R. v. McWhirter

2017 BCSC 2314 R. v. McWhirter

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. McWhirter, 2017 BCSC 2314 Date: 20171214 Docket: 81615-2 Registry: Kelowna Regina v. Donahugh Fredrick McWhirter and Brittany Marie Stinn Before: The Honourable Mr. Justice Davies Rulings on Traffic Stop Voir Dire Counsel for the Crown: P. Mann Counsel for the Accused, Donahugh Fredrick McWhirter: C. Corriveau Counsel for the Accused, Brittany Marie Stinn: M. Newcombe Place and Dates of Hearing: Kelowna, B.C. July 31, August 1, 3,4, 8-11, and 14-16, 2017 Place and Date of Judgment: Kelowna, B.C. December 14, 2017

INTRODUCTION [1] Donahugh McWhirter and Brittany Stinn are changed on a multi-count indictment alleging possession of drugs and possession of drugs for the purpose of trafficking as well as various firearms offences. [2] The various offences are alleged to have occurred on or about November 4, 2014 in Merritt B.C. and in Lake Country on January 29, 2015. [3] This voir dire ruling concerns a traffic stop in Merritt on November 4, 2014 in which the Royal Canadian Mounted Police (RCMP) employed a traffic stop ruse to search a vehicle driven by Mr. McWhirter in which Ms. Stinn was a passenger. [4] The search involved the use of police dog Whiskey who indicated the presence of drugs in the vehicle. The subsequent physical search of the vehicle was conducted by Whiskey's handler, Constable Eric Thompson who found a quantity of drugs in the car. [5] The accused were arrested at roadside, taken to the Merritt detachment of the RCMP and then provided with access to counsel. [6] Both accused alleged that their rights under ss. 7, 8, 9, 10(a), 10(b) and 11(a) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982 c. 11 [the Charter] were breached by the police so that any evidence obtained as a consequence of the traffic stop and subsequent search should not be admissible at their trial. [7] After hearing the evidence adduced on this voir dire and considering the submissions of counsel I subsequently ruled, with reasons to follow, that no Charter breaches had been established. [8] These are those reasons.

EVIDENCE ON THE VOIR DIRE [9] As a consequence of an ongoing investigation into suspected drug trafficking by Mr. McWhirter, on November 4, 2014 Corporal Mathew Rattee, the primary investigator assigned to the investigation into those activities requested Constable Eric Thompson to conduct the traffic stop investigation that is the subject of this voir dire. [10] Corporal Rattee is a member of the RCMP's South East District Combined Forces Special Enforcement Unit. [11] Constable Thompson is a member of the Central Interior Traffic Division of the RCMP. He is a qualified Police Dog Handler who at the time was paired with his now retired Police Service Dog Whiskey. [12] Corporal Rattee did not testify on this voir dire due to other commitments from which he could not be extricated. In order to proceed with the substantive voir dire issues within the scheduled time and because the real issue was whether, based upon both information conveyed to him by Corporal Rattee and information obtained by him during his subsequent involvement, Constable Thompson had grounds to detain and then to arrest the accused. [13] It was accordingly assumed for the purposes of the accused's Charter applications that Corporal Rattee had reasonable and probable grounds to arrest both accused. If that assumption later proves to be unsubstantiated when Corporal Rattee later testifies the result of this

voir dire will be open to re-consideration. [14] Constable Thompson testified that at about 3:20 p.m. on November 4, 2014 he was contacted by Corporal Rattee who requested that he conduct a vehicle stop of a 2004 black Audi with B.C. License Plate 359RLT. [15] The contents of an email sent by Corporal Rattee to Constable Thompson are of import. In that email sent at 3:52 p.m. that day Corporal Rattee wrote: As per our earlier telephone conversation [Redacted] we have tracker surveillance observations of him attending the res in Maple Ridge. [Redacted] tracker capturing his departure from kelowna today. LMD surveillance has acquired McWHIRTER in Abbotsford. This will be McWHIRTER's fourth or fifth trip to this res. I believe that McWHIRTER will be reloading with methamphetamine surveillance has just observed what is btb a hand to hand of McWHIRTER obtaining [Redacted] on Abbotsford. McWHIRTER, Donahaugh Frederick 1973 01 01 2004 black maudi s4 BCLP 359RLT. Will be in the company of gf. STINN Brittany Marie. 0989 04 06 It is very important this be hidden for the time being in a sed file with the pipeline stop to protect our over arching investigation. If you require any further info or clarification Pls call. 250-575-4581. [16] After an in camera hearing I ruled that the redacted portions of that email were properly redacted because they could tend to identify an informant. [17]

Corporal Rattee's instructions with respect to the reasons for the stop of the vehicle are central to the issues raised on this voir dire. Constable Thompson's evidence established that the primary purpose of the stop was the ongoing "over-arching" drug investigation not a traffic stop for the purposes of ticketing or arresting either of the accused for Motor Vehicle Act, R.S.B.C. 1996, c. 318 violations. [18] To that extent the stop of the accused's vehicle was a "ruse" designed to hide from the accused the fact of the police investigation into their alleged illegal drug activities. [19] Constable Thompson testified that in addition to the information specifically contained in the email he received from Corporal Rattee he also learned that: 1) the vehicle he had been tasked to stop was registered to Ms. Stinn and that Mr. McWhirter would be driving; 2) he had "powers to arrest" both of the accused; and 3) the police were conducting a bigger investigation so that the police would like it to appear as if it were a traffic stop, however "if possible, if needed be to use the dog" [Whiskey] who is trained in drug detection. [20] Constable Thompson said that based upon what he had been told by Corporal Rattee he believed he had grounds to arrest the accused but that the use of Whiskey as part of the attempt to protect the larger investigation would be determined by him based upon

circumstances when the vehicle was stopped. [21] In that regard Constable Thompson testified: Q Okay. So on that day, you said that there was -- Corporal Rattee, I believe you said, wanted you to act like a detention. Can you -- can you highlight what he meant by that? A Like he wanted to make it appear as the individuals -- was stopped for a traffic reason and then based on my experience and what I saw, it would lead to a detention, and then to a dog deployment, to arrest. That way the accused wouldn't be tipped off about the bigger investigation. Now, he mentions in there, "utilize the dog if necessary". What it means by that, if I would have stopped the vehicle and, say, that there was odour of marihuana or something that's in plain view, then I could just go straight to arrest without using the dog. Basically, the circumstances could change, is what he meant by that. Q Okay. So it's exactly how you were going to effect this vehicle stop was your decision making but you have the grounds from Corporal Rattee; you said you had the power to arrest from Rattee? A Correct. [22] Before conducting the traffic stop Constable Thompson conducted queries on CPIC and PRIME from which he learned that Mr. McWhirter did not have a valid driver's license. Because he had been told by Constable Rattee that Mr. McWhirter would be driving he decided to serve a prohibition notice as part of his

own traffic investigation in furtherance of the larger drug investigation. [23] When Constable Thompson learned from another officer the time when the accused would be leaving the Abbottsford area where they were that afternoon, he arranged with Corporal Tim Lyons and Constable Dave Fahlman of the Merritt detachment to set up a "road check" stop at the Hwy 97C roundabout exit near Merritt that leads to Kelowna. [24] He testified that the road check was set up at about 6:26 p.m. utilizing police vehicles with flashing lights on with intent to stop all traffic at that location for motor vehicle offences and impaired driving. [25] Both Corporal Lyons and Constable Fahlman testified on the voir dire. [26] Their evidence was limited to their actions that night at the scene including some interaction with the accused after each was arrested that I will later discuss. Nothing else of import turns upon the evidence of either officer. [27] The evidence establishes that while the primary purpose of the road check was to detain the identified target Audi, the two Merritt officers actually did undertake the stopping of all vehicles while the road check was in operation. [28] When Constable Thompson learned from surveillance officers that the Audi with Mr. McWhirter driving was approaching the road check he stopped the Audi in the middle of the road. He then informed Mr. McWhirter that he

was conducting a road check and asked to see his driver's license and registration. [29] Constable Thompson testified that Mr. McWhirter then told him he did not have a license. He also testified that Ms. Stinn who was sitting in the passenger seat said she had a driver's license and produced it to him. [30] Constable Thompson then testified that after yawning and saying that she was tired Ms. Stinn also produced registration documents. When he asked them where they were coming from they said Maple Ridge. [31] Constable Thompson then asked Mr. McWhirter to move the Audi to the side of the roadway where it was parked in front of the police vehicle driven by Corporal Lyons. The lights of that vehicle then illuminated what occurred. [32] Constable Thompson testified that both Mr. McWhirter and Ms. Stinn appeared nervous. As I will later relate, he described in detail Mr. McWhirter's holding of a coffee cup near his chest with two hands and that he could see his heart beating. He categorized Mr. McWhirter's nervousness as amongst the most extreme he had seen in his years of traffic patrol experience with more than 10,000 traffic stops. [33] He also said that Ms. Stinn appeared nervous. He stated that she had a "deer in the headlights stare to her. Her eyes were huge, wide open". Although she said she had been sleeping he testified that in his experience her appearance was

inconsistent with someone who was groggy or just waking up. [34] All of the interactions between Constable Thompson and Mr. McWhirter as well as with Ms. Stinn after the initial stop were either audio or video recorded or both. The recording equipment which captured the audio communications was carried by the police on their uniforms, however at times both audio and video equipment located in the police vehicles also recorded what transpired. [35] Transcripts of the relevant audio and video recordings were adduced as evidentiary aides to assist in the assessment of what was at times distorted sound recordings resulting from traffic or wind or overlapping voices. Necessary alterations to the transcripts were addressed by the witnesses when the recorded evidence was played in court and I am satisfied that, with those alterations, the transcripts are reliably accurate. [36] When Mr. McWhirter had pulled over to the side of the road and had switched seats so that Ms. Stinn was now the driver, Constable Thompson went back to his police vehicle to again review Mr. McWhirter's driving status on CPIC. He learned that what he believed was Mr. McWhirter's prohibited status was confused by the existence of a suspension notice that had been issued in January of 2014. [37] That caused Constable Thompson concern over whether he could arrest Mr. McWhirter for driving while prohibited. [38]

After Constable Thompson discussed that concern with Corporal Lyons he decided that he would serve Mr. McWhirter with a Notice of Driving Prohibition rather than arrest him for driving while prohibited. [39] Although counsel for Mr. McWhirter submitted that Constable Thompson was anxious to arrest Mr. McWhirter in breach of his Charter rights notwithstanding lack of grounds under the Motor Vehicle Act I do not accept that submission. I find that Constable Thompson was genuinely confused by a situation he had not previously encountered and deferred to Corporal Lyons' understanding of the situation. [40] Concerning what next occurred in relation to the audio recording of events after he served the Notice of Prohibition Corporal Thompson testified in examination in chief that: Q Okay. And then what we just heard you say was, "You want to step on out here. I want to ask you some questions here"? A That's correct. Q. Why did you say that? A Because at this point I plan on detaining him for possession of drugs. Q Why do you plan to do that? A At this point I've completed the traffic portion of the stop, I believe, by serving that notice of prohibition, and now I'm entering into my drug investigation. [AUDIO/VIDEO BEING PLAYED] [AUDIO/VIDEO STOPPED] MS. GUEST: Q Okay, so you're detaining who for possession of drugs? A McWhirter. Q Mr. McWhirter? A That's correct. Q And on what basis

are you doing that? A The basis -- at this point I have grounds to arrest, however, to go along with Constable Rattee and the information provided, now I'm making it look like a detention, and the grounds for those detentions are based on the information provided which matches. McWhirter was driving the Audi S4, B.C. licence plate 359 Romeo Lima Tango, which is registered to Stinn, who's found in the vehicle as well. They're coming back from Maple Ridge, which matches the information that was provided. The surveillance team followed that vehicle and told me it was coming in, so that all matched. McWhirter was nervous when I pulled him off to the side and wanted to speak with him. If I could demonstrate, he -- when I was speaking to him, he had a coffee cup and-he was sitting like this. To me, with my traffic experience, I've never dealt with that before. There was a -- Q So I'll just stop you. And if you could just describe what you're doing with that cup? A I'm holding a cup in my two hands, and I'm holding it close to my chest. My arms are tight in. And holding it from -- chest and neck area. Q And when was he doing that? A When I was speaking to him, initially when I was asking for his name and his date of birth. Q Okay. And anything else? A At that point, I noticed that he was wearing a purse or a satchel just under his left pecs, and by him holding here created a -- like a

"V" -- right here, I could notice his -- his chest is rising up and down; like I could see his heart ' beat going through his shirt -- Q And you -- sorry, you're pointing to your left chest area? A Somewhere in the chest. I could see his chest going up and down, up and down, through his shirt. To me that was a sign of being nervous. Q Thank you. And then just moving back to what you said, you wanted to make it look like a detention. Can you please elaborate on what you mean by that? A Correct. So -- because there was a bigger investigation going on, I couldn't outright just arrest him or McWhirter would wonder why a police officer in Merritt was just outright arresting him, so I had to make it look like that he was stopped and detained, and the use of my dog found the drugs. So that's why I went the detention route. Even though I had grounds for arrest. To protect that investigation. [41] The transcript of Constable Thompson's recording of his interactions with Mr. McWhirter at the time of that detention which (after amendment to reflect the actual words used as indicated by square brackets and underlined by me) reads: ET: Okay. So, I'm gonna be detaining you right now for possession of drugs. I wanna ask you some questions. Do you want to put your hands behind your back for me? So, now - put your hands behind your back. You're not obliged to say anything. Anything you do say

may be given in evidence. You understand that? DM: Yes. ET: And you have the right to retain and instruct counsel in private without delay. You may call any lawyer you want. There is a twenty-four hour telephone service that can provide legal-aid. Legal-aid is free of charge and they can go over the legal-aid plan with you. Do you understand that? Would you like to contact a lawyer or legal-aid today? DM: (Indiscernible) [No, unless I'm going to jail] ET: Okay. At this point you're not going to jail, I just want to ask you some questions. Do you understand that? DM: Okay. ET: Okay. Just come back here for a sec. I'll just pass you this . ET: Uh, could you just hold on to those for now. 'Kay. We're just gonna stand right here. Do you got anything in your pockets I should be concerned - no needles, nothing like that? DM: No. ET: So, do you want to talk to a lawyer or legal-aid at this time? DM: No, I mean ... ET: No. DM: You're just detaining me. [42] Corporal Thompson then questioned Mr. McWhirter about his activities that day and obtained answers that he believed were implausible. [43] He then asked Mr. McWhirter if there were drugs in the vehicle which Mr. McWhirter denied. He then directed Mr. McWhirter into the backseat of Corporal Lyons' vehicle. [44] Constable Thompson then also advised Ms. Stinn she was being detained "because he believed there were drugs in her vehicle"

and also placed her in handcuffs. He provided the same information to her concerning the right to remain silent and to retain counsel that he had provided to Mr. McWhirter. When he asked her whether she wanted to talk to a lawyer she said "I'll just wait". [45] He then asked Ms. Stinn questions about her actions that day and received information that conflicted with that given by Mr. McWhirter. When Constable Thompson asked her whether she was a user of drugs and whether there were drugs in the vehicle she denied both. He then placed Ms. Stinn in the back of Constable Fahlman's police vehicle and advised her that he would be using Whiskey "running around your vehicle" and depending on what his dog told him "we'll go from there". [46] Constable Thompson then removed Whiskey from the back of his vehicle and deployed him to search the perimeter of the Audi. [47] Constable Thompson testified that Whiskey first indicated the presence of drugs at the driver's door and then in the area of the rear passenger door. [48] He testified that after those indications he believed he had grounds to believe there were drugs in the vehicle. [49] He next told Corporal Lyons that he intended to place both accused under arrest and requested Corporal Lyons to "get them their lawyer call" "so that if Mr. McWhirter or Ms. Stinn wanted to talk to a lawyer Corporal Lyons could arrange it. [50] Constable

Thompson then arrested Mr. McWhirter. The transcript of the record of his arrest reads: ET: Okay, Don, so my dog indicted on your vehicle twice actually so I'm gonna be placing you under arrest... DM: Yeah. ET: ... for Possession of a Controlled Drug. Do you understand that? DM: Yeah. ET: Okay. You're not obliged to say anything. Anything you do say may be given as evidence. You understand that? DM: Yeah. ET: Okay. And you have the right to retain and instruct counsel in private, without delay. You may call any lawyer you want. There is a twenty-four hour telephone service ... DM: Okay. ET: ... and can go over the legal-aid plan. Do you understand that? DM: Yeah. ET: Did you want to talk to a lawyer or legal-aid at this time? DM: Oh, yeah. ET: Okay. Do you have your own lawyer or did you want to talk - look a lawyer sheet or - DM: I'll be calling Stan Tessmer ET: Stan Tessmer? Okay. DM: I think (indiscernible). ET: He's out of Kelowna, right? DM: Yeah. You can tell Brittany the same thing. [51] Constable Thompson next arrested Ms. Stinn. The transcript of the record of the arrest of Ms. Stinn (identified on the transcript as ST) reads: ET: Okay, so my dog indicated on your vehicle twice so I'm gonna be placing you under arrest for Possession of a Controlled Drug. ST: Me? ET: You understand that? Yeah. Do you understand that? You're under arrest right now. ST: Okay. ET: You

don't have to agree with the reason why, I just have to inform you of why, okay? ST: So, what does this mean? ET: So, I'm gonna give you your rights. ST: Yeah, I've never been in trouble, so. ET: So, I'm gonna give you your rights and then I'm gonna be searching the vehicle incidental to arrest. ST: Yeah. ET: Depending what I find ... ST: Yeah. ET: ... depending if you get charged or not. ST: Okay. ET: Is basically the gist of it. ST: And then what happens? ET: Then it depends if there's nothing there then I'll be talking to you ... ST: Right. ET: ... the reason why, and if, uh, there's something there, depending what it is, we'll go from there. Okay? So, you're not obliged to say anything. Anything you do say may be given as evidence. You understand that? ST: Yeah, (indiscernible). ET: Yeah. I just have to go over it again. ST: Okay. ET: It's just the way it goes. ST: Okay. ET: You have the right to retain and instruct counsel in private, without delay. You may call any lawyer you want. There is a twenty-four hour telephone service that can provide legal-aid. Legal-aid is free of charge and they can go over the legal-aid plan with you. Do you understand that? ST: Mm-hmm. ET: So, you have the right to talk to a lawyer or legal-aid right now. Would you like to talk to one right now? ST: Well, I didn't do anything wrong, so. ET: Okay. So, what does that mean? Yes? No? ST: No. ET:

No, you don't want to talk to them? ST: No. Well, actually, yeah. Maybe I should ask them what I should do. ET: Okay. Do you want to talk to the same lawyer as him? He suggested that. ST: Sure. [52] Constable Thompson then asked Corporal Lyons to arrange for both Mr. McWhirter and Ms. Stinn to talk to the lawyer that Mr. McWhirter had identified. [53] The accused were then taken to the Merritt detachment a few minutes away. [54] Corporal Lyons transported Mr. McWhirter while Ms. Stinn was driven by Constable Fahlman. [55] When both accused had left the scene of the traffic stop Constable Thomson undertook a search of the inside of the Audi and its trunk and located a quantity of MDMA and also what be believed to be cocaine. [56] Other officers who did not testify on this voir dire assisted in that search and in a later search of the vehicle after it was towed to a detachment for further examination. [57] While Corporal Lyons and Constable Fahlman were on the way to the Merritt detachment Constable Thompson contacted them and asked each of them to advise Mr. McWhirter and Ms. Stinn that they were now under arrest for possession of drugs for the purpose of trafficking MDMA and cocaine. [58] Both officers did so, again providing both the Charter right to counsel information as Constable Thompson had previously done as well as the standard police "right to silence" warning that

Constable Thompson had given both at the time of their detention as well as after arresting them for possession of drugs after Whiskey's search of the outside of the Audi. [59] After some delay at the Merritt detachment in reaching a lawyer due to the lawyer's lack of availability they eventually each talked to a lawyer that night. [60] No s. 10(b) Charter issues are raised with respect to that delay at the Merritt detachment in speaking to a lawyer. [61] As I will later discuss the s. 10(b) Charter issues raised by the accused relate to their submission that they should have been given access to counsel at roadside during the traffic stop rather than at the Merritt detachment after their arrest. [62] The accused did not adduce any evidence on the voir dire.

THE ALLEGED CHARTER BREACHES [63] Mr. McWhirter and Ms. Stinn alleged that their rights under ss. 7, 8, 9, 10(a), 10(b) and 11 (a) of the Charter were breached by the police by their conduct in planning and executing the traffic stop ruse on November 4, 2014 that resulted in the police search of the Audi, the discovery of drugs in the vehicle and the arrest of both accused. [64] The accused seek to have all evidence obtained by the police as a consequence of the search of the vehicle and their arrest excluded from admission at trial because of those alleged Charter breaches. [65] I will now discuss each alleged Charter breach. Alleged s. 7 Charter breaches [66] Section 7 of the Charter provides: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [67] Counsel for the accused did not make any substantive submissions specific to any alleged s. 7 Charter breach by the police before, during or after the traffic stop including in respect of detention of the accused, the search of their vehicle, their arrest, or in respect of any other dealings by the police with the accused relating to the events in issue. [68] I have concluded that no evidence adduced on this voir dire is capable of establishing any breach of the s. 7 Charter rights of either accused

independent of any other specifically alleged Charter breach. Their s. 7 Charter application is accordingly dismissed. [69] Before turning to the issues raised by the accused in respect of those alleged breaches of ss. 8, 9, 10(a) and 11(a) of the Charter I will address the alleged breaches of their s. 11(a) Charter rights. Alleged breaches of s. 11(a) Charter rights [70] Section 11(a) of the Charter provides: 11. Any person charged with an offence has the right (a) to be informed without unreasonable delay of the specific offence; [71] It is not entirely clear whether the accused were advancing a claim of a breach of their s. 11(a) Charter rights on this voir dire or seeking any relief in respect thereof. [72] Counsel for the accused did not make any substantive submissions with respect to any alleged breaches of the accused's s. 11(a) Charter rights. [73] In those circumstances and since any breaches of s. 11(a) of the Charter could only arise after the accused were charged with the offences of which they are now accused there is no evidentiary or legal basis upon which there could have been any breach of s. 11(a) of the Charter at the stage of the investigation at issue on this voir dire. Alleged breaches of ss. 8, 9 and10 (a) and (b) Charter rights [74] The accused submitted that the use of the traffic stop as a ruse to further the ongoing and broader drug investigation individually and cumulatively breached the ss. 8, 9 and 10(a) and 10(b) Charter rights of both accused. [75] Their submissions are based on the propositions that: 1) The stop and detention of the accused for purported Motor Vehicle Act reasons when the real reason was to further a drug investigation was arbitrary.

2) The failure of the police to advise the accused that the actual purpose of the stop and detention and subsequent arrest was a violation of their s. 10(a) Charter rights to know the reason for the detention which thwarted their right to make an informed decision about their jeopardy and whether to contact a lawyer and resulted in the obtaining of information that Constable Thompson then used in deploying Whiskey to conduct the perimeter search of the Audi.

3) The failure of the police to provide the accused with access to counsel at roadside when they were detained and when they were subsequently arrested was a breach of their s. 10(b) Charter rights to retain and instruct counsel without delay.

4) The cumulative effect of those breaches of their Charter rights rendered the warrantless search of the Audi unreasonable so that their s. 8 Charter rights were also breached. [76] The issues that arise related to the alleged breaches of Mr. McWhirter and Ms. Stinn's ss. 8, 9, and 10(a) and (b) Charter rights are inter-related and more complex than those related to the alleged ss. 7 and 11(a) Charter breaches that I have dismissed. [77] At the heart of the issues raised by the accused concerning ss. 8, 9, and 10(a) and (b) of the Charter is, whether the police use of the traffic stop ruse to further the drug investigation was prohibited by any of those Charter provisions the accused say were breached. [78] Put another way, the issue is whether the police were obligated to disclose the existence of the drug investigation as the reason for the traffic stop and that deliberately not doing so abrogated the accused's protected Charter rights. [79] In discussing those issues I will first address the allegations that the accused's s. 9 Charter rights not to be arbitrarily detained or imprisoned were breached. [80] I will then discuss the allegations that the police breached their s. 10(a) and (b) Charter rights to be promptly informed of the reason for their detention and arrest and to instruct counsel without delay. [81] I will then discuss the accused's allegation concerning

breaches by the police of their s. 8 Charter right to be free from unlawful search and seizure. [82] Those issues must be considered in the context of the assumption I earlier recorded in these reasons at para. 13 that Corporal Rattee had reasonable and probable grounds to arrest both accused when he conveyed his instructions to Constable Thompson by telephone and by the email to which I have referred. [83] In relation to that interplay between Corporal Rattee and Constable Thompson I adopt the following passage from the decision of this Court in R. v. Shokar, 2006 BCSC 770 in which, at para. 21, Joyce J. discussed the issue of the relationship between the knowledge of an instructing officer and that of the officer affecting an arrest. He wrote: [21] The police officer who must have reasonable and probable grounds to arrest is the one who decides that the suspect should be arrested. The officer who actually effects the arrest is entitled to rely on the request or instruction of another police officer who has the requisite reasonable and probable grounds to justify the arrest. It is not necessary that the officer who actually performs the arrest form an independent judgment that there are reasonable and probable grounds. (See R. v. DeBot and R. v. Hall, 2006 SKCA 19). Therefore, as long as Cst. Currie had reasonable and probable grounds, Cst. Weatherby was entitled to rely on

them. [84] Those principles are important in this case because counsel for the accused called into question the legitimacy of Constable Thompson's observations of Mr. McWhirter's nervousness and Ms. Stinn's behaviour to detain Mr. McWhirter and Ms. Stinn for the drug investigation and for deploying Whiskey for the perimeter search of their vehicle. [85] With those observations in mind I turn to the specific Charter breaches alleged by the accused. Alleged breach of s. 9 of the Charter: Arbitrary detention [86] The fundamental issue raised by the accused's allegations that their s. 9 Charter rights were breached by the police because they were arbitrarily obtained is whether the traffic stop ruse employed by the police to further the larger ongoing drug investigation was unlawful. [87] Examination of that issue requires consideration of judicial authority concerning "dual purpose" traffic stops and criminal investigations. [88] Whether the police may utilize a dual purpose stop to further an investigation into other criminal activity has been the subject of a number of decisions at many levels of courts in Canada many of which were referred to me by counsel for the accused and for the Crown. Although the conclusions that were reached in those decisions were for the most part fact driven, underlying principles do emerge that guide my decision making in this case. [89] A useful

starting point in respect of those underlying principles is the decision of the Ontario Court of Appeal in Brown v. Durham (Regional Municipality) Police Force (1998), 131 C.C.C. (3d) 1 [Brown] which considered whether a dual purpose stop that involved both regulatory purposes under the Ontario Highway Traffic Act, R.S.O. 1990, c. H.8 and criminal intelligence gathering violated s. 9 of the Charter. [90] In Brown at paras. 19 to 24 Doherty J.A. writing for the Court reviewed existing jurisprudence with respect to the interplay between random traffic stops and criminal investigations related to alleged arbitrariness under s. 9 of the Charter. [91] He then went on to observe at paras. 25 to 26 that: 25 The appellants argued at trial and on appeal that highway safety concerns were a ruse used by the police to justify the stopping of the appellants, their friends and associates. Had this argument been accepted, s. 216(1) of the HTA could provide no lawful authority for the stops and detentions: R. v. Dedman, [1985] 2 S.C.R. 2 at 31; R. v. Zammit (1993), 13 O.R. (3d) 76 (C.A.). 26 There was evidence to support the appellants' position. The trial judge concluded, however, that highway safety concerns was one of the purposes motivating the stops. He referred to the intention to "investigate for contravention of the Highway Traffic Act and Compulsory Automobile Insurance Act" and to

the concerns that some persons driving to and from the party could be under the influence of alcohol or other drugs. The trial judge could not rank the highway safety purpose for the stops as more or less significant than any of the other police purposes for the stops. [92] At para. 29 Doherty J.A. posed the question of whether the conduct of a multi-purpose stop related to other than highway safety matters can take subsequent detention outside of the ambit of a legitimate regulatory stop and thereby render that detention arbitrary. [93] In answering that question at paras. 30 to 34 Doherty J.A. wrote: 30 The trial judge rejected the submission that other purposes in addition to highway traffic concerns rendered the stops unlawful. He said, at p. 335: ... I think such a conclusion would be unreasonable because it would remove the authority of the police to stop motorists where they had an unrelated purpose which might not lawfully justify a stop but also had highway traffic concerns which would alone justify a stop. It would mean that where a police officer has other reasons to want to stop a motorist he is thereby deprived of the right under the Highway Traffic Act to use his established right to stop a motorist in order to investigate highway traffic matters. It seems to me that where the police have highway traffic concerns and other unrelated concerns, then the limit on

their conduct should be imposed by limiting their conduct after the stop .... 31 I agree with this conclusion as long as the other purposes motivating the stop are not themselves improper. For example, the police are entitled on a s. 216(1) stop to require drivers to produce their licences. That requirement is consistent with the highway safety concerns which underlie the power granted by the section. In addition to ensuring that the driver is properly licensed, the police may wish to identify the driver for other purposes. It may be, as in this case, that the police are interested in knowing the identity of all those who are connected with what they believe to be organized criminal activity. The gathering of police intelligence is well within the ongoing police duty to investigate criminal activity. As long as the additional police purpose is not improper and does not entail an infringement on the liberty or security of the detained person beyond that contemplated by the purpose animating s. 216(1) of the HTA, I see no reason for declaring that a legitimate police interest beyond highway safety concerns should taint the lawfulness of the stop and detention. As the trial judge pointed out, known criminals should not be more immune from s. 216(1) stops than law abiding citizens who are not known to the police. 32 R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.) supports this

position. Storrey argued that even if the police had reasonable and probable grounds to arrest him, his arrest was unlawful because the police intended to use Storrey's detention to further their investigation by placing him in a line-up. Storrey maintained that the ulterior purpose of furthering the ongoing investigation rendered his arrest and subsequent detention contrary to s. 9 of the Charter. Cory J., for an unanimous court, found that the officer had reasonable and probable grounds to arrest Storrey. He went on to hold that their intention to pursue the investigation after the arrest was not improper but was necessary if the police were to properly perform their "essential role" of investigating crime. He concluded, at p. 327: An arrest which is lawfully made does not become unlawful simply because the police intend to continue their investigation after the arrest. To repeat, in the case at bar the police had reasonable and probable grounds on which to base their decision to arrest the appellant. Further, there was nothing improper about the police intention to continue their investigation of the crime after they had made the arrest. Neither that intention nor the continued investigation made the arrest unlawful. The circumstances of the arrest of the appellant did not constitute an infringement of s. 9 of the Charter. 33 The reasoning in Storrey is equally applicable

where the police intend, within the confines of the stop and detention authorized by s. 216(1) of the HTA, to avail themselves of the opportunity to further some other legitimate police interest: See also R. v. Annett (1984), 17 C.C.C. (3d) 332 (Ont. C.A.), leave to appeal to S.C.C. refused, 17 C.C.C. (3d) 332n. 34 If, however, one of the purposes motivating a stop and detention is improper, then in my view the stop is unlawful even if highway safety concerns also factor into the decision to make the stop and detention. Cory J. alluded to the potential effect of an unlawful purpose on an otherwise lawful arrest in Storrey, supra, at p. 325: It should be noted, as well, that there is nothing to indicate that there was anything in the circumstances of the arrest which would make it suspect on any other ground. That is to say, there is no indication that the arrest was made because a police officer was biased towards a person of a different race, nationality or colour, or that there was a personal enmity between a police officer directed toward the person arrested. These factors, if established, might have the effect of rendering invalid an otherwise lawful arrest. However, the arrest of the appellant was in every respect lawful and proper. [94] In R. v. Nolet, 2010 SCC 24 [Nolet] the Supreme Court of Canada considered an appeal of the trial judge's exclusion of evidence obtained

as a consequence of the inspection of a truck that had an expired fuel sticker in violation of the Ontario Highway Traffic Act. [95] That inspection had led to the police developing suspicions of illegal activity and the eventual discovery of large amounts of cash and marijuana hidden in the truck. [96] The trial judge found that the "predominant purpose" of the warrantless search of the truck was not regulatory concerns but rather suspicion of criminal activity which required the exclusion of evidence obtained without lawful authority. [97] The Ontario Court of Appeal reversed that decision and the Supreme Court of Canada dismissed the accused's appeal. [98] In doing so the Court rejected the "predominant purpose" inquiry in "dual purpose" stops. [99] Justice Binnie for a unanimous Court wrote at para 43: [43] I do not agree that the officer's concurrent interest in contraband (even if it was "predominant") rendered the H&TA search unlawful or unreasonable within the scope of s. 8 of the Charter. As already stated, knowledge of transportation legislation is a requirement to be licensed as a driver. Commercial drivers are well aware of the police authority to conduct random stops and to search a vehicle for evidence of infractions. Commercial trucking is a highly regulated industry. Breaching a law will not in itself reduce an individual's legitimate privacy expectations

(otherwise, it would be argued that offenders would always forfeit s. 8 protection relevant to evidence of the offence), but here, as events progressed from the police stop to the initial regulatory search of the cab, there was no police invasion of the minimal privacy interest that existed. As was the case in Annett, "the expectation that the search might also uncover drugs" (p. 335) did not convert a Charter -compliant regulatory search into a Charter violation: R. v. Sewell, 2003 SKCA 52, 175 C.C.C. (3d) 242. [100] In my opinion Brown and Nolet establish that the inquiry into whether a regulatory traffic stop involving a concurrent or subsequent criminal investigation constitute a breach of an accused persons s. 9 Charter right to be free from arbitrary detention must in first instance determine whether the stop was pursuant to an authorized regulatory purpose. If so, the inquiry must then consider whether a police investigation that may fall outside of the legitimate regulatory ambit of the stop constitutes an arbitrary detention within the meaning of s. 9 of the Charter or breaches other Charter rights of the accused. [101] In this case Constable Thompson's determination to use the road check to stop the accused's Audi was authorized by s. 73 of the Motor Vehicle Act, which provides: 73 (1) A peace officer may require the driver of a motor vehicle to stop and the driver of

a motor vehicle, when signalled or requested to stop by a peace officer who is readily identifiable as a peace officer, must immediately come to a safe stop. (2) When requested by a peace officer, the driver of a motor vehicle or the person in charge of a motor vehicle on a highway must state correctly his or her name and address and the name and address of the owner of the motor vehicle. (3) A person who contravenes subsection (1) or (2) commits an offence and is liable to a fine of not less than $100 and not more than $2 000 or to imprisonment for not less than 7 days and not more than 6 months, or to both. [102] The fact that Constable Thompson knew from his own investigations that Mr. McWhirter did not have a driver's license and intended to use that knowledge to detain the accused did not render the use of the road check arbitrary. [103] To that extent it is noteworthy that while Mr. McWhirter was the target of the road check it was also conducted by Corporal Lyons and Constable Fahlman as a road check for Motor Vehicle Act purposes with respect to other drivers. [104] I will further address the extent to which a ruse may be used by the police to further a criminal investigation later in these reasons. [105] However, for the purpose for the present arbitrariness inquiry in relation to the accused's s. 9 Charter rights I find that the initial stop of the Audi and the

detention of the accused was authorized by law and was accordingly not arbitrary. [106] The issue of whether the continued detention of the accused after Constable Thompson had completed the regulatory aspect of the detention with the service of the Notice of Prohibition on Mr. McWhirter must be answered by consideration of whether Constable Thompson had the requisite grounds to detain the accused for the purpose of deploying Whiskey for a perimeter search of the Audi. [107] The necessary grounds that a police officer must have to detain an accused person or to deploy a drug sniffer dog are both less than those that are required to effect the arrest of an accused. [108] In R. v. Mann, 2004 SCC 52 [Mann] and R. v. Suberu, 2009 SCC 33 [Suberu] the Supreme Court of Canada considered the limits that ss. 8, 9, and 10(a) and (b) of the Charter place upon the police use of their common law power of investigative detention as well as the issue of the extent of the police power to search incidental to detention. [109] At para. 45 in Mann, Iacobucci J. for the Majority wrote: To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable

grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case. [110] In Suberu at paras. 1 to 4 Chief Justice McLachlin and Charron J. writing jointly for the majority stated: 1 The facts in this appeal and in the companion case R. v. Grant, 2009 SCC 32, again give rise to the difficult task of defining the constitutional line where police actions, in the context of dynamic encounters with members of the public, amount to a detention and effectively trigger the protections afforded to detainees under ss. 9 and 10 of the Canadian Charter of Rights and Freedoms. In turn, defining what constitutes a detention for Charter purposes requires courts to balance individual constitutional rights against the public interest in effective law enforcement. 2 The specific issue raised in this case is whether the police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention - a question left open in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para.

22. It is our view that this question must be answered in the affirmative. The concerns regarding compelled self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. Therefore, from the moment an individual is detained, s. 10(b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel "without delay". The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter. 3 However, as this Court held in Mann, not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter. Section 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, will trigger an individual's right to counsel under s. 10(b). As Iacobucci J. aptly observed, "[t]he person who is stopped will in all cases be 'detained' in the sense of 'delayed', or 'kept waiting'. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays

that involve no significant physical or psychological restraint" (para. 19). 4 As we explain in Grant, it is clear that an individual may be detained within the meaning of the Charter without being subject to actual physical restraint. Where the subject is legally required to comply with a demand or direction that interferes with his or her liberty, detention is usually easily made out. Where there is no legal obligation to comply but a reasonable person in the subject's position would conclude that he or she had been deprived of the liberty of choice, a detention is also established. [111] There is no issue in this case as to whether the accused were detained by Constable Thompson after the service of the Notice of Prohibition that the officer acknowledged ended the Motor Vehicle Act aspect of his detention of the accused. [112] The issues that do arise are: firstly, whether, as required by Mann, Constable Thompson had the necessary "reasonable ground to suspect that in all the circumstances" that the accused were connected to the particular crime (possession of a controlled substance) so that detention of them was necessary; and, secondly, whether he had the required grounds to deploy Whiskey to search the perimeter of the Audi as part of that detention and investigation. [113] In R. v. Kang-Brown, 2008 SCC 18 [Kang-Brown] and R. v. Chehill, 2013 SCC 49 [Chehill] the Supreme

Court of Canada considered the necessary ground that the police must have to employ the use of a "sniffer dog" to assist in the detection of the existence of drugs. In Kang-Brown the issue was the use of such a dog in a bus station and in Chehill it was with respect to the use of a dog to check luggage in an airport. [114] In both cases the Court held that the use of a sniffer dog was a search within the meaning of s. 8 of the Charter. [115] In Kang-Brown the majority concluded that the police possess a common law power to use a sniffer dog based upon the standard of "reasonable suspicion". [116] At para. 75 Binnie J. wrote: 75 The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, "Suspicious Searches: What's so Reasonable About Them?" (1999), 24 C.R. (5th) 123: [T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient. Instead, to justify such a search, the suspicion must be supported by factual elements which

can be adduced in evidence and permit an independent judicial assessment. [p. 125] ... What distinguishes "reasonable suspicion" from the higher standard of "reasonable and probable grounds" is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search. [p. 126] Writing about "reasonable suspicion" in the context of the entrapment defence, Lamer J. in R. v. Mack, [1988] 2 S.C.R. 903, thought it unwise to elaborate "in the abstract" (p. 965). See also R. v. Cahill (1992), 13 C.R. (4th) 327 (B.C.C.A.), at p.

339. However, in Alabama v. White, 496 U.S. 325 (1990), the U.S. Supreme Court contrasted "reasonable suspicion" with reasonable grounds of belief (or, what the U.S. lawyers call "probable cause"): Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. [p. 330] [117] In Chehill the Court again considered the "reasonable suspicion" standard for the use of sniffer dogs. Writing for the Court Karakatanis J. stated at paras. 36 and 37: 36 A nexus must exist between the criminal conduct that is suspected and the investigative technique employed: see Mann, at para.

34. In the context of drug detection dogs, this nexus arises by way of a constellation of facts that reasonably supports the suspicion of drug-related activity that the dog deployed is trained to detect. For instance, in R. v. Payette, 2010 BCCA 392, 291 B.C.A.C. 289, the Court of Appeal for British Columbia stated that in order to justify the deployment of a sniffer dog, the constellation must be "capable of providing the required objectively discern[i]ble nexus between the [accused] and illegal drug activity" (para. 22). Binnie J. was of a similar view in Kang-Brown, where he cast reasonable suspicion broadly, linking it to the presence of contraband (para. 25). The particularized indicia of drug couriering have been documented by the police and can be established by objective evidence. 37 In sum, when single-profile narcotic dogs are deployed on the basis of reasonable suspicion, the police intrusion must be connected to factors indicating a drug-related offence. Reasonable suspicion does not, however, require the police to point to a specific ongoing crime, nor does it entail the identification of the precise illegal substance being searched for. The reasonable suspicion held by the police need only be linked to the possession, traffic, or production of drugs or other drug-related contraband. [118] I have concluded, that to the extent that the necessary grounds for

investigative detention (per Mann at para. 45) may be more onerous than for the deployment of a sniffer dog in a public place (per Kang-Brown and Chehill), the grounds required by Mann must be established when, as in this case, the use of the sniffer dog arises directly as a part of a continuum that begins with the detention of the accused. [119] I say that because the targeted nature of the investigation of the perimeter of the Audi by Whiskey was in respect of an objectively less public place than a bus depot or airport and because in the circumstance, without the initial detention of the accused there could be no legitimate basis for the use of the dog. [120] It is accordingly against the standard of "reasonable grounds to suspect" enunciated in Mann at para. 45 that I will assess whether Constable Thompson breached the accused s. 9 Charter rights to be free from arbitrary detention. [121] When Constable Thompson decided to continue to detain the accused he did so knowing that Corporal Rattee had provided him with sufficient information to establish reasonable and probable grounds to arrest the accused. That information cannot, because of the use of the traffic stop ruse, be ignored when assessing whether Constable Thompson had the requisite grounds to detain the accused after the legitimate reasons for the traffic stop had been spent. [122] Also, although counsel for the

accused submitted that Constable Thompson's detention of the accused was arbitrary by contesting the legitimacy of his subjective observations of Mr. McWhirter's nervousness and Ms. Stinn's "deer in the headlights" look I find that Constable Thompson's evidence as to what he observed was credible. [123] In addition, as I have noted Constable Thompson has been involved in over 10,000 traffic stops and many drug investigations. His training, experience and knowledge inform the objective reasonableness of his observations: See: R. v. To, (1998), 109 B.C.A.C. 242 (B.C.C.A.) at para. 11 and R. v. Luong, 2010 BCCA 158 at paras. 19 to 24. [124] I find that both objectively and subjectively Constable Thompson had more than reasonable objective and subjective grounds to detain both accused to investigate whether they were at the time in possession of drugs. It follows that the deployment of Whiskey as part of that detention was also not arbitrary [125] Although those findings are sufficient to preclude a determination that the accused's s. 9 Charter rights to be free from arbitrary detention were breached, I also find that the over-arching argument of the accused that the use of the traffic stop as a ruse to further the ongoing drug investigation was itself a breach of the accused s. 9 Charter rights must fail. [126] I say that because: 1) In R. v. Vuozzo, 2013 ABCA 130 [Vuozzo] (leave

to appeal refused 2013 S.C.C.A. No 314) , the Alberta Court of Appeal ruled that the use of a traffic stop ruse could not render an otherwise lawful traffic stop (in this case the Motor Vehicle Act licensing breach by Mr. McWhirter) unlawful. At paras. 43 to 44 the Court stated: 43 Case authority involving police officers who stop motorists arbitrarily (in the sense of having no reason to do so) is not, in our view, relevant to this issue. The officers here had plenty of rational reason to want to stop the vehicle and perform this 'scenario' for the appellant's benefit. The appellant's real objection is not a lack of basis to stop the vehicle and provide him with information, it is that the play-acting was false, pre-textual, and intended to mislead. 44 In other words, the stop was not arbitrary in the sense of lacking a basis. It was planned and intentional. Moreover, on this record, it had ample rational justification as part of the ongoing investigation. Seen through a clarifying legal lens, what the appellant says converted the interaction into an arbitrary detention is the appellant having been misled by police. This is not a logical basis to convert a rational form of detention into an arbitrary detention, unless on the facts it can be said that what the police did "bears no relation or is inconsistent with" the law which founds the state action. (That approach might support the conclusion in R. v. Ashmore, 2011 BCCA 18 at para 106, 267 CCC (3d) 108, leave to appeal to SCC refused, [2011] SCCA No 280 (QL), but compare R. v. Chung, 2011 BCCA 131 at para 30, 276 CCC (3d) 393). In any event, arbitrariness raises an objective question.

2) In R. v. Sheck, 2015 BCCA 471 our Court of Appeal considered the use by the police of the ruse of a random licensed premises check at a restaurant employed to investigate confidential informant information that the accused was carrying a firearm. The ruse was employed to keep the accused unaware that he was the target of that investigation in order to then safely arrest him. In rejecting that the use of the ruse was a breach of the accused's ss. 8 and 9 Charter rights, Chief Justice Bauman wrote at para. 66: This also meets Mr. Sheck's over-arching submission that this was a sham investigative detention sparked by the ruse of licensed premises check and masking a bald search for evidence. The "ruseˮ simply allowed the police to escort Mr. Sheck safely out of the Earl's Restaurant; it was not the basis for the detention. Rather, as I have said above, the totality of the circumstances founded a legitimate investigative detention. I would not give effect to the submission attacking the trial judge's conclusion that ss. 8 and 9 were not breached by police conduct in the detention and safety search of Mr. Sheck.

3) The use of the ruse in the case of Mr. McWhirter and Ms. Stinn is not like that considered by this Court in R. v. Lauriente and Catalano, 2008 BCSC 187 [Lauriente] (affirmed on appeal [reported at 2010 BCCA 72] in relation to the trial judge's s. 24(2) Charter analysis) relied upon by the accused. In Lauriente there were at best "shaky grounds" for the impugned traffic stop the "only real purpose" of which was to further an investigation of a marijuana grow operation.

4) In Lauriente the trial judge observed at para. 40: Here, there cannot reasonably be found to be a lawful purpose, that is a purpose related specifically to the Motor Vehicle Act concern for public safety, in the stopping of Mr. Lauriente for allegedly speeding when no ticket was even issued. In my view, this stop for speeding was a ruse for obtaining evidence to be used against Mr. Lauriente. It was therefore a clear breach of his s. 9 Charter rights.

5) Additionally, and important to the exclusion of the evidence obtained in Lauriente was the fact that the officer who unlawfully stopped the accused also engaged the accused in conversations intended to elicit information without providing any information at all as to why the accused had been detained. In this case Constable Thompson did not engage in any questioning of either accused related to the drug investigation until after he had advised them that he was detaining them for possession of drugs. [127] For all of the foregoing reasons I find that the accused have failed to establish that the use of the impugned traffic stop to further the ongoing drug investigation constituted a breach of their s. 9 Charter rights to be free from arbitrary detention. Alleged breaches of s. 10(a) and 10(b) of the Charter [128] Section 10 of the Charter provides: 10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and [129] As I have noted at para. 75 (2) and (3) the accused asserted that the police breached their s. 10(a) and (b) Charter rights because: 1) The police failed to advise the accused that the actual purpose of the stop and detention and subsequent arrest was a violation of their s. 10(a) Charter rights to know the reason for the detention which

thwarted their right to make an informed decision about their jeopardy and whether to contact a lawyer and resulted in the obtaining of information that Constable Thompson then used in deploying Whiskey to conduct the perimeter search of the Audi; and 2) The police failure to provide the accused with access to counsel at roadside when they were detained and when they were subsequently arrested was a breach of their s. 10(b) Charter rights to retain and instruct counsel without delay. [130] In considering those submissions it is first necessary to observe, as I did when discussing the accused s. 9 Charter submissions, that the initial stop of the Audi and the detention of the accused was authorized by law and was accordingly not arbitrary. [131] The police were not obligated to advise the accused of their rights to retain and inform counsel until they were detained. That is because the initial traffic stop and Constable Thompson's request of Mr. McWhirter to provide his driver's license and registration did not trigger Mr. McWhirter's s. 10 Charter rights. See: Vuozzo; and R. v. Orbanski; R. v. Elias, 2005 SCC 37. [132] The accused's s. 10 (a) and (b) Charter rights were, however, engaged when Constable Thompson detained them before deploying Whiskey to search the perimeter of their vehicle for the presence of drugs. [133] Constable Thompson's evidence and the transcript of the

recording of his interaction with the accused after he had served the Notice of Prohibition upon Mr. McWhirter establish that when he continued to detain the accused he provided each accused with constitutionally mandated right to retain counsel information. He also provided that information at roadside when he arrested them for possession of drugs after Whiskey indicated the existence of drugs in the car. [134] Later, after Whiskey had indicated the existence of drugs in the Audi, Constable Thompson searched the car which resulted in his finding methamphetamine and what he believed to be cocaine in the trunk. He then advised Corporal Lyons and Constable Fahlman to re-arrest Mr. McWhirter and Ms. Stinn respectively for possession of drugs for the purpose of trafficking. [135] Those officers then did so and immediately provided the required s. 10(b) Charter warning and also the caution with respect to the right to silence. [136] As noted, notwithstanding the provision by Constable Thompson of the constitutionally mandated right to counsel information both when he detained them before deploying Whiskey and after Whiskey had indicated the existence of drugs in the Audi, the accused allege that Constable Thompson breached their s. 10(a) Charter rights "to be informed promptly of the reasons" for both their detention and arrest. [137] They submit that he committed that breach of

their s. 10 (a) rights because he failed to advise them that the true reason for both their detention and arrest was the ongoing larger drug investigation. [138] In substance, the submissions of both accused on this issue are similar to their s. 9 Charter submissions related to the use of the traffic stop as a ruse to further that larger ongoing investigation that I have rejected. [139] In considering their arguments with respect to the alleged s. 10(a) Charter breach it is important to note that although Constable Thompson questioned the accused while they were detained he did so only after informing them of their right to counsel and right to silence and that neither accused provided inculpatory information. [140] What they did do was provide information intended by them to establish that the purpose of their fast trip to the lower mainland was related to any criminal wrongdoing. [141] Although the information they each provided was implausible it was not the basis for Constable Thompson's decision to deploy Whiskey to search for drugs. The decision to do so had already been made by him when he detained the accused. [142] Although counsel for the accused submitted that at the time of the detention with the intent to deploy Whiskey Constable Thompson was obligated to advise them of the ongoing drug investigation for which he had reasonable and probable grounds to arrest both

accused, they provided no authority for such an expanded interpretation of s. 10(a) of the Charter. [143] Such an interpretation would not only have rendered the deceptive actions of the police in Vuozzo and Sheck unconstitutional but would also undermine the principles referred to in Vuozzo at paras. 48 and 49 that: 48. We note that the police here had no plan and made no effort to extract any inculpatory information from the appellant. Nor did they obtain any information they did not already have. Rather, they acted to mislead the appellant, which is a necessary incident of an undercover operation: see e.g. R. v. Campbell, [1999] 1 SCR 565 at para 15 ("There is a general recognition that "[i]f the struggle against crime is to be won, the ingenuity of criminals must be matched by that of the police" (Mack, supra, per Lamer J, at p. 916)."). Unlike in Campbell, where the police actually engaged in selling contraband drugs, there is no law against lying to criminals.

49. Rather, the law seems clear that dissembling by the police is generally a legitimate stratagem. In R. v. Fliss, 2002 SCC 16 at para 21, [2002] 1 SCR 535, a 'Mr. Big' methodology was considered part of "skilful police work". Similarly, in an earlier bench decision in R. v. McIntyre, [1994] 2 SCR 480, the Supreme Court said at 481: "We share the view of the majority that the accused was not detained within the meaning of Hebert and Broyles. Furthermore, the tricks used by the police were not likely to shock the community or cause the accused's statements not to be free and voluntary." [144] To similar effect, in cases involving the use of traffic stops in support of on going investigations of which the accused were not informed, see also: R. v. Balatoni, [2003] O.J. No. 5787 (Ont. S.C.J.) and R. v. Croft, 2014 ABQB 207. [145] In this case when Constable Thompson detained each of the accused he advised them that he was detaining them for possession of drugs. It cannot be said that in those circumstances the accused could not have understood the jeopardy which they each then faced. [146] At all stages of the progression of events from that detention to their arrest for possession and to their arrest for possession of the purpose of trafficking the accused were made aware of the increase in their jeopardy as required. At no time did they make other than exculpatory

statements. [147] In those circumstances, even if there was an obligation on the police to advise of the larger investigation (which for reasons stated above I have specifically found is not the case) I am unable to find that the actions of the police thwarted their right to make an informed decision about their jeopardy and whether to contact a lawyer. [148] I accordingly find that no statements made by the accused were obtained in breach of their s. 10(a) Charter rights. [149] The second aspect of the s. 10 Charter applications by the accused concerns the allegation that the police breached their s. 10(b) Charter rights to retain and instruct counsel without delay by failing to provide them with access to counsel at roadside both when they were detained and when they were subsequently arrested. [150] The evidence of this voir dire established that Constable Thompson did not, at either time, offer to provide the accused immediate access to a telephone at roadside to allow them to attempt to contact counsel. [151] Rather, as I noted earlier, after arresting both of the accused for possession after Whiskey had indicated that the Audi was carrying drugs Constable Thompson asked Corporal Lyons and Constable Fahlman to transport the accused to the Merritt detachment of the RCMP that was a few minutes away so that they could contact counsel. [152] Whether the police have breached a citizen's right to retain and instruct counsel without delay must be assessed based upon the totality of the circumstances in existence at the time of detention or arrest. [153] In R. v. Taylor, 2014 SCC 50 [Taylor] at para.

24. Abella J. speaking for the Court wrote: The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry. [154] I am satisfied that in this case the Crown has met the burden of establishing that the police did not breach the accused's s. 10(b) Charter rights by not giving them immediate access to a telephone at roadside to enable them to contact counsel. [155] I reach that conclusion for the following reasons: 1) The only telephones available at roadside were either the cellular phones of the accused, the police officers' own cellular phones or mobile phones in the police vehicles.

2) The police are under no legal duty to provide their own cell phone to a detained individual. See: Taylor at para. 27.

3) In addition, in this case Constable Thompson testified that he would not give his telephone to the accused because he was receiving calls from the surveillance unit on it. If that information had been made known to the accused it would have jeopardized the larger investigation.

4) It was not unreasonable for the police not to allow the accused to use their own cellular telephones to call a lawyer from the roadside. Aside from issues of officer safety that could arise in the event that the accused used their own phones to call associates who could interfere with their detention or arrest concerns also arise with respect to the preservation of evidence that might later be required for any ongoing investigation or for prosecution.

5) Constable Fahlman testified that he could not afford privacy in his police vehicle while still monitoring Ms. Stinn, who had not yet, because of her gender, been thoroughly searched to ensure that she did not have access to drugs or weapons.

6) There is no evidence that the police acted other than in accordance with the exigencies of the situation and the location of it by not providing access to counsel at roadside. It was not part of a deliberate plan to delay access to counsel for an improper purpose.

7) The accused were transported to the Merritt detachment almost immediately after they were arrested.

8) The Merritt detachment of the RCMP where privacy of communications with counsel could be and was ensured by the police was only minutes away form the location of the roadblock where the accused had been detained and arrested. [156] In result I find that the accused have not established that either their s. 10 (a) and (b) Charter rights were breached by the police. Alleged breach of s. 8: Unreasonable search and seizure [157] Section 8 of the Charter provides: 8. Everyone has the right to be secure against unreasonable search or seizure. [158] As I noted at para. 75(4) the accused submitted that the cumulative effect of the breaches of their ss. 9 and 10 Charter rights rendered the warrantless search of the Audi unreasonable so that their s. 8 Charter rights were also breached. [159] I have found that none of the alleged breaches of the accused ss. 9 and 10 Charter rights have been established. [160] With respect to s. 8 of the Charter, the burden is on the Crown to prove that the warrantless search of the Audi was lawful. In order to meet that burden the Crown must establish the existence of reasonable and probable grounds for the arrest of the accused and the subsequent search incidental to the arrest. [161] In R. v. Storrey, [1990] 1 S.C.R. 241 at page 250 Corey J. stated: In summary then, the Criminal Code requires that an arresting officer must subjectively have

[page251] reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest. [162] Given: the assumption (stated at para. 13) that Corporal Rattee had reasonable and probable grounds to arrest the accused and advised Constable Thompson of those grounds; my findings that Constable Thompson developed additional grounds for the detention of the accused after the initial Motor Vehicle investigation; and, the perimeter search of the Audi by Whiskey which indicated the existence of drugs in the vehicle, the Crown has established that the police had reasonable and probable grounds to arrest the accused for possession of drugs and to undertake a physical search of the interior of the Audi and its trunk incidental to those arrests. [163] Those assumptions and findings preclude a determination that the police breached the accused's s. 8 Charter rights to be secure against unreasonable search and seizure.

CONCLUSION [164] I find that none of the Charter breaches alleged by the accused have been established. "The Honourable Mr. Justice Davies"