Her Majesty the Queen - v. -, 2014 SKPC 136

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 136 Date : June 18 , 2014 File: 24399534 Location: Swift Current , Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Hang Thu Nguyen and Cuong Cao Tran Mr. Denis I. Quon for the Crown Mr. Dean Zuk for the Accused, Cuong Cao Tran Ms. Randi Collins for the Accused, Hang Thu Nguyen ____________________________________________________________________________ DECISION ON THE ADMISSIBILITY OF EVIDENCE L.A.

MATSALLA , J _____________________________________________________________________________ [ 1 ] The accused persons are charged that they did, on the date and place alleged in the information: Possess a controlled substance included in

Schedule II, to wit: cannabis marihuana , in an amount exceeding three kilograms, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act . [ 2 ] Counsel jointly served the Crown with a notice alleging numerous breaches of certain rights set out in the Charter of Rights and Freedoms , namely, sections 7, 8, 9, 10(

a) and 10(

b) and counsel sought the exclusion of evidence obtained as a result of any such breaches under section 24(2). Therefore, a voir dire was conducted to determine whether certain evidence could be admitted. Some evidence was not in issue. It was agreed that the prohibited substance was cannabis marihuana, that the amount was possessed for the

purpose of trafficking and that the identity of the accused persons was not an issue. The Crown adduced the evidence of the investigating police officers. The accused persons did not provide any evidence to the Court. The evidence of the investigating officer is crucial to this case. Generally [ 3 ] At trial, Constable Halbauer had accumulated 9 ½ years as an R.C.M.P. officer - most of that time as a member of the local Regional Traffic Services Unit. He is a qualified Intoxilyzer operator and during his time as a police officer he has taken illegal drug interdiction courses including the following:

a) an introductory Pipeline User Course in 2003,

b) an advanced commercial vehicle interdiction course dealing with the behaviour of subjects and visible indicators,

c) the Desert Snow 123 course, and

d) the Pipeline Convoy Interdiction course in 2011 that focused on heightened officer awareness and vehicle search techniques. He conducted numerous traffic stops during which he had detected narcotics in the vehicle. He was assigned a police service dog in December 2009 and together they attended courses dealing with dog handling including a 10 week training course. The dog was trained to recognize the smell of certain narcotics namely cannabis marihuana, psilocybin, hashish, cocaine, heroin and methamphetamines. Ecstasy was recently added to the list.

Annual validation sessions were conducted in 2011 and 2012 to determine the effectiveness of the dog. The officer testified that his training enables him to look for certain evidence that may lead to illegal activity. Specifically [ 4 ] At about noon on the day in question he was monitoring traffic in his unmarked police vehicle adjacent to Highway #1 about 15 kilometres west of Swift Current. It was a cold day with temperatures hovering around minus 20 degrees. [ 5 ] An eastbound vehicle attracted his attention as it proceeded by him at a higher rate of speed.

He followed the vehicle and obtained a radar reading of 120 kilometres per hour at which point he decided to stop the vehicle for speeding, to check on the validity of the operator’s licence and vehicle registration and the sobriety of the driver. The operator of the motor vehicle respected his emergency lights and at 12:01 the vehicle pulled over to the side of the road. The vehicle had Alberta plates. [ 6 ] Constable Halbauer approached the open window of the passenger door. He could not detect the smell of cannabis and he could not detect any pungent odour that could be used to mask the smell of cannabis.

As it turned out Ms. Nguyen was in the passenger seat and she was wearing a sweater. Mr. Tran was the driver. The officer asked the driver where he was coming from and the passenger advised that they had come from Calgary. The officer asked the driver where he was going but did not get a response. He repeated the question a second time and Ms. Nguyen said that they were travelling to Regina. She did not make any eye contact with the officer. Mr. Tran had his licence ready to give to the officer and the officer also requested the registration for the vehicle. As Ms.

Nguyen obtained the registration from the glove box, it was noted that there were two cell phones in the glove box. [ 7 ] He then asked Ms. Nguyen to produce her licence and registration and she did so. He told the Court that he requested the documents from her because he wanted to determine whether there were any warrants outstanding for her. He noticed that both occupants seemed nervous in that their hands were trembling when each of them handed the documents to him. He said that by “trembling” he meant that the hands were moving up and down about an inch.

He compared the photographs on the licences with the occupants. A third cell phone was seen to be in the centre console of the vehicle and a box of confections was in the back seat but there did not appear to be any luggage. The vehicle was registered to a third party. As a result of these observations, the officer testified that he became suspicious but he made no further inquiries. He then returned to the police car with the documents to undertake a computer check. [ 8 ] When he conducted a C.P.I.C. check, he was unable to find any outstanding warrants, criminal record or court dates respecting

[ 8 ] When he conducted a C.P.I.C. check, he was unable to find any outstanding warrants, criminal record or court dates respecting either person. The vehicle was not reported as a stolen vehicle. He discovered that neither of the occupants of the vehicle was the registered owner. The C.P.I.C. records can advise a police officer whether the authorities have a specific interest in a person. Evidently, there was no such indication. He then accessed the Police Information Portal database (or P.I.P.) that permits access to information about persons from many police services.

In this case he discovered “hits” or entries made in June and July of 2010, that named Ms. Nguyen as a “property representative” in that she likely rented or owned and controlled a house. She was a “person of interest” respecting the investigation of a production of a controlled substance in Vancouver, British Columbia. [ 9 ] He considered all of the above information and, he said, he became suspicious that there were narcotics in the vehicle. He set out the basis for his suspicion as follows:

a) the driver and passenger were nervous - He found it especially unusual that the passenger (who is not normally in jeopardy when stopped by a police officer) was nervous,

b) there were three cell phones in the vehicle - He was of the view that travelling criminals have more than one cell phone - One for personal use and another to conduct illegal activities,

c) the confection in the back seat - He believed that travelling criminals want to get to their destination as soon as possible because while en route they are vulnerable to detection and so they eat while travelling,

d) the vehicle was owned by a third party - It was his view that travelling criminals prefer to use such vehicles because they cannot be identified unless the vehicle is stopped, and

e) Ms. Nguyen was a person of interest regarding an illegal grow operation in British Columbia. He told the Court that all of the evidence caused him to suspect that the accused persons may be transporting narcotics in the vehicle. He then communicated with other officers to request their assistance. [ 10 ] Upon the arrival of the officers, he advised Mr. Tran and Ms. Nguyen that he was entering into a drug investigation and that they had been detained for the possession of a controlled substance. They appeared to him to understand.

At this point he advised them of their right to counsel which they appeared to understand and they expressed an interest to speak to a lawyer. The police warning was provided and thereafter they were asked to exit their vehicle and to sit in the back of a police vehicle. [ 11 ] The service dog was deployed around the exterior of the vehicle and within one to one and a half minutes he “indicated” at the trunk of the vehicle. According to the constable, when a dog detects the odour of a narcotic, the dog is trained to sit at that location and to face the officer.

Constable Halbauer told one of the other members to arrest both of the accused persons and he then returned to the vehicle to place the dog in a kennel and, he said, to warm up. A search of the vehicle was commenced shortly thereafter. [ 12 ] The trunk was locked but the officers gained access by folding the back seat down. They found two large plastic carry bags (one blue and one red) in which vacuumed sealed larger bags were found. The bags appeared to contain cannabis marihuana. An officer arrested the accused persons for possession of a narcotic for the purpose of trafficking.

The officers then took them to the detachment while Constable Halbauer awaited the arrival of a tow truck. Once at the detachment, a more detailed search was conducted. The larger plastic bags contained smaller sealed plastic bags. The blue bag had five larger bags in which a total of 16 smaller bags were located and the red bag contained six larger bags each containing four bags for a total of 24 smaller bags. Each small bag contained about a half pound of cannabis. There were eight pounds of cannabis in the blue bag and 12 pounds in the red bag.

In addition, a further search of the vehicle disclosed a box of fabric softener in the trunk and yet another cell phone in the console. [ 13 ] In cross-examination, the police officer admitted that he did not have the authority to request Ms. Nguyen to provide him with her licence and registration. He admitted that it was cold on that day and that her trembling hands may have been caused by caffeine. The

P.I.P. did not indicate that Ms. Nguyen was facing any charges originating from any location. He acknowledged that persons can operate a third party vehicle for entirely innocent purposes. Had the police dog not indicated, the officer would have permitted the accused persons to go about their business. He told counsel that after the P.I.P. inquiry, his suspicions were heightened. Arguments [ 14 ] Both counsel for the accused argue that their client’s

section 8 and 9 rights had been infringed. They take the position that their clients were illegally detained and that there was no lawful justification for the search of the vehicle operated by Mr. Tran. [ 15 ] Counsel for Mr. Tran argues that the investigating officer had no more than a hunch that was not objectively reasonable. What may be seen as nervousness could be his reaction to the cold and Ms. Nguyen’s failure to make eye contact to the language barrier. As a whole the observations made of the accused and with respect to the vehicle could not form the basis for detention.

The information obtained by the officer that Ms. Nguyen was a person of interest arose as a result of information obtained from her driver’s licence and registration - a request that ought not to have been made since she was not the operator of the vehicle. Even so, none of the computer information pointed to any legal process affecting either person. [ 16 ] Ms. Nguyen’s counsel states that there was no evidence of erratic driving and only cursory inquiries were made respecting the third party vehicle. The Court was urged to conclude that the officer had no authority to request documents from Ms.

Nguyen and by requesting the documents the officer was conducting an additional search for which there was no basis and that the information obtained from the P.I.P. ought not to be considered in this case. [ 17 ] The Crown argues that the recent Supreme Court of Canada case of R. v. MacKenzie [1] has application to the facts in this case. It is submitted by the Crown that the basis for the investigative detention is more significant in this case than in MacKenzie . The Law [ 18 ] The relevant sections of the Charter read as follows: 8.

Everyone has the right to be secure against unreasonable search or seizure, and 9. Everyone has the right not to be arbitrarily detained or imprisoned. [ 19 ] While the analysis in respect to each

section must be distinct because the powers of the police in each case are different, the basic question to be determined is the same, that is whether the authorities had a sufficient basis to detain the accused persons and then search the vehicle.

Therefore the Court is required to examine the grounds that the officer had to suspect that the persons were involved in the commission of an offence under the Controlled Drugs and Substances Act to determine if the grounds were reasonably held [2] . [ 20 ] An officer is not permitted to detain a person or search a vehicle based upon a hunch or upon her or his intuition.

The Crown is required to show that a police officer has met the threshold imposed upon that officer by the Charter [3] . [ 21 ] The Supreme Court of Canada in Chehil [4] explained the difference between reasonable grounds and reasonable suspicion and went on to describe the ambit of reasonable suspicion. The Court said: 27 Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime.

As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more

demanding reasonable and probable grounds standard. 28 The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime. In spite of this reality, properly conducted sniff searches that are based on reasonable suspicion are Charter -compliant in light of their minimally intrusive, narrowly targeted, and highly accurate nature: see Kang-Brown , at para. 60, per Binnie J., and A.M. , at paras. 81-84, per Binnie J.

However, the suspicion held by the police cannot be so broad that it descends to the level of generalized suspicion, which was described by Bastarache J., at para. 151 of A.M. , as suspicion “that attaches to a particular activity or location rather than to a specific person”. Mr. Justice Karakatsanis J., at paragraph 29 went on to describe the nature of the inquiry as follows: 29 Reasonable suspicion must be assessed against the totality of the circumstances.

The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley , 2009 SKCA 49 , 324 Sask. R. 286, at para. 60 . A police officer’s grounds for reasonable suspicion cannot be assessed in isolation: see Monney , at para. 50.

At paragraph 72 of MacKenzie , Moldaver J. made it clear that all available information should be considered by the Court when he said: 72 Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances?

If so, the objective component of the test will have been met. If not, the inquiry is at an end. [ 22 ] An officer’s observations in the context of his or her training and experience must be given weight. [5] The nature of the Court’s analysis is set out in MacKenzie as follows: 63 Thus, in assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should be conducted through the lens of a reasonable person “standing in the shoes of the police officer” ( R. v. Tran , 2007 BCCA 491 , 247 B.C.A.C. 109, at para. 12 ; see also R. v.

Whyte , 2011 ONCA 24 , 272 O.A.C. 317, at para. 31 ). [ 23 ] Mr. Justice Moldaver described the belief expected of an officer in order to constitute reasonable suspicion as follows: To the extent one speaks of a “reasonable belief” in the context of reasonable suspicion, it is a reasonable belief that an individual might be connected to a particular offence, as opposed to a reasonable belief that an individual is connected to the offence. Analysis [ 24 ] At the outset, I propose to deal with the defence argument that since the police officer did not have authority to request Ms.

Nguyen’s licence and registration, any evidence obtained after the documents were given to the officer ought not to be considered. [ 25 ] A police officer can stop a motor vehicle for legal reasons [6] . In this province, The Traffic Safety Act , S.S., c.-T-18.1 as amended, requires that a driver produce his or her licence (section 39) and/or registration (section 61) to a police officer.

Section 209.1 enables a peace officer to require a person in charge of or operating a motor vehicle to stop the vehicle. However, only the driver is required to provide certain information to an officer and if the information is not provided by a person in charge of or operating the vehicle, an

offence under the legislation has been committed. I conclude that the passengers in a vehicle are not required to surrender his or herlicence or registration to an officer. When conducting an investigation there are many cases in which a police officer may stop a person to make inquiries and to which such persons may not be required to respond. The person may choose to walk away[7].

Informationprovided to the police can be used by the Crown. [26] There is no evidence before me that points to the officer in this case attempting to compel the surrender of the documents to himnor could it be said that she was subject to a psychological detention. Rather, the officer asked Ms. Nguyen for the documents because,he said, he wanted to check to see if there were any warrants outstanding for her and she willingly gave him the papers. Had she refusedto do so then that would have been the end of the matter.

As it turned out his access to certain information arising from examination ofthe documents gave him additional information that he said he considered before deciding to further detain them and search the vehicle. [27] In this case, Constable Halbauer’s training prompted him to be alert to certain evidence. Taken individually the observationsranged from neutral facts to more significant facts. However the information must be viewed as a whole to see if the officer has met therequired standard.

In this case, the officer’s suspicions were not based upon certain evidence such as the speed of the motor vehicle, thelack of luggage in the passenger compartment and the failure to make eye contact but upon factors such as nervousness, numerous cellphones and confections in the back seat. The computer check at roadside may well have been the factor that elevated his suspicion but,nonetheless, he did not give undue weight to neutral factors and he based his suspicion on factors that he believed, based on his training,pointed to the possibility that the accused persons had narcotics in the vehicle.

He readily admitted that had the police service dog notindicated, the accused would have been on their way. [28] The evidence does not show that the officer based the detention and the search on speculation nor does it show the presence ofonly a generalized suspicion. He made specific observations of both accused persons. Therefore, I must conclude that a reasonableperson in the shoes of this officer at roadside faced with the factors that he described reasonably suspected that the accused personscould possibly be involved in criminal activity. The defence has not shown that the

section 8 and 9 Charter rights of the accused were infringedin this case. The detention of the accused and the search of the vehicle were lawful. The evidence obtained is admissible. __________________________ L.A. Matsalla, J [1] 2013 SCC 50 , [2013] S.C.J. No. 50. Recently the Saskatchewan Court of Appeal applied MacKenzie and R. v. Chehil (infra) in R. v. Yates, 2014 SKCA 52 , [2014] S.J. No. 233, Klebuc J. [2] supra at para. 37. [3] R. v. Chehil, 2013 SCC 49 , [2013] S.C.J. No. 49 at para. 47. [4] supra. [5] supra at para. 47 and MacKenzie at para. 62.

[6] R. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257. [7] R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 at para. 37, see also R. v. Oduro, [2014] O.J. No. 2288, Allen J. (Ont. S.C.J.).