R. v. Corea Date:, 2011 BCPC 27

Citation: R. v. Corea Date: 20110201 2011 BCPC 0027 File No: 81344 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GEORGE MICHAEL COREA RULING ON VOIR DIRE OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: S. Hamade Counsel for the Accused: R. Dhanu Place of Hearing: Port Coquitlam, B.C.

Dates of Hearing: August 3, 2010 and December 21, 2010 Date of Judgment: February 1, 2011 “A corrigendum was released by the Court on February 7, 2011; the corrections have been made to the text and the Corrigendum is appended to this document." INTRODUCTION [ 1 ] The accused, George Michael Corea (“Mr. Corea ”), is charged under Information No. 81344 with possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c . 19. Mr. Corea was detained and then arrested in that regard on or about April 19, 2009.

A substance that the Crown contends is cocaine was seized from him in the course of the police investigation on that date in circumstances that, he argues, contravened his rights under ss. 8, 10(

a) and 10(

b) of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.) , 1982, c.11 (the “ Charter ”). He further argues that those Charter breaches justify an order, pursuant to s. 24(2) , excluding evidence obtained during the subject investigation. [ 2 ] Accordingly, at the commencement of Mr. Corea’s trial, a voir dire was declared for the purpose of determining the admissibility of evidence obtained during the course of the police investigation upon which the Crown now wishes to rely. As was his

right, Mr. Corea declined to call defence evidence at the voir dire. Counsel agreed at the outset that, subject to my ruling, the Crown evidence that was called during the voir dire shall be evidence in the trial proper. [ 3 ] This is my ruling on the voir dire . THE UNCONTROVERSIAL FACTS [ 4 ] The relevant facts are, for the most part, not in controversy. They may be summarised as follows: (

a) The police officers involved in the investigation at issue in this case—that is, Cst . Evan Todd (“ Cst . Todd”) and Cst . Christopher Nordlund (“ Cst . Nordlund ”)—are both members of the Coquitlam detachment of the RCMP; (

b) On the alleged offence date of April 19, 2009, Cst . Nordlund took primary responsibility for dealing with Mr. Corea . He testified that at the time he had been on the force for slightly less than two years and that over that period he had conducted, at minimum, 100 drug-related investigations; (

c) In the mid-afternoon of April 19 th , Cst . Todd was patrolling in the vicinity of North Road and Austin Avenue in Coquitlam, B.C. While doing so, his attention was drawn to a vehicle that appeared to him to be causing excessive muffler noise. Cst . Todd therefore effected a traffic stop of that vehicle to investigate the cause of the excessive noise (and, implicitly, a possible breach of the relevant provisions of s. 7.03 the Motor Vehicle Act Regulations , B.C. Reg. 26/58, am. B.C. Reg. 29/59); (

d) There were two occupants in the vehicle. An individual called Arange Silva was the driver. Mr. Corea was seated in the front passenger’s seat; (

e) Cst . Nordlund happened to be patrolling in the same area at the time and saw Cst . Todd make the traffic stop. Noting that the subject vehicle had two occupants, he pulled his police cruiser in behind Cst . Todd’s and climbed out to lend assistance; (

f) Cst . Todd dealt with the driver and Cst . Nordlund dealt with Mr. Corea ; (

g) At no time during the investigation that ensued following the initial traffic stop did any extenuating or exigent circumstances materialise that would have warranted any delay in giving the accused Charter notices and the official police warning; (

h) After alighting from his police cruiser Cst . Nordlund approached the passenger’s door, and found that the window was open between two and four inches. He attempted to make “small talk” with Mr. Corea through that opening but had difficulty following what Mr. Corea was saying. Cst . Nordlund therefore asked him to roll the window down farther. Mr. Corea was not able to do that and as he made attempts his hands shook and he appeared to Cst . Nordlund to be nervous; (

i) As Cst . Nordlund leaned in closer to the passenger window in an attempt to speak further with Mr. Corea , he could smell “a very strong odour of vegetative marijuana emanating from the vehicle”. At that point—a matter of seconds following his arrival at the passenger door—the investigation evolved into a drug investigation that was based on Cst . Nordlund’s objectively based, reasonable suspicion that Mr. Corea may be committing a drug offence; (

j) Cst . Todd, independently and more-or-less simultaneously, had detected a similar, very strong odour of vegetative marijuana emanating from the driver’s window. Both officers, by reason of their training and experience, are able to distinguish the odour of vegetative or fresh marijuana from that of burning or burnt marijuana; (

k) Upon detecting the odour of vegetative marijuana, Cst . Nordlund requested that Mr. Corea exit the vehicle and accompany him to the front bumper of the stopped vehicle in order to “isolate the smell”—that is, determine whether the marijuana smell was “emanating from [Mr. Corea ] or if … it was from the vehicle and perhaps the driver”; (

l) Mr. Corea complied with that request; (

m) Cst . Nordlund observed that, when Mr. Corea exited the vehicle, he had red-coloured, glassy eyes and walked with “a bit of a stagger”. When they reached the front bumper Cst . Nordlund observed that Mr. Corea appeared to have a dry mouth and pasty lips. At that point, Cst . Norlund “could smell a very strong odour of vegetative marijuana” emanating from Mr. Corea’s person; (

n) Cst . Nordlund thereupon arrested and handcuffed Mr. Corea for possession of a controlled substance and chartered and warned him, in an abbreviated way, from memory. In Cst . Nordlund’s own words: “I would have said to him that he was under arrest for possession of a controlled substance, that he doesn't have to say anything and then if he wishes, he could call a lawyer.” Cst . Nordlund recalls that Mr. Corea said nothing in response to the s. 10(

a) and 10(

b) Charter notices or official police warning he gave him from memory; however, the officer nevertheless believes that Mr. Corea understood them. There is no indication in his testimony that he asked Mr. Corea whether he wished to speak to a lawyer or, if so, what Mr. Corea’s response was; (

o) Cst . Nordlund gave Mr. Corea no s. 10(

a) and 10(

b) Charter notices or any official police warning prior to arresting and handcuffing him; (

p) Following his arrest of Mr. Corea , Cst . Nordlund then conducted a search of him incidental to arrest. He testified that the purposes of the search were twofold—to assure officer safety and to gather evidence. In the course of that search Cst . Nordlund located in Mr. Corea’s pockets some folded cash, a wallet also containing cash, a Blackberry-like cell phone and a metal Excel gum package containing 16 individually wrapped packets containing what appeared to him to be crack cocaine. The cash totalled $285 and was in various denominations, including one $100 bill; (

q) Upon finding what he believed to be cocaine in Mr. Corea’s physical possession, Cst . Nordlund re-arrested him for possession of cocaine for the purpose of trafficking. He re-chartered and re-warned him, again in an abbreviated way, from memory. In Cst .

Nordlund’s own words: “It would have been at the same as what I originally arrested him for as possession, yeah, like, okay, you'reunder arrest for possession for the purpose of trafficking. You don't have to say anything. If you want you can call a lawyer.” WhileCst. Nordlund has no recollection or notes of Mr. Corea responding to either of the notices or the warning; however, he (again) believesthat Mr. Corea did understand the s. 10(

a) and 10(

b) Charter notices and official police warning he gave him that second time. Again,there is no evidence that Cst. Nordlund asked Mr. Corea whether he wished to speak to a lawyer or, if so, how Mr. Corea responded; (

r) After placing Mr. Corea in the back of his police cruiser, Cst. Nordlund chartered and warned him a third time, this time from thecard issued to him by the force for that purpose, and he recorded in his notes answers from Mr. Corea that confirmed his understandingof the s. 10(

a) and 10(

b) Charter notices and the official police warning. Those answers were “yeah”, “yeah, I guess” and “yeah”,respectively; (

s) Cst. Nordlund does not recall detecting any smell (either strong or otherwise) of marijuana (either vegetative or otherwise) comingfrom his police cruiser once Mr. Corea was seated in it; (

t) After arresting the driver for possession of a controlled substance, and after Mr. Corea had been chartered and warned by Cst.Nordlund on a third occasion (that time from a force-issued card), he and Cst. Todd conducted a search of the subject vehicle. Theyfound within it neither any illicit drugs nor any drug paraphernalia. Cst. Nordlund’s evidence was that “nothing of an illegal nature” wasfound in the vehicle. Cst. Todd testified that he found other items in the vehicle which he said were “consistent with drug trafficking”. Those items were not specified; (

u) Because no marijuana that could account for the odour had been located in the course of the investigation, Cst. Todd thereafterapproached Mr. Corea, seated in the rear of Cst. Nordlund’s police cruiser, from whom he “could smell the marijuana emanating”. Mr.Corea was known to Cst. Todd through previous dealings and traffic stops, and he recognised him. Cst. Todd told Mr. Corea that hewould be conducting a further search of him and asked: “Is there anything else on you, or is there any marijuana on your person?” towhich Mr. Corea replied that “it” was in his socks.

Two small quantities of marijuana were then seized from inside Mr. Corea’s socks,one in a zip lock bag that appears in the photo exhibit to be sealed, and the other in a plastic bag that may not be fully sealed but appearsin the photo exhibit to have been fully or partially closed by twisting; and (

v) The driver was, in due course, ticketed for having an excessively noisy muffler. FACTS IN CONTROVERSY Did Cst. Nordlund Demand Mr. Corea’s Driver’s Licence Prior to Arrest? [5] While it was argued initially that at the time Cst. Nordlund engaged in conversation with Mr. Corea through the passenger window he requested Mr. Corea’s driver’s license and was given it by Mr. Corea, a close reading of the August 3rd transcript,particularly at page 24, does not bear that out, and following the ordering of a transcript counsel withdrew that argument. [6] Accordingly, I find as a fact that Cst. Nordlund did not see Mr.

Corea’s driver’s licence until he had seized his wallet during thesearch that was conducted incidental to the first arrest. Was Mr. Corea Detained Prior to Arrest? [7] Up to the time when the vehicle in which he was riding as a passenger was subjected to a police traffic stop, Mr. Corea’s libertieswere not subordinated to any specific police constraint. However, when the driver pulled his vehicle over in response to police directionthat he do so, Mr. Corea—as the passenger—came indirectly under a degree of specific police control. His travel as a passenger wasinterrupted by police intervention.

However, there is no evidence to suggest that for the few seconds that passed after the vehicle wasstopped but before Cst. Nordlund detected the odour of fresh marijuana, Mr. Corea was not free to go or do as he pleased. As theSupreme Court of Canada confirmed in R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59, not every brief encounter with policewill amount to a “detention” in the constitutional sense of the word. “’Detention’ has been held to cover, in Canada, a broad range of encounters between police officers and members of the public.

Even so,the police cannot be said to ‘detain’, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes ofidentification, or even interview. The person who is stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’.But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical orpsychological restraint.” (at para. 19). See also, with respect to passengers involved in traffic stops specifically, R. v. Bradley, [2008]N.S.J.

No. 268 (C.A.) (QL). [8] However, the situation changed when Cst. Nordlund noticed the strong odour of vegetative marijuana emanating from thepassenger window and embarked on a drug investigation. Cst. Nordlund confirmed in his testimony that, from that point forward, Mr.Corea was neither free to leave, nor to decline to comply with requests to exit the subject vehicle as part of the drug investigation. It willbe recalled that at that point Cst. Nordlund, inter alia, embarked upon investigative activity aimed at determining whether the marijuanaodour he had detected could be isolated to Mr. Corea’s person. Mr.

Corea’s compliance with the instructions Cst. Nordlund gave him inthat regard leaves no doubt that his will had been subordinated to the constable’s authority. [9] Citing in support The Queen v. Therens (1985), (SCC), 18 C.C.C. (3d) 481 (S.C.C.) at 505, I find that from thetime of commencement of the drug investigation, Mr. Corea was physically and psychologically detained. Cst. Nordlund’s Understanding of the Law Regarding Investigative Detention and Associated Charter Rights [10] The evidence that Cst.

Nordlund gave shed some light upon his state of mind at the relevant time concerning the law that governsinvestigative detention and the Charter rights that are triggered thereby. His knowledge in that regard is a material fact for the purposesof this voir dire.

[11] Despite extensive experience gained through more than 100 previous drug investigations, Cst. Nordlund lacked an appreciationof what constitutes investigative detention. His testimony was confused and confusing on this subject. He conflated the concepts ofdetention and arrest, the burden of his evidence being that while he did not turn his mind to the issue of detention per se he did notconsider Mr.

Corea to be “detained” and requiring Charter notices or an official police warning until he arrested him at the front of thevehicle after isolating a “very strong odour of vegetative marijuana” emanating from his person. Yet, Cst. Nordlund acknowledged that,from the time he began speaking to Mr. Corea and smelled a strong marijuana odour coming from the interior of the vehicle, Mr. Coreawas not free to leave. Cst. Nordlund’s evidence in the latter regard was that, had Mr.

Corea attempted to leave when being instructed toexit the vehicle, he would have arrested him then and there for possession of a controlled substance. He said that he would have donethat even though he had not yet isolated the odour of marijuana to Mr. Corea’s person (as distinct from the vehicle or the driver). Incontradiction of that testimony he also testified that he believed such “isolating” steps needed to be taken because, in his view, themarijuana odour undifferentiated from the vehicle and its other occupant would not, without more, have furnished him with reasonablegrounds to arrest Mr.

Corea. [12] Based on this evidence I find as a fact that, despite his extensive past experience in drug investigations, Cst. Nordlund did notunderstand on the night in question the distinction between investigative detention and arrest and that, further, he did not fully appreciatethat, based upon the authority of cases like Mann and others, the commencement of an investigative detention of a suspect triggers rightsin the suspect under ss. 8, 10(

a) and 10(

b) of the Charter. ALLEGED BREACHES OF MR. COREA’S

SECTION 10(

a) RIGHTS [13]

Section 10(

a) of the Charter provides that “Everyone has the right on arrest or detention ... to be informed promptly of thereasons therefor”. I have stated earlier in these reasons that I have found, as a fact, that Mr. Corea was detained from the time, veryshortly following the traffic stop, when Cst. Nordlund commenced his drug investigation. I must therefore embark on an enquiry into thesufficiency of the steps, if any, that were taken to safeguard Mr. Corea’s s. 10(

a) rights following his detention. There are also questionsraised by the defence on this voir dire as to whether Mr. Corea’s s. 10(

a) rights, following his arrest, were properly safeguarded. Was There a Breach of Mr. Corea’s

Section 10(

a) Rights Following his Detention? [14] As I have previously noted,

section 10(

a) of the Charter provides that a person who has been detained by police must beinformed promptly of the reason for the detention. “Promptly” in this constitutional enactment means “immediately”. As Morden J.A.(for the court) stated in R. v. Kelly, (ON CA), [1985] O.J. No. 2 (C.A.) (QL): “First, it may be noted that s. 10(

a) uses the word ‘promptly’ and s. 10(

b) does not. While semantically there may appear to be littledifference between ‘promptly’ and ‘without delay’ I think there is a subtle difference between them. The former is a positive term and, Ithink, does mean ‘immediately’ …”. [15] This reasoning was recently re-affirmed by the Ontario Court of Appeal in R. v. Nguyen, 2008 ONCA 49 , [2008] O.J.No. 219 (C.A.) (QL) at paras. 20-21, and applied in this province by Metzger J. in R. v. Ryan, [2008] B.C.J. No. 1359 (S.C.) (QL) atpara. 43 et seq. [16] The first opportunity for Cst. Nordlund to inform Mr.

Corea of the reasons for his detention arose at the time the officer detectedthe odour of fresh marijuana emanating from the partially open passenger window and determined that he would commence a druginvestigation. That investigation proceeded, as I have described earlier in these reasons, with Mr. Corea being instructed to exit thevehicle and walk to the front of it so that Cst. Nordlund could ascertain whether the odour of vegetative marijuana could be isolated toMr. Corea’s person. As Mr. Corea complied with those instructions Cst.

Nordlund gathered further observations—about his gait, hisoverall demeanour, the condition of his eyes and mouth and so forth. Cst. Nordlund also eventually made the lynch-pin observation heset out to make in order to determine whether Mr. Corea was arrestable—that is, the observation isolating the odour of vegetativemarijuana to Mr. Corea’s person. [17] On this analysis, I find that Mr. Corea’s s. 10(

a) right to be informed of the reasons for his detention immediately was breachedwhen Cst. Nordlund embarked upon and then carried out a drug investigation very quickly after arriving at the passenger door. He did soby giving Mr. Corea instructions to follow that were designed to allow him to determine whether the vegetative marijuana odour couldbe isolated to Mr. Corea’s person and to make other, ancillary, observations material to a drug investigation. Cst. Nordlund took thosesteps without informing Mr.

Corea in advance (that is, “immediately”) that he was being detained so the officer could carry out a druginvestigation that involved him. [18] Indeed, at no time while he was under investigative detention did Cst. Nordlund ever say anything to Mr. Corea about the reasonfor that investigative detention. The issue of a drug investigation was not mentioned by Cst. Nordlund until some time later, when theinvestigation had yielded enough observations to make Mr. Corea arrestable, and after he had in fact placed Mr. Corea under arrest forpossession of a controlled substance. Was There a Breach of Mr. Corea’s

Section 10(

a) Rights Following Arrest? [19] Mr. Corea was also entitled, under s. 10(

a) of the Charter, to be informed, immediately upon arrest, of the reason for his arrest. Cst. Nordlund purported to comply with his obligations in this regard by giving Mr. Corea an abbreviated s. 10(

a) notice, from memory,on each of the two times when he was arrested. I do not understand there to be any issue taken with the timing of those notices. However, Cst. Nordlund testified that he has no recollection or notes of Mr. Corea having said or done anything in response to theabbreviated s. 10(

a) notices to indicate his understanding of either of them. The officer maintains a belief that Mr. Corea did understandthose notices, although he cannot point to any positive evidence to support that belief. [20] In the following passage from his recent decision in R. v. Hoang, [2010] B.C.J. No. 319 (Prov. Ct.) (QL), Rideout P.C.J. madethe following comment about the need for police constables to ensure that they are understood when they give Charter notices toaccused persons:

“[The officer] testified that he recalled the Applicant ‘nod’ his head as confirmation that he both understood his rights and was electingto defer his right to access counsel. That was not a sufficient inquiry to determine whether the Applicant was clearly aware of the reasonfor his detention or that he understood his right to counsel and was waiving that right.” (at para. 62, emphasis added) [21] Rideout P.C.J. found breaches of both ss. 10(

a) and 10(

b) on that scenario in Hoang. Here, I repeat that Cst. Nordlund cannotinvoke even a head nod to explain and justify his belief that Mr. Corea understood the s. 10(

a) Charter notices (or any other notices orwarnings, for that matter) that he gave him on the alleged offence date. [22] In my view, the evidence called on the present voir dire supports Mr. Corea’s contention that his s. 10(

a) rights were violated fora second and third time following his arrests for possession of a controlled substance and, later, for possession of a controlled substancefor the purposes of trafficking. I find those breaches to have been committed because, to track the language from the Hoang judgment,on neither arrest did Cst. Nordlund conduct “a sufficient inquiry to determine whether [Mr. Corea] was clearly aware of the reason for his[arrest]”. ALLEGED BREACHES OF MR. COREA’S

SECTION 10(

b) RIGHTS [23]

Section 10(

b) of the Charter provides that “Everyone has the right on arrest or detention ... to retain and instruct counsel withoutdelay and to be informed of that right”. The leading cases defining and explicating that right include R. v. Brydges, (SCC), [1990] 1 S.C.R. 190 and R. v. Bartle, (SCC), [1994] 3 S.C.R. 173. [24] As Howard P.C.J. has noted in the recent case of R. v. Mai, [2010] B.C.J. No. 1473 (Prov. Ct.) (QL), subject to certainexceptions, s. 10(

b) requires that the police: (

a) advise the detainee or person under arrest promptly of his or her right to counsel of choice, including his or her right to consult witha free legal aid lawyer if so desired; (

b) provide the detainee or person under arrest with a reasonable opportunity to exercise this right to counsel without delay, if he or sheso chooses; and (

c) refrain from any attempt to elicit evidence from the detainee who has asked to speak to counsel until after he or she has had areasonable opportunity to do so. [25] I have previously found, as a fact, that Mr. Corea was detained from the time Cst. Nordlund commenced his drug investigation. Imust therefore enquire into the sufficiency of the steps, if any, that were taken to safeguard Mr. Corea’s s. 10(

b) rights following hisdetention. Again, there are also questions raised by the defence on this voir dire as to whether Mr. Corea’s s. 10(

b) rights, following hisarrest, were properly safeguarded. Was There a Breach of Mr. Corea’s

Section 10(

b) Rights Following his Detention? [26] “Without delay” in s. 10(

b) of the Charter, like “promptly” in s. 10(a), means “immediately”. As McLachlan C.J.C. and CharonJ. (LeBel, Fish and Abella, JJ. concurring) stated in R. v. Grant, 2009 SCC 32: "In R. v. Suberu, 2009 SCC 33, we conclude that the s. 10(

b) right to counsel arises immediately upon detention, whether or not thedetention is solely for investigative purposes. That being the case, s. 10(

b) of the Charter required the police to advise Mr. Grant that hehad the right to speak to a lawyer, and to give him a reasonable opportunity to obtain legal advice if he so chose, before proceeding toelicit incriminating information from him. Because he now faced significant legal jeopardy and had passed into the effective control ofthe police, the appellant was ‘in immediate need of legal advice’: R. v. Brydges, (SCC), [1990] 1 S.C.R. 190, at p. 206.Because the officers did not believe they had detained the appellant, they did not comply with their obligations under s. 10(b). The breachof s. 10(

b) is established." (at para. 58) [27] That reasoning of the Supreme Court of Canada has direct application to the case at bar. [28] Mr. Corea was not informed of his s.10(

b) rights to retain and instruct counsel without delay immediately upon being detained,nor at any other time throughout the part of his detention (which commenced a matter of seconds after he arrived at the passenger door)during which Cst. Nordlund carried out a drug investigation to confirm his suspicion, actuated by the odour of vegetative marijuanaemanating from the vehicle window, that Mr. Corea was in possession of a controlled substance. That investigation and evidence-gathering proceeded all the way to arrest without the investigating officer giving Mr. Corea any notice of his s. 10(

b) rights. [29] As Mr. Corea acted on Cst. Nordlund’s instructions to get out of the vehicle and move to the front of it so that the officer couldattempt to isolate the vegetative marijuana odour to his person, his compliance with those instructions left no doubt—to track thelanguage in Grant—that he “had passed into the effective control of the police”. His compliance with those instructions placed him in“significant legal jeopardy” and, indeed, furnished Cst. Nordlund with the evidence he believed he needed to have proper grounds forarrest. Mr.

Corea was, at that critical juncture, plainly in “immediate need of legal advice” but he did not receive notice of hisentitlement to seek it because, like the investigating officers in Grant, Cst. Nordlund did not clearly appreciate that he had detained Mr.Corea or that his actions vis à vis Mr. Corea had triggered rights on Mr. Corea’s part under s. 10(b). [30] For these reasons I find that Mr. Corea’s right to be informed of his s. 10(

b) rights immediately upon detention were violated. Was There a Breach of Mr. Corea’s

Section 10(

b) Rights Following Arrest? [31] While Cst. Nordlund purported to charter and warn Mr. Corea immediately following his arrest, he did so in an abbreviated wayand from memory, and not verbatim from his force-issued card. In fact, as I have noted previously, there were two such abbreviated,from-memory, attempts to charter and warn Mr. Corea following arrest. The first came after the arrest for possession of a controlledsubstance (once he had isolated the vegetative marijuana odour to Mr. Corea’s person) and the second came after Mr. Corea was re-

arrested for possession of a controlled substance for the purpose of trafficking (once the search of his pockets turned up what appeared to be crack cocaine). [ 32 ] The truncated communications that stand as Mr. Corea’s Charter notices and official warnings following arrest were very skeletal indeed. [ 33 ] Cst . Nordlund’s evidence regarding what was said on the first arrest was as follows: “Q Okay. It's after you've adduced that further evidence by having him step outside of the vehicle, that's when you arrest him for possession of -- A Correct. Q -- drugs , right, marihuana. At that stage you handcuff him?

A Yes. Q You also provide a Charter warning at that stage? A Yes. I would have said to him that he was under arrest for possession of a controlled substance, that he doesn't have to say anything and then if he wishes, he could call a lawyer .” ( emphasis added) Transcript , August 3, 2010, at p. 34 [ 34 ] His evidence regarding what was said on the second arrest was similar: “Q And at that stage you re-arrest Mr. Corea , this time for possession for the purpose of trafficking? A Correct. Q At that stage you also re- Charter and re-warn him verbally, right?

A It would have been at the same as what I originally arrested him for as possession, yeah, like, okay, you're under arrest for possession for the purpose of trafficking. You don't have to say anything. If you want you can call a lawyer .” ( emphasis added) Transcript , August 3, 2010, at p. 38 [ 35 ] In my view, with respect to s. 10(

b) particularly, these abbreviated, from-memory notices are woefully lacking in detail and do not fulfil the “informational” purpose that s. 10(

b) notices are intended to fulfil. No mention is made of the fact that a lawyer can be contacted “without delay” and that the consultation will be a private one. No mention is made of the range of choices of lawyers, or of the availability of legal aid counsel, at no charge, on a 24-hour basis, or of the assistance that the police can offer to supply the telephone number for legal aid if that is the resource to which the individual wishes to turn. In many respects the s. 10(

b) notices here reveal the same frailties as those revealed in the s. 10(

b) notice that was found wanting by Howard P.C.J. in Mai . [ 36 ] Also conspicuous in its absence from Cst . Nordlund’s evidence regarding both post-arrest, from-memory s. 10(

b) notices is any positive evidence of any indication that Mr. Corea understood the notices. As I have previously observed, the officer persists in his belief that Mr. Corea understood those notices but that belief is not rooted in anything that Mr. Corea said or did. Moreover, and remarkably, on the evidence and the facts I have found, on neither occasion did Cst . Nordlund ask Mr. Corea whether he wanted to call a lawyer. [ 37 ] As was the case with regard to the breach of Mr. Corea’s s. 10(

a) Charter rights, Cst . Nordlund did not make a sufficient, or any, inquiry to determine whether Mr. Corea understood the s. 10(

b) notices and, tracking the language in Hoang , he thus did not do what he needed to do to ensure that Mr. Corea “understood his right to counsel and was waiving that right”. [ 38 ] For all of the foregoing reasons, I find that Mr. Corea’s rights on the first two arrests to be informed immediately, on both occasions, pursuant to s. 10(

b) that he had “the right on arrest ... to retain and instruct counsel without delay and to be informed of that right” were violated. [ 39 ] Cst . Nordlund also testified that, after he had been arrested twice and been placed, handcuffed, in the back of Cst . Nordlund’s police vehicle, Mr. Corea was chartered and warned a third time, this time verbatim from a force-issued card. However, the response to the s. 10(

b) notice—“yeah, I guess”—is equivocal. It will be recalled that the formal s. 10(

b) Charter notice concludes with two questions: “Do you understand?” and “ Do you wish to call a lawyer?”. The evidence at trial does not permit the court to discern whether Mr. Corea’s “yeah, I guess” was uttered in answer to the first or the second of those questions or, indeed, whether he even appreciated that he was being asked two questions. [ 40 ] In any event, the properly scripted Charter notices and official warning that Cst . Nordlund gave Mr.

Corea from the force-issued card came at some distance in time from both arrests and they cannot be successfully invoked as purported fulfilment of an obligation to give notices that the Supreme Court of Canada has held must be given “immediately”. ALLEGED BREACH OF MR. COREA’S

SECTION 8 RIGHTS [ 41 ]

Section 8 of the Charter provides that “Everyone has the right to be secure against unreasonable search and seizure”. Counsel argues—admittedly with less force and conviction than he does with respect to s. 10—that a breach of Mr. Corea’s s. 8 rights is also revealed on the facts of this case.

[42] The “primary thrust” of the s. 8 breach argument (Transcript, December 21, 2011 at pp. 26-27)—focuses upon Cst. Nordlund’sactions in requiring Mr. Corea to exit the vehicle’s passenger seat and walk to the front of it shortly after the traffic stop had beeneffected. Counsel put the argument this way: “ ... [T]he ... s. 8 breach is that when Mr. Corea is asked to step away from the vehicle so that the smell of marihuana can be isolated tohis person, that is also a search in terms of the smell of marihuana being a search of Mr.

Corea.” Transcript, December 21, 2010, p. 5 [43] This “smell search” for drugs was conducted prior to arrest and during the period of Mr. Corea’s investigative detention. [44] I pause to note, parenthetically, that a “smell search” for drugs cannot be justified by recourse only to the fact that Mr. Corea hadbeen under investigative detention. To be justifiable, such a search would have to be occasioned by a reasonable suspicion that Mr.Corea was committing a drug offence. As Richards J.A. stated in R. v. Yeh, [2009] S.J.

No. 582 (C.A.) (QL): “It is true, of course, that in Kang-Brown the Supreme Court said an investigative detention does not involve any right to search thedetainee beyond what is reasonably necessary for safety purposes. As a result, the police have no right to conduct a sniff search as anincident of an investigative detention. Any such search needs to be independently justifiable in the sense that, before it is undertaken, thepolice must have a reasonable suspicion that the person who is the subject of the search is illegally in possession of drugs.

Given that the same standard—reasonable suspicion--triggers both the right to conduct an investigative detention and the right to conducta sniff search, there will sometimes be an overlap between detention and search in the limited sense that the same facts which justify theinvestigative detention will also justify the sniff search. This Court's recent decision in R. v. Bramley, 2009 SKCA 49, is an illustration ofthat sort of situation.

However, the circumstances warranting a detention obviously will not always or necessarily empower the police to conduct a dog search.For example, if an individual is detained for investigative purposes based on a reasonable suspicion that he or she is committing aweapons offence, the police will have no right to conduct a sniff search unless, in addition, the circumstances give rise to a reasonablesuspicion that the detainee is also unlawfully in possession of drugs.

The right to conduct an investigative detention and the right toconduct a sniff search are not coextensive and the right to undertake a sniff search is not an incident of the right to detain forinvestigative purposes.” (at paras. 48-49) As it happens, the case at bar is one of those cases where the facts that justified the investigative detention are also cited in justificationof the sniff, or smell, search. [45] Was Cst. Nordlund’s smell search of Mr. Corea permissible at law? I believe that it was. [46] The evidence discloses that very soon after approaching Mr.

Corea at the passenger’s door of the subject vehicle, Cst. Nordlundformed a reasonable suspicion that he might be in possession of a controlled substance, namely, marijuana. His subjective suspicion wasbased upon objectively verifiable evidence, that is, a strong odour of vegetative marijuana—as distinct from burning or burnt marijuana—emanating from the interior of the vehicle in which Mr. Corea was seated as a passenger. That such an odour was, in fact, emanatingfrom that vehicle was corroborated by the evidence of Cst.

Todd who detected the same odour coming from the driver’s side window ofthe same vehicle as he dealt with the driver. [47] As he testified, Cst. Nordlund could not test his suspicion that the odour of vegetative marijuana may be emanating from Mr.Corea—as distinct from the vehicle itself or possibly its other occupant—without having Mr. Corea move some distance away from thevehicle’s open door and its other occupant. By directing him to do that, and by making olfactory (and other) observations of him at adistance from the vehicle’s interior and its other occupant, Cst.

Nordlund acquired new information that confirmed his suspicion that Mr.Corea was in possession of a controlled substance and that he believed furnished him with reasonable grounds to arrest him for thatoffence. It was not argued, nor could it be, that the manner in which Cst. Nordlund carried out that smell search was anything other thanreasonable. [48] Cst. Nordlund’s abilities to discern particular odours do not compare to those of trained “sniffer” dogs, but the cases that speak tothe use of such animals as investigative aids are of some assistance in assessing the conduct of Cst.

Nordlund in the case at bar. [49] Undoubtedly, where a state actor “smells” for marijuana, the state actor’s conduct amounts to a “search” for the purposes of s. 8of the Charter: R. v. Evans, (SCC), [1996] 1 S.C.R. 8 and R. v. Kang-Brown (2008), 2008 SCC 18 , 230C.C.C. (3d) 289 (S.C.C.). Such searches are viewed as being “minimally intrusive”: R. v. M. (A.) (2008), 2008 SCC 19 , 230C.C.C (3d) 377 (S.C.C.). Being seated in public, as he was, in a vehicle that was emanating a very strong odour of vegetative marijuanathrough its already partially open passenger window, Mr.

Corea’s expectations of privacy could not be seen, reasonably, as being high:see R. v. Ladouceur, 2002 SKCA 73 , [2002] S.J. No. 343 (C.A.) (QL), esp. at paras. 126-128. A smell search of the kindconducted by Cst. Nordlund would not, in my opinion, markedly diminish that comparatively low expectation of privacy. [50] In R. v. Schrenk, (2010), 2010 MBCA 38 , 254 C.C.C. (3d) 277, police officers effected a traffic stop for legitimatereasons unrelated to drugs.

As they dealt with the driver they made some observations that gave rise to a reasonable suspicion on theirpart that the driver may have been committing a drug offence. They deployed a sniffer dog to pursue that suspicion by conducting awarrantless smell search of the driver’s vehicle and, in so doing, located a significant quantity of marijuana. The conviction of the driver,based in part on evidence obtained as a result of the smell search that was ruled admissible at trial, was upheld on appeal.

At para. 114of the Schrenk decision, Steel J.A. (for the court) stated the following: “Based on all of the above, I conclude that the warrantless search of the vehicle by the sniffer dog was in conformity with s. 8 of theCharter as, based on the totality of the circumstances, the police officer had an objectively verifiable, reasonable suspicion that theaccused was involved with drug trafficking and the dog sniff was carried out in a reasonable manner.”

[51] To summarise, Kang-Brown confirms the authority of the police to use sniffer dogs on the basis of a standard of reasonablesuspicion. (See also, in this regard, R. v. Bramley, 2009 SKCA 49 , [2009] S.J. 219 (C.A.) (QL) and, more recently and in thisprovince, R. v.

Payette, [2010] B.C.J. 1741 (C.A.) (QL).) I conclude that that reasoning must also apply to a police officer who, unaidedby a sniffer dog, relies upon his own olfactory equipment and capabilities to follow up, in a reasonable manner, a reasonable suspicionthat a detainee is committing a drug offence. [52] For all of the reasons I stated above I find that the smell search conducted of Mr. Corea during the course of his investigativedetention by Cst. Nordlund was a reasonable search, based on an objectively verifiable suspicion that Mr. Corea was committing a drugoffence.

As such the smell search did not violate Mr. Corea’s s. 8 Charter right to be secure against unreasonable search and seizure. EXCLUSION OF EVIDENCE UNDER SECTION 24(2) [53] On the basis of the foregoing analysis I have found: (

a) one breach of Mr. Corea’s s. 10(

a) right to be informed promptly of the reason for his detention; (

b) two breaches of Mr. Corea’s s. 10(

a) right to be informed promptly of the reason for his arrest; (

c) one breach of Mr. Corea’s right to be informed, without delay upon detention, of his s. 10(

b) right to retain and instruct counsel; and (

d) three breaches of Mr. Corea’s right to be informed, without delay upon arrest, of his s. 10(

b) right to retain and instruct counsel. [54] Referring to the Charter breaches in the case before her in Mai—a case in which a number of parallels to the case at bar can bediscerned—Howard P.C.J. stated the following: “ … I am satisfied that the various Charter breaches in this case are intertwined with one another and that they are closely connected,causally, temporally and contextually, to the evidence that the defence seeks to exclude. The only exception is the s. 10(

b) breach. Thisbreach is not causally connected to the evidence located in the vehicle and in the accused's purse. However, there is in my view a closetemporal and contextual connection between the s. 10(

b) breach and this evidence …” (at para. 131) [55] Those comments (which invoke, without specifically mentioning, the authority of R. v. Goldhart, (SCC),[1996] 2 S.C.R. 463) apply, mutatis mutandis, to the breaches of Mr. Corea’s rights under ss. 10(

a) and 10(

b) of the Charter that I havefound were committed by Cst. Nordlund here. [56] Mr. Corea argued that the noted breaches are sufficient in number and seriousness to warrant the exclusion of all of the evidenceobtained following the commencement of the drug investigation that is at issue here.

Crown counsel argued, to the contrary, that if allsuch breaches were to be found to have occurred (which was disputed), they must be viewed in the context of a relatively fast-movingand fluid encounter between police and suspect and that, overall, neither the number nor the seriousness of the breaches would justify anorder under s. 24(2) of the Charter excluding evidence that is indispensable to the prosecution of a serious drug offence.

The Test [57] Section 24(1) of the Charter creates a right in those whose constitutionally protected rights and freedoms have been infringed ordenied to turn to a court of competent jurisdiction to obtain a just and appropriate remedy.

Section 24(2) provides as follows: “Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” [58] Exclusion of evidence under s. 24(2) is the constitutional remedy that Mr.

Corea seeks in this voir dire. [59] In 2009, the Supreme Court of Canada had occasion in Grant to revisit the analytical process according to which trial judges'decisions to exclude evidence, or not, under s. 24(2) for Charter breaches ought to be made. That case, and two others that were decidedcontemporaneously with it—R. v. Suberu, 2009 SCC 33 and R. v.

Harrison, 2009 SCC 34—have restated the test for exclusion. [60] The test, as re-formulated, is succinctly summarised at para. 71 of Grant as follows: “… [W]hether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disreputeengages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking andsocietal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admittingthe evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct(admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in theadjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines ofinquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice intodisrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant tothe s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.” (

a) The seriousness of the Charter-infringing state conduct [61] As Frankel J.A. (for the majority) recently stated in R. v. Reddy, 2010 BCCA 11 , [2010] B.C.J. No. 49 (C.A.) (QL),“the greater the level of state misconduct, the greater will be the need for the courts to dissociate themselves from that conduct” (at para.92). [62] In my view, the “state misconduct” reflected in Cst. Nordlund’s actions—while by no means the most serious that can be

imagined in these circumstances and certainly not “abusive”—is serious nevertheless. [ 63 ] The s. 10(

a) breach that was committed when Cst . Nordlund placed Mr. Corea under investigative detention sprang largely from Cst . Nordlund’s ignorance and confusion regarding the nature of investigative detention, the way it is distinguishable from arrest, and the Charter rights that are occasioned by both forms of intrusive intervention into private lives. He said he didn’t think he had Mr. Corea under detention at the commencement of the drug investigation but he also said that, had he tried to leave, Mr. Corea wasn’t free to go.

At times he appeared to acknowledge an awareness that Charter rights do arise upon detention but he also soldiered on with his investigation without giving effect to those Charter rights. Of concern was Cst . Nordlund’s admission that he had never really reflected upon what constitutes detention (as distinct from arrest) before being cross-examined at Mr. Corea’s trial. “Q If you're giving Mr. Corea instructions to move out of the vehicle, and if he asked to leave you would arrest him, is he not detained, in your mind? A Well, yeah, he would be detained at that time.

Q So when you initially stated that he's not detained at that time, you're now saying he was detained at that time? A Well, it's not -- I hadn't thought of it as you're describing it, like, again I was initiating a drug investigation and I was trying to determine where the smell was originating from. Q I'm just trying to determine what the -- why there's a difference in your initial evidence and why you eventually come to the conclusion that he was detained. A Again, like, the way that you are questioning me, I had never thought of that circumstance before . Q Okay.

A I again at the moment was conducting, initiating a drug investigation from the moment that I could smell it, and again the different observations that I was seeing on Mr. Corea . Q So going back to what you were thinking at the time, you weren't sure whether he was detained or not, you were just conducting your investigation and rolling with the evidence? A I didn't say to him that he was detained at that point when I started smelling the marihuana. Again I was conducting an investigation at that point as to where this was coming from.

Q Did you turn your mind at that point in time whether he was detained or not? A No . Like, I wasn't thinking that I'm detaining him. I was again as -- as the steps are progressing, like the seconds are going by, I'm gathering what evidence I could from these observations to the vehicle, to the smell. Q Is it fair to say, then, you're -- you smell this marihuana, you've conducted up to 100 investigations, drug investigations up to that point in time, and you're following your police instincts at that time? A Mm-hmm. Q Is that fair to say? A Yes.

Q And you just talked about the fact that when you asked him to exit the vehicle, you've not informed him at that time that he was detained pursuant to a drug investigation. A No, I did not. Q You are aware, however, that when an individual is under detention you have an obligation to advise them as to why they're under detention, right? A Yes. Q is that something you chose not to do, or it just didn't cross your mind? A Well, again, it -- I wasn't at that time thinking to myself I'm detaining him.

I was trying to isolate the smell of the marihuana to determine whether it was coming from the individual or the vehicle itself … “ ( emphasis added) Transcript , August 3, 2010, pp. 29-30 [ 64 ] Cst . Nordlund failed to advise Mr. Corea of the fact that he was being detained pursuant to a drug investigation that arose adventitiously and unexpectedly out of a traffic stop that was occasioned by the noisy muffler on the vehicle in which Mr. Corea was a mere passenger. Mr. Corea yielded to the officer’s authority without being told why state control was being imposed upon him. Mr.

Corea’s compliant actions resulted in evidence being gathered from him that could not have been gathered without that compliance. That evidence—that is, the odour of marijuana isolated to his person—furnished Cst . Nordlund with what he believed he needed in order to make an arrest which led, in turn, to a search and a second arrest. I say again that this concatenation of events was set in motion without Mr. Corea having ever been put on notice by Cst . Nordlund of the reason for his detention and, hence, the legal jeopardy that his compliance could potentially bring with it.

[65] Cst. Nordlund is a police officer, upon whom the state confers extraordinary powers. Those powers allow him to intrude into thelives and private affairs of citizens for legitimate law enforcement purposes, but only in accordance with the law, including theconstitutional guarantees enshrined in the Charter. It was not incumbent upon Cst.

Nordlund to be steeped in the law in the ways thatlawyers and judges are or should be (see Grant at para. 133), but it was his obligation to have a serviceable grasp of the scope and limitsof his legal authority as a police officer so that he would not be at risk of exercising his extraordinary powers to intrude into the lives andprivate affairs of citizens without due regard to Charter rights as he did here. More particularly, it was incumbent upon Cst.

Nordlund tohave a clear enough grasp of Mann (decided in 2004) and the rest of the relevant law to be able abide by the dictates of constitutionalenactments that specify how his extraordinary powers could be deployed lawfully while detaining and arresting suspects in the course ofhis duties. [66] Ignorance and confusion regarding the nature, scope and limits of police authority have, before, been acknowledged as anaggravating factor in the s. 24(2) analysis, the more so when the evidence suggests, as it does here, that there may be a systemicproblem. How could Cst.

Nordlund have carried out more than 100 drug investigations and not know the distinction between detentionand arrest, and also not appreciate the importance of giving timely and complete Charter notices and ensuring that they are understood? As Johnstone J. stated in R. v. Phan, 2003 ABQB 469 , [2003] A.J. No. 607 (Q.B.) (QL), a case in which evidence obtained inbreach of Charter rights was excluded under s. 24(2): “This was a serious violation and not an isolated, situation-driven incident.

It indicates a fundamental misunderstanding of the law by theofficers and perhaps a systemic problem given their reference to "standard" practice.” (at para. 29) [67] While I would stop well short of characterising Cst. Nordlund’s conduct as demonstrating bad faith, neither can he properly claim—given the inadequacies of his knowledge about the boundaries of his own authority and his obligations in connection with the exerciseof that authority—to have acted in good faith when carrying out his investigation of Mr. Corea. "Good faith" for present purposesamounts to more than the mere absence of bad faith.

As Iacobucci J. observed in Mann, "this Court has stated that 'good faith' cannot beclaimed if a Charter violation is committed on the basis of a police officer's unreasonable error or ignorance as to the scope of his or herauthority" (at para. 55). It is thus incumbent upon police officers when dealing with members of the public to be ever mindful of thescope of their authority and to act within it: see R. v.

Buhay, 2003 SCC 30 , [2003] 1 S.C.R. 631 at para. 59 and Reddy at paras.99-102. [68] In my respectful opinion, where (as here) Charter breaches can be traced to ignorance or confusion on the part of a state actorregarding the nature, scope and limits of his or her authority, and where (as here) the state actor errs not on the side of caution but on theside of infringement, the breaches attain a higher level of seriousness. [69] In this regard the case at bar can be distinguished from Grant on its facts.

In that case, the officers in question did not equivocateabout whether the accused was under detention; they were, in the court’s eyes, understandably mistaken in their belief that the accusedwas not detained at all when they posed questions to him. More importantly, in Grant the officers were not specifically posing theirquestions in order to determine whether the accused was in possession of a firearm and pursuing an investigation in the hope of locatingone without telling the accused that that was their purpose.

Rather, the firearm in Grant turned up unexpectedly in the course of generalquestioning that the court ultimately ruled transcended the questioning that can be done without Charter notices. [70] Here, by contrast, Cst. Nordlund had a clear focus for his investigation of Mr. Corea from its inception. Cst. Nordlund’s was apurposeful investigation aimed at determining whether Mr. Corea was committing a drug offence. While Cst. Nordlund was back andforth in his testimony about whether Mr. Corea was detained, he was clear in his mind at the time and in his evidence at trial that at thematerial time Mr.

Corea was not free to leave. Cst. Nordlund acknowledged at least once that he understood he had an obligation toadvise a person under detention of the reason for that detention (Transcript, August 3, 2011, p. 30, lines 40-43), yet he carried out a veryfocussed and productive drug investigation of Mr. Corea without ever telling him why he was not free to leave or what it was that he wasinvestigating. That, in my view, is police conduct that the courts cannot countenance. [71] The s. 10(

a) breaches that occurred after Mr. Corea’s two arrests are less serious than the one just described (followingdetention) but they are but serious nevertheless. The problem with them is that, in circumstances where he admitted there was nopressing need to move swiftly, Cst. Nordlund engaged in a perfunctory, go-through-the-motions exercise where he offered skeletalparaphrases of the s. 10(

a) Charter notice rather than the full text of the notice that is inscribed on his (and every RCMP officer’

s) force-issued card. He has no recollection of the responses he received, if any, to those notices. Neither does he have any notes of anyresponses. While he contends that he believes Mr. Corea understood the s. 10(

a) notices given on arrest, Cst. Nordlund cannot point toanything that Mr. Corea did or said that would justify that belief. [72] This approach to dealing with a suspect’s constitutional rights invites the use of the epithet “cavalier”. Because of Cst.Nordlund’s approach to informing Mr. Corea of his Charter rights, the Crown is not in a position to argue, credibly, and based onevidence, that Mr. Corea knew, even after being arrested twice, why he had been arrested. [73] I turn now to the s. 10(

b) breaches. They are three in number. Mr. Corea was not informed of his right to counsel when he wasfirst detained and, as was the case with the s. 10(

a) breaches following arrest, there is no evidence from which the Crown can argue thatMr. Corea understood what he was told about his s. 10(

b) rights, much less waived them, either on the two occasions when he wasplaced under arrest or the third occasion when he was read those rights “from the card” while handcuffed in the back of Cst. Nordlund’spolice cruiser. [74] Everything that I have said about Cst. Nordlund’s approach to giving Mr. Corea s. 10(

a) Charter notices after arrest beingperfunctory and cavalier—and the Crown’s problems of proof of Charter compliance that flow therefrom—applies equally to the waythe officer went about safeguarding Mr. Corea’s right to be informed about his rights to counsel. The skeletal paraphrases of the s. 10(b)notices left out more essential content than they included and there is nothing in the evidence concerning those exchanges upon whichthe court can reliably find either understanding or waiver. [75] I repeat that by Cst. Nordlund’s own admission, no exigent circumstances of any kind forced a need for him to proceed in

anything less than a fully Charter-compliant fashion in his drug investigation of Mr. Corea. [76] The rights that Parliament sought to protect with s. 10(

b) of the Charter are rights of profound significance, invokingconstitutional notions of fair treatment of the individual in recognition of the imbalance of power that necessarily exists between the stateand any individual suspected of committing a criminal offence.

Lamer J. for the majority (LaForest J. concurring in the result)summarised those rights this way in Brydges: “… [T]his Court has made clear that the right to counsel is, to cite the words of Wilson J. in Clarkson, supra, at p. 394, aimed ‘atfostering the principles of adjudicative fairness’, one of which is ‘the concern for fair treatment of an accused person’. It is of note thatthe right to counsel is triggered ‘on arrest or detention’.

Fair treatment of an accused person who has been arrested or detainednecessarily implies that he be given a reasonable opportunity to exercise the right to counsel because the detainee is in the control of thepolice, and as such is not at liberty to exercise the privileges that he otherwise would be free to pursue. There is a duty then, on the policeto facilitate contact with counsel because, as I stated in R. v.

Manninen, (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43: The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but,equally if not more important, to obtain advice as to how to exercise those rights. ... For the right to counsel to be effective, the detaineemust have access to this advice before he is questioned or otherwise required to provide evidence. As a result, s. 10(

b) of the Charter imposes at least two duties on the police in addition to the duty to inform the detainee of his rights.First the police must give the accused or detained person a reasonable opportunity to exercise the right to retain and instruct counsel, andsecond, the police must refrain from questioning or attempting to elicit evidence from the detainee until the detainee has had thatreasonable opportunity.

The second duty includes a bar on the police from compelling the detainee to make a decision or participate in aprocess which could ultimately have an adverse effect in the conduct of an eventual trial until the person has had a reasonableopportunity to exercise the right to counsel: R. v. Ross, (SCC), [1989] 1 S.C.R. 3, at p. 12.” [77] It is reasonable to expect that, in their work, police officers will give effect to such rights with a measure of gravitas that befitstheir constitutional stature and significance. That did not happen here. To the contrary, Cst. Nordlund’s approach to Mr. Corea’s s.10(

b) rights was casual and off-hand. The result was that Mr. Corea was conscripted to furnish evidence against himself that led,eventually, to the searches and seizures that supplied the evidence necessary to proceed with the charge against him—all without hishaving been told at any time before he was arrested the reason for his detention or that he had a right to retain and instruct counselwithout delay. As I have noted, to the extent he was told anything about his Charter rights, he was told too late, in a manner that wasincomplete and without Cst. Nordlund being able to identify any evidence that would confirm either his understanding or his intentionsregarding contact with counsel. (

b) Impact on the Charter-protected rights of the accused [78] In my view, the impact of the noted breaches on Mr. Corea’s rights under ss. 10(

a) and 10(

b) of the Charter was serious. Had itnot been for the fact that Cst. Nordlund conscripted Mr. Corea to furnish evidence against himself by complying with the officer’sinstructions to leave the vehicle and locate himself at a place where the officer could isolate the odour of marijuana to his person, on hisown view of the law Cst. Nordlund would not have had grounds to arrest Mr. Corea for possession of a controlled substance or to searchhim incidental to arrest and thus locate and seize the real evidence upon which the Crown now seeks to rely. [79] Cst. Nordlund secured Mr.

Corea’s compliance with directions given in the course of investigative detention without fulfillinghis obligations to him under either s. 10(

a) or s. 10(

b) of the Charter. As I have noted, ss. 10(

a) and 10(

b) are conceptually andfunctionally interrelated. Information imparted regarding the reasons for detention or arrest will inform the ability of the detainee toevaluate his or her potential legal jeopardy and thus guide and influence his or her decision as to whether to seek legal advice regardingmatters as they are unfolding. Of particular significance in this connection is the legal requirement under s. 10(

b) that law enforcementpersonnel refrain from requiring suspects to engage in any potentially incriminating processes until they have been given a reasonableopportunity to confer with counsel: see Bartle at para. 17. [80] While it is my opinion that all of the breaches found on this voir dire were serious, I consider that the impact of the breaches ofMr. Corea’s s. 10(

a) and 10(

b) rights upon his initial detention were the most serious because his self-incriminating actions incompliance with Cst. Nordlund’s directions—unshaped either by knowledge of the officer’s investigative purpose or by legal advice—began while Mr. Corea was detained and before his arrest. Everything flowed from there. We cannot know and it is idle to speculate asto what Mr. Corea would have done if he had been given his ss. 10(

a) and 10(

b) Charter rights and official warning at thecommencement of the investigative detention—a detention that, on the authority of Mann, “should be brief in duration and does notimpose an obligation on the detained individual to answer questions posed by the police” (at para. 45). (

c) Society’s interest in the adjudication of the case [81] The crack cocaine seized from Mr. Corea is reliable, real evidence (assuming, without deciding, that its identity as crack cocainecan be proven in the face of difficulties that were revealed in the evidence regarding continuity of exhibits dispatched for analyticaltesting). Beyond that, trafficking in hard drugs, like cocaine, is a serious societal problem with many victims.

The apprehension andconviction of those who engage in this form of illicit commerce, with its many indirect adverse effects, is an understandably high priorityfor law enforcement personnel within of our society and for the citizenry itself. These considerations require that a decision not be takenlightly to exclude evidence that, the prosecution acknowledges, is indispensable to its case against Mr. Corea. (

d) Balancing the factors [82] The s. 24(2) analysis, following the protocol prescribed by the Grant trilogy, is a qualitative exercise. There is no preciseformula to apply and different factors will weigh differently in the equation in different cases. In the final reckoning, the question ofwhether the disputed evidence must be admitted or excluded in this and all cases is answered by determining which of those steps—admission or exclusion—will best preserve public confidence in the administration of justice.

[83] If, having regard to all of the necessary considerations, I conclude that the admission of the evidence against Mr. Corea here willbring the administration of justice into disrepute, I must exclude it. Of course, any decision to exclude evidence under s. 24(2) has theeffect of vindicating the Charter rights that were breached in the course of obtaining that evidence. However, such decisions often, ifnot usually, have the effect of preventing the adjudication of criminal allegations on their merits—that is, of preventing that which“society generally expects” (Grant at para. 79).

In balancing such vindication of Charter rights against the inimical effect of the loss ofthe disputed evidence to the truth-seeking process that would unfold at Mr. Corea’s criminal trial if it proceeds here, I must—in thewords of Doherty J.A. (for the court)—ask myself whether “the vindication of the specific Charter violation through the exclusion ofevidence extracts too great a toll on the truth-seeking goal of the criminal trial": R. v.

Kitaitchik, (ON CA), [2002]O.J. 2476 (C.A.) (QL) at para. 47 (cited with approval in Harrison at para. 23). [84] This analysis leads inexorably to a qualitative assessment of the egregiousness of the police conduct, seen in context, whichaccounts for the breaches that are cited as a basis for exclusion under s. 24(2).

At para. 41 of his decision in Kitaitchik, Doherty J.A.made this observation: “… Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregardfor Charter rights: see Hill, "The Role of Fault in Section 24(2) of the Charter", The Charter's Impact on the Criminal Justice System(1996), at p. 57, (Cameron ed.).

What is important is the proper placement of the police conduct along that fault line, not the legal labelattached to the conduct.” [85] Using this continuum as an evaluative tool, I would first comment that nothing that was done or omitted to be done by Cst.Nordlund in respect of Mr. Corea’s Charter rights fits into the category of “blameless conduct”. As I have noted, the officer’s failure toprovide Mr. Corea with any s. 10(

a) and 10(

b) notices on initial detention is rooted, in part, in what I consider to be an inexcusableignorance of what the law notoriously required and requires of an investigating officer who places a citizen under detention. But it isalso rooted, in part, in Cst. Nordlund’s willingness to err on the side of committing a Charter violation to the extent of his uncertainty. Recall that there were no pressing time imperatives and that it would have been a simple matter for him to confirm his understanding asto what was the right thing to do (with Cst. Todd, for example, who testified in direct that he did give the driver his Charter rights underss. 10(

a) and 10(

b) immediately). Counsel for Mr. Corea decried Cst. Nordlund’s approach as having some of the features of a “go forit,” damn-the-torpedoes mentality. I agree with that characterisation and, in my opinion, Cst. Nordlund’s lapses regarding Charternotices on Mr. Corea’s initial detention fall somewhere at the upper end of the negligence part of the continuum if not at the lower end ofthe “blatant disregard” range. [86] The off-hand recital of highly abbreviated and deficient proxies for ss. 10(

a) and 10(

b) notices and official police warnings thatwere given after Mr. Corea was arrested, on both occasions, was seriously negligent at best. (The later, “from-the-card” warnings cametoo late to be redemptive and it is not possible to know whether Mr. Corea’s “I guess” is a response to “Do you understand?” or “Do youwish to call a lawyer?”.) The fact that Cst. Nordlund took little interest in ensuring that Mr. Corea understood and responded coherentlyto those abbreviated notices and warnings and made no notes to confirm understanding or anything about Mr.

Corea’s wishes withregard to obtaining legal advice nudges the police conduct in this regard toward, if not into, the blatant disregard range. [87] After careful and anxious consideration I have reached the conclusion in this case that a decision to include the evidence,including the drugs, obtained by Cst. Nordlund from Mr. Corea during the Charter-vulnerable drug investigation at issue in this voir direwould bring the administration of justice into disrepute. [88] I emphasise that I am not dealing here with a case involving a single or even two, inadvertent lapses in good police practice.

Rather, there is revealed on the evidence adduced at this voir dire a troubling pattern of non-adherence to the requirements of theCharter. I am entitled, indeed obliged, to survey the breaches in the aggregate for the purposes of my s. 24(2) analysis. [89] R. v. Lauriente, [2010] B.C.J. No. 242 (C.A.) (QL) is a recent case involving an admittedly more egregious pattern of disregardfor the Charter than that which is before me.

The words of Prowse J.A. (for the court), quoted below, nevertheless reveal an approachto cumulative breaches that has application to the case at bar. “… This case involved one investigation in which the police overstepped the law in several instances evidencing a pattern of disregard ofCharter rights which the trial judge found to be serious. She specifically found that each of the individual Charter breaches were serious,albeit not at the extreme end of the range, or reflecting bad faith on the part of the police.

If she had considered the breaches individually,as if they had occurred in a vacuum, or in circumstances which were otherwise unremarkable, she may have concluded that the seriousremedy of the exclusion of evidence was not warranted; that is, that the admission of the evidence obtained thereby could not havebrought the administration of justice into disrepute.

But these breaches did not occur in a vacuum, they occurred in the context of arelatively brief investigation where each step in the investigation followed and built on the prior step, ultimately culminating in theobtaining and execution of the search warrant which led to the respondents' (and Ms. Lauriente'

s) arrest, and the further breach of Mr.Catalano's right to counsel. In my view, the trial judge was entitled to have regard to all of these breaches, both in placing the seriousnessof the individual breaches in context, and, more particularly, in determining whether this pattern of disregard of the Charter by theauthorities could bring the administration of justice into disrepute.” (at para. 30) [90] Looking at the breaches of Mr.

Corea’s Charter rights cumulatively, as I am required to do, I have reached the conclusion thatpublic confidence in the administration of justice would be undermined if, on the facts of this case, the Crown were permitted to makeuse, in the prosecution, of the evidence obtained in Cst. Nordlund’s drug investigation of Mr. Corea. [91] Of course s. 24(2) not a tool to be used to punish the police do not play their

part in safeguarding Charter rights in the course oftheir work. My decision to exclude here is not actuated by a punitive impulse. But, equally, in making my ruling under s. 24(2) in thiscase after carrying out the appropriate analysis, I must be mindful of the risk that a decision to admit the evidence would be interpreted as“judicial condonation of unacceptable conduct by investigatory and prosecutorial agencies”: see R. v. Collins, (SCC),[1987] 1 S.C.R. 265 at p. 281 and R. v. Mack, (SCC), [1988] 2 S.C.R. 903 at para. 73 et seq. [92] My concerns are much the same as those of Acquila P.C.J. whose decision to exclude was ultimately upheld in Buhay (see

paras. 68 et seq.). As did Howard P.C.J. in Mai, I respectfully agree with and adopt the statement of principle found in R. v. Golub, (ON CA), [1997] O.J. No. 3097 (C.A.) (QL) at para. 61, which was later cited with approval in R. v. Bohn, [2000] B.C.J.No. 867 (C.A) (QL) at para. 46: “The moral authority to apprehend and punish those who commit crimes rests on the community's commitment to the rule of law.Convictions procured by state violations of our most fundamental law lack that moral authority.

Respect for the rule of law and the longterm viability of the justice system suffers where the police engage in ‘short cuts’ or fail to respect the constitutional rights of those theyencounter in the course of the exercise of their duties. The long term harm to the justice system is not worth the short term gain made bythe admission of evidence which was obtained in a manner that ignores the rule of law.” [93] That expression of principle is, in my view, directly engaged by the case at bar.

Applied as I have seen fit to apply it here, theprinciple may not cut much ice with some members of the public, but I believe that it should and would resonate with most “reasonableperson[s], informed of all relevant circumstances and the values underlying the Charter”: Grant at para. 68. DISPOSITION [94] In this case the evidence establishes an aggregation of Charter breaches of substantial seriousness. Those breaches are neitherexplained nor excused by evidence of exigent circumstances.

The breaches originate, in part, in ignorance of the law that governseveryday police practice and, in part, in the investigating officer’s apparent willingness to resolve uncertainty in favour of forging aheadin ignorance. While efforts were made, eventually, to comply with Charter imperatives, those efforts came too late and they were off-hand in nature and substantively deficient. [95] As I have said, balancing and weighing all the Grant factors I have reached the conclusion that the damage to the repute of theadministration of justice that would result from the admission of the evidence obtained from Mr.

Corea in the context of the notedpattern of Charter non-compliance would be intolerable. That damage overtakes and displaces the concerns I have about the lesser, butnevertheless real, damage that accrues to the Crown being deprived of the ability to make use of crucial evidence in its prosecution of theaccused here. [96] It follows from all that I have said in this ruling that all of the evidence obtained from Mr. Corea from the moment he stepped outof the vehicle in response to Cst.

Nordlund’s request that he do so, and thereafter, is excluded pursuant to s. 24 (2) of the Charter. [97] Order accordingly. ________________________ Thomas S. Woods, P.C.J. CORRIGENDUM – Released February 7, 2011 [1] The first sentence of paragraph 28 of the judgment is amended to delete the words “via the traffic stop.” As amended, thesentence reads: Mr. Corea was not informed of his s.10(

b) rights to retain and instruct counsel without delay immediately upon being detained, nor atany other time throughout the part of his detention (which commenced a matter of seconds after he arrived at the passenger door) duringwhich Cst. Nordlund carried out a drug investigation to confirm his suspicion, actuated by the odour of vegetative marijuana emanatingfrom the vehicle window, that Mr. Corea was in possession of a controlled substance.