R. v. KAA [Provincial Court of Alberta, Calgary – March 2021]

SUMMARY: The CPS HAWC helicopter observed suspicious activity on the part of a vehicle and directed a patrol car to stop it. The police activated their emergency lights but the target vehicle failed to stop. The target vehicle was ultimately apprehended and when the vehicle was searched the police found a quantity of fentanyl and cocaine. KAA was charged with the following offences: 

  1. Possession of fentanyl for the purpose of trafficking; 
  2. Possession of cocaine for the purpose of trafficking; 
  3. Dangerous Driving; 
  4. Possession of stolen property. 

Bottom Line: As a consequence of Patrick Fagan identifying a multitude of problems with the case for the prosecution, the matter was ultimately resolved by way of a guilty plea to a traffic ticket (“speeding”) and a complete WITHDRAWAL of ALL criminal charges.

By way of a more detailed narrative and to provide perspective vis a vis this case…when the HAWC video footage commences you can see the CPS SUV following the suspect vehicle. The reason the CPS SUV was following the suspect vehicle, is because while HAWC1 was doing general surveillance earlier, the flight officer supposedly saw a drug transaction take place. HAWC1 can get a pretty zoomed in view, in decent quality, but there is no way they would be able to see, and identify drugs. Especially considering this was at night time and HAWC1 was using night vision. The best the flight officer can say is that he saw something exchange hands and it was a meeting of short duration consistent with a drug transaction that occurred at a “known drug house”.

The CPS SUV follow the vehicle for approximately 1 minute. The CPS SUV pulls up right beside the vehicle and notes that the two front occupants are black males. They do an RO search on the plate and the RO comes back to a white female. So, the CPS SUVs, now there is two of them, attempt to execute a traffic stop.

They activate the emergency lights, but the vehicle does not stop. The vehicle proceeds at a safe speed (30kph estimated by officer on the ground), while the police follow with lights and sirens. Because of HAWC1 presence, the CPS SUV does not pursue the vehicle, and lets it get away. The vehicle gets away, while still driving at a safe speed. Once the suspect vehicle gets some distance from the CPS SUV, it noticeably picks up speed. The HAWC1 flight officer estimates the speed to be 80kph.. After the vehicle speeds away, it comes to a T intersection. It hangs a left at the T intersection, and this is the point where the flight officer observes (cannot be observed on camera) something get thrown from the vehicle. The suspect vehicle continues driving, and approaches a residential neighborhood where it stops behind a house, and the front driver and passenger exit the vehicle. The two people then run together through multiple people’s yards for approximately 2 minutes before they are apprehended by the police, both at the same location.

Once the police apprehended the two accused, HAWC1 went back to the suspect vehicle and maintained continuity of it until another officer arrived at the vehicle. Then, HAWC1 went back to the location where he believed drugs to have been thrown from the vehicle. K9 arrives, and K9 with the assistance of HAWC1 finds a plastic bag with drugs minutes later.

The video footage is very impressive. The CPS are able to find the suspects, vehicle, and drugs in a remarkably quick time.

The Court will have a full view of the driving behavior of the accused. The driving does not come anywhere close to dangerous driving. While the police officers were trying to pull him over with lights and sirens, he was driving 30kph. The police follow with the lights and sirens for 10-20 seconds before they stop pursuit and let HAWCS follow. The roads are completely empty – no other traffic. Once the police stop their pursuit, the vehicle picks up speed, but at most, he drove 30kph over the presumed 50kph speed limit for 25 seconds, and blew a stop sign. 

Also, it is incredibly difficult to estimate speed while you are in a helicopter. The helicopter does have a computer system that can tell you the speed of the vehicle, but it is inadmissible hearsay evidence, and I am not sure if it was even relied on in this case, or if the flight officer eye balled the speed.

I would be surprised if the officers are able to provide date relevant evidence about 1. The speed limit, and 2. whether a stop sign was present. Did the officers go back the location of driving and check the speed limit and stop sign? Will the Crown tender city records that prove the speed limit and the fact that the stop sign existed? The flight officer seems unsure about it being a stop sign.

The Crown will have difficulty proving who the driver was. When the vehicle parks, and the two people get out and run, the helicopter loses sight of the two individuals for multiple brief moments behind buildings. It is very difficult to say who was who when they are ultimately apprehended. 

The facts related to the pursuit are that the vehicle did not stop notwithstanding that the police vehicles had their lights and sirens activated. The pursuit lasted approximately 20 seconds at a speed of 30kph. You will not be successful in arguing that a “pursuit” did not occur because threshold for “pursuit” is low.

Although the police followed the accused at the speed limit and only for a short distance with their emergency equipment activated, that was sufficient to fall within the definition of “pursue” in s. 249.1(1). While the police had no intention of engaging in a high-speed chase, they were following the accused with the intention of trying to make him stop. 

Success may flow from arguing that the police did not have the lawful authority to execute a traffic stop on the vehicle. Section 249.1(1) anticipates pursuit of a person where there are reasonable grounds to suspect that an offence has been committed. In R. v. Harms (2005), 18 M.V.R. (5th) 293, 2005 CarswellMan 139 the police officer had no reason to detain the accused in a parking lot across the road from a tavern, and merely wished to advise him that he should not drive if he had been drinking, the officer had no authority to require the accused to remain and listen to his advice, and there was no corresponding obligation on the part of the accused to remain. 

When the two accused ditch the vehicle and ran, the helicopter lost continuity of the vehicle – the helicopter, understandably, focuses on the two running individuals. If I were you, I would argue that it is possible that there was a third, fourth, or even fifth passenger in the vehicle, that got out of the vehicle during the period of time that the helicopter lost continuity of the vehicle. The helicopter did not keep an eye on the vehicle, and so cannot say for certain whether or not anyone was in the back seat.

The Crown has failed to provide us with certificates.

The police found only $1150 on KAA’s person. They will need an expert to prove this is proceeds. We have not received expert notice.