QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 444 Date: 2010 12 01 Docket: C.R. of 2008 Judicial Centre: Moose Jaw BETWEEN: HER MAJESTY THE QUEEN and GERARD STEPHANE JOSEPH TURPIN Counsel: James I. S. Sutherland for the accused Douglas G. Curliss for the Crown JUDGMENT BALL J. December 1, 2010 [1] The accused is charged with possession of cocaine and marihuana for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 as am. He applies for an order excluding evidence of cocaine and marihuana found concealed in his motor home on the basis that his rights under ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms, (the “Charter”) were violated. This decision follows voir dire held to determine the admissibility of the evidence. For the reasons which follow, find that the evidence must be excluded. THE FACTS [2] On the afternoon of June 13, 2007, the accused was driving a motor home on the TransCanada highway near Caronport, Saskatchewan when he was stopped by RCMP Cst. Ian Warner. [3] Cst. Warner was one member of “roving traffic unit” of RCMP officers working that day on the TransCanada highway. Other members of the unit were Cst. Darcy Wilson, then seven year member of the RCMP stationed in Rosetown, Saskatchewan, Cst. Trent Sperlie, then nine year member stationed in Maidstone, Saskatchewan and Cpl. Kenneth McLaughlin, then an 18 year member stationed in nearby Moose Jaw, Saskatchewan. [4] All of the members of the roving traffic unit were experienced in traffic stops resulting in the detection of quantities of drugs. For the previous 15 months Cst. Warner had worked with police service dog named Nugget, one of only two single profile narcotic dogs in the province. Cst. Sperlie, who is now assigned to the Integrated Drug Unit in Saskatoon, was the handler of Levi, the other single profile narcotic dog in the province. Nugget and Levi are sniffer dogs trained to detect marihuana, hashish, psilocybin, cocaine, heroin, and methamphetamine. Cst. Wilson had attended the Pipeline Convoy Course, the Pipeline Instructors’ Course, and advanced courses sponsored by Canadian and American drug detection agencies. Cpl. McLaughlin had also attended and instructed at the Pipeline Convoy Course. [5] The members assigned to the roving unit had been monitoring traffic on the TransCanada highway in the Caronport area for several days. Notwithstanding the specialized nature of their training and drug dog handling responsibilities, Cst. Wilson testified that they had been working in the area for few days as regular traffic officers performing regular traffic duties. [6] On June 13, 2007 each of Cst. Warner, Cst. Wilson and Cst. Sperlie were driving their marked police cars in the vicinity of Caronport. All three vehicles were equipped with video cameras and audio recording devices. Csts. Wilson and Warner were working in close proximity to each other during their encounter with the accused. [7] Cst. Warner was observing traffic from connecting road between the divided TransCanada highway. He saw an older motor home travelling in an easterly direction weave from the centre line over the fog line on the right hand side of the road approximately six times. The motor home did not cross the centre line and was not speeding. Cst. Warner was concerned that the driver might have been drinking. He engaged the emergency lights on his vehicle to signal the driver to pull over onto the shoulder. The motor home decelerated at an appropriate pace and stopped in an appropriate place on the shoulder of the road. It was then 2:13 p.m. [8] After stopping the motor home but before approaching the driver, Cst. Warner made vehicle query on CPIC. The motor home bore British Columbia license plate No. 486 GLG. The CPIC query confirmed that the motor home had not been reported stolen. [9] It was very windy afternoon. Cst. Warner approached the motor home and informed the driver, who was the accused, that he had stopped him because the motor home had been weaving. He stated his concern that the accused might have been drinking. The accused replied that he had not been drinking and that there was no alcohol in the vehicle. [10] When he first approached the motor home Cst. Warner observed that the accused was wearing sunglasses and smoking freshly lit cigarette. Cst. Warner testified that in his experience impaired drivers would often light fresh cigarette in an attempt to mask the odour of alcohol coming from them and from inside their vehicle. However, he did not ask the accused to remove his sunglasses or to put out his cigarette. [11] Cst. Warner testified that he made other observations. First, he said that the driver was unusually nervous, that his hand was trembling as he handed over his documents, that he made little or no eye contact, that he looked straight forward, and he only spoke in short one or two word answers. He stated that the driver’s nervousness went “beyond the typical” highway stop and was “more typical of cases in which he had found motorist hauling drugs”. He also noted that there were no other occupants and no visible luggage or other items in the motor home. [12] The accused was at all times responsive to the questions put to him. He was asked to produce his driver’s license and registration and he produced them without difficulty. Cst. Warner did not note any indicia of impairment. He did not ask the accused to step out of the vehicle so that he could observe his coordination and balance nor did he administer any other sobriety tests. He agreed that this was because he was satisfied there was no basis for suspecting the accused was impaired. [13] Having received the driver’s license and vehicle registration from the accused, Cst. Warner returned to his police car. The documents indicated that the motor home was 1986 model Empress by Triple on GMC chassis. They also indicated that it was owned by the accused, Gerard Turpin. Nothing about the vehicle registration aroused suspicion. [14] Using mobile work station to conduct CPIC data base check on the driver by name, Cst. Warner noted entries for “take auto without consent” conviction 1985, and entries for assault and assault police officer convictions in 1988. He also made name inquiries on police databases named Police Information Retrieval System (PIRS) and Police Reporting Occurrence System (PROS). The last of those inquiries was submitted at 2:20:21 p.m. [15] Three minutes after Cst. Warner had returned to his police car with Mr. Turpin’s driver’s license and registration, Cst. Wilson arrived on the scene. He parked on the shoulder of the road behind Cst. Warner’s vehicle and activated his emergency lights. Although the police cars being driven by both Cst. Warner and Cst. Wilson were equipped with windshield view video cameras and audio recording devices, neither of them activated that equipment. Cst. Wilson testified that he did not use his video camera because it caused fuses to short out; Cst. Warner stated that he did not use his because of problems with the camera draining the battery on the car. Neither were in the practice of using their audio recording devices. [16] The two police officers had brief conversation during which Cst. Warner recalled telling Cst. Wilson two things. First, he told him that the accused had previous conviction for auto theft. Second, he told him that the accused appeared nervous. [17] Cst. Wilson testified that Cst. Warner said more: that he told Cst. Wilson he did not detect any signs of gross impairment; that he had smelled cigarette smoke but no alcohol; and that he had not confirmed the registration documents against the vehicle identification number (VIN) to confirm “the true identity of the vehicle”. [18] Cst. Wilson acknowledged that he never looked at the license and registration that had been produced by the accused, or at the computer screen in Cst. Warner’s car. Nevertheless, his evidence was that he decided to “take over the secondary phase which is re-approach the vehicle and confirm the identity of it”. Cst. Warner’s evidence was somewhat different: he testified that Cst. Wilson decided to go and check the driver for signs of impairment or smell of alcohol to assess his level of sobriety. As well, Cst. Warner said, it was Cst. Wilson who “sort of made the connection for possible stolen vehicle”. THE POSSESSION OF STOLEN PROPERTY INVESTIGATION [19] While the two police officers were conferring in Cst. Warner’s vehicle, the accused remained in the motor home. Cst. Wilson left the police car and approached the motor home. He testified that his intention was to check sobriety, vehicle fitness, registration, ownership and to confirm the registration documents against the VIN. [20] Cst. Wilson testified that as he approached the motor home he detected strong odour of “Bounce” (a brand of fabric softener) coming from its interior. Cst. Wilson attributed this to an attempt by the accused to mask the smell of alcohol or drugs. [21] On this point, Cst. Warner testified that he too recalled smelling fabric softener and that he later looked for the source, which he determined to be side cupboard. Notwithstanding the importance of this potential odour masking agent, he could not recall what was in the cupboard because he did not feel it was pertinent. As well, he made no note of it in any report. [22] Cst. Sperlie, who was soon to attend the scene to participate in the search of the motor home, did not detect any masking odour, and testified that he would have noticed if there had been anything remarkable. Similarly, Cst. McLaughlin, who would also attend in due course, noticed no such odour.[1] [23] Cst. Wilson expressed the opinion that the accused was unusually nervous. He asserted that the accused was breathing rapidly and that his “carotid artery” was “pulsating”. He acknowledged, however, that he had no idea what the accused’s baseline respiratory rate was and that he could not actually see his carotid artery. Instead, he testified that he could see “fluttering on the side of the neck” which he assumed was caused by “the moving of the blood”. [24] In cross-examination, Cst. Wilson acknowledged that his understanding of symptoms of nervousness, such as pulsating arteries, was derived entirely from things told him by “law enforcement personnel”. He also acknowledged that the accused also did not display many symptoms typically associated with nervousness: Specifically, he did not have shaky, quivering voice; he was not sweating; his mouth was not dry and his hands were not shaking. [25] Cst. Wilson testified that he asked the accused if he was on any medication and when he had last used any liquor or narcotics. The accused replied that he had used liquor the week previous and narcotics long time ago. Cst. Wilson noted that the accused became more nervous at that point and no longer made eye contact.[2] [26] Cst. Wilson asked the accused how long he had been driving. He found it suspicious that the accused did not answer the question directly. Instead, he responded that he was going to stop at the next city. Asked the question again, the accused said he had been driving for 12 hours. This meant that he had likely left Vancouver at 2:30 the previous morning. [27] The accused then volunteered that he was travelling from Vancouver to Thunder Bay to visit his sister for couple of weeks. Cst. Wilson testified that in his experience, Vancouver was source of illegal drugs and Thunder Bay was destination; that long hours of driving were consistent with drug courier; and that he believed it possible the volunteered story about the sister was an attempt to legitimize trip that would otherwise be suspicious. He acknowledged that he knew nothing about the accused’s personal circumstances and that he did not ask. [28] Cst. Wilson asked the accused if he had any more documents on him pertaining to the vehicle. The accused opened his wallet, showed it to the police officer, and said “no, gave the other documents to the other officer”. Cst. Wilson attached significance to the fact that inside the wallet were number of $20.00 bills which he estimated to be about $2,000.00. He stated that he found it odd for that amount of currency to be on person. [29] Notwithstanding these observations Cst. Wilson did not embark on an investigation into the possibility that the accused was carrying contraband. Rather, he asserted that he pursued an investigation into the “true identity” of the vehicle. He looked at the VIN number found on plate on the dashboard of the motor home. He stated that the plate appeared to be relatively old, but that the rivets securing the plate to the dashboard were shiny and the area surrounding the VIN plate was clean. (Those observations were not discernable from police photograph of the dash plate.) He stated that in his experience and training, this could mean that the VIN plate had been changed or tampered with. [30] In order to confirm that the VIN number on the dashboard plate in fact belonged to the vehicle, Cst. Wilson stated that he decided to compare it to the VIN number found on the federal safety certification label on the doorpost. The doorpost label contained two numbers. One number, found under the heading “VIN”, was different from the number of the dashboard plate. second number, found under the heading “INC.VEH.VIN.”, was the same as the VIN number on the dashboard plate.[3] [31] Cst. Wilson asserts that he misread the doorpost label in that he did not see the “INC.VEH.VIN.” number, and therefore did not recognize that it matched the VIN number on the dashboard plate. Having misread the label, and because of “the driver’s nervousness and previous record” he decided to arrest him for possession of stolen property. At that point he had spent one or two minutes with the accused. [32] Cst. Wilson acknowledged that he would not have arrested the accused if he had matched the VIN number on the dash to the “INC.VEH.VIN.” on the door. He stated that his error in reading the VIN numbers was as result of “inexperience and being in rush”. He accepted that there was no reason for him to be in rush. He also acknowledged that he was experienced in investigations of this kind and that he had recently completed an SGI course relating to the examination of stolen motor vehicle registrations and fraudulent ownership documents. [33] Cst. Wilson returned to Cst. Warner’s police car. The two police officers had very brief conversation. They both then returned to the motor home and instructed the accused to exit the vehicle. He was placed under arrest for “possession of stolen property and VIN tampering”. [34] As the accused left the motor home, he placed his wallet in the visor of the motor home. Cst. Wilson considered that to be “strange”. He then formally placed the accused under arrest and advised him of his rights to counsel and warnings. The accused stated that he did not wish to contact lawyer. He was placed in the back of Cst. Warner’s police car. All of this had transpired within the first nine minutes of the initial stop. [35] Crown and defence agree that the first time either of the officers queried VIN number on the police computer data base was at 2:36 p.m., or 23 minutes after the motor home was initially stopped. Cst. Warner used his cell phone to call the Regina Communications Centre. The only number queried was the number on the dash plate. The Communications Centre advised that it would query the licence plate and VIN number through the British Columbia License Bureau (ICBC). [36] Approximately five minutes later Cst. Warner received response to his query. He was informed that the motor vehicle had been issued three license plates in the past one and one-half years information that turned out to be an erroneous understanding of the ICBC information on the part of the Communications Centre. In actuality, the motor home had been issued only one license plate and two temporary operating permits. [37] In the meantime Cst. Wilson testified that he pursued his possession of stolen property investigation by searching the motor home. He asserted that he was looking for any additional labels, paint colour changes or information that might confirm or refute the vehicle’s true owner and identity. He looked under the dash, in the glove box, under carpet and in the cupboards. He checked the VIN number of the engine block and noted that it was different from the VIN numbers on the registration. He asked the accused if the engine had been replaced. The accused confirmed that it had been replaced when he purchased the vehicle one and one-half years earlier. [38] certificate containing VIN number for the motor home was located in closet. That number matched the number on the dash plate of the vehicle. Cst. Wilson then opened some exterior panels “trying to find anything that would assist in identifying the true identity of the vehicle”. [39] Examination of the motor vehicle following the accused’s arrest took an estimated 35 minutes. During the course of the search, which included closets, cupboards and other storage compartments on the interior and exterior of the vehicle, Cst. Wilson made observations which, he said, caused him to begin suspecting that “this person was hauling contraband”. For example, he asserted that the smell of “Bounce” was stronger in the back corner of the motor home. As well, the officers observed fresh black caulking around various external panels and at the front corners of both sides of the motor home, black PVC pipe up both sides with fresh black caulking alongside it, non-manufacturer’s (Robertson) wood screws holding the panels together and, on the driver’s side, panel that looked as if it had been pried back and replaced and secured with caulking. THE DRUG INVESTIGATION [40] Approximately 40 to 50 minutes after the accused was initially stopped on the highway and 30 to 35 minutes after he had been taken into custody and placed in the back of the police car, Cst. Sperlie and his dog Levi drove by and joined the other police officers. Cst. Wilson informed Cst. Sperlie that they “were just about to get involved into CDSA investigation”, that the accused was going to be detained, and that they would probably be using the drug sniffer dog during their investigation. [41] Cst. Wilson informed the accused that he was being detained for investigation into his suspected transportation of narcotics. He then instructed Cst. Warner to have Nugget search the motor home. As Nugget was being deployed, Cst. Sperlie was in the police car speaking to the accused. [42] Approximately five minutes later, Nugget showed positive reaction at vent near the right rear of the motor home. According to Cst. Wilson, that reaction caused him to move from “reasonable suspicion for detention” to “reasonable and probable grounds for arrest”. He informed the accused that he was under arrest. [43] Cst. Sperlie then joined the other police officers in their search of the interior of the motor home. He noticed that piece of plywood under mattress appeared to have been installed in manner that sealed off what would ordinarily be an accessible storage compartment. Underneath the vehicle, panel from the rear axle to the back had been recently painted in flat black. The bottom of the motor home’s holding tank had been cut off and replaced with screws, meaning that it would not be watertight. [44] few minutes past 4:00 p.m., or almost two hours after the initial stop, Cpl. Kenneth McLaughlin arrived on the scene from Moose Jaw. He had received call from Cst. Wilson, who asked him to attend to transport the accused to Moose Jaw because Cst. Wilson’s vehicle was overheating. When he arrived, he found Csts. Wilson, Warner and Sperlie searching the motor home. [45] Although his purpose in attending was to transport the accused to Moose Jaw, Cpl. McLaughlin took part in the search of the motor home for the next half hour. At that point, the police officers had drilled small hole into the wall of an exterior storage compartment and, using scope, had discovered ziploc bags hidden behind the exterior panel. [46] Cpl. McLaughlin attempted to drill through the wood panel under the mattress but was unable to do so. The officers then pried the panel off. Underneath it they found stainless steel plate and under that black duffel bags containing bricks of cocaine. This led to the discovery that the motor home had been extensively modified to facilitate the transportation of illegal drugs. The plumbing and holding tank systems had been disabled, walls had been moved and secret compartments created, and hydraulics with switching system had been installed to provide access to the compartments. [47] At 4:38 p.m., Cpl. McLaughlin “re-arrested” the accused by stating that he was under arrest for possession for the purpose of trafficking. He advised him of his right to counsel and his right to remain silent. The accused responded at this point that he understood and, for the first time, stated that he wanted to speak to lawyer. He was transported to Moose Jaw and put through the booking process at the Moose Jaw police station. At approximately 5:30 in the afternoon, he was given access to telephone and provided with an opportunity to speak to lawyer. [48] The motor home was towed into Moose Jaw to be more thoroughly searched. In total, 45 kilograms of cocaine were discovered in the motor home. Depending on how it was sold, the cocaine was worth between 1.1 and 2.5 Million Dollars. It was in the form of bricks within 11 layers of packaging which included heat sealed plastic, black tarry substance and black latex. The word “sofia” appeared on the third layer of the packaging. [49] In addition, the vehicle contained 262 pounds of marihuana (worth between $471,000.00 and $733,000.00) in heat sealed plastic bags. As well, two bundles of $20.00 bills totalling $3,080.00 were found under shelf in cupboard. [50] While the motor home was being searched in Moose Jaw, one of the assisting police officers pointed out to Cst. Wilson that the VIN number on the dash plate of the motor home and the INC.VEH.VIN. number on the door post label were one and the same. ISSUES [51] The accused submits that his rights under ss. 8, 9 and 10 of the Charter were infringed. His application and the submissions of counsel, raise the following issues: 1. Was the accused’s right to be secure against unreasonable search or seizure under s. of the Charter infringed: (i) did the accused have reasonable expectation of privacy in his vehicle? (ii) was the search of the motor home incidental to his arrest for possession of stolen property an intrusion of his privacy right? (iii) was the deployment of the police sniffer dog to search the motor home violation of his privacy right? 2. Was the accused’s right not to be arbitrarily detained under s. of the Charter infringed: (i) when he was arrested for possession of stolen property? or (ii) when he was detained for an offence under the Controlled Drugs and Substances Act before the deployment of the drug sniffer dog? 3. Was the accused’s right to retain and instruct counsel without delay under ss. 10(b) of the Charter violated when he was held at the roadside and “booked in” before being given access to counsel? 4. Should the evidence be excluded under ss. 24(2) of the Charter? 1. Was the accused’s right to be secure against unreasonable search or seizure under s. of the Charter infringed? [52] Section of the Charter provides: 8. Everyone has the right to be secure against unreasonable search or seizure. [53] There have been many cases involving motor vehicle stops that evolve into searches for drugs. Most have involved warrantless searches of the motor vehicle and its driver, often with the aid of police sniffer dog. Some reported decisions involving drug seizures from vehicles by one or more of Cst. Warner, Cst. Sperlie, Cst. Wilson, Cpl. McLaughlin and police dogs Nugget and/or Levi have included R. v. Yeh 2009 SKCA 112 (CanLII), 337 Sask. R. (C.A.); R. v. McKenzie 2009 SKQB 415 (CanLII), 342 Sask. R. 281 (Q.B.) and R. v. Ramos 2009 SKQB 469 (CanLII), 348 Sask. R. 219 (Q.B.) and R. v. Volk 2010 SKCA (CanLII), 343 Sask. R. 133 (C.A.). In all of those cases, the vehicles were stopped within few kilometres of the stop in this case. In Ramos the vehicle stop occurred within few kilometres and, two days after the stop in this case. mention these cases only because it may be necessary to consider whether the police conduct in this case was an example of pattern of conduct. (i) Did the accused have reasonable expectation of privacy in his vehicle? [54] The accused’s right to challenge the legality of the search and seizure under s. of the Charter depends upon his ability to establish that, on an assessment of the totality of the circumstances, he had reasonable expectation of privacy in the place searched or the items seized. If he cannot establish that reasonable expectation of privacy, he cannot obtain ss. 24(2) remedy (R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] S.C.R. 341 (S.C.C.) at paras. 19-20). [55] The search of the motor home in this case was done without warrant. Warrantless searches are presumptively unreasonable and contrary to s. of the Charter. It is for the Crown to establish, on balance of probabilities, that the search was lawful and that the manner in which it was carried out was reasonable (R. v. Nolet, 2010 SCC 24 (CanLII), [2010] S.C.R. 851 (S.C.C.)). [56] number of cases have dealt with the extent to which driver has an expectation of privacy in his/her motor vehicle. In Nolet, Binnie J. stated at paras. 30 and 31: 30 agree with the trial judge that drivers ordinarily have some expectation of privacy in the sleeping area of cab of the tractor-trailer, including the space behind the front seats where the duffle bag with the money was found. Whether or not an individual has subjective expectation of privacy, and whether or not that expectation is objectively reasonable, is an assessment to be made having regard to the totality of the circumstances: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] S.C.R. 128, at para. 45; R. v. Tessling, 2004 SCC 67 (CanLII), [2004] S.C.R. 432; R. v. Kang-Brown, 2008 SCC 18 (CanLII), [2008] S.C.R. 456, at paras. 8-10 and 48. The onus of proof of such reasonable expectation [page 871] to probability standard, lies on the Charter claimant. 31 While the appellants did not testify about their subjective belief, the court may presume that individuals would expect measure of privacy in what, for long-distance trucker, suffices as temporary mobile home. The expectation is objectively reasonable because living quarters, however rudimentary, should not be classified as Charter-free zone; Johnson v. Ontario (Minister of Revenue) (1990), 1990 CanLII 6742 (ON CA), 75 O.R. (2d) 558 (C.A.), and R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] S.C.R. 341. Nevertheless, the level of expectation is necessarily low because the cab of tractor-trailer rig is not only place of rest but place of work, and the whole of the cab is therefore vulnerable to frequent random checks in relation to highway transport matters. As Wilkinson J.A. pointed out, “[k]nowledge of the transportation legislation is requirement to be licensed as driver. The [appellants] would be well aware of the possibility of mandatory inspections and searches, whether for documents or for potential violation of any one of the countless obligations imposed by the regulatory scheme” (para. 70). Accordingly, there can be little expectation of privacy, even in the sleeping area of truck (particularly one which is travelling in violation of relevant highway regulations). stop may quickly precipitate search, and the occupants either know or ought to know of that reality and govern themselves accordingly. [57] In this case, although the vehicle appeared to be motor home, it had been extensively modified for the purpose of carrying contraband. As practical matter, it was no longer useable as motor home because its domestic systems, such as water and sewage, had been disabled. It was, quite simply, vehicle designed and reconfigured for the purpose of transporting illicit drugs from west to east. [58] Subjectively, the accused could not reasonably expect an enhanced degree of privacy on the basis that his vehicle was disguised, but not useable, as motor home. find that he had no greater privacy interest in the motor home than he would have had in any other passenger vehicle which he owned and operated and to which he had the ability to regulate access. That is, his reasonable expectation of privacy was less than what person would ordinarily have for example, in residence, in personal computer (as in R. v. Morelli 2010 SCC (CanLII), [2010] S.C.R. 253 (S.C.C.)) or in the sleeping quarters of tractor-trailer rig (as in R. v. Nolet, (supra)). (ii) Was the search of the motor vehicle incidental to his arrest for possession of stolen property an intrusion into the accused’s privacy right? [59] My review of the evidence satisfies me that the members of the roving traffic unit on duty that day in the Caronport area that is, Cst. Ian Warner, Cst. Darcy Wilson and Cst. Trent Sperlie were there to search motor vehicles suspected of transporting drugs on the TransCanada highway. It also satisfies me that neither Cst. Wilson nor any of the other police officers had reasonable suspicion that the motor home being driven by the accused was stolen much less that it was carrying drugs. Finally, it satisfies me that the real purpose of the detention and arrest of the accused for “possession of stolen property and VIN tampering” was to search the vehicle for drugs. [60] The “grounds” relied upon by Cst. Wilson to support his assertion that he reasonably suspected the accused to be in possession of stolen property were not capable of verification. First and foremost, his precipitous conclusion that the VIN numbers on the dash and door did not match was clearly wrong. His assertion that the accused was more nervous than “typical” driver was neither measurable or objectively verifiable. His evidence that the accused’s carotid artery (which Cst. Wilson acknowledged he could not see) was pulsating was more likely product of what he was taught at Pipeline Convoy training than it was true reflection of what he observed that day. He chose to not even look at, much less consider, the available information indicating that the vehicle was not in fact stolen, including the valid registration presented by the accused and the information on the computer screen received in response to Cst. Warner’s CPIC inquiry. [61] Virtually all of the other observations made by Cst. Wilson had little if anything to do with the possibility the vehicle was stolen. Rather, they related to what he believed could be “indicators” the vehicle was carrying contraband. All of this supports an inference that the detention and arrest of the accused for possession of stolen property was a pretext to justify a search of the vehicle for illegal drugs. In conducting that search police officers were acting on no more than a hunch based on intuition. [62] Cst. Wilson asserted that he detected strong odour of what he believed to be “Bounce” as he first approached the motor home on the highway that afternoon. For reasons which am about to give, consider that unlikely. Again, however, even if it was true that scent would have had nothing to do with his belief that the motor home was stolen and everything to do with the real reason for his search. According to Cst. Wilson, he considered an odour of that kind to be an “indicator” vehicle is carrying illicit drugs. [63] As noted earlier, counsel for the Crown invites me to find that the presence of the “laundry room smell” which Cst. Wilson believed to be “Bounce” was corroborated by the discovery, some three years later, of an aerosol can of Febreze air freshener in the motor home. He also asks me to infer that this scent was created when the accused surreptitiously left his seat and sprayed Febreze into the interior of the vehicle as the two police officers conferred for few moments in Cst. Warner’s police car. [64] find it improbable that Cst. Wilson detected scent while outside the vehicle, improbable that the accused sprayed anything inside the vehicle in the few moments after he was stopped, and unlikely that an aerosol can of Febreze was in the vehicle when it was searched. [65] First, the can of Febreze was brought into the courtroom and sprayed by police witness. It did not have strong odour. June 13, 2007 was windy day, making it unlikely that relatively benign scent from inside the vehicle could have been detected as “strong odour” on the highway outside the vehicle. [66] Second, both Cst. Sperlie and Cpl. McLaughlin testified that they did not detect any odour that could have been masking agent as they searched the interior of the motor home. As well, none of the police officers detected any odour of drugs to be masked. [67] Third, and most significantly, the vehicle was thoroughly searched after the drugs it was carrying were detected. All of the evidence was carefully catalogued. All of the items found in the motor home, including the accused’s personal possessions and food, were removed from the motor home and placed in bags and boxes. There was no record of any “Bounce”, “Febreze”, Tide or similar product in any of the various police reports. Given Cst. Wilson’s assertions about the importance of potential masking odour like “Bounce”, it is difficult to imagine that each and every one of the highly trained police officers would have overlooked the presence of product of that kind during their search. [68] In R. v. Caslake, 1998 CanLII 838 (SCC), [1998] S.C.R. 51 (S.C.C.) Lamer C.J. stated at paras. 22-23 that if search is to be truly incidental to an arrest, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. In this case, there was not. There was only the possibility, based on suspicion alone, that search of the motor home might turn up contraband. [69] I find that the search of the motor home incidental to the accused’s arrest for possession of stolen property was an intrusion into his right to be secure from unreasonable search or seizure. (iii) Was the deployment of the police sniffer dog to search the motor home violation of his privacy right? [70] The extent to which the use of drug sniffer dog may breach an individual’s s. privacy interests has been considered in number of recent decisions. In R. v. Kang-Brown 2008 SCC 18 (CanLII), [2008] S.C.R. 456 (S.C.C.), Binnie J. stated at para. [25] In my view, for reasons developed in A.M., the police are entitled to call in aid sniffer dogs where they have reasonable grounds to suspect the presence of contraband. This Charter standard of "reasonable suspicion" is based, as stated, on the minimal intrusiveness, narrowly targeted objective and high accuracy of "sniffs" by specifically trained dogs like Chevy. [71] Accepting in this case that the accused had reasonable expectation of privacy in his vehicle and that the use of the sniffer dog constituted search, it remains to be determined whether the search performed was unreasonable. The standard on which the use of sniffer dogs is evaluated is that of “reasonable suspicion”. In Kang-Brown, Binnie J. found that the fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that reasonable suspicion requires more than just sincerely held subjective belief. Instead, reasonable suspicion must be supported by factual elements which can be adduced in evidence and that permit an independent judicial assessment. Further, the distinction between “reasonable suspicion” and the higher standard of “reasonable and probable grounds” is merely the degree of probability that person is involved in criminal activity. In both cases, objectively ascertainable facts must exist to support the search (per Binnie J. para. 75). [72] Similarly, in R. v. Yeh, (supra), the Court of Appeal confirmed that the standard for detaining person for investigative detention and for engaging sniffer dog is the same, namely reasonable suspicion, and that hunch based on intuition gained by experience does not constitute reasonable suspicion. [73] By the time the sniffer dog was deployed in this case, the police had reasonable suspicion the motor home was carrying drugs. The after market modifications to the motor home were significant and objectively verifiable. However, their search of the motor home and their observations of its modifications had been incidental to their arbitrary arrest of the accused for possession of stolen property. Thus, the grounds on which they based their reasonable suspicion did not support deployment of the sniffer dog. 2. Was the accused’s right not to be arbitrarily detained under s. of the Charter infringed? (i) when he was arrested for possession of stolen property? [74] Section of the Charter provides: 9. Everyone has the right not to be arbitrarily detained or imprisoned. [75] Police have wide constitutional power to stop motorists, at random, to check for driver’s license, registration, insurance, mechanical fitness of vehicle, and the sobriety of the driver. Such stops are generally prescribed by provincial statute and justified under s. of the Charter. In Saskatchewan stops for those purposes are authorized by The Traffic Safety Act, S.S. 2004, c. T-18.1, ss. 57, 209.1 and 278. [76] In R. v. Dhuna 2009 ABCA 103 (CanLII), Alta L.R. (5th) 47, [2009] A.J. No. 273 (QL) the Alberta Court of Appeal held that this authority to detain the driver of motor vehicle extends to stops for the purpose of investigating reasonable and specific concerns that the vehicle had been recently stolen. [77] The accused submits that once the police officers satisfied themselves that he was not impaired, they had no further grounds to detain him. He says further that the police not only lacked reasonable and probable grounds to arrest him for possession of stolen property, they lacked the grounds to detain him under the standard for investigative detention elaborated in R. v. Mann 2004 SCC 52 (CanLII), [2004] S.C.R. 59 (S.C.C.). [78] There is no question that the accused was detained: he was arrested for possession of stolen property and placed in the back of Cst. Warner’s police car where he remained confined for over four hours. The question is whether his arrest was arbitrary under s. 9. [79] In R. v. Nolet, (supra), two accused were travelling eastward along the TransCanada highway in Saskatchewan in an empty 53 foot commercial tractor-trailer unit licensed in Quebec. An RCMP officer pulled them over for “spot check” and discovered number of regulatory problems relating to the vehicle’s registration and logbook. One discovery led to another, and in the end the police found $115,000.00 in cash and 392 pounds of marihuana. Binnie J., for the entire court, stated at paras. and and at para. 23: Clearly random checks of vehicles for highway purposes must be limited to their intended purpose and cannot be turned into “an unfounded general inquisition or an unreasonable search”: R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] S.C.R. 615, at p. 624. Nevertheless, roadside stops sometimes develop in unpredictable ways. It is necessary for court to proceed step by step through the interactions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry. Analysed in this way, believe the majority reached the correct conclusion. would dismiss the appeal. ... 23 Random roadside stops must be limited to their intended purposes. “A check stop does not and cannot constitute general search warrant for searching every vehicle, driver and passenger that is pulled over”, per Cory J., in Mellenthin, at p. 629. It thus becomes necessary to examine the authority claimed by the police at each step from the original demand to the appellants to pull their truck over on the Trans-Canada Highway to the discovery of the cash and subsequently the marijuana couple of hours later as well as the follow-up “inventory search” the next morning, to determine at what point, if at all, the police infringed the rights of the appellants under s. or s. of the Charter. roadside stop is not static event. Information as it emerges may entitle the police to proceed further, or, as the case may be, end their enquiries and allow the vehicle to resume its journey. [80] I have already found that Cst. Wilson, who made the decision to arrest the accused, did not have reasonable and probable grounds to believe the motor home was stolen. He had not carried out even a cursory investigation into the possibility that it might have been stolen. His inability to compare the two clearly matching vehicle identification numbers, if not the result of wilful blindness, was at least flagrantly negligent. But for that, he would not have arrested the accused because he had no grounds to do so. [81] The accused’s right not to be arbitrarily detained was infringed when he was arrested by Cst. Wilson for possession of stolen property. (ii) when he was detained for an offence under the Controlled Drug and Substances Act before the deployment of the drug sniffer dog [82] I have earlier determined that the observations made by the police officers which caused them to reasonably suspect the accused was hauling contraband in his motor home were a product of their search incidental to his arbitrary arrest for possession of stolen property. As such, the detention of the accused for potential offence under the Controlled Drugs and Substances Act was equally arbitrary. The detention had little practical effect on the accused, however, who remained confined to the back of the police car as consequence of his earlier arrest for possession of stolen property. 3. Was the accused’s right to retain and instruct counsel without delay under s. 10(b) of the Charter violated when he was held at the roadside and “booked in” before being given access to counsel? [83] Section 10(b) of the Charter provides: 10. Everyone has the right on arrest or detention ... (b) to retain and instruct counsel without delay and to be informed of that right; [84] In R. v. Suberu 2009 SCC 33 (CanLII), [2009], S.C.R.460 the Supreme Court of Canada held that the s. 10(b) right to counsel arises immediately upon detention, whether or not the detention is solely for investigative purposes. In this case, the accused was detained for an offence under the Controlled Drug and Substances Act. He was informed that he had the right to speak to lawyer and he stated that he wished to do so. At that point he faced significant legal jeopardy. He was already within the effective control of the police. [85] Rather than transport the accused to Moose Jaw at that point Cpl. McLaughlin chose to join the other three police officers in their ongoing search of the motor home. It was another half hour before he was “re-arrested”, and another one and half hours before he was transported to Moose Jaw (a distance of 30 km.), “booked in” and given an opportunity to contact lawyer. Thus, he was not given an opportunity to retain and instruct counsel in a timely fashion. [86] That said, there is no evidence the police attempted to elicit incriminatory information from the accused during the time he was held at the roadside. Even without Cpl. McLaughlin’s participation, the ongoing search would have continued in any event. Thus, although the accused’s s. 10(b) right was breached, there was no causal connection between the breach and the discovery of the drugs. 4. Should the evidence be excluded under s. 24(2) of the Charter? [87] Subsections 24(1) and of the Charter read as follows: 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), court concludes that evidence was obtained in manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [88] The purpose of ss. 24(2) of the Charter is to maintain the rule of law and the values underlying the Charter. It is not meant to punish police misconduct or to compensate an accused for violation of his or her rights. The objective of ss. 24(2) is systemic. Its focus is long-term, prospective and societal (R. v. Grant 2009 SCC 32 (CanLII), [2009] S.C.R. 353 (S.C.C.) at paras. 67-70). The concern is less with the particular case than on the impact over time of admitting evidence obtained by infringing constitutionally protected rights (R. v. Morelli, (supra), at para. 108). [89] There are three prerequisites for the exclusion of evidence under ss. 24(2). The applicant must establish each of them by balance of probabilities. First, the applicant must show that his or her rights or freedoms guaranteed by the Charter have been infringed or denied. Second, the evidence in question must have been obtained in manner that infringed or denied that right or freedom. Third, the circumstances must be such that admission of the evidence could bring the administration of justice into disrepute. Unless all three of those conditions are present, the evidence cannot be excluded under ss. 24(2) (R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 (S.C.C.) at p. 276 R. v. Manninen, 1987 CanLII 67 (SCC), [1987] S.C.R. 1233 (S.C.C.) at p. 1241). [90] In R. v. Grant, (supra), the Supreme Court of Canada revised the approach to be taken by trial court faced with an application for exclusion under s. 24(2). It stated that the court is to assess and balance: (1) the seriousness of the Charter-infringing conduct; (2) the impact of the breach of the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. 1. Seriousness of the Charter-infringing conduct [91] At this first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from it by excluding evidence in order to preserve public confidence in and ensure state adherence to the rule of law. [92] Here, the initial stop of the motor home was justified, but the ensuing s. 8 and s. 9 breaches (i.e. the search of the motor home incidental to the arbitrary arrest of the accused for possession of stolen property), were very serious. The officer was so determined to find evidence of contraband that he became blinded to the constitutional requirements of reasonable suspicion for investigative detention and reasonable and probable grounds for arrest. He claimed to be looking for evidence that the vehicle was stolen when he was almost certainly engaged in search for evidence of drugs. [93] While I do not believe Cst. Wilson intended to breach the Charter from the outset, I find that his actions showed a flagrant disregard for Charter requirements. The search of the motor home without reasonable grounds to do so was serious breach of s. 8, but attempting to justify the search by arresting the accused without reasonable suspicion he had committed any offence compounded that breach with breach of s.9. 2. Impact of breach on the Charter protected interests of the accused [94] The second stage of the Grant inquiry calls for an evaluation of the extent to which the Charter breaches actually undermined the interests protected by the infringed right. have found that the accused had diminished expectation of privacy in his modified motor home. Those who use the highways know they can be stopped at virtually any time for reasons of highway safety as for impaired driving, for example. [95] Nevertheless, his privacy interests were violated. The question is how seriously they were impacted. The more serious the incursion, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. [96] Where evidence has been obtained as result of an unreasonable search and seizure, there is presumption that the violation of s. of the Charter is serious one. The Crown can overcome that presumption by showing that the police had reasonable and probable grounds to act as they did, or that there were compelling and urgent circumstances. [97] There were no compelling and urgent circumstances in this case. The accused was alone and the site had been well secured by number of experienced, well equipped police officers. The precipitous and arbitrary arrest of the accused for possession of stolen property and the resulting search of his motor home had significant impact on his liberty and privacy interests. It also formed the basis of his subsequent arrest for offences under the Controlled Drugs and Substances Act. [98] Although the encounter with the police may not have been seriously demeaning to the accused, the experience of being arrested, held in custody and subjected to search without reasonable justification impacted on his rightful expectation of liberty and privacy in more than trivial way. Subject always to valid highway stops, the accused had an expectation of being left alone. [99] I conclude that the deprivation of liberty and privacy resulting from the unconstitutional detention and arrest of the accused and consequent search was therefore a significant, but not egregious, intrusion on his Charter protected interests. [100] Although stop short of finding that there was evidence of pervasive systemic abuse by the police officers involved in this case, do note that in R. v. McKenzie, (supra), McLellan J. stated: [47] In my view, the opinions expressed by Cst. Sperle did not meet the "reasonable suspicion" standard required for valid sniffer dog search at best he was acting on hunch. Furthermore, it must be pointed out that both Cst. Warner and Cst. Sperle were from northern Saskatchewan and they claim to have been on routine traffic patrol with "sniff dog" in the southern part of the province. The posted speed limit where the car was travelling was 110 km per hour. The radar clocked the accused as travelling at 112 km per hour which is only two km over the speed limit. have concern that the two officers may have been in the area with the purpose of conducting random traffic stops for the sole purpose of checking for drugs being transported from west to east which, according to Cst. Sperle, is common occurrence. It is therefore quite conceivable that the observations of the accused claimed to have been noticed by Cst. Sperle were enhanced after the drugs were located. [48] When consider all of the facts in this case, can only conclude that the search performed by the officers was unreasonable. The same comments could be made in this case. [101] In summary, apart from the initial stop of the accused, find that the s.8 Charter breach represented flagrant disregard for Charter rights and the police conduct should not lightly be condoned. 3. Society’s interest in an adjudication on the merits [102] At the third stage of the Grant inquiry, the court asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crown’s case should be considered at this stage. [103] In Grant, the majority held (at paras. 79-85) that society has greater interest in having determination on the merits when crime is serious. At the same time, it has an important interest in having justice system that is above reproach, especially when the penal consequences for the accused are high. In R. v. Yeh, (supra), Richards J.A. extracted and relied upon the following additional principles from Grant: [81] ... exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute. ... The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution. [126] ... in determining whether admission of the derivative evidence would bring the administration into disrepute relates to society’s interest in having the case adjudicated on its merits. Since evidence in this category is real or physical, there is usually less concern as to the reliability of the evidence. Thus, the public interest in having trial adjudicated on its merits will usually favour admission of the derivative evidence. [104] The charge in this case is serious one. It involves very large quantity of drugs. The evidence of the drugs obtained as result of the Charter breaches is highly reliable. It is critical to the Crown’s case and virtually conclusive of the accused’s guilt of the offences with which he is charged. Having regard to the truth seeking function of the court, admitting it would not be unfair. [105] The third line of inquiry therefore favours the admission of the evidence to promote the public’s interest in having the case adjudicated on its merits. 4. Balancing the factors [106] Assessments made pursuant to each of the three lines of inquiry enunciated by Grant must be balanced to determine whether, in all of the circumstances, whether admitting the evidence would bring the administration of justice into disrepute. The ss. 24(2) analysis should not be reduced to simple contest between the degree of police misconduct and the seriousness of the offence. The balancing is not mathematical exercise, nor is it capable of mathematical precision. It is qualitative. As stated by the Supreme Court of Canada in R. Harrison 2009 SCC 34 (CanLII), [2009] S.C.R. 494 (S.C.C.) at para. ... Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed. [107] The Supreme Court of Canada issued its decisions in both Harrison and Grant on the same say. In Harrison, evidence of 35 kilograms of cocaine obtained from the accused’s SUV was excluded because it had been obtained through violation of his ss. and Charter rights. The evidence was highly reliable and important to the Crown’s case on very serious charge. These factors, which came under the third line of inquiry as set forth in Grant, supported admission of the evidence. However, the court found that they were overcome by other factors relating to the first and second lines of inquiry of the Grant approach. It found that the police officer had acted recklessly and without sufficient regard for Charter rights. He had detained the accused and searched his vehicle on hunch and without any semblance of reasonable grounds. He later aggravated his initial misconduct by giving misleading in-court testimony. The impact of the detention and search on the accused’s privacy and liberty interests was significant, although not egregious. [108] On balance, the court in Harrison found that the factors favouring exclusion outweighed those favouring admission. Despite the seriousness of the offence and the reliability of the evidence, the court concluded that admitting the evidence would bring the administration of justice into disrepute. Admission would, in doing so, imply that the court condoned the serious misconduct of the police and the significant incursion on the rights of the accused. [109] The circumstances of this case are indistinguishable in principle from the circumstances in Harrison. In both cases the police misconduct and the ss. and Charter breaches were flagrant. In one respect the police misconduct in this case may have been more serious: given the comments of McLellan J. in R. v. McKenzie (supra), quoted at para. 47 above, the cavalier approach to search and seizure demonstrated by the members of the roving traffic unit may not have been unique to this case. As in Harrison, the accused in this case is charged with serious offences and the evidence is important and reliable. However, as in Harrison, those factors are outweighed by the principle that the long term repute of the administration of justice will be harmed by condonation of wilful and flagrant Charter breaches which significantly impact on protected rights. Admitting the evidence in these circumstances would amount to judicial declaration that in the administration of criminal law, the end justifies the means if the offence is serious and the evidence is reliable. [110] Accordingly, I find that admitting the evidence would bring the administration of justice into disrepute and that the standards is paramount. For that reason, I find the evidence seized from the motor home on June 13, 2007 must be excluded. [1] During the voir dire, which was held three years later, Cpl. McLaughlin, Cst. Warner and Cst. Wilson revisited the still impounded motor home. They found an aerosol can of Febreze fabric softener and small (2" 4") box of Tide laundry detergent in cardboard box in the motor home. The Crown asks the court to infer that as Cst. Wilson and Cst. Warner were conferring in Cst. Warner’s police car, the accused left the driver’s seat, located can of Febreze and sprayed it inside the motor home to mask the smell of drugs. [2] The Crown asks the court to infer that the accused became more nervous at that point because he was carrying illegal drugs. The defence asks the court to infer that the accused became more nervous at that point because he had just been asked to disclose when he had last committed criminal offence. The defence references the evidence of the same Cst. Wilson in relation to very similar stop and search of the TransCanada highway which took place on April 18, 2007 case in which he acknowledged that he was essentially asking the driver when he last committed criminal offence. See R. v. Yeh 2009 SKCA 112 (CanLII), 337 Sask. R. (C.A.) at para. 19. [3] INC.VEH.VIN. is an abbreviation for “Incomplete Vehicle [Manufacturers] V.I.N.” which must be used for vehicles manufactured in stages by virtue of the Motor Vehicle Safety Regulations (C.R.C., c. 1038) [4] “VIN tampering” is not an offence known to either the Criminal Code, R.S.C. 1985, c. C-46 or Statute of Saskatchewan.
The accused was charged under s. 5(2) of the Controlled Drugs and Substances Act after a highway traffic stop in which the accused was driving a motorhome that was found to be modified to carry cocaine and marijuana by a group of officers designated to search for drugs in vehicles. The cocaine found in the motorhome had an estimated street value of between 1.1 and 2.5 million dollars. The marijuana had an estimated street value between $471,000 and $733,000. The officer who stopped the motorhome saw it weave from the centre line to the fog line approximately six times. The officer testified that he suspected the driver might be impaired by alcohol. The officer stopped the vehicle and found no indicia of impairment by alcohol. The officer ran the motorhome on his computer system and found that it was registered to the driver. Another officer arrived on scene and approached the motorhome. The second officer noted a smell of fabric softener in the vehicle and testified that the accused appeared unusually nervous. The second officer testified that fabric sheets are frequently used to mask the odour of drugs. The second officer testified that he suspected the Vehicle Identification number on the dash had been tampered with because the rivets looked too new. He testified that he compared the Vehicle Identification Number on the dash to the number on the door and found they did not match. He later acknowledged that he was in error and later discovered that the numbers did match. The second officer commenced a search of the vehicle purportedly to search for paperwork that would confirm that the vehicle was not stolen. The accused was arrested for possession of stolen property. As the officer searched the vehicle, he noted signs that it had been modified. A drug sniffer dog was brought to the scene and had a positive reaction near the rear vent of the motorhome. The officers conducted a search of the vehicle which revealed that the motorhome hnd been significantly modified for the purpose of transporting illegal drugs. The accused was arrested for trafficking. The accused advised the officers that he wanted to contact a lawyer after he was arrested for trafficking. Another officer attended the scene to transport the accused to the detachment. That officer assisted with the search of the motorhome for approximately half an hour before driving the accused another hour and a half to the detachment where he was allowed to contact a lawyer. The accused argued that his rights under ss. 8, 9 and 10 of the Charter were infringed and sought exclusion under s. 24(2). HELD: Section 8 Ã» The motorhome had been extensively modified for the purpose of carrying contraband and could no longer be used as a motor home because its domestic systems had been disabled. The accused was entitled to no greater expectation of privacy in the vehicle than he would have had in any other passenger vehicle that he had the ability to regulate access to. The officers did not have a reasonable suspicion that the motorhome was stolen. The real purpose of the detention and arrest for possession of stolen property was to search the vehicle for drugs. The observations of the second officer on scene to support his reasonable suspicion that the motorhome was stolen were not capable of verification. He chose not to look at or consider the available information indicating the vehicle was not stolen including: the valid registration presented by the accused and the information from the CPIC query. Virtually all of the other observations of this officer had little to do with the possibility of a stolen vehicle and were indicators of a vehicle suspected of carrying contraband. In conducting the search, the officers were acting on little more than a hunch based on intuition. The search of the motorhome incidental to the accused's arrest for possession of stolen property amounted to a breach of s. 8. By the time the sniffer dog was deployed, the police had a reasonable suspicion that the accused was transporting drugs. However, the search of the motorhome and observations of its modifications were incidental to the arbitrary arrest of the accused for possession of stolen property, therefore, their grounds for the reasonable suspicion did not support the deployment of the sniffer dog. Section 9 Ã»  The arresting officer did not have reasonable and probable grounds to believe the motor home had been stolen when he arrested the accused. He had not carried out even a cursory investigation into the possibility that it might have been stolen. His inability to compare the two vehicle identification numbers accurately was willful blindness or flagrantly negligent. The accused was arbitrarily detained when he was arrested for possession of stolen property. The observations that lead to the reasonable and probable grounds to arrest the accused for trafficking were derived from his arbitrary arrest for possession of stolen property. The detention had little practical effect on the accused because he remained confined to the back of the police car as a result of the earlier arrest for possession of stolen property. Section 10 Ã»  The accused was not provided with an opportunity to retain and instruct counsel in a timely fashion. However, the police did not attempt to elicit any incriminating evidence from the accused during the time it took to get him to the detachment to call a lawyer. There is no causal connection between the breach of the accused's rights under s. 10(b) and the discovery of the drugs. The evidence was excluded under s. 24(2). The breaches of the accused's rights under ss. 8 and 9 were very serious. The officer was so determined to find evidence of contraband that he became blinded to the constitutional requirements of a reasonable suspicion for investigative detention and reasonable and probable grounds for arrest. His actions showed a flagrant disregard for Charter requirements. The deprivation of liberty and privacy resulting from the breaches was significant but not egregious. These two factors favor excluding the evidence. The charge is a serious one and involves a large quantity of drugs. The evidence is highly reliable and critical to the Crown's case. The truth seeking function of the Court favours admitting the evidence. On balance, the administration of justice would be brought into disrepute if the evidence was admitted and that standard is paramount.