2006 BCSC 1142 R. v. Von Meyenfeldt

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*R. v. Von Meyenfeldt*,
	2006 BCSC 1142

Date: 20060919
Docket: 23615
Registry: Vancouver

Between:

Regina

Respondent

And:

Steven Von Meyenfeldt

Appellant

Before: The Honourable Mr. Justice Cullen

Oral Reasons for Judgment

September 19, 2006

Counsel for Respondent	G. Parson
Counsel for Appellant	H.M. Patey
Place of Hearing:	Vancouver, B.C.

[1] THE COURT: The appellant appeals from his conviction of one count of possession of marijuana contrary to s. 4(1) of the Controlled Drugs and Substances Act, one count of possessing a prohibited weapon contrary to s. 91 of the Criminal Code, and one count of carrying a concealed weapon contrary to s. 90 of the Criminal Code.

[2] It is the contention of the appellant that the trial judge erred in holding that the appellant’s right not to be arbitrarily detained guaranteed by s. 9 of the Charter of Rights and Freedoms, and his right not to be subjected to an unreasonable search and seizure guaranteed by s. 8 of the Charter, were not breached by the police in the course of acquiring the evidence tendered by the Crown at his trial.

[3] The circumstances giving rise to the charges against the appellant unfolded on May 2, 2005, commencing at about 9:45 p.m. when two uniformed members of the Vancouver City Police, Constables Pyper and Plantinga, drove their marked police vehicle to the north steps of the Vancouver Art Gallery at 750 Hornby Street.

[4] Upon their arrival, they noted either two or three separate groups of people on the art gallery stairs. There was evidence that the area was known to the officers as a troublesome area with a “high problem for drugs, graffiti, youth hanging out late at night, and so on.”

[5] One of the groups noted by the officers was comprised of the appellant, a man named Dahl, and a man named Scott. That group did not appear to be interacting with anyone else on the steps and, when the police arrived, they began to walk down the steps away from the constables, while the others remained where they were.

[6] Both officers saw a can of bear spray on the stairs where the appellant and his two companions had been sitting. It was described as being close to where the appellant and Mr. Dahl had been sitting in particular.

[7] The officers ordered the appellant and his companions to remain at the scene. Constable Plantinga advised them they were being detained for investigation for possession of a dangerous weapon, “the bear spray,” and informed them they were to be searched for safety reasons. Constable Plantinga knew Dahl from previous encounters and had previously seized a can of bear spray from him.

[8] In relation to the bear spray, Constable Plantinga testified as follows, at page 24, line 42, to page 25, line 9:

A Puts you in a great disadvantage, basically, during any sort of altercation. So I was concerned for my own safety and the other officer’s safety and thought there may be other weapons on one of the groups in – one of the parties in this group.

Q All right. And just so we’re clear. Can you tell the court why you detained Mr. Von Meyenfeldt?

A Certainly. Um, I considered the bear spray to be a weapon. It was not being used in its intended use. And I believed that one of the parties would have further weapons on them. And Mr. Von Meyenfeldt was right seated in the area where this pepper spray had been.

[9] It was Constable Plantinga’s evidence that it was his intention to further the investigation into the pepper spray by talking to the three people after conducting a safety search for weapons. He testified that if he had seen no bear spray in proximity to where they were sitting, although he may have tried to talk to them, he would not have detained them or prevented them from leaving.

[10] He testified repeatedly in direct and cross-examination that his purpose in conducting the initial search of the appellant was for safety reasons and he was not at that time looking for evidence of the offence, although he also testified that finding the stun gun in the appellant’s possession may have advanced the case for his possession of the bear spray. He testified that the bear spray can was not forwarded for fingerprints because he thought that the evidence of its prior possession alone might not be sufficient to found a charge.

[11] There was evidence that the appellant was resistant to being searched by Constable Plantinga and produced a card from a lawyer setting out his rights when confronted with police officers.

[12] Constable Plantinga had a lengthy conversation with the appellant seeking to have him acquiesce to a search and explaining that he was going to be searched for weapons for reasons of safety. He testified it was 10 to 20 minutes from first seeing this bear spray can to the point when the appellant was subjected to the search which located the stun gun.

[13] Constable Plantinga testified that after talking to the appellant for some time, he and another officer put him in handcuffs to effect the search as the appellant was resistant to letting them search him. Constable Plantinga testified the appellant’s resistance increased his “anxiety” about the possible presence of weapons in his possession, but he had, in effect, already determined to search the individuals associated with the bear spray for safety reasons.

[14] Constable Plantinga testified that after finding the stun gun, he arrested the appellant and continued his search, intensifying it by actually searching through the appellant’s pockets where he found the marijuana. He testified it was after finding the marijuana that he gave the appellant his s. 10(b) rights and explained he did not wish to take his attention from the appellant until he concluded his search.

[15] In a portion of his testimony, Constable Plantinga appeared to assert, in answer to a question on cross-examination, that the weapon search furthered his investigation into the bear spray. In context, it appears that Constable Plantinga was referring to the result of the weapon search furthering his investigation by establishing the presence of another weapon on the appellant which he linked to the bear spray. He did not appear to be referring to the purpose of the weapon search as being to further the investigation.

[16] In addition to the evidence of the initial police attendance at the art gallery and the general character and reputation of the area at night, the trial judge had some evidence before him of the dealings of the attending officers with others present on the art gallery steps, and of how the investigation unfolded.

[17] Constable Plantinga’s evidence in chief was as follows, at page 18, line 35 to page 19, line 32:

Q All right. So now just to jump back. As these three males were walking towards you, what happened next?

A Um, we asked them to sit down. They proceeded to sit down on the steps. Um, I noted the can of bear spray that was standing up on the steps, which is from where the group of individuals had just come from. I advised the group that they were all being detained in relation to an investigation for possession of a dangerous weapon. And at that point I advised the members of the group that I was going to proceed to search them for any weapons, for safety

Q What happened next?

A What happened next was the centre individual in the group -- or I can tell you the placement of -- Mr. Von Meyenfeldt was to my left. I was facing southbound towards the steps. Mr. Dahl was in the middle of the group and Mr. Scott was on my right. I noticed that the can of bear spray was towards the left, where either Mr. Dahl or Mr. Von Meyenfeldt had been seated. And I proceeded to request Mr. Dahl to stand up so that I could search him for weapons. He agreed. I searched him. Did not locate any weapons. And I asked Mr. Dahl to sit back down on the steps. At that point I spoke with Mr. Von Meyenfeldt, advised him that he was going to be searched for weapons. And he did not appear to want to cooperate with that. I talked to him further about it. He stated that he would not like to be searched. Based on our conversation -- during our conversation, at one point he reached into his pocket in his jacket. I believe it was from the top left pocket of his jacket. And I asked him what he was doing. I was concerned that there might be something in his pocket that he was going for so I stepped closer to him. And he pulled out a small plastic holder with some cards in it. And I believe he was referring to a lawyer’s card that had his rights on it, I guess, for searching and so on. And he handed that to me and I could read out the card to myself.

Q Did you read this card?

A I did.

[18] Although Constable Plantinga testified of his intention to search all of the appellant’s group and talk to them, there is no specific evidence that he or any other officer did conduct a weapon search of Scott or speak to him or Dahl specifically about the bear spray can. It was Constable Plantinga’s evidence, in effect, that once the stun gun was found in the appellant’s possession, the bear spray was less significant. He testified:

After investigating all avenues that was kind of the lower charge of what we were looking at.

He testified he did not know what dealings other officers had with other people present at the scene.

[19] Constable Piper’s evidence was that he spoke with another group of males at the scene who had not been sitting in proximity to the bear spray. He obtained their identification, spoke with them awhile, and then asked them to leave the area. He did not conduct a safety search of this group and they were let go. He agreed that he did not see where the can of bear spray came from and, “It could have come from anybody,” and could have been there for any length of time. He testified, however, that when he saw the bear spray, it was located where the appellant and his two companions were sitting, as the police arrived, before they got up and began to walk away.

[20] In his reasons for judgment on the voir dire, the trial judge found that:

There was no infringement of Mr. Von Meyenfeldt’s rights pursuant to either s. 8 or 9 of the Charter by reason of the initial detention, the pat-down search which discovered the stun gun, or the subsequent search which discovered the marijuana.

[21] The trial judge did find a breach of the appellant’s 10(b) rights consequent on Constable Plantinga’s failure to advise him of the right to counsel when he placed him under arrest for possession of the stun gun, but found, “No evidence was discovered as a result of that violation,” and therefore considered it, “no further in respect to the exclusion of evidence.”

[22] The test for valid investigative detention was set out by Doherty J.A. in R. v. Simpson, [1993] O.J. No. 308, on page 20 where he noted:

These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation. The requirement that the facts must meet an objectively discernible standard is recognized in connection with the arrest power: R. v. Storrey, [1990] 1 S.C.R. 241 ... and serves to avoid indiscriminate and discriminatory exercises of the police power. A "hunch" based entirely on intuition gained by experience cannot suffice, no matter how accurate that "hunch" might prove to be. Such subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation.

[23] In R. v. Mann, [2004] 3 S.C.R. 59, the court dealt with the nature, extent, and justification for a search conducted incidental to detention, holding at paragraph 45:

To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case.

[24] The court in Mann makes it clear that a search incidental to detention being “necessarily warrantless” is presumed unreasonable unless justified, and hence:

The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search was authorized by a reasonable law and carried out in a reasonable manner ...

[25] In the present case, the appellant’s challenge to the trial judge’s ruling was premised on an asserted error in stating the test for investigative detention arising from Simpson supra, and an accompanying failure in his reasons for judgment to address the evidence or argument critical to his conclusion such that it was not understandable on appellate review.

[26] The appellant further submitted on any view of it, the decision reached by the trial judge was clearly and palpably wrong, and rested on a body of evidence which could not support his conclusions.

[27] In support of his contention that the trial judge misapprehended the test for investigative detention and was thus led astray in his analysis of the facts before him, the appellant pointed to paragraph 16 of the trial judge’s reasons:

In my view, the police did not have reasonable and probable grounds to arrest these individuals but to use the words of Mr. Justice Doherty in R. v. Simpson ... which for many years has been the leading case in this area there existed a “constellation of objectively discernible facts giving rise to a reasonable suspicion of criminal activity.”

[28] The appellant submitted that the trial judge neglected to recognize the express requirement in Simpson that the reasonably suspected criminal activity must be “under investigation” to justify investigative detention, and any ensuing actions such as a weapon search, and that error in this case fatally conditioned the trial judge’s view and analysis of the evidence before him.

[29] The appellant submitted the can of bear spray was never legitimately the subject of an investigation in the present case, but was in reality simply a pretext for a fishing expedition, but because the trial judge did not recognize the requirement that the activity be “under investigation,” he did not turn his mind to that evidentiary issue. In other words, the appellant contends that the trial judge failed to come to grips with the critical issue in the case because he limited the test in Simpson.

[30] In my view, although in paraphrasing Doherty J.A.’s test in Simpson as he did in paragraph 16, the trial judge did not expressly incorporate the proviso that the reasonably suspected criminal activity be under investigation preparatory to detention, in context, it could not be said that he misapprehended the test. In paragraph 14 of his reasons, the trial judge referred to R. v. Mann supra as recognizing:

The police can detain to investigate where they reasonably suspect that the individual detained was involved in a crime under investigation.

[underlining added.]

In paragraph 17, the trial judge held:

In these circumstances, detaining these three individuals was reasonably necessary for the police to investigate that criminal activity.

[underlining added.]

In paragraph 18, he held:

I am satisfied that Constable Plantinga was lawfully investigating possible criminal activity in relation to the bear spray when he detained the three individuals including Mr. Von Meyenfeldt.

[underlining added.]

[31] I conclude it is apparent in the context of his reasons at a whole that the trial judge understood the test in Simpson and sought to apply it to the facts before him.

[32] It then falls to determine whether the trial judge properly applied the test or, as the appellant contends, either failed to properly apply it to the evidence before him or failed to explain how he applied it such that it is impossible to determine if he applied it correctly.

[33] It was the appellant’s contention that although in the present case once the can of bear spray was seen, an investigative detention would be justified of those closest to it to determine possession and perhaps intention or purpose, but in reality, no such investigation was contemplated or conducted, and hence the bona fides of the officers in detaining and searching the appellant was directly in issue.

[34] The appellant advanced a number of points in support of his characterization of the evidence. In particular, he pointed to the evidence that the bear spray was never submitted for fingerprinting to help establish possession, that there was no evidence led of what if any conversation or interrogation about the bear spray took place in the investigation.

[35] There was no evidence that Scott was ever subjected to a search or questioned about the bear spray even though he was part of the group detained. There was no evidence that others present on the art gallery stairs, although spoken to by police, were asked about the bear spray or searched for other weapons despite an acknowledgement by Constable Plantinga that it could have come from anyone present.

[36] The appellant also relied on Constable Plantinga’s evidence that he felt the investigation had little likelihood of success and that, although he had seized a can of bear spray from Dahl on a previous occasion, he had not submitted it for charges.

[37] It was the appellant’s contention in light of all the evidence, including the manner and method of the police approach to the groups on the steps, that their apparent diffidence towards investigating the bear spray and the decision not to pursue it and the opportunistic nature of the search performed on the appellant, given his attempt to assert his right not to be subject to a search, a conclusion that the search of the appellant was anything other than the product of a fishing expedition is not justified.

[38] The appellant’s argument is that the evidence of the appellant’s reluctance to be searched could not form part of the basis for Constable Plantinga’s grounds to search him and the determination of the trial judge in the voir dire that it did contributed to his error in finding valid grounds for the search.

[39] The appellant also submitted that the lapse of up to 20 minutes between the initial detention and search vitiated not only the reasonableness of the search but also its grounds because the detention had already proceeded safely for 20 minutes.

[40] The appellant argued that in finding the search of the appellant to be reasonable the trial judge placed too much emphasis on the mere presence of this spray can without regard to the circumstances as a whole.

[41] The appellant submitted as the search was unreasonable, the arrest based on its result was unlawful and the ensuing more intrusive search leading to the discovery of the marijuana was therefore unreasonable. It is the appellant’s submission that the violation of his rights were serious and the evidence obtained should be ruled inadmissible pursuant to s. 24(2).

[42] In support of his contention that the trial judge’s reasons were too inadequate to determine if he properly applied the test in Simpson or Mann, the appellant relied on R. v. Sheppard, [2002] 1 S.C.R. 869, in which the court upheld reversal of a conviction in circumstances where the trial judge failed to provide reasons that were sufficiently intelligible to permit appellate review of the correctness of his decision. In that case, the court noted at paragraph 4:

... reasons fulfill an important function in the trial process and, as will be seen, where that function goes unperformed, the judgment itself may be vulnerable to be reversed on appeal.

[43] In the course of giving the court’s reasons in Sheppard, Binnie J. quoted from Laskin C.J. in Macdonald v. The Queen, [1977] 2 S.C.R. 665, and R. v. Burns, [1994] 1 S.C.R. 656, to provide insight into the issues raised by alleging deficient or unintelligible reasons. In Macdonald, Laskin C.J. held:

It does not follow, however, that failure of a trial judge to give reasons, not challengeable per se as an error of law, will be equally unchallengeable if, having regard to the record, there is a rational basis for concluding that the trial judge erred in appreciation of a relevant issue or in appreciation of evidence that would affect the propriety of his verdict.

[44] In Burns, McLachlin J. for the court held as follows:

Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing an appeal under s. 686(1)(a). This accords with the general rule that a trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is the judge required to explain why he or she does not entertain a reasonable doubt as to the accused's guilt. Failure to do any of these things does not, in itself, permit a court of appeal to set aside the verdict.

This rule makes good sense. To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice [unreasonably]. Trial judges are presumed to know the law with which they work day in and day out. If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case.

[45] In the present case, having found that the trial judge did not misapprehend the test in Simpson for investigative detention and was alive to the requirement for an investigation into the reasonably suspected criminal activity, the next question becomes whether there is any evidence capable of supporting his finding that there was such an investigation and that the ensuing detention and incidental search met the respective criteria in Simpson and Mann.

[46] In submissions before the trial judge and before me, the appellant advanced a coherent argument based on the evidence that the conduct of the police throughout the events in question was to seek evidence of wrongdoing without proper or sufficient cause based on the time of night, the location, and the age or profile of the individuals on the art gallery stairs. In other words, it was the appellant’s contention that the police were on a fishing expedition to approach, engage in discussion, and if possible, locate contraband in the possession of those present on the basis of the ambient circumstances.

[47] In that scenario, the presence of the can of bear spray was no more than a fortuitous event which provided the police with only a patina of justification to detain and search the appellant and his companions in the absence of a genuine investigation or belief in the necessity of a search for safety reasons.

[48] If the trial judge accepted that characterization of the evidence it would follow that he would find a breach of s. 9 and/or 8 of the Charter and would be required to consider the admissibility of the impugned evidence under 24(2).

[49] As is apparent from his reasons, the trial judge did not so find and the issue is whether he was clearly and palpably wrong in his conclusion, see Housen v. Nikolaisen, [2002] 2 S.C.R. 235.

[50] In my view, it could not be said there was no reasonable basis for the trial judge to come to the conclusion which he did. The presence of the bear spray adjacent to the appellant and his companions and its character as a weapon and/or for its potential use as a weapon coupled with the fact that the appellant and his companions began to leave coincidentally with the police arrival, gave the requisite grounds to detain pursuant to Simpson.

[51] It was Constable Plantinga’s clear evidence that he detained the appellant and his companions to conduct an investigation into the criminal activity represented by the presence of the bear spray. He wanted to talk to them further. While Constable Plantinga may have had reservations about the likelihood of successfully prosecuting an offence arising out of the discovery of the bear spray, that does not vitiate the legitimacy of his decision to investigate.

[52] The police found what may have been a prohibited weapon in proximity to the appellant and his companions at night in an area of Vancouver known to involve certain types of criminal activity. In the circumstances it would have been anomalous to have decided not to investigate the can of bear spray whatever the prospects for a successful prosecution. Similarly, so far as the weapon search was concerned, Constable Plantinga repeatedly testified that his intention was formed at the outset before the appellant’s reluctance became apparent, and in relation to all three of the group.

[53] In view of the fact that what was under investigation was a weapon which there was reason to suspect was in the possession of one or more of the group and in the absence of any apparent innocent reason for its possession, it was open to the trial judge to conclude, as he did, that Constable Plantinga’s search was conducted in accordance with the grounds articulated in R. v. Mann supra.

[54] In going on and considering the resistance of the appellant to being searched, the trial judge said as follows, at paragraph 23:

I find that type of search, a pat-down search, to have been reasonably necessary. Further, the accused had made it clear to the police that he did not wish to be searched and, in addition, he refused to stand for the search and then stiffened up when it was clear that the police were lifting him up to search him. This lack of cooperation provides some justification for the use of handcuffs which the police employed, which in all of the circumstances did not, in my view, change the characterization of the search. The search was reasonably necessary for officer safety and it was conducted in a reasonable manner. Once the stun gun was found and the accused was arrested, the ensuing search for evidence was reasonable and lawful.

[55] In my view, the trial judge did not base his decision of the grounds for the search on the appellant’s reluctance to be searched. He related it to the need to handcuff the appellant and in the context of considering the reasonableness of the search. If he had relied on the appellant’s reluctance to being searched as additional evidence of grounds, it was only in a way secondary to the primary reason which was the location of a weapon adjacent to the appellant.

[56] The appellant’s reluctance to be searched was in the face of articulable reasons for the search and, hence, neither the police nor the trial judge could be faulted for viewing it as some confirmation of the necessity for a search, as opposed to the basis for it.

[57] In my view, the lack of evidence of any specific or further investigation into the possession and purpose of possessing the bear spray can after discovery of the stun gun and the decision to not detain or search others at the scene, including the third member of the appellant’s group, while cogent considerations on the issue, are not determinative.

[58] It would be equally open to the trial judge to conclude on the basis of Constable Plantinga’s evidence and the evidence as a whole that the grounds to detain and search others apart from the appellant and his companions did not exist and the discovery of the stun gun overshadowed the bear spray and took the investigation in a new direction.

[59] To some extent, the failure to search others at the scene supports the trial judge’s conclusion that the police based their search incidental to detention of the appellant and his companions on their proximity to the bear spray can and the ambient circumstances, and was not merely opportunistic. Further, it was open to the trial judge to conclude, as he did, that in the circumstances the use of handcuffs was not unreasonable.

[60] It was further open to him to conclude that the lapse of time during the detention was caused by the appellant’s reluctance to acquiesce in the search and the officers’ attempt to explain the reasons for it, and was not therefore unreasonable. In my view, this was not a case in which it could be said there was no basis for the trial judge’s finding or that it was clearly and palpably wrong.

[61] Finally, in dealing with the issue of whether the trial judge’s reasons for judgment are sufficiently intelligible to permit appellate review, I am satisfied that they are.

[62] This is not a case of a contest of credibility between the appellant and the officers on the voir dire. It is a case which involves a drawing of inferences from a relatively straightforward body of evidence.

[63] It is apparent from reading the transcript that the trial judge was alive to the issues raised by the appellant, specifically that the discovery of the impugned evidence was the product of a fishing expedition. While the trial judge did not touch on all the evidence raised by the appellant or expressly find that there was no fishing expedition, what he did do was expressly find that the search conducted was reasonably necessary in all of circumstances.

[64] The trial judge framed the issue in light of the finding in paragraph 64 of the Court of Appeal in R. v. Greaves, 2004 B.C.J. 1953, which reads as follows:

Deschamps J., writing in dissent in Mann, would have left open the possibility that searches incidental to investigative detention might not be unreasonable when conducted for purposes beyond ensuring officer safety, including preserving evidence, preventing escape and, arguably, obtaining identification ... However, the majority's reasons foreclose such a possibility and searches for such broader purposes must now be treated as unreasonable. Thus, any search incidental to an investigative detention must be reasonably necessary to permit the detention to be safely conducted.

[65] It is clear that the trial judge focused on the issue before him and resolved it in a manner not precluded by the evidence. While the trial judge may not have given explicit reasons for dealing with some contentious evidence, he clearly considered the cogent evidence in coming to his conclusion and, in my view, it could not be said that his reasons as a whole are unintelligible or reflect a misunderstanding of the evidence.

[66] On the contrary, I am satisfied that his reasons reveal that he accepted conclusions open to him on the evidence and that his reasons are accessible to understanding on appellate review.

[67] I, therefore, dismiss the appeal.

“A.F. Cullen, J.”
The Honourable Mr. Justice A.F. Cullen