R. v. Yadav, 2022 BCPC 329

Citation: R. v. Yadav 2022 BCPC 329 Date: 20221005 File No: 247485 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. PAVAN YADAV RULING ON VOIR DIRE #2 OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: Michelle Wiancko and Jonathan Langlois-Sadubin Counsel for the Defendant: Patrick McGowan and Gloria Ng Place of Hearing: Vancouver , B.C. Dates of Hearing: June 8,10, 13, September 12, 13 2022 Date of Judgment: October 5, 2022

Background [1] Mr. Yadav is charged with several drug related offences under the Controlled Drugs and Substances Act. In this Voir Dire(which we have called Voir Dire #2) Mr. Yadav alleges several breaches of his rights under

Section 8 and 9 of the Charter. He seeks afinding that:

a) There were insufficient grounds for his arrest on June 29th, 2018;

b) The search of his person incidental to his arrest was therefore unlawful; and

c) There were insufficient grounds to justify a warrantless exigent entry into Unit Number 606. [2] In the ruling on Voir Dire #1 I set out some of the background to this investigation. [3] The Crown maintains that the police possessed reasonable grounds to arrest Mr. Yadav when he was taken into custody in theparking lot area of the apartment building where Unit 606 is located. He was arrested for production of a controlled substance. Whilethat was taking place, Cst.

Damiani was preparing a search warrant application for Unit 606 where the police believed a clandestine druglab existed. [4] The search warrant had not been obtained when Cst. Pollock, the lead investigator, decided to enter Unit 606 upon Mr. Yadav’sarrest. [5] The warrantless entry into the Unit was necessary, asserts the Crown, as it was authorized by the provisions of Section 11(7) ofthe Controlled Drugs and Substances Act.

That provision authorizes a peace officer to exercise any of the powers that they might havehad pursuant to a warrant when the conditions for obtaining a warrant exist but by reason of exigent circumstances it would beimpracticable to obtain one. [6] Mr. Yadav further submits that when the court is assessing the basis for the warrantless arrest or whether the preconditions forSection 11(7) have been satisfied, the court should disregard or excise the evidence obtained during impugned searches of the apartmentbuilding (MET2) which the court has found were conducted in violation of Mr.

Yadav’s Charter rights. [7] In a prior ruling I found that Mr. Yadav had established, on a balance of probabilities, that he possessed a reasonable expectation of privacy in the 6th floor hallway, the secure parkade, the other common areas, the secure fob access records and the CCTV footage thatwas obtained. The result was that the warrantless searches that were conducted in relation to those subject areas were unlawful andconstituted a breach of Mr. Yadav’s rights under

Section 8 of the Charter. [8] I found in that ruling that information gathered from these observations was used to create an overall picture of what Mr. Yadavwas up to and who he was associating with. The surveillance and information obtained from those warrantless searches was all part ofthe “dedicated” surveillance that was intended by investigators to be used in drawing inferences of potential criminal activity. [9] It is the burden of the Crown to establish, on a balance of probabilities, the lawfulness of the arrest of Mr.

Yadav and to establishthat the warrantless search of the residence was reasonable and otherwise authorized by law. It is also recognized that the ultimate burdenof establishing the alleged breaches of the Charter here is on Mr. Yadav. The Arrest of Mr. Yadav [10] In a case called R. v. Ahmed, [2021] B.C.J.

No. 1884, 2021 BCPC 203 I set out what I believe to be the law in relation to thestandard for a warrantless arrest. [11] In this case the Crown, as they did in Ahmed (above), does not accept my articulation of the law there and argued that a policeofficer need not hold the belief that an offence has probably been committed in order for their grounds to arrest a citizen to be foundreasonable (as that phrase has been characterized in the jurisprudence on this matter). [12] It is accepted that, even under the Charter, “reasonable and probable grounds” can mean different things in different contexts.The Supreme Court of Canada said as much in R. v.

Bernshaw, (SCC), [1995] 1 S.C.R. 254 at par. 97. [13] However, in the context of warrantless arrests the meaning of this concept is, in my view, quite clear. The standard set out in R. v.Storrey, (SCC), [1990] 1 S.C.R. 241 has stood the test of time and has been omnipresent in our jurisprudence since1990. [14] Early in our own jurisdiction’s jurisprudence relating to this matter, Justice Ryan in our Court of Appeal in R. v. Smellie, (BC CA), [1994] B.C.J.

No. 2850 (appeal to SCC refused) noted at paragraph 15 that “it is common ground thatreasonableness comprehends a requirement of probability” when it comes to analyzing warrantless arrests. [15] When discussing the differences between reasonable suspicion and the reasonable grounds necessary to base an arrest upon, theSupreme Court of Canada said this in R. v.

Chehil, 2013 SCC 49 , [2013] 3 SCR 220 at par. 27: 27 Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must begrounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability,of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the

more demanding reasonable and probable grounds standard. (emphasis added) [16] Later at paragraph 32 they say: 32 Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as theseven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonablesuspicion may also support completely innocent explanations.

This is acceptable, as the reasonable suspicion standard addressesthe possibility of uncovering criminality, and not a probability of doing so. (original emphasis) [17] The Supreme Court of Canada in Chehil (above) and in more recent cases like R. v. Ahmad, 2020 SCC 11 , [2020] SCJNo. 11 and R. v.

Le, 2019 SCC 34 , [2019] SCJ No. 34 provide important reasons for maintaining the crucial distinctionbetween the grounds that must be possessed by a police officer in order to detain a citizen and the grounds that must be possessed by apolice officer to actually arrest a citizen. [18] There is little doubt these clear propositions of law set out by the highest court in the land serve to define and limit the authorityof state agents to interfere with the liberty of a citizen.

At par. 14 of Storrey the Court says: 14 Section 450(1) makes it clear that the police were required to have reasonable and probable grounds that the appellant had committedthe offence of aggravated assault before they could arrest him. Without such an important protection, even the most democratic societycould all too easily fall prey to the abuses and excesses of a police state.

In order to safeguard the liberty of citizens, the Criminal Coderequires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable andprobable grounds to believe that the person to be arrested has committed the offence.

In the case of an arrest made without a warrant, itis even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they basethe arrest. [19] As I further stated in Ahmed (above) at par. 116 a clear, coherent and cogent standard applicable to those exercising the awesomepower of arrest is necessary in a free and democratic society: Without this standard being met and without such an important protection, as the Court in Storrey warned, even the most democraticsociety could all too easily fall prey to the abuses and excesses of a police state.

History has proven that when protections and standards,like this one, are unjustifiably weakened or watered down, it will be society's vulnerable, disenfranchised, disadvantaged and racializedcommunities that will disproportionately suffer. That cannot be allowed to happen in a free and democratic society that foundationallybelieves in the equal application of the law across diverse communities. [20] Extensive submissions were made by the Crown, both orally and in writing (the written submissions of both parties will remain apart of the record).

I will not go into any great detail in outlining the entirety of their argument on this issue. In essence, the Crownasserts that all that is required for a lawful arrest is for the arresting officer to possess a belief that is something/anything more than areasonable suspicion. [21] The Crown is essentially asking this court to endorse the removal of the concept of “probable” from the reasonable and probablegrounds standard for a lawful arrest. They submit that that conclusion is warranted given the existence of cases like R. v. Jir, 2010 BCCA497 and the more recent cases of R. v. Henareh, 2017 BCCA 7 and R. v.

Glendinning, 2019 BCCA 365, to name a few that were referredto. [22] For the reasons above and for the reasons I gave in R. v. Ahmed (above) I confirm my finding in Ahmed (above). I feel I ambound by the clear direction of the Supreme Court of Canada on this point.

As such, and as I stated at paragraph 115 in Ahmed: … 1) For a lawful arrest to take place, the totality of the circumstances known to an arresting officer at the time, must lead him/her to asubjective belief that it is more likely than not that an indictable offence has been committed by the accused; 2) The officer's belief must be objectively reasonable.

That is a reasonable person who was standing in the shoes of a similarlyexperienced and knowledgeable police officer, would have believed that an offence was more likely than not committed; 3) At trial, the Crown bears the burden of establishing, on a balance of probabilities, that the officer's subjective belief was objectivelyreasonable, taking into account the totality of the circumstances. [23] This is not a nebulous concept. In order to justify an arrest all an officer has to do is, in good faith, possess reasonable grounds tobelieve that an offence has been committed.

The Crown is not required to establish that that belief turned out to be true, all they have toestablish, on a balance of probabilities, is that the belief was reasonable, in all the circumstances. [24] Professor Steven Coughlan is clearly of the opinion that the Supreme Court of Canada has definitively addressed this point and I agree with that conclusion. He noted in an

article entitled R. v. Chapman: Can you Believe Without Believing?, 60 C.R. (7th) 318 that thisarticulation is also consistent with common sense: Even leaving aside the Court’s statements in Loewen and Chehil, there are reasons to be resistant to having “reasonable grounds” be lessthan “balance of probabilities”. First of all, to do so would be to ignore the other half of the phrase, “reasonable grounds to believe”.

To“believe” something is to think that it is true — not that it might be true, not that there is a decent chance it is true, but that it is true.Pretty much by definition, if a person does not think something is more likely than not, then they don’t “believe” it. Should the automatic excision rule be imported into the assessment of the grounds an officer has to effect a warrantless arrest? [25] There was information used by Cst. Pollock to justify the arrest of Mr. Yadav that was obtained in violation of his

Section 8

rights. The breadth of that evidence was analyzed in my ruling in Voir Dire No. 1. [26] For instance, the police had entered the secured apartment building where Unit 606 was located on several occasions in order tomake observations and gather evidence of Mr.

Yadav’s movements coming to, while inside and when leaving this building. [27] The Defence takes the position that this court should excise this evidence that was gathered without a warrant and thereforepresumptively gained unlawfully. [28] They submit that any such evidence should not be permitted by the Crown to justify the warrantless arrest here or the warrantlessentry into Unit 606.

At paragraph 7 of their written submissions it is expressed like this: … To permit police action which does not comply with Charter standards to form part of the reasonable and probable grounds to engagein an unauthorized breach of an individual’s privacy rights would be to permit the police to engage in illegal acts to a lawful end. Itengages the “ends justify the means” logic which the Court should not endorse. [29] The Defence submits that the Court should apply the so-called “rule of automatic excision” in these circumstances.

They saythere is no principled basis upon which to depart from the excision principles set out in R. v. Grant, (SCC), [1993] 3S.C.R. 223; R. v. Plant, (SCC), [1993] 3 S.C.R. 281 and R. v. Wiley, (SCC), [1993] 3 S.C.R. 263. [30] In Grant Justice Sopinka stated that by excising improperly obtained facts from an ITO the Court had determined that peaceofficers cannot benefit from their own illegal acts by including in informations sworn to obtain warrants facts which were retrievedthrough searches without lawful authority. [31] The Crown, asserts that this is essentially the same argument that was made in R. v.

Flintroy, 2019 BCSC 35. The police in thatcase unlawfully obtained a passport photo that was used in the investigation. The issue was raised whether the police could use thisevidence in formulating their grounds for the arrest of Mr. Flintroy. [32] The Court in Flintroy (above) determined that the impugned evidence should not be excised from the constellation of facts uponwhich the arrest was based. He referred to R. v. Golub, (ON CA), [1997] O.J. No. 3097 (Ont. C.A. – leave to SCCrefused) as support. The issue in Golub was very different than the issue in question in this case.

It is important to keep the context inmind. In Golub the Court set out the issue thus: The lawfulness of the respondent's arrest was not contested at trial and the trial judge expressly found that the police had reasonable andprobable grounds to arrest the respondent. On appeal, Mr. Harris, for the respondent, submits that as the arrest was based on informationprovided by Mr. Hepworth, a source outside of and unknown to the police, the officers could not, absent some confirmation ofHepworth's information, have reasonable and probable grounds to arrest the respondent. Mr.

Harris looks to the search warrant casesdealing with information provided to a justice of the peace through the affiant from a police informant. He contends that just as a searchwarrant could not be issued on the unconfirmed information of an untested informant, an arrest could not be made on that same basis. Mr. Harris' proposition is a novel one. If correct, it would greatly restrict the police power of arrest. It would preclude the police fromarresting a suspect based on information received from a witness to the crime even where the witness could have arrested the suspectpursuant to s. 494(1)(a).

In addition, as pointed out by Mr. Hutchison for the Crown, in the course of oral argument, Mr. Harris' positionwould set the test for reasonable grounds for arrest higher than the eventual standard for conviction since the respondent could beconvicted based on the evidence of Hepworth absent any confirmation of his version of events. Mr. Harris' reliance on the search warrant cases is misplaced. Both a justice and an arresting officer must assess the reasonableness ofthe information available to them before acting.

It does not follow, however, that information which would not meet the reasonablenessstandard on an application for a search warrant will also fail to meet that standard in the context of an arrest. In determining whether thereasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. Thedynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, theofficer's decision to arrest must be made quickly in volatile and rapidly changing situations.

Judicial reflection is not a luxury the officercan afford. The officer must make his or her decision based on available information which is often less than exact or complete.

The lawdoes not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with anapplication for a search warrant. [33] Golub dealt with “untested” evidence and did not have to deal with the issue of whether unlawfully obtained evidence can orshould constitute proper grounds for an arrest. [34] In fact, the Supreme Court of Canada in Storrey (above) at paragraph 14 took care to point out that: In order to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, todemonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committedthe offence.

In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have thosesame reasonable and probable grounds upon which they base the arrest. (emphasis added) [35] It is accepted that the process of obtaining prior judicial authorization for a warrant (either a search warrant or an arrest warrant)is different in kind than the process engaged by an officer in the field who must determine whether there exists reasonable and probablegrounds to believe that an arrestee has committed an offence.

In fact, as Storrey directs, it is even more important for the officer to laterdemonstrate that the standard has been met in the case of a warrantless arrest. [36] Flintroy also considered the case of R. v. Pelucco, 2013 BCSC 588 affirmed at 2015 BCCA 270 . In Pelucco the issue hadbecome limited, at the appeal stage, to the question of whether Mr. Pelucco’s Charter rights were violated when text messages he sent toan associate were read by the police from the associate’s cell phone. That evidence was used, in part, to justify Mr. Pelucco’s arrest.

[37] The Crown there took the position that the unauthorized search of Mr. Guray's cell phone did not make Mr. Pelucco's subsequentarrest unlawful, nor did it taint subsequent searches that uncovered inculpatory evidence. This position was based on the argument thatMr. Pelucco did not possess a reasonable expectation of privacy in the texts once they were sent. The Court of Appeal disagreed and didfind that Mr. Pelucco’s rights under

Section 8 were violated by the unlawful search and seizure of the text messages from the associate’sphone. [38] The Crown in Pelucco conceded, properly according to the Court of Appeal, that once that conclusion was reached, the balanceof the trial judge’s analysis was unassailable (par. 72). The Court in Flintroy mentions this fact but dismisses it as “cryptically stated”(paragraph 28).

The basis for this characterization is not explained. [39] Part of that “unassailable” analysis that the trial judge did engage in was a consideration of the same issue that is before thiscourt, and that is whether evidence obtained in violation of an accused rights could be used to base a lawful arrest upon. [40] On that point, and in relation to that “unassailable analysis”, Justice Halfyard, the trial judge, in R. v. Pelucco, [2013] B.C.J.

No.3044 (BCSC) (a previous ruling -Voir Dire No. 1), had concluded at par. 70: 70 The police arrested Guray on the strength of the evidence discovered by the unlawful search of his car trunk (the smell of cocaineand the large amount of cash). The Crown seeks to rely on that arrest to support the search of Guray's cell phone. In my view, the fruitsof an unlawful search cannot be used to provide reasonable and probable grounds for an arrest, particularly where that arrest is relied onto justify a subsequent search which is said to be incidental to the arrest.

I find some support for this conclusion in the reasoning of Mr.Justice Groberman in R. v. Bartoli 2003 BCSC 1888, at paras 43-44. [41] Furthermore, Justice Halfyard says this at par. 107: 107 On the assumption that this point has not been directly decided one way or the other, I will state my opinion that evidence obtainedin violation of an accused's Charter rights cannot be considered in deciding whether the police had reasonable and probable grounds toarrest the accused.

In my view, such illegally-obtained evidence should be treated in the same way that evidence obtained in violation ofan accused's Charter rights is treated, on the review of a justice's decision to issue a search warrant. [42] Again, it should be noted that the Crown apparently did not appeal this finding as part of its appeal from Mr. Pelucco’s acquittalto the British Columbia Court of Appeal. [43] Pelucco, of course, is not the only case to deal with this issue. The Court in Flintroy lists a number of decisions where the issueof excision as it relates to the grounds for arrest was present.

It is clear the Court does not find those cases persuasive. They are R. v.Riley, [2009] O.J. No. 62; R. v. Lam, 2014 ONSC 3538; R. v. Kyriakopoulos, [2008] O.J. No. 263; R. v. Vulic, 2012 SKQB 221. [44] Finally, it is apparent, from a close reading of Flintroy that the Court simply finds the automatic exclusion rule, in general, (as itis was known following Grant, Plant and Wiley) problematic and anomalous.

The Court says this about it at par. 11: While the rule's currency in the search warrant context is well-established, the rule has also been widely criticized as anomalous,problematic and of questionable doctrinal origin: see, for example, R. v. Jaser, 2014 ONSC 6052 at paras. 24-33; R. v Ricciardi, 2017ONSC 2788 at para 20; and R. v. Wawrykiewycz, 2018 ONCJ 199 at paras. 66-71. However, as the rule was established by the SupremeCourt of Canada in the 1993 trilogy of R. v. Grant, (SCC), [1993] 3 S.C.R. 223, R. v. Plant, (SCC),[1993] 3 S.C.R. 281, and R. v.

Wiley, (SCC), [1993] 3 S.C.R. 263, and has never been overruled since, lower courtsremains bound to the rule. [45] The Court also explains that the Court of Appeal’s decision in Pelucco did not apply the Storrey analysis and that the reasons forthe Crown’s concession were not made clear. [46] Of course, I am bound to apply the directions of the Supreme Court of Canada if, in fact, there is no compelling basis not to findthe excision analysis there analogous to situations like this one.

It is of considerable interest and relevance that the Court in Flintroyappears to only reluctantly accept the rule as laid down by the highest Court in the land and then engages in a lengthy justification as towhy that rule should not apply to the formulation of grounds to arrest scenario. [47] It should be noted that the Court in Flintroy did eventually settle on a possible framework that might be applied in the arrestcontext.

At paragraph 47: … Should an arresting officer believe, or should have reasonably believed, that the grounds for arrest they seek to rely on areunconstitutionally obtained, these grounds for arrest will not meet the reasonable and probable grounds standard. As the Crown submits,a reasonable person would not rely on conduct known to be the result of abusive or unlawful conduct. Ipso facto, it would beunreasonable for an arresting officer to rely on known abusive or unlawful conduct to form the grounds for a warrantless arrest.

Asthe Storrey analysis requires objective justification for the reasonable and probable grounds relied on for the arrest, reliance on groundsknown to be based in unlawfulness or a Charter breach makes these grounds to arrest objectively unreasonable, invalid and unlawful.Should insufficient grounds for arrest remain after these grounds are removed from the overall analysis, then the arrest is invalid andhence unlawful. [48] Parenthetically, it is not explained why even this formulation was not applied in Flintroy given that the Court had found, in anearlier ruling, that there was, “no necessity for the infringement.

The police could quite readily have obtained and executed a searchwarrant to require production of the photo” (R. v. Flintroy 2018 BCSC 1777 at par. 65). In the later decision in relation to excision of thatevidence the Court found that it appeared that the police reasonably believed the passport photo was obtained lawfully (par. 50). [49] A similar analysis was conducted in R. v. Oswald, [2019] B.C.J. No. 782 (BCSC).

The Court made a distinction between arrestgrounds that are based upon a “known fabrication or when the officer was left uninformed by wilful ignorance of abusive conduct thatwould otherwise eliminate objective reasonable justification for the arrest” (par. 46).

[ 50 ] This “caveat” suggested by the Court in Flintroy was also applied in R. v. Johnstone, [2020] B.C.J. No. 356 (BCSC) where Justice Crabtree finds that the officer did not turn his mind to the lawful authority that allowed him to request documents from the accused. In that circumstance (an unlawful search), the Crown could not rely upon the impugned evidence to base an arrest on and the arrest was found to be unlawful. [ 51 ] The Crown points out that Flintroy was also quickly considered and applied in R. v. Latimer, [2020] B.C.J.

No. 2372 (BCSC) , a carefully considered decision of Justice Ker. [ 52 ] In addition, about a month prior to the submissions on this case the Alberta Court of Appeal had the occasion to visit this issue in R. v. Love, [2022] A.J. No. 980 . There the Court noted that trial courts were divided on whether the automatic excision rule ought to extend to warrantless arrests and searches.

That Court declined to extend the excision rule to these kinds of cases wondering whether such a process would necessarily be a “net benefit” to individual rights (see par. 99). [ 53 ] Even after digesting these decisions from our Superior trial court level and the Court of Appeal in Alberta it remains unclear to me why our own Court of Appeal’s apparent endorsement of the trial judge’s “unassailable” analysis in Pelucco , in relation to the portions of his judgment not in issue on the Appeal, are not dispositive of the issue before me. [ 54 ] I acknowledge and recognize that there was direct consideration of Pelucco in cases like Flintroy and Latimer (above) which are heavily relied upon by the Crown. [ 55 ] Notwithstanding that, there are competing decisions on the same issue here.

However, the Court of Appeal, in my mind, seems to endorse the analysis of Justice Halfyard in Pelucco . Furthermore, that view is also consistent with a principled and purposive application of the Charter and the rule laid down by the SCC in the Grant trilogy. [ 56 ] It has to be remembered that the power of a “lawful” arrest carries with it corollary powers that are awesome in their breadth and impact to an arrestee.

The police can, and in many circumstances do, upon arrest, involuntarily collect fingerprints for identification purposes, search the person and their surroundings incidental to the arrest, remove their liberty by taking them into custody, attempt to question them in the confines of a police detachment. The list goes on.

In light of these powers it is reasonable to expect that a “lawful” arrest can only be characterized so if it based upon lawfully obtained information. [ 57 ] It is also crucial to remember that excision of unconstitutionally obtained information from the grounds to search (or arrest in this case) is distinct from the analysis when it comes to determining whether any “evidence” obtained as a result of the impugned arrest should be excluded from consideration in the trial itself (i.e. the Section 24(2) stage).

Excision is not a Section 24(2) remedy under the Charter . [ 58 ] The excision of unlawfully obtained evidence from the available grounds for a lawful arrest does not unduly hamper the interests of justice.

Should an arrest be found unlawful due to the application of the excision rule, the evidence that is obtained as a result could still be found admissible after consideration of the circumstances in a Section 24(2) analysis. [ 59 ] As the Court in Flintroy acknowledged at paragraph 50: 50 Lastly, even if the defence's automatic excision approach is taken, the case law is clear that a 24(2) analysis would still be applied in regard to any evidence found by way of this unlawful arrest in any event: see Pelucco at para. 109 ; Bartoli at paras. 46- 49 ; Kyriakopoulos at para. 101, Riley at paras. 146 and 152; Lam at paras. 281-294 ; and Vulic at paras. 30-36 .

Accordingly, the overall effect of the importation of this rule would not operate as it does in the search warrant context where there is no 24(2) analysis to save excised information. In a case such as this where it would appear that Cpl.

Griffiths reasonably believed the passport photo was obtained constitutionally and lawfully, and otherwise operated in good faith throughout the arrest process, the evidence gathered incident to the accused's arrest may well be admissible anyway. [ 60 ] However, accepting this may well be the ultimate result in a given case is not a basis, in my mind, for ignoring, or unnecessarily modifying, long-standing Charter principles that are designed to enhance trial fairness. [ 61 ] In practice, it is at the Section 24(2) stage that the balancing that the critics of the excision rule claim is missing will occur and the gravity of the breach that led to excision will be taken into account. [ 62 ] It follows that the information that was obtained here by the investigators in breach of Mr.

Yadav’s

Section 8 rights should not be considered when determining whether there was a “lawful” arrest here. Was the arrest lawful? [ 63 ] If that is the case, then the question becomes, leaving out the impugned information as it relates to the formulation of arrest grounds, does there remain a basis upon which to conclude that the objective test in Storrey has been met. [ 64 ] The arrest here was on June 29, 2018. It was based, in part on information obtained from observations made within common areas in the apartment building, from entry FOB records and CCTV footage. That information was found to be obtained in breach of Mr. Yadav’s

Section 8 rights. [ 65 ] To arrest Mr. Yadav, the arresting officer would have to possess reasonable grounds to believe that he has committed the offence of “Producing a Controlled Substance” under the Controlled Drugs and Substances Act (Section 7(1) of the CDSA ). [ 66 ] At this stage, the officer need not “prove” anything. He does have to establish, however, that he possessed the requisite belief to effect an arrest and that that belief was objectively reasonable. [ 67 ] The gravamen of the offence is active participation in the production of the drug. A person may be convicted of production as

either a principal or a party who aids or abets the principal. [ 68 ] Possession of a Controlled Substance is not an included offence in relation to a Production charge. (See R. v. Powell, [1983] B.C.J. No. 2211 (BCCA) ). [ 69 ] The totality of the circumstances known to Cst. Pollock at the time and to be examined here include:

a) The confidential informer information stated that Mr. Yadav was involved in drugs and fentanyl;

b) Yadav met with people believed by the police to be involved in drug trafficking;

c) He employed, what was thought to be, counter surveillance efforts when driving;

d) His use and manner of use of the Ford Explorer;

e) His association with Mendham, who was an individual who had been convicted for Production of drugs in the past;

f) His attendance at a warehouse associated with another person thought to be involved in criminal activity (Bobby Shah);

g) The fact that it seemed apparent to the police that Mr. Yadav was not staying at the Met2 overnight, and was instead only visiting the building and Unit 606 for periods of time, and further attempting to disassociate himself from the Explorer;

h) The observation of two large drums with the labels ripped off in the back of the Explorer;

i) On June 20, police observing Mr. Yadav bringing garbage bags to the Explorer;

j) Yadav, Mendham and Orzel seen driving in alleys and stopping near where the bags were discarded in a dumpster;

k) That the resulting search of those bags contained items that had fentanyl or derivatives on them. Those items were some paper towels and a paper coffee filter;

l) That Mr. Yadav was going to and from Unit 606 (Cst. Cormier’s surveillance on June 22);

m) The belief that Mr. Mendham was already inside Unit 606 before Mr. Yadav was surveilled there on June 29; [ 70 ] It is really only paragraphs g, h, i, l and m that contain information that are the subject of the breaches found here so far. [ 71 ] Excluding that information, as it was obtained in an unconstitutional manner, what is remaining? Is it still reasonable from an objective standpoint of the officers to possess the requisite belief? [ 72 ] It is clear, of course, that the entire constellation of circumstances must be considered.

The behaviour observed does not itself need to consist of criminal behaviour but police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion ( See R. v. Chehil (above)). These cautions are even more important in considering whether a credibly based probability replaces suspicion. [ 73 ] I have reviewed the evidence with respect to the list of factors set out above.

The most compelling information here that could possibly take what were simply suspicions of criminal activity based on meetings, associations, movements and a few somewhat suspicious actions was the evidence obtained from the discarded garbage bags. [ 74 ] The police observed Mr. Yadav, Mendham and Mr. Orzel as they left together from the parkade. Mr. Orzel was dropped at his vehicle outside of the building. They drove to a laneway nearby and parked near some dumpsters.

It is reasonable to infer that if someone is stopping near dumpsters and then is seen walking away from them that there is an intention to discard something. Cst. Pollock checked those bins after the group drove away and he discovered that the bins were locked so that it was unlikely that anything was discarded there. This was now 0037 hours on June 21. [ 75 ] The group travelled to a different area. The group was lost on surveillance for a minute or so and then reacquired. Then the police observed Mr. Yadav near a second set of bins. According to the logs, Cst.

Pollock testified, it appears that the surveillance team did not see anything being dumped or removed from the Explorer at this time. [ 76 ] After the group departed they went to where the group was last seen. There were two “dump sites” at this second location, according to Cst. Pollock. One contained drums and the other contained six black garbage bags, similar to the garbage bag that they had seen Mr. Orzel carrying into the building earlier. [ 77 ] Cst. Pollock believed that these garbage bags were from the Explorer, or at least the group, because there were black bags on top of a pile of organic waste.

He opened one bag and saw a Mountain Dew pop can and a Slurpee cup of the very same kind that the police had observed Mr. Yadav purchase from a 7-11 earlier. He could not say what else was in the bag specifically but he did believe, in his experience, that it was fentanyl lab waste. He said in his experience, criminals will attempt to discard the waste from a lab in various ways, including dumping it in garbage bins. [ 78 ] They also saw, laying on the ground next to the bins, a particular kind of cigarette (Belmonts) that they had previously observed Mr. Yadav throw away. At this point Cst.

Pollock had a strong suspicion that there was a fentanyl lab in the Unit 606. [ 79 ] The police seized all of these items. Cst. Cormier went through all the recovered items and sent some items to Health Canada for analysis. There was also a charcoal filter receipt in the name of Orzel in one of the bags. Orzel had earlier that day carried a garbage bag into the building. The filter was the kind that could be used in labs used to produce narcotics.

[ 80 ] The samples were not submitted for analysis until June 26 th . On June 28 th Cst. Pollock had received the analysis from Health Canada. Four of the five samples sent were positive for fentanyl or a derivative. It was on paper towels and a white filter (see Agreed Statement of Facts). [ 81 ] Cst. Pollock testified it was then he formed the belief that Yadav was involved in producing fentanyl in a lab at the MET2 building. [ 82 ] He said he had grounds to arrest Mr. Yadav at that point on June 28th.

On June 29 th they discussed putting an arrest/search plan in motion. [ 83 ] Referred to (with approval) in the Chehil (above) decision is the following passage from R. v. Paquette, [2010] B.C.J.

No. 1741 (BCCA) : 25 … While I appreciate the objective reasonableness requirement must be viewed in the light of the investigating officer's background and experience, deference to an officer's intuition must not render the objective element of the inquiry meaningless. [ 84 ] As I have also stated in other decisions, what must be remembered is that when the cases refer to a "reasonable person, standing in the shoes of a police officer" they are not referring to a police officer who holds an inappropriately jaded or overly jaundiced view of the vast breadth of behaviour that innocent civilians engage in on a daily basis.

It cannot mean an officer whose observations of everyday actions are made through such a distorted lens that otherwise ubiquitous and omnipresent factors and activity are precipitously suspected to be criminal. (See R. v. Lahtinen, [2011] BCJ 2076 (B.C. Prov. Ct.) ). [ 85 ] In R. v Chehil (above) at paragraph 35 the court says: Generally, characteristics that apply broadly to innocent people are insufficient, as they are markers only of generalized suspicion. The same is true of factors that may "go both ways", such as an individual's making or failing to make eye contact.

On their own, such factors cannot support reasonable suspicion; however, this does not preclude reasonable suspicion arising when the same factor is simply one part of a constellation of factors. [ 86 ] Applying those cautions above, I still find that it was reasonable to infer that it was this group that was discarding the garbage bags in question. It was also reasonable, given the entirety of the constellation of factors left to consider here after excising unlawfully obtained information and given the stated experience of Cst. Pollock and Sgt. Rettie, for them to hold the belief that Mr.

Yadav was at least a party to the production of a controlled substance at the time of his arrest on June 29 th . [ 87 ] The arrest at that particular time was therefore lawful. [ 88 ] It may appear to some to that the analysis above with respect to whether unconstitutionally obtained information can be used to base a lawful arrest was an esoteric exercise, given the result. However, I would strongly disagree with that.

It is of critical importance that the focus be maintained on the negative impact on the rule of law if the state were permitted to employ unlawfully obtained evidence in a criminal trial to base the awesome power of arrest. This analysis was necessary in a process where the Courts have an obligation to ensure the fairness of the trial. [ 89 ] I chose, in this case, not to characterize the SCC’s direction in relation to the excision rule as “anomalous or problematic” and I chose not to engage in strained explanations as to why it should not apply in cases of arrests.

Was the Exigent Entry into the Apartment lawful? [ 90 ] There were many explanations given as to why the police made the decision to enter into Unit 606 using a battering ram prior to a judicial officer authorizing a warrant to search that premise. [ 91 ] The two main reasons provided by Cst. Pollock were that 1) there were safety concerns with respect to the fentanyl lab and 2) to prevent the destruction of evidence. [ 92 ] Cst. Pollock testified that before executing the warrants he wanted the accused, including Mr.

Mendham, in custody so they needed to plan that. [ 93 ] The evidence given in support of the need to have both accused in custody prior to the warrant execution was not persuasive. [ 94 ] At the time Mr. Yadav was arrested there was a belief that Mr. Mendham was still inside the residence. Cst. Pollock testified that he has heard of cases where associates were alerted as to police presence. [ 95 ] That was not a valid concern in this case. Mr. Yadav was arrested in the basement parking lot of a large apartment building. It was common for him to come and go from whatever Unit he was attending to.

It was a surprise arrest. He had no opportunity to contact anyone. Mr. Mendham would never have known that Mr. Yadav had been taken into custody. [ 96 ] Cst. Pollock was asked if both individuals had left the apartment together would he have the made the decision to go in anyway. He answered that in the affirmative citing strong safety concerns with respect to an active clandestine drug lab. [ 97 ] Of course, he had already formed the belief that there was a drug lab there by June 28 th . The planned entry was originally not until June 30 th .

There is no reliably stated concern that this lab was so dangerous that the police needed to go in prior to judicial authorization. [ 98 ] He was asked why he did not wait for the search warrant to be granted and he said that if you obtain a search warrant and then

the accused do not show up that day, then you would have to go back and get another search warrant. This is not, in any way, a compelling argument for timing the arrests in the manner that they did. [ 99 ] As Judge Bruce noted in R. v. King, [2006] B.C.J. No. 1407 the choice the police make with respect to the timing of the arrest is important to consider. In the case before me that is equally true. [ 100 ] The search warrant execution was contemplated on June 30 th . Cst. Pollock’s notes indicate that if they couldn’t arrest prior to search they would arrest the following day.

This is in contrast to the viva voce evidence provided. [ 101 ] Our Court of Appeal in R. v. Pawar, 2020 BCCA 251 found at par. 68 : …To justify such an entry, the Crown must show some case-specific urgency in the pursuit of an investigative imperative -- in this case the preservation of evidence -- and a serious risk that waiting for a warrant would frustrate achievement of that imperative: see Grant 1993; Silveira ; Feeney . [ 102 ] In the case of R. v.

Paterson , 2017 SCC 15 , Justice Brown, writing for the majority of the Court, noted that: [37] ... [I]n order for a warrantless entry to satisfy s. 11(7), the Crown must show that the entry was compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety. Further, this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives. [ 103 ] Nothing in the evidence before me supports anything more than a generalized concern that evidence inside the Unit would be destroyed or lost.

The sounds that Cormier heard inside the Unit certainly do not add anything to that generalized concern. [ 104 ] The warrantless entry by the police into Unit 606 was not justified by "exigent circumstances" making it "impracticable" to obtain a warrant, within the meaning of s. 11(7) of the Controlled Drug and Substances Act (" CDSA "). [ 105 ] The entry here was not credibly based on any safety concern or concern over the loss of evidence.

The only inference to draw from the entirety of the evidence before me on this point is that the entry was either for convenience reasons and/or the choice to arrest Yadav created a generalized concern. In either circumstance it is not a justifiable entry. [ 106 ] It was also clear that Cst. Pollock was hoping to have the search warrant sooner. He seemed to be acting, throughout this particular day, as if the warrant application process was just a formality. This is not a case like those where the warrant had been granted and was “on its way”. The application to a judicial officer had not even been made yet.

It seems like Cst. Pollock was expecting a judicial officer to simply apply the proverbial “rubber stamp” on the application so that they could continue their investigation. [ 107 ] This is even more troubling given the extraordinary importance that obtaining prior judicial authorization to enter a premises is accorded under the Charter . [ 108 ] The Crown submits that this situation is similar to the one in the R. v. McCormack, 2000 BCCA 57 . I disagree. In that case the evidence was that the arrest was witnessed by the accused girlfriend.

She had a key to the target residence and was headed there after making this observation. This concerning set of circumstances is not at all present in this case. [ 109 ] For the reasons expressed above and on the authority expressed by the Court in Pawar (above) I find this warrantless entry was not justified on any legal basis and constituted a serious breach of Mr. Yadav’s rights under

Section 8 of the Charter . Conclusion [ 110 ] The warrantless arrest of Mr. Yadav on June 29 th was lawful and therefore no breach of the Charter in relation to this arrest has been established. [ 111 ] The warrantless entry into Unit 606 made on June 29 th was not lawful and constituted a serious breach of Mr. Yadav’s rights under

Section 8 of the Charter . _________________________________ The Honourable Judge David St. Pierre Provincial Court of British Columbia