Her Majesty the Queen - v. -, 2013 SKPC 166

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 166 Date: October 8, 2013 Information: 43171558, 43171560, 43171561 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Stephen Kola and David Butros Appearing: Dennis Quon For the Crown Barb Degenstein For the Accused, Stephen Kola Brad Mitchell For the Accused, David Butros DECISION ON VOIR DIRE D.E.

LABACH , J INTRODUCTION [ 1 ] Stephen Kola and David Butros are charged with a number of offences arising out of a traffic stop in the early morning hours of March 8, 2012. They are jointly charged on Information 43171561 with possession of cannabis marijuana in an amount not exceeding thirty grams contrary to section 4(1) and possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled

Drugs and Substances Act . Mr. Kola is also charged on Information 43171560 with obstructing a peace officer contrary to

section 129(

a) and two counts of breaching his undertaking contrary to section 145(3) of the Criminal Code . Mr. Butros is facing a charge of obstructing a peace officer contrary to

section 129 (

a) of the Criminal Code on Information 43171558. [ 2 ] Mr. Butros and Mr. Kola each pled not guilty to these charges. At the outset of their trial, counsel for both accused advised that they were alleging breaches of their clients’ Charter rights and wished to enter into a voir dire . Defence counsel for Mr. Kola said that she was alleging breaches of her client’s sections 8 and 9 Charter rights, while Mr. Butros’ counsel advised he was alleging breaches of his client’s sections 8, 9 and 10(

b) Charter rights. Both counsel took the view that if any of these Charter breaches were made out on behalf of their respective clients, they would be arguing for exclusion of evidence pursuant to section 24(2) of the Charter . The Crown acknowledged receiving timely and proper notice of these Charter applications. FACTS ON THE VOIR DIRE [ 3 ] On March 8, 2012, Constable Ward and Constable Georget were partnered up working general patrol duties in a marked police cruiser.

At approximately 12:31 a.m. as they were heading south on Avenue I, they noticed a red BMW automobile travelling east on 16 th Street approaching Avenue H. This was the only vehicle they saw at this time in the area. They turned around and followed the BMW intending to run its licence plate to ensure the vehicle was properly registered. They had no reason to believe that the occupants of the BMW were doing anything wrong. [ 4 ] Upon checking the licence plate number on their in-car computer, the officers found out that the plate on the BMW was actually registered to a black Ford Mustang.

By this time, the BMW had travelled some eight blocks and turned north onto Avenue A. Given the discrepancy regarding the licence plate, the officers turned on their emergency lights and initiated a traffic stop. [ 5 ] The BMW pulled over right away and Constable Ward went to the driver’s door and asked the driver for his licence and registration. As she did this, she noticed a strong smell of fresh marijuana coming from the vehicle. The driver, who was the accused, Stephen Kola, gave her a licence in the name of David Butros and a permit for the car.

The officer asked the driver to verify his address and he provided an address different than that on the driver’s licence. Suspecting that this was not his licence, she asked him whose identification this was. He responded that it belonged to his friend and he apologized. He explained that his friend, Mr. Butros, was the passenger in the BMW and that his name was “Stephen”. [ 6 ] Constable Georget meanwhile had gone to the passenger side of the BMW.

He motioned for the male passenger to roll down his window and when he did so, the officer noted a strong odour of fresh marijuana and cologne coming from the vehicle. He asked the passenger (who was the accused, David Butros) his name and he responded, “Stephen Kola”. The officer noted that the male’s hands were fidgety and he was shaking them and moving them around his crotch area. He asked the male his age and date of birth. The male responded that he was eighteen and born in 1992. This year of birth was inconsistent with his age so he asked the passenger again how old he was.

The passenger then turned to the driver and asked him when he was born. Constable Georget felt that the male passenger was lying about who he was so he asked him to step out of the car. He again asked him his name and this time the fellow said “Sonny”. The officer advised him that he was going to be arrested for obstruction and he took him to the rear of the police cruiser where he was searched, handcuffed and placed in the back seating area. While searching him, the officer located two cell phones, a wallet and some money.

During this arrest, the male told the officer that his real name was David Butros. [ 7 ] Constable Ward returned to the police cruiser while Constable Georget was dealing with Mr. Butros and told him that the driver had given her identification indicating that he was David Butros. Both officers reattended to the BMW and had the driver get out of the vehicle. After a brief discussion, the driver admitted that he did not have a driver’s licence so he was arrested for both obstruction and the

summary offence of driving without a licence. He was taken back to the police cruiser, searched, handcuffed and placed in the back with Mr. Butros. Constable Georget then called for another police unit to attend to their location and assist with transporting the two males to the Saskatoon police station. [ 8 ] A few minutes later, Constable Blades and Constable Primeau arrived. Mr. Butros was left in Constables Ward and Georget’s police car while the other fellow was transferred to Constables Blades and Primeau’s police vehicle.

Constable Georget had a discussion with Constable Blades and told him what this fellow had been arrested for. He asked Constable Blades to try to find out what the fellow’s real name was. Constable Georget then returned to his police car and proceeded to read Mr. Butros his rights and warning. When asked if he wished to call a lawyer, Mr. Butros said “Yes”.

[ 9 ] Constable Blades returned to his police cruiser and asked the male what his real name, date of birth and address was. The fellow advised that his real name was Stephen Kola and he provided a birth date and address. The officer ran the name on his in-car computer and found out that Mr. Kola was presently on an undertaking which included a curfew and a residence clause. The time was well past his curfew and the address he gave for his residence did not match the address on his undertaking. As a result, Constable Blades arrested Mr.

Kola for two counts of breaching his undertaking and gave him his rights and warning on those charges as well as the earlier charges that Constables Georget and Ward had arrested him on. [ 10 ] Constable Blades asked Mr. Kola whose car he was driving and Kola responded that it was his sister-in-laws. He could not provide her address but he said that her phone number was on his cell phone which was on the console in the BMW. He asked the officer to go get it. [ 11 ] Constable Blades attended to the BMW and located the cell phone on the centre console.

He also noticed some ZigZag rolling papers beside the phone and that the vehicle smelled very strongly of fresh marijuana. Constable Blades returned to his police cruiser and put the cell phone in the front seat. He then went and told Constable Georget about the ZigZag papers and the strong smell of marijuana. [ 12 ] After hearing this from Constable Blades and based on his own observations, Constable Georget suspected that there was marijuana in the BMW.

So he radioed for a canine unit to attend with a drug dog and do a sniff search of the vehicle. [ 13 ] Constable Malanowich and his police dog, Shadow, responded to the call. Shadow had been working as a police dog for six years, the last two with Constable Malanowich. He was a general purpose dog trained to do a number of things, including locating drugs such as marijuana, hash, cocaine, heroin, ecstacy, methamphetamine and psylocybin. Constable Georget gave Constable Malanowich an overview of the investigation and at 12:52 a.m., he had Shadow perform an exterior search of the vehicle.

At the driver’s side rear door, Shadow gave a positive indication that he detected drugs in the vehicle. Based on this positive indication, Constable Malanowich then had Shadow search the interior of the BMW. Shadow indicated the presence of drugs on the passenger floor boards of the vehicle and in the rear seat area where the seat cushions met the back cushions. Constable Malanowich did not search the vehicle himself. [ 14 ] Constable Malanowich told Constable Georget that Shadow had detected drugs in the vehicle and where he had made these positive indications.

Concluding that he now had reasonable and probable grounds to believe that there were drugs in the BMW, Constable Georget performed a thorough search of the vehicle with the assistance of Constable Blades. He located a white plastic bag that was tied shut on the passenger side floor of the BMW. Inside the bag was a Kleenex box and some ziploc bags. Inside the Kleenex box he found a black scale and a solid piece of crack cocaine.

In the front ashtray area of the vehicle he located a small bag of marijuana. [ 15 ] Constable Blades found six individually packaged bags of crack cocaine located between the rear seats in a fold down arm rest, two burnt marijuana joints in the rear driver’s side door ashtray and one burnt joint in the rear passenger side door. He also found some burnt roaches in the ashtray in the centre console of the vehicle. [ 16 ] After these drugs were located, Constable Georget went to his police cruiser, arrested Mr. Butros for possession of a controlled substance and read him his rights and warning for this charge.

When asked if he wished to call a lawyer, Mr. Butros said, “Yes, but whatever you guys found, it is not mine. It’s not my car.” [ 17 ] Constable Georget then went to Constable Blades’ police cruiser and advised Mr. Kola that he was now under arrest for possession of a controlled substance. He read Mr. Kola his rights and warning and when asked if he wanted to call a lawyer he said, “Yeah”. [ 18 ] Constable Georget called for a tow truck to attend to tow the BMW. While waiting for it to show up, Constable Georget re- arrested both Mr. Butros and Mr.

Kola for possession of a controlled substance for the purpose of trafficking. He gave them both their rights and warnings for this new charge and both men indicated that they would like to call a lawyer.

[ 19 ] At 1:42 a.m., Constables Georget and Ward left the scene with Mr. Butros. They arrived at the detention area at the Saskatoon Police Service at 1:45 a.m. When Mr. Butros was being booked in, a Blackberry and an LG smartphone were seized from him along with $500 cash in his wallet and $110 cash in his pocket. [ 20 ] After being booked in, Constable Ward asked Mr. Butros if he wanted to call a lawyer now. He did, so she placed him in the phone room and asked him if he had a lawyer in mind or if he wanted to speak to Legal Aid. He advised that he wished to speak to Legal Aid.

At 1:55 a.m. she put him in contact with a Legal Aid lawyer. A couple of minutes later he was finished his call. She asked him if he was satisfied with his lawyer call and he said he was. Thereafter he was placed in a cell. [ 21 ] Constables Blades and Primeau left the scene with Mr. Kola at 1:48 a.m. and arrived at the police station a few minutes later. When Mr. Kola was being booked in, a black I-phone, a Nokia cell phone and a Sony Ericsson cell phone were seized from him. After the detention staff were finished with him, Mr. Kola was turned over to Constable Ward.

She asked him if he wanted to speak with a lawyer now. He said that he wanted to speak to Lisa Watson and that her number was on his cell phone. Constable Ward retrieved Ms. Watson’s number from one of the seized cell phones and dialed the number. The number rang through to Legal Aid. She advised Mr. Kola of this and asked him if he wanted to call another lawyer or speak with Legal Aid. He said he wished to speak to Legal Aid so she put him on the line with duty counsel. He finished his call at 2:22 a.m. She asked if he was satisfied with his lawyer call and he said he was. Mr.

Kola was then placed in a cell. [ 22 ] It was noted by officers that when Mr. Butros and Mr. Kola were sitting in the back of their respective police vehicles waiting to be taken to the police station and once on their way to the police station, several calls and text messages came in to the cell phones that had been seized from them. [ 23 ] The bag of marijuana seized from the BMW weighed 1.1 grams. The six bags of cocaine weighed .5 grams, .7 grams, .5 grams, .7 grams, .7 grams and .7 grams respectively. The solid piece of cocaine seized weighed 20.5 grams. ISSUES

a) Was there a violation of Mr. Butros’ and Mr. Kola’s

section 9 Charter right to be free from arbitrary detention?

b) Was there a violation of Mr. Butros’ and Mr. Kola’s

section 8 Charter right to be secure from unreasonable search and seizure?

c) Was there a violation of Mr. Butros’

section 10(

b) Charter right to retain and instruct counsel without delay and to be so informed of that right?

d) If any of the accuseds’ aforementioned Charter rights were violated, should there be an exclusion of evidence pursuant to section 24(2) of the Charter ? ANALYSIS

a) Was there a violation of Mr. Butros ’ and Mr. Kola ’s

section 9 Charter right to be free from arbitrary detention? [ 24 ] The two accused in this case were first detained in and around 12:31 a.m. when they were stopped by the officers for a Traffic Safety Act matter. Their detentions continued unabated thereafter although the reason they were being detained changed as the situation developed. In order to answer this question about whether either Mr. Butros or Mr.

Kola were arbitrarily detained, it is convenient to breakdown their interaction with the police into the initial stopping of the vehicle, the arrest of both accused for non-drug offences, the detention of the accused for a drug investigation and the arrest of both accused for drug offences.

The Initial Stopping of the Vehicle [ 25 ] On the evening in question, Constable Georget and Constable Ward were on routine patrol in a marked patrol car. Constable Ward was a new officer, having only been on the police force for some two months, and Constable Georget was training her. When they saw the BMW, they decided to run its licence plate through their computer data base to see, among other things, if the vehicle was properly registered and insured. According to Constable Ward, it was to get her used to the computer system and running things like that because she was a fairly new officer.

When they ran the licence plate on the red BMW, the computer said that it belonged to a black Ford Mustang. This was the reason they stopped the BMW. [ 26 ] Counsel for Mr. Butros took issue with this. He argued that they were not checking licence plates because there were other cars on the road that night but the officers did not run the plates on those other vehicles. It was his view that they did not run the plates on the BMW, but rather followed the BMW and pulled it over because two black men were in an expensive car in the wrong part of Saskatoon at 12:30 a.m.

In other words, the stop had everything to do with racial profiling. [ 27 ] Unfortunately for counsel, it would be complete conjecture to reach this conclusion as there was not a shred of evidence to suggest that this stop had anything to do with racial profiling. When asked by Defence counsel if it was unusual to see a red BMW in this part of town at this time of night, Constable Georget testified that it was not. He was very clear that they were just randomly selecting vehicles and this red BMW was the only vehicle on the road at the time they came upon it.

He also testified that they did not know who was in the vehicle as they followed it down the road. Defence counsel also asked Constable Ward if they followed the BMW because two black men were in the vehicle and she said “No”. [ 28 ] Both officers were consistent in their testimony that the reason they followed this vehicle was to check its licence plate and once they determined that the plate on the BMW belonged to a different vehicle, they stopped the BMW.

Section 192 of The Traffic Safety Act , S.S. 2004 c. T-18.1 makes it an offence to drive without a proper licence plate on your vehicle. Specifically: 192(1) No person shall drive on a highway, and no person shall cause or allow to be driven on a highway, a motor vehicle, trailer, or semi-trailer unless the vehicle displays licence plates issued pursuant to this Act.

(3) No person shall use or permit the use of licence plates on any vehicle other than the vehicle for which the licence plates were issued. [ 29 ] The BMW was stopped for a valid traffic safety purpose and as a result, this initial stop of the BMW was lawful and neither Mr. Butros nor Mr. Kola’s

section 9 Charter right was violated. Arrest of Both Accused for Non-Drug Offences [ 30 ] When Constable Ward went to the BMW and asked the driver, Mr. Kola, for his driver’s licence, he gave her Mr. Butros’ licence as if it was his own. It was only when he could not verify the address on the licence that she started questioning him about whether this was his driver’s licence. He apologized, admitted that it was his passenger’s licence and said his name was “Stephen”. [ 31 ] Shortly thereafter Mr. Kola admitted that he did not have a valid driver’s licence.

He was arrested for obstructing Constable Ward and for not having a valid licence. After being arrested he was eventually turned over to Constable Blades for transportation to the police station. Prior to departing, Constable Blades questioned Mr. Kola about what his name was. He told the officer he was Stephen Kola. Constable Blades determined that Mr. Kola was on an undertaking with a curfew and a residence clause, both of which he was currently breaching. Consequently, he arrested Mr.

Kola for two counts of breaching his undertaking and read him his rights and warning for all charges for which he was presently arrested. [ 32 ] Constable Georget dealt with the passenger Mr. Butros. When he attended to the passenger window, he asked Mr. Butros his name and the accused told him he was Stephen Kola. When asked his age and date of birth, he was not able to give a date of birth that was consistent with the age he gave. When caught in this lie, he eventually advised he was David Butros and was arrested for

obstructing Constable Georget. He too was given his rights and warning for this offence. [33] Neither counsel took any issue with the arrest of their clients for these offences and rightly so. These arrests were lawful andthere was no breach of the accuseds’

section 9 Charter right at this stage of the proceedings. Detention of Accused for Drug Investigation [34] Once the two accused were arrested for obstruction (and in Mr. Kola’s case some other offences), given their Charter rightsand warning and placed in two separate police vehicles, Constable Georget turned his mind to the smell of fresh marijuana that he,Constable Ward and Constable Blades had noticed coming from the BMW. The odour that they had all noted led him to have asuspicion that there were drugs in the BMW.

Given this suspicion, he felt that a drug dog could provide some confirmation of whether adrug offence was being committed. [35] In R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59, Mr. Justice Iacobucci, spoke about the police power to detain forinvestigative purposes. At paragraph 34 he said: [34] The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. Theevolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premisedupon reasonable grounds.

The detention must be viewed as reasonably necessary on an objective view of the totality of thecircumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or ongoingcriminal offence. Reasonable grounds figures at the front end of such an assessment, underlying the officer’s reasonable suspicion thatthe particular individual is implicated in the criminal activity under investigation.

The overall reasonableness of the decision to detain,however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individualliberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order tomeet the second prong of the Waterfield test. [36] At paragraph 45, Mr.

Justice Iacobucci continued to say: [45] To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonablegrounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. . .. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search onarrest, which do not arise in this case. [37] In R. v. Nguyen 2008 SKCA 160, Madam Justice Jackson interpreted the aforementioned comments of Mr.

Justice Iacobuccias follows: [13] The Court in Mann carefully placed strict limits on the use of investigative detention. There must be: (i) “a recent or ongoingcriminal offence”; and (ii) a “clear nexus” between the detainee and that offence. Having satisfied these two criterion, the decision todetain must be “further assessed” against all of the circumstances to ensure that the detention was reasonably necessary.

Investigativedetention will not avoid Charter challenge if its purpose is to determine whether a crime has been or is being committed as opposed todetermining whether the detainee is linked to a recent or ongoing crime. Nothing in R. v.

Kang-Brown changes this analysis. [14] Before a police officer can detain a person for investigative purposes, there must be some aspect of the circumstances, relied uponby the officer, to permit a future judicial assessment as to whether a crime has been or is being committed or is about to be committed, asa first step in the Mann analysis. (See the judgment of Binnie, J. in Kang-Brown.) An ongoing police investigation, a reported crime, oran odour of contraband of sufficient strength, as examples, might lead a judge to conclude in assessing police conduct after the fact that,at the point of detention, a crime has been or is being committed or is about to be committed.

None of these indicia of a recent orongoing criminal offence are present in this case. See also R. v. Bramley, 2009 SKCA 49 , [2009] S.J. No. 219 (Sask. C.A.) at paragraph 30.

[38] Reasonable grounds to detain has been held to mean reasonable suspicion that a person is breaking the law. In R. v.MacKenzie, 2013 SCC 50 , [2013] S.C.J. No. 50 (S.C.C.), Mr. Justice Moldaver, at paragraph 38 said: [38] Parenthetically, I note that the reference in Mann to “reasonable grounds to detain” has led to some confusion for the bench and baralike. In the context of detention, “reasonable grounds” means reasonable grounds to suspect that an individual is involved in particularcriminal activity, which is synonymous with reasonable suspicion.

However, in other contexts, such as an arrest, “reasonable grounds”means reasonable grounds to believe that an individual is or has been involved in a particular offence, which is synonymous withreasonable and probable grounds. The former concept is a matter of possibilities, while the latter is one of probabilities. See Chehil, atparagraph 27; Kang-Brown at paragraph 164, per Deschamps, J. [39] In this particular case, the evidence from Constable Georget is clear that his reasonable suspicion that Mr.

Kola and Mr.Butros were committing a drug offence was based solely on the strong smell of fresh marijuana coming from the BMW. Given that astrong smell of fresh or raw marijuana by itself, is enough to provide reasonable and probable grounds for an arrest or a subsequentsearch (See R. v. Sewell, 2003 SKCA 52 , [2003] S.J. No. 391 (Sask.

C.A.) at paragraphs 39 and 40), it is more than enough tomeet the lower standard of reasonable suspicion. [40] Both Defence counsel made much of the fact that only 1.1 grams of fresh marijuana were located in the BMW, in a bag, in anashtray, while a number of burnt marijuana cigarettes were located in the vehicle as well. In their view, Constable Georget must havesmelled burnt marijuana, not fresh marijuana. They argued that he misled the Court because he was aware of case law saying that anarrest based on a smell of marijuana is only reasonable if fresh marijuana is smelled as opposed to burnt marijuana.

According to them,1.1 grams of raw marijuana in a bag in an ashtray would not give off any odour let alone an odour as strong as the officers would havethe Court believe. [41] I cannot accept the Defence argument in this regard. Constable Georget’s evidence about the strong smell of fresh marijuanais corroborated by other officers. Both Constable Ward and Constable Blades testified that they each were struck by the strong smell offresh marijuana on the different times they attended to the BMW. They said nothing about smelling burnt marijuana.

There was nothingin the evidence to suggest that these three conspired to fabricate this point and I am not prepared to find that they did. Moreover, I haveno idea how strong an odour 1.1 grams of fresh marijuana would give off. I suspect it depends on a number of factors including howfresh it was and how it was packaged. This was not a case where there was no raw marijuana in the vehicle. There was fresh marijuanain the vehicle and while it may not have been a considerable amount, I expect that it would give off some odour.

The evidence of thethree burnt marijuana joints located in the backseat area of the BMW are not of much significance except that they were in the BMW. There is no evidence when these burnt joints were smoked or how long they had been in the BMW. [42] I have no hesitation accepting Constable Georget’s testimony that he smelled fresh marijuana in the BMW and that this ledhim to suspect that the accused were committing a drug offence. A reasonable person in the shoes of Constable Georget would have noproblem reaching this conclusion as well.

As a result, I am satisfied that Constable Georget’s subjective view was objectively reasonableand that both accused were lawfully detained for a drug investigation. There was no breach of either of their

section 9 Charter rights atthis juncture either. The Arrest of Both Accused for Drug Offences [43] The subsequent arrest of both Mr. Kola and Mr.

Butros for possession of a controlled substance and possession for thepurpose of trafficking was based on the smell of marijuana coming from the BMW, the positive hit for drugs by the sniffer dog Shadowand the fact that following a search of the BMW, 1.1 grams of fresh marijuana, three burnt marijuana joints, some roaches, a solid pieceof cocaine weighing 20.5 grams and six individual bags of cocaine each weighing .5 or .7 grams were seized along with a black scale,some cell phones, ziploc bags and ZigZag rolling papers.

I recognize that both Defence counsel took issue with the sniffer dog searchand the officers search of the BMW and alleged that these searches breached their clients’

section 8 Charter right. However, as willbecome apparent later in this decision, I was satisfied that both of these searches were legally justified and that there was no

section 8violation. [44] In R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 the Supreme Court of Canada said that not only must a police

[44] In R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 the Supreme Court of Canada said that not only must a policeofficer subjectively believe that he or she has reasonable and probable grounds to make an arrest, but that subjective belief must beobjectively reasonable. In this case, the smell of marijuana by itself may not have convinced me that Constable Georget had reasonablegrounds to arrest either of the accused for drug offences. However, since I have concluded that the accuseds’

section 8 Charter right hasnot been violated and the results of Shadow’s search and the officer’s search of the BMW are admissible, any hesitation I had has beenresolved. This evidence as a whole leaves me with no doubt that Constable Georget’s subjective belief was objectively reasonable. As aresult, both accused were lawfully arrested for drug offences and there was no breach of their

section 9 Charter rights.

b) Was there a violation of Mr. Butros’ and Mr. Kola’s

section 8 Charter right to be secure from unreasonable search andseizure? [45] An individual’s right to challenge the legality of a search and seizure under

section 8 of the Charter depends upon their abilityto establish that they had a reasonable expectation of privacy in the place searched or the items seized. See R. v. Edwards, (SCC), [1996] 1 S.C.R. 128 (S.C.C.) at paragraph 33; R. v. Belnavis, (SCC), [1997] 3 S.C.R. 341 (S.C.C.) atparagraphs 19 to 24; R. v. Turpin, [2010] S.J. No. 717 (Sask. Q.B.) at paragraph 54. Case law has established that an individual canhave an expectation of privacy in a motor vehicle however it is less than exists in a home or office. See R. v. Wise (1992), (SCC), 70 C.C.C. (3d) 193 (S.C.C.) at page 218; R. v.

Grant (1993), (SCC), 84 C.C.C. (3d) 173 (S.C.C.) at page189. The test to determine whether a driver or a passenger of a motor vehicle has an expectation of privacy is the same. See R. v.Belnavis, supra, at paragraphs 19 and 22. [46] In R. v. Edwards, supra, the Supreme Court provided some guidance as to how to determine if an accused has a “reasonableexpectation of privacy” in a place or item: [45] . . . . 5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. 6.

The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (

i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. 7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine if thesearch was conducted in a reasonable manner. [47] In the present case, Mr. Kola was the driver of the BMW and Mr. Butros was the passenger. The vehicle apparently belongedto Mr. Kola’s sister-in-law but she gave him permission to use it that night.

His sister-in-law did not testify in this case but there was noevidence he took it without her consent or that it was reported stolen. As the driver he not only had possession of it, but purportedlycontrol of it on behalf of his sister-in-law. There is no indication how long he had been using the car or whether he regularly borrowed itbut suffice it to say that as the driver, he had the ability to control who was in the car, what was in the car and where it went. By makinga

section 8 Charter application he is claiming an expectation of privacy in the BMW and in my view it was an objectively reasonableexpectation. Therefore I am satisfied that Mr. Kola had an expectation of privacy in the BMW albeit a limited one.

[48] Mr. Butros, the passenger, was just that, a passenger. He had no ownership in the BMW and no apparent connection to theowner. He was only in the vehicle because his friend was driving the car. There was no evidence he had used the vehicle in the past orhad any ability to borrow the vehicle if he needed to. He had no readily apparent personal belongings in the vehicle. His lawyeradmitted that it was a stretch to think that his client had an expectation of privacy in the vehicle and looking at it from an objectivestandpoint, I agree.

His only connection to the vehicle was being in it at the time it was stopped. This is not enough, in my view, toestablish that Mr. Butros had a reasonable expectation of privacy in the BMW and I find he did not. [49] That however does not end the matter from Mr. Butros’ perspective. I must also consider whether he had a reasonableexpectation of privacy in the drugs that were seized from the BMW. There was nothing in, on or attached to any of the drugs that wereseized that would suggest they belonged to Mr. Butros. There were no fingerprints or DNA on the drugs or the bags they were in linkingthem to Mr. Butros.

They were located in the vehicle he was found in and some of the drugs were located in close proximity to where hewas seated but he has never admitted that they belonged to him. To the contrary, he has pled not guilty to the drug charges whichindicate that he denies that they were in his possession or under his control. On the evidence, I conclude that Mr. Butros did not have areasonable expectation of privacy in the drugs that were seized from the BMW. [50] Having reached this conclusion, I must consider whether the search and seizure as it relates to Mr. Kola was reasonable.

What occurred in this case was a warrantless search of the BMW. Warrantless searches are presumptively unreasonable and contrary tosection 8 of the Charter. Once an applicant proves that a search was warrantless, the onus shifts to the Crown to establish on a balanceof probabilities that the search was reasonable. See R. v. Collins, (SCC), [1987] 1 S.C.R. 265 at page 278; R. v. Kang-Brown, 2008 SCC 18 , [2008] 1 S.C.R. 456 (S.C.C.) at paragraph 48; R. v. Turpin, supra, at paragraph 55; R. v. Nolet, 2010SCC 24 , [2010] 1 S.C.R. 851 (S.C.C.) at paragraph 21.

A search will be reasonable if it is authorized by law, if the law itself isreasonable and if the manner in which the search was carried out is reasonable. See R. v. Collins, supra, at page 278; R. v. Kang-Brown,supra, at paragraph 48. Reasonableness of the Sniffer Dog Search [51] After both accused had been arrested for non-drug related offences, Constable Georget turned his mind to the strong smell offresh marijuana that he and two other officers had smelled coming from the BMW.

He suspected that there was marijuana in the BMWand called the Canine Unit to attend with a sniffer dog. [52] Constable Malanowich and his dog Shadow received a call to attend to do a drug sniff search at approximately 12:50 a.m. andthey arrived on scene at 12:52 a.m. After speaking to Constable Georget about the investigation, he deployed Shadow around theoutside of the BMW. Shadow gave a positive indication of drugs at the driver’s side rear door. As a result of this positive indication,Constable Malanowich opened the door to the BMW and had Shadow do an interior search of the car.

Shadow gave a positiveindication for drugs on the front passenger side floorboards and in the backseat area. [53] As a result of these positive indications, Constable Georget testified that he felt that he had reasonable and probable groundsto believe that there were drugs in the BMW so he and Constable Blades searched it. Drugs were located in the two areas identified byShadow as well as a couple of other areas in the BMW. Immediately after locating the drugs, Constable Georget went and arrested bothMr. Kola and Mr. Butros for possession of a controlled substance.

Shortly after that he re-arrested both of them for possession for thepurpose of trafficking. [54] Police are entitled to utilize sniffer dogs in contexts where individuals have a reasonable but lesser expectation of privacy andwhere the police have reasonable grounds to suspect the presence of contraband. Reasonable grounds to suspect or reasonable suspicionmeans something more than a mere suspicion and something less than a belief based on reasonable and probable grounds. Reasonablesuspicion is a lower standard as it engages reasonable possibility. See R. v.

Kang-Brown, supra, at paragraphs 25 and 75; R. v.MacKenzie, supra, at paragraphs 2 and 38. [55] Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellationof objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved inthe type of criminal activity under investigation. Reasonable suspicion need not be the only inference that can be drawn from a particularset of facts because it deals with the possibility of uncovering crime.

However a nexus must exist between the criminal conduct that issuspected and the use of the sniffer dog. See R. v. Chehil, 2013 SCC 49 , [2013] S.C.J. No. 49 (S.C.C.) at paragraphs 29 to 37.

[ 56 ] Where reasonable suspicion exists, a sniffer dog search is authorized by the common law and the common law itself is reasonable on the basis of reasonable suspicion given the minimally intrusive, narrowly targeted and high accuracy “sniff searches” by dogs with a proven track record. See R. v.

Kang-Brown , supra, at paragraph 60 . [ 57 ] In this case, Constable Georget testified that his basis for suspecting that there were drugs in the BMW was a strong odour of fresh marijuana that he, Constable Ward and Constable Blades had noticed in the BMW both when the two accused were in the vehicle and after they had been removed from the vehicle. This was the basis upon which Constable Georget radioed for a sniffer dog to attend the scene. [ 58 ] I have no hesitation accepting Constable Georget’s testimony that this is what he smelled.

Both Defence counsel tried to discredit Constable Georget in cross-examination but to no avail. While he may have been confused about some of the details of what took place that evening, he was adamant that what he smelled coming from the BMW was the odour of fresh marijuana. His testimony on this point was corroborated by both Constable Ward and Constable Blades. In R. v. Sewell , supra, the Saskatchewan Court of Appeal agreed that the smell of fresh marijuana was sufficient to provide reasonable and probable grounds for the arrest of an accused on drug charges and the subsequent search of him.

If the smell of fresh marijuana is sufficient to meet the more stringent test for reasonable and probable grounds, it most definitely meets the lower standard of reasonable suspicion. Consequently, not only was Constable Georget’s belief that the two accused were in possession of a controlled substance subjectively reasonable but there were objective grounds to suspect this as well. [ 59 ] Mr. Kola has not challenged the accuracy or reliability of Shadow and perhaps rightly so.

His handler, Constable Malanowich, testified that Shadow was trained to locate a number of drugs including marijuana and cocaine and in the two years that Shadow has been with him, the officer described him as being very accurate in locating controlled substances. Shadow has never provided the officer with a false indication although he has missed drugs that were hidden. In 2010, Shadow came third overall in the Canadian Police Canine Association Championships.

Had I been asked to do so, I would certainly have found that Shadow was both an accurate and reliable drug sniffer dog. [ 60 ] The use of Shadow in this case was reasonable. Shadow arrived on scene within minutes of the accused being detained for a drug investigation and was deployed around the exterior of the vehicle. He very quickly gave a positive indication for drugs in the vehicle and then Constable Malanowich deployed him inside the vehicle. Once inside, he quickly gave a positive indication for drugs in two areas.

The accused were not in the vehicle while Shadow did his search and Shadow caused no damage to the BMW. The manner in which the search was conducted was minimally intrusive to Mr. Kola’s privacy expectation in the BMW. As a result, I am satisfied that the sniffer dog search was carried out in a reasonable manner and that there was no violation of Mr. Kola’s

section 8 Charter right at this stage of the proceedings. Search Incidental to Arrest [ 61 ] Following the positive indications by Shadow, Constable Georget felt he had reasonable and probable grounds to believe that there were drugs in the BMW. He and Constable Blades did a thorough search of the BMW and located a Kleenex box containing some ziplock baggies, a black scale and a solid piece of crack cocaine weighing 20.5 grams, six individually packaged bags of crack cocaine, a small bag of marijuana, some burnt marijuana joints and a few marijauna roaches. After the drugs were located he arrested both Mr.

Butros and Mr. Kola for possession of a controlled substance pursuant to The Controlled Drugs and Substances Act and gave them each their Charter rights and police warning. He then called a tow truck to come and remove the BMW. While waiting for the tow truck, Constable Georget re-arrested both accused for possession of a controlled substance for the purpose of trafficking and again read them their rights and warnings. Shortly thereafter they were both transported to the Saskatoon Police station. [ 62 ] Defence counsel for Mr.

Kola argued that this search subsequent to the sniffer dog’s positive indication was not consensual and not a search incident to arrest. In her view, it was not authorized by law and a violation of

section 8 of the Charter . She pointed to the following questions and answers that occurred between the Court and Constable Georget in the Trial Transcript, Volune II, page 165, in support of her position: The Court: Alright so you never did search this vehicle incident to arrest, did you?

Cst. Georget: No, not - - not for the obstruction charge. The Court: For any other charge? Cst. Georget: No The Court: Okay. Did you ever ask the driver, or the passenger, if you could search the vehicle? Cst. Georget: No. [63] There is no question on the facts that neither accused consented to the officers searching the BMW nor did any officer askeither of them if they could search the BMW. The question in this case is whether the search of the BMW was authorized as incident toa valid arrest. [64] In R. v. DeBot, (ON CA), [1986] O.J. No. 994 (Ont.

C.A.) the police received reliable information that theaccused would be participating in a drug transaction. Police stopped the accused’s vehicle after it left the location of the allegedtransaction. The accused was directed to get out of the vehicle and was searched, wherein drugs were located. He was then arrested andadvised of his rights. The trial judge acquitted the accused, holding that this search violated the accused’s

section 8 Charter rights andhe excluded the drugs. On appeal, the Ontario Court of Appeal disagreed. Martin, J.A. found that the police had reasonable grounds forbelieving the accused was in possession of a prohibited drug and that their subsequent search of the accused was authorized by bothsection 37 of The Food and Drug Act and also as a search incident to a valid arrest. On this latter point, Mr.

Justice Martin was of theview that as long as an officer has reasonable grounds prior to the search for a lawful arrest, the fact that the search preceded the arrestdoes not preclude it from being a search incident to arrest as long as the arrest quickly follows on the search. [65] On further appeal to the Supreme Court of Canada, that Court dismissed the appeal. At paragraph 64 of (SCC), [1989] 2 S.C.R. 1140 (S.C.C.), the Court decided that it was not necessary for them to decide whether the search of Mr. DeBotwas justified as incidental to a valid arrest.

As a result, courts have followed Martin, J.A.’s comments on this point. See R. v. Polashek, (ON CA), [1999] O.J. No. 968 (Ont. C.A.); R. v. Trenten, [2002] S.J. No. 469 (Sask. Prov. Ct.); R. v. Sinclair, 2005MBCA 41 , [2005] M.J. No. 96 (Man. C.A.). [66] In this case, prior to making the aforementioned comments pointed out by Defence counsel, Constable Georget testified incross-examination at Trial Transcript, Volume I, page 138, line 24 to page 139, line 9 as follows: Mr. Mitchell: And why didn’t you just impound the vehicle and get a warrant and search it afterwards? Cst.

Georget: Because we were searching incident to arrest. Mr. Mitchell: Was there any urgency? Was the - - did - - was anything going to go missing from the vehicle? Cst. Georget: No. Mr. Mitchell: Yeah. So there was no reason why you couldn’t have impounded it and searched it later? Cst. Georget: Other than the fact that we would have had to obtain a warrant. Mr. Mitchell: So it’s easier just to search right then and there? Cst. Georget: It makes things - - yes. [67] Then at Trial Transcript Volume II, page 163, line 23 to page 164, line 9, Constable Georget said: The Court: Okay.

You said that all - - all of the officers there were still involved in the investigation. Then you made the commentthat they searched the - - pardon me, you searched the vehicle incident to arrest; do you remember that? Cst. Georget: I’m sorry, I don’t recall saying that exact words. The Court: Okay. Well, is that why you searched the vehicle? Cst. Georget: The vehicle was searched with the grounds and - - with - - with reasonable and probable grounds tobelieve that there were drugs in the vehicle, Your Honour.

[ 68 ] In order to make sense of this conflicting testimony from Constable Georget one needs to look at what he knew at the time he and Constable Blades began searching the BMW. At that time he knew the following: - the two accused were in a red BMW but the licence plate on the BMW belonged to a black Ford Mustang; - when asked to provide his driver’s licence, Mr. Kola, the driver of the BMW, gave a licence in the name of David Butros; - when asked what his name was, Mr.

Butros, who was sitting in the passenger seat of the BMW, responded that he was Stephen Kola and gave an age inconsistent with his date of birth; - while Mr. Butros was sitting in the BMW speaking to him, he was fidgeting with his hands and moving them around his crotch area; - when he attended to the BMW and the window was rolled down, he smelled a strong odour of fresh marijuana and cologne coming from the vehicle; - he was advised by Constable Ward that when she was at the BMW she smelled a strong smell of fresh marijuana coming from the car; - after arresting Mr.

Butros for obstruction and searching his person, he located two cell phones; - he was advised by Constable Blades that when he went to the BMW to retrieve Mr.

Kola’s cell phone, he noticed some ZigZag rolling papers and the vehicle smelled very strongly of fresh marijuana; - after walking around the exterior of the vehicle, the sniffer dog, Shadow, gave a positive indication that he detected drugs in the BMW at the driver’s rear side door; - after proceeding into the interior of the BMW, Shadow indicated the presence of drugs on the passenger’s side floorboards and in the rear seat area where the seat cushions meet the back cushions. [ 69 ] Constable Georget had already arrested the two accused for obstruction, breach of undertaking and a Traffic Safety Act charge.

However, none of these offences gave him the grounds to search the BMW. But after arresting the two accused for these offences and as more information became known to him, Constable Georget’s focus turned to that of a drug investigation. His own observations and the information received from Constable Ward and Constable Blades led him to suspect there were drugs in the BMW. I have already determined that this suspicion was reasonable. As a result of that suspicion he called for a sniffer dog whose use I have also found was reasonable.

The multiple positive indications for drugs provided by the sniffer dog elevated Constable Georget’s suspicion to reasonable belief. This is what he testified to. He felt that the results of Shadow’s search, coupled with everything else he knew, gave him the reasonable and probable grounds to believe there were drugs in the BMW. [ 70 ] This subjective belief of Constable Georget was also objectively reasonable. An ordinary person faced with the same observations as Constable Georget would have no problems reaching the conclusion that the two accused were in possession of drugs in the BMW.

That being so, at this stage, Constable Georget had the authority to arrest both accused for drug offences under section 495(1) (

b) of the Criminal Code . This

section states that a police officer may effect a warrantless arrest where he finds a person committing a criminal offence. [ 71 ] Constable Georget did not arrest either of the accused at this stage but rather searched the BMW, found cocaine and marijuana and then immediately arrested both accused for possession of drugs and shortly thereafter possession for the purpose of trafficking in

these drugs. But the fact remains he had the ability to arrest both of them for drug offences prior to the search. As a result, and applyingthe principles set forth by Martin J.A. in DeBot, supra, this was a search incident to a valid arrest even though the search preceded thearrest. [72] Despite the fact that at one point in time in his testimony he said that the search was not incident to arrest, clearly it was. It isapparent to me that when Constable Georget said this, he simply misspoke.

He had earlier testified that he had reasonable grounds tobelieve that there were drugs in the BMW and that he searched the BMW incident to arrest. The facts as a whole support thesecomments. Since the arrest was lawful, the search incidental to arrest was also lawful and there was no violation of Mr. Kola’s

section 8Charter right.

c) Was there a violation of Mr. Butros’

section 10(

b) Charter right to retain and instruct counsel without delay and to be soinformed of that right? [73] Defence counsel for Mr. Butros argued that his client’s

section 10(

b) Charter right to counsel was breached in this case. Mr.Butros was arrested three times by Constable Georget over the 71 minutes that they were on scene and each time he said that he wantedto speak to legal counsel. Despite having two cell phones, Mr. Butros was not allowed to use either of them to contact counsel eventhough there was more than sufficient time for that to occur. Counsel also raised the point that once the investigation changed to a druginvestigation. Mr. Butros was not advised of this change of circumstance and was not advised of his right to contact counsel. Defencecounsel for Mr. Kola did not make these allegations and did not take

part in this argument. [74] It is trite law that immediately upon being arrested, an accused must be advised of the reasons for his arrest and provided withhis right to counsel. This legal principle is so fundamental to the Canadian system of law that it is enshrined in

section 10 of theCharter. In addition to this duty to advise an accused of their right to counsel immediately upon arrest, the police also have a duty toadvise an individual of their right to retain and instruct counsel at the outset of an investigative detention (See R. v. Suberu, 2009 SCC 33, [2009] 2 S.C,R, 460 (S.C.C.) at paragraph 2) or when there is a fundamental and discrete change in the purpose of theinvestigation involving a different and unrelated offence or a significantly more serious offence (See R.v. Evans, (SCC),[1991] 1 S.C.R. 869 (S.C.C.) at paragraphs 47 and 48; R. v.

Black, (SCC), [1989] 2 S.C.R. 138 (S.C.C.)). The reason forthis is self-evident. It ensures that the accused is aware of the new investigation or charges the police are considering, it protects againstthe risk of self-incrimination and it assists the accused’s decision as to whether to obtain a lawyer. [75] In this case, the police stopped the BMW at 12:31 a.m. At 12:35 a.m., Constable Georget arrested Mr. Butros forobstruction. He searched him, handcuffed him and placed him in the back of his patrol car. Then Constable Georget went to assistConstable Ward with Mr. Kola. He arrested Mr.

Kola for a number of offences, searched him and placed him in the back of his policecar with Mr. Butros. Within minutes of this, Constable Blades and his partner arrived on scene and Mr. Kola was transferred to theirvehicle. At 12:41 a.m., Constable Georget returned to his police car and read Mr. Butros his right to counsel and the police warning inrelation to the obstruction charge. Mr.

Butros advised the officer that he understood the rights and warning and when asked if he wantedto call a lawyer now, he said “Yes”. [76] While Constable Georget suspected that the accused were involved in drug offences as soon as he smelled marijuana in theBMW, it was not until he read Mr. Butros his rights and warning for obstruction that his focus moved from the obstruction charge to adrug investigation. It was at this time that he called for a sniffer dog to attend the scene to do a drug sniff search. While waiting for thesniffer dog and his police handler to arrive, Constable Georget did not advise Mr.

Butros of the new investigation into drug offences nordid he give Mr. Butros his right to counsel and police warning regarding this new investigation. [77] Constable Malanowich and his dog Shadow arrived and did an exterior and interior search of the vehicle, following whichConstables Georget and Blades did a more thorough search of the BMW and located marijuana and cocaine. After the search wasfinished, Constable Georget went to his police cruiser where Mr. Butros was still seated in the backseat.

At 1:02 a.m. he re-arrested himfor possession of a controlled substance and read him his rights and the police warning for this charge. When asked if he wanted to call alawyer, Mr. Butros said, “Yes, but whatever you guys found, it is not mine, it’s not my car.” [78] Constable Georget then went to Constable Blades patrol car and arrested Mr. Kola for possession of a controlled substanceand provided him with a right to counsel and police warning for this charge. After that he called for a tow truck to attend to the scene toseize the BMW because he had determined that it was unregistered.

At 1:21 a.m., after calling for a tow truck, he re-arrested both Mr.Butros and Mr. Kola for possession of a controlled substance for the purpose of trafficking and gave them both their rights and police

warning for this charge. When asked if he wanted to call a lawyer, Mr. Butros again said “Yeah”. [79] Constable Georget and Constable Ward finally left the scene at 1:42 a.m. and transported Mr. Butros to the Saskatoon policestation. Even though Constable Georget had seized two cell phones from Mr. Butros when he had first arrested him for obstruction, anddespite the fact that the accused had told Constable Georget three times that he wanted to speak to a lawyer, Constable Georget did notgive the accused the opportunity to do that until they arrived at the Saskatoon police station.

At 1:55 a.m., at the request of Mr. Butros,Constable Ward facilitated a call to Legal Aid. The call lasted a couple of minutes whereupon he advised Constable Ward he wassatisfied with his lawyer call and he was lodged in cells. [80] From 12:35 a.m. on, Mr. Butros was in the back of Constable Georget and Ward’s police cruiser. While he was sitting there,Constable Ward remained in the cruiser with him. Although she had two cell phones that apparently were seized from him, she did notlet him use either of the phones to contact legal counsel at the roadside.

However, as soon as they arrived at the police station and Mr.Butros was booked into detention, he was given an opportunity to call a lawyer. [81] On each of the three occasions that Mr. Butros was arrested, he was properly read his right to counsel , responded that heunderstood and that he wanted to speak to counsel. There may have been a slight delay in receiving his right to counsel when he wasarrested for obstruction but this delay was mere minutes and satisfactorily explained by Constable Georget. However, ConstableGeorget should have advised Mr.

Butros that he was being detained for a drug investigation after he was arrested on the obstructioncharge and he should have been given his rights and the police warning on this new investigation. To use the words of the SupremeCourt in Evans, supra, this was a fundamental change in the purpose of the investigation involving an unrelated and significantly moreserious offence than obstruction. But Constable Georget did not say anything to Mr. Butros about the fact that he suspected that he wascommitting drug offences and would be calling a sniffer dog to attend the scene. All Mr.

Butros knew at this time was that he had beenarrested for obstruction. There was nothing in the evidence that would indicate that it was obvious that the officers were nowinvestigating him for drug offences. It was incumbent on Constable Georget to advise him of this but he failed to do so. In my view, thiswas a violation of Mr. Butros’

section 10(

b) Charter right. [82] In addition, I am also satisfied that the officers breached Mr. Butros’

section 10(

b) Charter right by not allowing him tocontact legal counsel during the hour and eleven minutes he was arrested and sitting in the back of the police cruiser. Mr. Butrosadvised that he wanted to speak to legal counsel three times over this time period. The two cell phones that were found on his personwere in the front seat of the cruiser. Yet neither Constable Georget nor Constable Ward facilitated a call. [83] In R. v. Ashby, [2013] B.C.J. No. 1538, the British Columbia Court of Appeal discussed the immediacy requirement of theright to retain and instruct counsel. At paragraphs 70 and 71, the Court said: [70]

Section 10(

b) of the Charter provides that a person who has been arrested or detained has the right “to retain and instruct counselwithout delay and to be informed of that right”. In R. v. Suberu, 2009 SCC 33 at para. 42, [2009] 2 S.C.R. 460, the Supreme Court ofCanada interpreted the words “without delay” to mean “immediately”. However, it accepted that concerns for officer and public safetycould excuse immediate compliance. Years before, in R. v. Strachan, (SCC), [1988] 2 S.C.R. 980 at 999, that Courtaccepted that the police can delay allowing a detainee access to a telephone until the situation was “under control”.

As well, in R. v.DeBot, (SCC), [1989] 2 S.C.R. 1140 at 1146, 1147, it held that, as a general rule, the police are not required to suspenda search incidental to arrest until the arrestee has had an opportunity to speak with a lawyer. [71] Delay by the police with respect to what is known as the implementational component of their duties under s. 10(

b) of the Charterwas an issue in R. v. Montgomery, 2009 BCCA 41, 241 C.C.C. (3d) 469. Mr. Montgomery was one of four persons arrested in a vehiclefor possession of cocaine for the purpose of trafficking. He indicated that he wished to speak with a lawyer. However, as the police hada policy against allowing arrested persons to use cellular telephones at the scene of an alleged crime, he was not allowed to speak with alawyer until he was taken to the detachment. Due to the number of persons that had been arrested, several hours passed before he spokewith a lawyer. In dismissing a conviction appeal, Mr.

Justice Tysoe agreed with the trial judge that the delay in allowing access tocounsel did not result in a breach of s. 10(b): [35] The trial judge concluded that it was neither reasonable nor practical to allow the appellant to use a cell phone at the scene of hisarrest. I agree with him. The police considered the arrest to be one of high risk. The appellant was believed to be associated with anorganization that used violence.

It would have been difficult for the police to ensure that the call was not used for an improper purposeand to provide the appellant with privacy at the scene of his arrest while ensuring that he was secure.

[36] The police station had only one private phone for conversations with lawyers, and the police had to deal with the three other menarrested with the appellant, as well as an unrelated matter. The trial judge made the finding of fact that the appellant was providedaccess to counsel as soon as was reasonably possible in all of the circumstances.

I am not persuaded that the judge made a palpable errorin making this finding. [Emphasis added.] [84] I agree that practical considerations still play a role in the implementational component of an officer’s duty to provide anaccused with the ability to retain and instruct legal counsel. But in this case, there is no evidence as to why Constable Georget orConstable Ward did not allow Mr. Butros to call legal counsel from the scene when he had his cell phone and had told them that hewanted to call a lawyer.

The Crown did not question either of these officers about this even though he was aware at the outset of trialthat it was an issue that counsel for Mr. Butros intended to argue. There is nothing in the evidence that would allow me to conclude thatthe officers did not allow him to speak to a lawyer at the roadside because of concerns for officer or public safety, because the cellphones seized from Mr. Butros were considered evidence at that time, because they could not provide Mr. Butros with privacy andensure he was secure or because they were concerned that the call would be for an improper purpose.

For me to conclude that eitherConstable Georget or Constable Ward had any of these concerns or any other concerns would be speculation. Consequently, I amsatisfied that the officers breached Mr. Butros’

section 10(

b) Charter right by not giving him an opportunity to call a lawyer from theroadside.

d) If any of the accuseds’ aforementioned Charter rights were violated, should there be an exclusion of evidence pursuant tosection 24(2) of the Charter? [85] Since I have found a breach of Mr. Butros’

section 10(

b) Charter right, I must consider whether any of the evidence should beexcluded pursuant to section 24(2) of the Charter. Applying the test for exclusion set forth by the Supreme Court of Canada in R. v.Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, I am not satisfied that exclusion of any of the evidence is appropriate in this case. [86] The breach of an accused’s right to counsel is a breach of one of the cornerstone rights of our system of criminal law. In thiscase, but for the breach of Mr. Butros’

section 10(

b) right, the rest of the stop proceeded appropriately. The officers had a valid reasonto stop the BMW to begin with and were professional in their dealings with Mr. Butros throughout the entire incident. The arrest of Mr.Butros for obstruction, the use of the sniffer dog, the eventual search of the BMW and the arrest of Mr. Butros for drug offences were alljustified on the evidence before me. However, both Constable Georget and Constable Ward were trained police officers and should havebeen aware of the importance of ensuring that Mr. Butros was advised of and received his right to counsel in a timely manner. Whilethey made some effort to properly provide Mr. Butros with his

section 10(

b) right, it fell short of what they should have provided him. The breach was not a blatant disregard of an accused’s right to counsel but neither was it minor. The officers’ conduct, in my view, wasa negligent disregard of Mr. Butros’ right to counsel. [87] The impact of this breach on Mr. Butros was minimal. Although he was at the roadside for a considerable period of timewhile the drug investigation took place, he had been properly arrested on other matters initially. While at the roadside, none of theofficers attempted to question him or take a statement from him.

While waiting in the police cruiser, he simply sat in the back andpatiently waited until the officers were finished their investigation. Once Constable Georget and Constable Ward arrived at the policestation, they had Mr. Butros booked in and then afforded him the ability to contact legal counsel. He spoke with counsel and told themhe was satisfied with the call.

At no point at the police station, either before they facilitated his lawyer call or after, did they attempt toillicit any incriminating information from him or take a statement from him. [88] It is obvious that the evidence of the officers’ observations, the sniffer dog’s positive indications for drugs and the drugsthemselves, are essential to the Crown’s case. Without this evidence, the Crown would not be able to get a conviction.

Given thatsociety has a strong interest in criminal cases being adjudicated on their merits, this factor favors inclusion of the evidence. [89] Balancing these three factors, I am not of the view that any evidence should be excluded in this case. The officers may nothave afforded Mr. Butros his right to counsel as timely as they should have or in the fashion they should have but they respected hisright to counsel and did not attempt to illicit any incriminating evidence from him. Any evidence that was obtained in this case was notobtained as a direct result of the breach of Mr. Butros’

section 10(

b) Charter right. At the earliest opportunity at the police station theyasked him if he wanted to speak to legal counsel and when he responded that he did, they made immediate arrangements for that call tooccur.

[ 90 ] I am not satisfied that admitting the observations of the officers, the result of Shadow’s search or the items seized from the BMW or from Mr. Butros would undermine public confidence in the rule of law and bring the administration of justice into disrepute. This evidence then, is admissible. CONCLUSION [ 91 ] There was no breach of Mr. Butros or Mr. Kola’s

section 8 or 9 Charter rights. There was a breach of Mr. Butros’

section 10(

b) Charter right however Mr. Butros has not satisfied me that this breach warrants an exclusion of any evidence in this case. All of the evidence on the voir dire will be admissible on the trial proper subject to any further applications that counsel for Mr. Butros or Mr. Kola wish to bring. _____________________ D.E. Labach, J