2005 BCSC 1247 HMTQ v. Parmar

Before: The Honourable Mr. Justice Truscott

Reasons for Judgment

Counsel for the Appellant	D. Albert
Counsel for the Respondent	V. Toselli
Date and Place of Trial/Hearing:	August 22, 2005
	New Westminster, B.C.

[1] Mr. Parmar appeals a decision of the Honourable Judge R.D. Miller on May 20, 2004, finding him guilty of possessing two prohibited weapons, being two butterfly knives.

[2] Mr. Parmar was the driver of a motor vehicle on November 1, 2002, in Surrey, British Columbia when, while stopped, he was approached by two RCMP officers. Those officers had followed Mr. Parmar’s vehicle into a parking lot located behind an apartment complex and stopped behind his stopped vehicle with their emergency lights on. One of the officers had thought that the occupants of Mr. Parmar’s vehicle were two persons of interest to him as part of his police investigations.

[3] As the officer approached the driver’s side of Mr. Parmar’s vehicle, he quickly realized that the occupants were not in fact persons of interest to him. However, as he did not know who the driver was, he decided to ask Mr. Parmar for his driver’s licence and registration.

[4] While standing at the driver’s side door the officer detected what he considered to be a faint odour of marihuana coming from within the vehicle. He formed the opinion from that faint odour that there was a controlled drug within the vehicle and he requested that both occupants exit the vehicle as he was going to search it pursuant to the Controlled Drugs and Substances Act, SC 1996 c. 19.

[5] The officer said that he asked the occupants to exit the vehicle for safety reasons because the smell as best he could tell was coming from the front portion of the vehicle.

[6] The officer searched the vehicle and found a small bag containing .8 grams of marihuana under the driver’s seat. He then exited the vehicle and approached Mr. Parmar at the rear of the vehicle and told him that he was under investigation for possession of a controlled substance, marihuana. He did not arrest Mr. Parmar.

[7] The officer then proceeded to search Mr. Parmar and discovered $835.00 inside his jacket pocket.

[8] At some point the officer had a discussion with Mr. Parmar during which Mr. Parmar offered that he had two butterfly knives. The officer seized these weapons and they became the subject of the charge against Mr. Parmar.

[9] At the beginning of the trial a voir dire was held on the admissibility into evidence of these two knives. The basis for the challenge was alleged violations of Mr. Parmar’s rights under ss. 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms.

[10] At trial the Crown conceded that the officer had breached Mr. Parmar’s right to be secure against unreasonable search or seizure under s. 8 of the Charter when the officer searched his vehicle without a warrant, based upon his smell of this faint odour of marihuana.

[11] Mr. Parmar’s counsel also argued at trial that Mr. Parmar’s right not to be arbitrarily detained under s. 9 was breached when the officer asked for his driver’s licence without having any concerns for traffic violations or criminal violations.

[12] Finally Mr. Parmar’s counsel submitted that Mr. Parmar’s right to retain and instruct counsel without delay under s. 10(b) of the Charter was also violated.

[13] The trial judge determined that the officer had the authority under the Motor Vehicle Act, RSBC 1996 c. 318, to ask Mr. Parmar for his driver’s licence and registration, so there was no arbitrary detention under s. 9 of the Charter. Alternatively, he said that if there was a breach of s. 9 it was a very trivial breach only.

[14] On the issue of the alleged s. 10(b) breach, the trial judge said that it had not been established on a balance of probabilities to his satisfaction because the officer could not recall Mr. Parmar saying that he wanted a lawyer, and only agreed in a vague way in cross-examination that such an assertion was likely, given a note in the officer’s notebook. That evidence did not persuade the court that Mr. Parmar had asked for a lawyer.

[15] With the Crown’s concession that Mr. Parmar’s s. 8 rights were violated when the vehicle was searched without a warrant, the trial judge turned to a consideration of whether the admission of the weapons would bring the administration of justice into disrepute under s. 24(2) of the Charter. He concluded that the evidence was non-conscriptive and was obtained by the officer without any defiance of the law or any cavalier attitude towards Mr. Parmar’s rights, and therefore the evidence should be admitted.

[16] Although the illegal search of the vehicle led to a question in the judge’s mind as to the lawfulness of the search of Mr. Parmar personally, the trial judge found that this search that produced the knives was hardly an intrusive search when the officer simply asked Mr. Parmar if he had any more drugs or a weapon and Mr. Parmar produced the knives on his own.

[17] Given that the evidence was real and non-conscriptive and given the non-intrusive search of Mr. Parmar and what the trial judge considered to be the relatively minor nature of the breach of s. 8 in searching the vehicle without a warrant, he concluded that the admission of the knives would not bring the administration of justice into disrepute and he admitted them into evidence.

[18] On the appeal before me, Mr. Parmar challenges the finding that there was no breach of s. 9 in asking Mr. Parmar for his licence and registration, nor any breach of s. 10(b) in failing to honour his request for a lawyer. On appeal he also submits that there was a breach of his s. 8 rights in searching him personally without obtaining a warrant, resulting in the seizure of the knives.

[19] With respect to the trial judge’s application of s. 24(2), Mr. Parmar submits that while an appeal court should not readily second guess a trial judge’s finding on s. 24(2), it is a different situation when there was some apparent error as to the applicable principles or rules of law to apply, and in this case it is submitted there was a series of charter breaches indicating a deliberate, wilful, and flagrant violation of Mr. Parmar’s charter rights.

[20] On appeal the Crown concedes that the production of the knives was not as a result of a consensual search but should be considered as part of the police search of Mr. Parmar.

[21] The Crown also concedes initially in its statement of argument that the legality of the search of Mr. Parmar should be resolved against the Crown because a search during investigative detention without a warrant is justified only on reasonable safety concerns and the officer was never asked why he searched Mr. Parmar after finding the marihuana.

[22] However, later in it’s statement of argument the Crown submits on consideration of application of s. 24(2), that since the officer had directed both occupants of the vehicle in the first place to step out for “officer safety reasons”, it should be inferred that it was for the same reasons that the officer searched Mr. Parmar personally.

[23] On the hearing of the appeal before me the Crown seemed to resile somewhat from its concession in its statement of argument in submitting that when the officer asked Mr. Parmar whether he had any more drugs or a weapon, it should be inferred by the court that the officer did have a legitimate concern for his safety in searching Mr. Parmar.

Section 9-Arbitrary Detention:

[24] Mr. Parmar’s counsel submits that once the officer had no grounds related to traffic concerns or investigative concerns to ask Mr. Parmar for his driver’s licence, he had no right to ask Mr. Parmar for his registration and driver’s licence, and he therefore arbitrarily detained Mr. Parmar in asking for those documents in violation of his s. 9 rights. In his submission the requirement of s. 33 of the Motor Vehicle Act for Mr. Parmar to produce a licence for inspection on demand of a peace officer was not sufficient to give the officer here any authority to do so without cause, in violation of Mr. Parmar’s s. 9 rights.

[25] Counsel relies upon a decision of this court in R. v. Carlson, 2003 BCJ 1278, where the Crown also sought to rely on s. 33 to entitle the officer to stop the vehicle and ask for the documents. In that case it was found by the court that the officer stopped the vehicle not for the purpose of checking on registration and insurance documents, but pursuant to a criminal investigation, and there was no articulable cause for the detention for a criminal investigation.

[26] In my opinion the Carlson case is distinguishable. In the case before me there was no evidence before the trial court of any reason for the officer to ask Mr. Parmar for his licence and registration other than pursuant to the authority within s. 33, and that was the officer’s evidence at trial. In addition, Mr. Parmar’s vehicle was already stopped so it cannot be said that the officer stopped him pursuant to a criminal investigation. Carlson does not say that s. 33 cannot be resorted to when there is no apparent traffic infraction.

[27] I conclude that the trial judge did not make any error on this issue.

[28] There was another issue of arbitrary detention available to the accused at trial which was apparently not raised with the court, but which deserves consideration on this appeal.

[29] With the Crown concession that the search of the vehicle was a violation of Mr. Parmar’s s. 8 rights against unreasonable search or seizure, the marihuana found in the vehicle was illegally obtained.

[30] The discovery of that marihuana formed the basis for the detention of Mr. Parmar at the rear of the vehicle when the officer told him he was under investigation for possession of a controlled substance, marihuana.

[31] As a consequence that detention was arbitrary and in violation of s. 9 of the Charter.

Section 10(b)-The Right to Retain and Instruct Counsel Without Delay and to be Informed of that Right:

[32] Whether or not the detention was arbitrary and in contravention of s. 9 of the Charter, Mr. Parmar was entitled to be advised of his right to counsel pursuant to s. 10(b) of the Charter once he was detained.

[33] The officer’s evidence of whether he advised Mr. Parmar of his right to counsel and whether Mr. Parmar sought to exercise that right, must be reviewed in some detail. Although at trial Mr. Parmar’s counsel only submitted that Mr. Parmar had requested counsel, on the appeal he expands his submissions to include the issue as to whether the officer ever offered that right to Mr. Parmar.

[34] During his evidence in chief on the voir dire, the officer gave no evidence at all concerning advice to Mr. Parmar about his right to counsel, before he was searched.

[35] In cross-examination the officer referred to his notes where he had written “verbal charter and warning”. He was asked whether this indicated that he had told Mr. Parmar and his passenger about their right to a lawyer and his answer was “I don’t believe so”.

[36] Later in cross-examination the officer was again asked whether at any point in time he advised Mr. Parmar of his right to retain counsel. His answer then was that the Crown counsel report that he prepared, which was not put into evidence, said that he did, but from his own memory he could not recall saying “lawyer”.

[37] It was then pointed out to the officer that his notes and his report to Crown counsel mentioned s. 10(a) and (b), being the reference to the right to counsel, and the officer was asked if it was possible that he did charter and warn. To this he said “yes it is possible that I did”.

[38] It was then suggested to the officer that both Mr. Parmar and his passenger did in fact advise that they wished to speak to counsel, and reference was made to the officer’s report where it said “Cst. Cocks explained that he would be able to call a lawyer as soon as it was practicable”. It was suggested to the officer from this note that there was a response that Mr. Parmar wished to speak to a lawyer. The officer was asked if the note refreshed his memory and he said that it did, but he could not recall what “he” said.

[39] Finally, it was suggested to the officer that it was more than likely that there was some request and his answer to that was “that’s quite likely, yes”.

[40] The onus is on an accused to prove a charter breach on a balance of probabilities. The trial judge found that Mr. Parmar had not proven a charter breach in failing to honour his request for counsel, on a balance of probabilities, because the officer had only agreed in a vague way in cross-examination that the assertion of a request for counsel was likely, and this was not considered by the trial judge to be sufficient to persuade him that Mr. Parmar had satisfied the onus of proof.

[41] Again, the trial judge was not asked to deal with a submission that Mr. Parmar was not offered the right to retain and instruct counsel in the first place.

[42] The officer had originally said in his cross-examination that he did not believe that he told Mr. Parmar and his passenger about the right to a lawyer. This statement was made after the officer was referred to his note of “verbal charter and warning”.

[43] It was only later in cross-examination that the officer said that the report to Crown counsel indicated that he had, that he had no memory, but it was possible that he did.

[44] This was followed by a suggestion to the officer that Mr. Parmar had asked to speak to counsel and the officer’s evidence was that this was “quite likely”.

[45] The evidence that the officer gave of advising of the right to retain counsel was never better from the officer than “it was possible” after the officer had originally said that he didn’t believe that he had given this information.

[46] I do not have to conclude that Mr. Parmar satisfied the onus of proving on a balance of probabilities that he was never informed of his right to counsel because I conclude that Mr. Parmar satisfied the onus of proving on a balance of probability that his request for counsel was not honoured. The officer’s evidence of “quite likely” was enough to satisfy this onus.

Application of s. 24(2)-Bringing the Administration of Justice Into Disrepute:

[47] The trial judge said that the officer did not act in defiance of the law and was not cavalier about the defendant’s rights. However, he was only dealing with the admitted breach of s. 8 in searching the vehicle without a warrant and with respect to the search of Mr. Parmar personally that produced the knives, he considered that hardly an intrusive search when Mr. Parmar produced the knives on his own. Given that this evidence was real and nonconscriptive and given the relatively minor nature of the breach or breaches and given the nature of the challenged search itself he was persuaded that the admission of the knives into evidence would not bring the administration of justice into disrepute and he admitted them into evidence.

[48] With the Crown’s concession before me that the production of the knives should be considered as part of the search of Mr. Parmar, and not a consent search, and its concession that there is no evidence that the search itself was justified as part of the investigative detention of Mr. Parmar because the officer never gave evidence about safety concerns, and with my finding that Mr. Parmar’s detention was arbitrary and in violation of s. 9, being based upon the discovery of marihuana in the vehicle as a result of a breach of Mr. Parmar’s s. 8 rights, and with my finding that Mr. Parmar did request counsel which was not honoured, I consider that the conduct of the police evidences a cavalier and persistent disregard of the rights of Mr. Parmar, and the admission of the prohibited weapons into evidence would bring the administration of justice into disrepute. I consider it clear error on the part of the trial judge to conclude otherwise.

[49] Accordingly, I allow the appeal, set aside the judgment of the trial court and enter a verdict of acquittal in favour of Mr. Parmar.

“J. Truscott, J.”
The Honourable Mr. Justice J. Truscott

Citation:	*HMTQ v. Parmar,*
	2005 BCSC 1247