R. v. Nguyen Date:, 2015 BCPC 367

Citation: R. v. Nguyen Date: 20151204 2015 BCPC 0367 File No: 59188-C-2 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CUONG MANH NGUYEN RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: Paul Backhouse Counsel for the Defendant: Ian Donaldson, Q.C. Place of Hearing: North Vancouver , B.C. Dates of Hearing: September 5, 8, 9, 2014; October 20, 2015 Date of Judgment: December 4, 2015

[ 1 ] Mr. Nguyen is charged with three counts of possession for the purpose of trafficking of cocaine, heroin and methamphetamine and one count of simple possession of marijuana. He is asking the Court to exclude evidence pursuant to s. 24(2) of the Charter as a result an arbitrary detention and arrest, a failure to advise him of his right to counsel in a timely way following his initial arrest and unreasonable searches and seizures. The accused argues that there was a pattern of disregard for constitutionally protected rights which mitigates in favour of exclusion. [ 2 ] The search of Mr.

Nguyen, his passenger and his vehicle were warrantless as they were considered by the officers involved to be incidental to arrest. In these circumstances the onus is upon the Crown to establish a lawful arrest and that the searches were reasonable. [ 3 ] Mr. Nguyen was stopped for excessive speeding by members of the North Vancouver RCMP traffic

section on April 8 th of 2013. He was initially directed to pull over on the merge area between the on ramp to Highway 1 eastbound off of Lonsdale Avenue and the highway itself. The police approached the vehicle from the passenger side for safety reasons due to the proximity of the driver’s side of the vehicle to the highway. Cst. Shook asked for and was provided with a valid BC driver’s license for Mr. Nguyen and satisfied himself as to Mr. Nguyen’s identity. [ 4 ] Cst. Shook returned to his police vehicle and Mr. Nguyen got out and proceeded to the rear of his own vehicle.

It was understood that as he was being ticketed for excessive speed his vehicle would be impounded. Cst. Shook returned to speak to Mr. Nguyen to request that he move his vehicle from its position to the shoulder of the on-ramp to await impoundment. The Constable conceded that at that point Mr. Nguyen was free to leave the scene and he would not have stopped him had he done so. [ 5 ] Mr. Nguyen walked by the officer at the rear of his vehicle to get back into the driver’s seat at which point Cst. Shook made an olfactory observation of “fresh” (vegetative) marijuana coming from Mr. Nguyen. At that moment Cst.

Shook determined he would be arresting Mr. Nguyen and the passenger for possession of marijuana. [ 6 ] No odour of marijuana had been detected coming from the vehicle or from the accused or the male in the front passenger seat, Mr. Almodovar. There is no suggestion that any of the officers involved in this matter had any prior contact with or knowledge of Mr. Nguyen. [ 7 ] Cst. Shook testified that he has encountered both vegetative and burnt marijuana frequently over the course of his seven year career with the RCMP. He described the odour coming from Mr. Nguyen to be moderate.

He was approximately a foot and a half away from Mr. Nguyen. when he noted that odour. [ 8 ] Cst. Shook did not turn his mind to the amount of marijuana the accused or his passenger might possess. Cst. Shook did not articulate any grounds for the arrest of the passenger. [ 9 ] Cst Shook approached Cst. Schmidt and advised him both males were to be arrested for possession of marijuana. Cst. Schmidt acted on the advice of Cst. Shook and did not form his own grounds for the initial or subsequent arrest. [ 10 ] Once the accused’s vehicle had been moved, both Mr. Nguyen and his passenger got out. Cst.

Shook approached Mr. Nguyen and asked him how much marijuana he had “in the car”. Mr. Nguyen said he had “a couple of joints on him”. Cst. Shook immediately placed him under arrest for “possession” and Cst. Schmidt placed Mr. Almodovar under arrest for the same offence. Cst. Shook then asked Mr. Nguyen for his wallet and told him to put it on the roof of the vehicle. Mr. Nguyen seemed to hesitate so the officer told him not to bother and placed him in handcuffs. [ 11 ] Mr.

Nguyen was told he was “under arrest for possession of a controlled substance and that he can speak to a lawyer and that he doesn’t need to talk to the police because whatever he says we could use as evidence.” As Mr. Nguyen was being taken to the police vehicle the officer told him that if they only found marijuana cigarettes and no other illegal items no charges would be forwarded. [ 12 ] The officer then did a pat down search and located four marijuana cigarettes in Mr. Nguyen’s shirt pocket in a sealed plastic baggie. After Mr. Nguyen was placed in his police vehicle, Cst.

Shook noted the passenger’s purse on the roof of the vehicle. He picked it up and it “felt heavier than normal” and “reminded me of the weight of a pistol” so he unzipped it and saw a large bundle of cash. He went and found Mr. Nguyen’s purse which was on the driver’s seat and opened it. Inside he located three cell phones and a number of plastic wrapped small rocks of crack cocaine and methamphetamine and some larger bags of substances with a total weight of 35.08 grams. Some of the substances analyzed as heroin. He said he would have searched Mr.

Nguyen’s purse even if he had not seen the cash in the passenger’s purse. [ 13 ] As a result of these observations, Cst. Shook approached Cst. Schmidt and told him they were now going to arrest each of the males for possession for the purpose of trafficking. It was at this time that Mr. Nguyen was first given his Charter of Rights caution from the card. [ 14 ] The Constables determined that a police service dog should be used to search the vehicle and its contents. A canine unit arrived shortly thereafter and Mr. Nguyen and Mr. Almodovar were transported from the scene at the request of the handler.

Some personal items and three golf bags and a bag cart were unloaded onto the shoulder of the road. [ 15 ] The dog indicated drugs in a small container in the driver’s door pocket. It contained .85 grams of marijuana. A collapsible baton and a can of pepper spray were also located in that pocket. The dog showed interest in the front wheel area and vent on the driver’s side but did not indicate the presence of drugs. Another officer, Cst. Brissenden, searched the area of interest and located a bundle of cash in the amount of $4250.00 in an open compartment under the steering wheel.

The dog searched the items which had been removed and also indicated the drugs in Mr. Nguyen’s purse which had been observed by Cst. Shook earlier.

[ 16 ] The golf bags were then searched by the officers. Six bags of heroin weighing 170 grams in total were wrapped in paper towel in a pocket. A jar with 4.75 grams of marijuana was found in another bag. [ 17 ] The vehicle was towed to the RCMP detachment. Cst. Schmidt met the vehicle in the secure bay and performed a cursory search. He was aware the dog had shown interest in the front vent area. He noted what appeared to be pry marks under each of the front air vents. In his experience, these were consistent with the removal of the vents in order to hide items inside the vent area.

He sought the advice of a Sergeant and obtained the name of a Canada Borders Services member, Mr. Vogt, who had expertise in hidden compartments in vehicles. Mr. Vogt was contacted and attended the detachment on April 9 th and conducted a search of the vehicle. [ 18 ] The search revealed a black satchel hidden inside a vent which contained a total weight of 18 grams of crack cocaine, methamphetamine and heroin. Issues [ 19 ] As noted above, it falls to the Crown to establish a lawful arrest.

The Crown must also establish the reasonableness of the warrantless searches which they say were incidental to that arrest. [ 20 ] Mr. Nguyen says that he was arbitrarily detained when the officer directed him to move his vehicle. The grounds the officer formed to arrest him, being the odour of vegetative marijuana emanating from his body, did not constitute reasonable and probable grounds and if those grounds are found to be reasonable, they were insufficient to make his arrest without warrant reasonable.

He also says the Court should take into consideration that the officer had no grounds to believe the passenger possessed marijuana. [ 21 ] The officer failed to properly advise Mr. Nguyen of his right to counsel under s. 10(

a) and (

b) upon his detention and continued to fail to do so even after his arrest. While detained the officer asked questions of Mr. Nguyen which elicited evidence from him prior to providing him with his s. 10 rights and the police caution. [ 22 ] The accused also says that the warrantless searches of his vehicle and its contents at roadside and later at the detachment were not incidental to arrest specifically because the odour of marijuana did not emanate from the vehicle.

Grounds for a Lawful Arrest and Arbitrary Detention [ 23 ] The sole ground for arrest was the odour of vegetative marijuana emanating from the accused which was detected as he was being asked to move his vehicle. Whether the odour of marijuana alone is sufficient to provide reasonable and probable grounds for an arrest is dependent on the facts of each case. (see: R. v. MacCannell, 2014 BCCA 254 paras 34 to 43 ) [ 24 ] I find that Mr. Nguyen was detained from the time he was directed to move his vehicle and that the detention was not authorized by law.

I find as a fact that the grounds for his arrest were formed at the same moment the detention commenced. In the result, the grounds to arrest were not formed during an unlawful or arbitrary detention but rather coincident with the commencement of the detention. [ 25 ] The sole purpose for the detention was to address a legitimate concern for the safety of the public, the safety of the accused and his property, the safety of the officers on scene and the safety of the person who would be called to tow the vehicle. It was intended by the officer to be momentary.

The officer had not yet issued a ticket or notice of impoundment. The formation of the officer’s grounds did not negate the safety issues presented by the position of the vehicle. I find the unlawful detention was not arbitrary as it was done for a reasonable and valid purpose. I do not find there was a breach of the right of the accused not to be arbitrarily detained as protected by s.9 of the Charter . [ 26 ] Cst. Shook had been provided with the opportunity to smell vegetative marijuana during his training.

He has encountered vegetative marijuana frequently in the course of his duties and in particular when working on bicycle patrol. I find he was sufficiently familiar with the odour of marijuana to have been able to identify it coming from the person of the accused as he passed closely by him. He had not noted any odour when at the window on the passenger side of the vehicle. Thus, his inference that Mr. Nguyen had marijuana on his person was reasonable one. I find that he held the subjective belief that Mr.

Nguyen was in possession of marijuana and that his belief was objectively reasonable. [ 27 ] It was argued that the officer’s evidence of his olfactory observation should not be given weight. In particular because the proposition that the officer would be able to smell four marijuana joints in a baggie in the accused shirt pocket is untenable. However, there is no evidentiary basis for rejecting his evidence that he could detect the odour or to raise a doubt about his veracity in this regard.

Although the exhibit when produced in court no longer emitted a noticeable odour, a period of 17 months had passed since its seizure. Whether the baggie and its contents would have been emitting an odour at the time of the incident would depend on when the joints had been rolled and placed in the baggie and whether the baggie had recently been in contact with vegetative marijuana or with the hands of the person who rolled the joints. Given they were found in his shirt pocket, it is reasonable to conclude that the joints were recently prepared and were intended to be consumed by Mr.

Nguyen that day. [ 28 ] In assessing the credibility and reliability of Cst. Shook, I have considered Cst. Shook’s evidence that despite detecting the odour of marijuana only from Mr. Nguyen and his statement that he had marijuana on his person as opposed to in the vehicle, the officer had in his mind that there would be marijuana in the vehicle.

I find that this reveals only that the officer was intending to search the vehicle incident to arrest. [ 29 ] I further find that the officer was not required to rule out any other possible explanation for why there might have been an odour of vegetative marijuana on the person of Mr. Nguyen such as having a prescription for or license to produce marijuana. (see: R. v. Jir,

2010 BCCA 497 and MacCannell at paras 44 to 47) [30] Whether the amount of marijuana Mr. Nguyen may have possessed on his person was over or less than 30 grams is not relevantto the issue of whether Cst. Shook had the power to arrest him pursuant to s. 495 of the Criminal Code. The officer’s belief was that theoffence of possession was occurring at the time. Thus, he was dealing with circumstances to which s. 495 (1) (

b) applies and need nothave turned his mind to whether the offence was one which may have been indictable. (See: MacCannell supra at paras 19 to 33) [31] I find Mr. Nguyen’s arrest for possession of marijuana to have been based on reasonable and probable grounds and lawful underthe provisions of the Criminal Code. [32] I find on the evidence that there were no grounds to detain or arrest Mr. Almodovar and his detention and arrest for simplepossession of marijuana was unlawful and in violation of his rights under s. 9. Right to Counsel [33] As the officer failed to appreciate he was detaining Mr.

Nguyen when he asked him to move his vehicle, he did not advise himof the reason for that detention or his legal rights at that moment. Immediately after the vehicle was moved the officer confronted andbegan questioning Mr. Nguyen about his belief that he was in possession of marijuana. In doing so I find he failed in his duty to refrainfrom attempting to elicit evidence from the accused before he had been provided with the informational component of his right to contactlegal counsel, before being given an opportunity to contact counsel or to meaningfully waive his right to contact counsel. Mr.

Nguyenwas then arrested for “possession” and the officer chose to provide the accused with inadequate information about his right to counsel. [34] There were no pressing or exigent circumstances preventing the officer from fully advising the accused of his s. 10 (

a) and (b)legal rights at that time. I find that Cst. Shook failed to provide Mr. Nguyen with his rights without delay after his arrest. Search Incidental to Arrest [35] The limits of the common doctrine of search incidental to arrest are addressed in R. v. Caslake (SCC), [1998]1 SCR 51 at paras 13 to 25. Such a search will be authorized at law if it follows upon a lawful arrest and is for a valid objective trulyincidental to the arrest in question, in this case being the discovery of evidence relating to the possession or trafficking of drugs.

Thepolice need not obtain a warrant or have reasonable or probable grounds to believe evidence will be found or establish that exigentcircumstances existed. Vehicles are legitimate objects of search incidental to arrest. There are no strict time limits on the amount of timethat can elapse between the arrest and search of a vehicle. [36] Cst. Shook conducted a pat down search of Mr. Nguyen following his arrest and located the four joints in his shirt pocket. Thissearch was properly undertaken incidental to what I have found to be a lawful arrest. As noted above, I infer from Cst.

Shook’s questionto the accused prior to his arrest that he intended to search the vehicle incidental to that arrest. [37] Cst. Shook turned his attention to the vehicle and first searched the purse apparently belonging to or in the possession of thepassenger, Mr. Almodovar. He said he would not have done so in the usual course as he was not dealing with the arrest of that person. He gave no reason for doing so except for seeing it on the roof of Mr. Nguyen’s vehicle. He opened it only because of his curiosityabout the weight of the contents.

I find it was unreasonable for him to have concluded the weight was consistent with a hand gun giventhat at that time he was dealing only with the simple possession of four joints of marijuana. I have already found the officer had nogrounds at that time to believe that Mr. Almodovar was in possession of marijuana. The evidence relating to violations of the rights ofMr. Almodovar is relevant to the analysis which will be undertaken later with respect to the application of s. 24(2). [38] Cst. Shook testified he would have searched the purse which had been in the possession of Mr.

Nguyen regardless of what hefound in the purse of Mr. Almodovar and I accept his evidence in this regard. I find his sole motive was to find evidence of possessionof marijuana and the search was properly conducted incidental to the arrest for possession of marijuana. [39] The search of the purse of Mr. Nguyen gave rise in the officer’s mind to reasonable and probable grounds to arrest Mr. Nguyenfor possession of cocaine and/or methamphetamine for the purpose of trafficking.

Leaving aside the observation of the contents of Mr.Almodovar’s purse, I find the officer nevertheless had reasonable and probable grounds to arrest Mr. Nguyen for possession for thepurpose of trafficking (PPT) based on the contents of his own purse. [40] Mr. Nguyen argues that the police were not justified in searching the vehicle as there was no odour of marijuana emanatingfrom the vehicle. However, only the purses of the accused and his passenger had been searched incidental to the arrest for possession ofmarijuana.

The further searches of the vehicle were incidental to the arrest for PPT of cocaine and methamphetamine and the lack ofodour of marijuana from the vehicle was no longer relevant. [41] The officer returned to his police vehicle and advised Mr. Nguyen he was under arrest for PPT and promptly provided him withhis s. 10 (

a) and (

b) rights from a police issued card.

[ 42 ] Having found the drugs in amounts and packaging consistent with trafficking, a police service dog unit and back up officers were promptly brought to the location of the stop and arrest to conduct a further search for drugs in the vehicle and the golf bags and other personal property in the vehicle. The sole motive for this search was to find evidence of the possession of or trafficking of drugs. I find the roadside search of the vehicle and its contents to have been properly conducted incidental to the arrest of Mr. Nguyen for PPT. [ 43 ] The vehicle was towed to the RCMP detachment in North Vancouver.

Cst. Schmidt conducted a cursory search and noted the tool marks around the front air vents. Based on his training and experience he believed the vents had been removed which was consistent with using the space behind them to hide drugs. He was also aware the dog had shown interest in the front vent area on the driver side of the vehicle. I find his belief that there may have been more drugs hidden behind the vents was a reasonably held one, was directly connected both spatially and temporally to the arrest of Mr.

Nguyen for PPT and was the sole reason he pursued a further search of the vehicle. [ 44 ] In Caslake at para 24 the Court said: “The temporal limits on search incident to arrest will also be derived from the same principles. There is no need to set a firm deadline on the amount of time that may elapse before the search can no longer be said to be incidental to arrest. As a general rule, searches that are truly incidental to arrest will usually occur within a reasonable period of time after the arrest.

A substantial delay does not mean that the search is automatically unlawful, but it may cause the court to draw an inference that the search is not sufficiently connected to the arrest. Naturally, the strength of the inference will depend on the length of the delay, and can be defeated by a reasonable explanation for the delay.” [ 45 ] Cst. Schmidt promptly obtained advice from a senior officer and contacted a person with expertise in locating hidden compartments in vehicles used for transporting illegal substances. That person was not available to attend to the detachment that day and attended the next day. Cst.

Schmidt did not believe it would be appropriate for him to undertake a search of the vehicle which might cause unnecessary damage to the vehicle. I find that the explanation for the delay in executing that search is a reasonable one. (see: R. v. Nolet 2010 SCC 24 and R. v. Munroe 2005 BCCA 610 ) [ 46 ] I find the fact that the vehicle was subject to impoundment pursuant to the provisions of the Motor Vehicle Act in no way limited the lawfulness of the continued search of the vehicle incidental to the arrest of Mr. Nguyen.

Given the amount of drugs and money found at the roadside, I find the towing of the vehicle to the detachment to continue to search it was reasonable in all the circumstances. Exclusion of Evidence under s. 24(2) [ 47 ] In R. v. Reddy, 2010 BCCA 11 at paras 91 to 94 the approach set out in R. v. Grant , 2009 SCC 32 was summarized: [91] The Grant factors are succinctly stated at paragraph 71 of that decision.

In deciding whether to admit or exclude evidence, a court must now assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct); (2) the impact of the breach on the Charter - protected interests of the accused (admission may send the message that individual rights count for little); and (3) society’s interest in the adjudication of the case on its merits.

See also: Harrison at para. 2 [92] With respect to the first factor—seriousness of the breach—the greater the level of state misconduct, the greater will be the need of the courts to disassociate themselves from that conduct. Wilful or reckless disregard for Charter rights will, therefore, tend to support exclusion: paras. 71-74. Further, as the Chief Justice and Charron J. noted (at para. 75): “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.

However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: [citations omitted]. [93] As for the second factor—impact of the breach on the accused—it was observed that “[t]he impact of a Charter breach may range from fleeting and technical to profoundly intrusive”.

The more serious the impact is on the rights of the accused, the more likely it will be that exclusion is warranted: paras. 76, 77. [94] The last factor—society’s interest in a decision on the merits—involves the question of “whether the truth seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”: para. 79. The reliability of the evidence is an important consideration, as is the importance of the evidence to the truth-seeking function of the trial.

Although “seriousness of the offence” remains a consideration, it has far less importance than under the Collins / Stillman framework, because s. 24(2) focuses on the long-term implication for the repute of the administration of justice, and not the public’s short-term desire for a conviction: para. 84.

[ 48 ] I agree with the submissions of Mr. Nguyen that Cst. Shook and Cst. Schmidt conducted their initial investigation in a somewhat unsophisticated manner and apparently without fully appreciating the duty to ensure Mr. Nguyen’s and Mr. Almodovar’s legal rights were observed. The lapses in the execution of their duty to observe the constitutional rights of Mr. Nguyen were not willful or deliberate or undertaken in bad faith.

Furthermore, the actions of the officers which failed to meet constitutional standards occurred when the officers were dealing with what they thought was a minor offence of simple possession of marijuana for which they were not intending to forward charges. [ 49 ] Nevertheless, the initial arrest of Mr. Almodovar for possession of marijuana was a flagrant breach in the sense that it was entirely without reasonable grounds or even reasonable suspicion.

The search of his purse incident to that unlawful arrest was also invalid and unreasonable. [ 50 ] As I have already found that the initial arrest was lawful and based on reasonable grounds, the pattern of disregard for Mr. Nguyen’s personal rights involves the brief unlawful detention which occurred during the time it took for him to move his vehicle. I have not found this to be an arbitrary detention or a breach of his s. 9 rights. I find that although this was unlawful, it was conduct which was justified in the circumstances. [ 51 ] I have not found that the grounds for Mr.

Nguyen’s detention for possession of marijuana arose during that brief unlawful detention. Even if I am wrong and those grounds were formed during the initial moments of a justified detention, those grounds still existed once the vehicle had been moved and the officer was again face to face with Mr. Nguyen who still had the marijuana in his shirt pocket. [ 52 ] The conduct of Cst. Shook in eliciting self-incriminating evidence from Mr. Nguyen when he did was a clear breach of his s.7 rights which was acknowledged by the officer. Cst. Shook also violated Mr. Nguyen’s rights under s. 10(

a) and (

b) by failing to provide the informational component of his right to counsel without delay. [ 53 ] I find the initial groundless arrest of Mr. Almodovar and the search of his purse, the comment and question asked of Mr. Nguyen prior to his initial arrest were state and failure to promptly advise him of his s. 10 rights were actions which infringed Charter protected interests. They represent serious state misconduct. [ 54 ] With respect to the arrest of Mr. Almodovar and search of his purse there was no impact on this accused other than the observation of a large amount of cash in the purse.

This observation formed part of the reasonable and probable grounds to re-arrest for PPT. The officer would have and did search the purse of Mr. Nguyen and the contents of his purse alone were sufficient to provide reasonable grounds to re-arrest him for PPT. I do not find that this breach had a serious impact on the Charter protected interests of Mr. Nguyen. [ 55 ] There was also no serious impact on the accused’s interests as a result of the unlawful questioning of him prior to being provided with his full s. 10 (

a) or (

b) information once he was re-arrested for PPT. [ 56 ] The exclusion of the evidence of the observations of the contents of Mr. Almodovar’s purse and the statement of Mr. Nguyen made in response to the comments of Cst. Shook prior to arrest but while detained will not impact society’s interests in the adjudication of this case on its merits. [ 57 ] Having assessed and balanced the effect of admitting the evidence on society’s confidence in the justice system having regard to the factors set out in Grant , I find the evidence of the observations of the contents of Mr.

Almodovar’s purse and the conversation in question must be excluded from evidence. The balance of the evidence obtained during the searches of the purses, vehicle and personal property in the vehicle is admissible. _____________________________ The Honourable J.C. Challenger Provincial Court Judge