2007 BCSC 1959 R. v. Wing

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*R. v. Wing*,
	2007 BCSC 1959

Date: 20071220
Docket: 81156
Registry: Kamloops

Regina

Fraser Anthony Wing

Before: The Honourable Mr. Justice Powers

Oral Ruling on Voir Dire

December 20, 2007

Counsel for Crown:	A. Varesi
Counsel for Defence:	P. Jensen
Place of Trial/Hearing:	Kamloops, B.C.

[1] THE COURT: This matter is before me today for a decision on the voir dire. Mr. Wing applies to exclude evidence.

[2] The accused was arrested on November 23, 2006, for possession of cocaine for the purposes of trafficking. The vehicle he was driving was searched, and one kilogram of cocaine was found in the vehicle. The accused objects to the admission of the cocaine as evidence on the basis that the arrest was unlawful and, therefore, the search was unlawful and unreasonable.

[3] The accused argues that it is contrary to s. 8 of the Canadian Charter of Rights and Freedoms (the “Charter”) and that the evidence should be excluded pursuant to s. 24(2) of the Charter. Section 7 and s. 9 were also mentioned but not argued to any great extent. The real issue and real argument is based on s. 8 and whether or not the arrest was lawful.

[4] If the arrest was lawful, the search was incidental to the arrest and also lawful. If the arrest was unlawful, then the search was as well unlawful and unreasonable.

[5] There is no suggestion that the search was conducted in an unreasonable manner. The argument simply is whether or not it was contrary to the law.

Was the arrest lawful?

[6] Section 495(1)(a) provides:

A peace officer may arrest without warrant

(a a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence . . .

[7] In this case, the Crown argues that the police had reasonable grounds to believe that the accused was in possession of cocaine for the purposes of trafficking. The police are not required to establish a prima facie case for conviction before making an arrest. They must subjectively and objectively have reasonable and probable grounds to believe that the accused has committed or is about to commit an indictable offence. The standard is reasonable probability.

[8] The Supreme Court of Canada discussed this matter in R. v. Storrey, [1990] 1 S.C.R. 241. At ¶17, Cory J. said:

. . . the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

[9] There must be something more than mere suspicion or rumour.

[10] In this case, the information relied upon by the police came from an informer. The Supreme Court of Canada in R. v. Debot, [1989] 2 S.C.R. 1140 said at ¶53:

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

[11] Counsel referred to a number of cases in argument. They are helpful as examples, but of course, each case must be determined on its own facts. The evidence in this case is that Sergeant Keeley, a 27-year veteran of the RCMP with 20 years' experience in drug investigations, received a telephone call on November 23, 2006. He was advised that two males from Salmon Arm were going to pick up one kilogram of cocaine and take it to Salmon Arm. They would be driving a purple Sonoma pickup with British Columbia licence number 5012 KC. They would be in the Aberdeen/Sahali restaurant and motel strip area of Kamloops. They would be returning to Salmon Arm in the afternoon.

[12] The information was compelling in the sense that it was about a significant amount of cocaine and the offence was occurring or about to occur. There was sufficient detail to warrant an immediate investigation.

[13] The source was personally known to Sergeant Keeley. The source met Sergeant Keeley approximately seven months before November 2006 and provided a history of the drug business in Kamloops and area. Based on Sergeant Keeley's own knowledge and other investigations, this information was accurate. This confirmed that the informant was knowledgeable about the ongoing drug activity in the area. The informant was “in the know”.

[14] Approximately four months before November of 2006, the source met with Sergeant Keeley for approximately two hours and provided information that led to the arrest of a suspect and seizure of 25 plus grams of cocaine. This further confirmed the source's knowledge and reliability. The source was paid for this information and, therefore, the source had a motive to provide accurate information. I am satisfied that the source was credible.

[15] The basis of the source's information was not revealed.

[16] Sergeant Keeley and another officer attended in the motel restaurant strip of the Aberdeen/Sahali area in Kamloops and located the vehicle described parked at the Dairy Queen restaurant. There was a male standing beside the passenger's door. Sergeant Keeley and another officer went into the Dairy Queen, ordered and sat down. They were not asked, but given the nature of the investigation, I assume they were in street clothes. They were there for 10 or 15 minutes.

[17] The accused was sitting by himself. He had a knapsack with him and he looked at them. The male from outside came in and sat approximately 20 feet from the accused. After a few minutes, the accused approached the male. They had a brief conversation, and then they both got into the truck. The accused was driving and they left. On the face of it, this seems like unusual behaviour.

[18] The truck was followed to Home Depot's parking lot. Apparently, the accused made a purchase. The truck was then followed to a McCleaners Drycleaning location. A brief meeting occurred with the occupant of another vehicle. The truck then went to the downtown area of Kamloops and eventually to a service station. The police had lost contact with the truck for a brief time while it was in the downtown area.

[19] The vehicle with the two males, including the accused, then headed east on the Trans Canada Highway in the direction of Salmon Arm. Sergeant Keeley then gave the direction to have the vehicle stopped and the accused arrested. The vehicle was stopped and the two males were arrested for possession for the purposes of trafficking. The vehicle was searched, and in a knapsack behind the driver's seat the police found a one kilogram brick of cocaine.

[20] Sergeant Keeley said that the decision to arrest was based on the source's information, their surveillance, and the urgency. Sergeant Keeley believed that there was a risk that the one kilogram of cocaine would be lost if they did not make the arrest.

[21] Sergeant Keeley agrees that he did not observe any transaction that looked like it was a drug transaction.

[22] The Aberdeen/Sahali area is large, approximately one kilometre by one kilometre, and Sergeant Keeley estimated it may have as many as 50,000 people living in the area. However, there is no evidence that the motel/restaurant strip is large. I note on the evidence that it did not take long to locate the vehicle in that area.

[23] The issue is whether Sergeant Keeley had subjectively and objectively reasonable and probable grounds to believe the accused was in possession of cocaine for the purposes of trafficking. Did he have more than a mere suspicion? Would a reasonable person in his position be able to conclude there were reasonable and probable grounds to believe the accused was in possession of cocaine for the purposes of trafficking?

[24] The accused argues that Sergeant Keeley did not have subjective reasonable grounds; that is, he did not believe that the accused was in possession. It is argued that he merely had a suspicion and decided to arrest and search on the chance that the drugs were there.

[25] The sergeant was not directly cross-examined on this issue. His evidence was that he had information from a reliable source. He found a vehicle and two males where and when he was told he would. They appeared headed for Salmon Arm. He did not see a transaction, but he was concerned that if he did not make the arrest, that the evidence would be lost.

[26] I am satisfied on his evidence that he believed there were reasonable grounds to believe that the accused was in possession of cocaine for the purposes of trafficking.

[27] Were there objectively reasonable grounds to believe? The information was compellable. Certainly, it was specific enough regarding time and place of the offence and the specific vehicle involved.

[28] Was the informant reliable? This was an informant of proven reliability, as I have said.

[29] Was there any independent corroboration? Some of the details were confirmed, although the police were unable to independently confirm any criminal activity. However, given the specifics of the vehicle, licence number, time and place, and that there were two males, this added to the credibility of the information received.

[30] Specifics about how the informant learned of the offence are helpful but not necessary in every case. I am satisfied that Sergeant Keeley did have reasonable and probable grounds to believe both subjectively and objectively. He did not have a prima facie case, but the information that he had went well beyond mere suspicion or rumour.

[31] The combination of factors, including the known reliability and the knowledge of the informant, the specifics of the tip, and confirmation of neutral details are important. This was not an arbitrary or unreasonable arrest or detention. The search was incidental to the arrest, therefore, lawful and the evidence is admissible.

[32] I have read all of the cases presented by counsel. In many of the cases, the information was better than in this case. However, that does not mean that the information was not sufficient in this case. A case that is somewhat similar is R. v. Charlton, [1992] B.C.J. No. 1405 (B.C.C.A). In Charlton, the accused was arrested for possession for the purposes of trafficking of cocaine. The informant was known to the police as a cocaine abuser but had not provided information before. The informant gave the description of a vehicle and a licence number. The informant indicated there would be more than one occupant and that they had arrived from Vancouver the prior day. The occupants were said to be in possession of a substantial amount of cocaine and were there to sell it. The informant said that there may be a weapon involved.

[33] The vehicle was located and seen to drive to areas known to be frequented or occupied by people in the drug trade. This is a factor that is different from our case. The evidence was admitted at trial, and the accused's appeal was dismissed. The Court of Appeal, after referring to R. v. Storrey and R. v. Debot, said that in those circumstances the information was sufficient to remove the possibility of an innocent coincidence.

[34] Another decision is R. v. B.W.B., 2002 BCCA 388, which involved a charge of possession for the purposes of trafficking. The evidence was admitted at trial and the accused appealed. The appeal was dismissed. The informant was described as a reliable source. The information was that B.B. would be in possession of cocaine and would be dealing from a red Chevy Sprint registered in the name of J.M., and the accused would be using a cell phone. The police had prior information that the accused was a drug dealer. This is different from our case. The police observed B.B. in the vehicle and saw a cell phone. The Court of Appeal said that although the case may have been somewhat borderline based on the detailed nature of the tips, the events unfolding as predicted and B.B.'s reputation, the police did have reasonable and probable grounds to believe that the accused had committed or was about to commit an indictable offence.

[35] One other case referred to by the Crown was R. v. Hardy, [1994] B.C.J. No. 1281 (B.C.C.A.). This was a search warrant case. The information was from a reliable informant who had provided information before. The informant stated that they had personally viewed the marihuana at a specific residence within the last 24 hours. The informant was a user of marihuana and acknowledged expert enough to recognize it. The Court of Appeal dismissed the accused's appeal on the basis that the police did have sufficient information to provide reasonable and probable grounds to believe the evidence of the offence would be found and, therefore, a warrant could be issued.

[36] The Court of Appeal referred to Debot at ¶5 and described it:

. . . [as] the high water mark for specificity but it does not establish in my view a standard of disclosure which must be met in every case.

[37] The court also pointed out, in ¶6, that Debot dealt with untested informants.

[38] One other decision with some similarity to ours is R. v. Lejeunesse, [1994] B.C.J. No. 1168 (B.C.C.A.). The Court of Appeal dismissed an appeal from conviction. In this case, a reliable informant said that a male person 5'8" tall, 160 pounds, wearing a black t-shirt, left a gas station convenience store one kilometre from the prison heading towards the prison. It was visitor's day. The person had purchased some balloons and then went to the washroom. The suspicion was that this person may be attempting to smuggle drugs into the prison.

[39] The accused arrived at the prison approximately 15 minutes later matching the description. He was stopped, searched, and found in possession of drugs. The Court of Appeal concluded that there were sufficient grounds for a person in the position of the officer concerned to reasonably conclude that an indictable offence was probably being committed.

[40] Crown also referred to R. v. Silver, 2007 YKCA 4; that is the Yukon Court of Appeal. The accused's appeal was dismissed. The charge was possession for the purposes of trafficking in cocaine. Information was received from a reliable informant that the accused was driving a particular vehicle described and would be delivering cocaine to crack houses. The accused was known to be connected to the drug culture and was subject to an outstanding warrant in British Columbia for cultivation. I assume the warrant had not been processed for execution in the Yukon. The vehicle in question was registered to a known cocaine dealer. The accused was arrested in the car while driving towards downtown Whitehorse.

[41] The Court of Appeal, in dismissing the appeal, said that there was sufficient corroboration of the information received and that this was also a developing situation, and that there was no time to obtain a warrant.

[42] I suggest that the circumstances were similar in our case in that it was a developing situation.

[43] I should say a few words about some of the cases referred to by the accused. The accused referred to Debot. It should be remembered that in Debot the trial judge excluded the evidence. The Court of Appeal allowed the appeal, directing a new trial, and the Supreme Court of Canada dismissed an appeal from the Court of Appeal decision.

[44] The circumstances of Debot were that a reliable informant had told the police that the accused and two others would meet at a particular residence to deal in speed. The speed would be coming from Wallaceburg from a named supplier. The informant said that the information was received from C,, the person whose residence the deal was to take place at.

[45] The accused and others were known to the drug section of the police. Surveillance was established. The police saw a vehicle at the house, and one person got out of the vehicle and back in and then left. The vehicle was registered in the accused's name. The accused was a passenger, but the police did not know that and did not know whether or not the accused had entered the house. The vehicle was stopped, and the police first became aware of the accused's presence when he was seen outside the vehicle. He was personally searched and one ounce of speed was found. The court found that this search was not incidental to arrest because it preceded any arrest.

[46] It is interesting to note that Wilson J. concluded in those circumstances the police did have reasonable and probable grounds to search the accused pursuant to s. 37 of the Food and Drugs Act. That section, of course, is not being relied on in the case before me.

[47] The accused referred to R. v. McCargar, 2007 ABQB 30. This involved a charge of possession for the purposes of trafficking of marihuana of less than three kilograms. The police received information from an unproven informant that marihuana was being sold at a certain residence. The police observed three vehicles stop and leave shortly after. The accused was driving the third vehicle. He was stopped and arrested.

[48] The court concluded that the police were operating on a mere hunch; that the information was not compelling; it lacked detail; there was no corroboration and no credibility of the informant. This case is considerably different from ours.

[49] Next the accused referred to R. v. Zammit, [1993] O.J. No. 881 (O.C.A.). This again involved an informant of unknown reliability. The informant provided the accused's name and address, a description of the vehicle, the accused's place of work, and that he was selling drugs. The informant said that the accused would get cocaine at a specific time, and the police were only able to confirm neutral details of the information. The court found that this was a mere suspicion.

[50] Zammit was also referred to in the s. 24(2) argument, but later the British Columbia Court of Appeal decisions make it clear that the case is no longer the law and the authority it relied on was not applicable. Again, this case is significantly different from ours.

[51] R. v. William was a 1993 decision from the Provincial Court of British Columbia, Kelowna Registry No. 29626. This case turned on its own facts, and the court found that the police had a suspicion but they did not have reasonable and probable grounds to arrest the accused, although the information was from a reliable informant.

[52] The accused referred to R. v. Lamy (1993), 85 Man.R. (2d) 179. In this case a reliable informant told the police that the accused would be bringing marihuana to Thompson, Manitoba. The police believed the accused was in the drug trade with a brother and one other. The accused's brother and others were known to the police, but they had no prior information regarding the accused. There was no information about the tipster's source of information or its reliability. The accused was stopped in his vehicle and searched. The court found that this was an unreasonable search and excluded the evidence.

[53] Although that case appears somewhat similar to ours and is persuasive, it is not binding upon me.

[54] The accused also referred to R. v. Wust, 2006 BCSC 1858. In this case the accused was charged with possession of a firearm. He was stopped by the side of the road with his lights on and his vehicle running. The police stopped to investigate but had no reason to detain or search the vehicle. The police had prior dealings with the accused but had no basis for conducting any search on that occasion. This case is quite distinguishable from ours.

[55] In the event that I am wrong and that there was no reasonable and probable grounds to arrest, I must consider the application to exclude the evidence under s. 24(2). The Supreme Court of Canada set out the test for exclusion in the decision R. v. Collins, [1987] 1 S.C.R. 265. In Collins, the court made it clear that the applicant must show on the balance of probabilities:

(1) an infringement of a right;

(2) evidence obtained in violation of that right;

(3) having regard to all of the circumstances, the admissibility of the evidence could bring the administration of justice into disrepute.

[56] If it is a warrantless search, the onus is on the Crown to show on the balance of probabilities that the search was reasonable, that is, that it was authorized by law and conducted in a reasonable manner. The question then is, could the admission of evidence bring the administration of justice into disrepute in the eyes of a reasonable person dispassionate and fully apprised of the circumstances?

[57] On the s. 24(2) argument, the accused referred to Wust, which I have already stated is quite dissimilar to ours. The accused referred to R. v. Klimchuk (1991), 8 C.R. (4th) 327. This dealt with possession of keys suitable for breaking into coin-operated machines. The accused was detained and his vehicle was searched and the keys found in the vehicle. The officer admitted that he did not believe that he had grounds to arrest the accused and had no more than mere suspicion. The court found that this was a serious violation of the accused's rights and that the officer had acted in bad faith. The evidence was excluded, although there was one dissenting judgment.

[58] The accused referred to R. v. Mellenthin, [1992] 3 S.C.R. 615. This case is no longer the law and should not be relied on.

[59] The accused referred to R. v. Lam, 2003 BCCA 593. This was a charge of possession for the purposes of trafficking a controlled substance. This involved an unlawful search of a vehicle. The police were on a routine patrol and came across the accused in his vehicle parked in an industrial area. The police knew that the accused was awaiting disposition on drug-related charges. An officer saw three duffel bags in the back of the vehicle and asked to see them. The accused reluctantly agreed. There were no Charter warnings. The court found that the evidence should be excluded.

[60] The evidence was that the officer was prepared to conduct an improper search on the possibility that he may have what was a “no-case” seizure. The police may not have a case to prosecute, but they would have gotten the drugs off the street, and they were prepared to violate the accused's rights in order to do so. That is not our case.

[61] One of the decisions referred to by the Crown was R. v. Washington and Shepherd, 2007 BCCA 540. This involved an unlawful search of a package at a HeliJet port. An employee at the HeliJet port suspected that a package contained drugs and opened it for inspection. A white substance was found. The package was resealed and the police called. In the presence of the police it was reopened and a police officer took a sample of the white powder. The officer recognized it as methamphetamine in its crystal form.

[62] The accused attended to pick up the package which was addressed to her, and she and the other accused in her company were arrested and the package seized.

[63] The court dealt with the issue of exclusion of the evidence under s. 24(2). The court confirmed that it is necessary to consider all of the circumstances bearing on the repute of the administration of justice: ¶62, referring to R. v. Grant (2006), 81 O.R. (3d) 1 (C.A.), and in ¶63, referring to R. v. Law, 2002 SCC 10, which confirmed the test in Collins.

[64] In Washington, the trial judge admitted the evidence but did not explain the reasons or the process. Therefore, the Court of Appeal did a full analysis. The Collins analysis required a consideration of:

(1) the effect of admitting the evidence on the fairness of the subsequent trial;

(2) the seriousness of the police conduct; and

(3) the effects of excluding the evidence on the administration of justice.

[65] The court confirmed that this evidence, being real evidence, was non-conscriptive and, therefore, its admission would not affect the administration of justice.

[66] The court considered the seriousness of the breach of the accused's expectation of privacy. The court concluded that the police would not have sufficient grounds for a search warrant based only on what the employee at the HeliJet port had told them. The court also concluded that there was no urgency. The court did find, however, that the constable believed that he had the authority to investigate suspicious packages. The constable also thought that once the package had been opened by someone else, that he had the authority to continue the investigation.

[67] The court said that relative good or bad faith exercised by the police officers was an important factor in considering the seriousness of the breach. The court, in ¶78 through 83, talked about the difficulty in determining where conduct lies on what they described as a fault line between good faith and bad faith.

[68] Good faith involves an honest and reasonably held belief that the conduct is legal. However, if the belief is honest but not reasonable, it does mean that it would not be good faith but it would not necessarily be bad faith. Bad faith requires something to be knowingly or intentionally wrong.

[69] The court found that although the officer was wrong in his belief that he was entitled to continue the search after the employee had already opened the package, his conduct was closer to good faith than bad faith. The court then went on to consider the effect on the administration of justice of the admission or exclusion of the evidence. The court said that the two important considerations are whether the evidence forms a crucial part of the Crown's case and, where trial fairness is not affected, the seriousness of the underlying charge. The court referred to Law at ¶39.

[70] The evidence in Washington was crucial to the Crown's case as it is in the present case. The trial fairness was not affected and, therefore, the seriousness of the underlying charge was also a factor. The court found in that case that the s. 8 breach was not at the higher end of the expectation of privacy, being a search of the package, although the breach was serious. However, the police had a misunderstanding of their authority and, therefore, were not acting unreasonably.

[71] I should note that there was one dissent in that case, and this simply illustrates that reasonable people may disagree on a s. 24 analysis.

[72] The court also referred to the decision in R. v. Grunwald, 2007 BCSC 767. This involved a charge of possession of marihuana for the purposes of trafficking in an amount exceeding three kilograms. The police were conducting a routine roadblock to check for motor vehicle infractions. The accused's vehicle was stopped, and when questioned by the police, he appeared to be nervous. His hands were shaking and he swallowed repeatedly. There were no officer safety concerns. The first officer involved thought he smelled a faint odour of marihuana but did not believe he had reasonable grounds to arrest. A second officer approached and noticed the smell of marihuana. He shone his flashlight through the side canopy windows in the back of the pickup and saw a number of garbage bags, one of which was opened, allowing him to see the contents, namely, a Ziploc bag containing marihuana bud. He could not see into the truck without the aid of the flashlight.

[73] In ¶21 to 42, the court concluded that this was an unreasonable search because it was warrantless and the police had no reasonable and probable grounds to believe an offence had been committed or that there would be evidence present.

[74] The court then considered the s. 24(2) application to exclude the evidence. This was considered at ¶43 to 58. The court cited the Collins test and referred to R. v. Stillman, [1997] 1 S.C.R. 607. The court was referred to Mellenthin in argument, but at ¶47, cited R. v. Richardson, 2001 BCCA 260 for the proposition that Mellenthin had been overtaken by subsequent cases and is not the law.

[75] I just note as an aside, it must have been somewhat troubling to the court that the lawyer who argued Mellenthin in the Grunwald case, I believe, was the same lawyer that argued the case in Richardson and would surely know that Mellenthin was no longer the law.

[76] The court found that Stillman made it clear that non-conscriptive evidence such as the cocaine in our case does not affect the fairness of the trial.

[77] The court also referred to R. v. Buhay, [2003] 1 S.C.R. 631. In that case, marihuana was seized from a Greyhound bus locker. The trial court found that the evidence was real and non-conscriptive and would not render the trial unfair. This finding was upheld by the Supreme Court of Canada.

[78] In Grunwald, the court went on to point out that while the officer's conduct did not reach the level of good faith, that there was an absence of bad faith in his conduct. This search was also less intrusive than the search in the Mellenthin case. In Grunwald, the court, after conducting the s. 24(2) analysis, admitted the evidence.

[79] The Crown also referred to R. v. Fahbod, British Columbia Court of Appeal, Vancouver Registry No. CA020332, March 12, 1996. In that case, the police had insufficient grounds to conduct an arrest, but on a s. 24(2) analysis, the drugs found in his possession when he was searched on arrest were admitted. The court said that the police officer's grounds for arrest fell slightly short of reasonable and probable grounds.

[80] I have read all of the cases but do not feel it is necessary for me to cite all of them in this decision. Section 24(2) of the Charter provides:

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[81] The word would has been interpreted as could in subsequent decisions. I have already referred to Collins and Stillman for the analysis.

(1) Does it affect the fairness of the trial?

This is non-conscriptive evidence and would not affect the fairness of the trial.

(2) The seriousness of the breach.

I am satisfied that Sergeant Keeley believed that he had reasonable and probable grounds to arrest the accused and was operating under some urgency in a developing situation. If I am wrong about the grounds for arrest, it is a serious breach but the information that the police had was at least close to the line in justifying the arrest. I do not find that they were acting in bad faith.

(3) The effect of excluding the evidence as opposed to admitting it on the administration of justice.

The evidence is essential to the Crown's case, and this is a serious offence. Even if the police were not operating in good faith, they were not operating in bad faith.

[82] I find that the admission of the evidence could not bring the administration of justice into disrepute as contemplated by s. 24(2) and, therefore, the evidence is admitted.

“R.E. Powers, J.”
POWERS J.