R. v. Nair, 2019 BCPC 287

Citation: R. v. Nair 2019 BCPC 287 Date: 20191204 File No: 100335 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRANDON DHARMENDRA NAIR REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE R.P. McQUILLAN Counsel for the Crown: G. Kipp Counsel for the Defendant: M. Stern Place of Hearing: Port Coquitlam , B.C. Date of Hearing: November 26-27, 2019 Date of Judgment: December 4, 2019 [ 1 ] Brandon Nair is charged with three counts of possessing fentanyl, cocaine and methamphetamine respectively, for the purpose of trafficking, on August 10, 2018, contrary to s. 5(2) of the Controlled Drugs and Substances Act .

[ 2 ] Mr. Nair was arrested on August 10, 2018 in Maple Ridge, B.C. A search of the vehicle that was registered to him and being driven by him led to the seizure of a number of items, including: 1) 4.38 grams of cocaine packaged in 12 plastic baggies. 2) 0.76 grams of methamphetamine packaged in two plastic baggies. 3) 0.49 grams of fentanyl packaged in four plastic baggies. [ 3 ] Mr. Nair asserts that his right to be free from unreasonable arrest as provided in

section 9 of the Canadian Charter of Rights and Freedoms (the “ Charter ”) was breached by his arrest. He further asserts that his right to be secure against unreasonable search and seizure as provided in s. 8 of the Charter has been breached. Accordingly, a voir dire was declared with respect to these alleged breaches. This is my ruling on that voir dire . [ 4 ] Four police officers testified on the voir dire . In addition, a number of admissions of fact were made and entered as an exhibit in the voir dire .

The Investigation [ 5 ] Corporal Ivan Lai was the supervising officer for the investigation which occurred on August 10, 2019. He was then, and remains, a member of the Ridge Meadows RCMP. [ 6 ] Corporal Lai testified that on August 10, 2018, he was engaged in his duties working in the Street Enforcement Unit. That unit is generally responsible for conducting investigations into drug related crimes, property crimes and robberies.

On that date, he was looking for illegal activity in the community but did not have any specific targets. [ 7 ] At approximately 5:00 PM, he heard on the police radio a transmission from his colleague, Constable Clements, that she had queried the licence plate of a Black Nissan Altima on the police database called PRIME and learned that the registered owner of that vehicle may have previously been involved in illegal drug activity. She stated that the last name of the registered owner was “Nair” and the licence plate was GE523T.

She further stated that the vehicle appeared to be driven by a male and was driving without any particular pattern in downtown Maple Ridge. She found that to be possibly suggestive of it being engaged in criminal activity. She had been following the vehicle but had lost track of it and asked other officers to look out for it. [ 8 ] Corporal Lai did not make any of his own inquiries of the person or vehicle, nor did he ask Constable Clements to elaborate on the history of the vehicle or its registered owner. He continued patrolling in his unmarked police vehicle, while looking for the Altima.

Approximately an hour later, he spotted the Altima parked at the side of the road on 227 th Street, facing northbound. He noticed the vehicle while approaching it from behind. The driver of the vehicle had just exited the vehicle and was about to walk across 227 th Street. He described the driver as a dark skinned male wearing a baseball cap and glasses. However, in Corporal Lai’s notes he simply recorded him as being a dark skinned male, possibly Indian or Fijian. He also observed a smaller person sitting in the passenger seat. After exiting the vehicle, the male went to a residence across the street.

Corporal Lai passed the parked Altima and then turned left onto a side street just ahead, whereupon he turned around and parked so that he could observe the Altima. While doing so, he briefly lost sight of the vehicle and its occupants. However, he then observed the driver return from the house, get back in the Altima and proceeded northbound on 227 th Street before turning left on 124 th Avenue. He then lost sight of the vehicle. [ 9 ] Several blocks away, Constable Lewis Walker located the Altima at approximately 6:00 PM. He observed the Altima pull in behind a white Chevrolet Impala.

A male individual exited the Impala, walked to the Altima and got into the rear driver’s seat of the Altima. The Altima then pulled away, at which time Constable Walker briefly lost sight of it. A fourth police officer, Corporal Barbour, was then able to see the male exit the Altima and return to the Impala. Upon entering the Impala, the male drove away. The male was inside the Altima for approximately a minute. This interaction occurred in a residential area of Maple Ridge. [ 10 ] This information was reported over the police radio and received by Corporal Lai.

He testified that at this point, he became suspicious that the occupants of the Altima may be involved in a dial-a-dope trafficking operation. [ 11 ] Following the interaction with the driver of the Impala, Constable Walker continued to maintain surveillance of the Altima. He followed it to another residential area of Maple Ridge, where he next observed the Altima pull in behind a waiting black Dodge truck. He then lost visual contact with the Altima for 10 to 15 seconds, while he turned his vehicle around.

He then observed a male walk from the direction of the truck towards the Altima, whereupon the male got into the rear seat of the Altima. Ten seconds later, the male exited the Altima, returned to the Dodge truck and got into it. This was approximately 20-30 minutes after the observed interaction with the driver of the Impala. Again, this information was reported over the police radio and received by Corporal Lai. [ 12 ] Following the interaction with the driver of the Dodge truck. Constable Barbour continued to maintain surveillance of the Altima and followed it as it proceeded into Pitt Meadows.

He observed the vehicle to pull over to the side of the road a couple of times and make U-turns, giving him the impression that the driver was looking for someone. The Altima then pulled over in to a driveway in a residential area. Constable Barbour lost visual contact for a few seconds, due to hedges blocking his sightline. However, when he regained sight of the vehicle, he observed a male sitting in the back seat. Twenty to 30 seconds later, the male got out of the vehicle, returned to his car and drove away. These observations were again reported to Corporal Lai on the police radio.

This occurred at 6:37 PM. [ 13 ] Surveillance of the Altima continued as it proceeded back to Maple Ridge. At 6:40 PM, Corporal Barbour saw it enter the parking lot at the Meadowtown Mall and pull into a parking spot assigned to the Boston Pizza restaurant. Two males were then observed standing on either side of the Altima appearing to be speaking to the driver and passenger of the vehicle. The male on the driver’s side then got into the back seat of the Altima on the driver’s side. The Altima then pulled out of the parking spot and began driving in the parking lot.

It did not leave the parking lot but just drove around the circular lot. Corporal Lai then lost sight of the

vehicle, so he parked his car and walked towards where he had last seen it. Within a minute, the Altima came back into his sight at which time there was no longer anyone in the back seat. The Altima then drove out of the parking lot being driven by the same male. Corporal Barbour described him as being a dark skinned male with glasses and a baseball cap.

Corporal Lai then saw the male that had been in the back seat get back into a vehicle and leave the parking lot. [ 14 ] Following the observation of this fourth short duration meet, combined with the history of the vehicle that he had been told by Constable Clements, and the pattern of the meetings and their locations within very close geographical area and, within a period of 48 minutes, Corporal Lai concluded that the individuals in the vehicle were conducting dial a dope drug transactions. He testified that he felt at that point that he had reasonable grounds to arrest the individuals in the vehicle.

He intended to then await a safe opportunity to stop the vehicle to make the arrest. [ 15 ] The Altima then parked outside a liquor store at the Meadowtown Mall and the passenger in the vehicle went inside the store, purchased beer and returned to the vehicle. [ 16 ] At 7:00 PM, the Altima pulled into a 7-11 gas station and convenience store. The driver exited the vehicle and went into the convenience store while the passenger remained in the vehicle. Corporal Lai then made the decision to effect an arrest of the two occupants.

Constable Queen entered the store with Corporal Lai to arrest the male driver, who was Mr. Nair. The arrest of Mr. Nair occurred while he was waiting in line for the cashier. He was told that he was under arrest for trafficking in a controlled substance. Other officers were instructed to arrest the passenger from the vehicle. [ 17 ] Upon his arrest, police seized a plastic bag from Mr.

Nair which contained the pre-packaged drugs described above. [ 18 ] In cross-examination, Corporal Lai conceded that the information from PRIME that was initially reported to him from Constable Clements does not equate to the registered owner of the vehicle being charged with any offence and that it could include a connection to someone else who is connected to criminality.

He also acknowledged that the original sighting of the Altima by Constable Clements occurred in downtown Maple Ridge at a time of day when one would expect to see considerable traffic. [ 19 ] In cross-examination Corporal Lai further acknowledged the following: 1) It is not typical for dial a dope drug traffickers to use a vehicle registered in their own names to traffic drugs, due to the risk of seizure or civil forfeiture. 2) There was no indication during the period of surveillance of the Altima that it was engaging in evasive driving patterns, known as “heat checks”, to avoid being followed by police. 3) No hand to hand transactions were observed. 4) No one was seen carrying anything into or away from the Altima. 5) The driver was never observed speaking on a cell phone. 6) The boss of a street level trafficker is unlikely to approve of the trafficker stopping to purchase items at a 7-11 or purchasing beer. [ 20 ] In cross-examination, Corporal Lai did not recall stating on the police radio that he needed one more observation before arresting the occupants of the Altima.

However, Constable Clements, who acted as the “scribe” for this investigation by writing down what the various officers reported on the radio, confirmed that Corporal Lai stated at 6:48 PM that he “needed one more D.O. before doing a take-down”. Corporal Lai testified that if he did say that, it did not mean that he did not believe that he had reasonable grounds to justify an arrest, but rather that one more observation would further strengthen the grounds for arrest. [ 21 ] Corporal Lai has been a member of the RCMP for 12 years.

He has been with the Ridge Meadows Street Enforcement Unit (SEU) for the past two years. Prior to that, he was with the Surrey detachment working in the drug

section for six months. Prior to that, he was in the property crime unit, the crime reduction unit and in general duty. He testified that he has been involved in drug investigations of street level selling, dial a dope lines, drug houses and stash houses. By August of 2018, he had observed approximately 50 drug transactions and spoken to many drug users. He has attended several workshops with the RCMP focussed on how drug lines operate, the effects of illicit drugs and the manufacture of drugs.

He has been in various roles in drug investigations including surveillance, conducting arrests, exhibits officer and supervisor. [ 22 ] Constable Kristen Clements testified. As noted, she was the officer that first identified the Altima as being suspicious after it had driven past her parked vehicle twice in a short period of time. Upon querying the licence plate and noting that the registered owner, Brandon Nair, had a history of drug involvement, she reported that on the radio and asked for other officers to keep an eye out for the vehicle.

When Corporal Lai subsequently spotted the vehicle around 6:00 PM, he asked Constable Clements to act as the scribe, and take notes of the surveillance as relayed to her over the radio. [ 23 ] In cross-examination, Constable Clements acknowledged that when she queried the registered owner of the Altima on PRIME, she only looked at two entries. Based on those two entries, she advised Corporal Lai that Mr. Nair had a history of being involved in dial a doping.

However, she acknowledged that the two entries that she looked at were from 2012 and 2013 and that it was unclear whether either of those resulted in charges. Following the conclusion of Constable Clement’s testimony, the Crown made an admission that in fact no charges arose out of those two PRIME entries. [ 24 ] Constable Clements has been an RCMP officer since 2013.

In August 2018, she was a general investigator with the Ridge Meadows Street Enforcement Unit and had been in that unit for approximately one year, where her duties included investigating street level (including dial a dope) and up to mid-level drug investigations. She had previously participated in drug investigations in a number of roles and had dealt with drug users. In this investigation, she had the role of scribe.

[25] Constable Lewis Walker testified and confirmed the observations that he had conveyed to Corporal Lai. [26] Constable Walker has been an RCMP officer since 2011. He has been with the Ridge Meadows detachment in the SEU sinceAugust 2015, which he described as being primarily focussed on drug trafficking, property crimes and robberies. Prior to being in theSEU, he was in the general duty and investigation support units. While in the general duty unit, he also was involved in some druginvestigations.

He describes being involved in approximately 20-30 drug investigations, most of which were of the dial a dope variety. He has also taken courses in the areas of surveillance and drug investigations. [27] Corporal Jessen Barbour was the last police officer that testified in the voir dire. His testimony confirmed much of whatCorporal Lai testified he had reported to him on radio. [28] Corporal Barbour has been a member of the RCMP for 11 years. At the time of this incident, he was with the StreetEnforcement Unit of Ridge Meadows detachment.

He had worked in the SEU for seven years and had previously been in general duties. His job duties in the SEU had him involved extensively with drug investigations, including dial a dope lines, mid-level drug dealing anddrug houses. He also described having taken several RCMP courses relevant to drug investigations. Issues [29] The issues to be determined in this voir dire are: 1) Was Mr. Nair’s right to be free from an unreasonable arrest breached? 2) Was Mr. Nair’s right to be secure against unreasonable search and seizure breached? Law [30]

Section 9 of the Charter provides: “Everyone has the right not to be arbitrarily detained or imprisoned.” [31] Section 495(1) of the Criminal Code states, 495(1) 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 commitan indictable offence. [32] The interplay between s. 495 and s. 9 of the Charter imposes both a subjective belief in the reasonable grounds for the arrest,but also a requirement that the subjective belief be objectively supported. As stated in R. v. Storrey (SCC), [1990] 1S.C.R. 241: In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. Onthe other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically, they are not requiredto establish a prima facie case for conviction before making the arrest. [33] A search conducted incidental to arrest is lawful, as long as the arrest itself is lawful. [34] The Crown relies on a number of cases which it says supports its assertion that the arrest in this case was lawful. The first isthe case of R. v. To [1998] B.C.J. No 1323 (BCCA). In that case, the appellant had been convicted of possessing heroin and cocaine forthe purpose of trafficking.

The appellant had been arrested following police surveillance that revealed two separate interactions betweenthe appellant and others. In the first interaction, a man and a woman were seen pacing up and down a street before the vehicle driven bythe appellant drove up in front of them and stopped. The man and woman leaned into the passenger window for about 30 seconds beforethe appellant then drove away. Sometime later, the same vehicle driven by the appellant stopped in the middle of an intersection.

People from two vehicles that were already parked near the intersection then exited their vehicles and approached the appellant’s car. Exchanges were then made between the appellant and the people from the other vehicles. When the exchanges were complete the otherpersons returned to their vehicles and drove off. The appellant was arrested shortly thereafter and found to possess a number of flaps ofheroin and cocaine. The BC Court of Appeal upheld the trial judge’s decision that the officers had reasonable grounds to make the arrestand dismissed the appeal. [35] The Crown also relies on R. v.

Messina 2013 BCCA 499. That case involved the appeal of a conviction for possessing cocainefor the purpose of trafficking. In that case, police had observed the appellant meet four different people in four different locations inNorth Vancouver. On each of the four occasions, people were seen approaching the appellant’s car on foot, entering the car for 30 to 60seconds and then exiting and leaving the area. One individual was said to be dishevelled and another was skinny, which supported theofficers’ inferences that they were drug users.

The trial judge had concluded that there were insufficient objective grounds to arrest butpermitted the evidence to be admitted in the trial pursuant to s. 24(2) of the Charter. The Court of Appeal agreed with the outcome inupholding the conviction but found that there were in fact objectively reasonable grounds for the arrest. At paragraph 26. the Court said: [26] Both Constable Hakonson and Corporal Tupper have specialized skill and training that the trial judge failed to take into accountwhen deciding whether there were objectively valid grounds for arresting Mr. Messina.

These were experienced officers who had beeninvolved in numerous drug investigations. Their observations, considered in their totality, were sufficient to support objectivelyreasonable grounds that Mr. Messina was engaged in drug dealing. They did not have to rule out all other possible innocent explanationsfor Mr. Messina’s conduct or each event. They were entitled to use their training and experience to conclude from the totality of their

observations that Mr. Messina was trafficking in drugs from his car. [36] In R. v. Gill 2015 BCSC 310, the Court was asked to consider a case which involved the observations of only one transaction,although the transaction was actually observed in so far as money was seen to change hands. There were no other indicia of a dial a dopeoperation or any prior knowledge of the persons involved. While acknowledging the imperfections in the evidence of the police, theCourt found that there was a sufficient foundation for the arrest.

The Court also stated that the officers do not have to rule out innocentexplanations for the conduct if there is an objective basis for what they did infer concerning criminal activity.

At paragraphs 44-45, theCourt stated: [44] Obviously every case must turn on its own facts, and a comparison of the observations of the officer in this case withobservations that have or have not been found to be sufficient in other cases is worth engaging in only to the extent that useful principlescan be extracted from those other cases. [45] Looking at the cases cited for that purpose, I think that Crown counsel is correct that the more closely what the police observecomes to demonstrating an actual purchase and sale of drugs, then the less repetitive conduct by the suspect will be required to meet therequirement of objective reasonableness. [37] In R. v.

Lo 2015 BCSC 1159, the Court considered five apparent meets, with no observations of hand to hand transactions, priorcriminal involvement of the persons, cell phone use or other indicia of a dial a dope operation. Three of the meets occurred in areasknown to be frequented by drug users while two were not. The Court concluded that there were sufficient objective grounds for thearrest.

In doing so, the Court stated at paragraph 70: [70] In deciding whether there are reasonable grounds to arrest, an officer is entitled to consider all of the information available tohim or her and to disregard information that he or she believes is unreliable. The absence of some features that are attributable to adial-a-dope operation are to be considered neutral, referring to R. v. Readhead, 2008 BCCA 193 . [38] And further, at paragraphs 89-90: [89] There are some factors that occur in some cases and not in others. There can be an absence of factors in some cases and not inothers.

It is the totality of the evidence that is there which must be considered, not the totality of what is not present, which I considerwas the approach in Lahtinen. [90] I consider that there is a totality of evidence here which is sufficient to support the subjective and objective view that there werereasonable grounds to arrest. The experienced officers, including Constables Iles and Stevenson, testified that what was observed by thesurveillance team about the Yaris and its movement was consistent with a dial-a-dope operation. [39] The final case relied on by the Crown is R. v. Glendinning 2018 BCSC 1575.

That case involved two short duration meetsobserved by police officers. The first meet involved a truck pulling up in front of a known drug user, who then approached the vehicleand interacted with the passenger for 10 seconds before walking away. This occurred in an area known to have high levels of drug use. Approximately 27 minutes later, the same truck was seen to stop in front of a male who had been waiting at the side of the street. Themale got in the back seat of the vehicle which drove slowly for 20 to 30 meters and then stopped. The male then exited the truck andwalked away.

Officers then determined that there were sufficient grounds to arrest the driver and passenger of the truck for traffickingdrugs and an arrest was effected. The Court concluded that the totality of the circumstances gave rise to an objectively reasonableprobability that drug sales had occurred and as such, the arrest was justified. [40] Mr. Glendinning appealed his conviction. In dismissing the appeal (R. v.

Glendinning 2019 BCCA 365), Madam JusticeNewbury of the BCCA said at paras 31-32: [31] There can be no doubt about the importance of ensuring that Canadians are not deprived of their rights under ss. 8 and 9 of theCharter, and that judicial scrutiny of police conduct in acting without warrants must be meaningful. Nevertheless, the law is clear: theCrown need not demonstrate that the belief of the police (that an indictable offence had occurred) was correct on a balance ofprobabilities.

Rather, the arresting officer must have subjectively believed an offence had occurred and that belief must have beenobjectively reasonable from the viewpoint (or through the “lens”) of a person with the officer’s experience and training: see R. v. Moore2012 BCCA 400 at para. 17. In the context of s. 495(1), which is applied not at the end of a trial but in various situations in the“real world” in which peace officers find themselves, it would be impractical to require proof on a ‘balancing’ of probabilities by policeofficers.

The evidence available to them is obviously limited; they are not finders of fact; and their decisions must often be made quickly.As stated in Sanchez, “The appropriate standard of reasonable or credibly-based probability envisions a practical, non-technical andcommon-sense probability as to the existence of the facts and inferences asserted.” (At para. 31.) [32] It is true that some confusion seems to have arisen from the fact that the word “probable” appeared previously in what is nows. 495 and that the term “reasonable grounds” has been equated with “reasonable and probable grounds.” It seems more helpful toexpress the standard in a different way.

Madam Justice Bennett of this court in R. v. Luong 2010 BCCA 158 , put the test thisway: “[Would] a reasonable person with the same lens come to the same conclusion as a peace officer?” (At para. 24.) Put another way, Iwould suggest that the officer must have grounds that tend to support his or her subjective belief — i.e., that make the belief more likelyor more “probable” than it would otherwise be — and that those grounds must be objectively defensible, such that the line between“mere suspicion” and “reasonable belief” is crossed.

The officer must be able to explain what objective factors, when considered throughthe “lens” of his or her experience and training, led to the belief. [41] The Defence relies on a number of cases in support of his position. The first is R. v. Pope 2015 BCSC 2391. That caseinvolved two observed interactions between the defendant as the driver of a truck and other individuals. In the first interaction, policeobserved a short conversation at a gas station parking lot between the driver of the truck, who may have been the defendant, and theoccupant of another vehicle.

The second observed interaction occurred two hours later at a casino parking lot and involved the driver ofanother vehicle standing beside the truck being driven by the defendant and leaning into the driver’s side of the truck in a manner thatsuggested that there may have been an exchange of some

article or articles. The Court concluded that the police observations of these

two interactions were not sufficient to justify the arrest as there were only two suspected exchanges observed, which did not include any observations of items being exchanged. [ 42 ] In R. v. Peacock 2008 BCPC 214 , the Court concluded that objectively reasonable grounds for an arrest did not exist. That case involved police observations of two meets between the defendant and others. In the first meeting, a woman, who was described as “dishevelled”, had been pacing up and down a street before a vehicle driven by the defendant pulled up.

The woman got into the passenger side of the vehicle where she remained for about 10 seconds before exiting. The vehicle then drove to another gas station where it parked and another female got into the passenger seat for about 10 seconds and then exited. The police then effected an arrest.

In finding that the police did not have objectively reasonable grounds for the arrest, the Court stated, “In short, the police saw two interactions where women briefly got into the passenger side of the accused’s car, and nothing more.” The Court concluded that in arresting the accused, the police were acting on hunch or intuition, rather than reasonable probability, and the sole purpose of the arrest was to continue the investigation of that hunch. [ 43 ] In R. v.

Leung 2016 BCPC 198 , the Court considered the lawfulness of an arrest which was made after an observation of one exchange between the accused and another person. The police had been engaged in surveillance of a residence, based on their belief that it was associated with drug trafficking. While conducting the surveillance, police observed the accused pull into the driveway of the residence. Another vehicle pulled in behind his vehicle and the driver of that vehicle got out and interacted briefly with the accused.

During that interaction the driver of the other vehicle “may” have passed something small to the defendant, although there was uncertainty in the voir dire as to whether that was actually observed. The Court concluded that what was observed could only lead to suspicion and did not form the basis for a lawful arrest. [ 44 ] In R. v. Lahtinen 2011 BCPC 490 , the accused had been observed by police engaging in three apparent meets with individuals. In the first meet, the accused was observed to approach the driver’s side of a truck parked at a convenience store.

After 30 seconds, he left on foot and returned two minutes later. He then remained at the truck window for 20 seconds and then walked away. The accused was then observed to drive to a residence, park and enter the residence. He remained inside for a few minutes and then returned to his vehicle and drove away. The accused then drove to the rear parking lot of a restaurant. A male got into the accused’s vehicle and drove a half block where the male exited and ran to an apartment building. The accused was then arrested. The Court concluded that the police did not have objectively reasonable grounds for the arrest.

In doing so, the Court stated at paragraph 26: [26] What must be remembered however, is that a “reasonable person, standing in the shoes of a police officer” does not mean a police officer who holds a jaundiced and overly negative view of the panoply of behaviours that humans engage in on a day to day basis. It cannot mean an officer whose observations of everyday actions are made through such a jaded lens that otherwise benign activity is precipitously characterized as criminal. [ 45 ] Finally, the Defence relies on the case of R. v. Barnes 2018 BCPC 99 .

In that case, the police had observed one interaction that they considered to be a drug transaction. The police officer had first noticed the vehicle being driven by the accused when it was seen to be driving in a hurry and making unsafe lane changes. He queried the police database and learned that the vehicle had been associated with two anonymous complaints of possible drug trafficking. The vehicle then parked in a grocery store parking lot and a male approached the vehicle and got in the back seat for about 20 to 30 seconds and then left.

The vehicle remained in the parking lot for the next 75 minutes before the police arrested its occupants. The Court concluded that there were not objectively reasonable grounds for the arrest. Discussion [ 46 ] As the case law indicates, each case must be determined on its own particular facts. While prior cases are of assistance in the analysis no two cases are alike, and as noted in Leung (para 10 ), there will be some cases in which fewer factors are found to support an arrest, while in others, the existence of more factors will be insufficient to justify an arrest.

As stated in Gill at paragraph 44 , [44] Obviously every case must turn on its own facts, and a comparison of the observations of the officer in this case with observations that have or have not been found to be sufficient in other cases is worth engaging in only to the extent that useful principles can be extracted from those other cases. [ 47 ] There is no checklist for determining the existence of reasonable grounds, and, as indicated in Lo , it is the totality of the evidence which must be considered. [ 48 ] Both the Crown and defence quite properly distinguished the cases relied on by the other.

In To , the Defence points out the fact that the officers actually observed exchanges (although I note that the decision is not entirely clear as to whether the exchanges were verbal or involved the transfer of something). In Messina , some of the alleged drug purchasers were described as dishevelled and having the appearance of being drug users. In Gill , the police officer clearly observed a hand to hand transaction which included money being exchanged. In Lo , following one of the five meets, the alleged purchaser was seen to look at something small in his hands.

That case also included the feature of some of the meets taking place in areas known to be frequented by drug users. In Glendinning , the meets similarly occurred in drug associated areas, and one of the alleged purchasers was a known drug user. [ 49 ] Similarly, the Crown points to a number of distinguishing factors in the Defence cases. In Pope , there were only two meets which occurred two hours apart, with the second observed only by happenstance.

In Peacock , there were only two meets, with little to support the police suggestion that one of the alleged purchasers was a drug user based simply on the fact that she appeared “dishevelled”. In Leung , there was only one meet. In Lahtinen , there were three meets. In Barnes , there was only one meet. [ 50 ] In the present case, the Defence says that it is not clear that Corporal Lai even had the subjective belief that he had grounds to make the arrest of Mr. Nair.

That is because the evidence was that Corporal Lai had stated on the police radio at 6:48 PM that he needed to make one further observation before making an arrest. Corporal Lai did not recall making that statement, nor did Corporal Barbour or Constable Walker recall hearing it. However, Constable Clements clearly wrote that down in her notes and I would be surprised if she was not simply responding to what she had heard on the radio.

[ 51 ] Corporal Lai testified that if he did make that statement, it was not meant to suggest that he believed that he did not yet have grounds to make the arrest but rather would have meant that he wanted to further bolster the grounds for arrest. [ 52 ] In my view, the note made by Constable Clements does not undermine Corporal Lai’s testimony that he felt that he had reasonable grounds for the arrest. The reference to “needing” another observation can be explained as being an imprecise

summary of what he had said on the radio and in the heat of the fast paced investigation. It is clear from steps Corporal Lai took in directing an arrest after the observations outside the Boston Pizza that he believed that he had reasonable grounds to effect the arrest.

As such, I find that Corporal Lai did have a subjective belief that he had reasonable grounds to make an arrest. [ 53 ] Turning to the more difficult issue of whether Corporal Lai’s subjective belief was reasonable, the defence says that the evidence goes no further than observations of four short duration stops and meetings with persons, which standing alone cannot reasonably be seen as evidence of a crime.

The Defence says that the history of the Altima, as reported by Constable Clements from her search of the police database, should not be given any weight in assessing reasonable grounds as the two entries that were identified by her were several years old and did not result in any charges. Furthermore, the suggestion that the Altima was seen to be driving in an unusual pattern when it was first seen was not entirely borne out in the evidence. [ 54 ] The Defence also says that there was a significant absence of indicia of dial a dope drug trafficking in the evidence such as: 1.

The driver was the registered owner of the vehicle, unlike in more typical dial a dope situation where a rental car is used. 2. No actual transactions were observed. 3. No one is seen entering or exiting the vehicle carrying anything. 4. The vehicle is not observed to be driving evasively or doing heat checks. 5. No cell phone use is observed. 6. None of the alleged purchasers were detained to see if they were carrying drugs. 7. There was no suggestion that the alleged purchasers had the appearance of drug users. 8. The interactions did not occur in areas known to be frequented by drug users. 9.

There were no complaints from the community. [ 55 ] I agree that not a great deal of weight can be placed on the information obtained from PRIME that the Altima had a history of drug activity, given the fact that this history was several years old and did not result in criminal charges. However, I am not prepared to say that it has no weight whatsoever, as it is a relevant factor that justifiably gave rise to the initial suspicion about the vehicle.

The vehicle’s initial pattern of driving as observed by Constable Clements does not assist the analysis however, as the evidence falls short of indicating anything suspicious in the driving pattern of the vehicle. [ 56 ] I agree that there are many factors supportive of a dial a dope trafficking which are absent in this case. In my view, that absence is a relevant consideration. However, it is the totality of the evidence that is there which must be considered, not the totality of what is not present. [ 57 ] In this case, what was present was the Altima coming to the attention of Constable Clements.

Her review of PRIME indicated that the vehicle had two entries indicating that the registered owner had been associated with drug offences, although she did not inquire further as to the date or outcomes of those entries. In any event, she became interested in the vehicle and passed on that information to other officers. At that point, I believe that the police interest in this vehicle was barely at the suspicion level. However, when the vehicle was next seen, the driver went briefly into a residence while the passenger remained in the car.

The vehicle then drove to another location where the driver of another vehicle got into the back seat. The vehicle then drove away briefly and returned after a minute whereupon the male exited the vehicle, returned to his car and drove away. I note that it is only at this point that Corporal Lai said that he became suspicious that the occupants of the Altima may be selling drugs. [ 58 ] Shortly after that observation, the Altima was seen pulling up and stopping behind a waiting truck. The driver of that truck got out of his vehicle and got in the back seat of the Altima. After ten seconds he got out and left.

Shortly after that, the Altima was observed in a mall parking lot with two individuals standing on either side of the car speaking to the occupants. One of them got in the back seat of the Altima which then drove around the parking lot for less than a minute. The male in the back seat then got out and returned to his car and left.

These four incidents took place over the span of about 48 minutes. [ 59 ] While these observations might be somewhat strange and suspicious to a layperson, I am required to consider this through the lens of a police officer with training and experience in drug investigations, rather than from the standpoint of an average citizen. In this case, Corporal Lai had significant experience in various aspects of drug investigations by the time of this incident. Moreover, all of the officers on which he relied had a reasonable amount of experience and training in drug investigations.

At the same time, I was not left with the impression that any of them jumped to conclusions too quickly, or approached this investigation with a jaded lens as cautioned against in Lahtinen . Indeed, I found that all of the officers that testified were cautious in both how they approached this investigation, and in the delivery of their evidence. I did not have the impression that any of the officers were attempting to make the evidence out to be more than it was.

Decision [ 60 ] Upon a consideration of the totality of the evidence, viewed through the lens of a police officer having Corporal Lai’s experience and training, I find that his decision to arrest Mr. Nair was objectively reasonable and as such there was no breach of s. 9 of

the Charter . [ 61 ] No issue appears to have been taken that the search of Mr. Nair that led to the discovery of the drugs was incidental to his arrest. As I have found his arrest to have been lawful, the search incidental to his arrest is also lawful and did not constitute a breach of s. 8 of the Charter . [ 62 ] Accordingly, the application of Mr. Nair for a finding that his Charter rights were breached is dismissed. ______________________________ The Honourable Judge R.P. McQuillan Provincial Court of British Columbia