justice earl johnson voir dire judgment r v qrunngnut

7/28/2019 Justice Earl Johnson Voir Dire Judgment R v Qrunngnut

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nunavuumi iqkaqtuijikkut

NUNAVUT COURT OF JUSTICELa Cour de justice du Nunavut

Citation: R. v. Qrunn gnut, 2013 NUCJ 08Date of Judgment: 20130614

File Number: 08-10-890Registry: Iqaluit

Applicant: Stephen Qrunngnut

-and-

Respondent: Her Majesty The Queen

________________________________________________________________________

Before The Honourable Mr. Justice E. Johnson

Counsel (Applicant): Mark. A. Christie

Counsel (Respondent): Leo Lane

Location Heard: Iqaluit, NunavutDate Heard: January 30-31 2013

Matters: Canadian Charter of Rights and Freedoms, ss. 8, 9,10(b), and 24; Controlled Drugs and Substances Act

S.C. 1996, c. 19 s. 5(4)

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)


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I. INTRODUCTION

[1] The applicant resides in Igloolik and traveled to Ottawa as amedical escort for his daughter. On December 9, 2010,Constables Ian Allen (Allen) and Marie Gingras (Gingras) of theIqaluit detachment of the R.C.M.P. approached the applicant onhis arrival in Iqaluit on the first leg of his return trip to Igloolik.

Allen invited the applicant to accompany him to the CanadianBorder Services Agency[CBSA] office next to the CanadianNorth counter and the applicant agreed to come with him.

[2] Allen told the applicant that he was not being arrested ordetained and was under no obligation to speak to them. Allentold the applicant that he had received information suggesting

that the applicant was in possession of a large quantity ofmarijuana and requested his consent to search his luggage. Heasked the applicant if he would consent to a search of hisluggage. The applicant agreed and signed a standard R.C.M.PConsent to Search form [Consent].

[3] When the police searched the two bags of the applicant theydiscovered 1,649 grams of marijuana in five separate vacuumpacked bags that were sewn into a stuffed panda bear.

[4] The applicant applies for relief under section 24(2) of theCanadian Charter of Rights (Charter), arguing that he wasarbitrarily detained and that his right to counsel under section10(b) was violated. He also argues that he did not understandmost of the Consentform because English is not his firstlanguage.

[5] I conducted a voir dire and Allen and the applicant testified.Judgment was reserved.

II. ISSUES[6] Was the applicant arbitrarily detained by Officer Allen within the

meaning of section 9 of the Charter?

[7] Was the applicants section 10(b) Charterright to counselviolated upon his detention?


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[8] Was Allens search of the applicants personal luggage upon hisdetention a violation of his section 8 Charterright to be free fromunreasonable search and seizure?

[9] If the applicants Charterrights were violated, should theevidence obtained by the police be excluded pursuant to section24(2) of the Charter?

III. FACTS

[10] On December 9th, 2010, Officer Jason Trites [Trites] of theIgloolik R.C.M.P. contacted Allen and told him he had receivedinformation from an anonymous informant of unknownreliability. Trites told Allen that the applicant was on a flight

scheduled to land in Igloolik, via Iqaluit, and that he was carryinga large quantity of marijuana inside a teddy bear. Allen confirmedthat the flight was leaving Iqaluit for Igloolik at 14:10.

[11] Before meeting the applicant Allen did a computer search anddiscovered he did not have a criminal record.

[12] Allen and Gingras arrived at the Iqaluit Airport at 13:55 andproceeded to the Canadian North counter where they asked anemployee to page the applicant.

[13] The police were in plain clothes and Allen was carrying hisservice revolver and police badge. Allen identified himself withhis badge to the applicant and told him he was not beingdetained or arrested and that he was under no obligation tospeak to the officers.

[14] Allen invited the applicant to accompany him to the CanadianBorder Services Agencyoffice next to the Canadian North ticket

counter, and the applicant followed him into the office.

[15] The meeting continued in the small search office of the CBSA.The office was approximately 5 or 6 feet wide by 10 feet longand had a table, one chair and some other furnishings.


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[16] Allen was standing and again told the applicant that he was notbeing detained or arrested and that he was under no obligationto speak to the officers.

[17] Allen informed the applicant that the R.C.M.P. had receivedinformation suggesting the applicant was in possession of alarge quantity of marijuana. Allen asked permission to search theapplicants bags and the applicant authorized him to conduct thesearch. The applicant then told Allen that he had five marijuanacigarettes in his luggage.

[18] Allen produced a blank Consentform and completed the topportion of it. He then wrote on the bottom and added informationprovided to him by the applicant. After completing the form he

read the entire Consentto the applicant and wrote in his name.The applicant signed the form at 13:59.

[19] Two suitcases were subsequently brought to the CBSA office.Both of the bags were opened and searched.

[20] Allen and Gingras found a large panda bear inside one of thesuitcases and noticed some hand sewing at the back. Theyremoved the stitches and found 1,649 grams of marijuana in fiveseparate vacuum-packed bags.

[21] Allen arrested the applicant and charged him with possession ofmarijuana. The applicant then directed the officers to a smallplastic tube containing six marijuana cigarettes in one of thesuitcases.


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A. Was the applicant arbitrarily detained by Officer Allen withinthe meaning of section 9 of the Charter?

(i). Applicants argument

[22] At para 44 ofR vGrant, [2009] 2 SCR 353, 245 CCC (3d) 1[Grant], the Supreme Court of Canada held that police actionsmight be held to constitute a detention for purposes of section 9where there is a suspension of the individuals liberty interests bya physical or psychological restraint. The detention rises to thelevel of arbitrary where it is not authorized by law and is thereforeunlawful.

[23] Allen admitted he had insufficient grounds to obtain a search

warrant. The Crown admitted in argument that, if there was afinding that the applicant had been detained, the detention wasarbitrary. As a result, the applicant confined his argument to thedetention issue.

[24] The applicant argues that he was psychologically detainedshortly after Allen met him at the airport despite being informedby Allen that he was not being detained.

[25] At para 44 ofGrant, Charron J. summarized the principles and

criteria a judge should analyze to determine if a person isdetained. A court should consider the following:

(a) Whether the police were making general inquiries regarding aparticular occurrence or were singling out the individual forquestioning;

(b) The nature of the police conduct including the language used,the location of the interaction, the presence of others, and theduration of the encounter;

(c) Finally a court should consider the particular characteristics orcircumstances of the individual including age, physical stature,minority status and level of sophistication.


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[26] In the case at bar, the police were not providing generalassistance, maintaining general order, or making generalinquiries about a particular occurrence. The police made contactwith the applicant with the focused intent of discovering thecontents of the applicants luggage.

[27] The police told the applicant that he was suspected oftransporting marijuana. The applicant testified that he was toldhe was a suspect at his first encounter with the police at theCanadian North counter. Allen testified that he told the applicantthat he was suspected of carrying a large amount of marijuanaafter questioning in the CBSA office.

[28] The applicant argues that he thought he had no option but to do

what the police asked him to do. He testified he might have beenscared because it was the first time he had dealt with the police.He went into the interview room because the police told him togo in. He permitted the police to search his luggage because hethought a refusal would result in the luggage being searched atIgloolik. He signed the Consenton the assumption that, becausethe police were asking questions and noting the answers, he hadto sign it. Finally the applicant testified that he did not know hehad the right not to co-operate with the police and the right torefuse their requests.

[29] The initial contact with the police was in public but quickly movedto a private room with the two officers and one or two CBSAofficers. The tone of the dialogue was calm but the language wasserious and not one that was passing or trivial in nature. Thecontact lasted between 10 to 45 minutes and was not incidentalor trivial.


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[30] The applicant has a grade two education and has a history ofemployment as a mechanic. He has limited abilities to read andcomprehend English. Although the applicant is not part of aminority in Nunavut he is a minority when it comes to dealingwith the R.C.M.P. He dealt with an officer who did not speak hislanguage and who did not offer interpretation of anything he saidto the applicant. The officer also did not ask the applicant if heunderstood English and did not inquire about his first languagewhen he read the Consentto him.

[31] The applicant is a 49-year old Inuk of small to medium build whohas lived his entire life in Igloolik. Allen is a young Caucasianman who is 6 feet, two inches tall. Most of the contact time wasspent in a small room with one table and one chair. The

applicant did not have any previous experience with the police inany capacity. He testified that he complied with the requests ofthe police because he was scared about what would happen ifhe refused.

[32] The applicant has only a limited knowledge of legalese and didnot understand most of the Consentthat was read to him. Heunderstood the words indicating he did not have to consent tothe search as I have to search. He did not understand themeaning of withdrawing his consent and believed the police had

to do the search. He did not know the meaning of voluntary,coerced oradvantage. In answering a question from theCrown about why he signed the Consent, the applicant testifiedthat Inuit feel obligated to sign papers presented to them byothers and that he did not know what he was signing.

[33] As noted in The Inuit Way,1 a reasonable person of Inuit heritagemight respond to this police interaction without questioning thestates authority to compel compliance. The applicant submits

this Court should consider the historic relationship between theInuit and the RCMP. The RCMP often acted as agents of thefederal government. They often made it compulsory that the Inuitsign documents that may not have been in their best interests.

1Boult, David, The Inuit Way: A Guide To Inuit Culture (Kuujjuaq, NU: Pauktuutit Inuit Women ofCanada, 2002). .


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[34] Considering all these circumstances, the applicant argues that areasonable person in his position would conclude that he hadbeen deprived of his choice to walk away or decline to answerthe police questions.

(ii). Crown argument[35] The Crown acknowledges the application ofGrant. Since the

applicant was not physically detained and was under no legalobligation to accompany Allen, the issue before the Court iswhether the applicant was psychologically detained. The Crownconcedes that the first part of the Granttest was satisfiedbecause the police were clearly focused on the applicant andwere suspicious that he was involved in an illegal drug trafficking

operation. However, the focus on the applicant did not turn theencounter into a detention.

[36] The police can counteract the appearance of a detention byinforming the applicant in unambiguous terms that he or she isunder no obligation to answer questions and is free to go. Thepolice informed the applicant on two occasions that he wasunder no obligation to speak to the police and Grantinstructs acourt to assess the police conduct in the context of the entireinteraction as it developed.

[37] The Crown submits the demeanor of Allen and Gingras in givingtheir evidence demonstrates they are laid back non-aggressivepersons. Their evidence confirms that they never acted in athreatening or aggressive manner toward the applicant. Theexchanges between Allen and the applicant were a polite cordialconversation between respectful adults. Throughout the time inthe CBSA office, the applicants seven-year-old daughter movedfreely in and out of the office and gave no indication that she was

nervous or concerned.


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[38] Allen was well aware of the limits of his powers and knew he didnot have the grounds to obtain a warrant. He offered to speak tothe applicant in private because he was conscious of the factthat some people do not like to be seen speaking with a policeofficer. If the applicant had been content to speak in public, Allenwould have spoken to him in the airport lobby and if he haddeclined to talk to him Allen would have left. Allen testified thathe sensed no reluctance by the applicant about entering theCBSA office.

[39] Other factors identified by Grantare the presence of others andthe duration of the encounter. In this case they were neutralfactors. The encounter took place in front of his daughter and theCBSA officers immediately left the room. The applicant testified

that he did not really notice the CBSA officers and never saw anyconversation between them and Allen or Gingras.

[40] While the encounter was not brief and lasted about 40 minutes,most of the time was spent going through the Consent, waitingfor the luggage, and arresting and Charteringthe applicant.

[41] The Crown argues that the applicant was not a credible witnessand this Court should not believe that he had only the crudestgrasp of English and was utterly nave about his rights. ThisCourt should also not believe that the applicant was an innocentdupe who was tricked by a virtual stranger into transportingdrugs and then tricked by the police into letting them search hisluggage.

[42] The applicants lack of credibility stems from inconsistencies andcontradictions in the applicants evidence about why heconsented to the search and whether the police told him he wassuspected of transporting drugs.

[43] The applicants credibility is also questionable because hisevidence about three instances of police conduct defies logic oris highly unlikely to have occurred.

[44] Finally, the Crown submits the applicant lacks credibility becausehe was evasive during cross-examination.


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[45] The Crown submits the applicant understood English muchbetter than he let on in court. Allen testified that he hadexperience dealing with people whose first language was notEnglish and observed nothing in his conversations with theapplicant to suggest that he had trouble understanding him.

Allens perception is supported by the applicants response to thepolice caution and Charterwarning. The applicant immediatelystated that he was not going to say anything. The Consenthadsimilar words to the caution and the applicant likely understood itas well.

[46] Overall, the applicants encounter with the police is not onewhere a reasonable person would conclude that he or she hadno choice but to comply with Allens requests.

(iii). Analysis

A.iii.1 GrantRules

[47] Section 9 of the Charterstates that Everyone has the right not tobe arbitrarily detained or imprisoned. The interpretation of thissection frequently triggers section 10 because once a person isdetained he or she must be promptly told the reason for thedetention and then provided with the right to retain and instructcounsel without delay.

[48] In Grant, the Supreme Court of Canada reviewed and updatedthe rules that had been applied since R v Collins, [1987] SCJ No15, 33 CCC (3d) 1[Collins]. Collins concerned the interpretationof section 8 of the Charterwhile Grantinterpreted section 9. TheCourt summarized the rules at para 44 as follows:

1. Detention under ss. 9 and 10 of the Charterrefers to a suspension

of the individual's liberty interest by a significant physical or

psychological restraint. Psychological detention is established eitherwhere the individual has a legal obligation to comply with the

restrictive request or demand, or a reasonable person would concludeby reason of the state conduct that he or she had no choice but to

comply.


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2. In cases where there is no physical restraint or legal obligation, it

may not be clear whether a person has been detained. To determinewhether the reasonable person in the individual's circumstances would

conclude that he or she had been deprived by the state of the liberty of

choice, the court may consider, inter alia, the following factors:

(a) The circumstances giving rise to the encounter as would

reasonably be perceived by the individual: whether the police were

providing general assistance; maintaining general order; makinggeneral inquiries regarding a particular occurrence; or, singling out

the individual for focussed investigation.

(b) The nature of the police conduct, including the language

used; the use of physical contact; the place where the interactionoccurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the

individual where relevant, including age; physical stature; minority

status; level of sophistication.

[49] At paragraph 30 ofGrant, the Supreme Court reiterated thewords of LeDain J. in R v Therens, [1985] 1 SCR 613, 18 DLR(4th) 655, recognizing that psychological restraint could qualifyas a detention in two situations.

The first is where the subject is legally required to comply with adirection or demand, as in the case of a roadside breath sample. The

second is where there is no legal obligation to comply with a

restrictive or coercive demand, but a reasonable person in the subject's

position would feel so obligated.

[50] McLachlin C.J. and Charron J.noted the difficulty in defining thecircumstances where psychological detention might exist in theabsence of any legal compulsion. However, they acknowledgedthat general inquiries by a patrolling police officer where therewas no threat to a citizens freedom of choice could escalate intosituations where the focus shifts from general community-oriented concern to suspicion of a particular individual. While

mere suspicion does not become a detention, police interactionwith the suspect could turn the interaction into a psychologicaldetention. The nature of the inquiry is objective and a judge mustassess what a reasonable person would conclude in thecircumstances facing the applicant.


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A.iii.2 Focused investigation[51] As acknowledged by the Crown, the police were focused on the

applicant from the moment Allen received the information fromTrites. They suspected he was involved in a drug traffickingoperation. The purpose of the police visit to the Iqaluit airportwas to intercept the applicant and search his luggage knowingthat they did not have the grounds to obtain a search warrant.The first part of the test pointing to a detention is satisfied.

A.iii.3 Interaction of police with applicant[52] The second part of the test focuses on the nature of the

interaction between the police and the applicant.

[53] As stated at para 32 ofGrant, in carrying out this objectiveassessment a judge must take into account the subjectiveintentions of the police and the accused.

[54] The subjective intentions of the police are always capable ofbeing assessed by a judge because they always testify at thevoir dire. However, in many cases a judge cannot assess thesubjective feelings or knowledge of the accused because he orshe elects not to testify. As McLachlin C.J. and Charron J. statedin para 34 ofR v Suberu, 2009 SCC 33, 245 CCC (3d) 112[Suberu]:

Mr. Suberu did not testify on the application, and there was no

evidence as to whether he subjectively believed that he could notleave. Nor was there evidence of his personal circumstances, feelings

or knowledge. The only evidence came from Constable Roughley,

who testified that he was merely "exploring the situation". The Officertestified that Mr. Suberu never told him that he did not wish to speak

with him, and that the conversation was not "strained".


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[55] In the case at bar, the police were well aware that they were in avery delicate situation because they knew they did not have thegrounds to obtain a warrant. Allen had to be uncertain about howthe applicant would perceive his words and actions and that hemight feel compelled to go with him into the office. I alsopresume Allen was well aware of the state of the law and hisability to try to remove possible uncertainty because he warnedthe applicant three times that he was under no obligation toanswer questions.

[56] After the applicant appeared at the Canadian North counter inresponse to being paged, Allen displayed his police badge andintroduced Gingras and himself to the applicant. He immediatelytold the applicant that he was not being detained or arrested and

that he did not have to talk to them. Allen then asked theapplicant if he wouldnt mind talking to us. When the applicantindicated that he was prepared to talk to the police, Allen askedhim if he would prefer to speak in private. The applicant thoughtthat was a good idea. Allen suggested that they walk into theCBSA office and he proceeded to come in with me along withhis daughter and Constable Gingras. Allen detected noreluctance by the applicant to follow him into the office. Beforeany further conversation took place, Allen again told theapplicant that he was not being detained or arrested and that hedid not have to speak with him if he did not want to. Allen thenasked the applicant for identification and he produced a Nunavutdrivers licence. Allen again reminded the applicant that he didnot have to talk to him and that he was not being arrested ordetained. Allen then told the applicant that he had informationthat he was in possession of marijuana and asked for consent tosearch his bags.


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[57] Since the applicant testified, I have the ability to assess hissubjective feelings and knowledge. He testified that the CBSAoffice is very close to the Canadian North counter. When hearrived at the counter one officer was in front of the office andthe other officer was inside it. An officer asked him to confirm hisname and he responded that he wanted to get his daughter first.

An officer asked him if his name was Stephen Qrunngnut and heresponded in the affirmative. The officer asked for identificationand the applicant produced some. He produced the identificationbecause it was the first time he had dealt with the police and mayhave been scared. The officer then told him that they wereinformed by the police in Igloolik that he was passing throughIqaluit and was carrying something else of concern to them. Theapplicant told them he had black-edged luggage but they did not

ask him about it.

[58] The police asked him to go into an office that was off to the sideand he went with them because they told him to go in. Theapplicant and his daughter went into the office with the officerand were met by another police officer. Two officers in a differentuniform immediately left without speaking to the police. Thepolice asked some questions and wrote something down andthen gave him the Consentthat he signed. He signed theconsent because he assumed that he had to sign it. Theapplicant did not know he had the right to refuse to talk to thepolice, to refuse to produce identification, to refuse to go into theoffice, and to refuse to consent to the search of his luggage.


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[59] Allen testified that the entire encounter including arresting andCharteringthe applicant took about 40 minutes with about 20minutes waiting for the luggage. He also acknowledged it took amaximum of five minutes from the time of the paging to theexecution of the Consent. In comparison the encounter inSuberu was much briefer. The Court noted at para 33:

As Mr. Suberu walked past Constable Roughley, he said, "He didthis, not me, so I guess I can go." Constable Roughley followed him to

his van and as Mr. Suberu entered it, said, "Wait a minute, I need to

talk to you before you go anywhere." In the context, these words admit

more than one interpretation. They might be understood as, "I need totalk to you to get more information". They might also be construed as

an order not to leave, suggestive of putting Mr. Suberu under police

control. In interpreting these words, it is relevant to note that

Constable Roughley made no move to obstruct Mr. Suberu'smovement. He simply spoke to him as he sat in his van. Further, while

the exact duration of the encounter is not clear on the record, it wascharacterized by the Court of Appeal as a "very brief dialogue" (para.

17). Taken as a whole, the conduct of the officer viewed objectively

supports the trial judge's view that what was happening at this pointwas preliminary questioning to find out whether to proceed further.

[60] The major conflict between Allens evidence and that of theapplicant concerns whether Allen invited him to go into the office

or told him to go in.

[61] While I accept that Allen did not tell the applicant to enter theoffice, I am satisfied that the applicants subjective perceptionwas that he did not have a choice and went along with Allensoffer to use the office. That perception was not altered by Allensnumerous warnings. The length of the encounter also supportsthe applicants subjective perception that he could not refuse toengage with the officers, particularly since it was his firstencounter with the police. This was not a very brief dialogue as

occurred in Suberu. The second part of the test points to adetention.


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A.iii.4 The particular characteristics or circumstances of theapplicant

[62] The applicant has a grade two education, works as a repairmanfor the Hamlet in which he lives, and has limited abilities to readand comprehend English. Allen did not inquire about his firstlanguage. He did not ask him if he understood English or offer toprovide interpretation of anything that he said to the applicant.

[63] The applicant is a 49-year old Inuit man of small to mediumstature who has lived his life in the Hamlet of Igloolik. Allen is ayouthful Caucasian man who is 6 feet, 2 inches tall and 230pounds. For a good portion of the contact period Allen, Gingras,the applicant, and his child were in the small CBSA search office

containing a table and one chair.

[64] The applicant had no previous experience in dealing with thepolice in any capacity and the police were aware of his lack ofexperience because they conducted a criminal records searchbefore they went to the airport.

[65] The applicant testified that he was afraid of what would happento him if he refused to sign the Consent.

[66] The third part of the test points to a detention.


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A.iii.5 R v Lewis

[67] The facts of this case are remarkably similar to those in R vLewis, (1998) 122 CCC (3d) 481, 13 CR (5th) 34 (ON CA). In

that case R.C.M.P. Constable Tischhart (Tischart) was on dutyat Pearson International Airport when he received an anonymoustelephone call from a woman. After some preliminary discussion,she told Tischhart that a clean-shaven, heavy-set black mannamed Keith Lewis would be taking a flight on Canada 3000

Airlines to Edmonton at about 3:00 p.m. the next day. Thewoman said that Lewis would be with a two-year old boy and thathe would be carrying cocaine concealed in a wine bottle or an

Appleton rum bottle. The caller spoke clearly and rationally. Shewould not identify herself or give Tischhart her telephone

number. She did not describe her connection to Lewis or tellTischhart how she came to know the information she passed onto him. Tischhart did not know who the caller was and had noway of identifying her. The conversation lasted about 10 minutes.

[68] Tischhart and Constable Helowka (Helowka), a member of thedrugs squad assigned to the airport, confirmed that a Mr. D.Lewis was scheduled to fly to Edmonton on a Canada 3000flightthe next day. Helowka was aware of two prior occasions when

cocaine had been found secreted in anAppleton rum bottle. ACPIC check of the information provided by the tipster and aninquiry of the Edmonton police force yielded no furtherinformation. Helowka testified that most anonymous telephonedrug tips received at the airport do not result in the discovery ofdrugs.


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[69] The next day Tischhart and Helowka waited near the Canada3000ticket kiosk to see if a person named Lewis, matching thedescription given by the tipster, would show up for the Edmontonflight. At about 2:00 p.m., the respondent, who matched thatdescription, arrived at the Canada 3000ticket kiosk. A small boywas with him. The respondent was carrying a garment bag, asmall carry-on black bag, and what appeared to be a hoodornament for an automobile. He gave his tickets to the Canada3000agent who then signalled the officers. They approached therespondent and asked him if they could speak to him in a moreprivate setting. The respondent agreed to go with the officersand they walked to a small baggage room about 20 feet away.Tischhart was in uniform and Helowka was in plain clothes.

[70] The respondent was very co-operative when questioned by thepolice. As a result of the respondents answers and actions, thepolice seized a 26-ounce bottle of rum that contained 425 gramsof cocaine. The respondent was arrested, given his Charterrights, and given the opportunity to contact a lawyer.

[71] Despite any subjective evidence from the accused, because hedid not testify at the voir dire, the trial judge held that the policehad detained the accused when he was invited to speak withthem in a private office and this finding was not contested onappeal. Before Tischhart began the questioning in the baggageroom, he told the accused that he did not have to say anythingand that any thing he said could be given in evidence at a latertime. However, unlike what Allen told the applicant, it appearsthat Tischhart did not tell the accused that he did not have toaccompany him when he asked to speak with him in a moreprivate setting.


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[72] Balancing the subjective evidence from the applicant with thewarnings, I am satisfied that a reasonable person looking at thenature of the encounter would conclude that the applicant wasnot psychologically free to leave. It was his first encounter withthe police and he had a limited knowledge of English. He wasunsophisticated and much smaller than Allen and was in a smallroom with three other people. He was scared about what mighthappen to him if he refused to accompany the police and felt hehad no choice but to go with them into the office.

[73] I conclude that the applicant was detained when he was invitedto accompany the officers into the CBSA offices.

[74] Since the Crown has conceded that, upon a finding that the

applicant was detained, it would concede the detention wasarbitrary, I find that the police officers breached the applicantsrights under section 9 by arbitrarily detaining him.

B. Was the applicants section 10(b) Charterright to counselviolated upon his detention?(i). Applicants argument

[75] Section 10(b) of the Charterprovides that everyone has the righton arrest or detention to retain and instruct counsel without delayand to be informed of that right. At para 17 ofRvBartle, [1994] 3SCR 173, 33 CR (4th) 1, the Supreme Court of Canada held thatpolice are required to not only inform a person of their right tocounsel and to provide a reasonable opportunity to do so, butalso to refrain from eliciting evidence from the detainee until heor she has had that opportunity.

[76] In the case at bar, the applicant argues the police continued to

gather evidence and in particular searched the applicantsluggage after being detained at the Canadian North counter. Heremained under detention while being questioned in the CBSAsearch room and further when he admitted to the possession offive marijuana joints.


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[77] Allen testified that he could have arrested the applicant forsimple possession, but that instead he continued to ask him forhis consent to search. He thus continued his attempt to elicitevidence in breach of the applicants s 10 Charterrights.

[78] As held at para 41 ofSuberu, the police have a duty to inform anindividual of their 10(b) Charterright to retain and instruct counselat the very outset of an investigative detention. The phrasewithout delay in s 10(b) must be interpreted as immediately.

[79] The applicant argues that the police breached his rights whenthey did not advise him about his s 10(b) Charterrightsimmediately after questioning started in the CBSA office. Insteadhe was detained for approximately 25 minutes before he was

advised of his right to counsel. The delay was significantbecause the police solicited significant evidence from him duringthat period.

[80] As held at paras 24-26 ofR v Sinclair, 2010 SCC 35, [2010] 2SCR 310, the purpose of this Charterprotection is to allow thedetainee not only to be informed of his rights and obligationsunder the law, but equally if not more importantly, to obtainadvice as to how to exercise those rights. The emphasis,therefore, is on assuring that the detainees decision tocooperate with the investigation or decline to do so is free andinformed.

[81] The applicant testified that he had never spoken to any lawyerbefore his arrest. He also stated that he was never offered theuse of a telephone and that he was never provided the numberfor a lawyer. Finally, he testified that he really did not know whatto say about his ability to contact a lawyer on that day. There isno evidence that he was provided a telephone to use and no

evidence that the police tried to place a call to a Legal Aid lawyerfor him.


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[82] As a result, the applicant argues the police violated his s 10Charterrights when he was first psychologically detained at theCanadian North counter and not given a Charterwarning. Thedetention continued in the CBSA search room where he admittedto having a small amount of marijuana. That admission shouldhave triggered a second Charterwarning as Allen then had thelegal grounds to move from detention to actual arrest.

(ii). Crown argument

[83] The Crown concedes that a ruling that the applicant waspsychologically detained at the Canadian North counter triggersa breach of the applicants section 10(b) rights because he wasnot advised of his right to speak to legal counsel.

[84] However, once the applicant was arrested Allens evidenceestablishes that he was informed of the right to call a lawyer andwas provided with the phone number of the local Legal Aidoffice.

[85] The Crown argues that the Browne v Dunn (1893), 6 R 67 at 70(H.L.), principle was breached because Defence counsel did notput to Allen on cross-examination that the police failed to offerthe applicant a phone call and the number for the local Legal Aidoffice.

[86] The Crown argues that the applicant was well aware of his rightto call a lawyer because he testified that he wanted to wait untilhe got home in Igloolik to call one. The applicant also testifiedthat he never intended to phone a lawyer in Iqaluit because hewas in a hurry to catch his flight.

(iii). Analysis

[87] As conceded by the Crown, when the applicant was detained atthe Canadian North counter the officers also breached his rightsunder section 10(b) because they did not advise him of his rightto counsel immediately.


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[88] Allen testified at p 28-29 of the transcript that the applicantsresponse to Allens suspicion that he was in possession of alarge quantity of marijuana was to admit that he had fivemarijuana cigarettes in his luggage. Allen admitted that at thatpoint he could have arrested the applicant for simple possessionbut did not and continued to ask him for his consent to search.

[89] Although Allen did not consider the applicant as detained at theCanadian North counter, he should have known that he hadreasonable grounds for an investigative detention when theapplicant admitted to possession of the five marijuana cigarettes.

Allen testified at p 31 and 70 of the transcript that if the applicanthad attempted to leave he would have arrested him forpossession of marijuana.

[90] As held at paras 37, 38, and 41 ofSuberu, when an individual isdetained the police must advise him or her of their right to retainand instruct counsel without delay. This means the police mustinform the detained person immediately and allow him or her areasonable time to contact a lawyer. During the interval thepolice must refrain from eliciting incriminatory evidence from thedetainee unless he or she waives that right.

[91] Since the applicant was not informed of his right to counsel until25 minutes later, Allen again breached his section 10 (b) rights.


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[92] I am satisfied that Allen properly advised the applicant of his rightto counsel when he arrested him and that the applicant waivedhis right to counsel. At that stage of the investigation Allen wouldhave followed standard procedure that included reading theapplicant his right to counsel from the caution cards. There isalso merit in the Browne v Dunn argument. As a remedy, Iaccept Allens evidence over that of the applicant on this issue.The rule is stated at p 345 ofThe Law of Evidence2:

A party who intends to contradict an opponents witness must direct

the witnesss attention to that fact by appropriate questions duringcross-examination. This is a matter of fairness to the witness. If the

cross-examiner fails to do so, there is no fixed consequence, the effect

depends upon the circumstances of each case. The court should firstsee if the witness can be recalled. If that is not possible or appropriate,

the weight of the contradictory evidence may be lessened, or suchevidence may be rejected in favour of the opponents witness.

C. Was Allens search of the applicants personal luggage uponhis detention a violation of his section 8 Charterright to be freefrom unreasonable search and seizure?


[93] Section 8 of the Charterprovides that everyone has the right tobe secure against unreasonable search or seizure.

[94] Collins established the framework for a section 8 Charteranalysis that has three fundamental factors. First,the applicantmust demonstrate that he had a reasonable expectation ofprivacy in the place that was the subject of the search or thething being seized or both. Second, warrantless searches arepresumed to be unreasonable and violate section 8 of theCharter. Finally, the presumption that a warrantless search

violated section 8 of the Chartermay be rebutted by the Crown,by showing on a balance of probabilities, that the search wasauthorized by law, the law is reasonable, and the search orseizure was carried out in a reasonable manner.

2 David Paciocco and Lee Stuesser, The Law of Evidence, 3rd ed (Toronto, ON: Irwin Law, 2002).


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[101] Allen testified in examination-in-chief that he spent five to tenminutes explaining the Consentto the applicant. However, hetestified that he arrived at the airport at 13:55 and the Consentindicates the applicant signed it at 13:59. Knowing the applicanthad never had any interaction with the police before, Allenapparently carried out the following activities in four minutes.He paged the applicant and met and exchanged identificationwith him at the Canadian North desk. He asked him to move tothe adjacent CBSA room and explained to him three separatetimes that he was not being detained or arrested. He had someidle chatter with CBSA personnel and explained that the policein Igloolik had received information that the applicant wascarrying a large quantity of drugs. He read and explained all ofthe Consentand solicited information to fill-out the Consentand

then had the applicant sign it.

[102] The applicant submits Allen is mistaken about the time spentexplaining the Consent. All of the activities could not havehappened within those four or five minutes because it took himin excess of one minute just to read the contents of the forminto the transcript, without explanation to or input from theapplicant.

[103] The police embarked single-mindedly on an enterprise to havethe applicant sign a release and were, at the very least, willfullyblind to his lack of understanding of what it was he was signingand willfully blind to his Charterrights. Allen testified that whendealing with people whose mother tongue is Inuktitut he wouldmake every attempt to locate a translator. In this case he didnot ask the applicant if he understood English and did not findout about his first language. As a result, he did not ask him if hewished an interpreter.


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[104] Allen relies on the fact that the applicant agreed to everythingthat was asked of him and that he responded in English to theofficers questions to arrive at the conclusion that the applicantunderstood the Consentand his Charterrights. It is submittedthat Allen was willfully blind as to why the applicant respondedas he did and took none of the steps necessary to determinethe applicants understanding of what he did or did notunderstand.

[105] As a result, the applicant submits that he was the subject of anunreasonable search and seizure, contrary to s 8 of theCharter.

(ii). Crown argument

[106] As held in R v Wills, [1992] OJ No 294, 70 CCC (3d) 529[Wills], although a warrantless search is prima facieunreasonable, a suspect can waive his or herCharterright ifthe waiver is truly informed and voluntary. For a valid waiver,the Crown must prove on a balance of probabilities that the sixcriteria have been satisfied.

[107] The Consentwas drafted to comply with the Wills test andcovers all six of the criteria.

[108] The main concerns in Wills are that the individual be aware ofthe potential consequences of the search and know he has theright to refuse the search. The applicant testified that he knewfrom the beginning of his encounter with the police that theywere looking for marijuana. The consequences would havebeen apparent to him even beforethey were spelled out in theconsent form.

[109] It is also evident from parts of the applicant 's testimony that heknew it was up to him whether to consent to the search or not.He gave various and conflicting reasons for consenting, butthere was an acknowledgment that he had a choice in thematter.


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[110] When Allen was going through the consent form, he read outthe sentence (which appears on its own in the form): "I amunder no obligation to consent to this search." The sentencebrooks no ambiguity. In light of the conversations the applicanthad with Allen, including his responses to the Charter card, onemust conclude the applicant understood the meaning of thatsimple sentence.

(iii). Analysis

[111] I am satisfied that the applicants knowledge of English wasgreater than he professed in court where he spoke through aninterpreter. He responded to many of the English questions inEnglish before the interpreter translated the question into

Inuktitut. However, a working knowledge of English does notequate to understanding all the legalese used in the Consent.

[112] The Applicant testified at p 96 of the transcript that heunderstood the words I give my consent to this search knowingthat I am under no obligation to consent to this search asmeaning I have to search and he did not know what the wordobligation meant.

[113] He also understood the words If I consent to the search, Imaintain my ability to withdraw that consent at any time duringthe search to mean that the police have to do the search.

[114] The applicant testified that he did not understand the words Igive this consent voluntarily and have not been coerced,threatened or promised any advantage by the police or anyoneelse until it was translated into Inuktitut. He responded to theInuktitut as follows:

I understand it clearly now for the first time that this consent was forme and for the one reading it to me.


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[115] There was a significant amount of physical activity,conversations, and movement that took place in the fiveminutes from the time the police approached the applicant atthe Canadian North counter until he signed the release. It wouldhave been difficult for any ordinary member of the public to fullyunderstand their rights in that short time frame. When you addthe challenges posed by the applicants understanding ofEnglish legal terms I am satisfied that he did not give aninformed consent.

[116] I therefore conclude that the applicants rights under section 8of the Charterwere also breached.

D. If the applicants Charterrights were violated, should the

evidence obtained by the police be excluded pursuant to section24(2) of the Charter?


[117] Section 24(2) of the Charterprovides that where, in proceedingunder subsection (1), a court concludes that evidence wasobtained in a manner that infringed or denied any rights orfreedoms guaranteed by the Charter, the evidence shall beexcluded if it is established that, having regards to all thecircumstances, the admission of it in the proceedings wouldbring the administration of justice into disrepute.

[118] Grantheld at para 72that a judge should consider three factorsin determining whether the admission of evidence would bring

justice into disrepute. First,the seriousness of the Charter-infringing state conduct. Second, the impact of the breach onthe Charter-protected interest of the accused. Finally, societysinterest in the adjudication of the case on its merits.


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(ii). Seriousness of the Charter-infringing state conduct

[119] The first part of the test at para 73 requires a court to assesswhether the admission of evidence would send a message tothe public that the courts condone state deviation from the ruleof law by failing to dissociate themselves from evidence seizedin the face ofCharterbreaches. The main concern of this s.24(2) Charterinquiry is to preserve public confidence in the ruleof law and its processes. A court must consider the seriousnessof the violation when viewed in terms of the offending conductby state authorities that the rule of law requires to uphold therights guaranteed by the Charter.

[120] At para 75, Grantheld that extenuating circumstances and

good faith on the part of state authorities will militate in favour ofinclusion of evidence obtained by state authorities through aCharterbreach.However, the Supreme Court has also statedthat ignorance ofCharterstandards must not be rewarded orencouraged and that negligence and willful blindness cannot beequated with good faith.

[121] Finally, Grantand R v Harrison, 2009 SCC 34, 245 CCC (3d)86 at 22 [Harrison], held deliberate police conduct in violation ofestablished Charterstandards tends to support exclusion of theevidence, as will a major departure from Charterstandardswhere the police knew, or should have known, that theirconduct was not Charter-compliant.

[122] As a result, the applicant argues his rights under s 8, s 9 and s10(b) of the Charterhave all been breached. The breacheswere not technical but went to the very core of the Charterrights being protected. It is submitted that the breaches in thismatter were serious and not merely one of mistake or

ignorance. The police action was concerted and deliberate;negligent or willfully blind at best and a flagrant disregard forthe applicants Charterrights at worst. The police action wasundertaken as a result of not having grounds sufficient to obtaina warrant or to detain or arrest the applicant. Evidence seizedunder such circumstances should be excluded pursuant to s24(2) of the Charter.


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(iii). The impact of the breach on the Charter-protected interestof the applicant

[123] The second part of the Granttest focuses on the seriousness ofthe impact of the Charterbreach on the protected rights of theapplicant. It calls for an evaluation of the extent to which thebreach actually undermined the interests protected by the rightsinfringed.To determine the seriousness of the infringementfrom this perspective, the Court looks to the interests protectedby the right infringed.

[124] The applicant submits that breaches of ss 8, 9, and 10(b) of theChartergo to the heart of the interests protected by the Charter.

[125] As held in Harrison being detained and subjected to a searchwithout justification impacts on an individuals rightfulexpectation of liberty and privacy that is much more than trivial.

[126] When compounded by a breach of the s 10(b) Charterrights,that protects an individuals right against self-incrimination whilean unwilling participant in the justice system, the applicantsubmits that the cumulative effect of the breaches rises to thelevel of being egregious as it is entirely likely that the applicantwould not have been charged save for the breaches of hisCharterrights by the police.

[127] As a result, the applicant argues that the second factor favorsthe exclusion of the evidence.

(iv).Society's interest in the adjudication of the case on itsmerits

[128] As noted at para 79 ofGrant, the third part of the testreflects

societys interests in seeing that those who break the law aredealt with according to the law. Thus, the Court on a 24(2)Charterapplication should consider not only the negativeimpact of admitting evidence seized in breach ofCharterrights,but the impact of failing to admit the evidence.


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[129] At para 82 ofGrant, the Supreme Court directed a judge toconsider whether the vindication of the specific Charterviolationthrough the exclusion of evidence exacts too great a toll on thetruth-seeking goal of the criminal trial. One of the factors a

judge should analyze is the impact of the exclusion of reliableevidence on the prosecutions case (para 83). Theadministration of justice may be brought into public disreputewhere the remedy for a Charterbreach guts the prosecution.

[130] It is clear that the evidence in this case is reliable and importantto the Crown and that the exclusion of this evidence may meanthat the Crown cannot proceed with this case. However, asnoted in Harrison, this Court must weigh the societal interest inthe courts truth seeking function against the societal and

individual interest in the integrity of the justice system. Furtheras noted at para 84 ofGrant, the short-term clamour for aconviction in a particular case must not deafen the s 24(2)

judge to the long-term repute of the administration of justice.

[131] The applicant argues that the evidence in this matter should beexcluded. The evidence was obtained through action by policethat breached a number of the applicants Charterrights in asignificant way. The police were aware of their weak position inregards to detention and reasonable grounds. Further lawfulpolice work of following the suspects movements and/or themovements of the drugs may have provided results without thebreach of any Charterrights. The police were not faced with anemergency or a situation where evidence or suspects were indanger of being lost.

[132] The applicant did not, in the circumstances, appreciate that hehad the right to refuse to consent to the search of his luggage.He did not, therefore, give effective informed consent to the

search and there was no other legal authority for the search ofthe applicants luggage.


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[133] The applicant submits that to admit the evidence in this casewould bring the administration of justice into disrepute becauseof the deliberate police action. These are rights that societyconsiders fundamentally important. Concerted police actionagainst fundamental Charterrights has garnered significantpress and political discussion in regards to the recent G20meeting held in Toronto.

[134] The applicant submits that the states reliance on unilingual,non-Inuktitut forms in a territory where the majority of peoplespeak that language as their mother tongue, brings theadministration of justice into disrepute. Furthermore, the failureof the state to provide interpretation or translation as requiredwhen citizens come into contact with the Criminal Justice

System denies society the fundamental framework necessaryto judge any such case on its merits.

[135] The applicant argues that there is an important societal interestin deterring police from significantly breaching an individualsCharterrights on the grounds of a tip from an anonymoussource of unknown reliability. Not to do so would underminethe quality of an individuals Charterrights and weaken theprotection afforded from unwarranted intrusion by the state.

[136] The applicant submits that the admission of evidence seized inthe face of flagrant breaches of his Charterrights offends thepublics interest in the administration of justice and the evidencegathered should be excluded.

(v). Crown argument

[137] The Crown argues that the police should not be faulted for theway they handled the investigation. The applicants

psychological detention and lack of awareness were entirelysubjective. There was no empirical evidence that he seemedfrightened or intimidated by the officers and he never asked forclarification or interpretation of anything Allen said.


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[138] Allen was conscientious of the applicants rights and madeevery effort to keep his investigation within the bounds of thelaw. Since Allen had no practical way of knowing he wasbreaching the Charter, the seriousness of the state conductwas minimal.

[139] The Crown concedes that the impact on the applicantsCharter-protected rights was substantial and this factor weighsin favour of exclusion.

[140] Since the small communities of Nunavut are vulnerable to thedrug trade, societys interest in seeing this case litigated is high.The message needs to be sent to would-be drug traffickers andmules that importation of marijuana to Nunavut will be met with

prosecution.

[141] The Crown has no case without the drug evidence and theseizure was unusually large having a street value of about$100,000.

[142] Weighing all three elements of the Granttest, the Crownsubmits that exclusion of the evidence would bring theadministration of justice into disrepute.

(vi). Analysis

[143] In Grant, the Supreme Court noted that Charter violations fallon a spectrum reflecting the seriousness of the violations. Onthe low end of the scale are those cases where the evidence isobtained through inadvertent or minor violations of the Charterwhere public confidence is minimally affected. At the other endof the spectrum are those cases where the police obtained theevidence through a willful or reckless disregard of the Charterrights of the accused. In those cases the breach created a

negative effect on public confidence and brought theadministration of justice into disrepute.


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[144] Harrison is an example of a case at the high end of thespectrum. As described in the headnote, the accused and hisfriend were driving a rented sports utility vehicle fromVancouver to Toronto. In Ontario, a police officer on highwaypatrol noticed that the vehicle had no front license plate. Onlyafter activating his roof lights to pull it over did he realize that,because it was registered in Alberta, the vehicle did not requirea front licence plate. The officer was informed by radio dispatchthat the vehicle had been rented at the Vancouver airport. Eventhough he had no grounds to believe that any offence wasbeing committed, the officer testified at trial that abandoning thedetention might have affected the integrity of the police in theeyes of observers. The officer's suspicions seem to have beenaroused from the beginning of this encounter. He arrested the

accused after discovering that his driver's licence had beensuspended. The officer then proceeded to search the vehicle.He found two cardboard boxes containing 35 kg of cocaine.McLaughlan J. held that the evidence should be excludedbecause the police exhibited a willful and flagrant disregard ofthe accuseds Charterrights. The police action was aggravatedby an officers misleading testimony at trial.

[145] On the other end of the scale is a case such asLewis. In thatcase the police did not inform the accused that he did not haveto consent to the search. The trial judge relied on this omissionto conclude that the breach was serious. Doherty J. held thatthere was no constitutional obligation on the police to so informthe accused although the failure to do so could make theconsent to search ineffective. As a result, he found that theofficers could reasonably have believed that the accused waswilling to have his bag searched. The police had made it clearto the accused from the outset that they were engaged in anarcotics investigation and that the accused did not have to say

anything to him. While the belief of the police did not legitimizethe search, it did reduce the seriousness of the breach.


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[146] Doherty also held that the exclusion of the evidence would haveended the prosecution. Taking these considerations intoaccount, he held exclusion of the evidence would exact a heavytoll on the administration of justice and therefore did notexclude the evidence.

[147] In the case at bar, Allen was clearly aware of the need to informthe applicant of his right not to talk to him.He attempted tomake the applicant aware of his options by telling him threetimes that he did not have to talk to him. I am satisfied that

Allen reasonably believed that he had explained the consent tosearch and that the applicant understood his rights. Allen madeit clear to the applicant that the police suspected he was inpossession of marijuana before he explained the Consentto

him and requested his signature. While I have found theConsentwas not an informed consent, the seriousness of thebreach was similarly reduced because the police couldreasonably have believed that the applicant was willing to havehis luggage searched. They were acting in good faith becausethe applicant appeared to understand English and never saidanything to the officers to suggest that he did not understand.

[148] As a result, I am satisfied that the seriousness of the violation inthe case at bar falls into the lower end of the spectrum.

[149] As Kilpatrick J. recently stated at paras 23-24 in R v Devries,[2012] Nu J No 11, 2012 NUCJ 7, substance abuse is a bigsocial problem in Nunavut where the Cannabis offence rate isfour times the national average and many people who live inpoverty and cannot afford it are spending money on this druginstead of providing the necessities of life to their families.Counselling services to address substance abuse problems areextremely limited. He also noted that significant amounts of

police time and resources are being expended to combat agrowing underground trade in illicit drugs.


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[150] Finally, Kilpatrick J noted that the diversion of these valuableresources leaves fewer police and financial resources toaddress other pressing social issues.

[25] In Nunavut, significant amounts of police time and resources are

being expended to combat a growing underground trade in illicit

drugs. The diversion of these valuable resources leaves fewer police

and financial resources to address other pressing social issues. Thecost of policing is being borne by a cash strapped Territorial

government that can ill afford the communities' demands for more and

more policing.

[151] The recent report entitled Learning From Lives That Have BeenLivedby Dr. Edwardo Chachamovich and Monica Tomlinsonthat was released on June 5, 20133, listed cannabis abuse and

dependence as a major risk factor in the high suicide rate inNunavut.

[152] Without the drugs seized the prosecution is at an end. I amsatisfied that that the exclusion of this evidence would exact aheavy toll on the reputation of the administration of justice inNunavut and would thwart the efforts to keep drug dealers andtheir couriers off the streets of Nunavut. It would take muchmore substantial police Charterviolations to justify theexclusion of the evidence seized in this case.

3 Dr. Edwardo Chachamovich & Monica Tomlinson,Learning From Lives That Have Been Lived; NunavutSuicide Follow-Back Study 2005-2010, (Montreal: Douglas Mental Health University Institute, 2013).


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IV. CONCLUSION

[153] The application is dismissed and the evidence is admissible attrial.

[154] If the police are going to successfully rely on a standard form inNunavut then they should ensure that they also have anInuktitut translation available or an interpreter to interpret theEnglish into Inuktitut. Otherwise, in a borderline case like thisone, the Inuit suspect will be given the benefit of the doubt andthe Crown will not be able to meet the balance of probabilitiestest.

Dated at the City of Iqaluit this 14th day of June, 2013

____________________

Mr. Justice Earl D. Johnson

Nunavut Court of Justice

justice earl johnson voir dire judgment r v qrunngnut

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