R. v. Tran, 2012 NBCA 74

COURT OF APPEAL OF NEW BRUNSWICK 2-12-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - THANH TUAN TRAN RESPONDENT THANH TUAN TRAN INTIMÉ R. v. Tran, 2012 NBCA 74 R. c.

Tran, 2012 NBCA 74 CORAM: The Honourable Justice Larlee The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Larlee L’honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: December 9, 2011 Appel d’une décision de la Cour du Banc de la Reine : Le 9 décembre 2011 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: June 13, 2012 Appel entendu : Le 13 juin 2012 Judgment rendered: August 23, 2012 Jugement rendu : Le 23 août 2012 Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : L’honorable juge Larlee

Concurred in by: The Honourable Justice Bell The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Bell L’honorable juge Quigg Counsel at hearing: For the appellant: Nicole Poirier No one appeared for the respondent Avocats à l’audience : Pour l’appelante : Nicole Poirier Personne n’a comparu pour l’intimé. THE COURT The appeal is allowed, the verdict of acquittal is set aside and a new trial is ordered. LA COUR Accueille l’appel, écarte le verdict d’acquittement et ordonne un nouveau procès. The judgment of the Court was delivered by LARLEE, J.A. [ 1 ] This is a Crown appeal against an acquittal pursuant to s. 676(1) (

a) of the Criminal Code . The facts are straightforward. On May 20, 2010, the respondent, Thanh Tuan Tran, was charged with one count of possessing cannabis for the purpose of trafficking, ( s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19). The charge arose from a vehicle checkpoint campaign by the RCMP on the Trans Canada Highway near Salisbury, N.B. The police officer, Constable Stéphane Raymond, who stopped the respondent, became suspicious of Mr. Tran based on “indicators” he observed and which he believed were connected to transporting contraband. A subsequent search of Mr.

Tran’s vehicle uncovered 20 pounds of cannabis (marihuana) in a suitcase in the trunk. At a voir dire into the admissibility of the cannabis seized, t he respondent argued that his rights under ss. 8 (unreasonable search) and 9 (arbitrary detention) of the Canadian Charter of Rights and Freedoms had been violated. The trial judge found the “indicators” cited by the police officer leading to the grounds for a search were capable of innocuous explanation and collectively were inappropriate to give rise to reasonable and probable grounds, as it would give rise to policing by “stereotypes or myths or prejudice”.

Thus, there was an unreasonable search: the police conduct was categorized by the trial judge as a “fishing expedition”. The trial judge also found there had been arbitrary detention because the police officer detained Mr. Tran on the pretence of questioning him on his CPIC record. At the conclusion of the voir dire , the trial judge excluded the evidence seized from Mr. Tran’s car pursuant to s. 24(2) of the Charter . At the subsequent trial, on December 9, 2011, Crown counsel called no evidence, and the trial judge acquitted Mr. Tran. [ 2 ] Crown counsel relies on several grounds of appeal.

She submits the trial judge erred: (1) […] in finding that the police lacked “reasonable grounds to suspect” before detaining the Respondent. While the Trial Judge correctly described the law, he erred in the application of the legal standard of “reasonable grounds to suspect” by focusing on individual grounds; (2) […] in law in reaching the conclusion that the rights of the accused not to be arbitrarily detained pursuant to

section 9 of the Canadian Charter of Rights and Freedoms had been infringed;

(3) […] in law in excluding the evidence seized pursuant to section 24(2) of the Charter. [3] At the hearing of the appeal, we allowed the appeal, set aside the verdict of acquittal andordered a new trial with reasons to follow. These are the reasons. [4] In my view it is only necessary to deal with the first issue raised on appeal: Did the policeofficer have reasonable grounds to suspect that the respondent was involved in criminal activity? The powers of this Court in determiningwhether to allow the appeal are set out in s. 686(4) of the Code.

When appealing questions of law alone, the standard of review is one ofcorrectness. The failure of a trial judge to correctly apply a legal standard to a set of facts is an error of law reviewable by the Court. [5] The police officer who stopped Mr. Tran had 21 years experience as a peace officer. For thepast 8 years, he had been attached to a Roving Traffic Unit that conducts major motor vehicle check stop operations to ensure provisionsof the Motor Vehicle Act, R.S.N.B. 1973, c. M-17, the Criminal Code and other provincial statutes are respected. When the police officerstopped Mr.

Tran the officer noticed a number of “indicators” that convinced him Mr. Tran was transporting contraband. Mr. Tran had aBritish Columbia driver’s license and was driving a car rented in Montreal. Mr. Tran explained that he had moved from BritishColumbia to Montreal because of the trouble with the Olympics. Furthermore, he was travelling to Moncton because a new casino hadopened and he believed one could win more easily at that location, as opposed to a more established casino. The officer also observed anextremely nervous passenger in the front right seat. There was a pillow and blanket in the back seat.

When he took Mr. Tran’s licenseand did a CPIC search he noticed that Mr. Tran had a firearm prohibition from British Columbia, a drug trafficking charge fromManitoba, and an outstanding warrant for an impaired driving charge from Quebec. The police officer further testified he was influencedby the fact Mr. Tran had changed his place of residence often, was coming from a contraband-source province and operating a rentedvehicle. The latter was important to him because, from his experience, those who transport contraband do not want to have their personalvehicles seized.

In his opinion, if there is contraband in a vehicle, the occupants often sleep in the car to protect it, hence the pillow andblanket. This constellation of indicators matched patterns the police officer had seen repeatedly during his career and they wereconsistent with a person travelling with contraband. [6] In R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118 (QL), theSupreme Court of Canada held that in assessing whether the police had reasonable grounds to arrest or detain, courts are required toapply the “totality of circumstances” test.

That test applies to the determination of whether the police had “reasonable grounds tosuspect” which is both an objective and subjective standard (see R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 33-35, 40, and45). In R. v. Tran, 2007 BCCA 491, [2007] B.C.J. No. 2341 (QL), at para. 12, Levine J.A. explained that the objective reasonableness ofthe arresting officer’s grounds “must be assessed from the standpoint of the reasonable person ‘standing in the shoes of the policeofficer’”. The same rule applies to the objective criteria relating to reasonable grounds to detain.

Different outcomes in the application ofthis test do not stem from the state of the law, but simply from the finding of whether a set of facts meets the applicable legal threshold.There are no hard and fast rules concerning investigative detention and the assessment of articulable cause, and no fixed checklist offactors: the matter of sufficiency of grounds must be resolved on a case by case basis (see R. v. Simpson, (ON CA),[1993] O.J. No. 308 (C.A.) (QL) at page 203; R. v. Mann, at para. 28.; R. v. Bramley, 2009 SKCA 49, [2009] S.J. 219 (QL), at para. 60). [7] In R. v.

Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, Binnie J. defines reasonablesuspicion: The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is anexpectation that the targeted individual is possibly engaged in some criminal activity.

A “reasonable” suspicion means something morethan a mere suspicion and something less than a belief based upon reasonable and probable grounds. [p. 501] In that same decision, Deschamps J. similarly defines reasonable suspicion and accepts that the concept of articulable cause is equal toreasonable suspicion, describing it as “a pragmatic and balanced response to the realities of modern law enforcement” (p. 536). [8] Reasonable suspicion is a lower standard than that of reasonable and probable grounds. It doesnot demand absolute certainty or even reasonable probability.

It means something more than a mere suspicion and something less than abelief based upon reasonable and probable grounds. The standard is often contrasted with indiscriminate police conduct based on ahunch, intuition, or speculation, none of which are sufficient to support an objectively reasonable suspicion. [9] In finding that the police officer lacked reasonable grounds to suspect, the trial judge failed to

consider the totality of the circumstances and instead tried to explain away each of the individual grounds. Rather than asking whether the existing grounds were sufficient to establish reasonable suspicion, the trial judge erred in law by taking each and every indicator given by the police officer and speculating about its potential

interpretation without considering the global context. Here is an example. In referring to the police officer’s evidence regarding Mr. Tran’s explanation as to why he was travelling to Moncton the trial judge stated: And it’s the same with the trip to Moncton, to play the casino. Well, there could be other reasons why a person would want to come to Moncton, it’s just that the first idea that comes to mind is thrown like that by the driver.

But again it is, objectively, rationally speaking, why would a person think that her or his [chances] are better at the Moncton Casino, but the Court can understand that a person that likes to play casino is like a person that likes to play golf or any sports, sometimes they want to move around, they want to try other [casinos] and these things are done and people want to visit the Maritimes.

The trial judge had no such evidence before him and he was speculating as to the reason why somebody would travel from Montreal to Moncton to go to a casino. [ 10 ] The trial judge trivialized certain other indicators without having any evidence to support his assertions. The police officer’s unrefuted evidence about the passenger was: He appeared nervous to me. Usually, people will acknowledge the police and in this case, it was a major road check Mr. [Praught] was not looking anywhere. He was just straight like he was frozen. This to me is significant.

I was involved in I’ll say about average five or six cases prior to this case where passengers were nervous and this case – these cases, when I obtained the consent search or searched the vehicle of these people, every time when the passenger was nervous, I found drugs or contraband tobacco, firearms or large sums of money. For me that was significant at that point. [ 11 ] In contrast, with respect to the police officer’s observation of the nervous passenger, the trial judge stated: Passenger nervous. How often are there passengers that look nervous but there’s nothing wrong.

For instance, officer said, every time there was a passenger nervous, that there was something wrong and the passenger was nervous and they’ve checked, they found something wrong. It was like a pretty strong statement by the officer, but the Court must wonder how many times there were passengers that looked service – looked nervous and there was nothing wrong with the vehicle, there were no offences being committed? So Mr. Praught, P-R-A-U-G-H-T, look nervous. This was considered like a big thing, a big-a strong indicator for Officer Raymond. Now to state as Mr.

Raymond did that from his personal experience, every time he has seen a nervous passenger, there was some kind of contraband taking place, it’s hard to accept that statement. The trial judge attempted to give an explanation for each of the other indicators even though t he police officer himself testified that no single indicator by itself was indicative of Mr. Tran being involved in criminal activity. [ 12 ] The trial judge also failed to take into consideration the experience of the police officer in his assessment of reasonable grounds.

He stated the following: So experience per se, I explained yesterday during Ms Poirier’s arguments that the Court should [defer] – [defer] more to an experienced officer versus a recruit or a young officer when he explains that based on his experience, he had like this hunch or he had that – that belief or that suspicion based on his experience. I had my – I have my reserves on that because the Court cannot just give a blank check to an officer because he has experience and say well, if he has – he had these suspicions because he has so much experience, the Court should not dispute that.

I think that the Court would be advocating its function as the Court needs to do a judicial exercise every time – make the exercise, determine if the Court is convinced on what the officer reports that he has observed, if objectively, his suspicions were grounded or not on reasonable consideration.

So – and that’s what I intend to do here even though I’m aware that this officer has a great deal of experience, still the Court will attempt to make an analysis, an assessment of the observations that he has related to the Court and ultimately, the Court will determine if it feels that these observations met the test of reasonable – objective reasonable grounds to suspect. [ 13 ] In taking this approach to the evidence, the trial judge misapplied the law and failed to consider the totality of grounds or indicators (see R. v. Chehil , 2011 NSCA 82 , [2011] N.S.J.

No. 499 (QL) ; leave to appeal to the Supreme Court

of Canada granted [2011] S.C.C.A. No. 492 (QL); R. v. Bramley , at paras. 47-48 ). In the context of this case, I am of the view that the cumulative effect of the indicators noted by this experienced police officer met the threshold of reasonable grounds to suspect. Accordingly, the detention of Mr. Tran was not arbitrary and not in violation of s. 9 of the Charter .

Therefore, it is not necessary to examine whether the trial judge erred in excluding the evidence seized under s. 24(2) of the Charter . [ 14 ] For these reasons, I concurred with my colleagues when we allowed the appeal from the bench, set aside the verdict of acquittal and ordered a new trial. __________________________________ M.E.L. LARLEE, J.A. WE CONCUR: _______________________________________ B. RICHARD BELL, J.A. ________________________________________ KATHLEEN A. QUIGG, J.A.