R. v. Hall, 2019 BCPC 349

Citation: R. v. Hall 2019 BCPC 349 Date: 20191213 File No: 225194-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. JENNIFER LEIGH HALL and BENNY HUYNH BAN ON PUBLICATION s. 486.5 CCC RULING ON VOIR DIRE OF THE HONOURABLE JUDGE M. JETTÉ Counsel for the Crown: C. Arnason Counsel for the Accused: A. Jaswal for Hall Counsel for the Accused: M. Beckett for Huynh Place of Hearing: Surrey , B.C. Dates of Hearing: July 3, 4, 5, and October 15, 2019 Date of Judgment: December 13, 2019 Introduction

[1] The defendants, Jennifer Hall (“Hall”) and Benny Huynh (“Huynh”), are charged with multiple counts of possession for thepurpose of trafficking fentanyl, carfentanil, cocaine and heroin, contrary to Section 5(2) of the Controlled Drugs and Substances Act(“CDSA”). May 31, 2017, is the alleged offence date for all of these charges. [2] Both Hall and Huynh have alleged separate breaches of rights guaranteed in the Canadian Charter of Rights and Freedoms,which I will outline shortly. This is my ruling with respect to their respective applications.

Summary of the Circumstances [3] I will provide here a brief

summary of the circumstances giving rise to these charges. [4] In May of 2017, the Langley RCMP drug squad initiated a project aimed at investigating drug activity in Langley. The firstinvestigative steps were taken on 18 May 2017. The project was concluded with the arrests of Hall and Huynh on 31 May 2017. [5] The investigation commenced with calls placed to a known dial-a-dope drug phone by undercover officers seeking to negotiatea street-level drug purchase. This led to a series of successful undercover drug purchases, and the identification of vehicles andindividuals connected to that activity.

One of those individuals was Ms. Hall. [6] Later in surveillance, the driver of a Nissan Altima, a vehicle which was employed by the seller in one of the successfulundercover drug buys, was observed getting out of her vehicle and then get into a Mazda CX5 for a brief meeting. Subsequentsurveillance connected the Mazda CX5 and its driver to a Surrey residence at 14763-110A Avenue (“the residence”).

Police changed thefocus of their investigation to the Mazda CX5 and that residence, based upon a working theory that street-level sellers were being “re-loaded” with their drug supply from that location. [7] On 31 May 2017, police observed a meeting between the Mazda CX5 which surveillance had associated to the residence, and asecond Mazda CX5. The driver of the first Mazda, an Asian male who police witnesses have identified as Mr. Huynh, got out of hisvehicle carrying a grey plastic shopping bag.

He walked up to the rear passenger door of the second Mazda, opened the door and placedthe bag into the rear passenger area; he then returned to his own vehicle and drove away. Police followed the second Mazda, and arrestedMs. Hall when she was observed standing outside that vehicle in an alleyway. Police located drugs in her purse.

In the centre console ofthe vehicle, police located a plastic bag containing a number of zip-lock baggies, each of which held what was believed to be a quantityof drugs packaged for street sale. [8] Police then sought, obtained, and executed a Warrant to Search the residence at 14763-110A Avenue in Surrey, under theauthority of

Section 11 of the CDSA. Mr. Huynh and others were located at the residence when police entered, and Mr. Huynh wasarrested. Police also located additional drugs and packaging material throughout the residence. Voir Dire Issues [9] Mr. Huynh challenges the validity of the search warrant obtained for the residence.

He submits that the Information to Obtainthe warrant (“ITO”), both on its face and following amplification on review, does not disclose reasonable and probable grounds thatevidence of trafficking and possession for the purpose of trafficking controlled substances would be found at the residence, with theresult that the search violated Mr. Huynh’s s. 8 Charter right to be secure from unreasonable search and seizure. Mr. Huynh submits thatthe evidence obtained at the residence under the authority of that warrant should be excluded under s. 24(2) of the Charter. [10] Ms.

Hall submits that following her arrest, she was subjected to an illegal strip search at RCMP cells. She asserts that the stripsearch violated her rights under s. 8 of the Charter. It is conceded that no evidence was obtained during the search of Ms. Hall’s person,so there is nothing to exclude. Ms. Hall submits, however, that the appropriate remedy in the circumstances disclosed in this case is ajudicial stay of proceedings pursuant to s. 24(1) of the Charter. 1. The Challenge to the Warrant [11] At the commencement of the trial, counsel for Mr.

Huynh applied for a declaration of voir dire on the basis of his Charter s. 8challenge to the validity of the search warrant for the residence. He also applied to cross-examine the ITO affiant, Constable SteveVandelft, on portions of that document which he particularized in his application. On the authority of R. v. Vukelich, (BC CA), 1996 78 B.C.A.C 113 and R. v. Pires and Lising, 2005 SCC 66, I found that counsel had established a sufficient basis for hischallenge to the warrant and I declared a voir dire.

I also granted leave to cross-examine the affiant on those portions of the ITO whichhad been particularized in the application. In addition to that evidence, Crown counsel called at the voir dire a series of police witnesseswho were involved in surveillance over a number of days leading up to and including 31 May 2017. [12] The challenge to the warrant can be succinctly stated in this way: Mr.

Huynh argues that while the ITO arguably disclosesreasonable and probable grounds to believe that he was engaged in drug trafficking activity, it does not objectively support grounds tobelieve that evidence of that activity would be found at the residence. More particularly, Mr. Huynh argues that, viewed objectively, theITO does not disclose reasonable and probable grounds in support of the affiant’s subjective belief that the residence was being used as adrug reloading stash house. The Law [13] The test where an accused applies under s. 8 of the Charter to challenge a search warrant is set out in R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421 at paragraph 68: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and newevidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be

any basis for the decision of the authorizing judge. [14] The term “amplified on review” was discussed most recently by our Court of Appeal in R. v. Fredrickson, 2018 BCCA 2 atpara. 31: Garofoli refers to the record "as amplified on review." The record before the reviewing judge is different than that before the authorizingjustice as a result of the submissions of counsel and, where leave has been granted, cross examination of the affiant.

In the amplificationprocess, the reviewing judge is to disregard or exclude erroneous information in an affidavit and, within limits, consider omittedevidence that should have been included. Amplification evidence may correct minor, good faith errors of the police, not deliberateattempts to mislead: Araujo at paras. 58-59; Wilson at para. 68; Sadikov at para. 85. A failure to make full and frank disclosure does not,without more, invalidate a warrant.

The reviewing judge must still assess whether the warrant could have issued on the basis ofinformation which had not been impugned: Wilson at para. 47; Canada (Procureur général) c.

Bisson, (SCC), [1994] 3S.C.R. 1097 (S.C.C.) at 1098. [15] Also in Fredrickson, supra, the court commented at paragraph 29 on the potential import of cross-examination, as well as itslimits: …cross examination that can show only that some of the information relied on by the affiant is false will not likely be useful unless aninference can be made that the affiant knew or ought to have known that the information was false… [16] The reviewing judge must consider the “totality of the circumstances” when deciding whether the record, as amplified,discloses reasonable and probable grounds.

The information must be examined as a whole rather than in piecemeal fashion: R. v.Whittaker, 2008 BCCA 174 at para. 41. [17] If the reviewing judge finds on the whole of the evidence set out in the ITO that there is no longer any basis upon which thepre-conditions for the granting of the warrant can be said to exist, the trial judge is required to find that the search or seizure wasunlawful, and contravened s. 8 of the Charter: Garofoli, supra, at para. 67. [18] The question to be decided here on review is this: based on the record before the authorizing judge, as amplified on the reviewbefore me, could the authorizing judge have granted the warrant to search for evidence of drug trafficking activity at the residence?

The Evidence on Review [19] The ITO sworn by Constable Vandelft was marked as an exhibit for identification. The affiant testified in chief and was cross-examined by counsel for Mr. Huynh. That cross-examination was focused on several paragraphs in the ITO. Additional evidencerelevant to the contents of those paragraphs in the ITO emerged during the testimony of the other police witnesses. [20] The affiant deposed at paragraphs 30 of the ITO that he believed the driver of the first Mazda CX5 was reloading the drug linefrom the residence.

He then set out in a series of sub-paragraphs the evidence he was relying upon in support of that belief. These includethe following: i. On 25 May, the same Nissan Altima, which was operated by the person who sold drugs to an undercover officer on the 24th ofMay, was surveilled to a Superstore in Langley. Police observed the Mazda CX5 parked beside the Altima; this was the first time theMazda had been observed in surveillance. The driver of the Altima was “Jade”, who was the person who sold drugs to an undercoverofficer on 24 May. Jade got into the passenger side of the Mazda.

Less than a minute later, she got out, returned to the Altima and droveaway. Earlier in the ITO, the affiant deposed to his belief that at this meeting, the Mazda driver was “reloading” the Nissan driver. ii. On 26 May, the Mazda was parked at the residence, then was seen to drive away to a brief meeting with a black GMC Sierrapickup truck; that vehicle was associated with a recent drug trafficking complaint. Once again, the affiant deposed to his belief that thismeet was consistent with a drug reload. iii.

On 30 May, an unknown Asian male was seen leaving the residence and driving away in the Mazda CX5, where there was ashort duration meet with the same Pontiac Vibe which had been operated by the person who sold drugs to an undercover officer on 18May 2017. He added that the driver of the Vibe was later identified as Ms. Hall, and he knew that Ms. Hall had been arrested for dial-a-dope drug trafficking in January of 2017. iv. On 31 May, the same unknown Asian male was seen leaving the residence and driving away in the Mazda CX5.

He drove directly to the area of 199th Street and 84th Avenue, where the second Mazda CX5 was parked. The Asian male got out of his vehiclecarrying a plastic bag, which he placed inside the second Mazda. That second Mazda was stopped shortly thereafter, and Ms. Hall wasarrested. Drugs were recovered from Ms.

Hall’s purse, and from a grey plastic shopping bag located in the centre console of the Mazda. a. 25 May [21] The affiant was cross-examined on paragraphs in the ITO, which detail these events. [22] Paragraph 21 sets out the details of the 25 May meet between the Nissan and the Mazda, where the driver of the Nissan got intothe passenger seat of the Mazda and left again after about one minute. The contents of paragraph 21 are based upon a report prepared bythe surveillance team.

Throughout that paragraph, the driver of the Nissan is described as “an unknown female”, which I take to meanthat the surveillance team members had not identified the driver as “Jade”, the person who sold drugs to a UCO on 24 May. ConstableTorenvliet, who was a member of that surveillance team, described the driver of the Nissan only as a white female with blonde hair. [23] I find that the name “Jade” must be excised from paragraphs 21 and 30 of the ITO for the purpose of this review. [24] Again, with respect to paragraph 21, the affiant deposes that the meeting on 25 May between the driver of the Altima and the

driver of the Mazda was a drug reload. The Altima driver had been observed making a series of short duration meets prior to this one; in each of those meets, the Altima driver remained in her car. There was nothing else to distinguish this meeting from the others, and no transaction or exchange was observed. In cross-examination, the affiant agreed that a reload involves the transfer of a larger quantity of drugs.

He also agreed that when the Nissan driver returned to her vehicle she was not carrying anything, nor did it appear that she had anything concealed on her person. [ 25 ] In the circumstances, I find that the affiant’s subjective belief that this was a drug reload is not objectively reasonable. In the result, I am excising that opinion where it appears in paragraph 21 of the ITO. b. 26 May [ 26 ] In paragraph 23 of the ITO, the affiant reports surveillance of a meeting on 26 May involving the Mazda, which had by this time, been linked to the residence, and a GMC Sierra.

The affiant deposed here that the Mazda was observed “stationary” beside the GMC, driver window to driver window. He expressed the belief that this was a short duration meet consistent with drug trafficking. The affiant also referred to CPIC and PRIME information of a recent complaint that the GMC was involved in drug dealing, which was described in the complaint as “exchanges with pedestrians.” [ 27 ] There are a number of problems with the information contained in paragraph 23. In cross-examination, the affiant was shown notes prepared by PC Neufeld, who was part of the surveillance team.

The affiant agreed that Neufeld did not say that the vehicles were stopped or stationary. That language was also missing from the surveillance team report, which the affiant reviewed when drafting his ITO. Of greater significance is the very different opinion expressed by the affiant at paragraph 30 when he described in

summary terms the same encounter between the GMC and the Mazda. In paragraph 23, he deposed that the 26 May meet was consistent with drug trafficking; in paragraph 30, he said that same meeting was consistent with a drug reload. [ 28 ] Crown counsel has conceded in submissions that the word “stationary” in paragraph 23(f)(ii) of the ITO, should be excised. I agree, but I would go further.

The conflicting opinions in paragraphs 23 and 30 as to what was happening at this meeting, drug trafficking vs. drug reloading, must be excised as well. c. 30 May [ 29 ] In paragraph 24, the affiant reports a meeting involving the Mazda and the Pontiac Vibe on 30 May. The Vibe was the same vehicle used during an undercover drug sale on 18 May. An unknown Asian male was observed leaving the residence in the Mazda. About 30 minutes later, the Vibe and the Mazda were followed by surveillance while driving in tandem. The ITO describes the driver of the Vibe as an unknown female.

The two vehicles were observed beside each other and stationary for an unspecified period of time; both vehicles then drove away. The affiant expressed the view that the meet was consistent with a drug reload. He added that about 30 minutes after this meeting, Ms. Hall was observed getting into the driver’s seat of the Vibe when it was parked at a residence on Robertson Crescent; the affiant also added information regarding Hall’s January 2017 arrest for drug trafficking. Later at paragraph 30(

c) in the ITO, the affiant once again referred to this meeting; there he said that the driver of the Vibe during that meeting was later identified as Jennifer Hall. [ 30 ] The assertion that Ms. Hall was driving the Vibe when it met with the Mazda is contradicted by the evidence of PC Torenvleit, who was part of the surveillance team for this event. He testified that he saw Ms. Hall get into the driver’s seat of the Vibe at Robertson Crescent. [ 31 ] I find that the affiant’s statement in paragraph 30, that the driver of the Vibe on 30 May was later identified as Jennifer Hall, is misleading.

As drafted, that paragraph would inevitably cause the issuing justice to believe that police were able to identify the driver of the Vibe when it was stopped beside the Mazda, when in fact all that can be said is that Hall got into the driver side of the vehicle some half an hour later, and at a different location. This must also be excised from the ITO. d. 31 May [ 32 ] 31 May was critical to the overall investigation.

The meeting between the drivers of the two Mazda CX5’s was the triggering event for the arrest of Hall, which led in turn to the recovery of drugs from her purse, and from a plastic bag in the centre console of her vehicle. The circumstances surrounding this meeting and its aftermath are set out in paragraphs 25 to 27 of the ITO. At paragraph 30, the affiant summarized the evidence in support of his belief that the Asian male operator of the first Mazda CX5 was reloading the drug line from the residence; that

summary included the events of 31 May. [ 33 ] I accept that following the arrest of Ms. Hall and the search, which turned up drugs, including drugs in a plastic shopping bag, police had sufficient grounds to stop and arrest the Asian male who was driving the first Mazda CX5. That, however, is not the question to be decided here.

The question here is whether the ITO, as amplified on review, disclosed reasonable and probable grounds to search at the residence for evidence of drug trafficking. [ 34 ] There is no question that the Mazda CX5 and its Asian male operator had been connected to the residence during surveillance, including surveillance on 31 May itself. That male had been observed accessing the front door with a key, and was seen coming to and from the residence on a number of occasions prior to the 31 st .

On 31 May, that male was observed leaving the residence at about 0837; he was then followed by members of the surveillance team when he drove away in the Mazda. [ 35 ] The surveillance of the Mazda from the residence to the meeting with the second Mazda can be found at paragraph 25 of the ITO. The sources for that information are the surveillance report and direct observations made by the affiant. The critical portions are at sub-paragraphs (

c) and (d), which describe events after the Asian male left the residence at 0837: • At 8:38 a.m. the grey Mazda CX5…turned east on 108 Avenue from 148 Street. Visual continuity was broken briefly at this time . [Emphasis Added]

• At 8:48 a.m., the grey Mazda CX5…was located and observed driving east on Highway 1 near 192 Street. Surveillancewas established and maintained on the grey Mazda CX5… [Emphasis Added] [36] There was a further observation of the Mazda noted at 0850; the next entry describes the meeting with the second Mazda CX5commencing at 0854 hours. [37] Later at paragraph 30(

i) of the ITO, the affiant deposed that “the unknown Asian male driver was observed on surveillancedriving directly to the area of 199 Street and 84 Avenue.” [Emphasis Added]. This is the location where the two Mazda’s came togetherfor an exchange at 0854 hours. [38] PC Galasso testified in the voir dire. He was part of the surveillance team on 31 May.

In cross-examination, he agreed thatpolice could not account for the movements of the first Mazda CX5 and its Asian driver between 0838 and 0848. [39] The affiant, PC Vandelft, was also cross-examined on the difference between what appears at paragraph 25 of the ITO, and hisassertion in paragraph 30 that the first Mazda CX5 drove directly from the residence to the meet at 0854. He was shown a map of anarea, which included the residence and the meeting place. He agreed that the Mazda operated by the Asian male would have had to travelthrough a series of residential streets to access Highway 1.

He also agreed that reloads can take place quickly, and that the Asian malecould have completed a drug reload at any point along the way. He agreed that the Asian male was not carrying or apparently concealinganything when he left his residence at 0837. He recognized that there was a 10-minute gap in surveillance of the Mazda between 0838and 0848. He was confronted with the language he employed in paragraph 30(

i) of the ITO, where he said that the Mazda “drovedirectly” to the meeting site. He disagreed that this phrasing was misleading; he said he meant to convey only that the Mazda had notbeen observed making any other stops between the residence and the meeting site. Later, he testified that based on the time gap, he“believed” that the Mazda drove continuously from the residence to the meeting. He did not set out in the ITO or in his testimony theevidentiary underpinning for this belief. [40] As amplified on review, the evidence does not support the affiant’s assertion in paragraph 30(

i) of the ITO that the Mazdaoperated by the Asian male drove directly from the residence to the meeting site. That portion of the ITO will be excised. Analysis [41] The critical issue here is whether what is left of the ITO, as amplified on review, continues to provide reasonable and probablegrounds to issue a warrant to search at the residence for drugs. In particular, is there in what remains, sufficient reliable information tosupport the warrant? (R. v. Araujo, [2000] 2 S.C.R. 142, at paras. 51-53; R. v. Monroe, (BC CA), [1997] B.C.J.

No.1002, at para. 24). [42] The problems which have been identified in the ITO in this case calls to mind concerns expressed by Southin J.A. in R. v.Dellapenna, 1995 Carswell BC 1236, where the ITO affiant, although not intending to mislead, demonstrated a significant lack of care insetting out the evidence before the issuing justice: [36] The learned judge found that the informant did not intentionally mislead. [37] By that, I take it the learned judge meant that the informant did not swear this information saying to himself “I am going to tellthe justice of the peace a pack of lies.” But the informant plainly did not say to himself, “Have I got this right?

Have I correctly set outwhat I’ve done, what I’ve seen, what I’ve been told, in a manner that does not give a false impression?” [43] I cannot find that the affiant here set out to intentionally mislead the authorizing judge, but I do find that he did not ask himself,“Have I got this right? Have I correctly set out what I’ve done, what I’ve seen, what I’ve been told, in a manner that does not give a falseimpression?” This failure goes to the heart of Cst. Vandelft’s obligation to make full, fair, and frank disclosure at an ex parte applicationfor a Warrant to Search at a private residence.

This review has turned up a number of examples where Cst. Vandfelt’s account has provedto be unreliable, and in the result, misleading. [44] This, of course, is not the end of the matter.

I must consider what is left in the ITO and the record, as amplified, and determinewhether there remains sufficient reliable information to support the issuance of a Warrant to Search for drugs at this residence and askmyself this question: based on the record before the authorizing judge, as amplified on the review before me, could the authorizingjudge have granted the Warrant to Search for evidence of drug trafficking activity at the residence? [45] I can find no better way to express the question to be answered at this stage than to adopt the words of Mr. Justice Esson in R. v.Monroe, (BC CA), [1997] B.C.J.

No. 1002, at para. 24: …Having found that some parts of the information must be expunged by reason of error or being misleading, the reviewing judge shouldnevertheless uphold the warrant if…he is satisfied that there was sufficient independently verifiable information which was not affectedby that finding and upon which an authorization could reasonably be based. [46] Defence counsel relies on the reasons in R. v. Le, 2014 BCCA 166 and R. v.

Sunner, 2017 BCSC 2445 as examples ofcircumstances where courts have found that while the investigation had turned up evidence of drug trafficking, the contentious issue waswhether any of that activity could be connected to the residence for which police had obtained and executed a search warrant. I havefound that these cases provide useful guidance in light of the evidence before me at this review. [47] The critical gap here is that time between 0838 and 0848 on the 31 of May, where surveillance could not account for themovements of the first Mazda and the actions of the Asian driver.

There was nothing in the evidence placed before the issuing justice tosuggest that the Asian driver was transferring a drug reload from the residence to the first Mazda, and nothing to account for whathappened between the residence and the Mazda to Mazda meeting. The evidence in the ITO on its face relied upon in support of thepolice theory that the Asian male had reloaded the line is tenuous at best; this body of information has been undermined and degradedfurther on review. Leaving all of that aside, I find that there was nothing observed during surveillance to suggest that the residence was

being used as a “stash house” for the drug line. [ 48 ] I have concluded that the evidence in the ITO, as amplified on review, is not capable of supporting a credibly based probability that evidence of drug trafficking offences then under investigation would be found within the residence at 14763-110A Avenue in Surrey. [ 49 ] In the result, I find the search was undertaken in breach of the applicant’s right to be secure from unreasonable search and seizure as guaranteed by s. 8 of the Charter of Rights and Freedoms . 2.

The Search of Jennifer Hall [ 50 ] Jennifer Hall argues that she was subjected to an illegal strip search after she was transported from the arrest scene to the Langley RCMP detachment. Relying on the principles set down by the Supreme Court of Canada in R. v. Golden , 2001 SCC 83 , she submits that this search breached her s. 8 right to be secure from unreasonable search and seizure.

Relying on the test for a stay of proceedings in cases which deal with the doctrine of abuse of process, she submits that the remedy for this breach is a judicial stay of proceedings under the authority of s. 24(1) of the Charter . [ 51 ] Crown counsel concedes that Ms. Hall was subjected to a strip search and that Ms. Hall’s s. 8 rights were breached, but submits that this is not one of the “clearest of cases” where the exceptional remedy of a stay of proceedings is warranted. [ 52 ] Cpl. Terry Leslie, the officer who searched Ms. Hall at the RCMP detachment, is the only witness who testified on this voir dire .

Summary of the Circumstances [ 53 ] Cpl. Terry Leslie assumed physical custody of Jennifer Hall following Ms. Hall’s arrest for drug offences. In direct examination, Cpl. Leslie testified that while still at the scene of the arrest she “would have” conducted a pat down search of Ms. Hall. She believed that another officer transported Ms. Hall to a nearby RCMP detachment. She testified that she had “no free recall of what happened next”. She knew that she searched Ms.

Hall at RCMP cells, but she had no independent recall of how that happened; she could only give evidence of her usual practice and RCMP policy when dealing with female suspects in situations such as these. [ 54 ] Cpl. Leslie had difficulty separating in her mind the details of her involvement with Ms. Hall on 31 of May from her earlier cell block search of Ms. Hall on 19 of January 2017, which also followed an arrest for drug trafficking. Ms. Hall was charged with drug offences following the January arrest. At that trial, Cpl. Leslie was found to have conducted a “routine” strip search of Ms.

Leslie which was carried out in a manner which violated Ms. Hall’s s. 8 Charter rights: R. v. Hall , (11 March 2019), Surrey Registry Number 221168- 1 (Prov. Ct.). [ 55 ] Cpl. Leslie testified regarding her usual practice as of May 2017 when booking a new female arrestee into cells. She referred to this procedure as a “cell search.” Later in her evidence, she said that this procedure was RCMP policy for the conduct of cell searches of all female arrestees.

She said that the main reason for the search is to determine if the suspect is hiding weapons, drugs, other evidence, or anything else which she might use to harm herself. When conducting a cell search of a female suspect, Cpl. Leslie performs an over- the-clothing pat-down search from top to bottom. The arrestee is then taken into a private room in the company of another female police officer or jail guard and is told to remove her bra, which is then searched for contraband. Cpl.

Leslie testified that the current practice is to return the bra to the suspect unless there are additional safety concerns; she offered the example of a suspect who has been identified as a suicide risk. This description came with the added proviso that Cpl. Leslie had no independent recollection that she followed this procedure with Ms. Hall on 31 of May 2017. [ 56 ] In cross-examination, Cpl. Leslie was asked if the pat-down search included physically touching the breasts.

She said her normal practice during the over-the-clothing pat-down search was to get her arm between and then underneath the breasts to make sure nothing was there. Cpl. Leslie added to the end of her answer that the pat-down search, which I take to be a reference to her search in the area of the breasts, can be done either before or after the bra is returned to the arrestee. After additional cross-examination, she conceded that the pat-down search of Hall was likely conducted after her bra was removed, but she could not be certain that the search also included a swipe or search under Hall’s breasts. [ 57 ] Cpl.

Leslie made only one notebook entry, which refers in any way to a search of Ms. Hall at cells. At 1038 hours, she wrote, “I received Hall from PC Borque at Langley cells. I asked about a strip search. PC Anders Galasso (told me that) Cpl. Chung said no, not authorized. Search negative.” In cross-examination, she insisted that she was not seeking authorization to conduct a strip search of Ms. Hall, only clarity as to the type of search that she should conduct. [ 58 ] Cpl.

Leslie was cross-examined on the contents of her Supplemental Report to Crown dated 29 May 2018; in that report, she addressed her dealings with Ms. Hall at the arrest scene and later at cells. With reference to that report, she agreed that at the arrest scene she asked Ms. Hall if she had any drugs in her bra. She then conducted a pat-down search of Ms. Hall prior to her transport to cells. She wrote in her report that she conducted a more thorough search of Hall after arriving at cells.

She testified that this would have included removal of socks, which are turned inside out, removal of the bra in the case of a female arrestee, and a more thorough pat-down search for weapons and drugs. [ 59 ] Cpl. Leslie agreed in cross-examination that her notes are silent regarding the area where this search was carried out, and whether that area of the cellblock was video monitored, although she concluded that these areas would probably be equipped with video cameras. She did not write down in her notes whether she returned Ms. Hall’s bra after it was removed and searched for contraband.

Her explanation for having so few notes was that a great many of these routine searches are performed, and she did not believe them to be of evidentiary value to the file or otherwise relevant. [ 60 ] Cpl. Leslie testified to her familiarity with the requirements for conducting a lawful strip search as set out in R. v. Golden , and took the view that what happened here, assuming that she followed her usual cell search procedure, was not a strip search, which she

described as a complete removal of clothing one piece at a time followed by a physical inspection of that part of the body. Analysis i. Was this a Strip Search? [61] The first step is to determine what sort of search Ms. Hall was subjected to at RCMP cells. The evidence is less that satisfactorygiven Cpl. Leslie’s poor recall and failure to take notes, and I have not heard from Ms. Hall or anyone else who might have been able toadd to that record. In his submissions, Crown counsel conceded that the only logical inference is that Cpl.

Leslie conducted what shecalled a “cell search” using the method she described in her evidence. I agree that I should draw that inference in this case given Cpl.Leslie’s evidence that this procedure was a national policy which was followed at the Langley RCMP detachment. [62] Crown counsel took his submission one step further, and conceded that the cell search described by Cpl. Leslie meets theSupreme Court of Canada’s definition for a strip search set out at paragraph 47 in R. v.

Golden: “…the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas,namely genitals, buttocks, breasts (in the case of a female), or undergarments.”… [63] Facts similar to those in this case were considered by Fuerst J., in a

summary conviction appeal in R. v. Lee, 2013 ONSC 1000.Ms. Lee appealed her impaired driving conviction. She argued that the trial judge had erred in finding she had not been subjected to astrip search when she was taken to a police detachment for further investigation. The arresting officer directed Ms. Lee to remove andhand over her underwire bra pursuant to an unwritten policy in the York region that underwire bras were to be taken from femalearrestees as a safety measure. When Ms. Lee removed her bra, she also removed a sweater and t-shirt, fully exposing her breasts forapproximately 20 seconds.

The trial judge concluded that because the officer’s intention in having the bra removed was not to inspect theappellant’s breasts, but rather to inspect and store the bra, there was no strip search. Fuerst J. found that the trial judge erred in failing toapply the definition for a strip search at paragraph 47 in Golden, which includes the removal and visual inspection of undergarments: R.v. Lee, supra, at paras. 35-37. [64] I find that Ms. Hall was subjected to a strip search in this case. Strip searches are prima facie unreasonable.

The Crown bearsthe onus of proving the legality of a strip search, and must demonstrate on a balance of probabilities that there are reasonable andprobable grounds for concluding that a strip search was necessary, and where there are sufficient grounds, that the search was carried outin a reasonable manner: R. v. Golden, supra, at para. 106. [65] I agree with defence counsel that the strip search of Ms. Hall was conducted without the requisite reasonable and probablegrounds for concluding that this procedure was necessary to search for drugs or weapons, and after it was made clear to Cpl.

Leslie that asuperior officer had not authorized this type of search. Cpl. Leslie testified that the only rationale for removing Ms. Hall’s bra was anational RCMP policy which was routinely applied to female arrestees at her detachment. Because Cpl.

Leslie did not view this as a stripsearch, she took no steps to ensure that the search was carried out in a private area without video surveillance, and she did not keep aproper record of the search in her notes; both are necessary pre-conditions to ensure that a strip search is Charter compliant: R. v.Golden, supra, at para. 101. [66] The Crown has not tendered any evidence which suggests that this search was carried out for security concerns linked to a planor expectation that Ms.

Hall would be kept in custody for an extended period of time, or that she would be transferred at some later timeto another secure facility. [67] I find that the strip search conducted by Cpl. Leslie violated Ms. Hall’s s. 8 right to be secure from unreasonable search andseizure. ii. The Appropriate Remedy [68] Counsel for Ms. Hall seeks a remedy pursuant to the court’s jurisdiction under s. 24(1) of the Charter, and submits that this isone of the clearest of cases which calls for the extraordinary remedy of a judicial stay of proceedings.

Counsel relies on the residualcategory of the doctrine of abuse of process. Under this heading, the court is asked to determine whether the conduct in question risksundermining the integrity of the judicial process: R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411; R. v. Regan, 2002 SCC12; R. v. Babos, 2014 SCC 14. [69] A stay will be warranted for abuse of process only in the clearest of cases. An accused who seeks a stay under the residualcategory faces an onerous burden; cases warranting a stay under this category will be “exceptional” and “very rare”: R. v.

Babos, supra atpara 44; Canada (Minister of Citizenship and Immigration) v. Tobiass, (SCC), [1997] 3 S.C.R. 391 at para. 91. [70] The test for determining whether a stay of proceedings is warranted under the residual category is the following: 1. There must be prejudice to the integrity of the justice system that will be manifested, perpetuated or aggravated through theconduct of the trial or by its outcome; stated another way, the question is whether proceeding in light of the impugned conduct would dofurther harm to the integrity of the justice system. 2.

There must be no alternative remedy capable of redressing the prejudice; the focus here is on whether an alternate remedy shortof a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward; and 3. Where the residual category has been invoked, the court must balance the interests in favour of granting the stay against theinterest that society has in having a final decision on the merits. The court will consider the nature and seriousness of the impugnedconduct, whether it is isolated or ongoing and systemic, the circumstances of the accused, and the charges.

R. v. Babos, supra, at paras 32, 38, 40-1.

[ 71 ] The court in Babos commented on the differences between the first category of the doctrine, where the focus is on the fairness of the trial, and the residual category: [35] By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences.

At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met. [ 72 ] Where the residual category is in play, the balancing at step three takes on added importance: R. v. Babos , supra , at paras. 40-1 .

The court offered this test for assessing conduct which might tip the scales towards a judicial stay of proceedings: Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community's conscience and/or offends its sense of fair play and decency, it becomes less likely that society's interest in a full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered. R. v.

Babos , supra, at para. 41 . [ 73 ] In addition to the facts surrounding the unlawful strip search, in this case we have the most unusual added element of Ms. Hall having been unlawfully strip searched in much the same manner, by the same officer, some five months earlier. [ 74 ] In her reasons in what I will call R. v. Hall No.1 (see citation above at para. 53), Gaffar PCJ found that the Langley RCMP were engaged in the routine practice of removing and inspecting the bras of female arrestees who were in cells at their detachment. In that case, Cpl.

Leslie performed what she described as a routine “cell search.” The search was conducted in a room which was equipped with operating video cameras, and the entire procedure was recorded; that recording was played in court. This search was carried out in much the same manner as the “routine” cell search described by Cpl. Leslie in her evidence before me, and for the same expressed reasons: to search for drugs and/or weapons. The court noted that the naked side of one of Ms. Hall’s breast was clearly visible in that recording. It was also apparent that Ms. Hall was crying and upset during that search.

Gaffar PCJ considered the circumstances of that search, and the same cases I have referred to here with regard to the residual category of abuse of process, and concluded that the only appropriate remedy was a judicial stay of proceedings. [ 75 ] The voir dire ruling in Hall No. 1 happened long after the strip search of Ms. Hall on 31 May 2017. Having said that, Cpl.

Leslie testified before me that national RCMP policy (which was not shown to me) continues to endorse this cell search procedure, with the only change being that the female arrestee’s bra is returned immediately so long as there are no safety concerns associated with the bra itself. She also testified that RCMP in Langley follow that policy to this day. [ 76 ] Cpl. Leslie, in particular, and the RCMP more generally, have had the benefit of Supreme Court authority setting out a clear definition for a strip search since the Golden decision in 2001.

The court in Hall No. 1 found, and I agree, that the cell search practice followed by the RCMP was a routine and persistent failure to take heed of and apply that standard to their cell block procedures for female arrestees, this despite Cpl.

Leslie’s evidence that she was aware of the Golden requirements, which is the same testimony she gave before me. [ 77 ] At paragraphs 90 through 101 in Golden , the court found that strip searches “are…inherently humiliating and degrading for detainees regardless of the manner in which they are carried out and for this reason they cannot be carried out simply as a matter of routine policy.“ [Emphasis Added] The court commented on the pressing need to “prevent unjustified searches before they occur.” The court rejected the idea that strip searches can be carried out routinely as an incident to arrest, required that police obtain grounds separate and apart from grounds for arrest to justify a search of this type, and established strict standards which must be followed where police, having acquired the necessary grounds, choose to employ this highly invasive search technique. [ 78 ] The Langley RCMP have been conducting for some time routine cell searches of females.

That policy includes a requirement that the arrestee remove her bra for inspection. Cpl. Leslie testified before me that this policy remains in place to this day. I can only conclude from this evidence that the RCMP in Langley were in May of 2017, and are today, routinely violating the strip search standards set down by the Supreme Court of Canada in 2001. In Hall No. 1 , Gaffar PCJ found that the state conduct here is serious. I agree.

This is quite clearly a case where I can be satisfied that the impugned conduct has prejudiced the integrity of the justice system, and that proceeding in light of that conduct would do further harm to the integrity of the justice system. [ 79 ] I also agree with Gaffar PCJ that there is no alternative remedy capable of redressing the prejudice caused by this conduct.

This is particularly the case where the RCMP, despite the ruling in Golden and the much more recent decision of Gaffar PCJ in Hall No.1 , have continued the practice of carrying out unlawful cell searches of female arrestees. [ 80 ] In balancing the interests in favour of granting the stay against the interests society has in having a final decision on the merits, I have considered that Ms. Hall stands charged with serious CDSA offences; these include possession for the purpose of trafficking dangerous and sometimes lethal substances, including heroin, fentanyl and carfentanil.

It is obvious that society has a clear interest in seeing these charges adjudicated on their merits. This public interest must be balanced against the longstanding and ongoing pattern of conduct by the Langley RCMP with respect to cell searches of female arrestees. That conduct, a misapplication of the standards down by the Supreme Court of Canada many years ago, is serious in and of itself. Worse still, Cpl.

Leslie and her superiors have not been deterred by the decision of this court in Hall No. 1. [ 81 ] Having carefully considered all the evidence and the law pertaining to the residual category of the doctrine of abuse of process, I find that proceeding in light of this impugned conduct would do further harm to the integrity of the justice system. I have concluded that this is one of the clearest of cases. With respect to the charges against Ms. Hall, I direct a stay of proceedings.

____________________________ The Honourable Judge M. Jetté Provincial Court of British Columbia