R. v. Downey, 2019 BCPC 310

Citation: R. v. Downey 2019 BCPC 310 Date: 20191216 File No: 247095-3-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Division) REGINA v. ROSS MAYNARD DOWNEY RULING ON VOIR DIRE OF THE HONOURABLE JUDGE R.P.HARRIS Counsel for the Crown: J. Lhalungpa Counsel for the Defendant: I. Donaldson, Q.C. M. Remus, Articled Student Place of Hearing: Vancouver , B.C. Date of Hearing: September 23, 2019 Date of Judgment: December 16, 2019

INTRODUCTION [ 1 ] Mr. Downey challenges the admissibility of the drugs that were seized from a backpack. He argues his arrest was arbitrary and contrary to s. 9 of the Charter thereby, rendering the search incidental to his arrest unreasonable and contrary to s. 8 of the Charter. [ 2 ] The trial commenced in a voir dire with Constables Karellas and Sargent testifying. Filed as exhibits were various pictures and two video recordings. Mr. Downey did not call any evidence. THE EVIDENCE Constable Karellas [ 3 ] Constable Karellas has been a police officer for five years.

She was a patrol officer for three years, she spent a year as a source handler, and she missed a year of work because of an injury. [ 4 ] As for his drug experience, Constable Karellas estimates she has been involved in 50 drug investigations. These investigations include: street level purchases, dial-a-dope investigations, as well as, drug surveillance and a warrant execution. She has been involved in approximately 100 arrests involving hand-to-hand drug transactions and she has worked as an under-cover drug purchaser where she made five drug purchases.

Finally, Constable Karellas has spoken to informants about the mechanics of drug transactions. [ 5 ] Turning to the instant matter, on August 22, 2017, Constable Karellas responded to a report by W.N., who reported seeing interactions that he believed involved drug trafficking. [ 6 ] Constable Karellas met with W.N. and he described witnessing what he believed to be three separate drug transactions. These events occurred on August 20, 21, and 22 of 2017, between 4:00 p.m. and 5:00 p.m. at a park bench located on the north side of Beatty Street Park.

The persons involved were; an older white male, approximately 55 years old, slim, about 5’6”, with long grey hair, black Adidas long shirt, blue jeans and riding a yellow and green scooter. The other person was a larger black skinned male. [ 7 ] According to W.N., the two males met on three consecutive days. In this regard, they would walk into the park and sit on a bench on the north side. There, the white male would remove his helmet and place it on the bench between them. The black male would then remove something from his pocket and place it into the helmet.

The white male would then remove this item from the helmet and then hand a small package to the black male who would place it into his pocket. The items appeared to be small packages and the interactions lasted approximately two minutes. The meetings did not involve handshakes or laughing, and the two men did not seem to be particularly friendly with each other. [ 8 ] W.N. video recorded the August 22, 2017, meeting and Constable Karellas viewed this video. It was her view that the video was consistent with W.N.’s description.

The video combined with W.N’s information caused Constable Karellas to suspect that the two men had engaged in drug trafficking. According to Constable Karellas, she needed to see multiple transactions before she formed reasonable grounds to believe that drug transactions had occurred. [ 9 ] Constable Karellas set up surveillance on August 23, 2017, between 3:00 p.m. and 4:00 p.m., with the expectation of seeing the two men. At that time, Constable Karellas watched the park but she did not see the two men.

On concluding her surveillance, Constable Karellas advised W.N. that she was going on her days off and if the two men returned that he should call 911. [ 10 ] On August 25, 2017, Constable Karellas received information from W.N. indicating that the two men had returned and engage in the same type of behaviour. W.N. had called 911 but the police did not respond. W.N. also told Constable Karellas that he had recorded the two men and he sent the video to her.

W.N. was of the view that the two men were still engaged in drug trafficking. [ 11 ] Constable Karellas watched the video and she noted it is was taken from an elevated position and to the south of the men. In the video, she observed the two men seated on a bench and engage in a surreptitious exchange of packages.

After viewing the video Constable Karellas formed reasonable grounds to believe that the two men were engaged in drug trafficking. [ 12 ] A few days later, on August 29, 2017, at approximately 5:00 p.m., Constable Karellas was patrolling with Constable Sargent when she received a call from W.N. who advised her that the two men had returned to the park, that they had just sat down on the north side and that he was filming them from an elevated position.

Shortly thereafter, W.N. called or messaged Constable Karellas stating, “they have just done it again.” [ 13 ] After receiving the information from W.N., Constable Karellas and Constable Sargent drove to Beatty Park. It took them approximately two minutes to get to the park and when they arrived Constable Karellas saw a green and yellow scooter parked on the sidewalk beside the park. Before entering the park Constable Karellas watched the two men for approximately ten seconds and she was of the opinion that they reasonably resembled the images of the two men from the earlier video recordings.

Then, and prior to entering the park, Constable Karellas instructed Constable Sargent to arrest the black male for drug trafficking. The two officers entered the park and arrested the two males. These males were identified as Mr. Downey and Mr. Wittrup. [ 14 ] Constable Karellas described Mr. Wittrup as a white male, 50 to 60 years old, with balding hair that was brownish grey and shoulder length. [ 15 ] Constable Karellas’ reasons for instructing Constable Sargent to arrest the black male (Mr.

Downey) were: • The information from W.N. appeared credible in that; he had called the police, he had video taped his observations and he had previously observed drug trafficking in his native country of South Africa.

• W.N.’s conclusions that drug transactions had occurred were consistent with Constable Karellas’ view of the videos. • Constable Karellas’ observations were consistent with her experiences in relation to drug transactions.

Specifically, meetings at the same location, no overt indicia of familiarity (handshake, little discussion, or embrace), furtive behavior (not looking at each other, exchanging a package by first placing it in a helmet that was between them). • The commonalities with the other dates that were observed by W.N.; same location, the presence of the green and yellow scooter, late afternoon, and the similarity of appearances (the individuals captured in the video and described by W.N. as compared to Mr. Wittrup and Mr.

Downey’s appearance on August 29). • When W.N. said words, “They have just done it again.” Given the context, Constable Karellas believed this to mean that the parties had just engaged in a drug transaction. [ 16 ] During cross-examination, Constable Karellas confirmed that her notes did not have a description of the black male. She also acknowledged receiving an email from W.N. wherein he mentioned a picture, but she does not recall receiving a picture, nor, did she follow up on this point. She also agreed that W.N.’s statement indicated that he had sent other pictures to her.

Constable Karellas did not recall receiving any pictures from W.N. [ 17 ] Cross-examination also revealed that Constable Karellas did not see a helmet when Mr. Downey was arrested, nor, did she know if Mr. Downey and Mr.

Wittrup shook hands when they met, or, how long they had been together prior to their arrest. [ 18 ] It was also confirmed by Constable Karellas that there were no entries in her notebook, or her police statement stating that W.N. had communicated, “they have just done it.” As a result, Constable Karellas was challenged on whether W.N. made this comment and Constable Karellas responded she recalled the statement because she would have liked to have witnessed the exchange herself. [ 19 ] Constable Karellas also could not recall if Mr. Downey and Mr.

Wittrup were eating and if they had drinks when they were arrested. [ 20 ] Constable Karellas agreed that she failed to mention in her typed police statement that she received a video from W.N. on August 25, 2017. [ 21 ] Counsel for Mr. Downey challenged Constable Karellas on her grounds to arrest Mr. Downey.

She responded by indicating that prior to seeing the August 25, 2017, video she suspected that the persons who attended the park were engaged in drug trafficking, however, after seeing the video, she formed reasonable grounds to believe that the persons who were captured in the videos were engaged in drug trafficking. [ 22 ] Constable Karellas also acknowledged she would have arrested both parties even if one of them had been clearly different from either person shown in the videos. Her rational being, it is common for drug traffickers to sell to more than one person.

As such, she was of the view that it would be reasonable that one of the participants would change. She was also of the view that, at some point in the transaction, the buyer and seller would be in possession of drugs and therefore arrestable. [ 23 ] Finally, Constable Karellas confirmed that Exhibit D, a still photograph, is consistent with being from the video that W.N. recorded on August 29, 2017. Constable Sargent [ 24 ] On August 29, 2017, Constable Sargent was working with Constable Karellas.

Constable Sargent recalled that Constable Karellas had been working on an investigation involving a citizen complaint and videos of apparent drug transactions occurring at. [ 25 ] While patrolling with Constable Karellas, she received a phone call and she relayed the information from the call to Constable Sargent. From the information he received, Constable Sargent believed that a black male and a white male were back at Beatty Park and sitting on a bench located on the north side and according to the caller, some sort of transaction had just occurred.

It was Constable Sargent’s belief that both males were arrestable. [ 26 ] The officers arrived at the park and Constable Sargent saw two males sitting on a bench. They were eating and drinking and between them was a blue backpack. [ 27 ] Constable Karellas directed Constable Sargent to arrest the black male. He then approached Mr. Downey and placed him under arrest. Constable Sargent searched Mr. Downey and on his person he found three lighters, and a small amount of money.

Inside the backpack Constable Sargent found two bundles of cash totalling $4,090.00, 29.08 grams of methamphetamine, and 28.7 grams of cocaine. The Exhibits [ 28 ] I have reviewed the videos from August 22 and 25, 2017, and the still photograph taken from the August 29, 2017, video recording. From my review, I make the following observations. 1) [August 22, 2017] The video shows a white male sitting at a park bench and to his left and on the bench is a helmet. A black male then sits on the bench so that the helmet is between the two men.

The black male then removes a package from his left pocket and places it into the helmet. The white male then reached into his pocket removed a package and he handed it to the black male who put it in his pocket. As the black male was placing the package in his pocket the white male removed the package from the helmet and placed it into his own pocket. 2) [August 25, 2019] The video shows a white male sitting at a park bench and to his left and on the bench is a small package. To

the left of the package is a black male. At the feet of the black male is a backpack and he moves it so it is on the ground between the twomen. The black male then fiddles with a compartment on the backpack and removes his hand. The white male then reaches down andappears to put an item into the same compartment that the black male had fiddled with. The black male then appears to close thecompartment and he moves the backpack to his right. The white male then removes the small package from the bench and appears to putit in his shirt pocket. 3) [August 29, 2017] Is a still photograph from a video recording.

The photograph shows a white male sitting on a park benchwith something in his hand and a drink to his left. This male looks similar to the white male shown in the August 22 and 25, 2017, videorecordings. Standing to the left of the white male is a large, darker skinned male. This male appears larger than the black male shown inthe August 22 and 25, 2017, video recordings. FINDINGS [29] I find that the officers were credible and reliable. Their testimony was internally and externally consistent and they withstood askilled cross-examination.

They were not evasive and Constable Karellas candidly acknowledge circumstances where she failed todocument certain information. [30] The portion of the officers’ evidence that was challenged involved whether W.N. had communicated to Constable Karellas,“they have just done it again.” In this regard, counsel for Mr. Downey pointed out that Constable Karellas did not record W.N.’scomment in her notebook, in her report to the Crown, or her police statement. In considering the above, I am satisfied that W.N.communicated “they have just done it again” to Constable Karellas.

My conclusion is based on Constable Karellas’ evidence which Ifound to be credible and believable, particularly, her reason for recalling the information, and finally, Constable Sargent’s testimonywherein he recalled receiving similar words from Constable Karellas. [31] Another issue raised by Mr. Downey, was whether Mr. Downey was the same person that was recorded with Mr. Wittrup on August 22 and 25, 2017. On this issue, counsel for Mr. Downey, produced a photograph from the August 29th video and after viewingthe photograph, and comparing the image to the videos I am satisfied that Mr.

Downey was not the person recorded on the earlier dates. [32] Based on the above, and without restating the officer’s evidence I am satisfied that the events set out in their testimony havebeen proven. POSITION OF THE PARTIES The Defence [33] Counsel for Mr. Downey argues the police arrested Mr. Downey without reasonable grounds, and therefore they violated hissection 9 Charter protected rights. [34] In support, counsel argues the information received, with the exception of August 29, 2017, did not relate to Mr. Downey.Notably, the black male observed on the other occasions was not Mr. Downey.

As such, the police should have limited theirconsiderations to the information received on August 29, 2017, and that this information fell short of establishing reasonable grounds toarrest. Counsel also argues that one suspicious meeting does not create reasonable grounds. In support, counsel relies on, R. v. Brown,Lambrecht and Manuel 2014 BCSC 1665 at para. 29. [35] Lastly, counsel argues that Mr. Downey’s arrest was a violation because he was arrested for simply being at a location wherecriminal activity was believed to have occurred.

In this regard, Constable Karellas should have taken steps to determine if Mr. Downeywas the same person associated with the earlier transactions. For this principle, counsel relies on, R. v. Whitaker 2008 BCCA 174. The Crown [36] The Crown argues the police had reasonable grounds to arrest Mr. Downey.

Specifically, W.N. provided the police withcredible information including two video tapes and this information combined with Constable Karellas’ experience and training causedher to subjectively believe the parties seated at the bench on August 29, 2017, were arrestable and that her belief was objectivelyreasonable. [37] In response to the suggestion that the information from the events prior to August 29, 2017 is of no assistance in determining ifthe Constable Karellas’ subjective belief was objectively reasonable, the Crown states the pattern of transactions is relevant to theobjective analysis.

Notably, anyone engaging in a similar meeting with Mr. Wittrup in similar circumstances would be engaged in drugtrafficking and possessing drugs for the purpose of trafficking. LEGAL FRAMEWORK [38] Pursuant to s. 495 (1) (

a) of the Criminal Code a police officer may arrest without a warrant a person that the officer hasreasonable grounds to believe has committed or is about to an indictable offence. [39] Guidance on the approach to be taken when considering if an officer’s reasonable grounds to make a warrantless arrest is foundin, R. v. Storrey (SCC), [1990] 1 S.C.R. 241 at page 250: 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.

[40] As for the objective component of the analysis, Madam Justice Bennett in R. v.

Luong 2010 BCCA 158 provides the followingguidance at paragraph 24: [24] The assessment of whether objective grounds exist undertaken by a trial judge is conducted by first looking at the observations ofthe officer (which the trial judge has found as facts) through the lens of someone who has the same experience, training, knowledge andskills as the officer who is making the observations, and then deciding if a reasonable person with the same lens would come to the sameconclusion as the police officer. [41] Finally, it is important to observe that the police are not required to establish a prima facie case for conviction before making anarrest.

Moreover, “reasonable grounds” is a standard that is lower than the civil standard but not so low that a hunch is sufficient:Storrey, at page 250, R. v. Glendinning 2019 BCCA 365 at para. 3 and R. v. Chehil, 2013 SCC 49 , [2013] 3 S.C.R. 220 at para.27. Did the police have reasonable grounds to arrest Mr. Downey? [42] I am satisfied that Constable Karellas subjectively believed that Mr. Downey had committed the offence of trafficking and thather belief was objectively reasonable. [43] In arriving at my conclusion, I note the careful and incremental way in which Constable Karellas formulated her grounds.

In thisregard, she met with W.N., and he appeared to be credible and she noted he had experience witnessing drug trafficking. She also viewedthe video from August 22, 2017, and despite the compelling information, Constable Karellas was suspicious and she wanted to gathermore information before she felt she had reasonable grounds to conduct an arrest. [44] Then, and on August 25, 2017, Constable Karellas was contacted again by W.N. and he informed her that he had seen theparties meet again and he concluded that they had completed a drug transaction.

Despite this information, it was only after ConstableKarellas viewed the video associated with this meeting did she form reasonable grounds to believe that the two males were engaged indrug trafficking. [45] Finally, on August 29, 2017, Constable Karellas received a call from W.N where he indicated that the two males were back, thatthey were seated at a bench and that the scooter was parked on the sidewalk. He also indicated his belief that they were engaged in drugtrafficking. Shortly, thereafter W.N. communicated to Constable Karellas “they have just done it again”.

Given the context, ConstableKarellas took this to mean that the two men conducted a transaction. In all of the circumstances, Constable Karellas believed that bothmen were arrestable for trafficking and possession for the purpose of trafficking. Factors that contributed to her belief included theinformation received, her police experience, her training and the knowledge she gained through informant meetings. [46] Turning to the notion that Constable Karellas had to confirm that Mr.

Downey was the same person from the earlier dates,Constable Karellas testified she knew that drug traffickers frequented the same locations and they meet with different customers. Shewas also aware that drug transactions involve both parties committing an offence. As such, it was entirely reasonable to believe thatanyone meeting Mr. Wittrup in Beatty Park, at around 5:00 p.m., at a bench on the north side and engage in a transaction was engaged ina drug transaction. Hence, the fact that Mr.

Downey may not have been the same person from the previous dates makes little difference.This is because the significant feature is the conduct that he engaged in with Mr. Wittrup. In other words, seeing Mr. Wittrup engage inanother transaction at a bench on the north side of Beatty Park at around 5:00 p.m. combined with the knowledge related to Mr. Wittrup’searlier activities provided reasonable grounds to believe that an offence was being committed, thus, justifying the arrest of Mr. Downeyor anyone meeting Mr. Wittrup. [47] Similarly, the notion that Mr.

Downey was arrested because he was merely at a location where criminal activity had occurred ismisguided because it fails to consider W.N.’s information and the history of the officer. Specifically W.N. told Constable Karellas thathe believed that he was watching the same males, that he saw the yellow scooter, that he believed they were trafficking drugs and that“they had just done it”, which Constable Karellas interpreted as engage in a transaction. Did the search of Mr. Downey breach his

section 8 rights? [48] A warrantless search is prima facie unreasonable. The Crown can rebut this presumption if the search was authorized by law,the law was reasonable and the search was reasonably conducted: Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145. [49] Pursuant to the common law, police officers may search person’s incidental to a lawful arrest. This power is not automatic to allarrests. Rather, for a search to be incidental to an arrest the objectives of the search must be related to the arrest such as a search forevidence, officer safety, or devices of escape: Cloutier v.

Langlois, (SCC), [1990] 1 S.C.R. 158. [50] In the instant matter, Mr. Downey was lawfully arrested and Constable Sargent searched Mr. Downey incidental to the arrest.Constable Sargent’s objective was to look for evidence, for officer safety and weapons of escape. In the circumstances, the Crown has satisfied me that search was authorized by the common law and that it was performed for validobjective(s). Accordingly, I find that the search of Mr. Downey was reasonable and did not violate his rights pursuant to s. 8 of Charter. ____________________________ The Honourable Judge R.P.

Harris Provincial Court of British Columbia