Source: CanLII

SUPREME COURT OF NOVA SCOTIA
Citation: R. v. Boisclair, 2012 NSSC 151

Date: (20120315)
Docket: CRT352409
Registry: Truro

Her Majesty the Queen
Respondent

v.

Mathieu Boisclair
Applicant

Judge: The Honourable Justice Felix A. Cacchione.

Date of hearing: February 13-14, 2012 at Truro, Nova Scotia

Written decision: April 16, 2012

Counsel: Catherine Hirbour, for the applicant
Eric Aucoin, for the respondent

The Court:

[1] The applicant, Mathieu Boisclair, seeks the following orders from the Court:

1. a declaration that the evidence obtained following his arrest be excluded on the grounds that the arrest and the subsequent searches were unreasonable under s. 8 of the Charter and that the use of this evidence would bring the administration of justice into disrepute under s. 24 of the Charter;
2. a declaration that the evidence obtained following the arrest be excluded on the grounds that the arrest and detention of the applicant were arbitrary under s. 9 of the Charter and that the use of this evidence would bring the administration of justice into disrepute under s. 24(2) of the Charter;
3. a declaration that the evidence obtained following the arrest be excluded on the grounds that the applicant never gave informed consent to the search under Canadian case law and that the use of this evidence would bring the administration of justice into disrepute under s. 24 of the Charter.

[2] The applicant states that the police were waiting for him at the station and questioned him even though they did not have either a search warrant or an arrest warrant. Furthermore, the police encircled him and placed him under psychological duress. He argues that the officers approached him with a dog and that he felt intimidated. The applicant adds that there was a language barrier between him and the officers who were waiting for him at the station. He asserts that the police never explained the legal aspects of informed consent to him and that they did not use a written formula to obtain such consent. In the end, the applicant maintains that in the absence of a warrant, the burden is on the prosecution to prove the legality of the search and consent.

[3] The respondent, the Attorney General of Canada, asserts that this application involves the power of police to act on information related to suspicious activity and to investigate an individual as well as the criteria to obtain consent to a search and the police use of a sniffer dog.

[4] The respondent argues that the search of the applicant's backpack by a sniffer dog was conducted after obtaining voluntary consent from Mathieu Boisclair. The respondent submits, in the alternative, that the employment of the sniffer dog satisfied the constitutional criteria established by the case law that the investigator had reasonable grounds to believe that there were controlled substances. Finally, even if there were Charter violations, the respondent maintains the evidence shows that the investigator acted entirely in good faith and that the exclusion of the evidence would bring the administration of justice into disrepute.

The facts

[5] On October 14, 2010, officer Joe Pilpapil Joe Pilapil of the Royal Canadian Mounted Police (RCMP) received information from a confidential source of the RCMP. This source reported to officer Flanagan. Since officer Flanagan was not available on that day, he asked officer Pilapil to speak to the source and investigate. Officer Pilapil only had six months of experience with the criminal interdiction team when he was assigned to follow up in this case. The source told him that an individual named Mathieu Boislair would arrive in Truro on the same day on a Via Rail train coming from the province of Quebec. The information received also indicated that Mr. Boisclair had purchased a round-trip ticket in cash and that he would return the following day.

[6] In the past, this source had provided information that lead to significant seizures of cocaine.

[7] The reliability of confidential sources was considered in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140. At paragraph 53, Wilson J. wrote:

In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

[8] In this case, the confidential source was trustworthy.

[9] Officer Pilapil was a member of the criminal interdiction team. Based at Halifax Airport, this team investigates and intercepts contraband that is transported by travellers on public transport such as bus, train and airplane or is sent using delivery services such as FedEx and Purolator.

[10] Officer Pilapil proceeded to Truro Station with a team including a dog handler and their sniffer dog. All the officers were dressed in civilian clothes except the dog handler who was in uniform.

[11] Since the train was late, the team dispersed throughout the station with the sniffer dog and its handler staying away from the rest of the team at the edge of the platform. The handler and their dog were tens of metres away from officer Pilapil.

[12] After the train's arrival, officer Pilapil noticed that a man who was staying away from the other passengers. He watched the man head towards the station building before stopping on the platform when he saw a police officer in uniform with a dog. At this moment, the man lit a cigarette. There was a luggage trolley on the platform.

[13] Officer Pilapil noticed that the man was nervous. The man was trembling, shaking his hands and smoked his cigarette nervously while looking around himself and watching the dog handler officer. Officer Pilapil approached the man and identified himself as a police officer. The man wore a backpack on his shoulders. The officer asked for a piece of identification.

[14] The man identified himself as Mathieu Boisclair. He continued to nervously smoke his cigarette butt, which only had its filter remaining. The officer asked him where he was going and Mr. Boisclair answered Sydney. Officer Pilapil indicated to Mr. Boisclair that his work included asking travellers questions and asked him whether he was transporting contraband. Mr. Boisclair answered that he was not. Mr. Boisclair continued to smoke his cigarette butt which was now unlit.

[15] Mr. Boisclair stated that he afraid to throw his cigarette on the ground since one of his friends received a fine for doing so in a public place but I do not find this explanation sincere.

[16] Even though Mr. Boisclair's mother tongue seemed to be French, officer Pilapil stated that Mr. Boisclair understood English and that they could communicate with each other in English. Later on, Mr. Boisclair was interviewed by officer Moreau and also had a conversation with officer Keddy, which show that Mr. Boisclair understands English and speaks it, even if he is unsure about specific words from time to time.

[17]