IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Olivera, |
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2007 BCSC 385 |
Date: 20070228
Docket: 23978
Registry: Vancouver
Regina
Respondent
Carlos Leonardo Olivera
Appellant
Before: The Honourable Mr. Justice Cullen
Oral Reasons for Judgment
February 28, 2007
| Counsel for Respondent |
S.L. Snyder |
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| Counsel for Appellant |
G.J. Barriere |
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Place of Hearing: |
Vancouver, B.C. |
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[1] THE COURT: The appellant seeks an order quashing his conviction on two counts, one alleging possession of cocaine and one alleging possession of methamphetamine contrary to s. 4(1) of the Controlled Drugs and Substances Act [S.C. 1996, c. 19]. The charges arose from events which occurred on January 28, 2006, culminating in a police search of Mr. Olivera’s motor vehicle in which the unlawful drugs were found.
[2] At trial, the appellant asserted that his right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Charter was violated by the police search and that the evidence obtained by the search should be excluded pursuant to s. 24(2) of the Charter. The trial judge, while agreeing with the appellant’s contention that his s. 8 right was infringed admitted the evidence nonetheless and, in the result, convicted the appellant.
[3] The appellant asserts that the trial judge erred in admitting the impugned evidence, firstly, by holding that the appellant had a lower expectation of privacy at the time of search because he was subject to a conditional sentence order and, secondly, by concluding that the police officer was acting in good faith in conducting the search in the circumstances.
[4] The evidentiary context of the trial judge’s rulings were set out in her reasons on the voir dire in paragraph 3 to 9 as follows:
[3] Two witnesses testified for the Crown. The events leading up to Mr. Olivera's arrest in summary are that the police were on routine patrol around midnight when they noticed a car pull out of the parking lot which was attached to an IGA and video store. Because of the area and the time of day and the officer's experience that that type of vehicle was commonly subject to theft, the police officer in the passenger seat ran the plate on the police computer he had in the car. He learned that the registered owner was subject to a conditional sentence order which had a curfew between 11:00 p.m. and 6:00 a.m. daily. The police, therefore, turned their car to follow the suspect vehicle, and pulled it over at a gas station at 2nd and Main.
[4] As soon as the suspect vehicle stopped, the driver got out and began to approach the police. The police, too, got out, and Officer Look told the driver to stop, which he did. The driver immediately offered an explanation for being out past his curfew. He provided his name and an interim driving licence. Officer Look took a few minutes to check the explanation out, but was not satisfied. He therefore told his partner, Holt, that the driver, Mr. Olivera, was arrestable for breach of a conditional sentence order for being out past his curfew.
[5] Constable Holt handcuffed Mr. Olivera. Look took over and read Mr. Olivera his rights. While Officer Look read Mr. Olivera his rights, Constable Holt went to turn off Olivera's vehicle and began to search it. He testified that he had the authority to do so pursuant to arrest, but that he did so on the grounds, chiefly of officer safety, but also to discover offence related evidence and in particular to see whether Mr. Olivera might be breaching any other of his conditions, specifically not having in his possession a copy of his conditional sentence order or possessing a weapon of some kind.
[6] Officer Holt testified he was concerned about officer safety because (a) Olivera's conditional sentence order was in respect to five robberies. The sentence had been pronounced in November 2005, and robberies are generally crimes involving violence. (b) that Constable Holt was peripherally involved as a cover in one of those robberies. It was a bank robbery which incidentally did not involve a weapon. (c) that on one of the police databanks it indicated that Mr. Olivera had been charged with a weapons offence. And (d), that although Mr. Olivera was handcuffed, in custody of Officer Look, out of the proximity of his vehicle, and had been subject to a pat-down search, he could always escape.
[7] Officer Holt testified he also searched the car for offence related evidence because he had read in a police report with respect to one of the robberies that Mr. Olivera used drugs, and that was what motivated his criminal activity. Officer Holt believed that if Mr. Olivera was disobeying one part of his conditional sentence order, he might also be breaching another condition. He testified that because of his knowledge of the accused's past drug use he was concerned Mr. Olivera might be out past curfew to use drugs or to fund the purchase of drugs.
[8] Officer Holt testified that in the driver's door map holder compartment, at the bottom he saw a crack pipe. He described this as “plain view.” Then Officer Holt opened the locked trunk. He testified he found a hunting knife in plain view. Next to the knife in the trunk he saw a black nylon bag which he emptied. In a zippered compartment in that bag he found a clear plastic bag and a pill container containing drugs, the possession of which Mr. Olivera is charged.
[9] Neither the analysis of those drugs or the continuity is in issue. Mr. Olivera was chartered for his new offences.
[5] The trial judge’s ruling on the constitutionality of the search was set out in paragraphs 13 to 16 of her reasons as follows:
[13] Here, in the case at bar, clearly the officer was entitled to do a pat-down search of the accused for officer safety. It is difficult to understand, however, how the car needed to be searched for the same reason, notwithstanding his record, given Mr. Olivera was cooperative throughout, he was well away from the area of his vehicle, he was handcuffed, and he was in the custody of Officer Look. But even if the search of the driver's passenger compartment could be seen as necessary for officer safety, clearly the search of the locked trunk could not be justified on that basis, and a search for that reason would constitute a breach.
[14] I turn now to consider whether the search could be justified on the other stated basis, a search for evidence related to the arrest. The reason for the arrest was a breach of curfew. The officer also believed that the accused may be disobeying the weapons prohibition or the other requirement to keep a copy of the CSO with him. Of course an individual on a conditional sentence order might at any time be failing to keep the peace and be of good behaviour. Counsel did not provide the court with any decisions to support the suggestion that a search in relation to a breach of other terms of a conditional sentence order would be a search for evidence related to the arrest.
[15] Every separate breach of a conditional sentence order exposes an accused to a separate jeopardy. In effect, each breach is like a separate charge. Thus, I conclude that in order to justify a search of a vehicle incident to arrest, the search must be in respect of evidence in relation to the specific breach charged and not a fishing trip to see if any more charges would flow.
[16] Thus, I am not satisfied that the search of the trunk can be justified on this basis either. I conclude Mr. Olivera's s. 8 Charter right to be free of unreasonable search has been breached.
[6] The trial judge’s reasoning in declining to exclude the evidence pursuant to s. 24(2) of the Charter was set out in paragraphs 17 to 20 of her reasons as follows:
[17] I turn now to consider s. 24(2), and in turn the factors set out in the Collins decision, namely the fairness of the trial, the seriousness of the violation, and the possibility that excluding the evidence would bring the administration of justice into greater disrepute than admitting it.
[18] Here the evidence is real, not conscripted, and thus does not affect trial fairness. This breach is perhaps less serious than others, being a search of a motor vehicle, not a private home or person themselves, and although there were not reasonable and probable grounds, the search was not obtrusive. Additionally, I consider the Crown's novel submission that the accused, as a prisoner in the community has a somewhat lower expectation of privacy to be persuasive.
[19] Having heard and observed the officer in court, I conclude he acted in good faith on what he believed was the correct understanding of his powers.
[20] The evidence, if excluded, would leave the Crown with no case. As in Caslake, I conclude that the application of the Collins factors should lead to the admission of the evidence into the trial proper, and I rule, therefore, that the evidence will be admitted.
[7] The evidence of the appellant’s argument with respect to the trial judge’s admission of the evidence was that she fell into error by acceding to Crown counsel’s argument that the appellant had a lower expectation of privacy while under a conditional sentence order in the face of contrary authority and that her conclusion that the police officer conducted the search in good faith was at odds with her characterization of the search as “a fishing trip to see if any more charges would flow.”
[8] The respondent’s position was that the appeal should be dismissed contending that the trial judge did not fall into any error in her s. 24(2) analysis leading to the admission of the evidence and by calling into question the correctness of the trial judge’s finding of a predicate violation of the appellant’s s. 8 rights. In joining issue on the question of a s. 8 breach, both the appellant and the respondent relied on the decision of the Supreme of Canada in R. v. Caslake, [1998] 1 S.C.R. 57 [sic], which deals comprehensively with the scope of the authority to search incidental to an arrest.
[9] The facts in Caslake are instructive. The accused in that case parked his car on the side of a highway outside Gimli, Manitoba. He was seen by a Natural Resources officer to be standing about 30 to 40 feet off the highway in three to four-foot-tall grass. After the appellant in that case returned to his car and drove off, the officer went to where the appellant had been standing and found nine pounds of marihuana wrapped in cellophane inside a yellow garbage bag. The officer then called the RCMP for backup and pursued the appellant and arrested him for possession of narcotics.
[10] The police arrived, took custody of the appellant, and had his car towed to a garage across from the detachment. Approximately six hours later, the investigating RCMP officer went and searched the appellant’s car without warrant and without his permission. He found $1,400 cash and two packages each with a quarter gram of cocaine. He testified that the sole reason for his search was RCMP policy.
[11] The appellant was convicted of possession for the purposes of trafficking of marihuana and possession of cocaine and he appealed from the latter conviction. At issue in Caslake, as in the present case, is whether the search of the vehicle met the criteria of constitutionality as set out in R. v. Collins, [1987] 1 S.C.R. 265, of being a search authorized by law, the law authorizing the search being reasonable, and whether the search was conducted in a reasonable manner. As in the present case, the sole issue for determination in Caslake was whether the search was authorized by law.
[12] In analysing the issue in the majority judgment, Chief Justice Lamer pointed out that the three main purposes of a search incident to arrest are:
… ensuring the safety of the police and the public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee’s trial …
The police “must be attempting to achieve some valid purpose connected to the arrest” and must have a reasonable subjective belief that such a purpose will be achieved by the search. There is no need for reasonable and probable grounds to conduct the search:
… the only requirement is that there be some reasonable basis for doing what the police officer did.
[13] Chief Justice Lamer went on to say as follows at paragraphs 21 to 23 and 25 of his judgment:
21 In my view, it would be contrary to the spirit of the Charter's s. 8 guarantee of security against unreasonable searches or seizures to allow searches incident to arrest which do not meet both the subjective and objective criteria. This Court cannot characterize a search as being incidental to an arrest when the officer is actually acting for purposes unrelated to the arrest. That is the reason for the subjective element of the test. The objective element ensures that the police officer's belief that he or she has a legitimate reason to search is reasonable in the circumstances.
22 Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. For example, when the arrest is for traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further (see Belnavis, supra).
23 As explained above, these limits will be no different for automobiles than for any other place. The right to search a car incident to arrest and the scope of that search will depend on a number of factors, including the basis for the arrest, the location of the motor vehicle in relation to the place of the arrest, and other relevant circumstances …
25 In summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation.
[14] In the context of Caslake, the court found that since the searching officer did not turn his mind to the issue of the purpose of the search, doing it merely as a function of police policy, the search did not fall within the scope of the authority to search incidental to arrest. Nonetheless, the court concluded at paragraph 26 as follows:
Had [the constable] searched the car, even hours later, for the purpose of finding evidence which could be used at the [applicant’s] trial on the charge of [PPT marihuana], this would have been well within the scope of the search incident to arrest power, as there was clearly sufficient circumstantial evidence to justify a search of the vehicle.
[15] Although finding the search was not for want of a subjective belief in the objective justification for the search authorized by law, the court admitted the evidence employing the following analysis:
32 When considering s. 24(2), the test for the exclusion of evidence comes from this Court's decision in Collins, supra. There are three categories of factors which must be considered: the fairness of the trial, the seriousness of the Charter violation and the possibility that excluding the evidence would bring the administration of justice into greater disrepute than admitting it.
33 Whether admitting the evidence will have an effect on the fairness of the trial usually depends on whether the evidence was found as a result of conscripting the accused against himself, or whether it was otherwise discoverable. As Cory J. reiterated in Stillman, supra, at para. 74, "[t]he admission of evidence which falls into the 'non-conscriptive' category will, as stated in Collins, rarely operate to render the trial unfair. If the evidence has been classified as non-conscriptive the court should move on to consider the second and third Collins factors...." In this case, the evidence was clearly non-conscriptive. This weighs in favour of admission.
34 The next category is seriousness of the breach. When considering this issue, the court looks at some or all of the following factors: the obtrusiveness of the search, the individual's expectation of privacy in the area searched, the existence of reasonable and probable grounds; and the good faith of the police. In my opinion, all of these point in favour of admitting the evidence. The search was not especially obtrusive. There is no evidence that there was any damage or harm done to the car, the police simply did a thorough search of the interior. There is a lesser expectation of privacy in a car than there is in one's home or office, or with respect to their physical person. Although Officer Boyle did not know that he had reasonable and probable grounds to conduct a search, objectively speaking, he did. Finally, the search was conducted in good-faith reliance on an RCMP policy that requires the interior of impounded cars be inventoried. As a result, the breach was not sufficiently serious to justify exclusion of the evidence.
35 The third question from Collins is whether excluding the evidence would have a more serious impact on the repute of the administration of justice than admitting it. This factor generally relates to the seriousness of the offence and the importance of the evidence to the case for the Crown. In this instance, the prosecution had no case without the evidence. This also weighs in favour of admission.
V. Conclusion
36 In sum, the application of the Collins factors strongly suggests that the evidence should be admitted under s. 24(2). The trial was still fair, the breach was not serious, and exclusion of the evidence would have a more detrimental impact on the administration of justice than its admission. I would therefore hold that the evidence is admissible and, despite the s. 8 breach, dismiss the appeal.
[16] In the present case, the arresting officer clearly had reasonable and probable grounds for arresting the appellant on the basis of evidence that he was driving his vehicle at 12:15 a.m. in breach of a condition of a conditional sentence order imposed on him. The searching officer clearly considered an objective in conducting a search of the appellant’s vehicle. His specific evidence in that regard was as follows:
A Yes, I did. Because of my past experience with Mr. Olivera, and because of his past drug use, and in addition to the fact that he was on a conditional sentence order for that -- that robbery that I was a part of, I was concerned that because he was out past his curfew, breaching that condition and again breaking the law, that he may also be using drugs again and he may also be out past his curfew in order to commit an offence to which he could fund his drug habit or facilitate his drug habit in some way, so I was concerned that Mr. Olivera was either in the process of obtaining or about to use or having just used drugs when we pulled him over.
Page 27, line 17 to 22:
A I was searching under the authority incident to the arrest of Mr. Olivera. I was also searching the vehicle because of my concerns that I had talked about before, with him being in possession of narcotics and/or in possession of weapons as well.
Page 52, line 36, to page 53, line 2:
Q Well, that's very different than a history for weapons offences. So -- so now you're saying that -- in -- in the report that you prepared, you simply say, and this is a report you submitted immediately after the incident, that you are -- that you conducted a search incidental to the arrest on the breach, that's the information you set out, correct?
A No, that's the -- that's the authority that I acted under was incident to arrest. The grounds for why I chose to search the vehicle was, as I said before, based on the history and his conditions and his breach of his conditional sentence order on that date.
And page 61 from line 12 to line 31:
Q So you're suggesting that you can pull anyone over who has a history before the courts and with police involvement and search their vehicle?
A No, Your Honour, I cannot.
Q So the basis for your search was?
A That -- the authority for the search was the incident to arrest. My grounds for searching the vehicle were based on Mr. Olivera's history, the fact that he's committing -- re-committing another offence today -- on that date, rather, and his involvement with drugs and violent offences, those things that I've outlined before, Your Honour.
Q But your search has to relate to the matter that you're stopping him for unless you're really wanting to search for something else, and you're stopping him for breaching his curfew, right?
A Yes, Your Honour, and we're also -- as I mentioned before, too, we're also searching for evidence of other breaches, in particular in this case breaching his firearms prohibition.
[17] In effect, it was the officer’s evidence that he was, at least in part, looking for evidence as to the reasons or the motive for the appellant to be conducting himself in breach of a condition of the curfew. In her reasons, the trial judge concluded that the fact that the objective of the search was to unearth evidence of other offences or breaches of other conditions of the order brought it outside the scope of a proper search incidental to arrest, because it was a search that would or could expose the appellant to a separate jeopardy. The trial judge concluded that each breach is like a separate charge and the search must be confined to evidence of the specific breach at issue.
[18] In my view, the trial judge erred in finding the search not to be authorized by law in that she failed to inquire whether in seeking to unearth evidence of other breaches or other offences, the searching officer, who she found to be acting in good faith, was “attempting to achieve some valid purpose connected to the arrest,” in the words of Chief Justice Lamer in Caslake. The officer, in my view, in conducting the search of the vehicle was legitimately investigating the reasons or motive of the appellant for being in breach of his curfew while driving his vehicle.
[19] That the searching officer had in mind the prospect that his search may reveal evidence of other breaches or separate offences as the motive for, the cause of, or otherwise connected to the appellant’s conditional sentence order breach, does not undermine his authority to conduct the search. This was not a situation where the officer’s only rationale for the search was to try and obtain evidence of further wrongdoing. Rather, it was to explore the circumstances of the breach.
[20] This was not a situation where the appellant was being arrested after the fact of an alleged breach or in circumstances not involving his motor vehicle and the vehicle search was conducted on the coattails of the arrest solely to expose the appellant to additional jeopardy. If that were the case, absent other justifying circumstances, the trial judge’s conclusion could not be faulted. Here, however, the trial judge focused on the officer’s evidence of what he was looking for rather than his evidence of why he was looking for it - to seek evidence of why or in what specific circumstances the appellant was breaching his CSO by driving around in his vehicle in the late evening/early morning hours.
[21] In my view, there was a reasonable basis for the searching officer’s decision to search the vehicle - to find evidence related to the appellant’s breach of his CSO - and the officer had the requisite subjective belief in the reason for his action. I, therefore, conclude that there was no s. 8 infringement in the circumstances of this case and would dismiss the appeal on that basis.
[22] If I am wrong in that conclusion, I would nonetheless dismiss the appeal on the basis that the trial judge did not err in admitting the evidence pursuant to s. 24(2) of the Charter. The appellant’s attack on the trial judge’s ruling focused upon her reliance on the proposition that, “ the accused as a prisoner in the community has a somewhat lower expectation of privacy,” as “persuasive,” and upon her characterization of the searching officer as acting in good faith in conducting the search.
[23] In his argument, counsel for the appellant relied on the decision of His Honour Judge Schmidt in R. v. N.D.K., [2001] B.C.J. No. 1831, where he held as follows in paragraph 36 of his reasons:
The court finds therefore, that there is not a reduced expectation of privacy for persons under a Conditional Sentence Order, other than that which may be expressed in the order itself, nor does the fact that the offender is serving a conditional sentence effect the appropriateness of the remedy of exclusion of evidence pursuant to s. 24(2).
The appellant submitted that the essential ratio of the court’s decision in N.D.K. is that the fact of a CSO does not create a general excuse for the violation of a person’s right.
[24] The appellant submitted the Alberta Provincial Court adopted the same approach in R. v. Kanak (2003), 178 C.C.C. (3d) 129. The appellant’s counsel submitted that Kanak stood for the proposition that while specific conditions imposed by a CSO may reduce an offender’s expectation of privacy to the extent prescribed by the conditions, in the absence of conditions allowing a warrantless search of the offender’s vehicle, there was no lowered expectation of privacy in the vehicle.
[25] The appellant relied on R. v. Proulx, [2001] S.C.R. 61, referencing the constraints on an offender which are created by the conditions of a CSO. The appellant submitted:
Applying a general reduction of privacy to persons on a conditional sentence is contrary to the purpose of s. 8 which is to prevent unreasonable search and seizures. That purpose can only be maintained if any reduced expectation of privacy is clearly set out in the conditions of the CSO prescribed by the trial judge.
The appellant submits that as there was no condition allowing a warrantless search of the appellant’s vehicle, and the police did not believe they had authority from the CSO, it was an error for the trial judge to use the fact of the CSO as lowering the appellant’s expectation of privacy.
[26] In her argument, counsel for the respondent submitted that N.D.K.:
… was wrongly decided … and should not be followed especially given more recent case law.
The more recent case law referred to by counsel for the respondent includes R. v. Woroby (2003), 174 C.C.C. (3d) 128 (Man. C.A.); and Kanak. It was the respondent’s contention that both Woroby and Kanak support the proposition that there is a gradient of expectations of privacy with a free citizen at the highest level, followed by probationers, then those subject to a CSO, and finally those incarcerated at the lowest level. It was the respondent’s submission that the ratio of Kanak was not that it was the conditions imposed that lowered an offender’s expectation of privacy; rather, it was the fact that being on a CSO diminished the expectation of privacy to allow intrusive conditions to be placed on the offender.
[27] Finally, the respondent relied on R. v. Palmer (2003), 204 C.C.C. (3d) 256, a decision of the Ontario Superior Court of Justice, where Durno J. stated at para. 40:
I agree with the judgment in R. v. Kanak, supra, that an offender serving a conditional sentence has a reduced constitutional right to privacy compared to others who are free to go about without restrictions on their liberty. The rights of persons serving a conditional sentence are not as restricted as someone serving a term in jail. However, the offender serving a conditional sentence has some rights, which cannot be effectively ignored by precluding the exclusion of evidence. It will be a factor to consider in the s. 24(2) analysis that the offender was serving a conditional sentence at the time of the breach.
[28] It is clear that the fact that an offender is subject to a conditional sentence order does not validate an otherwise invalid search under s. 8. It is also clear that to hold a diminished expectation of privacy of one subject to a conditional sentence order invariably justifies admission under s. 24(2) would undermine the rights protected by s. 8. In my view, however, it would be wrong to hold that there are no circumstances in which a person under a CSO had a lower expectation of privacy than one not so subject, or that it is not a factor to consider. Where, as in the present case, the appellant was prima facie acting in breach of a condition of his CSO, I conclude that his expectation of privacy would be diminished and a proper subject for consideration, as opposed to determination, by the court on a s. 24(2) analysis.
[29] In so far as the second error alleged by the appellant that the trial court judge erred in holding that the police acted in good faith, the appellant relies on the proposition that good faith cannot be claimed if a Charter violation is committed on the basis of an officer’s unreasonable belief or ignorance as to the scope of his authority. The appellant cites R. v. Buhay (2003), 174 C.C.C. (3d) 97; R. v. Lam (2003), 180 C.C.C. (3d) 279; and R. v. Vu (2004), 184 C.C.C. (3d) 545, in support of that proposition. The appellant submits the trial judge in finding the searching officer acted in good faith looked only to his subjective belief and failed to inquire as to the objective reasonableness for that belief. The appellant submitted that the trial court judge’s finding that the search was “a fishing trip” was akin to a finding of a serious breach where the police may be taken to be demonstrating “an unlawful motive” for committing the search to obtain whatever evidence may exist, regardless of the law and restrictions imposed by the Charter.
[30] In my view, the trial court judge’s use of the phrase “fishing trip” was not inimical with the finding that the officer acted in good faith in conducting the search. Here, there was no clear law governing the officer’s authority to search. The decision in Caslake provided an analysis of what constituted a valid search incidental to arrest, which in effect, the officer testified he believed he was conducting. The trial court judge’s finding that his search fell outside the scope of a search incidental to arrest was based in part on the absence of authority on the issue. In that context, her characterization of the search as a “fishing trip” was a characterization not of the objective reasonableness of the officer’s belief in his authority, but rather, a characterization of the effect of her ruling that it fell outside the scope of the authority to search as an incident of arrest as explained in Caslake.
[31] I conclude the evidence before the trial court judge does not support a finding that the officer’s subjective belief in his authority to search was clearly unreasonable or based on ignorance as to its lawful scope. Given the trial court judge’s other findings as to trial fairness and the lack of intrusiveness of the search, I conclude that she did not err in admitting the impugned evidence pursuant to s. 24(2).
[32] For those reasons, therefore, I would dismiss the appeal.
“A.F. Cullen J.”
The Honourable Mr. Justice A.F. Cullen