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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Protection against arbitrary detention or imprisonment - Protection against unreasonable search and seizure

Friday, January 19, 2018 @ 8:32 AM  

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Appeal by the accused from his conviction for possession of marijuana for the purpose of trafficking. The appellant argued that the trial judge erred in not finding that his rights under ss. 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms (Charter) were breached. The police stopped the appellant’s vehicle because its colour did not match its registration. The police also knew from a Police Information Portal (PIP) search that the appellant was associated with addresses related to a marijuana grow operation. During the traffic stop, the police officer became suspicious that the appellant was in possession of a controlled substance. A sniffer dog subsequently indicated controlled substances were inside the vehicle. After arresting the appellant for possession of a controlled substance, the police searched the vehicle and discovered approximately 38 pounds of marijuana inside it. The trial judge held that police officer conducting the traffic stop became suspicious that the appellant was in possession of a controlled substance and placed him under investigative detention based on several factors, including the following: the appellant exited the highway and returned to it shortly afterwards in a way that seemed illogical and possibly evasive; the appellant’s route seemed to be inconsistent with his stated destination; the PIP system reports indicated the appellant had been associated with marijuana production; the presence of a cooler and some food in the passenger seat suggested that the appellant did not want to leave the vehicle unattended; the presence of large boxes inside the vehicle similar in nature to those used commonly as props for drug trafficking; and the appellant’s nervousness when he was initially detained. The trial judge found that the officer had reasonable grounds to suspect the appellant was involved in a drug offence and his ss. 8 and 9 Charter rights were thus not infringed. The trial judge also found that the appellant’s right to counsel was not breached because the officer’s question about his comings and goings was a legitimate question to rule out driver fatigue and therefore one authorized by the Traffic Safety Act. Accordingly, the appellant’s s. 10(b) rights remained in abeyance during that time.

HELD: Appeal allowed. The appellant’s rights under ss. 8 and 9 of the Charter were breached. Given that submissions as to whether the evidence obtained as a results of the Charter breaches should be excluded had not yet been made, the Court was not in a position to rule on exclusion of the evidence or on whether the conviction should be affirmed or overturned. The trial judge erred in finding that the officer had reasonable grounds for suspecting that the appellant was in possession of a controlled substance. The trial judge did not misconstrue the officer’s grounds for suspicion or err by including the PIP search results as a factor to consider when evaluating reasonable suspicion. However, four of the five factors on which the officer’s suspicion was based were neutral or equally consistent with innocent behaviour as with criminal behavior: namely, the presence of the cooler in the car, the appellant’s nervousness, the appellant’s exit from the highway and the PIP entries. Such factors on their own could not justify a finding of reasonable suspicion, although they could form part of a constellation of factors that together supported a reasonable suspicion. However, looking at the totality of the evidence through the lens of the officer, with his training and experience in the detection of drugs, the officer’s subjective belief that the appellant might be involved in a drug related offence was not objectively justified. The officer thus lacked authority at common law to detain the appellant for the purpose of a controlled substance investigation and to conduct a sniffer dog search of the exterior of the vehicle, thereby breaching the appellant’s ss. 9 and 8 Charter rights. The trial judge did not err in finding that the appellant’s right to counsel was not breached during the initial questioning by the officer. The purpose of the initial stop was to investigate an apparent discrepancy in the vehicle registration and the purpose of the question about the appellant’s comings and goings was to find out if he was too fatigued to drive safely. His jeopardy did not change between these two events and there was no s. 10(b) breach.

R. v. Urban, [2017] A.J. No. 1393, Alberta Court of Appeal, R.L. Berger, S.J. Greckol and J. Strekaf JJ.A., December 19, 2017. Digest No. TLD-January152018010