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nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut

Citation: Date of Judgment: File Number: Registry:

R. v. Qrunngnut, 2013 NUCJ 08
20130614 08-10-890 Iqaluit

Applicant:

Stephen Qrunngnut
-and-

Respondent:

Her Majesty The Queen

________________________________________________________________________ Before Counsel (Applicant): Counsel (Respondent): Location Heard: Date Heard: Matters: The Honourable Mr. Justice E. Johnson Mark. A. Christie Leo Lane Iqaluit, Nunavut January 30-31 2013 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)

I. INTRODUCTION [1] The applicant resides in Igloolik and traveled to Ottawa as a medical escort for his daughter. On December 9, 2010, Constables Ian Allen (Allen) and Marie Gingras (Gingras) of the Iqaluit detachment of the R.C.M.P. approached the applicant on his arrival in Iqaluit on the first leg of his return trip to Igloolik. Allen invited the applicant to accompany him to the Canadian Border Services Agency [CBSA] office next to the Canadian North counter and the applicant agreed to come with him. [2] Allen told the applicant that he was not being arrested or detained and was under no obligation to speak to them. Allen told the applicant that he had received information suggesting that the applicant was in possession of a large quantity of marijuana and requested his consent to search his luggage. He asked the applicant if he would consent to a search of his luggage. The applicant agreed and signed a standard R.C.M.P “Consent to Search” form [Consent]. [3] When the police searched the two bags of the applicant they discovered 1,649 grams of marijuana in five separate vacuum packed bags that were sewn into a stuffed panda bear. [4] The applicant applies for relief under section 24(2) of the Canadian Charter of Rights (Charter), arguing that he was arbitrarily detained and that his right to counsel under section 10(b) was violated. He also argues that he did not understand most of the Consent form because English is not his first language. [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 applicant’s section 10(b) Charter right to counsel violated upon his detention?

[8] Was Allen’s search of the applicant’s personal luggage upon his detention a violation of his section 8 Charter right to be free from unreasonable search and seizure? [9] If the applicant’s Charter rights were violated, should the evidence obtained by the police be excluded pursuant to section 24(2) of the Charter? III. FACTS [10] On December 9th, 2010, Officer Jason Trites [Trites] of the Igloolik R.C.M.P. contacted Allen and told him he had received information from an anonymous informant “of unknown reliability”. Trites told Allen that the applicant was on a flight scheduled to land in Igloolik, via Iqaluit, and that he was carrying a large quantity of marijuana inside a teddy bear. Allen confirmed that the flight was leaving Iqaluit for Igloolik at 14:10. [11] Before meeting the applicant Allen did a computer search and discovered he did not have a criminal record. [12] Allen and Gingras arrived at the Iqaluit Airport at 13:55 and proceeded to the Canadian North counter where they asked an employee to page the applicant. [13] The police were in plain clothes and Allen was carrying his service revolver and police badge. Allen identified himself with his badge to the applicant and told him he was not being detained or arrested and that he was under no obligation to speak to the officers. [14] Allen invited the applicant to accompany him to the Canadian Border Services Agency office 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 long and had a table, one chair and some other furnishings.

[16] Allen was standing and again told the applicant that he was not being detained or arrested and that he was under no obligation to speak to the officers. [17] Allen informed the applicant that the R.C.M.P. had received information suggesting the applicant was in possession of a large quantity of marijuana. Allen asked permission to search the applicant’s bags and the applicant authorized him to conduct the search. The applicant then told Allen that he had five marijuana cigarettes in his luggage. [18] Allen produced a blank Consent form and completed the top portion of it. He then wrote on the bottom and added information provided to him by the applicant. After completing the form he read the entire Consent to 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 the suitcases and noticed some hand sewing at the back. They removed the stitches and found 1,649 grams of marijuana in five separate vacuum-packed bags. [21] Allen arrested the applicant and charged him with possession of marijuana. The applicant then directed the officers to a small plastic tube containing six marijuana cigarettes in one of the suitcases.

A. Was the applicant arbitrarily detained by Officer Allen within the meaning of section 9 of the Charter? (i). Applicant’s argument [22] At para 44 of R v Grant, [2009] 2 SCR 353, 245 CCC (3d) 1 [Grant], the Supreme Court of Canada held that police actions might be held to constitute a detention for purposes of section 9 where there is a suspension of the individual’s liberty interests by a physical or psychological restraint. The detention rises to the level of arbitrary where it is not authorized by law and is therefore unlawful. [23] Allen admitted he had insufficient grounds to obtain a search warrant. The Crown admitted in argument that, if there was a finding that the applicant had been detained, the detention was arbitrary. As a result, the applicant confined his argument to the detention issue. [24] The applicant argues that he was psychologically detained shortly after Allen met him at the airport despite being informed by Allen that he was not being detained. [25] At para 44 of Grant, Charron J. summarized the principles and criteria a judge should analyze to determine if a person is detained. A court should consider the following: (a) Whether the police were making general inquiries regarding a particular occurrence or were singling out the individual for questioning; (b) The nature of the police conduct including the language used, the location of the interaction, the presence of others, and the duration of the encounter; (c) Finally a court should consider the particular characteristics or circumstances of the individual including age, physical stature, minority status and level of sophistication.

[26] In the case at bar, the police were not providing general assistance, maintaining general order, or making general inquiries about a particular occurrence. The police made contact with the applicant with the focused intent of discovering the contents of the applicant’s luggage. [27] The police told the applicant that he was suspected of transporting marijuana. The applicant testified that he was told he was a suspect at his first encounter with the police at the Canadian North counter. Allen testified that he told the applicant that he was suspected of carrying a large amount of marijuana after 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 been scared because it was the first time he had dealt with the police. He went into the interview room because the police told him to go in. He permitted the police to search his luggage because he thought a refusal would result in the luggage being searched at Igloolik. He signed the Consent on the assumption that, because the police were asking questions and noting the answers, he had to sign it. Finally the applicant testified that he did not know he had the right not to co-operate with the police and the right to refuse their requests. [29] The initial contact with the police was in public but quickly moved to a private room with the two officers and one or two CBSA officers. The tone of the dialogue was calm but the language was serious and not one that was passing or trivial in nature. The contact lasted between 10 to 45 minutes and was not incidental or trivial.

[30] The applicant has a grade two education and has a history of employment as a mechanic. He has limited abilities to read and comprehend English. Although the applicant is not part of a minority in Nunavut he is a minority when it comes to dealing with the R.C.M.P. He dealt with an officer who did not speak his language and who did not offer interpretation of anything he said to the applicant. The officer also did not ask the applicant if he understood English and did not inquire about his first language when he read the Consent to him. [31] The applicant is a 49-year old Inuk of small to medium build who has lived his entire life in Igloolik. Allen is a young Caucasian man who is 6 feet, two inches tall. Most of the contact time was spent in a small room with one table and one chair. The applicant did not have any previous experience with the police in any capacity. He testified that he complied with the requests of the police because he was scared about what would happen if he refused. [32] The applicant has only a limited knowledge of “legalese” and did not understand most of the Consent that was read to him. He understood the words indicating he did not have to consent to the search as “I have to search”. He did not understand the meaning of withdrawing his consent and believed the police had to do the search. He did not know the meaning of “voluntary”, “coerced” or “advantage”. In answering a question from the Crown about why he signed the Consent, the applicant testified that Inuit feel obligated to sign papers presented to them by others and that he did not know what he was signing. [33] As noted in The Inuit Way,1 a reasonable person of Inuit heritage might respond to this police interaction without questioning the state’s authority to compel compliance. The applicant submits this Court should consider the historic relationship between the Inuit and the RCMP. The RCMP often acted as agents of the federal government. They often made it compulsory that the Inuit sign documents that may not have been in their best interests.

1

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

[34] Considering all these circumstances, the applicant argues that a reasonable person in his position would conclude that he had been deprived of his choice to walk away or decline to answer the police questions. (ii). Crown argument [35] The Crown acknowledges the application of Grant. Since the applicant was not physically detained and was under no legal obligation to accompany Allen, the issue before the Court is whether the applicant was psychologically detained. The Crown concedes that the first part of the Grant test was satisfied because the police were clearly focused on the applicant and were suspicious that he was involved in an illegal drug trafficking operation. However, the focus on the applicant did not turn the encounter into a detention. [36] The police can counteract the appearance of a detention by informing the applicant in unambiguous terms that he or she is under no obligation to answer questions and is free to go. The police informed the applicant on two occasions that he was under no obligation to speak to the police and Grant instructs a court to assess the police conduct in the context of the entire interaction as it developed. [37] The Crown submits the demeanor of Allen and Gingras in giving their evidence demonstrates they are laid back non-aggressive persons. Their evidence confirms that they never acted in a threatening or aggressive manner toward the applicant. The exchanges between Allen and the applicant were a polite cordial conversation between respectful adults. Throughout the time in the CBSA office, the applicant’s seven-year-old daughter moved freely in and out of the office and gave no indication that she was nervous or concerned.

[38] Allen was well aware of the limits of his powers and knew he did not have the grounds to obtain a warrant. He offered to speak to the applicant in private because he was conscious of the fact that some people do not like to be seen speaking with a police officer. If the applicant had been content to speak in public, Allen would have spoken to him in the airport lobby and if he had declined to talk to him Allen would have left. Allen testified that he sensed no reluctance by the applicant about entering the CBSA office. [39] Other factors identified by Grant are the presence of others and the duration of the encounter. In this case they were neutral factors. The encounter took place in front of his daughter and the CBSA officers immediately left the room. The applicant testified that he did not really notice the CBSA officers and never saw any conversation 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, waiting for the luggage, and arresting and Chartering the applicant. [41] The Crown argues that the applicant was not a credible witness and this Court should not believe that he had only the crudest grasp of English and was utterly naïve about his rights. This Court should also not believe that the applicant was an innocent dupe who was tricked by a virtual stranger into transporting drugs and then tricked by the police into letting them search his luggage. [42] The applicant’s lack of credibility stems from inconsistencies and contradictions in the applicant’s evidence about why he consented to the search and whether the police told him he was suspected of transporting drugs. [43] The applicant’s credibility is also questionable because his evidence about three instances of police conduct defies logic or is highly unlikely to have occurred. [44] Finally, the Crown submits the applicant lacks credibility because he was evasive during cross-examination.

[45] The Crown submits the applicant understood English much better than he let on in court. Allen testified that he had experience dealing with people whose first language was not English and observed nothing in his conversations with the applicant to suggest that he had trouble understanding him. Allen’s perception is supported by the applicant’s response to the police caution and Charter warning. The applicant immediately stated that he was not going to say anything. The Consent had similar words to the caution and the applicant likely understood it as well. [46] Overall, the applicant’s encounter with the police is not one where a reasonable person would conclude that he or she had no choice but to comply with Allen’s requests. (iii). Analysis A.iii.1 Grant Rules [47] Section 9 of the Charter states that “Everyone has the right not to be arbitrarily detained or imprisoned.” The interpretation of this section frequently triggers section 10 because once a person is detained he or she must be promptly told the reason for the detention and then provided with the right to retain and instruct counsel without delay. [48] In Grant, the Supreme Court of Canada reviewed and updated the rules that had been applied since R v Collins, [1987] SCJ No 15, 33 CCC (3d) 1[Collins]. Collins concerned the interpretation of section 8 of the Charter while Grant interpreted section 9. The Court summarized the rules at para 44 as follows:
1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether 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; making general 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 interaction occurred; 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 of Grant, the Supreme Court reiterated the words of LeDain J. in R v Therens, [1985] 1 SCR 613, 18 DLR (4th) 655, recognizing that psychological restraint could qualify as a detention in two situations.
The first is where the subject is legally required to comply with a direction 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 the circumstances where psychological detention might exist in the absence of any legal compulsion. However, they acknowledged that general inquiries by a patrolling police officer where there was no threat to a citizen’s freedom of choice could escalate into situations where the focus shifts from general communityoriented concern to suspicion of a particular individual. While mere suspicion does not become a detention, police interaction with the suspect could turn the interaction into a psychological detention. The nature of the inquiry is objective and a judge must assess what a reasonable person would conclude in the circumstances facing the applicant.

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 from Trites. They suspected he was involved in a drug trafficking operation. The purpose of the police visit to the Iqaluit airport was to intercept the applicant and search his luggage knowing that 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 of Grant, in carrying out this objective assessment a judge must take into account the subjective intentions of the police and the accused. [54] The subjective intentions of the police are always capable of being assessed by a judge because they always testify at the voir dire. However, in many cases a judge cannot assess the subjective feelings or knowledge of the accused because he or she elects not to testify. As McLachlin C.J. and Charron J. stated in para 34 of R 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 not leave. 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 Officer testified that Mr. Suberu never told him that he did not wish to speak with him, and that the conversation was not "strained".

[55] In the case at bar, the police were well aware that they were in a very delicate situation because they knew they did not have the grounds to obtain a warrant. Allen had to be uncertain about how the applicant would perceive his words and actions and that he might feel compelled to go with him into the office. I also presume Allen was well aware of the state of the law and his ability to try to remove possible uncertainty because he warned the applicant three times that he was under no obligation to answer questions. [56] After the applicant appeared at the Canadian North counter in response to being paged, Allen displayed his police badge and introduced Gingras and himself to the applicant. He immediately told the applicant that he was not being detained or arrested and that he did not have to talk to them. Allen then asked the applicant if he “wouldn’t mind talking to us”. When the applicant indicated that he was prepared to talk to the police, Allen asked him if he would prefer to speak in private. The applicant thought that was a good idea. Allen suggested that they walk into the CBSA office and “he proceeded to come in with me along with his daughter and Constable Gingras”. Allen detected no reluctance by the applicant to follow him into the office. Before any further conversation took place, Allen again told the applicant that he was not being detained or arrested and that he did not have to speak with him if he did not want to. Allen then asked the applicant for identification and he produced a Nunavut driver’s licence. Allen again reminded the applicant that he did not have to talk to him and that he was not being arrested or detained. Allen then told the applicant that he had information that he was in possession of marijuana and asked for consent to search his bags.

[57] Since the applicant testified, I have the ability to assess his subjective feelings and knowledge. He testified that the CBSA office is very close to the Canadian North counter. When he arrived at the counter one officer was in front of the office and the other officer was inside it. An officer asked him to confirm his name and he responded that he wanted to get his daughter first. An officer asked him if his name was Stephen Qrunngnut and he responded in the affirmative. The officer asked for identification and the applicant produced some. He produced the identification because it was the first time he had dealt with the police and may have been scared. The officer then told him that they were informed by the police in Igloolik that he was passing through Iqaluit and was carrying something else of concern to them. The applicant 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 side and he went with them because they told him to go in. The applicant and his daughter went into the office with the officer and were met by another police officer. Two officers in a different uniform immediately left without speaking to the police. The police asked some questions and wrote something down and then gave him the Consent that he signed. He signed the consent because he assumed that he had to sign it. The applicant did not know he had the right to refuse to talk to the police, to refuse to produce identification, to refuse to go into the office, and to refuse to consent to the search of his luggage.

[59] Allen testified that the entire encounter including arresting and Chartering the applicant took about 40 minutes with about 20 minutes waiting for the luggage. He also acknowledged it took a maximum of five minutes from the time of the paging to the execution of the Consent. In comparison the encounter in Suberu was much briefer. The Court noted at para 33:
…As Mr. Suberu walked past Constable Roughley, he said, "He did this, 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 to talk 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's movement. 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 was characterized 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 point was preliminary questioning to find out whether to proceed further.

[60] The major conflict between Allen’s evidence and that of the applicant 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 the office, I am satisfied that the applicant’s subjective perception was that he did not have a choice and went along with Allen’s offer to use the office. That perception was not altered by Allen’s numerous warnings. The length of the encounter also supports the applicant’s subjective perception that he could not refuse to engage with the officers, particularly since it was his first encounter with the police. This was not a “very brief dialogue” as occurred in Suberu. The second part of the test points to a detention.

A.iii.4 The particular characteristics or circumstances of the applicant [62] The applicant has a grade two education, works as a repairman for the Hamlet in which he lives, and has limited abilities to read and comprehend English. Allen did not inquire about his first language. He did not ask him if he understood English or offer to provide interpretation of anything that he said to the applicant. [63] The applicant is a 49-year old Inuit man of small to medium stature who has lived his life in the Hamlet of Igloolik. Allen is a youthful Caucasian man who is 6 feet, 2 inches tall and 230 pounds. 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 the police in any capacity and the police were aware of his lack of experience because they conducted a criminal records search before they went to the airport. [65] The applicant testified that he was afraid of what would happen to him if he refused to sign the Consent. [66] The third part of the test points to a detention.

A.iii.5 R v Lewis [67] The facts of this case are remarkably similar to those in R v Lewis, (1998) 122 CCC (3d) 481, 13 CR (5th) 34 (ON CA). In that case R.C.M.P. Constable Tischhart (Tischart) was on duty at Pearson International Airport when he received an anonymous telephone call from a woman. After some preliminary discussion, she told Tischhart that a clean-shaven, heavy-set black man named Keith Lewis would be taking a flight on Canada 3000 Airlines to Edmonton at about 3:00 p.m. the next day. The woman said that Lewis would be with a two-year old boy and that he would be carrying cocaine concealed in a wine bottle or an Appleton rum bottle. The caller spoke clearly and rationally. She would not identify herself or give Tischhart her telephone number. She did not describe her connection to Lewis or tell Tischhart how she came to know the information she passed on to him. Tischhart did not know who the caller was and had no way of identifying her. The conversation lasted about 10 minutes. [68] Tischhart and Constable Helowka (Helowka), a member of the drugs squad assigned to the airport, confirmed that a Mr. D. Lewis was scheduled to fly to Edmonton on a Canada 3000 flight the next day. Helowka was aware of two prior occasions when cocaine had been found secreted in an Appleton rum bottle. A CPIC check of the information provided by the tipster and an inquiry of the Edmonton police force yielded no further information. Helowka testified that most anonymous telephone drug tips received at the airport do not result in the discovery of drugs.

[69] The next day Tischhart and Helowka waited near the Canada 3000 ticket kiosk to see if a person named Lewis, matching the description given by the tipster, would show up for the Edmonton flight. At about 2:00 p.m., the respondent, who matched that description, arrived at the Canada 3000 ticket kiosk. A small boy was with him. The respondent was carrying a garment bag, a small carry-on black bag, and what appeared to be a hood ornament for an automobile. He gave his tickets to the Canada 3000 agent who then signalled the officers. They approached the respondent and asked him if they could speak to him in a more private setting. The respondent agreed to go with the officers and 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 the police. As a result of the respondent’s answers and actions, the police seized a 26-ounce bottle of rum that contained 425 grams of cocaine. The respondent was arrested, given his Charter rights, and given the opportunity to contact a lawyer. [71] Despite any subjective evidence from the accused, because he did not testify at the voir dire, the trial judge held that the police had detained the accused when he was invited to speak with them in a private office and this finding was not contested on appeal. Before Tischhart began the questioning in the baggage room, he told the accused that he did not have to say anything and that any thing he said could be given in evidence at a later time. However, unlike what Allen told the applicant, it appears that Tischhart did not tell the accused that he did not have to accompany him when he asked to speak with him in a more private setting.

[72] Balancing the subjective evidence from the applicant with the warnings, I am satisfied that a reasonable person looking at the nature of the encounter would conclude that the applicant was not psychologically free to leave. It was his first encounter with the police and he had a limited knowledge of English. He was unsophisticated and much smaller than Allen and was in a small room with three other people. He was scared about what might happen to him if he refused to accompany the police and felt he had no choice but to go with them into the office. [73] I conclude that the applicant was detained when he was invited to 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 was arbitrary, I find that the police officers breached the applicant’s rights under section 9 by arbitrarily detaining him. B. Was the applicant’s section 10(b) Charter right to counsel violated upon his detention? (i). Applicant’s argument [75] Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. At para 17 of R v Bartle, [1994] 3 SCR 173, 33 CR (4th) 1, the Supreme Court of Canada held that police are required to not only inform a person of their right to counsel and to provide a reasonable opportunity to do so, but also to refrain from eliciting evidence from the detainee until he or 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 applicant’s luggage after being detained at the Canadian North counter. He remained under detention while being questioned in the CBSA search room and further when he admitted to the possession of five marijuana joints.

[77] Allen testified that he could have arrested the applicant for simple possession, but that instead he continued to ask him for his consent to search. He thus continued his attempt to elicit evidence in breach of the applicant’s s 10 Charter rights. [78] As held at para 41 of Suberu, the police have a duty to inform an individual of their 10(b) Charter right to retain and instruct counsel at the very outset of an investigative detention. The phrase “without delay” in s 10(b) must be interpreted as “immediately”. [79] The applicant argues that the police breached his rights when they did not advise him about his s 10(b) Charter rights immediately after questioning started in the CBSA office. Instead he was detained for approximately 25 minutes before he was advised of his right to counsel. The delay was significant because the police solicited significant evidence from him during that period. [80] As held at paras 24-26 of R v Sinclair, 2010 SCC 35, [2010] 2 SCR 310, the purpose of this Charter protection is to allow the detainee not only to be informed of his rights and obligations under the law, but equally if not more importantly, to obtain advice as to how to exercise those rights. The emphasis, therefore, is on assuring that the detainee’s decision to cooperate with the investigation or decline to do so is free and informed. [81] The applicant testified that he had never spoken to any lawyer before his arrest. He also stated that he was never offered the use of a telephone and that he was never provided the number for a lawyer. Finally, he testified that he really did not know what to say about his ability to contact a lawyer on that day. There is no evidence that he was provided a telephone to use and no evidence that the police tried to place a call to a Legal Aid lawyer for him.

[82] As a result, the applicant argues the police violated his s 10 Charter rights when he was first psychologically detained at the Canadian North counter and not given a Charter warning. The detention continued in the CBSA search room where he admitted to having a small amount of marijuana. That admission should have triggered a second Charter warning as Allen then had the legal grounds to move from detention to actual arrest. (ii). Crown argument [83] The Crown concedes that a ruling that the applicant was psychologically detained at the Canadian North counter triggers a breach of the applicant’s section 10(b) rights because he was not advised of his right to speak to legal counsel. [84] However, once the applicant was arrested Allen’s evidence establishes that he was informed of the right to call a lawyer and was provided with the phone number of the local Legal Aid office. [85] The Crown argues that the Browne v Dunn (1893), 6 R 67 at 70 (H.L.), principle was breached because Defence counsel did not put to Allen on cross-examination that the police failed to offer the applicant a phone call and the number for the local Legal Aid office. [86] The Crown argues that the applicant was well aware of his right to call a lawyer because he testified that he wanted to wait until he got home in Igloolik to call one. The applicant also testified that he never intended to phone a lawyer in Iqaluit because he was in a hurry to catch his flight. (iii). Analysis [87] As conceded by the Crown, when the applicant was detained at the Canadian North counter the officers also breached his rights under section 10(b) because they did not advise him of his right to counsel immediately.

[88] Allen testified at p 28-29 of the transcript that the applicant’s response to Allen’s suspicion that he was in possession of a large quantity of marijuana was to admit that he had five marijuana cigarettes in his luggage. Allen admitted that at that point he could have arrested the applicant for simple possession but did not and continued to ask him for his consent to search. [89] Although Allen did not consider the applicant as detained at the Canadian North counter, he should have known that he had reasonable grounds for an investigative detention when the applicant admitted to possession of the five marijuana cigarettes. Allen testified at p 31 and 70 of the transcript that if the applicant had attempted to leave he would have arrested him for possession of marijuana. [90] As held at paras 37, 38, and 41 of Suberu, when an individual is detained the police must advise him or her of their right to retain and instruct counsel without delay. This means the police must inform the detained person immediately and allow him or her a reasonable time to contact a lawyer. During the interval the police must refrain from eliciting incriminatory evidence from the detainee unless he or she waives that right. [91] Since the applicant was not informed of his right to counsel until 25 minutes later, Allen again breached his section 10 (b) rights.

[92] I am satisfied that Allen properly advised the applicant of his right to counsel when he arrested him and that the applicant waived his right to counsel. At that stage of the investigation Allen would have followed standard procedure that included reading the applicant his right to counsel from the caution cards. There is also merit in the Browne v Dunn argument. As a remedy, I accept Allen’s evidence over that of the applicant on this issue. The rule is stated at p 345 of The Law of Evidence2:
A party who intends to contradict an opponent’s witness must direct the witness’s attention to that fact by appropriate questions during cross-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 first see if the witness can be recalled. If that is not possible or appropriate, the weight of the contradictory evidence may be lessened, or such evidence may be rejected in favour of the opponent’s witness.

C. Was Allen’s search of the applicant’s personal luggage upon his detention a violation of his section 8 Charter right to be free from unreasonable search and seizure? (i). Applicant’s argument [93] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. [94] Collins established the framework for a section 8 Charter analysis that has three fundamental factors. First, the applicant must demonstrate that he had a reasonable expectation of privacy in the place that was the subject of the search or the thing being seized or both. Second, warrantless searches are presumed to be unreasonable and violate section 8 of the Charter. Finally, the presumption that a warrantless search violated section 8 of the Charter may be rebutted by the Crown, by showing on a balance of probabilities, that the search was authorized by law, the law is reasonable, and the search or seizure was carried out in a reasonable manner.

2

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

[95] Allen’s search at the Iqaluit airport was a search of the applicant’s personal luggage. The applicant submits that there is high expectation of privacy attached to an individual’s personal luggage. The police searched for the drugs out of the applicant’s sight and he was never shown the drugs. He told the police that the luggage did not belong to him. [96] The applicant submits that the police did not have a warrant to search his luggage and, in fact, the police were aware that they did not have the requisite grounds to obtain such a warrant. [97] The applicant submits that the police cannot rely on the signed Consent as legal authorization to search the applicant’s luggage because the applicant did not give an informed consent. He did not have knowledge of what he was signing and the rights he was giving up by doing so. [98] The consent was not an informed consent because the evidence demonstrates that the applicant has little education. He has a work-orientated knowledge of English and does not understand most legalese. He has never had any previous involvement with the police or lawyers. [99] The applicant testified that he did not know what he was signing when he signed the Consent. When he was asked why he signed it, he testified that Inuit people feel obligated or compelled to sign documents when asked. [100] The applicant testified that he has signed documents in the past without knowing what he was signing and simply to appease the one requesting his signature.

[101] Allen testified in examination-in-chief that he spent five to ten minutes explaining the Consent to the applicant. However, he testified that he arrived at the airport at 13:55 and the Consent indicates the applicant signed it at 13:59. Knowing the applicant had never had any interaction with the police before, Allen apparently carried out the following activities in four minutes. He paged the applicant and met and exchanged identification with him at the Canadian North desk. He asked him to move to the adjacent CBSA room and explained to him three separate times that he was not being detained or arrested. He had some idle chatter with CBSA personnel and explained that the police in Igloolik had received information that the applicant was carrying a large quantity of drugs. He read and explained all of the Consent and solicited information to fill-out the Consent and then had the applicant sign it. [102] The applicant submits Allen is mistaken about the time spent explaining the Consent. All of the activities could not have happened within those four or five minutes because it took him in excess of one minute just to read the contents of the form into the transcript, without explanation to or input from the applicant. [103] The police embarked single-mindedly on an enterprise to have the applicant sign a release and were, at the very least, willfully blind to his lack of understanding of what it was he was signing and willfully blind to his Charter rights. Allen testified that when dealing with people whose mother tongue is Inuktitut he would make every attempt to locate a translator. In this case he did not ask the applicant if he understood English and did not find out about his first language. As a result, he did not ask him if he wished an interpreter.

[104] Allen relies on the fact that the applicant agreed to everything that was asked of him and that he responded in English to the officer’s questions to arrive at the conclusion that the applicant understood the Consent and his Charter rights. It is submitted that Allen was willfully blind as to why the applicant responded as he did and took none of the steps necessary to determine the applicant’s understanding of what he did or did not understand. [105] As a result, the applicant submits that he was the subject of an unreasonable search and seizure, contrary to s 8 of the Charter. (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 facie unreasonable, a suspect can waive his or her Charter right if the waiver is truly informed and voluntary. For a valid waiver, the Crown must prove on a balance of probabilities that the six criteria have been satisfied. [107] The Consent was drafted to comply with the Wills test and covers all six of the criteria. [108] The main concerns in Wills are that the individual be aware of the potential consequences of the search and know he has the right to refuse the search. The applicant testified that he knew from the beginning of his encounter with the police that they were looking for marijuana. The consequences would have been apparent to him even before they were spelled out in the consent form. [109] It is also evident from parts of the applicant 's testimony that he knew it was up to him whether to consent to the search or not. He gave various and conflicting reasons for consenting, but there was an acknowledgment that he had a choice in the matter.

[110] When Allen was going through the consent form, he read out the sentence (which appears on its own in the form): "I am under no obligation to consent to this search." The sentence brooks no ambiguity. In light of the conversations the applicant had with Allen, including his responses to the Charter card, one must conclude the applicant understood the meaning of that simple sentence. (iii). Analysis [111] I am satisfied that the applicant’s knowledge of English was greater than he professed in court where he spoke through an interpreter. He responded to many of the English questions in English before the interpreter translated the question into Inuktitut. However, a working knowledge of English does not equate to understanding all the legalese used in the Consent. [112] The Applicant testified at p 96 of the transcript that he understood the words “I give my consent to this search knowing that I am under no obligation to consent to this search” as meaning “I have to search” and he did not know what the word obligation meant. [113] He also understood the words “If I consent to the search, I maintain my ability to withdraw that consent at any time during the search” to mean that the police have to do the search. [114] The applicant testified that he did not understand the words “I give this consent voluntarily and have not been coerced, threatened or promised any advantage by the police or anyone else” until it was translated into Inuktitut. He responded to the Inuktitut as follows:
“I understand it clearly now for the first time that this consent was for me and for the one reading it to me”.

[115] There was a significant amount of physical activity, conversations, and movement that took place in the five minutes from the time the police approached the applicant at the Canadian North counter until he signed the release. It would have been difficult for any ordinary member of the public to fully understand their rights in that short time frame. When you add the challenges posed by the applicant’s understanding of English legal terms I am satisfied that he did not give an informed consent. [116] I therefore conclude that the applicant’s rights under section 8 of the Charter were also breached. D. If the applicant’s Charter rights were violated, should the evidence obtained by the police be excluded pursuant to section 24(2) of the Charter? (i). Applicant’s argument [117] Section 24(2) of the Charter provides that where, in proceeding under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regards to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [118] Grant held at para 72 that a judge should consider three factors in determining whether the admission of evidence would bring justice into disrepute. First, the seriousness of the Charterinfringing state conduct. Second, the impact of the breach on the Charter-protected interest of the accused. Finally, society’s interest in the adjudication of the case on its merits.

(ii). Seriousness of the Charter-infringing state conduct [119] The first part of the test at para 73 requires a court to assess whether the admission of evidence would send a message to the public that the courts condone state deviation from the rule of law by failing to dissociate themselves from evidence seized in the face of Charter breaches. The main concern of this s. 24(2) Charter inquiry is to preserve public confidence in the rule of law and its processes. A court must consider the seriousness of the violation when viewed in terms of the offending conduct by state authorities that the rule of law requires to uphold the rights guaranteed by the Charter. [120] At para 75, Grant held that extenuating circumstances and good faith on the part of state authorities will militate in favour of inclusion of evidence obtained by state authorities through a Charter breach. However, the Supreme Court has also stated that ignorance of Charter standards must not be rewarded or encouraged and that negligence and willful blindness cannot be equated with good faith. [121] Finally, Grant and R v Harrison, 2009 SCC 34, 245 CCC (3d) 86 at 22 [Harrison], held deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence, as will a major departure from Charter standards where the police knew, or should have known, that their conduct was not Charter-compliant. [122] As a result, the applicant argues his rights under s 8, s 9 and s 10(b) of the Charter have all been breached. The breaches were not technical but went to the very core of the Charter rights being protected. It is submitted that the breaches in this matter 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 for the applicant’s Charter rights at worst. The police action was undertaken as a result of not having grounds sufficient to obtain a warrant or to detain or arrest the applicant. Evidence seized under such circumstances should be excluded pursuant to s 24(2) of the Charter.

(iii). The impact of the breach on the Charter-protected interest of the applicant [123] The second part of the Grant test focuses on the seriousness of the impact of the Charter breach on the protected rights of the applicant. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the rights infringed. To determine the seriousness of the infringement from this perspective, the Court looks to the interests protected by the right infringed. [124] The applicant submits that breaches of ss 8, 9, and 10(b) of the Charter go to the heart of the interests protected by the Charter. [125] As held in Harrison being detained and subjected to a search without justification impacts on an individual’s rightful expectation of liberty and privacy that is much more than trivial. [126] When compounded by a breach of the s 10(b) Charter rights, that protects an individual’s right against self-incrimination while an unwilling participant in the justice system, the applicant submits that the cumulative effect of the breaches rises to the level of being egregious as it is entirely likely that the applicant would not have been charged save for the breaches of his Charter rights by the police. [127] As a result, the applicant argues that the second factor favors the exclusion of the evidence. (iv). Society's interest in the adjudication of the case on its merits [128] As noted at para 79 of Grant, the third part of the test reflects society’s interests in seeing that those who break the law are dealt with according to the law. Thus, the Court on a 24(2) Charter application should consider not only the negative impact of admitting evidence seized in breach of Charter rights, but the impact of failing to admit the evidence.

[129] At para 82 of Grant, the Supreme Court directed a judge to consider whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial. One of the factors a judge should analyze is the impact of the exclusion of reliable evidence on the prosecution’s case (para 83). The administration of justice may be brought into public disrepute where the remedy for a Charter breach ‘guts the prosecution’. [130] It is clear that the evidence in this case is reliable and important to the Crown and that the exclusion of this evidence may mean that the Crown cannot proceed with this case. However, as noted in Harrison, this Court must weigh the societal interest in the court’s truth seeking function against the societal and individual interest in the integrity of the justice system. Further as noted at para 84 of Grant, the short-term clamour for a conviction 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 be excluded. The evidence was obtained through action by police that breached a number of the applicant’s Charter rights in a significant way. The police were aware of their weak position in regards to detention and reasonable grounds. Further lawful police work of following the suspect’s movements and/or the movements of the drugs may have provided results without the breach of any Charter rights. The police were not faced with an emergency or a situation where evidence or suspects were in danger of being lost. [132] The applicant did not, in the circumstances, appreciate that he had 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 of the applicant’s luggage.

[133] The applicant submits that to admit the evidence in this case would bring the administration of justice into disrepute because of the deliberate police action. These are rights that society considers fundamentally important. Concerted police action against fundamental Charter rights has garnered significant press and political discussion in regards to the recent G20 meeting held in Toronto. [134] The applicant submits that the state’s reliance on unilingual, non-Inuktitut forms in a territory where the majority of people speak that language as their mother tongue, brings the administration of justice into disrepute. Furthermore, the failure of the state to provide interpretation or translation as required when citizens come into contact with the Criminal Justice System denies society the fundamental framework necessary to judge any such case on its merits. [135] The applicant argues that there is an important societal interest in deterring police from significantly breaching an individual’s Charter rights on the grounds of a tip from “an anonymous source of unknown reliability”. Not to do so would undermine the quality of an individual’s Charter rights and weaken the protection afforded from unwarranted intrusion by the state. [136] The applicant submits that the admission of evidence seized in the face of flagrant breaches of his Charter rights offends the public’s interest in the administration of justice and the evidence gathered should be excluded. (v). Crown argument [137] The Crown argues that the police should not be faulted for the way they handled the investigation. The applicant’s psychological detention and lack of awareness were entirely subjective. There was no empirical evidence that he seemed frightened or intimidated by the officers and he never asked for clarification or interpretation of anything Allen said.

[138] Allen was conscientious of the applicant’s rights and made every effort to keep his investigation within the bounds of the law. Since Allen had no practical way of knowing he was breaching the Charter, the seriousness of the state conduct was minimal. [139] The Crown concedes that the impact on the applicant’s Charter-protected rights was substantial and this factor weighs in favour of exclusion. [140] Since the small communities of Nunavut are vulnerable to the drug trade, society’s interest in seeing this case litigated is high. The message needs to be sent to would-be drug traffickers and mules that importation of marijuana to Nunavut will be met with prosecution. [141] The Crown has no case without the drug evidence and the seizure was unusually large having a street value of about $100,000. [142] Weighing all three elements of the Grant test, the Crown submits that exclusion of the evidence would bring the administration of justice into disrepute. (vi). Analysis [143] In Grant, the Supreme Court noted that Charter violations fall on a spectrum reflecting the seriousness of the violations. On the low end of the scale are those cases where the evidence is obtained through inadvertent or minor violations of the Charter where public confidence is minimally affected. At the other end of the spectrum are those cases where the police obtained the evidence through a willful or reckless disregard of the Charter rights of the accused. In those cases the breach created a negative effect on public confidence and brought the administration of justice into disrepute.

[144] Harrison is an example of a case at the high end of the spectrum. As described in the headnote, the accused and his friend were driving a rented sports utility vehicle from Vancouver to Toronto. In Ontario, a police officer on highway patrol noticed that the vehicle had no front license plate. Only after activating his roof lights to pull it over did he realize that, because it was registered in Alberta, the vehicle did not require a front licence plate. The officer was informed by radio dispatch that the vehicle had been rented at the Vancouver airport. Even though he had no grounds to believe that any offence was being committed, the officer testified at trial that abandoning the detention might have affected the integrity of the police in the eyes of observers. The officer's suspicions seem to have been aroused from the beginning of this encounter. He arrested the accused after discovering that his driver's licence had been suspended. 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 excluded because the police exhibited a willful and flagrant disregard of the accused’s Charter rights. The police action was aggravated by an officer’s misleading testimony at trial. [145] On the other end of the scale is a case such as Lewis. In that case the police did not inform the accused that he did not have to consent to the search. The trial judge relied on this omission to conclude that the breach was serious. Doherty J. held that there was no constitutional obligation on the police to so inform the accused although the failure to do so could make the consent to search ineffective. As a result, he found that the officers could reasonably have believed that the accused was willing to have his bag searched. The police had made it clear to the accused from the outset that they were engaged in a narcotics investigation and that the accused did not have to say anything to him. While the belief of the police did not legitimize the search, it did reduce the seriousness of the breach.

[146] Doherty also held that the exclusion of the evidence would have ended the prosecution. Taking these considerations into account, he held exclusion of the evidence would exact a heavy toll on the administration of justice and therefore did not exclude the evidence. [147] In the case at bar, Allen was clearly aware of the need to inform the applicant of his right not to talk to him. He attempted to make the applicant aware of his options by telling him three times that he did not have to talk to him. I am satisfied that Allen reasonably believed that he had explained the consent to search and that the applicant understood his rights. Allen made it clear to the applicant that the police suspected he was in possession of marijuana before he explained the Consent to him and requested his signature. While I have found the Consent was not an informed consent, the seriousness of the breach was similarly reduced because the police could reasonably have believed that the applicant was willing to have his luggage searched. They were acting in good faith because the applicant appeared to understand English and never said anything to the officers to suggest that he did not understand. [148] As a result, I am satisfied that the seriousness of the violation in the 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 big social problem in Nunavut where the Cannabis offence rate is four times the national average and many people who live in poverty and cannot afford it are spending money on this drug instead of providing the necessities of life to their families. Counselling services to address substance abuse problems are extremely limited. He also noted that significant amounts of police time and resources are being expended to combat a growing underground trade in illicit drugs.

[150] Finally, Kilpatrick J noted that the diversion of these valuable resources leaves fewer police and financial resources to address 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. The cost 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 Been Lived by Dr. Edwardo Chachamovich and Monica Tomlinson that was released on June 5, 20133, listed cannabis abuse and dependence as a major risk factor in the high suicide rate in Nunavut. [152] Without the drugs seized the prosecution is at an end. I am satisfied that that the exclusion of this evidence would exact a heavy toll on the reputation of the administration of justice in Nunavut and would thwart the efforts to keep drug dealers and their couriers off the streets of Nunavut. It would take much more substantial police Charter violations to justify the exclusion of the evidence seized in this case.

3

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

IV. CONCLUSION [153] The application is dismissed and the evidence is admissible at trial. [154] If the police are going to successfully rely on a standard form in Nunavut then they should ensure that they also have an Inuktitut translation available or an interpreter to interpret the English into Inuktitut. Otherwise, in a borderline case like this one, the Inuit suspect will be given the benefit of the doubt and the Crown will not be able to meet the balance of probabilities test.

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

____________________ Mr. Justice Earl D. Johnson Nunavut Court of Justice