R. v. Darling, 2010 BCSC 546

Editor’s note : Corrigendum released April 30 , 2010. Original judgment has been corrected with text of corrigendum appended. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Darling, 2010 BCSC 546 Date: 20100422 Docket: 64803-2 Registry: Nanaimo Regina v. Brent Robert Darling Before: The Honourable Mr. Justice Shabbits Corrected Judgment: The text of the judgment was corrected at paragraphs 26 and 27 on April 30, 2010 Reasons for Judgment on Voir dire Counsel for Crown: C.J. Gibson Counsel for the Accused: J. McCormick Place and Date of Hearing: Nanaimo, B.C.

April 13, 14, 15, 2010 Place and Date of Judgment: Nanaimo, B.C. April 22, 2010 Facts [ 1 ] Mr. Darling is charged that on August 21, 2007, at Nanaimo, he unlawfully possessed cocaine for the purpose of trafficking. [ 2 ] The indictment arises as the result of an investigation conducted by Constable S. D. Bentley, who is a member of the RCMP stationed at Nanaimo. [ 3 ] On August 21, 2007, Constable Bentley was still a junior member of the force. He testified that he received depot training from the RCMP and that upon graduation from the depot he had six months of field training.

Constable Bentley worked with a senior member of the force while he was being field trained. Constable Bentley field trained from the beginning of January 2007 to the end of June. Constable Bentley had been on his own for only several weeks before he encountered Mr. Darling. [ 4 ] At about 3:30 in the afternoon of August 21, 2007, Constable Bentley was on his own in a marked police vehicle working general duties. He was uniformed. At that time he received a dispatch advising of an armed robbery that had occurred on Bowen Road.

A decision was made to set up a containment zone with the view of apprehending the perpetrator of the offence as he left the area. Constable Bentley took up a containment position at the intersection of East Wellington Road and Bowen Road. [ 5 ] Constable Bentley testified that his duties at his check point was to engage the emergency lights of his police vehicle, to stand outside it and to observe vehicular and pedestrian traffic and to confront some of the people leaving the area.

He was to engage people in conversation, to make general inquiries, and to identify and make inquiries of people who matched the description of the perpetrator of the robbery. [ 6 ] The description of the robber that Constable Bentley received was that the person who committed the robbery was a Caucasian male of about 30 years of age, five feet eight inches to five feet ten inches in height, 180 pounds to 200 pounds in weight, with brown hair and wearing neutral coloured clothing. [ 7 ] About one-half hour after the robbery had occurred, Constable Bentley saw Mr. Darling moving south on Bowen Road on a bicycle.

Constable Bentley’s position was not far from the site of the robbery. But notwithstanding the passage of about half an hour, the police investigators were maintaining the containment procedure to address the possibility that the person who had committed the robbery may have delayed leaving the area in order to avoid detection. [ 8 ] Constable Bentley concluded that Mr. Darling matched the description of the robber. He said Mr. Bentley was a Caucasian

male in his thirties and that Mr. Darling’s build, brown hair colour and colour of clothing accorded with his understanding of the description of the robber. [ 9 ] Constable Bentley said he called out to Mr. Darling when Mr. Darling was still across the street from him. He told Mr. Darling to come talk to him. Constable Bentley said that when Mr. Darling came over to him, Mr. Darling asked him what was going on. Constable Bentley explained that he was looking for a robber who had robbed a female person at knife point, and that he, Mr.

Darling, matched the description of the robber. [ 10 ] Constable Bentley said that after he explained what he was doing, he told Mr. Darling that he would be detaining him for investigation. Mr. Darling said that he hadn’t done anything wrong and that he had never done anything illegal. Mr. Darling said that he was coming from work, and that he had just had an argument with his girlfriend, and that he was upset because of the argument. He said that he owned his own business on Northfield Road, and that he was coming from there. [ 11 ] Constable Bentley once again told Mr.

Darling that he was detaining him and that he was investigating him for the robbery. Mr. Darling said that Constable Bentley wouldn’t be letting him leave, and that he would be arresting him. Mr. Darling became upset and he began to cry. [ 12 ] Constable Bentley said that he said to Mr. Darling “Why would you say that if you haven’t done anything wrong?” He said he told Mr. Darling, “I will just quickly check you and you can be on your way.” [ 13 ] Constable Bentley asked him to identify himself. Mr. Darling provided Constable Bentley with his name, his drivers’ licence number and his address.

Constable Bentley asked dispatch to verify the drivers’ licence number as being related to Mr. Darling’s name. The dispatcher did that. Constable Bentley seems to have accepted that as verification of Mr. Darling’s identity. [ 14 ] Constable Bentley explained that what he had told Mr. Darling when he said he was placing him under investigative detention, was that he would be requiring Mr. Darling to identify himself and that he would then check his person and clothing. Constable Bentley said he told Mr.

Darling that he would be looking for weapons. “I believe it was a kitchen knife, a red purse and female belongings that could be found inside a red purse.” Constable Bentley said he told Mr. Darling all that before he searched Mr. Darling. [ 15 ] It was during the course of Constable Bentley’s search of Mr. Darling that he located the cocaine that is at the heart of the indictment. [ 16 ] This voir dire is to determine the admissibility of the evidence found in the search. [ 17 ] Constable Bentley did not advise Mr. Darling of his charter rights after he placed him under investigative detention.

He did not give him the police warning that Mr. Darling need not speak with him. Constable Bentley said that he tried to engage Mr. Darling in conversation in order to advance his investigation. [ 18 ] Constable Bentley said that when he saw Mr. Darling, he believed that Mr. Darling matched the general description of the robber. I accept that evidence. I am satisfied that not only did Constable Bentley believe that Mr.

Darling matched the general description of the robber, but I am also satisfied that he had reasonable grounds for coming to that belief. [ 19 ] However, the description of the robber was a general description. The description could not, by itself, positively identify anybody as being the robber. Constable Bentley did not say that the description identified Mr. Darling as being the robber. He concluded only that because Mr. Darling matched a general description that an investigation was warranted. [ 20 ] Constable Bentley did not believe that he had grounds to arrest Mr. Darling for the robbery.

Constable Bentley did not arrest Mr. Darling for having committed the robbery. [ 21 ] Constable Bentley believed that because he had placed Mr. Darling under investigatory detention that he was entitled to search Mr. Darling for evidence that would implicate Mr. Darling in the robbery. [ 22 ] Constable Bentley told Mr. Darling that he was searching him for evidence that he had committed the robbery. [ 23 ] A submission advanced on behalf of the Crown on the voir dire was that the search was justified because Constable Bentley was entitled to effect a pat-down search for reasons of personal safety.

But I am satisfied that the reason why Constable Bentley searched Mr. Darling was to look for evidence relating to the robbery, and not to ensure that Constable Bentley would not be harmed during the investigatory detention. Constable Bentley told Mr. Darling that he was searching him for evidence that might implicate him in the robbery. I accept Constable Bentley’s evidence that that was so. I do not accept the submission advanced by the Crown in hindsight that the reason for the search was that of personal safety. Constable Bentley said he was searching for evidence relating to the robbery. The reason Mr.

Darling was searched was that Constable Bentley, who had limited police experience, believed he had the legal right to search Mr. Darling. Analysis [ 24 ] Constable Bentley decided that Mr. Darling should be detained for investigation because he matched the general description of the robber. Almost as soon as Mr. Darling reached Constable Bentley, Constable Bentley told him that he was under investigative dettention. Constable Bentley’s evidence was that he would not have permitted Mr. Darling to leave before he completed his investigation. Mr. Darling did not leave.

He was not free to leave. [ 25 ] I find that Mr. Darling was detained by Constable Bentley and that the detention occurred as soon as Constable Bentley told Mr. Darling that he was being detained.

[26] In R. v. Ready 2010 BCCA 11, Frankel J.A. writes for the majority of the British Columbia Court of Appeal. He discussesthe lawfulness of an investigative detention at paragraphs 63 and 64. [27] Frankel J.A. says that the common-law power of a peace officer to make a lawful investigative detention was recognized bythe Supreme Court of Canada in R. v. Mann 2004 SCC 52. In Mann, the Supreme Court of Canada holds that peace officers have acommon-law power to detain a person for investigation if they have reasonable grounds to suspect that the detainee is involved inongoing criminal activity. In Mann, Mr.

Justice Iacobucci says that to be lawful an investigative detention must be premised onreasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances. There must be a clear nexus between the individual to be detained and a recent or ongoing criminal offence. The officer must have areasonable suspicion that the particular individual is implicated in a criminal activity under investigation.

Iacobucci J. summarizes hisdiscussion by saying police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in allthe circumstances that the individual is connected to a particular crime and that such a detention is necessary. [28] In R. v. Kang-Brown 2008 SCC 18, Mr. Justice Binnie discusses reasonable suspicion for investigative detention. He saysreasonable suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probablegrounds. Mr.

Justice Binnie says reasonable grounds to believe a person has committed an offence (credibility-based probability), isrequired for a lawful arrest. [29] Mr. Justice Iacobucci in Mann says that an officer invoking the power of investigative detention must subjectively believe thatthe requisite standard has been met and the officer’s belief must be objectively reasonable. [30] In my opinion, Constable Bentley had reasonable grounds to suspect that Mr. Darling was connected to the robbery underinvestigation, and that Mr. Darling’s detention was a necessary part of the investigation.

There was, in particular, a need to identifyMr. Darling. Constable Bentley would not have been performing his duties had he permitted a suspect to leave the area withoutidentifying him. [31] In my opinion, Constable Bentley’s investigative detention of Mr. Darling was a lawful exercise of his common-law power ofinvestigative detention. Constable Bentley objectively believed that the standard had been met. He had a reasonable suspicion thatMr. Darling was possibly engaged in the robbery and his belief was objectively reasonable. [32] In Mann, Mr.

Justice Iacobucci discusses the search powers incidental to investigative detention. He says at paragraph 36 thatany search incidental to investigative detention is necessarily a warrantless search. It is therefore presumed to be unreasonable unless itis found to have been justified, and hence found reasonable, pursuant to the test established in R. v. Collins (SCC), 19871 S.C.R. 265.

Under Collins, warrantless searches are deemed reasonable if they are authorized by law and if the law itself is reasonableand if the manner in which the search is carried out is also reasonable. [33] Iacobucci J. says that the issue is related to the need to balance the competing interests of an individual’s reasonableexpectation of privacy with the interests of police officer safety. [34] Iacobucci J. says that there is importance in maintaining the distinction between a search incidental to arrest and a searchincidental to investigative detention.

He says that a search incidental to an investigative detention does not give licence to officers toreap the seeds of a warrantless search without the need to effect a lawful arrest based on reasonable and probable grounds, nor does iterode their obligation to obtain search warrants where possible. [35] Iacobucci J. says that the general duty of officers to protect life may in some circumstances give rise to the power to give apat-down search incidental to an investigative detention. Such a search power does not exist as a matter of course.

The officer mustbelieve on reasonable grounds that his own safety or the safety of others is at risk. Iacobucci J. says that he disagrees with the suggestionthat the power to detain for investigation endorses an incidental search in all circumstances. The officer’s decision to search must bereasonably necessary in light of the totality of the circumstances. It cannot be justified on a vague or non-existent concern for safety, norcan the search be premised on hunches or mere intuition. [36] Iacobucci J. summarizes his discussion at paragraph 45 of Mann.

He writes that where a police officer has reasonablegrounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detainedindividual. The search must be conducted in a reasonable manner. [37] Iacobucci J. says that an investigative detention should be brief in duration and does not impose an obligation on the detainedindividual to answer questions posed by the police. He says the investigative detention and protective search power are to bedistinguished from an arrest and its incidental power to search. [38] Constable Bentley told Mr.

Darling that he was going to search him for the weapon used in the robbery, for the red purse thatwas taken in the robbery and for contents of a woman’s purse. Constable Bentley did not have reasonable and probable grounds to effecta lawful arrest of Mr. Darling for robbery, nor did he make such an arrest. [39] After Constable Bentley’s report had been referred to counsel for the Crown, Constable Bentley was invited to read R. v.Mann, and to comment as to whether his search related to officer safety. Constable Bentley, at trial, said that he is always concernedwith his safety, and that his search of Mr.

Darling did involve officer safety. [40] Constable Bentley advanced no reasons why he was concerned with his safety being at risk. He encountered Mr. Darling atmid-afternoon on a summer day on a busy street. Mr. Darling was on a bicycle. He appeared to be coming from work. Aside from hisdescription generally matching the description of the robber, there was nothing about Mr. Darling that suggested he posed a risk toConstable Bentley. What Constable Bentley intended to do was to ask Mr. Darling some questions, to identify him, and to search him.

In the circumstances described by Constable Bentley, there is no apparent reason for him to be concerned about his safety requiring asearch for personal safety.

[41] In Constable Bentley’s initial narrative of what occurred he made no mention of a concern for his safety. [42] I have concluded that Constable Bentley did not conduct the search for officer safety incidental to his investigative detentionof Mr. Darling. I have concluded that Constable Bentley did exactly what he told Mr. Darling he would be doing - that is to say, hesearched Mr. Darling for evidence that Mr. Darling had committed the robbery. He did that without having a lawful basis for arrestingMr. Darling for robbery - he had no reasonable and probable grounds to believe that Mr.

Darling was the robber. [43] Even if there was an officer-safety component in the search, which I do not accept, in my opinion, the primary purpose for thesearch was what Constable Bentley said it was at the time - it was a search for evidence relating to the robbery. The search was notlawful. It was not authorized at law. It was not reasonable. It was not a search justified under the test established in R. v. Collins.

The admissibility of the evidence [44] In Mann, Iacobucci J. says at paragraph 37 that a search incidental to an investigative detention does not give licence to anofficer to reap the seeds of a warrantless search without the need to effect a lawful arrest based on reasonable and probable grounds. InMann, Iacobucci J. did not interfere with the trial judge’s discretionary decision to exclude the evidence obtained in the search. [45] The admissibility of evidence in the event of a charter breach is discussed by the Supreme Court of Canada in R. v. Grant2009 SCC 32 and in R. v.

Harrison 2009 SCC 34. [46] Of relevance to the admissibility of the evidence that Constable Bentley found in the search of Mr. Darling is his perceptionthat an investigative detention entitled him to search. [47] Constable Bentley was not an experienced police officer. He did not know what he was entitled to do during an investigativedetention.

He was of the mistaken belief that he was entitled to detain for investigative detention anybody leaving the area of therobbery that he reasonably suspected of having been being involved in the robbery, and that he was entitled to search them for evidencerelating to the robbery. [48] Constable Bentley’s search of Mr. Darling was conducted in a respectful and non-intimidating fashion, and Constable Bentleythought he was acting pursuant to legitimate policing powers. In that sense, at least, he was not acting in bad faith. [49] But in R. v. Peters 2006 BCSC 1560, Mr.

Justice Romilly writes this at paragraph 58: [58] Possession of a loaded firearm is a very serious offence indeed. The evidence obtained, as a result of the warrantless search inthis case, is also crucial to the Crown’s case. Nevertheless, an important lesson from Mann is that the courts must take violation of asuspect’s rights in the course of an investigative stop very seriously.

Good faith cannot be claimed if a Charter violation is committed onthe basis of a police officer’s unreasonable error, or ignorance as to the scope of his or her authority. [50] In Grant, Chief Justice McLachlin says this: Ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with goodfaith; R. v. Jenest (SCC), 1989 1 S.C.R. 59 at page 87 per Dickson C.J.; R. v. Kokesch (SCC), 1990 3S.C.R. 3 at pages 32-33 per Sopinka J.; R. v.

Buhay 2003 SCC 30, 2003 31 S.C.R. 631 at paragraph 59. [51] She writes that wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right inquestion may require that the court disassociate itself from such conduct, and that deliberate police conduct in violation of establishedCharter standards tends to support exclusion of the evidence. [52] In my opinion, those observations are applicable to the search in this case. [53] The search of Mr. Darling was a result of deliberate police conduct in violation of established Charter standards.

ConstableBentley ought not to have searched Mr. Darling without determining the scope of his authority to search. [54] In my opinion, the seriousness of this Charter infringing state conduct supports exclusion of the evidence. In Grant,McLachlin C.J. concludes her comments with this statement: [75] It should also be kept in mind that for every Charter breach that comes before the courts, many others go unidentified andunredressed because they did not turn up relevant evidence leading to a criminal charge.

In recognition of the need for courts to distancethemselves from this behaviour, therefore, evidence that the Charter infringing conduct was part of a pattern of abuse tends to supportexclusion. [55] The infringements at issue include Mr. Darling not being advised of his Charter rights upon detention and the intrusion on hisprivacy and dignity by being searched. [56] A line of inquiry set out in Grant is that society generally expects a criminal allegation will be adjudicated on its merits.

Theimpact in this case of failing to admit the cocaine into evidence will be that the Crown cannot establish the offence with whichMr. Darling is charged. The cocaine evidence is reliable. [57] The fact that reliable evidence has been obtained in breach of the Charter must be weighed against the factors pointing towardexclusion in order to balance the interests of truth with the integrity of the justice system. [58] I have concluded that in this case the evidence obtained in the search must be excluded. Mr. Darling was searched in directviolation of his Charter rights. He ought not to have been searched at all.

I assume that Constable Bentley would have searched othersuspects had he encountered others. It was not open to Constable Bentley to search suspects. In my opinion, the courts must disassociatethemselves from this conduct and the evidence obtained in the search must be excluded.

_____________________________ The Honourable Mr. Justice Shabbits IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Darling , 2010 BCSC 546 Date: 20100430 Docket: 64803-2 Registry: Nanaimo Between: Regina And Brent Robert Darling Before: The Honourable Mr. Justice Shabbits Corrigendum to Reasons for Judgment Counsel for Crown: C.J. Gibson Counsel for the Accused: J. McCormick Place and Date of Hearing: Nanaimo, B.C. April 13,14,15, 2010 Place and Date of Judgment: Nanaimo, B.C.

April 22, 2010 Date of Corrigendum: April 30, 2010 [ 59 ] This is a corrigendum to my Reasons for Judgment released April 22, 2010 (2010 BCSC 546). [ 60 ] In paras. 26 and 27 of my Reasons for Judgment reference is made to Franko J.A. The spelling is incorrect and should read Frankel, J.A. ____________________ Mr. Justice Shabbits