R. v. Alainga, 2012 NUCJ 10

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Alainga, 2012 NUCJ 10 Date: 20120807 Docket: 08-11-297 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Andrew Alainga ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): Mr. D. Garson Counsel (Accused): Mr. C. Lyons Location Heard: Iqaluit Date Heard: February 10, 2012 Matters: Criminal Code, s. 495 ; Charter, ss. 8, 9, 24(2) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION

[1] Andrew Alainga is charged with possession of marijuana for the purposes of trafficking. Acting on information from a confidentialinformant the police arrested Mr. Alainga at the airport in Iqaluit as he was returning from a trip to Ottawa. Upon searching his luggageapproximately 6.87 pounds of marijuana was found. The defence challenges the lawfulness of the arrest and the search of the luggageand asks that the marihuana be ruled inadmissible as evidence at trial. II.

EVIDENCE [2] On March 5, 2011, a member of the RCMP received information from a Confidential Informant (CI) that the accused would be inOttawa to pick up marijuana. The CI described the accused as a tall, young male Inuk with light skin and glasses. The officer whoreceived the phone call testified that he knew that the travel plans were imminent. However, the basis for his knowledge is not clear tothe Court. [3] Following receipt of the information the officer made inquiries with the two airlines that fly from Ottawa to Iqaluit and determinedthat on March 4th, Mr.

Alainga had purchased a ticket Ottawa-Iqaluit return, leaving Iqaluit on March 5th, and returning on March 7th.On March 7th, the officer made further inquiries of the airline and determined that Mr. Alainga had checked in one piece of luggage. [4] Two officers attended the airport terminal in Iqaluit to meet Mr. Alainga's flight. Upon entering the airport terminal, Mr. Alaingawas arrested for possession of marijuana for the purposes of trafficking. His checked luggage was seized and a search at the RCMPdetachment disclosed the marijuana. III.

ISSUES [5] Was the accused arbitrarily detained or arrested in violation of

section 9 of the Canadian Charter of Rights and Freedoms,

Part I ofthe Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982 c 11 [Charter], in that the police did not havereasonable and probable grounds upon which to base an arrest? [6] Was the right of the accused to be secure from unreasonable search or seizure pursuant to

section 8 of the Charter violated? [7] If the answer to either question 1 or 2 is yes, should the evidence be excluded pursuant to section 24(2) of the Charter? IV. ANALYSIS [8] Was the right of the accused to not be arbitrarily detained pursuant to

section 9 of the Charter violated in that the police did not havereasonable and probable grounds upon which to base an arrest?

Section 495 of the Criminal Code, RSC 1985, c C-48, provides: “A peace officer may arrest without warrant a person who has committed an indictable offence or who, on reasonable grounds, hebelieves has committed or is about to commit an indictable offence” [9] The “reasonable grounds” precondition to a lawful arrest is satisfied if the officer subjectively believes he has reasonable andprobable grounds for an arrest and if a reasonable person, in the position of the officer, would have believed that there were reasonableand probable grounds for an arrest (R v Storrey, (SCC), [1990] 1 SCR 241, [1990] SC J No 12). [10] The “reasonable grounds” standard is not proof beyond a reasonable doubt or even a prima facie case; it is a standard of “moreprobable than not” (R v Debot, (SCC), [1989] 2 SCR 1140, [1989] SCJ No 118 [Debot]).

[11] In determining whether there were reasonable grounds for an arrest, the Court must carefully consider the information known to theofficer at the time of the arrest. In assessing the quality of the information and whether it was sufficient to form reasonable grounds foran arrest and search, the Court must consider the following (Debot): A. Was the information compelling? B. Was the information credible? C. Was the information corroborated? A. Was the information compelling? [12] The officer's testimony was that a CI told him that the accused was travelling to Ottawa to pick up a quantity of marijuana.

The CIdescribed the accused as a tall, young male Inuk with light skin and wearing glasses. [13] According to the testimony of the officer, the CI did not provide specific information as to when the accused would be travelling.The officer testified that he “knew the travel was imminent” but it is not clear from the evidence how the officer knew this; whether itwas based on information provided by the CI or whether there was something in the nature of the conversation that led him to thatconclusion. [14] The information provided did not include details as to the quantity of the drug to be transported back to Iqaluit or the date, place,time or nature of the transaction which would occur in Ottawa. [15] There was no evidence as to how the CI came to have the information.

Was it first-hand knowledge based on a conversation withMr. Alainga or some other party to the transaction, second-hand knowledge which came from someone close to Mr. Alainga, or was itsimply rumour or “street talk”? [16] The Court has been left in a dilemma in this matter. Throughout his evidence, the officer who received the information from the CIintimated that he had received information from the CI that he could not or would not share with the Court. In his testimony, he referredto the CI as having “intimate knowledge” and having provided information that was “rich and full of detail”.

While that may well havebeen the case, the Court is not in a position to make such an assessment. The Court appreciates the many reasons for protecting theidentity of confidential informants and understands that there are times when the interest in protecting the identity of an informantexceeds the interest in furthering a particular prosecution. That is a matter of discretion for the law enforcement and prosecutingagencies.

However, having made the determination that protection of informant identity must be paramount to a prosecution, the Courtcannot be asked to accept the opinion of the officer as to the sufficiency of the information as a basis for arrest or search. To do so wouldundermine the concept of independent, impartial, third party review of state action that intrudes on individual liberties and would be aderogation of the Court's responsibilities.

The Court must determine if there were reasonable and probable grounds for an arrest andsearch based on the evidence put before it (Canada v Falconbridge Ltd., (ON CA), [2003] OJ No 1563, 225 DLR(4th) 1). [17] Based on the evidence I have heard, I find the information to be of a general and conclusory nature, lacking in detail. I do not findthe information compelling. B. Was the information credible? [18] The officer testified that the CI had entered into a formal arrangement with the RCMP and had been assigned a number, as is thepractice with informants who have gone through a formal screening process.

The CI does not have a criminal record and is said to haveknowledge of street level trafficking and bootlegging in the community.

[ 19 ] It is not clear if the CI had provided information on three prior occasions or more than three prior occasions. It is clear that the CI had never provided information which was used to obtain a search warrant to justify an arrest, or which led to the seizure of drugs or illegal alcohol or was recorded in intelligence reports for future reference. [ 20 ] The officer testified that the information received from the CI on prior occasions was corroborated through other police officers or street level knowledge.

In relation to corroboration of information received from the CI on prior occasions, the officer testified: It may not be documented anywhere but if five people tell me the same person is involved in trafficking in marijuana then I would consider that to be street knowledge and five independent sources at five different times giving me that information would lead me to believe that that person in some way would be involved. [ 21 ] The danger with this approach is that it has the potential to elevate rumour or gossip to the status of reliable police intelligence.

It is one thing to have specific factual information regarding a particular criminal offence relayed to the police from several independent sources; it is quite another if the information received is that of general reputation. [ 22 ] Certainly the officer had no reason to believe that the information received was not credible. Information received from the CI on prior occasions was not proven to be incorrect. There was no apparent reason for the CI to lie. There is nothing before the Court to determine the credibility of the information received. As a result, this is a neutral factor in the analysis. C.

Was the information corroborated? [ 23 ] Following receipt of the information from the CI, the officer confirmed with the airlines that the accused had travelled to Ottawa and would be returning in two days. A check on police databases did not disclose any convictions for drug offences or drug related activity. The officer had no personal knowledge of the accused. On the morning of March 7th, the officer confirmed that the accused was on the flight to Iqaluit and that he had checked in one bag.

The officer viewed this as suspicious as people going south on a shopping trip would normally check in more than one bag. [ 24 ] The only information that corroborated the information received from the CI was the fact of the accused travelling to Ottawa and back. This, standing alone, is not indicative of criminal conduct. People in Nunavut travel regularly by air and their travel plans are frequently known by others.

While corroborating information need not be information of illegal activity, it must be sufficient that, when considered in its totality, it tends to negate the possibility of innocent coincidence (Debot). The information in this instance fails to do so. D. Conclusion on whether there were reasonable and probable grounds for arrest [ 25 ] While the Court must consider whether the information received from an informant is compelling, credible or corroborated, weaknesses in one area may be compensated for by strengths in another.

The difficulty in this matter is that there are weaknesses in each of the three criteria the Court must consider. [ 26 ] While the information received was certainly sufficient cause for the officers to undertake an investigation, I find that it fell short of the legal requirement for reasonable and probable grounds for an arrest. [ 27 ] Having found that there were not reasonable and probable grounds for an arrest, the search, being incidental to the arrest, must also be found to be a violation of the right of the accused to be free from unreasonable search and seizure. E.

Should the evidence be excluded pursuant to section 24(2) of the Charter ? [ 28 ] Pursuant to the Supreme Court of Canada decisions in R v Grant, 2009 SCC 32 , [2009] 2 SCR 353 ; R v Harrison, 2009 SCC 34 , [2009] 2 SCR 494 ; and R v Coté, 2011 SCC 46 , [2011] 3 SCR 215 , in determining whether admission of the evidence would bring the administration of justice into disrepute, the Court must consider the seriousness of the Charter violation, the impact of the violation on

the Charter protected interests of the accused, and society's interest in having the matter adjudicated on its merits. F. Seriousness of the Charter violation [ 29 ] The Charter violation in this instance involved the arrest of the accused in a public place, the transportation of the accused while in police custody, the detention of the accused in police cells and a search of the luggage of the accused. The violation cannot be described as momentary, fleeting, or minimal. G.

Impact of the violation on the Charter -Protected interests of the accused [ 30 ] The Charter-protected interests of the accused which were impacted by the violation were his liberty interests and his right to privacy. The impact on liberty interests was significant given that the accused was detained for an undetermined time in RCMP cells. [ 31 ] While the privacy interests in luggage, particularly luggage that has been turned over to a carrier, are lesser than other privacy interests, such as those associated with a dwelling, there are, nonetheless, privacy interests associated with luggage.

Travelers who turn their luggage over to carriers expect their luggage to be subject to inspection for purposes related to airline safety. They do not expect their luggage to be searched for general criminal investigation purposes in the absence of reasonable grounds for doing so. H. Society's interest in adjudication on the merits [ 32 ] The charge before the Court is one of possession of marijuana for the purpose of trafficking. The evidence of the narcotics seized is highly reliable physical evidence and is necessary for the Crown's case.

While the narcotic seized is what is sometimes described as a “soft” drug, the amount seized was significant, suggesting ongoing active involvement in the illegal drug trade in Nunavut. This factor favours admission of the evidence. V.

CONCLUSION [ 33 ] As the Supreme Court of Canada stated in Grant , mathematical precision is not possible when weighing the sometimes competing functions of the court of protecting Charter interests and adjudicating matters on their merits. [ 34 ] While the reliability of the evidence and its importance to the Crown's case favour admission of the evidence, they are not the only factors to be considered and are not paramount to other factors.

The seriousness of the Charter violations and their impact on the Charter- protected rights of the accused in this case while not egregious, were well beyond technical or trifling. [ 35 ] I am of the view that the administration of justice would be brought into disrepute by the admission of the evidence in this matter. Dated at the City of Iqaluit this 8th day of August, 2012 ___________________ Justice S. Cooper

Nunavut Court of Justice