R v. Naglingniq, 2011 NUCJ 34

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v. Naglingniq, 2011 NUCJ 34 Date: 20111215 Docket: 08-10-591 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Isaacky Naglingniq ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): D. Garson Counsel (Accused): G. Magee Location Heard: Iqaluit, Nunavut Date Heard: June 21, 2011 and August 15, 2011 Matters: Ruling on voir dire regarding an application under the Canadian Charter of Rights and Freedoms , s 8, 9, 24(2) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION A. Background [ 1 ] The accused was a passenger in a vehicle that was pulled over by the RCMP because of concerns over drug activity. When the accused was searched marijuana was found on his person. He was charged with possession of marijuana for the purpose of trafficking. [ 2 ] The accused challenges the validity of the detention and the subsequent seizure of the marijuana. B. Issues [ 3 ] The issues to be decided on the voir dire are: 1. Was there a breach of the accused's right not to be arbitrarily detained, pursuant to

section 9 of the Charter ? 2. Was there a breach of the accused's right to be secure against unreasonable search or seizure, pursuant to

section 8 of the Charter ? 3. If the answer to either or both questions #1 or #2 is yes, should the evidence of the marijuana be excluded pursuant to section 24(2) of the Charter ? II. EVIDENCE [ 4 ] On December 10, 2009, Constable McCarthy was on shift at the RCMP detachment in Iqaluit when a call came in from someone identifying him or herself as being from the Baffin Correctional Centre (BCC).

The caller did not identify him or herself any further and it was assumed he or she was an employee at BCC. [ 5 ] The caller advised that the jail had issues with drugs being dropped off at a location where prisoners could obtain them.

There were concerns regarding a blue “Town Car”, as it had been seen driving slowly past the jail and it was thought that perhaps the vehicle might be involved in dropping off drugs. [ 6 ] No information was provided as to how often drugs had been dropped off, how recent the activity was, how often the blue “Town Car” had been seen driving past, if the car had been seen to stop and someone had been seen to exit the vehicle, or if there was any correlation in time between the blue car being in the area and the discovery of drugs.

No information was provided regarding the driver or occupants of the vehicle. [ 7 ] From the manner in which the evidence unfolded it seems that a “Town Car” is understood to be a particular vehicle model. [ 8 ] Constable McCarthy took the narcotics detection dog and went to BCC. Using the dog, he did a perimeter search of the premises, including the outside yard where the prisoners are taken for their free time. He did not locate any narcotics.

He did not go into the jail nor did he speak with anyone from the facility. [ 9 ] On his way back to the detachment, the officer saw a blue “Town Car” headed in the general direction of the jail. He turned around and followed the blue car. The car proceeded past the jail and turned towards an area known as the “Old Res”. At that point, the officer activated his emergency lights and pulled the vehicle over. There were three occupants in the vehicle and the officer recognized the driver through previous dealings with him. The accused was sitting in the back seat.

[10] As the officer approached the vehicle the driver rolled down the window and the officer immediately smelled a strong odour offresh, unburned marijuana. He had a brief conversation with the driver, advising him of the nature of the complaint from the jail. Thedriver advised that they were driving slowly because of the rough roads, that the occupants had just shared a marijuana joint, and thatthey were not involved in dropping drugs off at the jail. The officer again mentioned the smell of marijuana and asked if they had anymore drugs on them.

The driver responded that they did not. [11] At this point, the officer arrested all of the occupants of the car for possession of marijuana. The time from receiving the initialphone call to the arrest was approximately 25 minutes. The officer called for and received backup and the occupants of the vehicle weretaken out of the vehicle and were searched subsequent to arrest. Approximately 35 grams of marijuana were found on the accused. III. ANALYSIS A. Was there a breach of the accused's right not to be arbitrarily detained, pursuant to

section 9 of the Charter? [12] The Crown concedes that the vehicle and its occupants were detained when the vehicle was pulled over. The Crown does not relyupon any statutory authority for stopping the vehicle, but relies upon the officer's authority pursuant to an investigative detention. [13] In R v Waterfield, [1963] 3 All ER 659 [Waterfield], the court acknowledged a common law authority of police to detain forinvestigative purposes. The court also recognized that there are constraints on the exercise of such authority and set out what has come tobe known as the Waterfield test.

In determining the validity of an investigative detention, the Court must consider: 1. Was the police officer acting within the general scope of his duties; and, if so 2.

Did the conduct involve an unjustifiable interference with the liberty of the person being investigated? [14] In R v Simpson (1993), (ON CA), 12 OR. (3d) 182, 20 CR (4th) 1 at para 58 [Simpson], the Ontario Court ofAppeal, in considering the second branch of the Waterfield test, stated [...] where an individual is detained by the police in the course of efforts to determine whether that individual is involved in criminalactivity being investigated by the police, that detention can only be justified if the detaining officer has some 'articulable cause' for thedetention. [15] The “articulable cause” requirement has developed into a requirement for “reasonable grounds”.

However, the essential nature ofthe requirement has not changed. [16] A police officer who is detaining someone for investigative purposes must be able to provide specific facts that, both subjectivelyand objectively, lead to the reasonable inference that the individual is implicated in recent or on-going criminal activity. (Simpson; R vMann, 2004 SCC 52 at para 34). [17] An investigative detention that is based on reasonable grounds must still be justifiable in the context of all of the circumstances,including the necessity of the detention to carry out the officer's duty, the nature of the detention, the liberty interfered with, and thenature of the investigation. [18] It is clear that the first branch of the Waterfield test is satisfied, as the officer was carrying out his duty to prevent and investigatecrime, as set out in the Royal Canadian Mounted Police Act:

18. It is the duty of members who are peace officers, subject to the orders of the Commissioner, (

a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and ofoffences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension ofcriminals and offenders and others who may be lawfully taken into custody … (RSC 1985, c R-10, s 18) [19] In determining whether the officer had reasonable grounds to detain the vehicle, I must consider the quality of the information thatwas provided to him in the phone call from BCC. The concern is with the lack of detail in the information provided.

The callersuggested that drugs had been dropped off on more than one occasion but did not provide information as to when those occasions were orwhen the most recent occurrence was. Had that facility found drugs on the same day the call was made, the same week, or the samemonth? There is no way to determine this from the information provided. There was no information as to the number of times this hadoccurred. Had the facility found drugs on two occasions, five occasions, or more? What type of drugs had been found? How often hadthe blue “Town Car” been seen passing the facility? Had the vehicle stopped?

Had anyone gotten out? Did the vehicle have the sameoccupants on each occasion? Had the facility preserved any of the drugs to provide to the police? [20] While there may have been criminal activity, and sufficient reason for the officer to commence an investigation, the concern is thatthe information provided did not establish a nexus or link between the suspected criminal activity and the vehicle in question. There mayhave been proximity of location between the suspected criminal activity and the vehicle, but there is no evidence that there wasproximity in time, nor was there any other link.

The road at the jail being a public roadway, proximity of location would not have beenunique to this vehicle. Furthermore, what follow up that did occur, did not disclose any criminal activity. [21] I find that the officer did not have reasonable grounds to detain the vehicle for investigative purposes and, accordingly, thedetention that did occur was an infringement of the right of the accused not to be arbitrarily detained. [22] Having concluded as I have on

section 9, it is unnecessary for me to consider if there was a breach of the accused's

section 8 right tobe free from unreasonable search or seizure, as the subsequent arrest and detention flowed directly from the unlawful detention. B. Should the evidence be excluded pursuant to section 24(2) of the Charter? [23]

Section 24 of the Charter provides:

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

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [24] In determining whether the admission of the evidence would bring the admission of justice into disrepute, I am required to assessand balance the following factors: 1. The seriousness of the Charter-infringing state conduct; 2.

The impact of the infringement on the Charter-protected interests of the accused, and; 3. Society's interest in having the matter adjudicated on its merits. [See: R v Grant, 2009 SCC 32 , [2009] 2 SCR 353 [Grant]; R v Harrison, 2009 SCC 34 , [2009] 2 SCR 494; R v Cote,2011 SCC 46] (

i) Seriousness of the Charter-infringing state conduct

[ 25 ] The evidence is clear that the vehicle was not pulled over for any valid reason under motor vehicle or highway traffic legislation. The vehicle was pulled over because it matched the description of the vehicle provided by the informant. The officer was not responding to an urgent, quickly evolving situation where public safety was at stake. His intention was to effect a detention, in the legal sense.

He was not operating in an uncertain area of the law nor was he personally unsure of the law. [ 26 ] The evidence supports the conclusion that the officer simply did not bother to turn his mind to what authority, if any, he had to detain the vehicle.

While such conduct cannot be described as a flagrant, deliberate, bad faith, disregard for Charter-protected rights, it does indicate a careless disregard towards such rights, which is of concern. [ 27 ] While the breach may not be described as the most serious, neither can it be described as trivial or minimal. (ii) Impact on the Charter-protected interests of the accused [ 28 ] A person's right to be free from arbitrary detention protects liberty and privacy interests. While there is a reduced expectation of privacy in a motor vehicle, that is not to say that there is not an expectation of privacy.

Persons participating in a regulated activity, such as operating a motor vehicle, can expect to be stopped and detained for valid purposes related to road safety. However, this reduced expectation of privacy does not extend to detentions unrelated to road safety nor does it minimize infringements that are not for valid purposes. [ 29 ] Prior to the unlawful detention, the officer did not have reasonable and probable grounds to arrest the accused.

It cannot be said that the accused would have been searched and the evidence discovered in any event of the unlawful detention. [ 30 ] The impact on the Charter-protected interests of the accused was beyond trifling or minimal. (iii) Society's interest in an adjudication on the merits [ 31 ] The accused is charged with possession of marijuana for the purposes of trafficking, which is a serious charge. The evidence is highly reliable and is necessary for the prosecution.

These factors weigh in favour of admitting the evidence. [ 32 ] As stated by the Supreme Court of Canada in Grant at para 140 : “The balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision.” The Court must consider the impact of admitting or excluding the evidence on the long term reputation of the administration of justice.

Policing can often be a difficult job and it is understandable that in many circumstances, particularly those which are evolving quickly and in which public safety is at risk, the Charter may not be first and foremost in the minds of officers. But this was not such a case. Absent valid highway traffic or Motor Vehicle Act stops or lawful detention for criminal investigation purposes, people in Iqaluit are entitled to freely move about in their vehicles.

The police should be mindful of the restrictions on their ability to detain vehicles. [ 33 ] In balance, I am satisfied that over the long term, the admission of the evidence in the circumstances of this case would bring the admission of justice into disrepute. IV. CONCLUSION [ 34 ] Was there a breach of the accused's right not to be arbitrarily detained, pursuant to

section 9 of the Charter ? Yes [ 35 ] Was there a breach of the accused's right to be secure against unreasonable search or seizure, pursuant to

section 8 of the Charter ?

Unnecessary to answer in light of #1 [ 36 ] If the answer to either or both questions #1 or #2 is yes, should the evidence of the marijuana be excluded pursuant to section 24(2) of the Charter ? Yes, the evidence should be excluded Dated at the City of Iqaluit this 15th day of December, 2011 ___________________ Justice S. Cooper Nunavut Court of Justice