevidence from Mr. Rodriquez during this gap. Cst.

Leach stated that he does not attempt to interrupt or speak over an arrestee. Anarrestee, like Mr. Rodriguez, must be disposed to listen before the arrestee can properly hear and understand the right to counsel. Apolice officer, like Cst. Leach, has an obligation to ensure that the right to counsel is communicated to the arrestee. If there is animpediment to understanding that right, the officer must address that impediment.

In a case like this one, that may mean simply pausingbriefly before advising of the right to counsel. “[T]he police cannot rely on their mechanical recitation of the right to the accused; theymust take steps to facilitate that understanding:” R v Evans, (SCC), [1991] 1 SCR 869, McLachlin J, as she then was, at891. In the circumstances, a pause to permit Mr. Rodriguez to settle down was not a violation of s. 10(

b) but a way of ensuring that Mr.Rodriguez would properly appreciate his s. 10(

b) rights.

[29] I concede that there is a risk that increases as the pre-Chartering temporal gap increases that an officer will be found not tohave facilitated communication through a pause but to have delayed providing constitutionally required advice. [30] In this case, though, the gap was very short and the Crown does not rely on anything that Mr. Rodriguez said in the interval toestablish his guilt. C. Arrest and Duties on Arrest Distinguished [31] Second, Cst. Leach exercised the arrest authority set out in s. 495 of the Criminal Code: 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 …. The Defence did not dispute that Cst. Leach had reasonable grounds for belief that Mr. Rodriguez had committed the drive whiledisqualified offence. [32] The arrest crystallized when Cst. Leach took custody of Mr. Rodriguez. In R v Asante-Mensah, 2003 SCC 38, Justice Binniewrote as follows at paras 42 and 33: 42 In R. v.

Whitfield, (SCC), [1970] S.C.R. 46, this Court adopted, for the purposes of the Criminal Code, the followingcommon law definition of the act of arrest, per Judson J., at p. 48: Arrest consists of the actual seizure or touching of a person’s body with a view to his detention …. 33 A good starting point is the description of an arrest at common law provided by Lord Diplock in Holgate-Mohammed v. Duke, [1984]A.C. 437 (H.L.), at p. 441: The word “arrest” . . . is a term of art.

First, it should be noted that arrest is a continuing act; it starts with the arrester taking a personinto his custody, (sc. by action or words restraining him from moving anywhere beyond the arrester’s control), and it continues until theperson so restrained is either released from custody or, having been brought before a magistrate, is remanded in custody by themagistrate’s judicial act. [Emphasis added.] …. [33] Cst. Leach had reasonable grounds for the belief that Mr. Rodriguez committed the drive while disqualified offence and Cst.Leach arrested Mr. Rodriguez. At the time that Cst.

Lloyd searched the vehicle, Mr. Rodriguez was the subject of a lawful arrest. [34] Even had a violation of s. 10(

b) occurred, this would not have made the arrest illegal or deprived it of legal validity. Section10(

b) imposes a duty or set of duties that arises upon an individual being arrested or detained. A violation of that duty or set of dutiesmay have remedial consequences under s. 24 of the Charter, but those consequences do not retroactively invalidate the legal status of thearrest. II. Did the search of Mr. Rodriguez’s vehicle violate his s. 8rights because the search was not truly incident to arrest? [35] The search of Mr. Rodriguez’s vehicle did cause me some significant concern. A stop for texting while driving evolved into arelatively thorough search of his vehicle, without any suggestion that Mr.

Rodriguez was in possession of drugs or any other contraband.This might seem to be an extraordinary result. This intuitive reaction, however, must be tempered by three considerations. [36] First, search incident to arrest is indeed an “extraordinary” common law power, as Justice Moldaver expressly labelled it in Rv Fearon, 2014 SCC 77. At para 16, Justice Moldaver wrote that “it is an extraordinary power in two respects.

The power to searchincident to arrest not only permits searches without a warrant, but does so in circumstances in which the grounds to obtain a warrant donot exist.” [37] Second, the circumstances leading to the search and seizure were unusual, not those of a typical traffic stop. [38] Third, the search did not arise from a traffic stop, but from an arrest for the criminal offence of drive while disqualified. [39] I’ll describe search incident to arrest doctrine before considering the challenge to the search. A.

Search Incident to Arrest [40] A search incident to arrest is a warrantless search, so the Crown bears the burden of proving, on a balance of probabilities,that the search was reasonable and so did not violate s. 8 of the Charter: R v Caslake, [1998] 1 SCR 51, at para 11; R vLaw, 2020 ABCA 267 at para 37. [41] The proof of reasonableness of a warrantless search has three stages. The search must be authorized by law, that law must bereasonable, and the search must have been carried out in a reasonable manner: Caslake at para 10; Law at para 36.

[42] The basis for the search in this case was the common law doctrine of search incident to arrest, an arrest power “deeply rootedin our law:” Fearon at paras 16, 14. The constitutionality of that doctrine is unchallenged. [43] Search incident to arrest is permitted if the search is founded on a lawful arrest, the search was “truly incidental” to the arrest,and the search was conducted reasonably: Fearon at para 27. [44] As for the first element, I have found that Mr.

Rodriguez’s arrest for the drive while disqualified offence was a lawful arrest. [45] As for the third element, the Defence did not challenge the conduct or manner of the search. Mr. Rodriguez’s vehicle was notdamaged. The search did not involve detaching parts of the vehicle.

The search was a visual inspection of the interior of the vehicle only. [46] No issues arose respecting the reasonableness of the timing of the search (whether the search occurred too long after thearrest), the objects searched for (bodily integrity, for example, was not engaged), or the place searched (motor vehicles are not protectedby a heightened expectation of privacy and may be legitimately searched by an otherwise proper search incident to arrest: Caslake atpara 15; Law at para 38). [47] But as for the second element, was the search “truly incident” to the arrest? B. Truly Incident to Arrest 1.

Purposes, Objectives [48] A search incident to arrest serves one or more of three purposes or objectives – to protect the safety of the police, the public,or the accused; to prevent the accused’s escape; or to collect evidence connected to the offence. [49] The officer conducting the search must subjectively or in fact pursue one or more of these purposes through the search. Thesearch must be connected or related to the offence for which the accused has been arrested: Fearon at para 25. Further, the belief that thepurpose will be served must be reasonable: Caslake at para 19. 2.

Standard of Reasonableness [50] The reasonableness requirement is important. The Court sets boundaries on this very broad search authority through after-the-fact reasonableness review: Caslake at paras 14, 15. [51] The standard of this reasonableness review, however, is not reasonableness on a balance of probabilities. That standard wouldrequire that the likelihood of promoting the objective through the search was greater than the likelihood of any competing conclusionson the evidence. [52] Neither does the standard of review require that reasonable grounds be established.

That standard requires that the belief be a(not the) reasonable conclusion in the circumstances.

That is the standard of “credibly-based probability.” The Court of Appeal observedin R v Ha, 2018 ABCA 233 that reasonable grounds do not necessarily rule out innocent inferences, defences, or lawful excuses. “[T]hepresence of other possible, plausible, innocent explanations for police-observed behaviour does not legally or automatically negatecredibly-based probability, that is, reasonable and probable grounds:” Ha at paras 31, 33, 34. [53] The reasonableness standard applying to search incident to arrest is not as demanding as reasonable grounds.

Caslake refers to“reasonableness to pursue the objective” in the context of arrest (para 20), to “some reasonable basis” (para 20), and to “some reasonableprospect” of securing the objective (para 22). See also Fearon at para 22. The standard, then, is reasonable possibility (a prospect) ratherthan reasonable grounds (a probability). It follows that this reasonable possibility need not rule out other possible, plausible, or innocentconclusions concerning the place searched and the prospect of securing the objective. [54] The reasonable prospect standard would exclude mere possibilities, speculations, or hunches.

The possibility must bereasonable. 3. This Search (

a) Objective Pursed [55] Cst. Lloyd did not search Mr. Rodriguez’s vehicle for safety purposes or to prevent Mr. Rodriguez’s escape. Mr. Rodriguez, Inote, was in handcuffs and in or on his way to the back of the patrol vehicle when the search took place. The search was for evidenceconnected with the drive while disqualified offence. Cst. Lloyd stated that he performed a search of the vehicle for “additionaldocuments to confirm Rodriguez’s identity.” The subjective aspect of the “truly incidental” element of the search was satisfied. [56] In this case, there was no evidence that Cst.

Lloyd searched the vehicle for any reason other than the reason he stated. He wasnot, for example, conducting a search for drugs under the guise of a search concerning the drive while disqualified offence. [57] The search, though, was not for (e.g.) records showing that Mr. Rodriguez was a suspended driver. It did not serve that aspectof the offence. The search was for records tending to establish Mr.

Rodriguez’s identity. [58] Did this focus on identity somehow take the search out of the proper ambit of search incident to arrest? [59] Justice L’Heureux-Dubé wrote in Cloutier v Langlois, (SCC), [1990] 1 SCR 158 at 182 that

the process of arrest must ensure that evidence found on the accused and in his immediate surroundings is preserved. The effectivenessof the system depends in part on the ability of peace officers to collect evidence that can be used in establishing the guilt of a suspectbeyond a reasonable doubt.

The legitimacy of the justice system would be but a mere illusion if the person arrested were allowed todestroy evidence in his possession at the time of the arrest. [emphasis added] One might argue, then, that because identity cannot be destroyed, because identity would remain to be established after arrest when anaccused is taken to a police station, identity is not a proper subject of search incident to arrest. [60] That argument, though, does not stand up to scrutiny.

Identity of a perpetrator is part of the actus reus of an offence and somay be an appropriate fact-in-issue to be supported by evidence gathered through search incident to arrest. [61] If the concern is with “evidence that may be lost without search” the charges as a whole could be lost if the wrong personwere identified as the perpetrator. The actual perpetrator might escape prosecution entirely. [62] Numerous cases have accepted the legitimacy of search incident to arrest focusing on an accused’s identity.

In Beare, the useof search incident to arrest to find identifying physical features was countenanced: R v Beare; R v Higgins, [1988] 2 SCR 387, , La Forest J at paras 33-34; see also para 38.

See also, e.g., R v Tran, 2003 ABPC 132, Lefever PCJ, as he then was, at para70; R v Januska, 2014 ABQB 404, Romaine J at paras 19, 53; Law at paras 40-41; R v Caprara, 211 OAC 211, ,Moldaver JA, as he then was, at paras 7, 9; R v Smith, (ON SC), Dambrot J at paras 30-31. [63] In my opinion, the availability of search incident to arrest respecting identity is not restricted to search incident to “failing toprovide (proper) identity” charges, since identity is a part of the actus reus for all offences. [64] A search incident to arrest respecting identity is not rendered unreasonable just because the police have reasonable grounds tobelieve that the accused is who he says he is, and if the police have, on the basis of those reasonable grounds, arrested the accused.Reasonable grounds are only credibly-based probability, some evidence permitting a reasonable inference that the person arrested has aparticular identity.

The police should not be precluded from acquiring further evidence of the accused’s identity to aid in establishing thecase beyond a reasonable doubt: Cloutier v Langlois at 182. [65] As against this conclusion, one might turn to R v Campbell-Noel, 2019 ONSC 430, where Justice Dennison wrote as followsat para 156: [156] PC French admitted that he did not require the driver’s licence to charge Mr. Campbell-Noel with driving while under suspension.It was also not evidence that was required to prove the offence. Mr. Campbell-Noel provided his name and date of birth and PC Frenchwas satisfied that Mr.

Campbell-Noel was being truthful, as the photograph from the MTO search depicted Mr. Campbell-Noel. It wason that basis that PC French had reasonable and probable grounds to advise A/S Robinson to arrest Mr. Campbell-Noel for driving whileunder suspension. The search was not truly incidental to the arrest. See also para 184. In this case, though, Justice Dennison found that PC French was “satisfied” that the accused was being truthful. If, incontrast, the police were not satisfied that the accused is who he says he is, further search is not precluded.

Hence, we read the followingin Caprara at para 9: [9] We reject the appellant’s argument that the search for identification evidence was unnecessary because the police already knewhis identity. The trial judge made no such finding. On the contrary, she found that although the police “would have been quite certain[who the appellant was]”, they were not sure of his identity and in the words of Sergeant Nichol, this was “not a guessing game” …. [66] If the officers had reasonable grounds to arrest Mr.

Rodriguez, the question was whether identity remained a live issue,whether the officers were not yet “sure of” or “satisfied of” the accused’s identity. [67] In this case, was Mr. Rodriguez’s identity a live issue when Cst. Lloyd searched Mr. Rodriguez’s vehicle? (

b) Identity in Issue (

i) Facts [68] What “got things off on the wrong foot” (to use Cst. Lloyd’s expression), was that Mr. Rodriguez handed over a Mexicandriver’s licence when asked for identification when he was stopped. [69] No one claimed in the voir dire that this driver’s licence was not authentic. But it was an unusual piece of identification tohand to a police officer in Edmonton. Mr. Rodriguez handed over the insurance and registration for the vehicle. The name on the driver’slicence did not match the name of the insurance holder or registered owner of the vehicle. Mr. Rodriguez explained that the vehicle washis brother’s.

The police sought to work out who they had in their custody. [70] Cst. Lloyd contacted Immigration. Immigration could not confirm that anyone with the name set out on the Mexican driver’slicence had entered Canada in the last four months. [71] A CPIC search disclosed a David Rodriguez who’d had a Canadian passport lost or stolen in 2013. Edmonton PoliceReporting Occurrence System and Motor Vehicle System database checks yielded a June 19, 2012 ECIB (Edmonton City IdentificationBureau (EPS)) photo and an Alberta driver’s licence showing David Rodriguez to be suspended from driving in Alberta.

The photoresembled Mr. Rodriguez. Cst. Leach testified that he “believed it to be a likeness or at least a relative of Mr. Rodriguez.” Cst. Lloyd saidthere “was a likeness.” The individual pulled over “seemed similar” to the person in the photo. The photo, I note, was over 6 years old.The date of birth associated with David Rodriguez was the same date of birth shown on the Mexican driver’s licence. The databasesearches disclosed that David Rodriguez had a “Class 8” Alberta identification card. The vehicle was registered to a third party,

described by Mr. Rodriguez as his brother. [72] Cst. Leach testified that “I believed it was quite likely” that the person being dealt with was David Rodriguez. He stated thathe was “90% sure” it was him. Cst. Lloyd too said it was quite likely that identification had been established, but he was not confident he“could rely on this.” [73] On the basis of the ECIB photo, the date of birth match, the Alberta Registry check showing the suspended licence, and Mr.Rodriguez’s name (setting aside the hyphenation), Cst. Leach formed the grounds that Mr. Rodriguez had been driving whiledisqualified. Cst.

Leach confirmed in cross-examination that he had reasonable grounds to arrest Mr. Rodriguez at this time. [74] At 5:26 p.m., Cst. Leach arrested Mr. Rodriguez for driving while disqualified. He was handcuffed. He was searched. [75] Cst. Leach identified this as a search as incidental to arrest. It was just a pat down, serving the purposes of safety, preservingevidence, and preventing means of escape. The search was not thorough or intrusive. The legitimacy of this search, I confirm, was notcontested. [76] Mr. Rodriguez was placed in the patrol vehicle. [77] Mr. Rodriguez’s wallet was on the seat of his vehicle.

Cst. Leach had seen Mr. Rodriguez put it on the vehicle seat. Cst.Leach retrieved the wallet. It contained a TD Bank debit card in Mr. Rodriguez’s name but no other photo identification. A hunting knifewith a 4” fixed blade was observed in the driver’s side door panel, in the open moulded “cubby” under the arm rest. [78] The search of the wallet was not challenged. Neither was the seizure of the knife. On the evidence, the knife was in plainview. [79] Cst. Lloyd returned to the vehicle and continued to search it. [80] Cst.

Lloyd stated that he performed a search of the vehicle for “additional documents to confirm Rodriguez’s identity.” [81] As indicated earlier, Cst. Leach and Mr. Rodriguez discussed the status of his licences. [82] In cross-examination, Cst. Leach confirmed that Mr. Rodriguez did not attempt to conceal his identity. He told Cst. Leach thatthe Registry told him he could drive. [83] Cst. Lloyd located a black bag under the rear of the front passenger seat, near the rear passenger footwell. In this bag he foundbaggies with a substance that appeared to be cocaine.

There were 3 larger baggies of cocaine and one with small tightly wrappedpackaging. At 5:27 p.m., Cst. Lloyd advised Cst. Leach of what he had located and showed him what he had located. Cst. Leach arrestedMr. Rodriguez for possession of cocaine for the purpose of trafficking. [84] At 8:45 p.m., Cst. Lloyd advised, after having processed exhibits, that the total cocaine weight was 59.95 grams, with a streetvalue of $3,000. (ii) Did Identification Remain a Live Issue? [85] The police had Mr.

Rodriguez’s account of who he was, the Mexican driver’s licence, the 2012 photograph, the bank cardbearing David Rodriguez’s name, and the correlation of David Rodriguez’s date of birth with the date of birth on the Mexican driver’slicence. [86] Cst. Lloyd testified that he found the licence “questionable” and that he told this to Mr. Rodriguez. It could be fake. [87] On the evidence, the wallet contained no identifying document except the single bank card. The wallet contained nophotographic identification. According to Cst. Leach, the wallet was empty.

It only contained some “small papers” that he didn’t look atand the TD Bank card. Cst. Lloyd knew that David Rodriguez had a Class 8 identification card. [88] Common sense would support the inference that a person driving around Edmonton would carry photo identification thatwould likely be accepted on presentation, unlike a Mexican driver’s licence. That identification, though, was not in the wallet. It couldhave been elsewhere in the vehicle. Cst.

Lloyd testified that in his experience, individuals who drive while suspended sometimes concealidentification in their vehicles (whether valid identification or suspended licences that have not been turned in). They also use falsenames and provide false identification. It is not uncommon for a search to disclose proper identification. [89] Reasonable grounds must be assessed from the perspective of the reasonable person “standing in the shoes of a policeofficer:” R v Sanchez, 1994 CarswellOnt 97, , 93 CCC (3d) 357 (Gen Div), Hill J at para 32 (CarswellOnt).

Policetraining and experience may permit an appreciation of the significance of facts that persons without that training and experience wouldmiss: see Ha at paras 28 and 18. Reasonable possibility, reasonable prospects, should also benefit from interpolation of officerexperience. [90] I add, should it be necessary, that this reasoning from experience is not precluded by R v Sekhon, 2014 SCC 15 at para 49.The relevance of Cst. Lloyd’s experience was not to prove that Mr. Rodriguez had hidden an identification document (or to prove anelement of an offence faced by Mr.

Rodriguez) but was relevant to the potential presence of evidence in circumstances like thosesurrounding Mr. Rodriguez’s arrest. Cst. Lloyd’s experience concerned suspects similarly situated to Mr. Rodriguez and to the potentialor possibility that similar evidence would be similarly distributed in the vehicle operated by Mr. Rodriguez. And as in R v Ali, 2020ABCA 344, the rules governing admissibility of evidence at trial were not implicated at this stage of the criminal justice process (seepara 12).

[ 91 ] Even with the information the police officers had, I find that it was reasonable for the officers not to be sure, not to be satisfied, that they had properly identified the person in custody. There were indeed links between the person in custody and David Rodriguez, but the information left room for the reasonable conclusion that the person in custody was not David Rodriguez. The photo, Cst. Leach said in cross-examination, was an “old dated picture” that could be a brother or a relative. Cst. Leach also said in cross- examination that he had to be sure about “who I’m dealing with.” [ 92 ] Cst.

Lloyd stated that he was not entirely sure that they were dealing with David Rodriguez. In cross-examination, he said that there was an aspect of obstruction, an aspect of fraud at work in the interaction with Mr. Rodriguez. [ 93 ] Defence counsel argued that Mr. Rodriguez had made a full and honest account of his identity to the officers. I do not doubt that. Both officers described Mr. Rodriguez as very cooperative. His conduct, in their view, was “exemplary.” But that does not mean that the officers were bound to accept his account. [ 94 ] The circumstances were unusual, and it was reasonable for Cst.

Lloyd to take a look in the vehicle to try to find some record that would confirm that the person in the officers’ custody was indeed David Rodriguez. (iii) Search Location [ 95 ] Even if it was reasonable for Cst. Lloyd not to be satisfied that the person in custody was David Rodriguez and even if it was reasonable for Cst. Lloyd to believe that some identifying record could be found in the vehicle, was the actual search reasonable, in the sense that Cst. Lloyd looked in places where an identification document might reasonably be found? [ 96 ] Cst.

Lloyd testified that he conducted a systematic search, starting at the driver’s area and working around the interior of the vehicle in a clockwise manner. It was reasonable to proceed in a systematic manner so that places where an identification document might be found were not skipped or passed over. I do not view his search as having been unhinged from the objective of finding evidence of identification. The evidence did not disclose that Cst. Lloyd pulled up car mats or opened the ashtray. I note that Cst.

Leach had testified in cross-examination that anything under the seats would be among the first things found by a search. [ 97 ] Cst. Lloyd saw an object beneath the passenger seat. It was not in evidence. I rely on the descriptions in testimony. It was described as a bag or satchel. Cst. Lloyd referred to it as a “Coach” bag (I inferred that he was speaking of a brand name). Cst. Leach described it as a leather knapsack or purse or tote bag, no larger than the average purse. This was not a Belnavis -style stuffed black garbage bag.

It wasn’t a fishing tackle box, a tool box, a sealed container, or some other receptacle that manifestly would not contain a document relevant to identification. [ 98 ] According to Cst. Lloyd, the bag was “half way under the front passenger seat.” It was “more toward the rear passenger area.” The bag was not immediately at hand to a driver – it was not sitting on the passenger seat or hanging from the passenger seat headrest – but it was easily accessible to the driver. [ 99 ] I find that searching that bag for an identification document was reasonable.

It was the type of bag that might reasonably be concluded to contain an identification document. There was a reasonable prospect that it would contain an identification document. C. Conclusion [ 100 ] I have found that the search of Mr. Rodriguez’s vehicle was incident to a lawful arrest, was conducted reasonably, and was truly incident to the drive while disqualified offence as a search for identification evidence. Identification had been a live issue for the officers. [ 101 ] The search that yielded the bag containing the packaged cocaine, then, did not violate s. 8 of the Charter .

The Crown discharged its burden on this issue. III. Were Mr. Rodriguez’s s. 10(

b) rights violated by a failure to permit an on-site consultation with counsel? [ 102 ] After Mr. Rodriguez was arrested for possession for the purpose of trafficking, Cst. Leach advised Mr. Rodriguez of his right to counsel and cautioned him. There was no challenge to the informational component of the s. 10(

b) duty. [ 103 ] Mr. Rodriguez stated that he wanted to call his brother, the vehicle owner, who was a lawyer. He invoked his right to counsel. That was unchallenged. [ 104 ] His brother arrived on scene at around 5:34 p.m. He walked up to the parked vehicle. The evidence did not disclose how or by whom he had been contacted. He advised Cst. Leach that he was a law student or a student-at-law and provided his card to Cst. Leach. The evidence did not establish whether Mr. Rodriguez’s brother was a law student (that is, still in Law School) or whether he was an articling student.

The card was not in evidence. [ 105 ] Cst. Leach advised the brother that the vehicle had to be towed. [ 106 ] Mr. Rodriguez and his brother did have some conversation, some “small talk,” according to Cst. Leach, but Mr. Rodriguez did not have a consultation with his brother on-site. [ 107 ] Cst. Leach recalled that after 5 minutes or so, the brother left. There was no point for him to stay around.

[ 108 ] On the evidence, Mr. Rodriguez’s brother did not ask to interview Mr. Rodriguez in a lawyer-client capacity. Mr. Rodriguez did not express a wish to have this interview. That disposes of any contention that Mr. Rodriguez’s s. 10(

b) implementation rights were violated by the failure to permit a roadside consultation. [ 109 ] Further, in Taylor at para 27 , Justice Abella found that the police did not have an obligation to provide a cellphone to an accused to consult with counsel at roadside. In this case, then, the police did not have an obligation to turn over their patrol vehicle for a roadside consultation. The patrol vehicle, Cst. Leach testified, did not have security features. There was no plexiglass divider, for example, between the front and back seats. The vehicle was, with a few exceptions, a standard civilian-style vehicle.

Neither privacy nor safety could be assured by leaving Mr. Rodriguez alone in the vehicle with his brother. As for extending privacy for a consultation with counsel, “[a] right to consultative privacy inheres in the right to counsel under s. 10(

b) and should be respected:” R v Lewis , 2007 NSCA 2 at para 32 . The Court of Appeal commented in R v Nelson , 2010 ABCA 349 at para 20 that The right to counsel means the right to consult in private. A person in the appellant’s position could not freely communicate with counsel if that communication was in the presence of the arresting officers. Advice based on guarded communication might well be no advice at all or could do more harm than good. [ 110 ] Constitutionally-compliant consultation with counsel could not be provided in the patrol vehicle.

Neither would a talk on the street meet the privacy requirement for consulting counsel. [ 111 ] And in any event, although this does not appear to have been a consideration for the officers in the circumstances, access to a law student or student-at-law may not satisfy the implementation obligation of providing access to legal counsel. Access to a licenced barrister and solicitor may be required. See R v Frick , 2010 ABPC 280 , ACJ Wheatley at paras 43-47. IV. Were Mr. Rodriguez’s s. 10(

b) rights violated by delay in being provided with an opportunity to consult counsel? A. Facts [ 112 ] At 5:26 p.m., Mr. Rodriguez was arrested for the drive while disqualified offence. At 5:27 p.m., Cst. Leach arrested Mr. Rodriguez for possession of cocaine for the purpose of trafficking. Cst. Leach advised Mr. Rodriguez of his right to counsel and cautioned him. Again, Mr. Rodriguez stated that he wanted to call his brother, the vehicle owner, who was a lawyer. [ 113 ] At about 5:34 p.m., Cst.

Leach requested a tow of the vehicle from the Police Vehicle Seizure Lot, which dispatched Cliff’s Towing. [ 114 ] The officers and Mr. Rodriguez waited for the tow truck in the patrol vehicle. [ 115 ] Cst. Leach testified that tows generally take 30 minutes to an hour, but usually 30 minutes. [ 116 ] The tow truck didn’t arrive. Cst. Leach said “we were getting impatient.” At 6:17 p.m., Cst. Lloyd called PVSL to confirm the ETA of the tow. Cliff’s Towing, it turned out, had been dispatched to the wrong location. It was now en route . The tow truck arrived shortly after Cst. Lloyd’s call.

The vehicle was towed. [ 117 ] At 6:40 p.m., Mr. Rodriguez and the officers arrived at EPS Headquarters downtown. [ 118 ] Following a health break and a secondary search, Mr. Rodriguez was placed in the phone room to access counsel and was advised of the resources available to him. This was at about 6:46 p.m. [ 119 ] The distance between 109 Street and Jasper Avenue and the EPS Headquarters is not much more than 2 kilometres, perhaps a 5- minute drive, traffic and road conditions permitting. B. Duty to Provide Access to Counsel “Without Delay” [ 120 ]

Section 10(

b) provides that “[e]veryone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right.” [ 121 ] As canvassed earlier, s. 10(

b) imposes three duties on the police – an informational duty to advise of the right to counsel, and if a detainee requests to consult counsel, an implementation duty to provide reasonable access to counsel and a duty to hold-off questioning until the detainee has had an opportunity to consult counsel. [ 122 ] Cst. Leach satisfied the informational duty. The officers also satisfied the implementation duty to hold-off on questioning. Mr. Rodriguez was not questioned before having access to counsel. Mr. Rodriguez did not make a statement to the police. No conversations between Mr. Rodriguez and Cst. Leach or Cst.

Lloyd were proposed as evidence. [ 123 ] But did the officers fail in their implementation duty of providing Mr. Rodriguez reasonable access to counsel? Did the delay in getting Mr. Rodriguez to the phone room violate this 10(

b) duty owed to Mr. Rodriguez? 1.

Interpretation [ 124 ] In Taylor at para 24 , Justice Abella set out three aspects of the implementation duty to facilitate access to counsel:

• “the duty to facilitate access to a lawyer … arises immediately upon the detainee’s request to speak to counsel. The arrestingofficer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably availableopportunity.” • “The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v.

Luong (2000), 2000 ABCA301 , 271 A.R. 368, at para. 12 (C.A.)).” • “Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.” [125] The purpose of this implementation duty (also described as a duty to provide access to counsel at the earliest practicalopportunity) is to “reduce the possibility of accidental self-incrimination” pending consultation with counsel: Taylor at paras 28, 32. [126] Delay may be justified because of officer or public safety or because urgent and dangerous circumstances must be addressed: Rv Tran, 2019 ABQB 284, Topolniski J at para 69, affd 2021 ABCA 58; R v Tieu, 2016 ABQB 344, Tilleman J at para 63. [127] In Nelson at para 17, the Court of Appeal acknowledged the Suberu direction that “without delay” means “immediately,” butstated that “[i]mmediacy does not mean instantaneous; practical considerations still play a role, particularly with respect to the police’sobligation to implement an arrested person’s contact with counsel.” The Court of Appeal commented that “[p]eople are not alwaysarrested in locations where it is possible for police to implement access to counsel.” [128] In Nelson, the practical exigencies of getting an accused from Edmonton International Airport to EPS Headquarters and anappropriate site to consult counsel were found to support justifiable delay (“transporting him to headquarters was a necessary step and noinformation was elicited from him during this trip”): at para 19.

Justice Kiss also recognized the need to deduct from delay the durationof reasonable practicalities for getting an accused from an arrest site to a police station: R v Yong, 2020 ABQB 676 at para 64. 2. Assessment [129] In this case, the delay was not caused by safety concerns or the need to deal with an urgent or dangerous situation. Neither wasthe delay caused because of the necessary drive-time to get to a police facility appropriate for consulting counsel. [130] In this case, the delay was caused because Mr. Rodriguez’s vehicle had to be towed. Cst.

Lloyd testified that in thecircumstances of his arrest, towing was required by legislation. He said “we have to seize, we have no choice.” (This requirement wasnot detailed in evidence but could fall under the Traffic Safety Act (see e.g. ss. 170 and 169(2)(a)) and the Vehicle Seizure and RemovalRegulation.) The officers were required to wait for the tow. The vehicle was parked illegally. The police could not simply leave thevehicle unattended at the side of the road. Someone could show up with a key and take it. Cst. Lloyd said that it was also necessary tosafeguard the property.

A police officer had to transfer custody of the vehicle to Cliff’s Towing to protect the chain of custody. [131] Cliff’s Towing had ended up at 101 Street and Jasper, not 109 Street and Jasper. Whether this error was made by the policeimpound lot dispatch, Cliff’s Towing dispatch, or the tow-truck operator was not in evidence. There was no suggestion that Cst. Lloydprovided an incorrect address. He was not responsible for the error. [132] Nonetheless, for at least 45 minutes following arrest, two officers sat with an accused in a patrol vehicle waiting for a tow-truck,before Cst.

Lloyd made his call to check on what was happening. Cst. Lloyd was concerned that the tow-truck was taking too long to getto them. Neither officer requested any sort of assistance. Again, they were about a 5 minute drive from EPS Headquarters. [133] I would not presume to dictate to EPS as to how to deal with the overlapping problems of a vehicle to tow with an accusedrequiring access to counsel. Both officers, though, need not have stayed with Mr. Rodriguez’s vehicle, whatever the logistics would berespecting transportation of (at least) one of the officers and Mr.

Rodriguez to the police station. [134] No argument was advanced that the seizure and towing rules somehow constituted valid limitations of s. 10(

b) rights (orwhether division of powers considerations might preclude such a limitation). [135] While neither officer was to blame for the tow truck heading to the wrong location, Cliff’s Towing was still under EPSdirection. The error was the error of EPS’s contractor. The error was certainly in no way attributable to Mr. Rodriguez.

While the erroritself was not a matter that the officers could control (they did not even realize it happened), the officers were not left without recourse.The situation was not like, for example, a police vehicle breaking down or getting into an accident on the way to a police station. As timedragged on, the officers could have attempted to work out some means of getting Mr. Rodriguez to counsel. [136] On the evidence, no avenues of getting Mr. Rodriguez before counsel were explored or tried. [137] Cst.

Leach confirmed that while sometimes there’s someone else available, “we try to work with our own resources.” EPS doesnot have readily available resources to assist. [138] In response to the question as to why they did not call for back-up, Cst. Lloyd said “we were in traffic” and that was “our soleduty.” They did not impose on patrol resources. It was not their practice to call patrol to watch vehicles being seized. Constable Lloydhad thought that they could refrain from questioning Mr. Rodriguez until they got back to the station.

He didn’t expect the seizure totake as long as it did. [139] Even after deducting 10 minutes for the drive from the arrest location to EPS Headquarters, and not considering any time thatelapsed between Mr. Rodriguez’s arrival at Headquarters and his being placed in the phone room, Mr. Rodriguez’s access to counsel wasstill delayed by about an hour. He was arrested for possession for the purpose of trafficking at 5:27 p.m. and didn’t arrive at EPSHeadquarters until 6:40 p.m. [140] In my opinion, this was an unreasonable and unjustifiable delay, the Crown has failed to discharge its burden of proving the

delay was reasonable, and Mr. Rodriguez’s right to access counsel protected under s. 10(

b) of the Charter was violated. V. Were Mr. Rodriguez’s s. 8 rights violated by the observation of his cellphone alerts and notifications? [ 141 ] At 5:27 p.m., Cst. Leach arrested Mr. Rodriguez for possession of cocaine for the purpose of trafficking. His cellphone had been seized at 5:26 p.m. [ 142 ] The officers and Mr. Rodriguez waited for the tow truck in the patrol vehicle. Mr. Rodriguez’s phone was placed on the patrol vehicle console, with the cupholders. [ 143 ] Cst. Leach observed that Mr. Rodriguez’s cellphone rang frequently. Numerous text messages appeared on the screen. They just popped up. Cst.

Leach made contemporaneous notes respecting his observations, which will be reviewed below. The observations were made between 6:01 p.m. and 6:19 p.m., then again at 6:51-6:52 p.m. [ 144 ] At 6:53 p.m., Cst. Leach put the cellphone into airplane mode to prevent further calls or remote manipulation. A. Search and Seizure [ 145 ] The Crown did not dispute that s. 8 was engaged. The Crown did not argue that the “plain view” doctrine authorized the observations of the phone screen. [ 146 ] On the evidence, Cst.

Leach did not swipe, turn on, press buttons or the screen, or otherwise touch the cellphone to cause information to be visible. What he saw were automatic notifications or alerts that showed on the screen of the cellphone. [ 147 ] These notifications or alerts were accompanied by sounds indicating that a telephone or text message was received. Hearing these sounds – a passive activity on the part of the officers – would not amount to a search. [ 148 ] Nonetheless, the cellphone had been seized from Mr. Rodriguez. It was placed on the console of the patrol vehicle where its screen could be observed.

The observations involved reading the messages displayed. The observations viewed aspects of electronic conversations between senders and Mr. Rodriguez. There was no contention that the messages were not sent to Mr. Rodriguez. See R v Jones , 2017 SCC 60 at para 14 ; R v Marakah , 2017 SCC 59 at paras 17 , 20. In my opinion, this State acquisition of information invaded Mr. Rodriguez’s reasonable expectation of privacy respecting messages received through his cellphone: Jones at paras 11, 39 ; Marakah at para 13 . Mr. Rodriquez did not testify in the voir dire .

Nonetheless, I infer from the Crown’s theory of the case (i.e., that Mr. Rodriguez possessed the cocaine for the purpose of trafficking and the communications were some evidence of trafficking) that he was the recipient of the text and phone messages and that Mr. Rodriguez had a subjective expectation of privacy in his cellphone messages: Jones at paras 19-21 . [ 149 ] The Saskatchewan Court of Appeal came to a similar conclusion respecting similar circumstances in R v Kossick , 2018 SKCA 55 at para 40 : [40] The Crown submits the analysis in R v Fearon does not apply to this search of Mr.

Kossick’s cellphone because the plain view doctrine applied in the circumstances. Under that doctrine, the Crown says the first search was not unreasonable. The Crown had made this same argument at trial, but the judge rejected it, saying: [86] The search by Cst. Parker in the patrol car, shortly after arrest, involved viewing complete or partial messages as they were being received. The Crown argues those messages were in plain view and that the officer’s conduct did not amount to a search subject to the criteria set out in Fearon .

However, Fearon does not appear to distinguish between a cursory viewing of cellphone messages and those requiring some positive act on the part of the officer. For example, both locked and unlocked cellphones engage significant privacy interests: Fearon , para 53 [2017 SKPC 67, Scott J]. In this appeal, the Crown submits the judge erred by resorting to R v Fearon and it asks us to endorse the application of the plain view doctrine in the circumstances at hand. The Crown’s argument is without merit. I find the facts of this case do not invoke the plain view doctrine. [ 150 ] Mr.

Rodriguez’s s. 8 rights were engaged because Cst. Leach searched his cellphone. B. Compliance with s. 8 [ 151 ] Since Cst. Leach’s observations amounted to an informational search, a search undertaken without warrant, the Crown again bears the burden of establishing that the search was reasonable under s. 8 of the Charter . The search incident to arrest doctrine is once more deployed, as modified by Fearon . Justice Moldaver wrote as follows at para 83: [83] To summarize, police officers will not be justified in searching a cellphone or similar device incidental to every arrest.

Rather, such a search will comply with s. 8 where:

(1) The arrest was lawful;

(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

(

a) Protecting the police, the accused, or the public; (

b) Preserving evidence; or (

c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cellphone incident to arrest;

(3) The nature and the extent of the search are tailored to the purpose of the search; and

(4) The police take detailed notes of what they have examined on the device and how it was searched. [ 152 ] At para 75, Justice Moldaver had warned that [75] The requirement that the search of the cellphone be truly incidental to the arrest should be strictly applied to permit searches that are required to be done promptly upon arrest in order to effectively serve the purposes of officer and public safety, loss or destruction of evidence, or discovery of evidence.

Three modifications to the general rules would give effect to this approach. [ 153 ] At para 76, Justice Moldaver stated that [76] First, the scope of the search must be tailored to the purpose for which it may lawfully be conducted. In other words, it is not enough that a cellphone search in general terms is truly incidental to the arrest. Both the nature and the extent of the search performed on the cellphone must be truly incidental to the particular arrest for the particular offence.

In practice, this will mean that, generally, even when a cellphone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted …. [ 154 ] In this case, the evidence supports no inference that Cst. Leach’s observations of the phone were for any purpose other than for investigating the offence for which Mr. Rodriquez was arrested. Cst. Leach was not browsing, just to see whether Mr.

Rodriguez might have been involved in some other sort of offence. There was no evidence that there was any change in the nature of the investigation of Mr. Rodriguez after he was arrested for possession for the purpose of trafficking. 1. Search Contents [ 155 ] Based on my earlier findings, the arrest of Mr. Rodriguez for possession for the purpose of trafficking was lawful. [ 156 ] The investigation of drug trafficking is likely to justify some limited search of a cellphone incident to arrest: Fearon at para 79 . [ 157 ] Cst. Leach’s observations were modest and cursory.

He did not “rummage around” the cellphone: Fearon at para 78 . [ 158 ] What was searched for might have yielded evidence about drug transactions involving Mr. Rodriguez. Justice Moldaver observed at para 48 of Fearon that cellphones “are the ‘bread and butter’ of the drug trade and the means by which drugs are marketed on the street”: Howell , at para. 39.

Prompt access by law enforcement to the contents of a cellphone may serve the purpose of identifying accomplices or locating and preserving evidence that might otherwise be lost or destroyed. [ 159 ] These aspects of the search of the cellphone raised no concerns. The search was confined to recently received notifications or alerts of calls or texts as those appeared automatically on the cellphone screen, without any manipulation. The scope of the search fell within the scope of search incident to arrest. 2. Prompt Search [ 160 ] Cst. Leach recorded his first cellphone observation at 6:01 p.m. By then, Mr.

Rodriguez had already been in custody for about half an hour. Cst. Leach’s observations continued for about 20 minutes. He resumed observation briefly at 6:51 p.m., approaching an hour and a half after Mr. Rodriguez was arrested. [ 161 ] Throughout this period Mr. Rodriguez was in custody and Cst. Leach had custody of his cellphone. [ 162 ] The cellphone search was not immediate. Was the search “prompt,” as required by Fearon ? [ 163 ] In R v El-Majzoub , 2020 ABPC 105 , one of the issues confronted by Judge Yake was whether a 42 minute delay in searching a cellphone was reasonably prompt.

Judge Yake referred to Justice Poelman’s decision in R v Aquila , 2019 ABQB 782 , at para 95 : Searches that are truly incidental to arrest will usually occur within a reasonable time after arrest. A substantial delay does not necessarily make the search unlawful, but may lead to an inference that the search is not sufficiently connected to the arrest, although the strength of that inference will depend upon the amount of the delay and any reasonable explanation: Caslake at para 24 …. Judge Yake concluded at para 124 that “[t]he search of the iPhone was conducted within a reasonable time after it was seized.

No inference can be drawn that the search was not incidental to the arrest of the Applicant from the fact that it was not searched at an earlier time.” [ 164 ] I do note that the delay in this case was much less than the delay of several months reviewed in R v Adeshina , 2015 SKCA 29 or even the delay of 6 hours referred to in Caslake at paras 24 and 28 (although this was not a cellphone search). Moreover, in Fearon itself, Justice Moldaver did not find that the initial searches of the cellphone, taking place over about an hour and a half from the time of

arrest, were not reasonably prompt: see paras 8, 30, 42, 85-86. [ 165 ] I find that in this case, the observations of the cellphone were made reasonably promptly. 3. Notes [ 166 ] Fearon requires that the police take detailed notes of what they have examined on the device and how it was searched. Justice Moldaver stated that “[t]he record should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration:” at para 82.

A main purpose of the note-taking is to provide a record that supports effective after-the-fact review of the warrantless search. “Having a clear picture of what was done is important to such review being effective:” at para 82. (

a) Cst. Leach’s Notes [ 167 ] In this case, Cst. Leach made the following notes. [ 168 ] At 6:01 p.m., a text message appeared: “Any Mush.” [ 169 ] Cst. Leach took notes of the following additional notifications: 6:05 p.m. phone call from Jill Nike. 6:09 p.m. text from “Trent” – “wanna meet at mitch jones” 6:12 p.m. call from a BC number – 604-366-1091 Phone carrier is “Lucky” 6:13 p.m. BC number texted – “Give me a call” 6:17 p.m. phone call from Spencer – 587-783-3896 6:19 p.m. text from Dylan – “We still going for eats” [ 170 ] Cst. Leach stated that more alerts came in but he was unable to record details.

There were no records of further communications until after Mr. Rodriguez had been taken to the Downtown Division. [ 171 ] Cst. Leach had maintained possession of Mr. Rodriguez’s cellphone. At 6:51 p.m. he noted that there was a notification of 7 missed calls. He also noted the following: text from Mid Vide, “You get someone else to take it” 6:52 p.m. another call from Spencer [ 172 ] At 6:53 p.m., Cst. Leach put the cellphone into airplane mode. [ 173 ] Did Cst. Leach satisfy the Fearon notes requirement? (

b) Assessment [ 174 ] Cst. Leach recorded what he observed and the times of his observations. The applications observed were identified as texts or calls. In my view, duration was also addressed. The information was observed when it came up on the screen and was noted. [ 175 ] The notes did not identify the purpose of the observations. The notes did not specify who was doing the observations – the notes did not indicate what Cst. Lloyd observed. [ 176 ] Three considerations are relevant. [ 177 ] First, the setting or context in which the notes were made was simple. Mr.

Rodriguez was arrested for possession for the purpose of trafficking, his phone was on the console of the patrol vehicle, and alerts and notifications were observed. Unlike Justice Veit in R v Millett , 2017 ABQB 9 , I did not face the complication of multiple cellphones and the prospect of call forwarding between them: at para 23 (“Merely providing photographs of the screen of one telephone is not adequate compliance with this requirement” [emphasis added]). The only observations were the observations of alerts and notifications.

There was no need to catalogue other searches because there weren’t any (in contrast, see para 25 of Millett ). [ 178 ] Second, in context, the purpose of the observations was plain. Mr. Rodriguez was arrested for possession for the purpose of trafficking and the incoming communications could be relevant to contemporaneous trafficking-related activity. [ 179 ] Third, Cst. Leach was making notes of his own observations. He was not making observations along with Cst. Lloyd, as if one of them held the cellphone and both were leaning over it. Cst. Lloyd made his own notes. Cst.

Lloyd’s evidence was that he made no observations of the cellphone. Again, in context, notes were not made by Cst. Leach about “who” observed the phone because the notes were about him observing the phone and that was the proper extent of his notes. [ 180 ] One might object that Cst. Leach’s notes nonetheless had gaps, which I have purported to fill with evidence of context. Cst. Leach’s notes were detailed, but were the notes detailed enough?

[ 181 ] The purpose of the notes must be kept in mind. Keeping notes is not valuable in and for itself. Notes are to provide a foundation for judicial review (along with reminding officers to keep their conduct within the parameters of search incident to arrest). After summarizing the Fearon requirements, Justice Moldaver wrote that “I do not suggest that these measures represent the only way to make searches of cellphones incident to arrest constitutionally compliant ….

The law enforcement and privacy concerns may be balanced in many ways and my reasons are not intended to restrict the acceptable options:” at para 84. Justice Moldaver was not attempting to insert a new formalism, indeed a new form, a Fearon - form, into the investigation and review process. [ 182 ] Detailed notes should be kept so there is a foundation for judicial review. The Court needs the best evidence of what actually occurred during a cellphone search. The foundation cannot be left to memory alone. The foundation cannot be only testimony provided sometimes years after the search.

Memory itself is an unreliable record. The mixing of facts from different cases, the recasting of initial recollections into a recalled narrative, and the sheer passage of time reduce the reliability of memory alone.

This is why there is a general obligation for police officers to make accurate, detailed, and comprehensive notes as soon as practicable after an investigation: Wood v Schaeffer , 2013 SCC 71 , Moldaver J at paras 66-67; see also R v Mascoe , 2017 ONSC 4208 , Hill J at paras 112-115; R v Clark , 2017 ABQB 643 at para 18 ; R v Turgeon-Myers , 2019 ABQB 493 at para 60 . [ 183 ] However, Justice Moldaver did not suggest that notes alone, again a sort of Fearon -form, should be the sole evidential basis for judicial review of a cellphone search.

Were that so, the notes would be simply introduced as an exhibit and argument would occur. Any testimony might be confined to authentication of the notes. But in practice the notes will be introduced in a voir dire . The notes will be the best evidence of what occurred. Like in other search incident to arrest voir dires , there will be testimony about the setting or surrounding circumstances and about what occurred. In my opinion, I am entitled to consider testimony in a voir dire that provides the context or setting for the notes.

With that evidence of context, I am put in a position to appreciate what is said by the notes and why some matters may have been left unsaid. [ 184 ] I am not suggesting that testimony should override or alter or recast or revise what is recorded in notes or amplify or augment to correct significant gaps in notes. Again, the notes are the best evidence. I am saying that even the best evidence has to be interpreted in context, and that context may be provided through voir dire testimony.

With the notes and that testimony I am able to properly evaluate the cellphone search. [ 185 ] I add that that the issue of the relationship of notes to testimony, of best evidence to context, of setting as opposed to supplementation or revision, must be approached on a case-by-case basis. [ 186 ] In my opinion, in the circumstances of this case, the search of Mr. Rodriguez’s cellphone was not constitutionally vitiated by omissions in Cst. Leach’s notes. There was no mystery about what was searched, how it was searched, who did the searches, or the purpose of the searches.

The notes, along with testimony, gave me an adequate foundation for after-the-fact judicial review of the searches. VI. Were Mr. Rodriguez’s s. 8 rights violated by the strip search? [ 187 ] At 6:40 p.m., Mr. Rodriguez and the officers arrived at EPS Headquarters. [ 188 ] Following a health break and a secondary search, Mr. Rodriguez was placed in the phone room to access counsel and was advised of the resources available to him. [ 189 ] At 6:51 p.m., Cst. Leach, while logging Mr. Rodriguez’s property, found $100 in Mr. Rodriguez’s upper left jacket pocket. [ 190 ] By 7:02 p.m., Cst.

Lloyd had formed the opinion that Mr. Rodriguez should be strip searched. He applied to Sgt. Quentin Miller for authorization to perform the search. Sgt. Miller was the Watch Commander that evening. Sgt. Miller authorized the strip search. [ 191 ] At 7:04 p.m., Mr. Rodriguez came out of the phone room. [ 192 ] Mr. Rodriguez was strip searched at 7:04 p.m. The search lasted until about 7:15 p.m. One pill (not evidence in these proceedings) was located in his pants pocket. The Crown will not be relying on this pill to prove its case on the merits. A. Strip Search [ 193 ] There was no dispute that the search of Mr.

Rodriguez was a “strip search” within the meaning assigned in R v Golden , 2001 SCC 83 at para 47 . [ 194 ] It was a warrantless search of Mr. Rodriguez’s body and the Crown bore the burden of proving the reasonableness of the search: Golden at para 105 . [ 195 ] Again, proof of reasonableness requires proof that the search was authorized by law, the law was reasonable, and the search was carried out in a reasonable manner: Golden at para 44 . [ 196 ] Strip searches are authorized by common law as a form of search incident to arrest.

The common law rule, as articulated in Golden , is constitutional: at para 104. [ 197 ] Like other searches incident to arrest, the validity of the search requires that the arrest be lawful, that the search be truly incident to arrest, and that the search be conducted reasonably: Golden at para 99 .

[ 198 ] The prerequisite of lawful arrest was met. As indicated above, Mr. Rodriguez was lawfully arrested for possession for the purpose of trafficking. [ 199 ] The manner or conduct of the search was reasonable. That was not at issue. [ 200 ] At issue was whether the strip search was truly incident to the arrest. The purpose of the search must be related to the reasons for the arrest or for weapons: Golden at paras 92, 95, 99 . In this case as in Golden , “the strip search was related to the purpose of the arrest.

The arrest was for drug trafficking and the purpose of the search was to discover illegal drugs secreted on the appellant’s person:” at para 92. Pursuit through the search of a purpose of the arrest satisfied the subjective aspect of a search being incident to arrest. [ 201 ] The Supreme Court emphasized the distinctive degrading and humiliating nature of strip searches: Golden at paras 83, 89, 90 . A more stringent and cogent basis for this invasive form of search is therefore required. [ 202 ] Thus, a strip search must be objectively reasonable.

Because “a strip search is a much more intrusive search and, accordingly, a higher degree of justification is required in order to support the higher degree of interference with individual freedom and dignity[,] … to meet the constitutional standard of reasonableness that will justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest:” Golden at para 98 ; Fearon at para 24 .

See Ali at para 19 : The test of “reasonable and probable grounds” does not require proof on a balance of probabilities. Rather, that standard requires a factually based likelihood that there are grounds for the strip search, rising above mere suspicion, but not necessarily demonstrating grounds on a balance of probabilities.

Reasonable and probable grounds exist where, for reasons above mere suspicion, it is not unlikely that evidence will be found during the search: R. v Ha … at paras. 63, 70 …. [ 203 ] Hence, the Court cautioned in Golden at para 94 : “Whether searching for evidence or for weapons, the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search.” [emphasis added] [ 204 ] Further, a strip search is only justifiable based on individualized reasonable grounds. “Strip searches cannot be carried out as a matter of routine police department policy applicable to all arrestees, whether they are arrested for impaired driving, public drunkenness, shoplifting or trafficking in narcotics:” Golden at para 95 ; see para 90. “[A] ‘routine’ strip search carried out in good faith and without violence will also violate s. 8 where there is no compelling reason for performing a strip search in the circumstances of the arrest:” Golden at para 95 .

In R v Upright , 2020 ABCA 227 at para 24 , the Court of Appeal referred to “appropriate, fact-specific considerations that justified the appellant’s strip search. [The considerations] were not impermissibly vague criteria that could apply to a vast category of offenders, nor was there a bare assertion that the appellant should be searched simply because she was charged with drug trafficking offences.” Justice Price referred to a strip search being necessary “in the particular circumstances of the arrest of Mr.

Usmann:” R v Usmann , 2020 ABQB 793 at para 96 . [ 205 ] Two additional matters: [ 206 ] First, one of the elements of the best practices framework for the conduct of strip searches adopted by the Golden majority was authorization of the search by a police officer acting in a supervisory capacity: at paras 101, 113. This element, I should emphasize, goes to the issue of the manner or conduct of the search, not to the grounds for the search.

A supervisor’s approval is not a sort of first-step review, itself subject to judicial review. [ 207 ] Second, the Golden majority countenanced a different approach for “individuals who are going to entering the prison population,” at paras 96 and 97: 96 It may be useful to distinguish between strip searches immediately incidental to arrest, and searches related to safety issues in a custodial setting.

We acknowledge the reality that where individuals are going to be entering the prison population, there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment. However, this is not the situation in the present case.

The type of searching that may be appropriate before an individual is integrated into the prison population cannot be used as a means of justifying extensive strip searches on the street or routine strip searches of individuals who are detained briefly by police, such as intoxicated individuals held overnight in police cells: R. v. Toulouse , [1994] O.J. No. 2746 (QL) (Prov. Div.) . 97 The difference between the prison context and the short term detention context is expressed well by Duncan J. in the recent case of R. v. Coulter , [2000] O.J.

No. 3452 (QL) (C.J.), at paras. 26-27 , which involved a routine strip search carried out incident to an arrest and short term detention in police cells for impaired driving. Duncan J. noted that whereas strip searching could be justified when introducing an individual into the prison population to prevent the individual from bringing contraband or weapons into prison, different considerations arise where the individual is only being held for a short time in police cells and will not be mingling with the general prison population.

While we recognize that police officers have legitimate concerns that short term detainees may conceal weapons that they could use to harm themselves or police officers, these concerns must be addressed on a case-by-case basis and cannot justify routine strip searches of all arrestees. [ 208 ] In a similar vein, Justice Burrows recognized safety for the police and other detainees as a purpose that may promoted by a strip search of an accused to be detained in custody with others: R v Upright , 2018 ABQB 490 at para 44 , affd 2020 ABCA 122 (another Upright litigation thread).

The objective of ensuring safety, though, does not obviate the need for reasonable grounds for belief that the accused was carrying weapons or drugs: “The concern that she might have a weapon or drugs hidden on her body arose from the circumstances surrounding her arrest and gave rise to the conclusion that she should be strip searched before being placed in the police lockup or remand custody:” at para 45(QB). Justice Burrows also stated that “there was sufficient justification in the circumstances for conducting the strip search:” at para 46(QB); see para 9(CA). B. The Grounds for the Search

1. Team Work [ 209 ] It is useful to begin the assessment of the grounds for the search with the Court of Appeal’s comments in Ali at paras 13 and 14 : [13] Police work is a team undertaking. In this case the execution of the search warrant, the resulting arrest, and the decision to conduct a strip search, were made as a result of information gathered by the team …. As noted, Constable Odorski reported he observed the appellant “reaching towards his nether region or the back of his pants” during the arrest.

Constable Darroch did not directly observe the appellant “reaching towards his nether region”, but he received that information from Constable Odorski. The decision to conduct the strip search was actually made by the Staff Sergeant on duty following a telephone conversation with Constable Darroch. The Staff Sergeant was not even on the scene of the arrest, but he was not conducting a hearing or a trial, and he was not bound by the rules of evidence.

He was entitled to rely on information he thought was reliable and credible, and one police officer is entitled to rely on information provided by another: R. v Ha , … at paras. 79-80 …. If, for example, Constable Darroch had expressly told the Staff Sergeant: “I did not see it myself, but Constable Odorski says he was reaching towards his nether region”, the Staff Sergeant would still have been entitled to rely on that information …. [14] The issue on the voir dire was whether the police had reasonable and probable grounds justifying the strip search.

This requires that the police officers subjectively believed that they had such grounds, and that there was an objective ba

[…]