Her Majesty the Queen - v. -, 2014 SKPC 148

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 148 Date: July 15, 2014 Information: 24399502 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - Richard Cornelis Mooiman and Shane Bela Zahar Appearing: B. Slobodian For the Crown J. Watson For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The two accused stand charged jointly that they did, on or about May 18, 2011 possess cannabis marihuana in an amount not exceeding three kilograms, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act .

[ 2 ] The charges arose as a result of a traffic stop on Highway #7 west of Kindersley on May 18, 2011. The investigating officer initially noted the subject vehicle to be approaching at what appeared to be a high rate of speed and then observed the front end to dip quickly indicating sudden braking. After making the initial stop, the two accused were detained after the officer noted certain indices that aroused his suspicion that the pair may be transporting drugs.

A subsequent search with the aid of his sniffer dog uncovered 1.9 pounds of packaged cannabis marihuana concealed in a duffle bag. [ 3 ] The trial of the matter proceeded on April 1, 2014 by way of two voir dires concerning alleged Charter breaches relating to trial delay, unreasonable search and seizure and arbitrary detention. The Defence called one of the accused, Shane Zahar and in addition filed the Affidavit of Solicitor, Jay D. Watson, on the issue relating to delay.

The Crown called no evidence on this matter however called two witnesses on the second voir dire , the investigating officer Constable Bruce Halbauer and Constable Tim Stewart, who assisted in the arrest. The Crown also filed by consent inter alia the expert opinion evidence of Constable Kory Davidsen of the Saskatoon Integrated Drug Unit regarding the quantity and purpose of the possession of the seized cannabis.

The Defence called no evidence on this voir dire . [ 4 ] At the conclusion of the voir dires , Defence counsel advised that no evidence would be called on the trial proper and that if the Charter arguments were not accepted on behalf of the two accused, it was conceded that the Crown had proven all other elements of the offence as charged against both. II ISSUES [ 5 ] The following issues were placed before the Court for determination:

a) whether the period between the laying of the charge, June 2, 2011, and the date of trial April 1, 2014, amounted to unreasonable delay pursuant to s. 11(

b) of the Charter , and if so, whether the charges should be judicially stayed pursuant to s. 24(1) of the Charter ;

b) whether the police breached the accuseds’ s. 9 Charter protected rights to be free from arbitrary detention, specifically, did Constable Halbauer have the requisite reasonable and probable grounds to detain Mr. Zahar and Mr. Mooiman?

c) whether the police breached the accuseds’ s. 9 Charter protected rights to be free from arbitrary arrest, specifically, did Constable Halbauer have the requisite reasonable and probable grounds to arrest the driver, Mr. Zahar for possession of a controlled substance?

d) whether the police breached the accuseds’ s. 8 Charter protected rights to be free from unreasonable search and seizure, specifically, was Constable Halbauer justified in searching the vehicle incident to arrest when only the passenger, Mr. Mooiman, admitted to possession of marihuana? III DETERMINATION Delay [ 6 ] The two accused were stopped and arrested on May 18, 2011. A formal Information was drawn June 2, 2011 charging possession for the purpose of trafficking against both. [ 7 ] The first appearance of the two accused was June 26, 2011 in Kindersley.

Both appeared in person without legal counsel and entered pleas of not guilty (the Crown having proceeded summarily). The trial date was set accordingly for February 22, 2012 in Kindersley. [ 8 ] Several delays of the trial were occasioned thereafter and ultimately it was heard on April 1, 2014, some 34 months from the

date the Information was sworn on June 2, 2011. [ 9 ] Mr. Justice Sopinka in R. v. Morin [1] established general guidelines for

summary conviction matters to be completed in roughly 8 to 10 months from date of charge to trial. [ 10 ] Since the trial of this matter exceeded this guideline timeframe, the Court must now examine the entire length of time to determine the reasonableness of the delay(s), and if unreasonable, whether a judicial stay should enter as an appropriate remedy. [2] [ 11 ] As a starting point, the timeframe between the charge being laid of June 2, 2011 and the date selected for trial of February 22, 2012, was a period of roughly eight and three-quarter months, well within the “ Morin guidelines”.

Accordingly, delay to this point was reasonable and appropriate. [ 12 ] The trial did not proceed on February 22, 2012 and was adjourned to July 18, 2012, a period of roughly five months. The Court must examine then the purpose of such adjournment and to whom such delay should be attributed, if at all. [ 13 ] The chronology leading up to the adjournment was as follows:

a) August 23, 2011 - Defence counsel J. Watson appears in court and goes on record for both accused and requests disclosure;

b) the matter was adjourned to September 6, 2011, to be spoken to and subsequently to September 27, 2011 to be spoken to;

c) in the interim, initial Crown disclosure was made to Defence counsel on September 8, 2011;

d) on September 27, 2011, the matter was spoken to by both counsel in open court and the trial date of February 22, 2012 was confirmed;

e) on February 9, 2012, Defence counsel advised Crown that disclosure was not complete in that he did not have the “PIP” report referenced in the General Occurrence Report. At the trial of this matter it was explained in evidence that PIP referred to “Police Information Portal” similar to a CPIC inquiry. The “report” consisted of a screen saver shot of what came up on the in-car computer at roadside in relation to the two accused. Defence counsel was candid in stating that he was not aware precisely what a PIP was but nonetheless felt entitled to it under normal disclosure rules.

Pursuant to Defence counsel’s request, Crown counsel advised he would endeavour to procure the PIP report as it was not in the Crown’s possession; [3]

f) On February 13, 2012, Defence counsel served a new Charter notice on the Crown;

g) February 14, 2012 - Crown requested an adjournment of the trial which Defence consented to but did not waive delay. A new date was selected for the trial of Tuesday, July 18, 2012, in Kindersley was agreed to. [ 14 ] To whom then should this five month delay be attributed? Defence counsel maintains that because it is within the parameters of Crown disclosure all of the delay falls at the feet of the Crown. [ 15 ] The Court however is unable to ascribe to this position for the following reasons:

a) disclosure was initially provided to Defence counsel September 8, 2011. Two and one-half weeks later on September 27, 2011, the trial date of February 22, 2012 was confirmed by both counsel in open court;

b) the PIP was referenced in the General Occurrence Report provided to Defence counsel so awareness of its existence would have been known from the outset. No mention was made to Crown counsel until roughly four and one-half months later, on February 9, 2012, just two weeks prior to the trial date, that Defence required information regarding the PIP;

c) a new Charter notice was served on the Crown February 13, 2012, which in itself would likely have occasioned an adjournment, since this was insufficient notice prior to the stated trial date of February 22, 2012;

d) as indicated in the evidence, PIP stands for Police Information Portal which is a data base similar, but somewhat broader, than CPIC which can be utilised at roadside to better determine the background of individual(

s) being dealt with. As such, it is not a report or form that can be generated, nor from all appearances, is routinely generated given that neither Crown nor Defence were aware precisely of what it was. Rather, it is obtained by way of screen capture from the in-car computer.

In this case, the entirety of the “report” was as follows: SUBJECT: MOOIMAN REG OWNER ZZZ PRODUCTION - CANNABIS CHARGED TRAFFICK - CANNABIS RESNN 300G#U SUBJECT: ZAHAR General Information ZAHAR SHANE BELA MALE, Born on 1972-June - 28 SUSP CHGBLE POSSESSION - CANNABIS 30G#UNDER OTHER ZZZPRODUCTION CANNABIS [ 16 ] Although the resulting trial delay was occasioned by the request for the PIP information and Defence did not specifically waive the time to trial, it would be unfair in the circumstances to simply attribute this to the Crown for calculating s. 11(

b) delay. Rather, for the reasons stated, it must be considered as inherent delay, [4] counting as neutral i.e. neither for nor against either party [5] , balancing the duty of the Crown to disclose with the duty on Defence to act with due diligence where the existence of the subject disclosure is known (See R. v. McQuaid (sub. nom. R. v.

Dixon ) [6] ). [ 17 ] The next delay phase occurred when Defence counsel requested an adjournment of the July 18, 2012 trial to January 16, 2013 which was consented to by the Crown and for which the Defence waived the approximate six month delay. [ 18 ] Just prior to the new trial date of January 16, 2013 Defence and Crown entered into plea resolution discussions and accordingly the trial was adjourned by consent on the trial date to March 19, 2013 to be spoken to.

[ 19 ] No resolution was ultimately achieved requiring yet another trial date to be selected of July 30, 2013 in Kindersley. [ 20 ] The overall delay then for plea discussions and adjourning to the new trial date was approximately six and one-half months.

Defence counsel takes the position that all of this period must be attributed to the Crown because Defence did not specifically waive this time period. [ 21 ] The Court does not agree however that the Crown must bear responsibility solely for this delay for the reason that the January 16, 2013 trial was adjourned in apparent good faith by both parties for the purpose of plea negotiations. The resulting necessity of a new trial date only came about once those discussions failed.

In such circumstances, both parties bear responsibility for the resulting delay which the Court considers to be inherent delay and thereby neutral for calculation of overall delay. [ 22 ] On July 30, 2013 the trial was adjourned yet again - this time at the Crown’s sole request due to witness unavailability.

The new date selected was then December 17, 2013, a period of roughly four and one-half months for which the Crown bears responsibility. [ 23 ] The December 17, 2013 trial was then adjourned one final time to April 1, 2014 at the request of Defence due to client illness, which delay was waived - a period of approximately three and one-half months. [ 24 ] Accordingly, taking into account otherwise the periods of inherent delay and Defence waiver, the Court determines that the portion of the overall delay beyond the original institutional delay of eight and three-quarter months to the first trial date attributable to the Crown, is four and one-half months. [ 25 ] Mr.

Zahar testified that he has not been able to work as a realtor since the laying of the charge causing significant loss of income. This is as a result then not of the delay but because of the fact that the charge was laid.

Although more losses are occasioned as the matter is prolonged, only four and one-half months can be attributed to the Crown in any event, as found by the Court. [ 26 ] The Court also notes that the only release conditions for both accused were to keep the peace and be of good behaviour and report to the Court when required to do so, which are the least restrictive conditions that could have been applied to release. [ 27 ] In all of the circumstances, the Defendants have not established unreasonable delay on a balance of probability entitling relief pursuant to s. 11(

b) of the Charter , by reason of the finding of only four and one-half months delay attributable to the Crown and the lack of actual prejudice occasioned by such delay. Unreasonable Search and Seizure and Arbitrary Detention [ 28 ] On May 18, 2011Constable Halbauer was on routine traffic patrol in the Kindersley district, accompanied by his sniffer dog. Another unit was doing complementary patrol in the vicinity manned by Constable Stewart and Corporal Walkden. [ 29 ] Constable Halbauer was at this point working out of the Swift Current detachment in the Traffic Unit.

His main duties related to traffic and Criminal Code enforcement which included investigation of narcotic highway transport. [ 30 ] Constable Halbauer was well experienced and trained in the area of drug transport investigation as evidenced in his testimony: a) 2003 - two day Pipeline Convoy course which was a heightened officer awareness program teaching the participant to look beyond the

traffic stop to see if there was anything further occurring. This included observational indicators of the individual and the vehicle including what compartments may be utilised inside for drug transport;

b) Desert Snow course, level I, II, and III. These are week long courses offered in the United States. These are very similar to the Pipeline Convoy course with the big difference being that there is a more “hands on” involvement concerning vehicle searches looking for concealed contraband compartments where actual vehicles where drugs had been located were utilised. As well, the individual indicators were emphasized in these courses;

c) Conference in New Orleans involving current trends of highway law enforcement;

d) Twelve day Pipeline Convoy instructor course leading to his instructor designation. From this Constable Halbauer has in fact been able to teach several two day courses;

e) Narcotic dog handler course with “Nugget” his specially trained canine;

f) RCMP Drug Recognition Enforcement training;

g) Continuous highway patrol from 2006 - 2011 involving many highway traffic stops including numerous CDSA investigations which he estimated to range anywhere from 100 to 250 in total. These included smaller drug enforcement matters as well as larger multi-pound seizures. [ 31 ] On the offence date, Constable Halbauer was stopped at roadside speaking to the other officers involved that day in traffic enforcement when he observed a vehicle approach at what appeared to be a high rate of speed and then abruptly dip in the front end denoting sudden braking.

When it passed his vehicle he clocked it on radar at 98 km/hr, so was satisfied it had been exceeding the posted speed limit of 100 km/hr when it came into view. He then initiated a s. 209.1 HTA stop to check vehicle fitness, driver’s license, registration and sobriety of the driver. [ 32 ] Upon approaching the subject vehicle, Constable Halbauer observed a male driver and male front seat passenger. He went to the passenger side and engaged the occupants in conversation. At this point he obtained information and made certain observations:

a) the passenger had a freshly lit cigarette in his mouth;

b) the driver indicated he had been travelling from Saskatoon going to Richmond, BC;

c) both individuals appeared very nervous - giggling and moving a lot;

d) fast food wrappers were evident on the floor boards. [ 33 ] Constable Halbauer explained that two things in particular stuck out to him at this point which he was alerted to by his training and experience. First, generally cigarettes are discarded when people are stopped, not freshly lit. Cigarette smoke otherwise can be used to mask odours of alcohol or narcotics in the vehicle. Second, both individuals by their mannerisms appeared very nervous to him. The fact that the passenger seemed equally nervous as the driver was unusual since the passenger in a traffic stop typically faces no jeopardy whatsoever.

[ 34 ] As a result, Constable Halbauer decided to run checks on both individuals through CPIC and PIP inquiries. The CPIC query showed no criminal record entries however the PIP (Police Information Portal) screen information indicated that both persons had criminal drug entries ( infra at para. 15). Although not convictions, this information demonstrated a level of previous involvement in drug activity to Constable Halbauer, he testified. [ 35 ] The constellation of all these factors prompted Constable Halbauer to detain both and conduct further investigation concerning possible drug possession.

Accordingly, the driver Zahar was placed in his patrol vehicle for questioning. Constable Halbauer gave rights and warning to Mr. Zahar and then questioned him as to why he had been in Saskatchewan and whether he had any alcohol, tobacco or large amounts of currency, all of which he denied. When asked specifically if he was carrying any drugs Mr. Zahar denied this as well. [ 36 ] Constable Halbauer then attended upon Mr. Mooiman outside the patrol vehicle. While questioning him he informed that he had a sniffer dog which he intended to employ and if he did so, would the dog indicate the presence of any narcotics?

At this point Mr. Mooiman reached in his pocket and retrieved a plastic bag which appeared to Constable Halbauer to contain cannabis marihuana. Constable Halbauer asked Mr. Mooiman if the driver knew of this to which he replied that he did. [ 37 ] Mr. Mooiman was then arrested for possession of a narcotic as was Mr. Zahar. Constable Halbauer and Constable Stewart then utilised the sniffer dog and conducted a search of the truck incident to arrest. A duffle bag was subsequently located under the truck box containing packaged marihuana totalling 1.9 pounds.

Reasonable Suspicion to Detain [ 38 ] The right to detain for criminal investigation was articulated by the Supreme Court in R.v. Mann [7] holding that such investigative detentions must be based on reasonable grounds to suspect criminal activity taking an objective view of the totality of the circumstances as presented. [ 39 ] Further guidance concerning reasonable suspicion was provided by the Supreme Court in the decisions R. v. Chehill [8] and R. v. McKenzie [9] which held that one must determine in all the circumstances whether a “possibility” not a “probability” exists of criminal behaviour.

Our Court of Appeal in R. v. Yates [10] referenced the Manitoba Court of Appeal decision in R. v. Mitchell [11] adopting the statement from R. v.

Chipchar [12] “ . . . thus, reasonable suspicion requires only that the belief be one of the possible conclusions based on the supporting facts, not a probability.” [ 40 ] Chehill at para. 47 also addresses the issue of the investigating officer’s training and experience: [47] Evidence as to the specific nature and extent of such experience and training is required so that the Court can make an objective assessment of the probative link between the constellation of factors relied on by the police and criminality.

The more general the constellation relied on by the police, the more there will be a need for specific evidence regarding police experience and training. To the extent the specific evidence of the investigating officer’s experience and training supports the link the Crown asks the Court to draw, the more compelling that link will be. [ 41 ] In the present case, Constable Halbauer had extensive training and experience ( supra at para. 31) concerning highway narcotic transport.

The cumulative indicators that he took into account initially included the fact that the passenger had a freshly lit cigarette which according to his background experience could be used to mask alcohol and drug odours. As well the overt nervousness of both occupants was a concern and in particular the fact that the passenger seemed equally nervous as the driver when as a passenger he would ordinarily be facing no jeopardy on a routine traffic stop. The fast food wrappers on the floor were also a common marker in highway narcotic transport he noted.

[ 42 ] Although somewhat coy in his answers during cross-examination, it was apparent that what obviously pushed Constable Halbauer’s suspicion past the tipping point were the entries on the PIP showing on his onboard computer. For Mooiman it indicated involvement (to what extent is unclear) in production of cannabis and trafficking in cannabis resin.

Zahar’s entry showed that he had been chargeable for possession of cannabis and involvement (again unclear) in production of cannabis. [ 43 ] Although entries from both accused do not carry the weight of actual convictions, they are significant nonetheless in that they demonstrate potential criminal involvement in higher end illicit drug activities. [ 44 ] Having due regard to the standard for reasonable suspicion as set out in Chehill , McKenzie and Yates that the officer’s belief of the presence of narcotics need not rise to the level of probability but rather be one of the possible conclusions, the Court determines that this standard has been met on the evidence.

It must be stressed that it is the collective totality of what this officer observed and was informed of and not any one specific indicator which satisfies the Court in this regard. Further, although this stated indicia as a whole may be considered as leaning to the more general, the Court recognizes and accepts Constable Halbauer’s considerable expertise and training in this area compared to a regular duty patrol officer. [ 45 ] Consequently, the Court finds that the investigative detention of both accused was justified and lawful.

Lawfulness of Arrest and Subsequent Search and Seizure [ 46 ] The packaged marihuana seized from the duffle bag was located in a search of the truck after both Zahar and Mooiman had been arrested for possession of a controlled substance. Hence the basis for the search was incident to arrest rather than simply flowing from a roadside warrantless search which is commonly the case.

To be valid and lawful, such a search must be pursuant to a lawful arrest, must be truly incident to the arrest itself (i.e. must be rationally connected to the reason for the arrest) and must be conducted in a reasonable manner. [13] [ 47 ] Mooiman’s arrest for possession of a controlled substance is incontestable. When asked if the sniffer dog would find anything illegal, he volunteered the package of what appeared to be cannabis to Constable Halbauer.

He was therefore arrestable under s. 495(1) (b) [14] of the Criminal Code . [ 48 ] In order for the driver Zahar to be arrested for this offence, he would have to be considered in constructive possession which requires knowledge and an element of control of the impugned substance. [15] According to Mooiman, Zahar was aware that Mooiman was carrying these drugs. The only issue then is whether Zahar had the ability to exercise any control over such possession. In this regard, the Court finds that he did have such ability.

He was the owner and operator of the vehicle and as such in charge of who and what he would permit to be there. Once aware of the drugs he had the choice to request Mooiman to dispose of them or alternatively, to exit the vehicle. [16] [ 49 ] Even if the Court is in error on the determination of Zahar’s constructive possession of the drugs on Mooiman’s person, this would be moot in any event as far as the consequent search is concerned. In the Court’s view Mooiman’s arrest would entitle the investigating officer to search the vehicle in which he was located. In a remarkably similar case on the facts, R. v.

Tosczak [17] our Court of Appeal upheld the arrest and search of a vehicle incident to arrest where the driver was asked if he had anything illegal in the vehicle whereupon he handed over a marihuana roach. Similarly in R. v. Findlater [18] the driver produced a small bag of marihuana when asked “where’s the pot?” The subsequent search of his vehicle was held to be valid as incident to arrest. Also in Cloutier v. Langlois [19] Lamer, CJ stated that limits for searches incident to arrest “. . . will be no different for automobiles than for any other place.

The right to search a car and the scope of that search will depend upon a number of factors, including the basis for the arrest, the location of the motor vehicle in relation to the place of arrest and other relevant circumstances.” [ 50 ] As there is nothing otherwise in the evidence to suggest the search itself was not conducted in a reasonable manner and location, all criteria for a valid lawful search have been met and this argument must fail accordingly.

Remedy [51] As no Charter breaches have been established, the issues of judicial stay and exclusion of evidence are unnecessary to decide. IV CONCLUSION [52] Based upon the evidence adduced at trial and the concessions of Defence as to the requisite proof of the elements of theoffence, both accused are found guilty of possession for the purposes of trafficking, as charged. ______________________ R.D. Jackson, J [1] (1992), (SCC), 12 C.R. (4th) 1, 71 C.C.C. (3d) 1. See also: R. v. Godin, 2009 SCC 26, [2009] S.C.R. 3 at para. 5 [2] In R. v.

Godin, supra, at para. 18, the Court stated: [18] The legal framework of the appeal was set out by the Court in Morin at pp.786-789. Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waivedby the Defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b)seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questionsconcerning why certain delay occurred.

It is important, however, not to lose sight of the forest for the trees while engaging in thisdetailed analysis. . . [3] The PIP information was not actually provided until a few months prior to the trial date of April 1, 2014. This is incidental to thewithin application however as the issue is that of delay, not non-disclosure. The Crown further points out that 13 months and two trialdates elapsed between the first and second requests for the PIP information. Further, it was not until December 2013 that Defenceinformed it would not be prepared to proceed to trial without this disclosure. [4] See R. v.

Dzuba, 2014 SKQB 57 at para. 11 where inherent delay is described as “so intrinsic to the specific nature of the case that itis largely unavoidable.” [5] See R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45, at para. 44. [6] (SCC), 1998 1 S.C.R. 244. [7] 2004 SCC 52, [2004] 3 S.C.R. 59 para. 34 - 35 [8] 2013 SCC 49 [9] 2013 SCC 50 [10] 2014 SKCA 52 [11] 2013 MBCA 44 (Man. C.A.) [12] 2009 ABQB 52 (Alta. Q.B.) [13] R. v. Caslake (SCC), [1998] 1 S.C.R. 51 (S.C.C.) [14] S. 495(1) A peace officer may arrest with warrant . . . (

b) a person whom he finds committing a criminal offence; or . . . [15] R. v. Pham (2005), (ON CA), 203 C.C.C. (3d) 326, affm’d by the S.C.C. 2006 SCC 26

[16] See R. v. Martin (1959) (BC CA), 124 C.C.C. 265 (BCCA) [17] 2010 SKCA 10, 343 Sask. R. 295 [18] 2010 ONSC 5141, 5 MVR (6th) 239 (Ont. S.C.) [19] (SCC), [1990] 1 S.C.R. 158 (S.C.C.) at para. 23. See also: R. v. Smellie (1994), (BC CA), 95C.C.C. (3d) 9 (BCCA); R. v. Sinclair 2005 MBCA 4 (Man. C.A.)