2006 BCCA 325 R. v. Duong

Before:	The Honourable Chief Justice Finch
	The Honourable Madam Justice Southin
	The Honourable Madam Justice Rowles

C.S. Johnson	Counsel for the Appellant
P. Riley	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
10 May 2006
Place and Date of Judgment:	Vancouver, British Columbia
28 June 2006

Written Reasons by:

The Honourable Madam Justice Rowles

Concurred in by:

The Honourable Chief Justice Finch

The Honourable Madam Justice Southin

Reasons for Judgment of the Honourable Madam Justice Rowles:

I. Overview

[1] The appellant entered guilty pleas to two counts of possession for the purpose of trafficking after the trial judge had dismissed his application brought on Charter grounds to exclude evidence of the drugs. The appellant seeks to introduce evidence to show, among other things, that when he entered the pleas he was unaware that doing so would affect his ability to appeal the judge’s Charter ruling. The respondent does not oppose the introduction of the evidence and does not take issue with the facts deposed to in the appellant's affidavit.

[2] The contentious issue on the appeal is whether the trial judge erred in not excluding the evidence of the drugs which had been found by a police officer during a pat down search during an investigative detention. The appellant submits that his detention was arbitrary and that the subsequent search was not based on officer safety either subjectively or objectively.

[3] For the reasons which follow, I am of the view that the appeal must be dismissed.

II. The pleas and their consequences

[4] A police officer came upon the appellant while he was seated in a parked car in an area with a high incidence of property crime. In plain view in the back of the car, the officer saw a car stereo with cut wires. The officer directed the appellant out of the car to investigate. The officer said he had safety concerns, based on the appellant’s behaviour and the surrounding circumstances. He conducted a “pat down” search of the appellant in the course of which he discovered an envelope containing packages of cocaine and heroin.

[5] The appellant brought an application under the Canadian Charter of Rights and Freedoms to exclude the evidence found on him during the search but the application was unsuccessful. After his Charter application had been dismissed, the appellant changed his plea on two counts of possession for the purpose of trafficking. Thereafter, the Crown directed a stay of proceedings on a third count which charged possession of a prohibited weapon, the weapon being a switchblade.

[6] The case proceeded to sentencing and Crown counsel read-in the remaining facts. The package seized from the appellant’s pocket contained a total of 25 separate packages of cocaine and heroin with a total weight of approximately 15 grams. There were ten green packages of heroin, ten smaller white packages of heroin, two blue packages of cocaine, and three rocks of crack cocaine.

[7] Despite his guilty plea on the two counts of possession for the purpose of trafficking, the appellant now appeals his conviction. He has filed an affidavit stating that he was not informed of the ramifications a guilty plea would have on his ability to appeal the trial judge’s ruling on the voir dire. He has further deposed that his plea was entered on the advice of his counsel that there were no other defences available and that he should plead guilty.

[8] The respondent submits that appealing a conviction in the face of a guilty plea is inappropriate and a practice that ought not to be encouraged. The respondent recognizes that there are occasions when an accused, after unsuccessfully challenging the admissibility of evidence, may not wish to contest other evidence to be put forward by the Crown but nonetheless may wish to preserve his right to appeal the ruling. In that case, the respondent submits, the proper procedure is not to enter a guilty plea but to admit the underlying facts and invite the judge to convict. I agree with those submissions.

[9] It is important to remember the legal consequences of a guilty plea. A guilty plea involves an acknowledgement of all the legal elements necessary to constitute the crime charged and is meant to be unequivocal: R. v. McNabb (1971), 4 C.C.C. (2d) 316 (Sask. C.A.); R. v. Lucas (1983), 9 C.C.C. (3d) 71 (Ont. C.A.).

[10] Among other things, a guilty plea provides certainty and finality in the criminal proceedings against an accused. When an accused enters a plea of guilty and the trial judge accepts the plea, the court, the prosecution, and the public are led to believe that the accused is accepting responsibility for having committed the offence.

[11] In sentencing, a guilty plea may be considered by the trial judge as an admission of responsibility and, depending on the circumstances, as an expression of remorse which invites leniency: R. v. Fegan (1993), 80 C.C.C. (3d) 356 at 360–61, 13 O.R. (3d) 88 (C.A.). A guilty plea may also follow plea discussions with the Crown from which an accused may derive a substantial benefit through the withdrawal of additional charges or a more lenient sentencing recommendation from the Crown: R. v. Roberts, [1998] O.J. No. 461 (C.A.) (Q.L.), at para. 6.

[12] In R. v. T.(R.) (1992), 10 O.R. (3d) 514, the Ontario Court of Appeal considered the effect of a guilty plea. Doherty J.A. stated, at 519:

A guilty plea is a formal admission of guilt. It also constitutes a waiver of both the accused’s right to require the Crown to prove its case beyond a reasonable doubt and the related procedural safeguards, some of which are constitutionally protected: Korponay v. Canada (Attorney General), [1982] 1 S.C.R. 41 at p. 49, 65 C.C.C. (2d) 65 at p. 74; Brady v. United States, 397 U.S. 742 (1970), at p. 748, Fitzgerald, The Guilty Plea and Summary Justice (1990) at pp. 192-203.

To constitute a valid guilty plea, the plea must be voluntary and unequivocal. The plea must also be informed, that is the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea: R. v. Lyons, [1987] 2 S.C.R. 309 at p. 371, 37 C.C.C. (3d) 1 at p. 52; Law Reform Commission of Canada Working Paper No. 63, “Double Jeopardy Pleas and Verdicts” (1991) at p. 30.

[13] In R. v. Malone (1999), 128 B.C.A.C. 315, 1999 BCCA 466, Ryan J.A., in chambers, characterized the requirements for having a guilty plea set aside:

[8] To set aside a guilty plea in an appellate court, an accused must establish that the plea was not voluntary in the sense that he or she did not appreciate the nature of the charges or the consequences of the plea (Adgey v. The Queen, [1975] 2 S.C.R. 426, 13 C.C.C. (2d) 177).

[14] R. v. Carter (2003), 190 B.C.A.C. 178, 2003 BCCA 632 is a case similar to the one before us in that there was no dispute that the appellant had not understood the consequences of entering a guilty plea. In that case, the trial judge had ruled that evidence obtained as the result of a search and seizure that involved police “entering the appellant’s apartment without a search warrant following receipt of a 911 call” was admissible as the search did not breach the appellant’s s. 8 Charter rights. After the ruling, counsel for the accused changed his plea from not guilty to guilty on one count of producing marihuana. Crown counsel then directed a stay of proceedings on the second count of possessing marihuana for the purpose of trafficking. With respect to the grounds of appeal, Finch C.J.B.C. said:

[6] It is common ground on this appeal that the appellant entered his guilty plea in the mistaken belief that he would be able to appeal his conviction and challenge the evidentiary ruling, even though he had pleaded guilty. Both the appellant and his trial counsel (not counsel on the appeal) have filed affidavits which show that the appellant's mistaken belief as to the possibility of an appeal was based on erroneous advice from his trial counsel.

[7] It is also common ground that this court has no jurisdiction to entertain an appeal from a guilty plea unless the appeal comes within the meaning of s.686(1)(a)(iii):

686.(1) On the hearing of an appeal against a conviction … , the court of appeal

(a) may allow the appeal where it is of the opinion that

…

(iii) on any ground there was a miscarriage of justice;

[15] In Carter, the Court concluded that the police entry into the appellant’s apartment was lawful and there were no viable grounds to attack the validity of the search warrant. Accordingly, the Court concluded that “there was no miscarriage of justice in this case and no basis for allowing the appeal under s. 686(1)(a)(iii).”

[16] In the case at bar, the appellant has filed an affidavit stating that he was not informed of the ramifications a guilty plea would have on his ability to appeal the trial judge’s ruling on the voir dire. He deposed that his counsel advised him that there were no other defences available and that he should plead guilty. He further deposed that he was not told and was not aware that he “may be not be able to appeal the Judge’s decision if [he] pleaded guilty.” The Crown does not take issue with the facts stated in the appellant’s affidavit.

[17] It is the appellant’s submission that his guilty plea was only an admission of those elements not dealt with on the voir dire and that he should not be barred from appealing his conviction in the circumstances.

[18] In view of the content of the appellant's affidavit and the Crown's concession, I am satisfied that the appeal ought to go forward and a determination made on the issue of whether the trial judge erred in concluding that the detention and search of the appellant did not infringe his rights under ss. 8 and 9 of the Charter.

III. Facts

[19] At about 5:00 p.m. on 27 April 2004, two police officers drove past a parked car in the 2900 block of Slocan Street in Vancouver. As they drove by, Constable Dhaliwal saw a man seated in the driver’s seat, apparently looking around inside the vehicle.

[20] About 20 minutes later, the officers saw the same car, parked in the same location. Constable Dhaliwal saw the man was then seated in the passenger’s seat looking out the window as though he were waiting for something or someone.

[21] The officers were aware that the area had a high incidence of property crimes, specifically, thefts from automobiles and theft of automobiles. They stopped to find out what the man in the car, later identified as the appellant, was doing.

[22] Constable Dhaliwal approached the car, showed his badge, and asked the appellant if he had a driver’s license. The appellant responded “yeah”, made a quick movement under the driver’s seat, and pulled out a wallet. The appellant’s quick movement led Constable Dhaliwal to think about his safety.

[23] Standing next to the car, Constable Dhaliwal looked around the inside of the car and noticed a car stereo behind the rear passenger seat. It had a silver face plate and there were wires sticking out of the back which appeared to have been cut. Constable Dhaliwal was aware from his police experience that car stereos are often stolen by pulling them out and cutting the wires.

[24] Constable Dhaliwal asked the appellant whose car it was, to which he replied “my buddy’s”. Constable Dhaliwal also asked the appellant whose stereo it was behind the passenger’s seat and the appellant again responded “my buddy’s”.

[25] Constable Dhaliwal noted a change in the appellant’s pattern of speech as the discussion unfolded. While the appellant’s initial response about the driver’s license was “quick”, his subsequent responses about the ownership of the car and the stereo were “slow and nervous”. When responding to the question about the stereo, the appellant’s eyes got wider and his mouth dropped. Constable Dhaliwal was not satisfied that the appellant was telling the truth.

[26] Constable Dhaliwal asked the appellant to get out of the car. The officer placed the appellant “under investigative detention for the car stereo”, thinking it might be stolen property.

[27] The appellant stepped out of the car with his right hand clenched and took what Constable Dhaliwal perceived to be an aggressive stance. Constable Dhaliwal told the appellant to put his hands on the car. The appellant hesitated and then complied.

[28] Constable Dhaliwal asked the appellant if he had anything sharp on him or any weapons. The appellant glared at the officer and responded by saying “no” in a loud, angry voice. Constable Dhaliwal handcuffed the appellant and started to do “a quick pat down for safety reasons”, searching for weapons.

[29] The search conducted by Constable Dhaliwal started with the appellant’s upper body. When the officer tried to pat down the appellant’s mid-section, the appellant changed position and moved closer to the car. Constable Dhaliwal physically re-positioned the appellant and continued his search.

[30] The officer then patted down the appellant’s right side. He felt a “hard bulge” in the appellant’s right pocket. Constable Dhaliwal checked the pocket and saw that it contained a roll of money, which Constable Dhaliwal left in the pocket.

[31] The officer felt another bulge on the appellant’s right hip, which he determined to be a cell phone.

[32] Constable Dhaliwal then began to pat down the appellant’s left side. When the officer got to his waist level, the appellant again shifted his position, pushing his body up against the car. The officer again moved the appelllant’s body away from the car and continued the search.

[33] The officer felt a “hard object” in the appellant’s left front pocket. Constable Dhaliwal also described the item as a “solid object”, approximately four inches long and two or three inches wide.

[34] Considering that the appellant was evasive when the officer tried to search this part of his body, Constable Dhaliwal thought the object might have been a knife, potentially used to cut the wires on the stereo.

[35] Constable Dhaliwal reached into the pocket and pulled out a white envelope. Upon removing the envelope from the appellant’s pocket, it was apparent to the officer that it was full of “flaps of drugs”.

[36] After removing the envelope and noting its contents, Constable Dhaliwal advised the appellant of his Charter rights in relation to the offence of possession of a controlled substance for the purpose of trafficking. The appellant said he understood his rights and that he wanted to call a lawyer.

[37] Constable Dhaliwal searched the appellant a second time after finding the drugs and after advising him of his rights. This time he was searching for “anything to do with drugs”. Constable Dhaliwal found the appellant's driver’s license confirming his identity. The money Constable Dhaliwal had earlier noted in the appellant’s pocket turned out to be $175.

IV. Trial judge’s ruling

[38] The judge held that Constable Dhaliwal had an “articulable cause” to detain the appellant. He found that Constable Dhaliwal was investigating a “potential stolen stereo in a motor vehicle in an area that he knew to be commonplace for such items to be stolen”. The trial judge also took into account the “contrast” the constable described between the appellant’s demeanour when asked about his driver’s license and his demeanour when asked about the car and its contents.

[39] With regard to the search, the trial judge ruled that it was proper for Constable Dhaliwal to conduct a pat down search for his own safety. As to the conduct of the search, the judge said, in part:

[14] The officer pulled him back so that he could get his hand down that side, and as he went down the side he came across what he described as a hard object about four inches by two to three inches in diameter. He suspected it might be a knife, which was consistent in his mind to having a knife to cut the wires related to the stereo. So he pursued his search further. . .

* * *

[17] The next issue is whether he had the right to search the accused’s pocket, in particular the one where he found the envelope. I am satisfied that he was entitled. Having detained the accused, it was proper for him to pat him down for his own safety. Under the circumstances, I do not think there is much issue that the search itself was not intrusive. The patting down revealed certain items I have already referred to: the roll of money and the cell phone, that were not of safety concern. But when Constable Dhaliwal felt the object that he thought might be a knife, given that it was hard and the size, in my opinion he was entitled to see exactly what it was in order for him to be certain that there was no safety issue. That is when his hand went into the pocket and he brought out the envelope which turned out not to be a knife, but to be a package of flaps of drugs.

[Underlining added.]

[40] The trial judge held that “the detention and subsequent search were not Charter infringements” and “that the evidence was lawfully obtained.”

V. Did the trial judge err in finding that the appellant was not arbitrarily detained?

[41] In submitting that the trial judge erred in dismissing his application to exclude the evidence obtained as a result of the pat down search, the appellant’s first argument is that the trial judge erred in finding that the appellant was not arbitrarily detained in contravention of s. 9 of the Charter.

[42] The appellant’s position is that his movement was restricted from the time the officer began questioning him as he sat in the vehicle and that the restriction amounted to a detention, prior to any investigative purpose or reasonable grounds to detain. The appellant argues that the observations made by Constable Dhaliwal prior to contact with the appellant were limited to seeing the appellant seated in the vehicle and looking around in the vehicle and, on Constable Dhaliwal's return to the area, seeing the appellant still in the vehicle, possibly waiting for someone. The appellant argues that without any evidence of criminal activity or reports of criminal activity taking place, or an active ongoing investigation, that the observations of the constable seeing the appellant in the vehicle fell far short of what is required for articulable cause or reasonable grounds to detain as set out in R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52 at para. 34.

[43] The appellant’s submission that he was detained as soon as the officer approached the parked car is at odds with how the unlawful detention issue was put forward at trial. Constable Dhaliwal testified that he placed the appellant “under investigative detention for the car stereo” after directing him to get out of the car. The officer was not challenged on his evidence in that regard although he was cross-examined at some length. During cross-examination, it was never suggested or put to Constable Dhaliwal that he had detained the appellant at some earlier point. In any event, the suggestion that Constable Dhaliwal had detained the appellant immediately upon approaching the parked car does not fit with the evidence. Constable Dhaliwal’s stated reason for the detention was to investigate the car stereo. There was no investigation to embark upon until the officer saw the car stereo in the back of the car.

[44] The only evidence on the voir dire was the uncontradicted and unchallenged testimony of Constable Dhaliwal that he detained the appellant after seeing the car stereo with the cut wires and after getting what he considered to be suspicious answers and a change in the appellant’s demeanour when responding to questions. The appellant’s argument that the detention commenced before he was asked to step out of the car is without support in the evidence.

VI. Did the trial judge err by applying the wrong standard to determine whether there were sufficient grounds for the police officer to detain the appellant?

[45] The next argument advanced by the appellant is that the trial judge applied the wrong legal standard in determining whether there were sufficient grounds for the officer to detain him. On this point, the appellant submits that the trial judge focused on the subjective belief of Constable Dhaliwal in determining whether there was articulable cause without any discussion of the objective reasonableness of the belief.

[46] To support his submission that the trial judge focused on the subjective belief of the officer to the exclusion of the reasonableness of the belief, appellant’s counsel directed us to a portion of the trial transcript of defence counsel’s submissions. While defence counsel was making submissions on the question of whether there were objective grounds for detaining the appellant, the trial judge observed:

But again, there’s a subjective test. He [Cst. Dhaliwal] says the answers given by your client were part of what caused him to come to the conclusion he came to.

[47] A judge’s observation made during submissions does not form part of his reasons for judgment. In his ruling, the trial judge made reference to the “articulable cause” standard for investigative detention. The standard includes both a subjective and an objective element. The judge’s reasons show that he considered Constable Dhaliwal’s evidence on an objective basis before holding that the officer had “cause to detain”.

[48] Constable Dhaliwal subjectively believed the car stereo might be stolen. His belief was not based on a mere hunch but was grounded in observations he made and knowledge he had which together provided an objective foundation for his belief. Three aspects or components of the circumstances support a reasonable suspicion justifying the investigative detention “for the car stereo”:

(i) Constable Dhaliwal saw a car stereo in the back of the car, with its wires apparently cut. Constable Dhaliwal was aware from his police experience that car stereos are often stolen by pulling them out and cutting the wires. This observation, in and of itself, presented an immediate and objectively reasonable concern that a property crime had been committed.

(ii) Constable Dhaliwal knew that the area in which these events were taking place had a high incidence of property crimes, specifically thefts from cars and stolen cars.

(iii) The appellant’s demeanour changed noticeably when answering questions. His initial response about the driver’s license was “quick”. His subsequent responses about the ownership of the car and the stereo were “slow and nervous”. His facial expression also changed. At trial, Constable Dhaliwal was able to articulate his concerns regarding the change in the appellant’s pattern of speech, facial expressions and demeanour in a way that the trial judge understood and accepted as reasonable.

[49] In my opinion, there is no error in the trial judge’s legal reasoning and no other basis on which this Court could properly interfere with the trial judge’s conclusion that the investigating officer had “articulable cause” to detain the appellant.

VII. Was the search unreasonable?

[50] In submitting that the trial judge erred in finding that his rights under s. 8 of the Charter had not been violated, the appellant raised two legal points: (i) a brief detention for investigative purposes does not allow for evidence collection, and (ii) unless there are objectively verifiable officer safety concerns, there are no grounds to search.

[51] It is the appellant’s submission that Constable Dhaliwal, in doing a pat down search, was simply conducting a search for contraband and that there were no objectively discernible facts to support officer safety concerns.

[52] The appellant supports his first point by reference to R. v. Ferris (1998), 126 C.C.C. (3d) 298, 50 B.C.L.R. (3d) 109 at para. 60 (C.A.), and R. v. Le (2001), 160 C.C.C. (3d) 146, 2001 BCCA 658 at para. 12. Those cases support the proposition that the power to search upon investigative detention for “officer safety” cannot be turned into a search for contraband.

[53] The appellant’s second point is that a protective search incident to investigative detention, like the detention itself, cannot be premised on mere intuition or a hunch. The search must be “reasonably necessary in light of the totality of the circumstances” and must be grounded in “objectively discernible facts”: Mann, supra, at paras. 40, 43; Ferris, at para. 55. As well, the scope of the search is limited to officer safety and the search must not exceed the level of intrusion that is reasonably necessary to locate weapons or to secure the officer’s safety: Mann, at para. 41.

[54] There is no dispute that police officers are entitled to take reasonable steps to minimize the risks they face in the performance of their duties: Ferris, at para. 54. Where a police officer has reason to believe that his or her safety is at risk in the course of an investigative detention, the officer is authorized to conduct a protective pat-down search: Mann, at para. 43. A “frisk search” for weapons is a relatively brief and non-intrusive procedure: Mann, at para. 42. Moreover, the reasonableness of a police officer’s decision to conduct a search for officer safety cannot be judged by a standard that would second-guess the officer’s actions with perfect hindsight: Ferris, at paras. 58, 71; R. v. Willis (2003), 174 C.C.C. (3d) 406, at para. 36 (Man. C.A.). The “police perception of reasonable necessity depends very much on the particular circumstances in which the police officer finds himself”: Ferris, at para. 71.

[55] In this case, the trial judge held that Constable Dhaliwal had bona fide safety concerns and was justified in conducting a pat down search of the appellant. The question of reasonableness had to be determined on the totality of the circumstances. Officer safety concerns may be objectively justified based on “reasonable and specific inferences drawn from the known facts of the situation”: Mann, at para. 41. In this case, it was reasonable for the police officer to infer that the appellant, the sole occupant of a car containing an apparently stolen stereo, might be in possession of a knife used to cut the wires on the stereo.

[56] The scope of the search must also be justifiable on an objective basis. In this case, the search progressed beyond a basic “pat down” only when the officer felt a “hard” object that could be a weapon. This case is unlike Mann, where the investigating officer reached into the accused’s pants pocket to examine a “soft object” on the basis of “mere curiosity”. In Mann, the officer did not subjectively believe the object was a weapon, nor would any such belief have been objectively justified: see paras. 49, 56, 69.

[57] The appellant also contends that the search was unnecessary because the appellant had been handcuffed. It is true that Constable Dhaliwal had handcuffed the appellant before he began the pat down search but handcuffing does not necessarily eliminate officer safety concerns, either during the search or upon the detainee’s release. In this case, Constable Dhaliwal thought that if the appellant had a knife in his pocket, he might be able to get hold of it notwithstanding the handcuffs. The trial judge accepted that Constable Dhaliwal’s concerns were bona fide and reasonable.

[58] A review of the evidence of Constable Dhaliwal along with the trial judge’s findings in this case do not provide any foundation for this Court to interfere with the conclusion the trial judge reached. The safety concerns were objectively reasonable in the totality of the circumstances. The search was limited in scope and did not exceed what was reasonably necessary for Constable Dhaliwal to ensure his safety.

[59] I would not accede to the appellant’s arguments that the pat down search was unreasonable.

VIII. Conclusion

[60] For the reasons stated, I am of the view that there was no miscarriage of justice in this case and therefore no basis for allowing the appeal under s. 686(1)(a)(iii) of the Criminal Code.

“The Honourable Madam Justice Rowles”

I agree:

“The Honourable Chief Justice Finch”

I agree:

“The Honourable Madam Justice Southin”