R. v. I.D.G., 2022 BCPC 294

Citation: R. v. I.D.G. 2022 BCPC 294 Date: 20220527 File No: 42892-3-C Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. I.D.G. BAN ON PUBLICATION - Sections 486.4 (1) and

(2.2) C.C.C. REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE B. FLEWELLING Counsel for the Crown: W. Silliker Counsel for the Defendant: B. Zargarian, P. Herrera Place of Hearing: Campbell River , B.C. Dates of Hearing: Dates of Hearing: Date of Judgment: May 27, 2022 Introduction [ 1 ] Mr. I.D.G. is charged with what is commonly called “voyeurism” by unlawfully observing and/or recording A.D. on June 18, 2020 (Count 1); prowling at night on property near a dwelling house on June 18, 2020 (Count 2); and what is commonly called “criminal

harassment” of A.D. from February 14, 2018 to June 18, 2020 (Count 3). All are alleged to have occurred at or near Campbell River, BC. [ 2 ] Mr. I.D.G. was arrested in the early hours on June 19, 2020, by Cst. Garcia and Cst. Palmer. Mr. I.D.G. was arrested, without a warrant, in his bedroom – a room he rents from his landlord who is the owner of the residence. Mr. I.D.G.’s cell phone was seized by Cst. Garcia. Photographs were taken of the interior of Mr. I.D.G.’s vehicle which was parked outside the residence in the driveway.

Once arrested, he was taken to the detachment where he eventually gave a statement to Cst. Biller. Subsequent to the arrest, search warrants were obtained by the police which allowed them to search Mr. I.D.G.’s cell phone. As a result, the police located a number of photographs of A.D. that appear to have been taken by Mr. I.D.G. from at least early 2018. A search warrant authorizing a search of Mr. I.D.G.’s vehicle was also obtained after the arrest and resulted in the seizure of a box of blue latex gloves and a package of tile trackers. [ 3 ] Defence counsel seeks an order that the police breached Mr.

I.D.G.’s s. 8 Charter right to be free from unreasonable search or seizure, and his s. 9 Charter right not to be arbitrarily detained. These breaches, it is asserted, flow from the initial warrantless arrest of Mr. I.D.G. If I conclude there were breaches, Mr. I.D.G. seeks an order, pursuant to s. 24 (2) of the Charter , excluding the following evidence obtained by the police:

a) the photographic evidence obtained from Mr. I.D.G.’s cell phone pursuant to a search warrant;

b) the photographs of the contents of Mr. I.D.G.’s vehicle taken by Cst. Palmer;

c) the evidence seized from the interior of Mr. I.D.G.’s vehicle pursuant to a search warrant; and

d) the statement by Mr. I.D.G. to Cst. Biller while in custody at the police detachment. The Evidence [ 4 ] The trial started on March 16, 2022, with the evidence of Cst. Garcia Trigueros (Cst. Garcia), Cst. Palmer and Cst. Biller introduced in a voir dire . [ 5 ] The facts are, for the most part, uncontested. [ 6 ] Cst. Garcia and Cst. Palmer began their shifts on June 18, 2021. Both are with the Comox Valley detachment and have been officers for approximately four years and five and a half years respectively. On June 19, 2020, at about 1 a.m., Cst.

Garcia received notice from the Campbell River detachment of a reported incident of voyeurism, that a suspect’s vehicle was described as a dark blue Volvo with licence plate [omitted for publication], that the vehicle was registered to the defendant, I.D.G., and that it was associated to an address on [omitted for publication] Road in Merville, BC. [ 7 ] Cst. Garcia spoke with Cst. Hobbs from the Campbell River detachment. He is now Cpl. Hobbs and I will refer to him by his current rank. Cpl. Hobbs provided a quick

summary and requested that Cst. Garcia attend at the reported residence, see if the vehicle was there, and take Mr. I.D.G. into custody – in other words, arrest him – for voyeurism and seize his cell phone. [ 8 ] They arrived at the residence and saw the blue Volvo with matching plates in the driveway. Cst. Palmer touched the hood of the car and it was still warm. He looked inside and saw blue latex gloves in the back seat. [ 9 ] The officers were standing outside in the driveway when the owner of the house spoke to them from the balcony of the second floor of the house. They told him they were looking for Mr.

I.D.G. and were advised that Mr. I.D.G. was one of his tenants and rented a room on the ground level. The owner opened the sliding glass door at the ground level and took them inside directly to Mr. I.D.G.’s bedroom. There were one or two hallway lights on. They followed the owner into the residence and the owner knocked on the bedroom door. Both officers testified that the owner told Mr. I.D.G. that the police were there. [ 10 ] Cst. Garcia testified that ideally they do a door knock at the entrance of a residence, but the owner showed them where Mr. I.D.G. was and the owner had no concerns. [ 11 ] Cst.

Garcia testified that Mr. I.D.G. opened the bedroom door, and once Cst. Garcia confirmed that this was indeed the person they were looking for, and while still standing at the door frame, told him he was under arrest for voyeurism. Cst. Garcia then stepped inside the room and arrested Mr. I.D.G. [ 12 ] However, Cst. Palmer testified that he thought the owner of the house opened the bedroom door and it was at that point that Cst. Palmer announced himself, nudged the door open wider and told Mr. Mr. I.D.G. he was under arrest for voyeurism. Mr. I.D.G. was still in bed.

He didn’t know if he stepped into the bedroom, or if both officers went inside or just Cst. Garcia went inside. It was clear that Mr. I.D.G. was arrested inside his bedroom. [ 13 ] They allowed Mr. I.D.G. to get dressed and watched as he did so. Once dressed, Cst. Garcia read him his Charter rights at 2:10 a.m. According to Cst. Garcia, Mr. I.D.G.’s shoes were either outside the bedroom door or outside the sliding glass door entrance to the ground level of the house. Cst. Garcia testified that he saw a cell phone on the bedside table and when Mr.

I.D.G. picked it up, told him to put it down because he was seizing it for the investigation. A search warrant was subsequently obtained and numerous incriminating photographs of A.D. that appear to have been taken over the past several years were located. [ 14 ] He put Mr. I.D.G. in his police vehicle. He asked him where his wallet was, and upon being advised it was in his vehicle, retrieved it from underneath the dashboard of the Volvo. He took Mr. I.D.G.’s BC driver licence out of the wallet to confirm the photograph matched. He kept the wallet, knowing that Mr.

I.D.G. would be transported to the Campbell River detachment. He took several photographs of the interior and exterior of the Volvo and then, as arranged with Cpl. Hobbs, took Mr. I.D.G. part way to Campbell River where they met Cpl. Hobbs who took him the rest of the way. [ 15 ] Cst. Garcia was not aware, then, that police are required to have what is often called a “ Feeney ” warrant in order to legally enter

a residence to effect an arrest. Since this arrest, he has been apprised of the need for that. [16] Cst. Palmer testified that, while aware of the requirements for a Feeney warrant, it was not relevant in these circumstances and, ashe said, at no point …did it even enter his mind. He was aware that he could meet someone at the door of a residence and that police canenter a residence if exigent circumstances exist or if safety is a concern. This was not a situation where the door was slammed in his faceor someone is evading arrest and won’t come to the door. Mr.

I.D.G. was cooperative and he felt that was sufficient. [17] Mr. I.D.G. was placed in a jail cell at the Campbell River detachment at about 3:30 a.m. Cst. Biller started her shift that day at 7a.m. and was apprised of Mr. I.D.G.’s arrest and surrounding circumstances. At around 10:30 a.m., Cst. Biller began speaking with him.Her interview took place after Mr. I.D.G. had an opportunity to speak with counsel which took place initially in the late morning and thenafter lunch. The interview concluded at 3:26 p.m. He was released shortly thereafter. He was in custody close to 24 hours. [18] During submissions, Mr.

I.D.G. abandoned the assertion that contrary to s. 503 (1) of the Criminal Code he was not broughtwithin a Justice within 24 hours. Mr. I.D.G. is not advancing an argument that the ground floor of the house is a residence, only thebedroom. The Legal Framework [19] The legal framework that governs my decision is established by s. 24 of the Charter: 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. 24.

(2) Where, in proceedings under section (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all circumstances,the admission of it in the proceedings would bring the administration of justice into disrepute. [20] The reasons for this important Charter protection were succinctly summarized by Griffin, J.A. in R v.

Reilly 2020 BCCA 369: [1] Section 24(2) of the Canadian Charter of Rights and Freedoms requires the courts to exclude evidence obtained by police in amanner that would bring the administration of justice into disrepute. This constitutional requirement serves to keep police conduct withinthe reasonable boundaries expected in our free and democratic society and preserves the public respect for the administration of justice. [2] One of a person’s most private spaces is their home. More than twenty years ago, in the case of R. v.

Feeney, (SCC), [1997] 2 S.C.R. 13, the Supreme Court of Canada made it clear that police are prohibited from entering a private home without awarrant for the purpose of arrest, absent exigent circumstances. The requirement of a warrant before police enter a home avoids after-the-fact rationalizations of the police intrusion. This requirement has since been codified in the Criminal Code, R.S.C. 1985, c. C-46,s. 529. Threshold Inquiry: Obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter [21] This was a warrantless arrest that took place inside Mr. I.D.G.’s bedroom.

Counsel agree with the fundamental legal principlesthat are applicable. Crown agrees that there was a breach of Mr. I.D.G.’s s. 8 Charter rights when the officer or officers entered Mr.I.D.G.’s bedroom and arrested him without a warrant. This was not a case of hot pursuit nor were there exigent circumstances. The arrestwas unlawful. [22] Flowing from the unlawful arrest, Cst. Garcia seized Mr. I.D.G.’s cell phone from which numerous photographs were obtainedpursuant to a search warrant obtained after the arrest. Those photographs form the basis of Count 3.

Also flowing from the unlawfularrest was the unlawful detention, when Mr. I.D.G. was interviewed by Cst. Biller and made inculpatory statements. Crown alsoappropriately agrees that the seizure of the cell phone and the unlawful detention breached Mr. I.D.G.’s s. 8 and s. 9 Charter rights. [23] There is no dispute that the arrest was unlawful, the seizure of the cell phone was unlawful and the detention was unlawful. Theevidence taken from the cell phone and the statement to Cst. Biller were obtained in a manner that infringed on Mr. I.D.G.’s s.8 and s. 9Charter rights.

Even though the police obtained a search warrant at a later date to search the cell phone, the seizure of the cell phoneduring the arrest, enabled the police to obtain a search warrant. The evidence from the cell phone and the statement to Cst. Biller arelinked proximally, causally and temporally to the unlawful arrest and seizure. In other words, there is a connection between the Charterviolations and the evidence obtained notwithstanding this evidence could have been discoverable by lawful police conduct: Reilly, para.71 citing Pawar, 2020 BCCA 251. The unlawful seizure of Mr.

I.D.G.’s cell phone, after the unlawful warrantless arrest, tainted thesearch authorized by a subsequent search warrant and the statement given to Cst. Biller: Reilly, para. 78 [24] As a threshold issue, I am satisfied that the evidence – the photographs from the cell phone, and the statement to Cst. Biller –were obtained in a manner that infringed on Mr. I.D.G.’s Charter rights. [25] Accordingly, all this evidence meets the threshold requirement and is subject to a s. 24(2) analysis. [26] The last piece of evidence Mr. I.D.G. seeks to have rendered inadmissible are the photographs taken by Cst.

Garcia of theexterior and interior of the Volvo and those two items which were seized pursuant to a search warrant obtained after the unlawful arrest.Cst. Palmer, when he first arrived at the residence, looked into the windows of the vehicle parked in the driveway and testified that hesaw blue latex gloves. This occurred before the unlawful arrest. The photographs of the interior of the vehicle show a box with blue latexgloves and a package with the words “TILE” on what appears to be the rear seat.

Once these two items were seized, the police were in aposition to confirm that the package with the words “TILE” were tile trackers which are used to locate, or track, lost items. The bluelatex gloves and the Tile package were clearly visible through the windows and from outside the vehicle as depicted in the photographs. [27] The officers had been advised that someone driving a vehicle of that make and with that licence plate number may have

committed the offence of voyeurism. The officers looked through the windows of the vehicle and felt the hood of the vehicle which was still warm. The objects could be seen simply by looking through the windows. They were in plain view on the back seat. The search warrant was based on the observations made by the officers after looking through the windows of the vehicle. Cst. Palmer testified that it was under an open carport. There was little evidence adduced about the exact location of the vehicle and how open the carport was. Both officers testified that the vehicle was parked in the driveway.

This is not a garage which clearly would be considered part of a dwelling. Other people entering or leaving the house could easily look through the windows and see the same objects. They were not hidden in any manner. In these circumstances, Mr. I.D.G.’s privacy interest in what could be seen in the interior of his vehicle is considerably attenuated. [ 28 ] I am not satisfied that the photographs taken by Cst. Garcia, taken as they were through the closed windows of the vehicle, resulted in a breach of Mr. I.D.G.’s s. 8 Charter rights.

The search warrant was based on the evidence that blue latex gloves were seen inside the vehicle and the report that the person who recorded A.D. was wearing blue latex gloves. I am not satisfied that the subsequent search of the vehicle, based on those observations, was connected to the other breaches of Mr. I.D.G.’s Charter rights such that it was obtained in a manner that infringed the Charter . The s. 24(2) Analysis [ 29 ] The analysis I am now required to undertake is summarized in R v. Reilly at para 65 : [65] In

summary, the s. 24(2) analysis involves the following stages: (1) as a threshold issue, the court must be satisfied that the evidence was obtained in a manner that infringed or denied a Charter right; (2) if that threshold is met, the court must engage in the evaluative exercise under s. 24(2) and determine whether the admission of evidence would bring the administration of justice into disrepute. There are three factors considered in answering this question, identified in Grant : (

a) the seriousness of the state’s Charter - infringing conduct; (

b) the impact of the breach on the Charter - protected interests of the accused; and, (

c) society’s interest in an adjudication on the merits. [ 30 ] I turn now to the three factors as set out in s. 24 (2) of the Charter . The Seriousness of the Charter Infringing Conduct [ 31 ] Mr. I.D.G. asserts that the conduct was very serious. Crown asserts that this was a technical breach only and more “nuanced” in the circumstances where he was told while at least one officer was at the threshold of the door that he was going to be arrested before the actual arrest inside the bedroom.

Crown also says that there were not aggravating factors – no coercive behaviour, no hands on – as in Reilly where the accused was tackled by a number of officers in his bedroom after they entered the house. He points out the officers gave Mr. I.D.G. privacy to get dressed, he was not handcuffed, he was given breakfast in cells later that morning and, in my words, he was treated well. [ 32 ] I agree that Cst. Palmer and Cst. Garcia were polite, considerate and behaved professionally towards Mr. I.D.G. in their dealings with him.

However, that is not conduct that should be considered as mitigating the seriousness of their Charter breaches: Reilly , para. 103 . Clearly, it is settled law that warrantless entries into a person’s dwelling or home, whatever that may be, including a rented room, is a serious violation of a resident’s s. 8 Charter rights: Reilly 128. This was properly conceded by Crown. [ 33 ] The long standing requirement to obtain what is called a Feeney warrant in order to enter a dwelling-house to make an arrest is now codified in s. 529 of the Criminal Code . Cst. Garcia was not aware of this requirement. Cst.

Palmer was aware but he did not believe it was necessary in circumstances where Mr. I.D.G. was cooperative and he had been advised of his Charter rights. However, he knew that he could only enter a dwelling/residence without a warrant if there were exigent circumstances including safety concerns. Both officers ought to have known that they could not enter a residence without a warrant to make an arrest, absent exigent circumstances. No exigent circumstances or safety concerns were present when they attended at Mr.

I.D.G.’s residence. [ 34 ] The seizure of the cell phone and his unlawful detention were also serious breaches of Mr. I.D.G.’s Charter rights. After the arrest, Cst. Garcia looked for a cell phone as he had been asked to do by Cpl. Hobbs. The problem is that Mr. I.D.G. had just been arrested, unlawfully, and they were in the bedroom unlawfully. The seizure was also unlawful. A person’s cell phone contains highly personal information – they are not just phones, they are computers that contain highly private information relating to a person’s biographical core.

A high degree of privacy is accorded to these devices for that reason. This was also a serious breach of Mr. I.D.G.’s Charter rights. [ 35 ] The unlawful detention for almost 24 hours was also a very serious breach of Mr. I.D.G.’s Charter rights. A person’s liberty interests must surely be at the very top of the protections afforded to people by our Charter . [ 36 ] Viewed separately, they are serious, but even more so when assessed in totality. [ 37 ] This factor pulls towards exclusion.

The Impact of the State’s Charter -infringing Conduct [ 38 ] The Crown submits that the impact was not significant for the reasons already outlined. In addition, the Crown says that Mr. I.D.G. put the cell phone in his pocket first and had he been arrested, it would have been seized incident to arrest. However, he was not

lawfully arrested and there could not have been any lawful search or seizure incidental to arrest. The intrusion was into Mr. I.D.G.’s bedroom. That is the place in a home that attracts the highest level of privacy interest. It is where people sleep, dress and are in their most vulnerable state. [ 39 ] Evidence from the cell phone was obtained as a result of a search warrant but that was after the unlawful arrest and seizure.

At para. 138 of Reilly , citing Pawar , the court explained that the rationale for being exceedingly cautious about “discoverability:” Giving the discoverability doctrine a long leash in cases of this kind risks judicial condonation of serious privacy breaches resulting from unacceptable conduct by investigatory agencies: [cites omitted]. If no remedy is available for unjustified warrantless entries of private dwelling-houses in cases where grounds to obtain a warrant existed at the time of the unlawful entry, there will be little incentive for the police to adopt Charter -compliant behaviour.

More importantly, the administration of justice may fall into disrepute in the long term if remedies are not granted for the violation of well-established constitutional precepts. [ 40 ] I agree and conclude that the impact on Mr. I.D.G. was significant. [ 41 ] The unlawful detention took place for a prolonged period of time. Mr. I.D.G. was arrested in the middle of the night and held in cells for almost 24 hours. He was interviewed over approximately two hours after having spent the night and morning in cells. He made inculpatory statements. The professional and polite manner of the police towards Mr.

I.D.G., while commendable, does not ameliorate the significant and serious impact of the detention. [ 42 ] The impact of each of these breaches is significant, but even more so when viewed cumulatively. This factor pulls towards exclusion of the evidence. Society’s interest in an adjudication on the merits [ 43 ] The charges are serious and the photographs from the cell phone are real evidence and reliable. The statements made by Mr. I.D.G. while in custody place him in the vicinity of the complainant’s home at the time of the offence as alleged. It is a strong piece of circumstantial evidence.

Clearly, society has an interest in the adjudication of this matter on its merits. This factor will usually pull towards admitting the evidence. However, that does not end my inquiry.

Overall Balancing [ 44 ] It is at this stage of the Grant analysis that I must conduct an overall weighing and balancing of all three factors to assess whether admission of the evidence would bring the administration of justice into disrepute. [ 45 ] It is well established that when the first and second factors weigh strongly in favour of exclusion of the evidence, the third factor “will seldom if ever tip the balance in favour of admissibility”: Reilly , para. 119 . [ 46 ] The Crown asserts that “a mere technicality” shouldn’t “taint the entire investigation.” The Crown points to the other Charter compliant conduct of the police as, for example, ensuring the right to counsel before the interview.

The Crown also says that Mr. I.D.G. could have another remedy such as a reduced sentence for the Charter breaches and these factors should tip the balance towards admitting the evidence. [ 47 ] With respect, I am not able to agree with Crown’s submission. While I accept that the two officers were following directions from another senior officer, they ought to have known when they were asked to arrest someone from their residence, there was at least the possibility of the need for a Feeney warrant. There were no exigent circumstances. This was not a hot pursuit. They could have asked the home owner to have Mr.

I.D.G. come to the doorway into the house, step outside and made a lawful arrest then. Alternatively, a warrant for Mr. I.D.G.’s arrest could have been obtained and a lawful arrest made with a warrant. [ 48 ] I also conclude that the Crown’s case is not completely eviscerated.

There is still significant evidence that will allow the Crown to proceed to trial on the majority of the charges. [ 49 ] My assessment must consider the “overall repute of the justice system, viewed in the long term, by a reasonable person, informed of all relevant circumstances and of the importance of Charter rights” Reilly , para. 149 . [ 50 ] The police have tremendous power in carrying out and fulfilling their duty to investigate crime.

Charter rights protect individuals from an arrest by the police while inside their residences at any time of the day or night, unless the police have a warrant that authorizes them to do so, there are exigent circumstances, the police are in hot pursuit of someone fleeing from them, or the person is outside their residence and the police have the requisite reasonable grounds.

This protection gives people confidence and trust in the police including the knowledge that the police will not use their considerable power except in accordance with the law. [ 51 ] I agree with these comments by Griffin, J.A. in Reilly : [150] As Justice Moldaver said, in dissent but not on this point, in Le (at para. 216), “[t]he public’s faith in the police rests in part on their belief that the police will not intrude unnecessarily on their property and privacy rights. As such, the police should always be mindful of and respect the owner/occupier’s rights.

Doing so is essential to fostering public trust in the police.” While these observations were made in the context of reviewing the implied “licence to knock” doctrine, they apply equally to this case. [ 52 ] The breach of Mr. I.D.G.’s Charter rights was serious and it is necessary to preserve the reputation of, and public confidence in, the administration of justice by excluding the evidence obtained as a result. Conclusion [ 53 ] The following evidence is not admissible:

a) the photographs from Mr. I.D.G.’s cell phone; and

b) the statements made by Mr. I.D.G. to Cst. Biller during his detention. [ 54 ] The photographs taken of Mr. I.D.G.’s vehicle while in his driveway and the seizure of items from the vehicle pursuant to a search warrant are admissible. _____________________________ The Honourable Judge B. Flewelling Provincial Court of British Columbia