R. v. Russell Date:, 2017 BCPC 431

Citation: R. v. Russell Date: 20171129 2017 BCPC 431 File No: 34319 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DENNIS JAMES RUSSELL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Crown: A. Pace Counsel for the Defendant: T. Zipp Place of Hearing: Williams Lake , B.C. Date of Hearing: September 18, 19 & 21, 2017 Date of Judgment: November 29, 2017 [ 1 ] T his is my ruling at the conclusion of a voir dire held during the trial of Dennis James Russell on charges of possessing a pistol

and ammunition while prohibited from doing so and possession of a weapon in breach of a recognizance, contrary to ss. 117.01(1) and 145(3) of the Criminal Code , respectively. [ 2 ] The issues are: 1. Did the police violate Mr. Russell’s s. 8 Charter right to be free from unreasonable search and seizure when they located and seized the handgun and ammunition during a warrantless search of his pick-up truck? And, 2. If Mr.

Russell’s s. 8 right was violated, should the evidence located during the search - which includes the hand gun and ammunition - be excluded from the evidence considered at trial pursuant to s. 24(2) of the Charter? [ 3 ] For the reasons which follow I have decided that the police action in this case did not violate Mr. Russell’s Charter rights. The Evidence [ 4 ] On June 22 nd , 2016 at about 10:30 in the morning, two members of the R.C.M.P., Cst. Colby Hendrickson and Cst.

Kevin Neufeld, were walking through the Safeway parking lot in Williams Lake, B.C., on their way to pick up a cup of coffee at the Starbucks outlet located within the Safeway building. Both men were on duty and in uniform. They had been travelling in a marked police vehicle which they had parked further up the parking lot. [ 5 ] As they were walking down through the parking lot towards the store, Cst. Hendrickson noticed a green pick-up truck parked to his left, pointed towards him.

As he walked past the front of the vehicle, he was able to see a sticker in the back window of the truck, facing towards the rear of the vehicle that read “Fuck Off!” He testified “…I immediately recognized the truck and knew it to be driven by Dennis Russell.” He noted a heavy set male in the driver’s seat with a goatee and a shaved head who he believed was Mr. Russell though he was “not 100% sure”. [ 6 ] Cst. Hendrickson knew there was a warrant outstanding for Mr. Russell for breach of a court order. He immediately veered off to the left and went up to the driver’s side window of the green truck.

His decision was made so quickly that he did not even let his partner, Cst. Neufeld, know what he was doing. [ 7 ] Cst. Hendrickson testified that “…there were a couple of things going on in my head” as he approached the window of Mr. Russell’s truck. There was the outstanding warrant that he knew about and intended to act upon. As well, he had received information through police sources that Mr. Russell may have a loaded handgun on his person: “So I guess my reaction was quick under the circumstances because there was an urgency. I felt this urgency to get there quickly.” [ 8 ] Cst.

Hendrickson went directly to the window of the green pick-up and asked the man behind the wheel “Are you Dennis Russell?” The man answered in the affirmative. Hendrickson told Mr. Russell there was a warrant for his arrest and to step out of the vehicle. Mr. Russell was initially reluctant to get out. Hendrickson again told him that he was under arrest. Hendrickson opened the door of the truck and took Russell’s left arm. Mr. Russell then stepped out of the vehicle. [ 9 ] Cst. Hendrickson handcuffed Mr. Russell’s arms behind his back. This required a bit of manoeuvring as Mr.

Russell is a big man and it was necessary to use two sets of handcuffs linked together to reach between his wrists. During this process, the driver’s door of the green pick-up remained open and Hendrickson noted a sleeve or sheath of knives by the 4 x 4 shifter. He testified “at the time I didn’t make anything of it.” [ 10 ] As Cst. Hendrickson escorted him to the police vehicle Mr. Russell asked what the arrest warrant was for. Hendrickson said he believed it was for a breach. At the police vehicle Hendrickson placed Mr. Russell in the rear seat. He pulled out his “Charter card” and spoke to Mr.

Russell through the open window and advised him again, pursuant to s. 10(

a) of the Charter, that he was under arrest pursuant to a warrant for his arrest issued as a result of an alleged breach of the conditions of his undertaking or recognizance. It is admitted that this alleged breach of undertaking is unrelated to the possession of weapons. [ 11 ] I will refer to this as “the first arrest”. [ 12 ] Cst. Hendrickson also advised Mr. Russell of his s. 10(

b) Charter right to counsel as well as the ‘police warning’ or right to silence. According to his notes, this took place at 10:37 hours. [ 13 ] Cst. Hendrickson then got hold of dispatch and confirmed that his memory was correct and that there was, in fact, an active warrant for the arrest of Mr. Russell for an alleged breach of undertaking or recognizance. [ 14 ] During his conversation with the dispatcher, Cst. Hendrickson learned that Mr. Russell was also on conditions not to be in possession of a weapon as defined in s. 2 of the Criminal Code .

He recalled the sleeve or sheath of knives he had seen in the cab of Mr. Russell’s pick-up truck. He walked back over and looking into the driver’s side of the truck, confirmed that “there appeared to be 3 knives in a sheath by the 4 x 4 stick.” He testified that the knives were positioned such that they would be beside the right knee of anyone occupying the driver’s seat. [ 15 ] After some hesitation as to the order of events, and after refreshing his memory from his notes, Cst. Hendrickson testified that his next step was to return to the police vehicle where he advised Mr.

Russell that because of the knives in the cab of the truck, he was also under arrest for breaching the ‘no weapons’ term of his undertaking or recognizance. [ 16 ] I will refer to this as the “second arrest”. [ 17 ] During their interaction at the scene, Mr. Russell told Cst. Hendrickson that his female passenger, Ms. Murphy, was currently in the store, shopping. He requested that she be permitted to take charge of the green pick-up truck along with Mr. Russell’s dog which

had been sitting in either the back of the cab or in the box of the truck at the time Mr. Russell was arrested. It is my understanding thatthis request, as it concerned the disposition of the truck and the dog, was honoured by the police sometime later in the day when Ms.Murphy was permitted to drive the truck and the dog home. [18] After the second arrest, Cst. Hendrickson requested that another officer, Cst. Klassen, attend for the purpose of transporting Mr.Russell back to the detachment where he was lodged in cells. Cst. Hendrickson and Cst.

Neufeld remained with the green pick-up truckand Hendrickson proceeded to conduct a search of the vehicle while Neufeld maintained scene security. [19] Cst. Hendrickson testified that while it would not have been beyond the realm of possibility to have sought a search warrant forMr. Russell’s vehicle, from his knowledge of his “search authorities”, it did not cross his mind to apply for a search warrant for thevehicle. Elsewhere he testified that “…incidental to arrest I was going to search [the vehicle]….” [20] After taking some photographs of the green truck and its contents, Cst.

Hendrickson began his search on the driver’s side of thecab. He seized the sleeve or sheath of 3 knives. At one point in his evidence, he described these as “throwing knives”. [21] He went next to the passenger side of the cab where he noted a green or yellow object clipped to the edge of the cup holder. Heseized this believing it to be a retractable knife of some kind. Later, at the detachment, he discovered that the blade was spring loaded,making this object a so-called “switchblade” knife that falls within the definition of “prohibited weapon” found in s. 84 of the CriminalCode. [22] Cst.

Hendrickson then turned his attention to the rear compartment of the cab. He observed a black back pack with severalzippered pockets located directly behind the driver’s seat. He unzipped one of the front pockets and observed a can with a plastic lid. He removed the lid of the can and found a controlled substance inside the can. He decided that it would be better to postpone the searchof the contents of the back pack until he was back at the detachment in a more controlled environment, so he zipped the pocket closedand seized the back pack. [23] Cst.

Hendrickson’s next step was to unlatch the front hood of the pick-up truck and look in the engine compartment. Heobserved a small black bag or sack taped to some wires near the back of the engine compartment. He unzipped the bag and observed 18rounds of .45 calibre ammunition along with a red hand towel that had been folded and roughly taped so as to form a soft pouch. Heagreed with the suggestion that this was of a shape and size suitable for storing a handgun and acknowledged that when he first locatedthe red towel he believed that it had been used for that purpose at some earlier point.

He seized the black bag and its contents. [24] Cst. Hendrickson’s final step was to climb into the box of the pick-up truck and open up a large, silver tool box. Inside, sittingon the floor of the tool box in between some other items, he located a small bag with an apple motif on it. He noticed that the bag wasvery heavy. He unzipped the bag and found a set of heavy brass knuckles inside. He seized the ‘apple bag’ and the brass knuckles. [25] This concluded Cst. Hendrickson’s search of the vehicle. [26] About 4 hours later, back at the detachment, Cst.

Hendrickson searched each of the zippered pockets of the black back packseized from behind the driver’s seat. The items he found included a black balaclava and a pair of gloves, some men’s clothing andtoiletries, some documents with the name “Dennis Russell” on them, and a .45 calibre handgun with 4 live rounds in the magazine (thechamber was empty). The Law [27]

Section 8 of the Canadian Charter of Rights and Freedoms guarantees everyone the right “to be secure against unreasonablesearch or seizure.” [28] The search of Mr. Russell’s pick-up truck and back pack was done without warrant. Therefore, on this voir dire the Crownbears the burden of establishing on the balance of probabilities that the search was reasonable: R. v. Collins, (SCC),[1987] 1 S.C.R. 265. [29] The law defines a “reasonable” search as one that is (

a) authorized by law - either statute or common law; (

b) where the lawitself is reasonable; and (

c) where the search is carried out in a manner that is reasonable: see R. v. Collins, supra. [30] Counsel agree that the leading authority is R. v. Caslake, (SCC), [1998] 1 S.C.R. 51. I have also consideredthe following decisions (those marked with an asterisk were cited by counsel): Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158 R. v. Storrey, (SCC), [1990] 1 S.C.R. 241* R. v. Smellie (1994), (BC CA), 53 B.C.A.C. 202; appeal dismissed by S.C.C. without reasons [1995] S.C.C.A. No. 64 R. v. Belnavis (1996), (ON CA), 91 O.A.C. 3; upheld on appeal (SCC), [1997] 3 S.C.R. 341 R. v. Adams, 2006 BCPC 8* R. v.

Condon, 2006 BCCA 318* R. v. Grant, 2009 SCC 32 R. v. Harrison, 2009 SCC 34 R. v. Nguyen, [2009] O.J. No. 4564 (ONSC)*

R. v. Heatley, 2015 BCCA 350 * R. v. Pelucco, 2013 BCSC 588 *; upheld on appeal 2015 BCCA 370 [ 31 ] In R. v. Caslake , the accused’s vehicle was stopped and he was arrested for possession of marijuana. The police searched the vehicle 6 hours later without a warrant in order to inventory the contents of the vehicle. In the course of this search, they discovered evidence tending to show that the accused was involved in the trafficking of marijuana as well as cocaine.

The Crown sought to justify the warrantless search of the vehicle as a search incident to arrest. [ 32 ] In their decision, the Supreme Court of Canada took the opportunity to clarify the principles governing the common law power of search incident to arrest. Justice Lamer, writing for the majority, commented that this common law power: “…is an exception to the ordinary requirements for a reasonable search … in that it requires neither a warrant nor independent reasonable and probable grounds. Rather, the right to search arises from the fact of the arrest.

This is justifiable because the arrest itself requires reasonable and probable grounds (under s. 494 of the Code) or an arrest warrant (under s. 495).” See para. 13. [ 33 ] There are important limits on this common law power. [ 34 ] The search must be truly incidental to the arrest. This means that the police must be attempting to achieve some valid purpose connected to the arrest.

Justice Lamer identified the following three valid purposes for a search incident to arrest: 1. to ensure the safety of the police and public; 2. to protect evidence; and 3. to discover evidence of the offence for which the accused is being arrested. See paras. 19 and 22. [ 35 ] I would pause here to say that the limits on this third purpose - “to discover evidence” - were well expressed in the decision of Justice Doherty in the earlier case of R. v.

Belnavis: “…A search can only be said to be incidental to an arrest if it serves some purpose referable to the arrest….The authority to search as an incident to arrest does not extend to searches undertaken for purposes which have no connection to the reason for the arrest .” [emphasis added] [ 36 ] Returning to Caslake, Justice Lamer commented that there were subjective and objective aspects to assessing the police purpose for conducting a search incident to arrest. Subjectively, an officer must have one of the three valid purposes in mind when conducting the search.

And, the officer’s belief that this purpose will be served by the search must be a reasonable one when objectively assessed by the court. See para. 19. [ 37 ] With respect to the search of a vehicle incident to arrest as occurred in the case at bar, Justice Lamer commented that “…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 arrest, and other relevant circumstances.” See para 23. [ 38 ] Finally, Justice Lamer commented that while the police do not need independent reasonable and probable grounds to justify a search incident to arrest, they are still required to have some “reasonable basis” related to the arrest for conducting the search in the way that they did. See paras. 20 and 25. [ 39 ] R. v.

Adams is an example of a case where the purpose of the police in conducting the search was not one of the three valid purposes required to qualify it as a search incident to arrest. The accused, Adams, and his female passenger were seen driving on the streets of Vancouver. The police knew there was a warrant outstanding for Adams in relation to an old break and enter investigation. They also knew that the female passenger was subject to a “no contact” order as it concerned the accused. They stopped the car, and arrested and secured both Adams and his passenger.

They immediately conducted a search of the vehicle during which they located a safe, a key to the safe and a cell phone. They looked at certain messages on the cell phone. Based in part on the evidence obtained from their warrantless search of the vehicle and the cell phone, the police then sought and obtained a search warrant for the safe where drugs, guns and a postal key were found. At trial the validity of both the warrantless search of the vehicle and the subsequent search warrant for the safe were challenged. [ 40 ] Judge F.E.

Howard found that the search of the vehicle was not a valid search incident to arrest. Adams was arrested on a warrant for a break and enter that had happened many months earlier. The officer sought to justify his search of the vehicle under the third of valid purposes identified in Caslake : “to discover evidence of the offence for which the accused is being arrested” but was unable to say why he thought that evidence related to the break and enter might possibly be located in the vehicle seven months after the offence. See para. 31.

Thus, the search was not “truly incidental” to the arrest of the accused because there was no reasonable prospect of securing evidence related to the break and enter offence. Judge Howard concluded that the officer’s real purpose in searching Adams’ vehicle was to find evidence of drug dealing, an offence quite unrelated to the break and enter offence for which he had been arrested. [ 41 ] Judge Howard went on to find that the search warrant for the safe located during the warrantless search of the car was invalid. The evidence was excluded under s. 24(2). [ 42 ] R. v.

Nguyen is another case in which the court found that the purpose of the search did not fall within one of the three valid purposes for a search incident to arrest. Nguyen and two passengers were driving in a vehicle in Vaughan, Ontario. The police conducted a routine traffic stop and discovering that Nguyen’s license was suspended for unpaid traffic fines, they arrested him. In a pat down search incident to arrest, they located some ecstasy tablets and arrested Nguyen for possession of a controlled substance. The

court concluded that to this point, the police were acting within the law. In fact, the arrest of Nguyen for possession of the ecstasy pills could have justified a search of the vehicle to discover drugs under the common law power of search incident to arrest. See para. 178. [ 43 ] However, that is not what occurred. Instead, without advising Nguyen of his right to counsel or right to silence, an officer questioned him about what was in the trunk of the car. Nguyen blurted out that there was “a half pound of weed” in the trunk.

The police then searched the vehicle and found the marijuana along with other drugs and an unloaded handgun. The court concluded the search violated Nguyen’s s. 8 rights because it was not truly incidental to the arrest of Nguyen. It was not done for the purpose of discovering evidence of one of the offences for which he had been arrested (driving while suspended and possession of ecstasy). Instead the court found that the search of the vehicle was done for the purpose of locating the marijuana Nguyen had admitted to possessing. [ 44 ] On an s. 24(2) analysis, the evidence located in the vehicle was excluded.

The court’s finding that the police committed successive breaches of Nguyen’s s. 8 , 9 and 10 Charter rights was a key consideration in the court’s decision to exclude the evidence. [ 45 ] The trial decision in R. v. Pelucco, 2013 BCSC 588 is cited. The facts of this case are complicated, involving the warrantless search of the vehicle and back pack of one Manjit Guray, his arrest for certain offences and the search of his cell phone which, in turn, led the police to the accused, Pelucco. The Crown attempted, unsuccessfully, to argue that the search of Guray’s cell phone was a valid search incident to arrest.

The case is cited partly for the requirement found at paras. 70 to 73 that a search of a place or thing incident to arrest cannot be justified unless there is some “reasonable prospect” that evidence relating to the offences for which the subject was arrested will be located.

This is the same point that is made in Caslake at para. 22 . [ 46 ] Pelucco is also cited for the proposition, summarized at paragraphs 23 and 24 of the appellate decision ( 2015 BCCA 370 ), that where the arrest of an individual is based on unlawful search and seizure of a vehicle and back pack, there can be no lawful search incident to such arrest. Analysis A. Credibility of Cst. Hendrickson [ 47 ] The Crown argues that Cst. Hendrickson’s search of Mr. Russell’s green pick-up truck was authorized by the common law power of search incident to the constable’s “second arrest” of Mr.

Russell for the offence of breaching the “no weapons” term of his undertaking or recognizance by possessing knives. [ 48 ] Cst. Hendrickson’s credibility was challenged on a number of points during cross examination, including whether this “second arrest” ever actually took place prior to the search of the vehicle. [ 49 ] In his initial recounting of events on examination in chief, Cst. Hendrickson did not mention the second arrest. He spoke of receiving the information from the dispatcher about a “no weapons” term, of walking back over to Mr.

Russell’s truck and confirming his recollection that he had seen 3 knives in the cab. His next words were: “So I let Neufeld [know] we would be searching the vehicle for weapons.” [ 50 ] He then went on to talk of getting a camera from his vehicle, making some notes and then going back to the green truck and starting to take photographs before commencing the search. [ 51 ] Testifying from memory, he could recall arresting Mr.

Russell later in the day, back at the detachment, for possession of weapons located during the search of the vehicle and the back pack but he could not recall conducting the second arrest, at the scene, prior to the search. After reviewing his notes he corrected himself and said the sequence of events was as follows: “After reviewing my notes, I would have went back to Mr. Russell when he was in the truck and let him know about the breach for knives… Mr.

Russell was already in the back of my police truck when I went back to him and let him know of the breach and the sequence of events after that is Klassen came and picked up Mr. Russell and then the search of the truck commenced after that.” [ 52 ] On cross examination it became evident that while Cst. Hendrickson’s notes documented the second arrest, the time he had noted, 10:35 hrs, made no sense given that the first arrest was noted as having occurred at 10:36 hrs. After considering this for a few moments Cst.

Hendrickson offered the following explanation: “It appears I made a mistake and possibly wrote down the wrong time.” [for the second arrest] [ 53 ] Cst. Hendrickson’s evidence was also challenged because of his claim that he could see the distinctive sticker in the rear window of the green truck when he first walked by the front of the vehicle even though it is not visible in the photograph he later took from that same perspective (see Exhibit A, photo 2). [ 54 ] I have listened to Cst. Hendrickson’s evidence on the voir dire again and considered it in its entirety. In my view, Cst.

Hendrickson was a credible witness. [ 55 ] The fact the sticker is not visible in the photograph does not undermine the officer’s assertion that, as he walked by he could see it because there are many factors to do with the position of the sun, the reflection off the windshield and other situational factors that could explain why the sticker was visible to the officer when he first walked by but not visible in the photograph taken a short while later. [ 56 ] As for the officer’s failure to recall the second arrest in his initial recounting of events and the evident error in his notes as to the time of this second arrest, I find that these were genuine errors of memory and note taking rather than flags that signal falsehood and after-the-fact fabrication of “the second arrest” done for the purpose of justifying the warrantless search of the pick-up truck and back pack.

[ 57 ] I reach this conclusion for several reasons. First, the events at the scene in the Safeway parking lot happened very quickly. It appears that 10 minutes or less elapsed from the moment Cst. Hendrickson spotted the green pick-up to the point when his dealings with Mr. Russell were concluded and he was proceeding to take photographs of the truck and start the search. In the initial moments of his interaction with Mr.

Russell, until he could get the handcuffs on and conduct a pat down search, he felt a sense of urgency because he was faced with the task of arresting a man who, he had been informed, might be carrying a loaded handgun. [ 58 ] As well, there is not much to distinguish the two arrests either in their subject matter or in the circumstances that gave rise to each. Both were for breach of bail. He had spotted the knives at the time of the first arrest. The only thing that had changed by the time of the second arrest is that he received information from the dispatcher that Mr.

Russell was also subject to a “no weapons” term. [ 59 ] Bearing these circumstances in mind, I find it would be reaching too far - it would be speculative - to conclude that Cst. Hendrickson’s difficulty in recalling the exact sequence of events and the apparent mistake in his notes of the time of the second arrest are anything other than genuine errors. [ 60 ] I bear in mind as well that there was nothing in Cst. Hendrickson’s manner of testifying that undermined the credibility of his evidence. He was generally responsive to the questions asked. He appeared willing to admit when he did not know something.

For example, he said that he was “not 100% sure” that the man behind the wheel of the green truck was Dennis Russell and he admitted that, while he believed the items in the sleeve he saw hanging from the 4x4 shifter were three knives, “there was a possibility they were something else.” [ 61 ] In

summary, I find that Cst. Hendrickson was a credible witness. I accept his evidence that the second arrest for breach of bail by possessing weapons took place at the scene prior to the commencement of his search of the vehicle for weapons. B. Grounds for the Second Arrest [ 62 ] It is argued that Cst. Hendrickson did not have grounds for the second arrest of Mr. Russell because he had no evidence that the 3 knives in the sleeve or sheath he had seen in the cab of the pick-up truck fell within the definition of “weapon” in s. 2 of the Criminal Code which reads, in part, as follows: “Weapon” means anything used, designed to be used or intended for use

a) in causing death or injury to any person, or

b) for the purpose of threatening or intimidating any person….” [ 63 ] Even if the officer had a subjective belief that the knives fell within this definition, it is argued that there is no objectively reasonable basis for such belief because there is simply no evidence that Mr. Russell had used these knives or intended to use them for causing injury or to threaten or intimidate others. [ 64 ] In my view, Cst. Hendrickson did have objectively reasonable grounds for arresting Mr. Russell for breaching the “no weapons” term of his bail.

I bear in mind that the police are not required to establish anything more than reasonable and probable grounds for the arrest. They are not required to establish a prima facie case for conviction before making an arrest: R. v. Storrey , para. 17 . [ 65 ] The evidence available to Cst. Hendrickson was, firstly, that Mr. Russell was subject to a “no weapons” condition. Secondly, he had observed 3 knives, fairly large in size and contained in a purpose built sleeve or sheath.

As Crown Counsel pointed out, they are clearly not cutlery knives, nor are they the sort of small paring knife that might reasonably be used for cutting up an apple for one’s lunch. They were hung in a position directly to the right of the driver’s knee, within easy reach of the driver, rather than, for example, being stored away in a sports bag, a lunch kit or a tool kit. [ 66 ] It is quite possible that the 3 knives were not, in fact, either “used”, “designed to be used” or “intended for use” in causing injury or threatening others.

But, given their size, nature and position in the vehicle, it was reasonable for Cst. Hendrickson to conclude that they did fit within this definition and that Mr. Russell was violating the “no weapons” term of his bail. I find that he had reasonable grounds for the second arrest of Mr.

Russell. [ 67 ] Before leaving this issue, I would note that the “green knife” clipped to the passenger side of the cup holder in the cab of the truck proved to be a “prohibited weapon” as defined in s. 84(1) of the Criminal Code because it “has a blade that opens…by hand pressure applied to a button, spring or other device in or attached to the handle of the knife…”. However, Cst. Hendrickson testified that he did not clearly observe this item until after the search had begun and he was not able to test how the blade worked until he was back at the detachment later in the day.

Thus, the presence of the “green knife” in the cab of the truck did not form part of his grounds for the second arrest. C. Was the Search of the Vehicle Truly Incidental to the Second Arrest? [ 68 ] At the heart of the defence position on this voir dire is the argument that all of Cst. Hendrickson’s dealings with Mr. Russell and his vehicle that day had just one true purpose, and that was to find the loaded handgun that an informant had said Russell carried with him. It is argued that this is a case like R. v.

Adams where the police had an ulterior motive when they arrested the accused on an outstanding warrant, and the search of the accused’s person and vehicle that followed had little or nothing to do with discovering and securing evidence of the offence for which the accused had been arrested. The real purpose of Hendrickson’s search of Mr. Russell and his vehicle, it is argued, was to see if the police could find the handgun they had been told about. As such, it is argued, the search was not truly incidental to the arrest of Mr.

Russell and thus not authorized by that common law power; it was an “unreasonable search and seizure” in violation of Mr. Russell’s s. 8 Charter right. [ 69 ] I respectfully disagree. In my view the facts of this case distinguish it from Adams.

[ 70 ] I have found that Cst. Hendrickson was a credible witness and I have found that he arrested Mr. Russell for the offence of breaching the “no weapons” term of his bail by possessing knives - what I have termed the “second arrest” - and that he did so prior to searching the vehicle. I have also found that there were reasonable grounds for this second arrest. (No issue was taken with the validity of the first arrest which was pursuant to an arrest warrant.) [ 71 ] After the second arrest, Cst. Hendrickson proceeded to search Mr. Russell’s vehicle for weapons.

It seems to me that his actions fall within the scope of the third of the valid purposes for a search incident to arrest recognized in Caslake which is for the discovery of evidence of the offence for which the accused is being arrested. [ 72 ] By contrast, the police in the Adams case proceeded to search the vehicle for evidence of drug dealing which was unrelated to the break and enter offence the accused had been arrested for. D.

Did the Extent of the Search Exceed What Was Authorized? [ 73 ] It is argued that the search in this case - which extended into the engine compartment, into the tool box in the back of the vehicle and into the black back pack sitting behind the driver’s seat - was far more extensive than was justified by the grounds for the second arrest because Cst. Hendrickson had in mind not only the knives he had spotted. He also had in mind the information the police had received from a source to the effect that Mr.

Russell might have a loaded handgun in his possession. [ 74 ] I agree that the evidence clearly establishes that this report about the handgun was a prominent consideration in Cst. Hendrickson’s mind when he was searching the vehicle.

For example, on cross examination he agreed there was nothing in plain view in the vehicle to indicate there was a firearm in the truck, but he reiterated “…I had police communication that he may have a loaded firearm so knowing that, and that I had just arrested this same individual, it was reasonably in mind that there could be a firearm and that I could find a firearm in this vehicle.” [ 75 ] It is clear from the evidence that when Hendrickson was conducting the search of the vehicle, he was searching not only for knives but also for other “weapons”, including firearms. [ 76 ] Does this mean that his search extended beyond the scope of a valid search incident to the second arrest? [ 77 ] In my view it does not. [ 78 ] Cst.

Hendrickson had reasonable grounds to arrest Mr. Russell for the offence of breaching the “no weapons” term of his bail - the “second arrest”. He had the authority to conduct a warrantless search incidental to that arrest for the purpose of discovering evidence of that offence. Any object that met the definition of “weapon” could form such evidence, so I conclude that he was entitled to search for any such object whether it be a knife, a firearm or a prohibited weapon such as the green, switchblade knife and the brass knuckles. [ 79 ] The fact that Cst.

Hendrickson had information from another source, unconnected with his grounds for arrest, that Mr. Russell might be in possession of another kind of weapon, namely, a handgun, does not undermine the validity of the “second arrest”. It does not render the arrest a mere pretext or a sham. Providing they have reasonable grounds for the arrest, the police can have in mind more than simply the offence for which the accused was arrested when conducting a search incident to that arrest. [ 80 ] This was recognized in R. v.

Adams at para. 37 where Judge Howard said the following in obiter: “Had this been a justifiable search incidental to the arrest [of Adams for the offence of break & enter], the fact that evidence was located implicating the accused in a drug-related offence would not give rise to any constitutional challenge to the legality of the search. This would be so, even if the police were alert to the possibility of locating evidence of a drug offence ….” [emphasis added] [ 81 ] See also R. v.

Nguyen, at para. 178 where the court commented in obiter, that the valid arrest of the accused for possession of one type of drug (ecstasy) could have justified a search of the vehicle incident to arrest to discover other kinds of drugs that might be present. [ 82 ] It is argued that by going under the hood and into the back tool box, Cst.

Hendrickson’s search extended, in a physical sense, beyond the scope of what is authorized by the common law. [ 83 ] The court in Caslake said the following at paragraphs 22 and 23 about the scope of the common law authority to search incident to arrest: “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… 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 .” [ 84 ] Cst.

Hendrickson was asked on cross examination about the fact that he did not apply for a warrant to search in the areas where the more “secretive items” were found, such as the engine compartment or the back tool chest. His response was as follows: “With my understanding, when I located weapons in the truck I searched the truck where I felt weapons could be and ended up seizing some items from those compartments.” [ 85 ] His reference to “my understanding” was, I believe, a reference to his understanding of the scope of his authority to search

incident to arrest. [ 86 ] In my view his answer, to the effect that he searched “where I felt weapons could be”, establishes that he searched the vehicle in those areas where, in the words of Caslake , there was “some reasonable prospect of securing evidence of the offence for which the accused [was] being arrested”, namely, the offence of breaching the “no weapons” condition of his bail. [ 87 ] Therefore I find that the search of the various compartments of the vehicle did not exceed the scope of what is permitted under the common law authority to search incident to arrest. [ 88 ] In this regard I would add that there is no evidence that Cst.

Hendrickson behaved in an excessive, disrespectful or abusive fashion as it concerns Mr. Russell’s property. For example, there is no evidence that he slashed, ripped or needlessly dis-arranged the upholstery in the cab, the wiring under the hood or the contents of the tool chest. [ 89 ] I find that the extent of the search of the vehicle as well as the way in which it was carried out (one of the concerns under s. 8) was reasonable and within the scope of what is permitted at common law. D. The Search of the Back Pack [ 90 ] Cst.

Hendrickson located the black back pack behind the driver’s seat during his search of Mr. Russell’s truck. He unzipped one of the outer pockets and located a can containing a controlled substance. Noting that the back pack contained a number of zippered pockets which appeared to contain items, he decided to seize it in its entirety and wait until he was back at the detachment in a controlled environment before examining the contents of the other pockets. He completed the search of the back pack some 4 hours later at the detachment.

The contents included a black balaclava and some gloves, some men’s toiletries and clothing, including underwear, and a .45 cal. handgun containing a magazine with 4 live rounds (the chamber was empty). [ 91 ] In my view, there was a “reasonable prospect” that weapons would be found in the back pack since it was located within a hand’s reach of where Mr. Russell had been found and arrested, and it was in a vehicle where other weapons were found, namely the knives. [ 92 ] By searching the back pack some 4 hours later, did Cst. exceed the temporal limits of search incident to arrest?

As a general rule, searches that are truly incident to the arrest of the accused will occur within a reasonable period of time after the arrest of the accused: Caslake, para 24. [ 93 ] In my view, the 4 hour delay between when the back pack was located and seized and when its contents were searched was reasonable. It was reasonable to conclude that the search of the back pack should not occur at the scene in the Safeway parking lot.

Not only was it quite a public setting, but there was also no flat surface and controlled space in which smaller items might be safely and methodically examined without the risk of being lost, blown away or adulterated. I am satisfied from the officer’s evidence that he was reasonably diligent in attending to the search of the back pack later in the day and that the purpose of his search was one of the valid purposes - namely the collection of evidence of the offence for which Mr. Russell had been arrested - the offence of breaching his ‘no weapons’ bail term by possessing weapons. Conclusion [ 94 ] In

summary, I find that the evidence establishes that the search of the vehicle, and of the back pack found within the vehicle, was authorized by the common law power of search incident to arrest. In addition it was carried out in a reasonable manner. I find that Mr. Russell’s s. 8 rights were not breached. [ 95 ] Having found no violation of s. 8 of the Charter , it is not necessary for me to consider the application of s. 24(2) of the Charter. [ 96 ] The evidence located during the search of Mr. Russell’s pick-up truck and back pack, marked Exhibits A through P on Voir Dire # 1, is admissible in evidence at Mr.

Russell’s trial. The Honourable Judge E. L. Bayliff Provincial Court of British Columbia