R v Asuchak, 2022 YKSC 25

SUPREME COURT OF YUKON Citation: R v Asuchak , 2022 YKSC 25 Date: 20220606 S.C. No. 21-01502 Registry: Whitehorse BETWEEN: HER MAJESTY THE QUEEN RESPONDENT AND RONALD RAY ASUCHAK and HELEN PATRICIA TIZYA APPLICANTS Before Justice E.M.

Campbell Counsel for the Respondent Benjamin Eberhard Counsel for the Applicant, Ronald Ray Asuchak Norah Mooney Counsel for the Applicant, Helen Patricia Tizya Christiana Lavidas REASONS FOR DECISION OVERVIEW [ 1 ] Ronald Ray Asuchak and Helen Patricia Tizya jointly face a number of charges of trafficking, possession for the purpose of trafficking, and simple possession of drugs contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“ CDSA ”). They are also jointly charged with possession of currency, of a value not exceeding $5,000, knowing that it was obtained by crime, contrary to s. 354(1) (

a) of the Criminal Code, R.S.C., 1985, c. C-46 (the “ Criminal Code ”). [ 2 ] On July 23, 2020, members of the Yukon RCMP were conducting team surveillance targeting street level drug trafficking in Whitehorse. Following observations made during that surveillance operation, the RCMP pulled over a Chevrolet Cobalt and arrested its occupants: Ronald Asuchak, the driver, and Helen Tizya, the front passenger. [ 3 ] Mr. Asuchak and Ms. Tizya were informed of the reasons for their arrests, read their rights to counsel and to remain silent upon their arrests.

Both indicated they understood and wanted to speak with counsel. However, they were not provided with the opportunity to speak with counsel until after they were transported to the Arrest Processing Unit (“APU”) of the Whitehorse Correctional Center (“WCC”) and strip searched. Ms. Tizya made a number of utterances before she was given the opportunity to speak with counsel. [ 4 ] The police conducted a pat-down search on Mr. Asuchak and Ms. Tizya roadside after their arrests. A large bundle of cash and a crack pipe were found on Mr. Asuchak at the time.

Cocaine was found on the back seat of the police vehicle that transported Ms. Tizya to the WCC. Mr. Asuchak and Ms. Tizya were also submitted to a strip search at the WCC. Fentanyl fell from Ms. Tizya during her strip search. In addition, cocaine was found in Ms. Tizya’s jeans and jacket. Also, cocaine and small quantities of codeine and diazepam as well as cell phones and drug paraphernalia were seized from the Chevrolet Cobalt. [ 5 ] Mr. Asuchak and Ms. Tizya have each filed an application pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms

Part 1 of the Constitution Act, 1982 (the “ Charter ”) seeking the exclusion of all the evidence gathered by the RCMP following their arrests as they contend it was obtained in violation of their rights to not be arbitrarily detained pursuant to s. 9 of the Charter and to not be subject to unreasonable search and seizure pursuant to s. 8 of the Charter . [ 6 ] In addition, Ms.

Tizya seeks to have the evidence seized by the police during her strip search excluded, pursuant to s. 24(2) of the Charter , on the basis that the RCMP officers lacked reasonable grounds to conduct a strip search; that the strip search was conducted in an unreasonable manner; and that she was not provided with the opportunity to speak with counsel prior to being strip searched in

violation of her rights under ss. 8 and 10(

b) of the Charter . [ 7 ] Ms. Tizya also seeks the exclusion, pursuant to s. 24(2) of the Charter , of the utterances she made after her arrest, which she alleges were elicited by the police before she was given the opportunity to speak with counsel, contrary to s. 10(

b) of the Charter . [ 8 ] Finally, Mr. Asuchak and Ms. Tizya seek a stay of proceeding or, in the alternative, a mistrial, pursuant to s. 24(1) of the Charter , based on late Crown disclosure of one officer’s supplementary occurrence report, which they contend is contrary to their right to make full answer and defence pursuant to s. 7 of the Charter . [ 9 ] Overall, I find that all the evidence gathered by the RCMP officers as a result of the applicants’ arrests must be excluded pursuant to s. 24(2) of the Charter .

The sheer number of inconsistencies between the police officers’ testimonies regarding what they heard, observed, and said prior to the arrests as well as the nature of those inconsistencies negatively impact their credibility and reliability. The lack of reliable police evidence leads me to conclude that the officers did not, subjectively and objectively, have reasonable grounds to arrest the applicants. The applicants’ arrests were therefore unlawful, making their detention arbitrary and in violation of the applicants’ rights under s. 9 of the Charter .

Consequently, the searches performed by the police incidental to the applicants’ unlawful arrests were unreasonable and contrary to s. 8 of the Charter . [ 10 ] I am also of the view that the utterances made by Ms. Tizya to two RCMP officers were elicited by the police prior to giving her the opportunity to speak with counsel and, therefore, obtained in breach of her right to counsel protected by s. 10(

b) of the Charter . [ 11 ] Overall, I find that the evidence obtained by the police as a result of the unlawful arrests must be excluded pursuant to s. 24(2) of the Charter . Society has an interest in seeing that this case proceeds on its merits, and the items seized by the RCMP officers constitute reliable evidence crucial to the Crown’s case. However, on balance, I am of the view that the seriousness of the Charter breaches coupled with the important impact they had on the Charter -protected interests of the applicants weigh in favour of excluding the evidence.

I find that admitting the evidence would bring the administration of justice into disrepute. [ 12 ] In addition, on its own, the violation of Ms. Tizya’s s. 10(

b) Charter right warrants the exclusion of the utterances she made in response to police questioning pursuant to s. 24(2) of the Charter . The law in this area is well established: the officers had the duty to refrain from questioning Ms. Tizya prior to giving her a reasonable opportunity to speak with counsel, as she had requested. They did not. The breach is concerning. The police’s questions undermined Ms. Tizya’s right to counsel. The statements she made were in response to police questions. The impact on Ms. Tizya’s Charter -protected interests is important.

The circumstances in which she made those utterances raise questions about their reliability. On balance, I am of the view that the admission of Ms. Tizya’s utterances would bring the administration of justice into disrepute. [ 13 ] As I have determined that the evidence gathered as a result of the unlawful arrests of the applicants should be excluded pursuant to s. 24(2) of the Charter , I need not decide the specific ss. 8 and 10(

b) Charter issues raised by Ms. Tizya with respect to her strip search. [ 14 ] Finally, the late disclosure by the Crown of an officer’s supplementary occurrence report did not breach the applicants’ right to make full answer and defence pursuant to s. 7 of the Charter . The adjournment granted to the applicants after they received the officer’s report was the appropriate redress to the late disclosure. 1) Were the roadside arrests of Mr. Asuchak and Ms.

Tizya unlawful and contrary to their rights to be protected from arbitrary detention pursuant to s. 9 of the Charter ? [ 15 ] The applicants contend that the police did not have reasonable grounds to arrest them and that, consequently, their arrests were unlawful and their detention was arbitrary and contrary to s. 9 of the Charter . [ 16 ] The applicants and the Crown agree on the well established test to determine the legality of the applicants’ arrests and the threshold to establish a violation of s. 9 of the Charter .

They differ on their assessment of the testimonies of the RCMP officers and the conclusions to be drawn from it. Positions of the parties [ 17 ] The applicants submit that the officers lacked reasonable grounds to arrest them roadside, rendering their arrests unlawful and, therefore, arbitrary and contrary to s. 9 of the Charter . [ 18 ] The applicants submit that Cpl. Hutton’s subjective belief that he had reasonable grounds to arrest the applicants, as occupants of a vehicle he suspected was involved in a drug transaction, is not objectively justifiable. The applicants submit that Cpl.

Hutton directed other members of the surveillance team to pull over the vehicle they occupied and arrest them, prior to arresting the alleged drug buyer and seizing cocaine from him. The applicants submit that Cpl.

Hutton only had suspicions that they were involved in drug trafficking at the time he directed that they be pulled over and arrested, and the cocaine he subsequently found on the alleged buyer cannot retroactively enhance the suspicions he had when he directed the arrests. [ 19 ] The applicants submit that the police officers who testified on the Charter applications all provided different accounts of the timing and substance of the information that was relayed over the radio prior to their arrests.

According to the applicants, the lack of contemporaneous notes and the inconsistencies in the police evidence are serious and should raise concerns about the credibility and reliability of the police officers’ testimonies. The applicants submit that the evidence from the police lacks reliability to an extent that makes it difficult to determine what Cpl. Hutton observed and when he observed it, in relation to the timing of his direction to arrest them. [ 20 ] The applicants submit that, even if I were to find that Cpl. Hutton directed the arrests after he located the drug on the alleged

buyer, he still did not have reasonable grounds to arrest them because he acknowledged during his testimony that the thought of the alleged buyer being the seller crossed his mind prior to the arrests of the applicants, therefore putting the strength of his subjective belief into question. [ 21 ] Crown counsel concedes that the applicants were detained by police as a result of their arrests after their vehicle was stopped roadside. [ 22 ] However, Crown counsel submits that the RCMP officers had reasonable grounds to believe the applicants were in possession of cocaine for the purpose of trafficking prior to arresting them. [ 23 ] Crown counsel submits that, in assessing the officers’ reasonable grounds to arrest, I must look at the totality of the circumstances and not examine each fact or observation made by any one of the officers in isolation. [ 24 ] Crown counsel submits that the evidence, as a whole, reveals that: (

i) Cpl. Hutton formed his reasonable grounds to arrest the applicants when he arrested the suspected buyer and seized a small quantity of cocaine from him; (ii) shortly thereafter, he communicated to Cst. Newbury that the applicants could be pulled over and arrested for trafficking in cocaine, and (ii) Cst.

Newbury relayed that information via radio to the other members of the surveillance team. [ 25 ] Crown counsel submits that the evidence reveals the officers subjectively believed they had reasonable grounds to arrest the applicants for trafficking in cocaine and possession for the purpose of trafficking in cocaine. [ 26 ] Crown counsel submits that based on the totality of the circumstances, which includes: (

i) the observations made by the officers themselves and the information they received from others; (ii) the rapidly evolving situation in which they were acting; and (iii) the experience of the police officers involved in this case, the officers’ subjective grounds to believe that the applicants were or had recently been in possession of cocaine for the purpose of trafficking and had been trafficking in cocaine are objectively justifiable. [ 27 ] Crown counsel submits that, as a result, the applicants were lawfully arrested pursuant to s. 495 of the Criminal Code , and, consequently, there was no violation of the applicants’ s. 9 Charter right to not be arbitrarily detained.

Facts [ 28 ] The facts relevant to the RCMP officers’ grounds to arrest the applicants are as follows. On July 23, 2020, Cpl. Mitchell Hutton, Cpl. Martin Fry, Cst. Geremy Newbury, Cst. Neil Gillis, Cst. Joseph Benedet and Cst. Joe Miller, who were assigned to the Crime Reduction Unit (“CRU”) of the Whitehorse RCMP, conducted police surveillance targeting street level drug trafficking in Whitehorse. The officers participating in the surveillance wore plain clothes and drove covert police vehicles. They communicated with one another via police radio. Their radio communications were not recorded. Cpl.

Hutton [ 29 ] Cpl. Hutton made the observations that led to the roadside arrests of the applicants. He was alone in his covert vehicle when he made the observations. [ 30 ] Cpl. Hutton is an experienced officer who has been with the Yukon RCMP since the beginning of his career, approximately 14 years ago. He worked with the Drug

Section for two years. He was also with the Federal Investigations Unit for three-and one-half years, where he was tasked almost exclusively with conducting drug investigations. In addition, most of his work with the CRU was focused on street level drug investigations. Cpl. Hutton estimates that he has participated in over 200 investigations related to possession of drugs for the purpose of trafficking. Cpl. Hutton has testified in several drug trials and has been qualified to give expert opinion evidence with respect to cocaine trafficking before the court in the Yukon. [ 31 ] Cpl.

Hutton testified that police mostly observe in Whitehorse “dial-a-dope” drug trafficking whereby individuals drive around town with their cell phones taking phone calls or orders from customers who they then meet in specific locations to conduct a drug transaction prior to moving on to the next customer. [ 32 ] Not long before making the observations that are at issue in this case, Cpl. Hutton positioned his vehicle in the vicinity of 5131 5 th Avenue, Whitehorse. He did so based on a few anonymous tips he had received regarding drug trafficking activities in and around that building. In cross-examination, Cpl.

Hutton acknowledged that this information was also consistent with a resident of the building being engaged in drug trafficking. [ 33 ] At approximately 8:40 p.m., Cpl. Hutton observed a male exiting the front of the building. The male walked to the sidewalk on 5 th Avenue and looked in both directions. The male then put his hoodie over his head and looked in both directions again. According to Cpl. Hutton, the male appeared to be looking for someone. While acknowledging that the male’s behaviour at that point was not necessarily out of the ordinary, Cpl.

Hutton pointed out that he had seen individuals behaving in that particular way a number of times in

the past when attempting to locate their drug dealer. [ 34 ] The male walked south around the building, then eastbound on Wood Street towards a silver Chevrolet sedan. From where he was, Cpl. Hutton could observe the driver of the sedan to be a white male with white hair. He could also see that there was a front passenger in the vehicle. However, his viewpoint did not allow him to make any observation of that passenger. [ 35 ] Cpl. Hutton observed the male on foot squatting down somewhat and reaching down the front of his pants with his right hand. The male then started walking again.

His hands came together, then separated. The male’s left hand was clenched and his right hand was open. Cpl. Hutton stated that, in the past, he has seen individuals walking with a clenched fist with either money or drugs in that hand for the purpose of buying or selling drugs. The male’s hands then came together again. Cpl Hutton testified that the male appeared to be pushing something further into his left clenched fist with his right hand. [ 36 ] Cpl.

Hutton testified that this behaviour, in addition to the anonymous tips he had received, led him to believe that the male may have been approaching the car for the purpose of buying drugs and might have money in his clenched hand. [ 37 ] Cpl. Hutton further observed the man walking up to the silver sedan and leaning into the driver’s side of the vehicle. The male reached into the car with his left clenched fist and opened his hand. According to Cpl. Hutton, the man appeared to be dropping something into the driver’s hand. Cpl.

Hutton believed he saw something fall from the male’s hand, but he could not say for certain. The man’s left hand then remained in the car and slightly out of Cpl. Hutton’s view. When the male pulled his hand out of the vehicle, his fist was clenched again. The male then turned around and started walking back towards the building. While doing so, the male put his left hand into a left-side pocket at waist level. When his hand came out, it was open again. Cpl. Hutton testified that what he had just observed looked very similar to drug transactions he had observed in the past. [ 38 ] Cpl.

Hutton then positioned himself to see the licence plate of the vehicle and confirmed with Cpl. Fry it was the same vehicle they had discussed in the morning. Cpl. Hutton testified to having a general discussion with Cpl. Fry earlier that day about a number of possible targets for drug trafficking offences. During that conversation Cpl. Fry had informed him that Mr. Asuchak had been seen driving a silver Chevrolet sedan with the licence plate HZA99. [ 39 ] Cpl. Hutton testified that he knew Mr. Asuchak had been the subject of investigations in the past. However, he had never dealt with Mr.

Asuchak or had any conversation with him prior to July 23, 2020. [ 40 ] Cpl. Hutton estimates that he was half a block away from 5131 5 th Avenue, or approximately 30 metres, when he made his observations through the window of his vehicle, and that he was closer when the male approached the silver Chevrolet sedan on Wood Street. I note that Cpl. Hutton stated that he is not very good at estimating distances. It was daytime and bright out when Cpl. Hutton made his observations. [ 41 ] Cpl.

Hutton informed the other members of the surveillance team via radio that he intended to arrest the suspected buyer and requested that the other members attend the area to conduct surveillance on the silver sedan. While Cpl. Hutton testified that he did not recall the exact words he said over the radio, he was definitive in his answer that he did not tell the other officers to arrest the occupants of the vehicle before he arrested the buyer. Cpl.

Hutton testified that this was the type of surveillance operation the CRU team conducted regularly at the time and their practice was to confirm that the alleged buyer had drugs prior to taking any action on the trafficker. [ 42 ] Cpl. Hutton then approached the suspected buyer and arrested him for possession of a controlled substance. As soon as Cpl. Hutton arrested him, the male asked “Do you want it?” Cpl. Hutton said “yes”. The male pulled out what looked like a folded Canadian Tire money bill and placed it into the hand of the officer. Cpl.

Hutton asked him what it was and the male stated it was a gram of “soft”, which, in Cpl. Hutton’s experience means powdered cocaine. The male confirmed he had just purchased it with two fifty dollar bills. The arrest took place at approximately 8:45 p.m. [ 43 ] Cpl. Hutton testified that Cst. Newbury arrived around that time. Cpl. Hutton had a very short conversation with Cst. Newbury. He told Cst. Newbury that he had found drugs on the buyer, and that the surveillance team could stop the silver sedan and arrest its occupants for trafficking. Cpl. Hutton believed Cst.

Newbury relayed that information to the other members over the radio. [ 44 ] Cpl. Hutton was clear during his testimony to the effect that he did not go back on the police radio to confirm he had found drugs on the buyer or to direct the arrest of the occupants of the vehicle. Cpl. Hutton stated that he only went back on the radio later to inquire whether the team had stopped the vehicle. Once he received confirmation they had, he released the buyer because it is not his practice to lay simple possession charges. Cpl.

Hutton explained that he detained the buyer until he had confirmation that the police had stopped the vehicle to prevent any possibility of the buyer alerting the occupants of the vehicle about the police operation. Cpl. Hutton further stated that the pat-down search he conducted on the buyer upon his arrest did not reveal anything that would be consistent with trafficking activities. Cpl. Hutton stated that it is not his practice to conduct or authorize a strip search for individuals arrested for simple possession. Cpl. Hutton did not take a statement from the buyer. Cpl.

Hutton confirmed he was aware the buyer had a criminal record. However, he testified that he did not rely on what the buyer said to him to form his reasonable grounds that the occupants of the silver sedan were involved in drug trafficking. He relied on his observations and the drug he seized from the buyer. [ 45 ] After releasing the buyer, Cpl. Hutton drove to the bottom of Two Mile Hill where he arrived at approximately 9:05 p.m. Upon arrival, he saw that other members of the surveillance team had pulled over the silver sedan he had earlier observed. Cpl.

Hutton did not have any interactions with the occupants of the vehicle roadside. He does not recall at what point or how he learned the identity of the occupants of the vehicle. Cpl. Hutton testified that he wrote his notes regarding his observations either just after releasing the buyer or upon his arrival at the bottom of Two Mile Hill Cst. Newbury [ 46 ] Cst. Newbury has been an RCMP officer since 2007. He began his career with the RCMP in Manitoba where he served as a general duty officer for ten years and, after, as a member of the Federal Investigations Unit for approximately three years. Cst.

Newbury was then transferred to the Yukon where he has been assigned to the Federal Investigations Unit in Whitehorse for approximately two

years. Cst. Newbury has participated in many traffic stops, while on general duty policing in Manitoba, where drugs, usually marijuana, were found. He has also taken a number of courses related to drug investigations over the years, including a Drug Investigative Technique Course. Cst.

Newbury testified that there are basic key indicators of street level drug trafficking involving motor vehicles such as, short duration encounters between the occupants of two vehicles or the occupants of a vehicle and a pedestrian, hand-to-hand contact during the short encounters, individuals putting their hand inside a vehicle and removing it quickly, individuals constantly looking side to side, and the use of older vehicles that are usually dirty inside. [ 47 ] Cst. Newbury testified that, on July 23, 2020, he was in his covert surveillance vehicle near the Whitehorse RCMP detachment when he heard Cpl.

Hutton say on the police radio that he had witnessed a hand-to-hand drug transaction between a “grey Chevy Cobalt” and a man on the side of the road on 5 th Avenue. Cpl. Hutton added that he was going to make an arrest. Cst. Newbury does not recall if Cpl. Hutton mentioned whether the vehicle he saw was Ron Asuchak’s vehicle. Cst. Newbury testified that it was clear and bright out at the time he heard the radio announcement. [ 48 ] As he was the closest to Cpl. Hutton’s location, Cst. Newbury hurried to assist with the arrest. It took him approximately one minute to drive to Cpl. Hutton’s location.

However, by the time he arrived, Cpl. Hutton had already arrested the individual. Cpl. Hutton told him that the individual had bought soft cocaine powder from Ron Asuchak, and Cpl. Hutton authorized the arrest of Mr. Asuchak. [ 49 ] Cst. Newbury testified he went on the radio to relay that information to the other members of the surveillance team. While he does not remember the exact words he pronounced, Cst.

Newbury testified that, at that point, he would have communicated via radio to the other members of the surveillance team that the buyer was positive for drugs and that Ron Asuchak could be arrested for drug trafficking. Also, he would have provided a description of the vehicle of interest, a “grey Chevy Cobalt” with licence plate number HZA99, if it had not already been done. [ 50 ] Cst. Newbury does not recall if he communicated over the radio that Ron Asuchak was the driver of the vehicle.

However, at the very least, he would have described the occupants of the vehicle as a Caucasian male driver and a First Nation female passenger. Cst. Newbury stated that the information he provided to the team over the radio came directly from Cpl. Hutton. [ 51 ] Cst. Newbury testified that, subsequently, the surveillance team located the target vehicle on 4 th Avenue. Cst. Newbury drove to that location and saw that the vehicle had pulled into a parking lot just past the intersection of 4 th Avenue and 2 nd Avenue, where 4 th Avenue turns into Two Mile Hill. Cst.

Newbury drove past the vehicle and effected a U-turn. While doing so, Cst. Newbury observed that the occupants of the vehicle had their heads, eyes, and hands down. Cst. Newbury testified that it looked as though they were “fiddling” with something. However, he acknowledged that he could not see what they were doing inside the vehicle. Cst. Newbury testified that the police’s main concern at the time was that the occupants were disposing or hiding drugs they had on them. [ 52 ] Cst.

Newbury testified that, when the target vehicle pulled out of the parking lot back onto Two Mill Hill, the members of the surveillance team got in position, activated the lights on their vehicles, slowed the target vehicle down and stopped it at the bottom of Two Mile Hill. He added that no physical contact occurred between the police vehicles and the target vehicle. The police blocked traffic for a short period of time while they were proceeding with the stop and the arrests. Cst. Newbury described the traffic as busy on Two Mile Hill at the time. [ 53 ] Cst.

Newbury stopped his police vehicle beside the target vehicle. He drew his firearm, walked to the driver’s door, opened it, and arrested the driver, whom he identified as Ronald Asuchak, for trafficking in cocaine. Cst. Newbury took Mr. Asuchak out of the vehicle and placed handcuffs on him. While doing so, Cst. Newbury realized that Mr. Asuchak had mobility issues, so he retrieved Mr. Asuchak’s crutch from the vehicle for him. They then walked slowly to Cst. Benedet’s police vehicle, which was parked nearby. During that time, Cst. Newbury told Mr.

Asuchak, from memory, that he had the right to contact a lawyer and to remain silent. Cst. Benedet also gave Mr. Asuchak his Charter rights by memory when they arrived at his police vehicle. Mr. Asuchak stated he understood and wanted to speak to a lawyer. [ 54 ] Cst. Newbury explained that Mr. Asuchak was not afforded the opportunity to speak with counsel roadside because the arrest had taken place on a busy road and there were concerns for the safety of all those involved, as well as for the public using the road, if they remained there. According to Cst. Newbury, the goal was to escort Mr.

Asuchak to the WCC where he would be provided with an opportunity to speak with counsel. Cst. Newbury confirmed that Mr. Asuchak was cooperative throughout the process. [ 55 ] Cst. Newbury does not know which officer dealt with the passenger, Ms. Tizya, because his focus was on Mr. Asuchak at the time. However, he remembers observing Ms. Tizya brushing what appeared to be cocaine off her clothes or her seat onto the ground while he was arresting Mr. Asuchak. He also recalls hearing Cpl. Fry ordering her to stop. [ 56 ] According to Cst.

Newbury, approximately 10 minutes elapsed between the moment he first heard Cpl. Hutton on the radio and the moment the vehicle was stopped at the bottom of Two Mile Hill. Cst. Newbury testified he was uncertain whether it was Cpl. Fry or Cpl. Hutton who ordered the “take down”. Cpl. Fry [ 57 ] Cpl. Fry has been a member of the RCMP since 2005. From August 2005 to December 2008, he was assigned to general duty policing in the Halifax area.

From December 2008 to December 2015, he was assigned to specialized units in the Halifax area (Street Crime Enforcement Unit, Integrated Drug Unit and Integrated Guns and Gangs Unit) where a significant portion of his responsibilities included the enforcement of the CDSA . [ 58 ] Cpl. Fry was assigned to the Federal Investigations Unit in Whitehorse from December 2015 to February 2021. The Federal Investigations Unit is responsible for all aspects of federal policing in the Yukon. The enforcement of the CDSA forms most of the work of that unit.

He has been assigned to the Historical Case Unit of the Yukon RCMP since February 2021 investigating missing persons and historical homicides.

[ 59 ] In the spring of 2020, he was seconded to the CRU for a few months. The mandate of that unit at the time was the investigation of drug trafficking offences. [ 60 ] Cpl. Fry was alone in an unmarked police vehicle in downtown Whitehorse when he heard Cpl. Hutton notify over the radio that he had observed a drug transaction between an individual and Mr. Asuchak, and that he had arrested the buyer. The information was that Mr. Asuchak was driving the same vehicle he previously had been seen driving up the driveway of a location where the RCMP were executing a search warrant. [ 61 ] Cpl.

Fry had a brief conversation with Cpl. Hutton over the radio. Cpl. Hutton explained to him that he was confident he had observed a drug transaction, he identified the vehicle involved and he identified Mr. Asuchak. Cpl. Fry confirmed with Cpl. Hutton that he was certain he had witnessed a drug transaction and his grounds. Cpl. Hutton said over the radio that he wanted the vehicle stopped. According to Cpl. Fry, the plan, from then on, was to stop the vehicle and arrest the occupants. Cpl. Fry did not recall when he became aware that the buyer was in possession of cocaine. [ 62 ] After his conversation with Cpl.

Hutton, Cpl. Fry first observed the target vehicle travelling north past the Yukon Inn. The second time he saw the vehicle, it was parked at the corner of 2 nd Avenue and Two Mile Hill. Cpl. Fry alerted the other members of the surveillance team to that effect. He did not see what the occupants of the vehicle were doing at the time. Cpl. Fry stated that, based on his past knowledge of Mr. Asuchak, he believed that the driver looked like him. In addition, Cpl.

Fry has no reason to believe that the driver had changed between the moment he first saw the vehicle and when it was stopped at the bottom of Two Mile Hill. [ 63 ] Cpl. Fry is one of the officers who participated in the roadside stop of the vehicle at the bottom of Two Mile Hill. He did so by pulling his police vehicle in front of the Chevrolet Cobalt after it had already come to a stop to prevent it from moving forward. Cpl. Fry then approached the passenger side of the target vehicle. He opened the passenger side door and saw that the front passenger, Ms.

Tizya, was brushing off what he thought was cocaine on her pants onto the floor of the vehicle. Cpl. Fry told her she was under arrest for possession for the purpose of trafficking in cocaine and trafficking in cocaine. Cpl. Fry testified that Ms. Tizya said: “its not cocaine, its donuts”. Cpl. Fry replied that she was not brushing off donuts and to stop what she was doing. Cpl. Fry observed what he believed to be cocaine scattered all over the interior of the vehicle, particularly, in the front driver seat and the front passenger seat. [ 64 ] After arresting Ms. Tizya, Cpl.

Fry immediately turned her over to Cst. Gillis who provided her with her Charter rights and police caution. Cpl. Fry did not have any further interactions with Ms. Tizya or Mr. Asuchak. [ 65 ] Cpl. Fry confirmed that Cst. Gillis was nearby when he arrested Ms. Tizya. However, Cpl. Fry is unable to recall whether Cst. Gillis arrived at the same time he was approaching the vehicle. Cst. Miller [ 66 ] Cst. Miller has been a member of the RCMP for 12 years. He started his career with the RCMP in the Northwest Territories where he was posted for seven years prior to transferring to the Yukon RCMP in August 2016.

He has been assigned to the Major Crimes Unit of the Yukon RCMP since February 2019. In the spring of 2020, he was seconded for a few months to the CRU. [ 67 ] On July 23, 2020, at approximately 8:40 p.m., Cst. Miller heard Cpl. Hutton say over the radio that he had witnessed what he believed to be a drug transaction on 5 th Avenue, at a location just south of the RCMP Detachment. Cpl. Hutton provided a description of a small sedan vehicle bearing licence plate HZA99 with a male driver believed to be Mr. Asuchak. Cpl. Hutton indicated that the occupants of the vehicle were now subject to arrest. Cpl.

Hutton added that he was going to arrest the alleged buyer of drugs. [ 68 ] Cst. Miller was alone in an unmarked police vehicle near the Prospector Trailer Park on the Alaska Highway when he heard Cpl. Hutton’s radio communication. Cst. Miller immediately left his position to drive towards downtown Whitehorse. Cst. Miller recalls that while he was driving, the name of the buyer, who had been arrested, was mentioned on the radio. Cst.

Miller does not recall hearing much more on the radio because his focus was on driving down Two Mile Hill to join the other members of the surveillance team to stop the vehicle and arrest its occupants. [ 69 ] Cst. Miller estimates that it took him three to four minutes to drive from his initial position to the bottom of Two Mile Hill. As he was coming down Two Mile Hill, Cst. Miller heard Cpl. Fry announcing over the radio that the target vehicle was parked at the intersection of 2 nd Avenue and 4 th Avenue at a barber shop location. [ 70 ] When he arrived on scene, Cst.

Miller saw that the other officers were already pulling over the vehicle and proceeding with the arrests. Cst. Miller saw Ms. Tizya and Mr. Asuchak being removed from the vehicle by other police officers. However, he did not have any interactions with either of them. Cst. Miller assisted his colleagues by directing traffic, which he described as being very busy at the time, to ensure the safety of all of those on the road. Cst. Gillis [ 71 ] Cst.

Gillis has been assigned to the Federal Investigations Unit of the Yukon for the past three years, which mandate includes the enforcement of the CDSA . [ 72 ] Prior to that, he was assigned to four different RCMP postings in Saskatchewan over a period of nine years. His last posting in Saskatchewan was with the RCMP Federal Investigations Unit in Regina. During that time, he was on secondment for a period of three months to the Regina Police Service to assist with investigations regarding street level crime, drug enforcement and gun violence. Cst.

Gillis would have been involved in roadside stops involving CDSA matters two dozen times prior to the summer of 2020. In the summer of 2020, Cst. Gillis was temporarily seconded to the CRU. At the time, the mandate of the CRU was to target street level drug trafficking.

[ 73 ] At approximately 8:30 p.m., on July 23, 2020, Cst. Gillis heard Cpl. Hutton say over the police radio that he had observed a vehicle being driven by Mr. Asuchak; that Mr. Asuchak was believed to be involved or known to be involved in CDSA activity within the Yukon; and that Cpl. Hutton was to commence surveillance on the vehicle driven by Mr. Asuchak. [ 74 ] Approximately a minute later, Cst. Gillis heard Cpl. Hutton announce over the radio that he had observed a suspected buyer approached the vehicle and that he was going to arrest the individual. [ 75 ] According to Cst.

Gillis, the vehicle was described as a grey four-door sedan. Cst. Gillis did not make a note of the licence plate of the vehicle, which would also have been provided over the radio. [ 76 ] Cst. Gillis was at the intersection of 2 nd Avenue and 4 th Avenue, coming down Two Mile Hill, when he heard Cpl. Hutton’s second announcement. Cst. Gillis then saw the vehicle driven by Mr. Asuchak coming towards him on 4 th Avenue. He identified the driver as Mr. Asuchak and observed that the front passenger was a First Nation female. Cst. Gillis recognized Mr. Asuchak from previous photos he had seen. Cst.

Gillis then turned on a side street to await further instructions. [ 77 ] Shortly after, Cst. Gillis heard Cpl. Hutton announce on the radio that he had located cocaine on the suspected buyer and that the vehicle had driven away from the area. [ 78 ] Cst. Gillis then proceeded north on 4 th Avenue. At some point, the target vehicle left the parking lot at the corner of 2 nd Avenue and 4 th Avenue, where it had been parked. Cst. Gillis turned on his lights and sirens and pulled behind the vehicle, which stopped right away. [ 79 ] Cst.

Gillis, wearing his police vest, walked to the passenger side of the target vehicle, as he had observed that Cst. Newbury had approached the driver’s side of the vehicle. Cst. Gillis opened the front passenger door and arrested Ms. Tizya for trafficking in cocaine. He did not draw his sidearm while doing so. At the time, Cst. Gillis observed a white crystallized substance, which appeared to be crack cocaine, scattered throughout the vehicle. Cst. Gillis testified that Cpl. Fry was beside him when he arrested Ms. Tizya. However, Cst. Gillis stated that he was the officer who told Ms.

Tizya that she was under arrest. [ 80 ] Cst. Gillis testified that his reasonable grounds to believe that the occupants of the vehicle were engaged in trafficking in cocaine came from the observations that had been relayed over the radio by Cpl. Hutton, and then by his own observations of the substance in the vehicle, which he believed to be crack cocaine. Cst. Benedet [ 81 ] Cst. Benedet has been a member of the RCMP since 2007. From 2007 to 2010 he was posted in Rankin Inlet, Nunavut. From 2010 to 2015, he was assigned to the RCMP drug

section at the Toronto Pearson International Airport. Cst. Benedet has been posted with the Yukon Division of the RCMP since 2015. He has been assigned to the Federal Investigations Unit in Whitehorse since September 2017. Cst. Benedet was seconded to the CRU in Whitehorse from April to September 2020. The primary focus of the CRU at the time was the investigation of street level drug trafficking. Cst. Benedet was involved in approximately a dozen files during his posting with the CRU. [ 82 ] On July 23, 2020, Cst.

Benedet was conducting surveillance in an unmarked police vehicle when, at approximately 8:40 p.m., he heard Cpl. Hutton advise over the radio that he had observed a drug transaction and was going to arrest the suspected drug buyer. [ 83 ] Cst. Benedet testified that he then heard Cpl. Hutton announcing over the radio that he had arrested and found drugs on the buyer. Cpl. Hutton also directed the surveillance team to pull over the suspect vehicle. Cst. Benedet recalls that the vehicle was described as a beige vehicle. [ 84 ] The next radio communication Cst.

Benedet heard was to the effect that the rest of the surveillance team had stopped the vehicle involved in the transaction on Two Mile Hill. When Cst. Benedet arrived at the bottom of Two Mile Hill, he parked his vehicle on the side of the road behind the others. He saw Cst. Newbury walking towards him with Mr. Asuchak. Cst. Benedet noticed that Mr. Asuchak had a mobility impairment. Cst. Benedet got out of his car and took over custody of Mr. Asuchak. He was advised that Mr. Asuchak had been arrested and it was requested that he provide him with his Charter rights. Cst. Benedet did so and ensured Mr.

Asuchak understood. Mr. Asuchak requested to speak with counsel. Cst. Benedet testified that Mr. Asuchak spoke with counsel after he was strip searched at the APU. [ 85 ] Cst. Benedet acknowledged that there is no mention in his notes or his supplementary occurrence report that he heard Cpl. Hutton announced over the radio that he had found cocaine on the buyer, and that it was Cpl. Hutton who directed the team to arrest the persons in the vehicle. However, Cst. Benedet testified that he has an independent recollection of hearing Cpl. Hutton make the announcement over the radio. Analysis [ 86 ]

Section 9 of the Charter provides that everyone has the right to not be arbitrarily detained or imprisoned. [ 87 ] A detention not authorized by statute or common law is arbitrary and contrary to s. 9 of the Charter . As stated by the Supreme Court of Canada in R v Grant , 2009 SCC 32 (“ Grant ”) at para. 54 : …

Section 9 serves to protect individual liberty against unlawful state interference. A lawful detention is not arbitrary within the meaning of s. 9 ( Mann , at para. 20), unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9.

[88] The authority of a police officer to arrest a person without a warrant is found at s. 495 of the Criminal Code. [89] The applicants were arrested without a warrant for trafficking and possession for the purpose of trafficking in cocaine (aSchedule 1 substance), which are straight indictable offences pursuant to s. 5 of the CDSA. [90] Section 495(1)(

a) provides that peace officers have the authority to arrest someone without a warrant if they have reasonablegrounds to believe that the person has committed or is about to commit an indictable offence. [91] Therefore, the RCMP officers who directed the arrests or arrested the applicants must have had reasonable grounds to believethat they had committed or were about to commit an indictable offence(

s) before making the arrests (R v Storrey, (SCC), [1990] 1 SCR 241 (“Storrey”) at 253). [92] There are two components to the assessment of whether police officers have reasonable grounds to arrest. First, they mustsubjectively have reasonable grounds to believe that the person has committed or is about to commit an indictable offence.

Second, thosesubjective grounds must be justified from an objective point of view (Storrey at 250-251). [93] The objective component of the assessment requires that “a reasonable person placed in the position of the officer must be ableto conclude that there were indeed reasonable and probable grounds for the arrest” (Storrey at 251).

The reasonable person “… must bedeemed to have the same level of experience as the police officer whose actions are being scrutinized; otherwise, the reasonable manwould have no standard or guideline against which to measure the reasonableness of the officer’s belief (R v Quillian (1991), (AB KB), 122 AR 131 (QB) at para. 68)” (R v Hanson, [2009] OJ No 4152 (Ont Sup Ct) (“Hanson”) at para. 59.

See alsoR v Tran, 2007 BCCA 491 at para. 12). [94] In addition, the court must look at the totality of the circumstances relied upon by the arresting officer or the officer who orderedthe arrest when assessing the objective reasonableness of the subjective grounds for arrest. It is not appropriate to consider each fact inisolation (R v Labelle, 2016 ONCA 110 at para. 10). The court shall also take into consideration inferences that trained police officersare entitled to draw and deductions they are entitled to make.

In addition, the objective assessment will include the dynamics withinwhich the police officers acted (Hanson at para. 58). [95] Finally, the reasonable grounds standard requires more than mere suspicion but less than the civil burden of proof on a balance ofprobabilities (R v Francis, 2015 BCPC 150 at para. 44 summarizing the legal principles set out in Hunter v Southam Inc, (SCC), [1984] 2 SCR 145; R v Debot, (SCC), [1989] 2 SCR 1140; Mugesera v Canada (Minister of Citizenship andImmigration), 2005 SCC 40). [96] Six RCMP officers testified to participating in the police surveillance that led to the arrests of the applicants.

Each officer had, todifferent extents, a different recollection of what they had heard, observed, or said prior to the arrests. While some inconsistencies are tobe expected when a number of officers with different vantage points participate in a surveillance operation, the number and nature of theinconsistencies in this case raise serious concerns about the credibility and reliability of the evidence of the officers involved in theinvestigation. [97] In this case, the grounds for arrest came from the observations of Cpl. Hutton. Cpl.

Hutton definitively stated that he was not theofficer who directed, over the radio, the other members of the surveillance team to pull over the vehicle and arrest its occupants.Cpl. Hutton testified that what he relayed over the radio was, in essence, that he had witnessed what he believed was a drug transaction,that he intended to arrest the alleged buyer, and that he wanted his colleagues to conduct surveillance on the vehicle involved in thatsuspected transaction until he had confirmed further grounds. Cpl.

Hutton was adamant that he did not tell the other officers that thevehicle could be stopped and its occupants arrested at that time. Cpl. Hutton testified that it is only after he arrested the buyer andconfirmed he had drugs in his possession that he told Cst. Newbury, in person, that the vehicle could be stopped, and its occupantsarrested, because he did not have reasonable grounds to arrest before then. Cpl. Hutton added that Cst. Newbury is the one who wouldhave relayed his information and direction over the radio. [98] Cst. Newbury corroborates Cpl. Hutton’s testimony in that regard. Cst.

Newbury testified he heard Cpl. Hutton say over the radiothat he had witnessed a drug transaction and that he was going to arrest the suspected buyer. Cst. Newbury testified that he attendedCpl. Hutton’s location as soon as he could to assist with the arrest. However, when he arrived, Cpl. Hutton had already arrested the buyerand confirmed he had drugs on him. [99] Cst. Newbury testified that he then communicated that information to the other officers over the radio. While he does notremember exactly what he said, Cst.

Newbury testified that he would have indicated that the buyer was positive for drugs and that thedriver could be arrested for drug trafficking. Cst. Newbury also testified that he would have provided a description of the vehicle if thathad not already been done. While Cst. Newbury did not recall if he communicated, over the radio, that the driver of the vehicle was RonAsuchak, he stated that, at the very least, he would have described the occupants of the vehicle as a Caucasian male driver and a FirstNation female passenger. [100] What emerges from Cst.

Newbury’s constant use of the conditional tense during that aspect of his testimony is that he did notseem to remember what exactly he said over the radio. He nonetheless testified about what he assumed he would have said. In addition,while Cst. Newbury testified that he would have, at least, described the passenger of the vehicle as a First Nation female (which isinformation he could only have received from Cpl. Hutton at that point), Cpl.

Hutton testified that, other than to see that there was apassenger in the vehicle, he was unable to make any observation of that passenger. [101] In addition, it is concerning that none of the other members of the surveillance team testified to hearing Cst. Newbury, whom theyall knew, make that critical announcement over the radio confirming that drugs had been found on the buyer and directing them to stopthe vehicle and arrest its occupants. According to Cpl. Hutton and Cst. Newbury, this is information that all of the officers would havebeen waiting for. Instead, all the other members testified to hearing Cpl.

Hutton providing that direction, over the radio, at one point oranother.

[ 102 ] I also note that, in cross-examination, Cst. Newbury stated that he was unsure whether it was Cpl. Hutton or Cpl. Fry who directed the “take down”. Cst. Newbury’s response contradicts his earlier testimony that Cpl. Hutton is the one who told him that the vehicle could be stopped. While Cst. Newbury may have been referring to the specific moment when the officers got in position to pull over the vehicle, if he did, his testimony on that point was confusing. I note that the other officers involved in stopping the vehicle did not recall a formal “take down” order being given at the time they all got in position to effect the stop. [ 103 ] Cpl. Fry’s testimony corroborates in

part Cpl. Hutton’s testimony, in that he recalled confirming over the radio with Cpl. Hutton that the vehicle Cpl. Hutton had observed was the one associated with Mr. Asuchak. Cst. Gillis also testified that the first radio announcement he heard from Cpl. Hutton was that he had observed a vehicle being driven by Mr. Asuchak. [ 104 ] However, the remainder of Cpl. Fry’s testimony regarding the grounds for arrest contradict in large

part Cpl. Hutton’s testimony. Cpl. Fry testified to hearing Cpl. Hutton announcing over the radio that he had observed a drug transaction between an individual and the driver of a vehicle, and that he had arrested the buyer. According to Cpl. Fry, Cpl. Hutton was not only confident he had observed a drug transaction, but he also described the vehicle involved in the transaction and identified Mr. Asuchak as the driver of that vehicle. Cpl. Fry also testified to having a short conversation with Cpl. Hutton over the radio at the time to confirm his grounds for arrest. Cpl. Fry testified that Cpl.

Hutton stated over the radio that he wanted the vehicle stopped, and that, as a result, the plan going forward was to stop the vehicle and arrest its occupants. [ 105 ] Cpl. Fry’s testimony is incompatible with Cpl. Hutton’s in many ways. First, Cpl. Hutton testified that he was not able to identify the driver of the vehicle at the time he made his observations, whereas Cpl. Fry testified that Cpl. Hutton confirmed over the radio that the driver was Mr. Asuchak. I note that Cpl. Hutton testified he had never dealt with Mr. Asuchak prior to that date. Second, Cpl.

Hutton testified that he had not yet arrested the buyer when he announced, over the radio, that he had observed a drug transaction. In addition, Cpl. Hutton was certain he never directed, over the radio, that the vehicle be pulled over and its occupants arrested. However, Cpl. Fry testified that Cpl. Hutton is the one who directed, over the radio, the stop and the arrests. Finally, the only conversation Cpl. Hutton testified to having with Cpl.

Fry, over the radio and prior to the arrests, was to confirm that the vehicle he had observed was the same vehicle they had talked about that morning, which was associated with Mr. Asuchak. Yet, Cpl. Fry testified to having a conversation with Cpl. Hutton to confirm not only his observations but his grounds for arrest. I note that Cpl. Hutton testified that he only formed his reasonable grounds to arrest after he found drugs on the buyer. [ 106 ] Cst. Gillis and Cst. Miller also contradict Cpl. Hutton in that they testified that it was Cpl.

Hutton who gave the direction to stop the vehicle and that he did so, over the radio, before arresting the alleged buyer. [ 107 ] Cst. Benedet also testified to hearing Cpl. Hutton over the radio giving the direction to arrest the occupants of the vehicle. However, he testified that Cpl. Hutton did so in his third radio announcement. According to Cst. Benedet, Cpl. Hutton first announced, over the radio, that he had observed a drug transaction and was going to arrest the buyer. He then came back on the radio to announce he had arrested the buyer and found drugs on him.

Finally, it is in his third radio announcement that Cpl. Hutton directed that the vehicle be pulled over. While Cst. Benedet testified to having an independent recollection of hearing three separate radio announcements from Cpl. Hutton, only the first announcement made its way into his Supplementary Occurrence Report written on September 8, 2020. The only other radio announcement he mentions in that report is the one confirming that the vehicle has been stopped.

That announcement is not attributed to any officer. [ 108 ] The contradictions in the officers’ testimonies therefore extend not only to the number of Cpl. Hutton’s radio announcement(

s) prior to the arrests of the applicants, but also to their content. [ 109 ] In this case, there is no recording of the officers’ radio communications prior to the arrests. The recording would have provided reliable evidence against which to assess the credibility and reliability of the officers’ testimonies, and most importantly, of Cpl.

Hutton’s testimony with respect to his observations, the timing and content of his radio communication(s), and, ultimately, his grounds for arrest. [ 110 ] As a result, the evidence I have before me to assess the grounds for arrest is the testimonies of officers contradicting one another on several important aspects of what they heard and communicated to others prior to the arrests of the applicants. I am of the view that these many contradictions regarding not only the number of radio communications but also their substance negatively impact the overall credibility and reliability of the police’s evidence.

Most importantly, these contradictions negatively impact the overall credibility and reliability of Cpl. Hutton’s testimony on important points, such as: whether he communicated over the radio that he had identified Mr. Asuchak as the driver of the vehicle, whereas he testified under oath that he was unable to identify the driver at the time he made his observations; and whether he directed the other officers to stop the vehicle before he arrested the buyer, which he firmly denied under oath. [ 111 ] I am also somewhat skeptical that Cpl.

Hutton would have been able to observe every minute detail of the suspected buyer’s movements – between the moment he exited the building on 5 th Avenue and the moment Cpl. Hutton decided to arrest him, including the way both his hands were positioned (open, close or holding something) at different times, while Cpl. Hutton was sitting in his car with the windows closed approximately half a block away from the suspected buyer (which Cpl. Hutton approximates to 30 metres) or somewhat less, when the suspected buyer approached the car.

I note that the approximate distance from the suspected buyer is the only information Cpl. Hutton provided in his testimony regarding the location of his vehicle when he made the observations. I also note that Cpl. Hutton testified to making those observations without the help of binoculars or other tool that may have given him a closer view of what was happening. [ 112 ] Overall, the lack of reliability and credibility of the police evidence is such that I find myself unable to accept and rely on Cpl.

Hutton’s evidence regarding the observations (and the timing of those observations) he testified to making prior to the arrests of the applicants, which form the basis of the grounds for arrest. Considering the lack of reliable evidence before me, I find that the arresting officers, and more particularly Cpl. Hutton, did not, subjectively and objectively, have reasonable grounds to believe that the applicants had committed or were about to commit the offences of trafficking in cocaine or possession for the purpose of trafficking in cocaine when they arrested them.

[113] As a result, I find that the arrests of the applicants were unlawful and in violation of their rights to not be arbitrarily detainedpursuant to s. 9 of the Charter. 2. Were the police’s warrantless searches of the applicants’ persons, of their surroundings and of the vehicle they occupied,unreasonable and contrary to s. 8 of the Charter? [114] Following the arrests of the applicants, the RCMP officers conducted a warrantless search of the applicants, their surroundings,and the vehicle they occupied at the time of their arrests.

While the legality of the searches conducted by the officers is at issue in thiscase, what the police actually found and seized is not in dispute. Positions of the parties [115] The applicants submit that all the searches conducted incidental to or following their unlawful arrests are unreasonable and inviolation of their s. 8 Charter right. [116] The Crown submits that the search of each applicant and any property in which they claim a privacy interest were lawful as theywere incidental to valid and lawful arrests, and they were carried out in a reasonable manner. Facts [117] Shortly after arresting Mr.

Asuchak, and before leaving him in the custody of Cst. Benedet, Cst. Newbury performed a cursorypat-down search on Mr. Asuchak, for safety reasons, prior to his transport to the WCC. Cst. Newbury found a wallet containing a bundleof cash ($4,635) from the front left pocket of Mr. Asuchak’s pants. He also found a crack pipe on Mr. Asuchak. [118] After Ms. Tizya exited the police vehicle, Cst. Alice Cote, who transported Ms. Tizya to the WCC and conducted her strip search,seized 4.74 grams of cocaine (a substance listed in

Schedule 1 of the CDSA) wrapped in transparent plastic on the back seat of the policevehicle where Ms. Tizya was seated during her transport to the WCC. A video showing an empty back seat prior to Ms. Tizya’s arrival,Ms. Tizya wiggling around during her transport, and a white substance wrapped in transparent plastic appearing on the back seat asMs. Tizya exits the vehicle, was filed as an exhibit on the application. [119] In addition, Cst. Cote seized a small quantity (3.4 grams) of fentanyl (a substance listed in

Schedule 1 of the CDSA) that fell fromMs. Tizya’s person during the strip search. [120] Cpl. Hutton found a small quantity (0.73 gram) of crack cocaine in one of the pockets of Ms. Tizya’s jeans that Cst. Cote hadseized during the strip search because they were covered with a white substance she believed to be cocaine. Cst. Cote also found onepiece of suspected crack cocaine (0.18 gram) in Ms. Tizya’s jacket. [121] Cst.

Benedet took the applicants’ fingerprints after their arrests. [122] In addition, the police seized the Chevrolet Cobalt at the time of the applicants’ arrests and transported it to the RCMPdetachment to be searched. The vehicle was moved prior to the search being conducted due to safety concerns arising from constanttraffic on Two Mill Hill. A video of the interior of the vehicle was made prior to the search and filed as an exhibit on the application. [123] Cpl. Hutton seized a cell phone that was ringing from the Chevrolet Cobalt before it was towed to the RCMP. Cpl.

Huttonanswered three phone calls before turning the cell phone off. He testified to the content of those phone calls on this application. [124] Also, in the Chevrolet Cobalt, the officers found and seized cocaine (approximately 20 grams), small quantities of codeine (10tablets) and diazepam (18 tablets), as well as two cell phones, and drug paraphernalia. Codeine is listed in

Schedule 1 and diazepam inSchedule 4 of the CDSA. [125] All the items found and seized by the RCMP as a result of the searches incidental to arrest were properly documented.Photographs of the items found were taken and filed on this application. The substances seized were weighed and samples sent foranalysis. The certificates of analyst confirming the nature of the substances seized were filed on this application. Analysis [126] A warrantless search is presumptively unreasonable. In such a case, it is incumbent on the Crown to prove on a balance ofprobabilities that the search was reasonable. A search will be reasonable if it meets all of the following three conditions: (

i) it is authorized by law; (ii) the law itself is reasonable; and (iii) the manner in which the search is carried out is reasonable (R v Collins, (SCC), [1987] 1 SCR 265 at 278; R vGolden, 2001 SCC 83, at para. 44). [127] In this case, the searches of the applicants’ persons, of their surroundings, and of the Chevrolet Cobalt were conducted by theofficers without a warrant.

The Crown relies on the officers’ common law power of search incidental to arrest as the legal authority forthe searches. [128] However, for a search incidental to arrest to be authorized by law for the purpose of s. 8 of the Charter, the arrest itself must belawful. A search incidental to an unlawful arrest is unreasonable and in violation of s. 8 of the Charter (R v Caslake, (SCC), [1998] 1 SCR 51 at para. 13, and R v Stillman, (SCC), [1997] 1 SCR 607 at para. 27).

[ 129 ] As I have found that the arrests of the applicants were unlawful, it follows that all the searches conducted incidental to their unlawful arrests are unreasonable, including the strip searches, and in breach of the applicants’ right pursuant to s. 8 of the Charter . 3. Were the utterances made by Ms. Tizya after her arrest obtained by the police contrary to her right to counsel pursuant to s. 10(

b) of the Charter ? [ 130 ] After Ms. Tizya’s arrest but prior to speaking with counsel, as she had requested, Ms. Tizya made a number of utterances to Cst. Gillis and Cst. Cote. Ms. Tizya contends that those utterances were in response to police questioning that was in violation of her right to retain and instruct counsel without delay pursuant to s. 10(

b) of the Charter . Facts [ 131 ] Cst. Gillis testified that, after he told Ms. Tizya she was under arrest, she exited the passenger side of the suspect vehicle. He then placed her in handcuffs and took her to his unmarked police vehicle, which was parked directly behind the Chevrolet Cobalt. Cst. Gillis, who was wearing his police vest, reiterated that she was under arrest for possession for the purpose of trafficking in cocaine and trafficking in cocaine, and informed her of her right to counsel and right to remain silent. He cautioned her that everything she said could be used in evidence against her. Ms.

Tizya indicated that she understood and wished to speak to a lawyer whose name she provided to Cst. Gillis. [ 132 ] Cst. Gillis testified that he then had a general conversation with Ms. Tizya. He testified that he asked her why she thought she had been pulled over by the police. Ms. Tizya mentioned something to the effect that she was in the wrong car with the wrong person. She added that she was a user not a seller. Cst. Gillis testified that they talked about her family after that. [ 133 ] Approximately ten minutes after Cst. Gillis read Ms. Tizya her rights, Cst. Cote arrived to transport Ms.

Tizya to the WCC. Cst. Gillis informed Cst. Cote that Ms. Tizya had been placed under arrest, summarily searched, and read her Charter rights and police caution. Cst. Gillis gave Cst. Cote the name of the lawyer Ms. Tizya wanted to contact. [ 134 ] Cst. Gillis testified that he did not have any further dealings with Ms. Tizya after she left with Cst. Cote. According to Cst. Gillis, Ms. Tizya was cooperative throughout her arrest. [ 135 ] In cross-examination, Cst. Gillis stated that he thought his questioning of Ms. Tizya was appropriate.

He did not believe there was anything wrong with his conversation and questioning of Ms. Tizya after she indicated a desire to speak with counsel. [ 136 ] Cst. Cote testified that she travelled to the scene of the applicants’ arrests in a marked police vehicle after Cpl. Hutton requested that she assist with the transport of a female accused. She arrived at the bottom of Two Mile Hill at approximately 8:55 p.m. Upon arrival, she spoke with Cst. Gillis and Cst. Newbury. Cst.

Gillis told her that the accused’s name was Helen; that she had been arrested for possession for the purpose of trafficking or trafficking, chartered and warned; and that Cst. Cote would have to further search her at the APU. Cst. Cote did not recall what, if anything, Cst. Newbury said at the time. Cst. Cote testified that Cst. Gillis told her that Ms. Tizya wanted to speak with a lawyer. Cst. Cote stated that she intended to provide Ms. Tizya with the opportunity to speak with counsel at the APU. Cst. Cote did not recall whether Ms. Tizya was handcuffed when she arrived at the scene of the arrests. [ 137 ] Cst.

Cote testified to performing a quick pat-down search of Ms. Tizya’s pockets roadside for officer safety prior to transporting her to the WCC. While conducting the pat-down search, Cst. Cote asked Ms. Tizya if she had any drugs on her. Cst. Cote did not testify to any answer, or lack thereof, Ms. Tizya may have given her. Cst. Cote did not locate anything on Ms. Tizya at the time. [ 138 ] Cst. Gillis searched the back seat of Cst. Cote’s police vehicle and confirmed it was empty. Cst. Cote and Cst. Gillis then escorted Ms. Tizya to the back of the police vehicle. [ 139 ] A video from Cst.

Cote’s police vehicle was entered as an exhibit on the application. The video shows that the back of the police vehicle was empty prior to Ms. Tizya entering the vehicle. The video then depicts Ms. Tizya’s movements during her transport. She is seen wiggling around and successfully removing one of her hands from the handcuffs and putting it under her clothing before replacing it back in the handcuffs during her transport to the WCC, which only took a few minutes. Cst. Cote testified that she did not recall having any general conversation with Ms. Tizya while transporting her to the WCC. The video then depicts Ms.

Tizya exiting the vehicle with the help of Cst. Cote and an APU guard, upon arrival at the garage of the APU. The video also shows a white substance wrapped in transparent plastic appearing behind Ms. Tizya as she exits the vehicle. Finally, the vehicle depicts Cst. Cote showing the wrapped substance to Ms. Tizya and asking her about it. Cst. Cote testified that she believed the white substance was drugs. Cst. Cote asked Ms. Tizya what it was, where she had it on her body, and if she had anything else on her. Cst. Cote testified that she asked that question to Ms. Tizya because she did not want Ms.

Tizya to take any drugs with her inside the APU. Cst. Cote added that the substance was not well wrapped and if Ms. Tizya was concealing something similar inside her body she could overdose. Cst. Cote did not testify to any response Ms. Tizya may have given her at the time. However, the interaction between Ms. Tizya and Cst. Cote can be heard on the video. [ 140 ] Cst. Cote testified that when she arrived at the APU, she noticed that Ms. Tizya’s blue jeans had white powder smeared on her right leg coming from her pocket. Cst. Cote testified that she drew Ms.

Tizya’s attention to the white powder she had observed and asked her what it was. Again, Cst. Cote did not testify to the answer Ms. Tizya may have given her at the time. Cst. Cote testified to then performing a strip search on Ms. Tizya in a separate area of the APU and seizing her jeans, underwear, and a quantity of fentanyl that fell off Ms. Tizya during that strip search. Cst. Cote testified that Ms. Tizya was provided with a new pair of pants before she was brought back to the general area of the APU where she was lodged in cell before she spoke to counsel. Cst. Cote testified that she did not have

any further contact or dealings with Ms. Tizya after lodging her in cell and that Cpl. Hutton is the one who facilitated Ms. Tizya’s right tocounsel after the strip search. Cst. Cote did not testify to any other question she may have asked Ms. Tizya after that, including during thestrip search. [141] Cst. Newbury testified to the reasons that motivated the officers’ decision to wait until the applicants were transported to theWCC to give them an opportunity to speak with counsel. Cst. Newbury testified that Mr.

Asuchak was not afforded the opportunity tospeak with counsel roadside because the arrests had taken place on a busy road and there were concerns for the safety of those involvedand of the public if they remained on the road. The goal was to escort Mr. Asuchak to the WCC where he would be provided with anopportunity to speak with counsel. [142] Mr. Asuchak was transported to the WCC in a marked police vehicle by Cst. Simon Roy shortly after Cst. Roy’s arrival on sceneat approximately 8:55 p.m. Prior to departing for the WCC, Cst. Roy warned Mr.

Asuchak that anything he would say could be used inevidence in court against him. Cst. Roy’s evidence was admitted through an Agreed Statement of Facts. [143] The evidence also reveals that Mr. Asuchak was not given the opportunity to speak with counsel until he was strip searched at theWCC. Positions of the parties [144] Counsel for Ms. Tizya submits that the utterances she made after her arrest were in direct response to Cst. Gillis’ and Cst. Cote’squestions. Counsel for Ms. Tizya submits that Cst. Gillis and Cst. Cote violated Ms.

Tizya’s right to counsel by eliciting evidence fromher prior to allowing her to speak with counsel after her arrest, contrary to s. 10(

b) of the Charter. [145] Crown Counsel submits that the RCMP officers involved in the arrests of the applicants immediately advised each of them oftheir right to counsel in accordance with s. 10(

b) of the Charter and ensured that they understood. Crown counsel submits that any delayin the implementation of Ms. Tizya’s right to counsel was reasonable in the circumstances of this case. Crown counsel submits that thereis no evidence that any officers elicited evidence from Ms. Tizya until she had had a reasonable opportunity to speak with counsel. Analysis [146] In R v Willier, 2010 SCC 37 at para. 28, McLachlin C.J., as she then was, and Charron J., summarized the purpose of s. 10(

b) ofthe Charter as follows: … [it] provides detainees with an opportunity to contact counsel in circumstances where they are deprived of liberty and in the control ofthe state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy. The purpose of s. 10(

b) is to providedetainees an opportunity to mitigate this legal disadvantage. [147] In addition, the right to silence protected by s. 7 of the Charter and the right to counsel protected by s. 10(

b) of the Charter workhand in hand “to ensure that a suspect is able to make a choice to speak to the police investigators that is both free and informed” (R vSinclair, 2010 SCC 35, at para. 25). [148]

Section 10(

b) of the Charter imposes three positive duties on police officers that arise immediately upon detention or arrest: (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). [R v Bartle, (SCC), [1994] 3 SCR 173 at 192] [149] Ms.

Tizya has the onus of proving on a balance of probabilities that her right to counsel has been violated. [150] Upon arrest, Ms. Tizya was informed of the reasons for her arrest. She was also informed of her right to silence as well as herright to retain and instruct counsel, including the existence and availability of legal aid and duty counsel, very shortly after her arrest, and,in any event without delay. The evidence also reveals that Ms.

Tizya understood her situation and her rights, and that she requested tospeak with counsel immediately after she was informed of her Charter rights. [151] I accept the officers’ explanation that they had determined it would be safer for all involved to transport the applicants to theWCC, which, I note, was just a few minutes away, where they could speak with counsel in private, rather than trying to accommodate aprivate conversation in a covert police vehicle roadside – where they were blocking a lane of traffic on a busy road with steady traffic.

Ialso acknowledge that the applicants remained roadside for a relatively short period of time in the circumstances, approximately 10minutes, in covert police cars, until regular RCMP vehicles arrived to transport them to the WCC. The video from Cst. Cote’s policevehicle reveals that the actual transport of Ms. Tizya from Two Mile Hill to the WCC only took a few minutes. I accept that, at somepoint after the applicants’ arrests, Cpl. Hutton found a cell phone in the Chevrolet Cobalt, while it was still roadside at the bottom ofTwo Mill Hill.

This cell phone could have been used to provide the applicants with the opportunity to speak with counsel. However, I am

satisfied that based on the safety concerns raised by the location of the arrests, the fact that the first police vehicles on site were covertvehicles, and the short period of time involved in transporting the applicants to the WCC, the decision to provide the applicants with theopportunity to speak with counsel at the APU meets the requirement that they be afforded the opportunity to speak with counsel withoutdelay. As the statements at issue were made between the time Ms.

Tizya was arrested and at or around the time of her arrival at the APU,it is not necessary for me to comment on the decision of the officers to wait until after they had conducted the strip search to allow theapplicants to speak with counsel. [152] In any event, the real issue raised by Ms.

Tizya in relation to the utterances she made concerns the officers’ duty to refrain fromeliciting evidence from her until she had had a reasonable opportunity to speak with counsel. [153] It is well established that police officers must ceased questioning or otherwise refrain from eliciting evidence from a detaineeuntil they have been provided with a reasonable opportunity to speak with counsel, if they request to do so, unless there are urgentcircumstances that do not exist here (R v Manninen, (SCC), [1987] 1 SCR 1233 (“Manninen”)). [154] Here, as acknowledged by Cst. Gillis, Ms.

Tizya clearly asserted her right to speak with counsel after her arrest. She even gavehim the name of counsel with whom she wanted to speak. Therefore, the police had a duty to refrain from questioning Ms. Tizya until shehad been afforded a reasonable opportunity to speak with counsel. [155] However, almost immediately after Ms. Tizya expressed a desire to speak with counsel, and prior to giving her the opportunity todo so, Cst. Gillis initiated what he described as a general conversation with her, while waiting for her transport to the WCC. The firstquestion he asked, which Ms.

Tizya answered, was directly related to the reasons for her arrest and the police investigation. There is nodoubt that Cst. Gillis’ initial question was aimed at gathering inculpatory information from Ms. Tizya. This constitutes a clear breach ofCst. Gillis’ duty to refrain from questioning Ms. Tizya until she had been given a reasonable opportunity to speak with counsel, and aclear infringement of s. 10(

b) of the Charter. This is not a case where it could be argued that Ms. Tizya waived her right to counsel byanswering Cst. Gillis’ question (see Manninen at 1244). [156] Cst. Cote’s later questioning of Ms. Tizya also infringed her right to counsel pursuant to s. 10(

b) of the Charter. Ms. Tizya was inthe custody of Cst. Cote when Cst. Cote performed a pat-down search on her and asked her whether she had drugs on her. In addition,the evidence reveals that Cst. Cote knew Ms. Tizya wanted to speak with counsel and had not been given to opportunity to exercise herright to counsel by that point. [157] In light of the evidence adduced on this application, it cannot be said that Cst. Cote’s questioning of Ms. Tizya, as to whether shehad drugs on her at the time of performing a pat-down search on her roadside, was related to concerns for the officer’s safety.

Again, Iam of the view that the aim was to gather inculpatory information from Ms. Tizya and further the police investigation. [158] While there may well have been safety concerns arising out of Cst. Cote’s discovery of what she believed was drugs on the backseat of her police vehicle – where Ms. Tizya was seated – upon arrival at the WCC; and while Cst. Cote’s discovery may have providedgrounds to further search Ms. Tizya’s person; there were no urgent circumstances that justified questioning Ms. Tizya about the nature ofthat substance, where it came from, and if Ms.

Tizya’s had more drugs concealed on her, when she was still waiting to speak withcounsel. [159] While the evidence on the Charter application does not reveal whether Ms. Tizya answered all of Cst. Cote’s questions, I am ofthe view that, taken together, and in the context of the ongoing investigation, Cst. Cote’s questions were aimed at eliciting inculpatoryinformation from Ms. Tizya. [160] Therefore, I find that the above-mentioned questioning by Cst. Gillis and Cst. Cote infringed Ms. Tizya’s right to counsel unders. 10(

b) of the Charter. 4. Did the strip search of Ms. Tizya violate her Charter rights under ss. 8 and 10(

b) of the Charter? [161] Considering my findings below regarding the combined effects of the violations to the applicants’ ss. 8, 9 and 10(

b) Charterrights on the admissibility of the evidence gathered by the police as a result of the unlawful arrests of the applicants, I do not intend toaddress the specific issues raised by Ms. Tizya under ss. 8 and 10(

b) of the Charter with respect to her strip search. 5. Should the evidence obtained in breach of ss. 8, 9 and 10(

b) of the Charter be excluded pursuant to s. 24(2) of the Charter? Positions of the Parties [162] The applicants submit that the violation of their rights pursuant to ss. 8, 9 and 10(b) (for Ms. Tizya) warrant an order excludingthe evidence pursuant to s. 24(2) of the Charter. [163] The applicants submit that the violation of their Charter rights are serious and led to a lengthy period of detention. [164] Ms. Tizya also submits that the police’s attempts to elicit evidence from her prior to giving her the opportunity to speak withcounsel elevate the overall seriousness of the ss. 8 and 9 Charter breaches in her case. Ms. Tizya concedes that the s. 10(

b) Charterbreach resulting from Cst. Cote’s and Cst. Gillis’ questioning does not amount to bad faith but, instead, appears to be due to lack oftraining. She submits that lack of training is still a concern that must be factored into the analysis. [165] The applicants submit that the police’s behaviour undermines the interests that the Charter rights at issue seek to protect.

[ 166 ] The applicants acknowledge that society has an interest in the adjudication of trafficking charges and that the evidence seized after their arrests is reliable and important to the Crown’s case. However, the applicants submit that it is equally important to have a justice system where the police learn, obey, and respect Charter rights. [ 167 ] The applicants submit that the seriousness of the police conduct combined with the strong impact of the breaches on their Charter -protected interests make an overwhelming case for the exclusion of the evidence.

The applicants submit that the admission of the evidence obtained as a result of the Charter breaches would bring the administration of justice into disrepute. [ 168 ]

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