R. v. Pelucco, 2013 BCSC 588

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Pelucco, 2013 BCSC 588 Date: 20130405 Docket: 72736-2 Registry: Nanaimo Regina v. David Gabriel Pelucco Before: The Honourable Mr. Justice Halfyard Reasons for Judgment - Ruling on Voir Dire No. 1 Counsel for the Crown: C. Gibson Counsel for the Accused: N.L. Cobb Place and Date of Trial: Nanaimo, B.C. March 18, 19, 20, 21 & April 5, 2013 Place and Date of Judgment: Nanaimo, B.C. April 5, 2013 Introduction [ 1 ] The accused, David Gabriel Pelucco, is on trial on the charges that he committed the following offences:

a) Possession of cocaine for the purpose of trafficking, on November 12, 2010, at Nanaimo.

b) Possession of heroin for the purpose of trafficking, on November 12, 2010, at Nanaimo.

c) Possession of methamphetamine on November 12, 2010, at Nanaimo. [ 2 ] It is undisputed that, at about 11:05 a.m. on November 12, 2010, members of the Nanaimo R.C.M.P. arrested the accused while he was sitting in his car in the parking lot of the Rugby Club in Nanaimo.

The accused was removed from his car, handcuffed, and arrested for possession of a controlled substance for the purpose of trafficking. [ 3 ] On searching the accused’s car, the police found a “brick” of cocaine which weighed 1,030 grams, a small baggie of crack cocaine and a paper flap containing a small amount of methamphetamine. [ 4 ] The police found and seized a Blackberry/cell phone from the accused which he was holding in his hand.

They seized and searched his wallet and found the accused’s driver’s licence and a key, in the wallet. [ 5 ] Relying on the drugs and documents found in the accused’s car, and on information obtained from searching the contents of the accused’s cell phone, the police applied for and obtained a search warrant authorizing them to search the residence of the accused at 6079 Sierra Way in Nanaimo. That evening the police executed the search warrant, and seized further evidence from the residence.

The admissibility of that other evidence will be the subject of a separate voir dire . [ 6 ] Before trial, the accused filed an application under s. 24 of the Charter of Rights , requesting an order that all of the evidence seized at the time of his arrest and all of the evidence seized pursuant to the search warrant be excluded from his trial.

The accused alleges that the “evidence was obtained in a manner that infringed or denied” his rights under ss 8, 9 and 10 of the Charter of Rights , and that “the admission of” the evidence in his trial “would bring the administration of justice into disrepute.” [ 7 ] The arrest of the accused was without warrant. A search based on a warrantless arrest is presumed in law to be unreasonable. Accordingly, the Crown requested a voir dire to enable it to attempt to prove that the arrest of the accused was lawful, and that the searches of his car and cell phone were incidental to his lawful arrest.

The burden of proving these allegations is on the Crown. [ 8 ] I granted the Crown’s application. [ 9 ] The accused applied for a voir dire in which he would attempt to establish that his rights under the Charter were violated in a number of respects. I was satisfied that a voir dire should be held to determine the violation issues raised by the accused, and that the accused should be granted leave to cross-examine the police officers as necessary. The burden of proving the alleged Charter violations

rests with the accused. The Issues [10] Voir dire No. 1 combined the application of the Crown and parts of the application of the accused. On this voir dire, the issuesfor determination are:

a) Was the accused lawfully arrested (or was he arbitrarily detained)?

b) If the accused was lawfully arrested, then was the search of his motor vehicle lawful as being incidental to the lawful arrest?

c) If the accused was lawfully arrested, then was the search of his cell phone lawful, as being incidental to the lawful arrest?

d) Was there a violation of the accused’s s.8 Charter rights when the police fingerprinted the accused on November 12, 2010 beforeany charge was laid against him? [11] Although counsel indicated that the lawfulness of the police search of the accused’s Blackberry/cell phone (“cell phone”) wouldbe determined in voir dire no. 1, the evidence presented on the voir dire to establish what information was contained in the accused’s cellphone was quite limited.

I was told that evidence obtained from the accused’s cell phone was used in the information to obtain the searchwarrant for the accused’s residence, but that evidence was not specified. Counsel seemed content to limit this issue to the question ofwhether the search of the accused’s cell phone was authorized by law. [12] At the close of the evidence in voir dire no. 1, counsel presented argument only on the issue of whether the accused’s Charterrights had been violated.

I had earlier directed that I would decide whether the exclusion issue would be argued and decided, ifnecessary, immediately following my decision on the violation issue. Counsel had urged me to leave the exclusion issue (if any) relatingto the evidence presented in voir dire no. 1, and decide it after completion of the evidence and argument on voir dire no. 2 (that is,together with the exclusion issue relating to the evidence presented in voir dire no. 2).

And so I have yet to decide when the exclusionissue relating to voir dire no. 1 will be argued and decided. [13] The central issue on voir dire No. 1 is whether the accused was lawfully arrested on November 12, 2010. Overview of the Evidence [14] The Crown called five R.C.M.P. Constables on voir dire No. 1. They were David Munger, Nicholas Brodeur, Justin Ickeringill,Monique Scrase and Pierre Charlebois. A great many documents were marked as exhibits for identification. [15] The defence elected not to call evidence on voir dire No. 1. Issue No. 1 Was the Accused lawfully arrested (or was he arbitrarily detained)?

The Law [16] A police officer may arrest a person without warrant if he or she believes that the person “has committed or is about to commitan indictable offence”, and if there were objectively reasonable and probable grounds to support the police officer’s subjective belief. SeeCriminal Code s. 495(1a); R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; R. v. Spence 2011 BCCA 280, at paras 29-33. [17] If a person has been lawfully arrested, the police may search his or her person and his or her immediate surroundings, as anincident of the arrest. The purpose of such a search must be connected to the arrest.

The permissible purposes of a search incidental toarrest are: to ensure the safety of the police and the public; to protect evidence; and to discover evidence. If the purpose of the search isto find evidence, there must be a reasonable prospect of obtaining evidence of the offence for which the accused is being arrested. See R.v. Caslake, (SCC), [1998] 1 S.C.R. 51, at para. 22. Although the purpose of the search must be related to the purposeof the arrest, the “reasonable prospect” standard is a lesser test than the standard of reasonable and probable grounds, which applies tothe arrest.

But the police officer must be able to explain why he or she conducted the search, must believe that the intended purpose willbe served by the search, and his or her belief must be a reasonable one. See R. v. Caslake at paras 17, 19 and 20; R. v. Caron 2011 BCCA56 at para. 36. Position of the Crown [18] The Crown alleges that the police had reasonable and probable grounds to arrest the accused, based on the evidence they hadobtained during the hour or so which preceded the arrest.

The Crown relies on evidence which established that the police had stopped amotor vehicle being driven by a man named Manjit Guray and that in the course of arresting him and searching his vehicle and cellphone, they discovered evidence which is alleged to implicate the accused in an intended drug transaction with Guray.

The Crown saysthat the police smelled cocaine and found a large amount of cash in the trunk of Guray’s car, and that, on viewing the contents ofGuray’s Blackberry/cell phone, they discovered an exchange of text messages between Guray and another person which revealed animminent drug transaction, namely: that Guray was on his way to Nanaimo to meet that person and to buy a kilogram of cocaine fromhim or her.

[19] The Crown also relies on evidence which shows that one of the police officers used Guray’s cell phone to communicate (byway of text message) with the unknown person with whom Guray had been texting. The Crown alleges that Constable Ickeringill had atext messaging “conversation” with the unknown person while pretending that he was Guray, and that he arranged to meet that person ata specific place in Nanaimo to complete the drug transaction.

It is further alleged that, when the police attended at that specific location ashort time later, they found the accused sitting in his parked car and, believing him to be the unknown person who had been texting withGuray and with Constable Ickeringill, they arrested him. It is argued that the arresting officers had reasonable and probable grounds tobelieve that the accused was the unknown person, and to believe that he was in possession of cocaine for the purpose of trafficking.

Position of the Accused [20] The accused contends that the police did not have reasonable and probable grounds to believe that he had committed or wasabout to commit an indictable offence, because the existing text messages found on Guray’s cell phone and the subsequent text messagesexchanged between Constable Ickeringill and the unknown person, were obtained in violation of the accused’s s. 8 rights and cannot berelied on as grounds to justify the arrest of the accused. [21] It was contended by the defence, in the alternative, that there was no reliable evidence to establish that the text messagesexchanged between Guray and the unknown person, related to an illegal drug transaction.

From that foundation, it is argued that theevidence cannot support the conclusion that an indictable offence, namely, the purchase and sale of cocaine, was the subject matter ofthe text messaging. Defence counsel complained that Constable Ickeringill gave opinion evidence as to the

interpretation of the textmessages, without having first been qualified to give expert opinion evidence as to the meaning of slang words used in the cocainetrafficking field. [22] With respect to the text messages sent to Guray by the unknown person and the text messages sent by the unknown person toConstable Ickeringill, the accused admits (for the purpose of the voir dire) that he was the unknown person.

But the defence submits thatthe accused’s text messages to Guray were his own “private communications,” that he had a reasonable expectation of privacy in the textmessages that he sent to Guray; and that they could not lawfully be seized by the police without prior judicial authorization. The defencesays that no warrant was obtained before searching Guray’s cell phone, and that the Crown has failed to rebut the presumption that thepolice obtained the existing text messages unlawfully, in violation of his s. 8 Charter rights.

The defence contends that the arrestingofficers arrested the accused without lawful authority, with the consequence that they had no right to search him, his car, or his cellphone. [23] As to the text-messaging conversation between Constable Ickeringill and the accused, the defence submits that the accused’sstatements were obtained in violation of his s. 8 rights, because Constable Ickeringill “intercepted” the accused’s “privatecommunications” that he intended should be received only by Guray, without an authorization issued pursuant to

Part VI of the CriminalCode. [24] In the further alternative, the defence says that, in the event that the police had reasonable grounds to believe that the personwho had been texting with Guray (and who continued to text with Constable Ickeringill) had committed or was about to commit anindictable offence, the police did not have reasonable and probable grounds to believe that the unknown person was the person theyfound in the parking lot of the Rugby Club (that is, the accused). The Crown’s Reply Position [25] The reply position of the Crown was as follows:

a) The accused has no standing to challenge the lawfulness of the search of Guray’s cell phone to read the text messages that had beenexchanged between him and Guray. If the search of Guray’s cell phone was unlawful, it could only be because of a violation of Guray’ss. 8 rights, and not the s. 8 rights of the accused. Only the person whose Charter rights have been violated can assert and rely on thoserights. See R. v. Hyatt 2003 BCCA 27, at para. 45; R. v. Giles 2007 BCSC 1147, at paras 3 and 4. The Crown contends that the accusedcannot claim a privacy interest in another person’s cell phone and so he has no right to challenge the search of Guray’s cell phone.

b) As to the text messages sent to Constable Ickeringill by the accused, Crown counsel did not contend that the accused had no standingto challenge the admissibility of his own statements. But the Crown says that Constable Ickeringill did not “intercept” a communicationfrom the accused, but merely received a communication from him. The police officer tricked the accused into believing that he was textmessaging with Guray, and of course the accused did not know that he was exchanging texts with a police officer, but the Crown saysthat such police tactics are an acceptable method of investigation.

Crown counsel says the situation is similar to the fact situation in R. v.Singh (1998), (BC CA), 127 C.C.C. (3d) 429 (B.C.C.A.), and argues that this case is a complete answer to thedefence argument on this point.

c) With respect to the defence submission that there is no reliable evidence to prove that the text messages exchanged between Gurayand the accused related to a drug transaction, Crown counsel submits that the non-expert testimony of Constable Ickeringill, based on hisexamination of the text messages (“I” for identification) and his experience in drug investigations, is sufficient to prove that fact, andshould be accepted by the court.

d) On the issue of whether the police had authority to search the accused’s cell phone as incidental to his arrest, Crown counsel arguesthat R. v. Giles 2007 BCSC 147 is still good law (as confirmed by R. v. Mann 2012 BCSC 1247 (Bernard J.), at paras 45 - 46, 59 and69). The Crown says that, in this province, no warrant or

Part VI authorization is necessary to permit the police to search a cell phone;and that if an arrest is lawful and there is a reasonable prospect of finding evidence of the offence, the entire contents of the cell phonemay be searched. The Issue of Standing

[26] The first issue to be decided is whether the accused has standing to challenge the lawfulness of the search of Guray’s cellphone. In order to achieve standing, an accused person must establish that he or she had a reasonable expectation of privacy in the placeor thing that was searched by the police. See R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, at para. 45 - 3.

The authoritiesindicate that the accused must have a subjective expectation of privacy in the place or thing searched, and that the court must also decidethat his or her subjective expectation is objectively reasonable. [27] In this case, the defence rightly concedes that the accused cannot rely on the alleged violations of Guray’s s. 8 rights, tochallenge the search of Guray’s cell phone. Nor does the defence suggest that the accused had any privacy interest in Guray’s car or inthe cash found in the trunk of Guray’s car.

But defence counsel asserts that the accused is alleging that his own s. 8 right (not Guray’s)was violated when the police read the text messages that he had sent to Guray.

I agree with defence counsel that the judgment in R. v.Giles does not determine the issue in favour of the Crown, because in that case the co-accused whose emails were discovered on anotheraccused’s cell phone conceded that he had no standing to challenge the search of that cell phone. [28] In a case where standing is disputed by the Crown, the accused person will often testify on the voir dire in an attempt to showthat she or he had a subjective expectation of privacy in the place or thing search by the police. For example, see R. v. Belcourt, 2012BCSC 796.

However, testimony from the accused is not always essential. In proper circumstances, it may be inferred that the accusedhad a subjective expectation of privacy. See R. v. Siniscaldi, 2010 BCCA 354, at paras 66 - 69, 86 - 88 and 100. [29] Generally speaking, telephone conversations are “private communications” within

Part VI of the Criminal Code. Telephoneconversations between two persons are presumed to have a high degree of privacy, and cannot be “intercepted” by any third personwithout judicial authorization. See the comments of Mr. Justice Groberman in R. v.

Siniscaldi at paras 87, 100 and 101. [30] The relevant part of the definition of “private communication” in s. 183 of the Criminal Code is this: “private communication” means any oral communication, or any telecommunication that is made by an originator . . . and that is madeunder circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any other person other than theperson intended by the originator to receive it . . . . [31] In my opinion, communications made by using a cell phone to send text messages to another person’s cell phone would fallwithin the meaning of “any telecommunication,” in the definition of “private communication,” and should be treated in the same way asif the conversation was an oral telephone conversation.

That was the conclusion reached by Mr. Justice Macaulay in R. v. Belcourt, 2012BCSC 796 (at para. 7), which I agree with and adopt. [32] In the present case, I infer that Mr. Pelucco had a subjective belief that his text message conversations with Guray were private.The next question is whether that belief was objectively reasonable. [33] Guray’s cell phone did not require the insertion of a password in order to open it and view its contents, nor was it otherwiselocked to prevent access by persons other than Guray. The text messages sent by the accused to Guray are not of a “personal” or“biographical” nature.

However, I think the subject matter of the text messages, which I find to be capable of referring to an intendeddrug transaction, supports the inference that both the accused and Guray wanted to keep their conversation secret from all other persons. Ialso infer that the accused and Guray had no reason whatever to suspect that someone else might take one or other of their cell phonesand read their text message conversations. I conclude that the accused’s subjective expectation of privacy was objectively reasonable. [34] The other five factors listed at para. 45 - 6 of R. v.

Edwards would seem to have no relevance to police searches of two-wayelectronic equipment in which private communications are discovered. My conclusion is that the only two factors that are relevant havebeen shown to favour the accused. As a consequence, I find that he has standing to allege that his s. 8 right was violated when the policesearched the contents of Guray’s cell phone and read the accused’s text messages to Guray.

It is conceded that the accused has nostanding to challenge the search of Guray’s car. [35] On March 27, 2013, six days after I reserved my decision on this voir dire, the Supreme Court of Canada delivered judgment inR. v. Telus Communications Co. 2013 SCC 16 , 2013 S.C.C. 16. Although there were differences of opinion on the issue of“interception,” the court held that text messages sent by users of cell phones were “private communications” within the definition ins. 183 of the Criminal Code (see paras 5 and 32)).

That being so, it seems to me there exists a statutory presumption that a personsending a text message to another person by means of a cell phone or other electronic device, has a reasonable expectation of privacy inhis or her text messages. I conclude that the analysis of the standing issue which I have conducted should no longer be necessary. Incases such as the present case, standing should be presumed.

The challenge to the lawfulness of the search of Guray’s cell phone [36] While the accused cannot rely on any alleged violations of Guray’s s. 8 rights, as being a violation of his own s. 8 rights, it mustfirst be noted that Guray’s cell phone was searched without a warrant. Accordingly, the law presumes that the search (by which theaccused’s text messages to Guray were found and read) was unreasonable. The Crown admits that the search was without warrant, butdenies that the search violated the accused’s s. 8 rights.

As a consequence, the burden of proof shifts to the Crown and requires theCrown to prove that, although the search was without warrant, it was nevertheless reasonable. In order to prove that the search wasreasonable, the Crown must prove three things: that the search was authorized by law, that the law itself is reasonable and that the searchwas carried out in a reasonable manner. See R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at paras 21 - 23. [37] The Crown relies on the law that permits a police officer to conduct a search incidental to the lawful arrest of a person.

The firstissue is whether that law authorized the police to seize and search Guray’s cell phone. Was Mr. Guray under lawful arrest when Constable Ickeringill seized and searchedthe contents of his cell phone?

[ 38 ] A police officer may arrest a person without warrant if he or she believes that the person “has committed or is about to commit an indictable offence,” and if there were objectively reasonable and probable grounds to support the police officer’s subjective belief. In this case, the Crown must prove that the police had reasonable and probable grounds to believe that Mr. Guray had committed or was about to commit an indictable offence, before he was arrested and before his cell phone was seized and the contents were searched.

The determination of this issue requires me to find and summarize the facts relating to this issue. [ 39 ] Defence counsel challenged the credibility of the police officers, mainly on the footing that parts of their testimony were unreliable because they had (admittedly) not made notes of all significant events, and because there were conflicts between the officers on several points. I have some concerns about parts of the testimony of the officers. It is difficult to discern how many of Guray’s statements were made to Constable Munger, and how many were made to Constable Brodeur.

The information about Guray that passed between the officers is hard to quantify, and it is difficult to identify how much of what the officers did was planned between them beforehand or done independently. The sequence of events is sometimes unclear, as is the extent of each officer’s knowledge of what the other two were doing at any given time. Strangely, no one seemed able to recall whether Guray said he wanted to talk to a lawyer. [ 40 ] There were a number of conflicts between the officers, including conflicts as to who did what.

Some of these conflicts (such as whether the traffic was heavy or light, whether Guray’s car was towed away before the officers departed for the police station, and the extent of Constable Brodeur’s participation in the arrest of Mr. Pelucco) are of little importance. But the conflict as to whether Constable Brodeur or Constable Ickeringill took photographs of Guray at the roadside is more troubling, even though it relates to a seemingly minor matter. Constable Ickeringill gave detailed evidence about how he did this, and it is apparent that only one officer took such photographs.

I accept Constable Ickeringill’s evidence on this point, and I find that Constable Brodeur is mistaken. [ 41 ] I find it unnecessary to undertake any further assessment of the credibility of these three police officers. While their evidence is unsatisfactory in some respects, I am satisfied that, in general, they gave their testimony honestly, intending to tell the truth. There are a few exceptions, which I will identify when finding the facts.

Bearing in mind the concerns I have described, I will summarize the facts which I find have been proved by the evidence relating to this issue. [ 42 ] At or about 10:00 a.m. on Friday, November 12, 2010, Constables Munger, Brodeur, and Ickeringill were returning from Ladysmith to Nanaimo. They were in plain clothes and were travelling in an unmarked police vehicle. Constable Munger was driving.

He was driving at a speed of about 100 kph. [ 43 ] Constable Munger saw, in his rear view mirrors, a car that was closing in on the police vehicle and that was speeding and driving erratically (changing lanes, back and forth). Less than a minute later, the car passed the police vehicle and went ahead of it. Constable Munger saw that the driver was an East Indian male person with short hair, who appeared to be well dressed and had tattoos on his arms and neck. Constable Munger increased his speed, and followed the car (which was a black Toyota Camry).

He could read the licence plate number on the car, and he requested the police dispatcher to do a motor vehicle search. The results came back, showing that the car was a rental vehicle from Victoria. [ 44 ] Constable Munger decided to stop the car (which had continued travelling at excessive speed and changing lanes back and forth). At the time, the vehicles were travelling north on the part of the highway known as the Parkway, and nearing the exit which leads to the Vancouver Island University.

Constable Munger activated the emergency equipment on the police vehicle, and the car pulled over onto the shoulder, and stopped. Constable Munger pulled the police vehicle in behind the car, and stopped. [ 45 ] Constable Munger went to the driver’s window of the car and showed his police badge to the driver. He told the driver that he was investigating him for erratic driving and speeding. There was no one else in the car. The driver was polite, but appeared to be nervous and did not make eye contact with the officer.

The driver told Constable Munger that he was in a hurry, on his way to the Cactus Club in Nanaimo, but had been involved in a motor vehicle accident in Ladysmith and had been delayed. [ 46 ] Constable Munger asked the driver for his driver’s licence and vehicle registration. The driver handed the officer his driver’s licence and the rental contract for the car. The driver’s licence showed that the driver’s name was Manjit Guray and the rental contract showed that he had been renting the car for “a considerable length of time.” Constable Munger had Mr.

Guray wait in his car, and walked back and got into the police vehicle. He conducted a search of the police database for Manjit Guray and was informed that Mr. Guray had a history (in police files) for being investigated for violence, and for weapons and drug offences, but apparently had no convictions. He discussed the situation with Constable Brodeur and Constable Ickeringill, formed the opinion that something was wrong and decided to question Mr. Guray. He also asked Constable Ickeringill to take a look at Guray’s car, to see if it had any damage as reported by Guray.

At some point, Constable Munger asked Constable Ickeringill to take a photograph (or photographs) of Guray. [ 47 ] Constable Munger’s suspicions were aroused by Guray’s history with the police and by four further things. First, Mr. Guray had said that he was going to meet someone at the Cactus Club in Nanaimo, but it was morning, and it seemed strange to be meeting someone at that place at that time. Second, the officer believed that rental cars are sometimes used to commit crimes. Third, Guray had appeared nervous and had avoided making eye contact.

Fourth, Guray had a tattoo that the officer suspected could be connected to a criminal gang. [ 48 ] While Constable Munger was still in the police vehicle (either continuing to search the police database for information about Manjit Guray, or discussing strategy with Constable Ickeringill), Constable Brodeur got out of the police vehicle and went to the passenger side window of Guray’s car, and knocked on it. Mr. Guray lowered the window, and Constable Brodeur had a conversation with him. In substance, Mr.

Guray told Constable Brodeur that he was travelling from Victoria to Nanaimo and was going to meet someone at the Cactus Club about buying a car. When asked whether one of his tattoos was connected to any criminal gang, Guray denied this and said he had got the tattoo when he was 16. When asked who he was going to meet, Guray said that he didn’t know. When Constable Brodeur asked him how he could meet someone that he didn’t know, Mr. Guray was unable to explain in a way that was satisfactory to the officer. Mr.

Guray told Constable Brodeur that he was going to meet his girlfriend later at Tigh-Na-Mara (a resort in Parksville) but said that his girlfriend was still in Victoria and was going to drive up later. Mr. Guray told the officer that he had a four- wheel-drive vehicle, but that it was in the shop getting new tires put on. He also said that the car was better for driving in snow than his 4 x 4 truck.

[ 49 ] Constable Brodeur asked Mr. Guray if he had any guns or bombs or firearms in the trunk of his car, and Guray said he did not. Constable Brodeur asked Guray what was in the trunk and Guray said that he had his clothing in the trunk. Constable Brodeur asked if Guray would mind if he looked in the trunk and Mr. Guray would not consent to this. [ 50 ] Constable Brodeur did not see anything in plain view inside Mr. Guray’s car except for a cell phone sitting in or on the centre console. [ 51 ] Constable Ickeringill got out and looked around Guray’s car.

He saw that there was some minor damage, which was consistent with Guray’s claim that he had been in an accident. [ 52 ] Constable Munger returned to Mr. Guray’s vehicle, told him that he was not going to issue any traffic violation tickets to him, but said that he wanted to talk to Mr. Guray. [ 53 ] Constable Munger asked Mr. Guray to get out of the car and to come to the back of his car (between the two vehicles) to talk. The two men went to the back of the Guray vehicle. [ 54 ] Constable Brodeur was still at the passenger side window of Mr.

Guray’s car when Constable Munger returned from the police vehicle and again spoke to Guray. By this time, Mr. Guray’s story had raised Constable Brodeur’s suspicions. He suspected that something illegal was in the trunk, possibly firearms, and he testified that he was concerned about public safety. Although I accept that Constable Brodeur had a suspicion that there might be some weapon in the car trunk, I am unable to accept that he seriously believed there was some risk to public safety. [ 55 ] Constable Brodeur had received some information from Constable Munger relating to Mr.

Guray’s apparent previous criminal activity. He also overheard Constable Munger telling Guray (after Constable Munger returned from the police vehicle) that he (Constable Munger) was concerned that Guray had guns or other dangerous items in the trunk of his car. He heard Constable Munger tell Mr. Guray that they (meaning the police) were either going to open the trunk, or would like to open the trunk. Constable Brodeur decided that he would open the trunk. [ 56 ] While Constable Munger was talking to Mr. Guray at the back of Guray’s car, Constable Brodeur opened the trunk of Guray’s car.

He saw a fairly large red shopping bag in which a backpack was contained. He smelled a strong odor of what he believed to be cocaine. He formed the belief that there was a large amount of cocaine inside the backpack. Constable Brodeur went to Mr. Guray and told him he was under arrest for possession of a controlled substance for the purpose of trafficking. Guray was handcuffed.

Constable Brodeur informed Guray of his right to counsel and gave him the police caution, from memory. [ 57 ] Constable Brodeur made a note which states that he opened the car trunk at 10:09 a.m. and I find that time to be fairly accurate. [ 58 ] Constable Ickeringill took one or more photographs of Mr. Guray while he was at the back of his car, before he was arrested. He did this from the police vehicle, without Guray being aware of it, and at the earlier suggestion of Constable Munger. [ 59 ] After Constable Brodeur had opened the car trunk and had arrested Mr.

Guray, Constable Ickeringill went and took a look inside the car, and saw a Blackberry/cell phone electronic device (“cell phone”) which he seized. The cell phone was not locked or password protected, and he opened it and began to look at the information stored in it. [ 60 ] Constable Brodeur returned to the car trunk, and looked inside the backpack. There was no cocaine in the backpack but there was a large amount of cash. The money was in bundles of $20 and $50 bills, inside zip-lock bags.

Constable Brodeur then told Guray that he was under arrest for possession of the proceeds of crime, and again informed him of his rights to counsel and gave the police caution (this time from his police card). Guray told Constable Munger there was $39,000 in cash, and that he was going to use it to buy a car. He also said that he had received the money from an inheritance.

I infer that Constable Ickeringill was aware that Constable Brodeur had discovered cash in the trunk, and that Guray had said the amount of cash was $39,000. [ 61 ] In scrolling through the contents of Guray’s cell phone, Constable Ickeringill found that there had been text messaging going back and forth between Mr. Guray and an unknown person who had the telephone number 250 618-7712. In examining these text messages, Constable Ickeringill formed the opinion that the two persons were texting about a drug transaction in which Guray was intending to purchase a kilogram of cocaine from the unknown person.

These text messages were later transcribed and they are contained in Exhibit “I” for identification on voir dire No. 1. Constable Ickeringill gave a reasoned explanation of why he believed the text message conversation related to a drug transaction. [ 62 ] Constable Munger and Constable Ickeringill testified to the effect that they believed the police could lawfully search a cell phone seized from an arrested suspect, to look for evidence relating to the offence the person was being arrested for.

Constables Munger and Ickeringill also testified to the effect that a person who sends a text message to another person via cell phone generally expects and intends that the text would only be seen by the person intended by the sender to receive it. [ 63 ] Constable Ickeringill believed that Guray and the unknown person were intending to complete the drug sale and purchase very soon, and that Guray was on his way to Nanaimo to meet that person for that purpose, when they pulled him over.

The officers discussed the matter and decided that Constable Ickeringill would communicate with the unknown person by sending text messages on Guray’s cell phone, while pretending to be Guray. He started doing that at about 10:41 a.m. The unknown person had texted Guray and told Guray to “park at the li’l park,” but the officers did not know where that was, and so they wanted to change the meeting place.

In the result, Constable Ickeringill and the unknown person arranged to meet at a place suggested by the officer, namely, the Rugby Club parking lot behind the Canadian Tire store (at the north end of Nanaimo) as soon as both parties could drive to that location. [ 64 ] The officers summoned another R.C.M.P. member to come and transport Mr. Guray to the Nanaimo Detachment, and that was done. It was arranged that Mr. Guray’s car would be towed away. Constable Brodeur seized the money and other relevant contents from the trunk of Guray’s car.

The three officers drove to the police station and one or more of them discussed the matter with Constable Charlebois. It was agreed that Constables Munger and Ickeringill would drive to the Rugby Club parking lot in the unmarked police

truck, and that Constables Charlebois and Brodeur would follow them as soon as possible. The officers were expecting to find theunknown person at that place and intended to arrest him or her. Discussion [65] It is apparent that Constable Brodeur had arrested Guray for possession of a controlled substance for the purpose of trafficking,and then for possession of the proceeds of crime, before Constable Ickeringill had interpreted the contents of Guray’s cell phone. ButConstable Brodeur obtained his grounds to arrest Guray, by searching the trunk of Guray’s car.

Constable Brodeur made some vaguereference to being concerned about public safety. That concern amounted to a suspicion that there might be firearms or explosives in thetrunk of Guray’s car, based on police files containing information about his history for violence, weapons and drug involvement. It wassaid that this suspicion was elevated by the improbable story given by Guray, about where he was going and what he was going to do. [66] Guray had been lawfully detained for traffic violations.

The suspicion of the police officers was formed, during this lawfuldetention for investigation of provincial driving offences. Crown counsel did not clearly articulate in his argument that the search ofGuray’s car trunk was justified as being incidental to a lawful detention for investigation for suspected possession of firearms orexplosives. But that contention seemed implicit in the case for the Crown.

It was also implicit in the Crown’s case that the search of thetrunk of Guray’s car resulted in the finding of evidence that provided reasonable and probable grounds to arrest him for the twosuspected offences described by Constable Brodeur. From that assumed foundation, Crown counsel advanced the proposition thatConstable Ickeringill was lawfully entitled to seize and search the contents of Guray’s cell phone (as an incident to lawful arrest), forevidence of the two offences for which Guray was arrested. [67] I accept that the police officers had a suspicion that Guray might be carrying firearms in his car.

But in my opinion, thatsuspicion did not rise above the level of a mere possibility. That suspicion fell short of the reasonable suspicion required to justify aninvestigative detention. See R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59; R. v. Kang - Brown, 2008 SCC 18 , [2008]1 S.C.R. 456, at para. 75; and R. v.

Dhillon 2012 BCCA 254, at paras 31 - 36. [68] Even if Guray had been lawfully detained, I think the search permitted by law would be limited to a pat-down search of Guray’sperson for weapons, to protect the safety of the police officers. [69] I conclude that the police were not authorized to search the trunk of Guray’s car, as an incident to a lawful investigativedetention. It was not suggested that the police had grounds to arrest Guray before they searched the trunk of his car. The search ofGuray’s car trunk was therefore unlawful, and in violation of Guray’s (but not the accused’

s) s. 8 rights. [70] The police arrested Guray on the strength of the evidence discovered by the unlawful search of his car trunk (the smell ofcocaine and 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 fruits of an unlawful search cannot be used to provide reasonable and probable grounds for an arrest, particularly where that arrest isrelied on to justify a subsequent search which is said to be incidental to the arrest. I find some support for this conclusion in the reasoningof Mr. Justice Groberman in R. v.

Bartoli 2003 BCSC 1888, at paras 43-44. [71] My conclusion is that the arrest of Mr. Guray was unlawful and that the seizure and search of his cell phone was not authorizedby law. It follows that the police had no lawful authority to search the contents of Guray’s cell phone for evidence of the offences that hewas suspected of having committed or being about to commit.

When the police inspected the contents of Guray’s cell phone, and foundand examined the text messages sent to Guray by the accused, they were acting without lawful authority. [72] Even if Guray had been lawfully arrested, Constable Ickeringill did not specifically testify to having a belief that he would (ormight) find evidence of Guray’s suspected offences, by searching his cell phone. I do not recall Crown counsel arguing that such a beliefshould be inferred.

I am inclined to infer, from the officer’s testimony, that he did suspect he might find evidence of possession of acontrolled substance for the purpose of trafficking. But if he did, it is questionable whether there was a sufficient objective basis for suchsuspicion, before he searched the contents of the cell phone. It is arguable that Constable Ickeringill had only a mere suspicion that thecell phone contained evidence of that offence, until after he reviewed the text messages.

The authorities require that there be “areasonable prospect” that evidence of the offence will be discovered by the intended search, which would seem to require a reasonablesuspicion, before any search is undertaken. [73] In the result, the Crown has failed to rebut the presumption that the search of Guray’s cell phone was unreasonable.

As aconsequence, the accused has established that his s. 8 rights against unreasonable search and seizure were violated by that search. [74] As a result of my conclusion that the search of Guray’s cell phone could not be incidental to lawful arrest, I find it unnecessaryto decide between the conflicting lines of authority which have developed in British Columbia and Ontario. There is markeddisagreement in the authorities as to when the contents of a cell phone can lawfully be searched without a search warrant, and as to thepermitted scope of a warrantless search (when such a search is justified).

The conflict is illustrated by the judgments in R. v. Giles, 2007BCSC 1147 (A. MacKenzie J.) and R. v. Fearon, 2013 ONCA 106. Since counsel spent a considerable time in argument on these issues,I think I should at least identify the points of conflict. [75] In British Columbia, as an incident of lawful arrest, the police may search the entire contents of a suspect’s Blackberry/cellphone, provided that there is a reasonable prospect of finding evidence of the offence for which the suspect was arrested. In Ontario,there are additional restrictions on such a search.

If the cell phone requires a password to open it or if access is otherwise locked topersons other than the owner, then the police are not allowed to search the contents of the cell phone at all, without prior judicialauthorization in the form of a search warrant. If the cell phone is not equipped with any such protective device, then the police maysearch the cell phone for evidence of the offence (where there is a reasonable prospect of finding such evidence), but only a cursorysearch is permitted, to determine whether or not the cell phone contains evidence of the targeted offence.

If such evidence appears to bepresent, then the search must be terminated, and the police must apply for and obtain a search warrant to authorize a more extensivesearch of the contents.

[76] In R. v. Mann, 2012 BCSC 1247, Mr. Justice Bernard considered and rejected a challenge to the continuing correctness of thedecision made in R. v. Giles that a warrantless search of a cell phone may be conducted as an incident to lawful arrest (see the lengthydiscussion at para. 43 and following, and the conclusion at para. 69).

Was there a further violation of the accused’s s. 8 rights when he was deceived byConstable Ickeringill? [77] The police used the text message conversation between Guray and the accused (found on Guray’s cell phone) to induce theaccused to engage in an exchange of text messages with Constable Ickeringill, in the mistaken belief that Constable Ickeringill wasMr. Guray. I reject the defence submission to the effect that Constable Ickeringill “intercepted” the accused’s text messages without priorjudicial authorization under

Part VI of the Criminal Code. Although the accused believed that he was texting with Guray, the policeofficer was receiving the accused’s text messages directly, and was not “intercepting” any text message from the accused that was beingreceived by Guray. I think the situation is analogous to the telephone conversation between the appellant (who was seeking to sell drugs)and a police officer posing as an associate of the appellant’s intended customer, in R. v. Singh (1998), (BC CA), 127C.C.C. (3d) 429 (B.C.C.A.).

If it is correct to say that there was no “interception” of the accused’s text messages, then I do not see howthe exchange between Constable Ickeringill and the accused can be characterized as a search. In my opinion, the submission that theaccused’s. 8 rights were violated by Constable Ickeringill by means of this exchange of text messages is untenable.

Issue No. 1 Did the police have reasonable and probable grounds to arrest the accused? [78] I will outline the additional facts I find to be proved, in relation to the arrest of the accused, and the search of his person and hiscar. [79] Armed with the evidence obtained from the search of the trunk of Guray’s car, the search of Guray’s cell phone and theexchange of text messages between Constable Ickeringill and the then unknown person, Constable Munger and Constable Ickeringilldrove from the police station to the Rugby Club parking lot.

They were followed, shortly thereafter, by Constable Charlebois andConstable Brodeur, travelling in another unmarked police vehicle. While en route, Constable Ickeringill exchanged short text messageswith the unknown person, in which each of them gave estimates of the number of minutes it would take before they arrived at thearranged meeting place (the Rugby Club parking lot). The last text message sent by the unknown person stated: “I am here, how long”?Constable Ickeringill did not answer that text message, but he and Constable Munger (who was driving) arrived at the Rugby Clubparking lot soon after that.

When they drove into the parking lot, they saw only two vehicles parked there. One was an unoccupied pick-up truck and the other was an Audi sedan, in which a lone male person was sitting in the driver’s seat. The man had a cell phone in hishand. He was the only person in the parking lot when the officers arrived there. [80] Constable Munger drove the unmarked police vehicle past the front of the Audi, at a distance of about ten feet, and then droveto a location near the entrance to the parking lot, and stopped.

Constable Ickeringill informed the other two police officers, who werestill on their way, that they had found one man in a car at the parking lot and that they would be arresting him. The officers agreed that,when the second police vehicle arrived, Constable Munger would drive his vehicle to block the front of the Audi, and ConstableCharlebois would drive their vehicle so as to block off the back of the Audi, and that they would then arrest the driver.

I find that thepolice officers believed they had lawful grounds to arrest the man sitting in the Audi. [81] The second police vehicle arrived, and Constable Munger and Constable Charlebois executed the driving maneuver that hadbeen arranged, to box in the Audi. Several police officers immediately approached the Audi, with their hand guns drawn, but pointing atthe ground. Constable Munger went to the driver’s door, opened it, and told the driver (who was the accused) to get out of the car.

Hedid so, and Constable Munger told him that he was under arrest for possession of a controlled substance for the purpose of trafficking.The accused followed all directions given to him by the arresting police officers. He was handcuffed with his hands behind his back.Constable Munger informed the accused of his right to counsel, and gave him the police caution from memory.

The accused said that hewanted to talk to a lawyer. [82] The police searched the accused and seized his wallet and his cell phone (Constable Munger removed the cell phone from theaccused’s hand and placed it and the accused’s wallet on the roof of the Audi). The accused’s wallet contained a driver’s licence in thename of David Pelucco (which was the name he had already given to the police), and a key. Constable Ickeringill searched the Audi, andin the trunk of the car he found what he believed to be a kilogram of cocaine.

At that point, Constable Munger repeated the right tocounsel and the police caution, and the accused again said that he wanted to talk to a lawyer. The accused had been arrested at about11:05 a.m. and was given his right to counsel and the police caution for the second time at about 11:15 a.m. Constable Charleboischanged the accused’s handcuffs from back to front, placed him in the back of a police vehicle, used his own cell phone to dial thetelephone number of a lawyer given to him by the accused, handed the cell phone to the accused and closed the door of the vehicle.

Itwas then about 11:20 a.m. [83] Constable Ickeringill saw the accused’s Blackberry/cell phone sitting on the roof of the Audi after the accused had beenarrested. He took possession of the cell phone, and opened it. He saw a series of text messages which matched those that had beenreceived by and sent from Guray’s cell phone. The officer did not make a thorough search of the cell phone contents at that time.

He mayhave put it back on the roof of the Audi, but if so, he took possession of it again later, and did a thorough search of its contents, whenpreparing the ITO for the search warrant. [84] After his telephone call, which lasted about nine minutes, the accused was transported to the police station at Nanaimo, and hismotor vehicle was subsequently towed away.

Discussion [ 85 ] The facts which I have outlined were not seriously disputed. In argument, defence counsel did challenge Constable Ickeringill’s

interpretation of the text messages that had passed between Guray and the unknown person. I accept Constable Ickeringill’s evidence to the effect that he believed the text messages reflected an intended drug transaction whereby Guray was going to purchase a kilogram of cocaine from the unknown person, that morning in Nanaimo. I further find that the reasons given by Constable Ickeringill to support that belief were reasonable.

As to the defence objection to non-expert evidence, it is true that police officers who are called as experts in the field of drug trafficking are often qualified to give opinion evidence about the meaning of slang words used by drug traffickers and drug users. However, I do not consider this to be necessary, in the circumstances of this case, where the events were at the investigation stage. Constable Ickeringill testified that, as of November 12, 2010, he had been working on the municipal drug

section of the Nanaimo R.C.M.P. for two years, and so he had relevant police experience. Moreover, defence counsel did not challenge the officer’s evidence on this issue (or as to his evidence about the price of cocaine) in cross-examination. [ 86 ] The standard of proof is reasonable probability. Proof to a reasonable probability is proof to a degree of certainty that is more than a mere suspicion, but less than the civil standard of proof on the balance of probabilities. See R. v. Jir, 2010 BCCA 497 , at para. 27 .

I think it follows that the standard requires more than the “reasonable suspicion” required to justify an investigative detention. [ 87 ] In my opinion, the facts relied on by Constable Ickeringill as grounds for his belief that Guray and the unknown person were arranging to meet and complete a drug transaction, provided sufficient objective support for his belief.

I find there was a reasonable probability that Guray and the unknown person were “about to commit” an indictable offence. [ 88 ] I conclude that Constable Ickeringill had reasonable and probable grounds to believe that Guray and the unknown person were intending to meet in Nanaimo that morning, to complete the sale and purchase of a kilogram of cocaine. The amount of cash found in Guray’s car trunk ($39,000, according to Guray) was within the range of the price of a kilogram of cocaine in the Nanaimo area, in the experience of Constable Ickeringill.

That amount of cash provided some confirmation of Constable Ickeringill’s

interpretation of the text messages. Moreover, there was not much unusual language in the text messages that required special

interpretation. [ 89 ] I find that Constable Ickeringill (and his fellow officers) believed that the man they found sitting in the driver’s seat of the Audi parked in the parking lot of the Rugby Club, was the person who had been exchanging text messages with Guray and with Constable Ickeringill.

The next essential issue is whether there were objectively reasonable and probable grounds to support that belief. [ 90 ] Defence counsel cross-examined the police officers on their failure to take any further steps to connect the person who was texting with Guray and Constable Ickeringill, with the man they found in the parking lot of the Rugby Club, when such steps were readily available to them. In

summary, counsel complained that the police failed to use the telephone number which they knew the unknown person was calling from, in order to determine the name of the owner of the cell phone being used. It was implicit in this submission that, once the name of the cell phone owner was determined, the police could do a motor vehicle search to find out what vehicles were registered in that person’s name, to see if the Audi (and its licence plate number) matched with a vehicle registered in that name.

Next, defence counsel was critical of the failure of the police to make a call to the cell phone number that they had, to see if the man in the Audi answered his cell phone. Finally, counsel noted that the police failed to run a search based on the British Columbia licence plate number of the Audi, to determine the owner of the vehicle. [ 91 ] The explanation given by the police officers for not taking these investigative steps was, in substance, that the intended drug transaction was imminent, that events were unfolding rapidly, that they had to move fast, and that they needed to keep their police radio open.

In other words, they say they did not have time. [ 92 ] I think the police did have time to try to find out the name of the subscriber for the cell phone being used to send text messages to Guray’s cell phone. They discovered the telephone number of that other cell phone soon after Constable Ickeringill opened Guray’s cell phone (which I find was at or about 10:15 a.m.).

If they had been able to obtain the name of the subscriber promptly, then it seems a reasonable inference from the evidence that the officers could have done a motor vehicle search to determine whether the subscriber owned any motor vehicles (or could have tasked someone else to do these searches). Then, if they found such a motor vehicle in the parking lot that would be strong confirmation that the occupant of the vehicle was the person they believed him to be.

Conversely, if the cell phone owner had one or more vehicles registered in his or her name, but no such vehicle was present at the parking lot, that fact would be inconsistent with their belief. [ 93 ] It might also have been reasonable for Constable Ickeringill to place a call to the known telephone number of the person who had been texting to Guray’s cell phone, just before the second police vehicle arrived at the parking lot.

If the man in the Audi answered his cell phone that would be some confirmation that he was the person the police were looking for. (If the man did not answer his cell phone, that would indicate that he might not be the target person.) [ 94 ] Counsel for the accused correctly pointed out that the police had no physical description of the suspect, did not even know whether the person was male or female, and had no idea of the make or model of the vehicle the suspect was travelling in. [ 95 ] However, as has been said many times, this issue is to be determined on what the police knew, and what they did, and not on the basis of what they might have learned or might have done.

See R. v. Jir , at para. 29 . [ 96 ] I think it obvious that there was a reasonable possibility that the man in the Audi was not the person targeted by the police. But that does not exclude the potential existence of a reasonable probability that the man they found in the Audi was the target person. Opinions may differ as to whether the facts as found by a trial judge amount at law to reasonable and probable grounds.

The decision is for the trial judge in each case to make, and there is no objective standard by which to measure sufficiency. [ 97 ] In my opinion, despite its shortcomings, the information possessed by the police provided reasonable and probable grounds for them to conclude that the man whom they found sitting in the Audi in the parking lot of the Rugby Club, was the person who had been exchanging text messages with Guray and then with Constable Ickeringill. The text messaging was recent and the last message from the

unknown person (saying “I’m here”) was received only a minute or two before the first police officers arrived. The man in the Audi wasthe only person in the area, which was the meeting place arranged between Constable Ickeringill and the unknown person. The man inthe Audi had a cell phone in his hand. He sat in his car and took no action to indicate that he had some other business to attend to at theRugby Club, or in that area. [98] I find there was a reasonable probability that the man in the Audi was the person who had been texting with Guray andConstable Ickeringill.

My conclusion is that, if the text messages found on Guray’s cell phone are available as grounds, then the policehad reasonable and probable grounds to arrest the man in the Audi (the accused) for possession of cocaine for the purpose of trafficking. Issue No. 2 If the accused was lawfully arrested, then was the search of his motor vehicle lawfulas being incidental to the lawful arrest? Issue No. 3 If the accused was lawfully arrested, then was the search of his cell phone lawful, asbeing incidental to the lawful arrest? [99] Issues 2 and 3 may be dealt with together.

If the arrest of the accused was lawful, then the police would have lawful authority tosearch his car, as an incident to lawful arrest. They would also have lawful authority to search his cell phone, for evidence of the offencefor which he was being arrested.

I find there was a reasonable prospect that evidence of the offence would be discovered by a search ofthe car and the cell phone. [100] The question that now arises is whether the Crown can rely on evidence that was obtained in violation of the accused’s s. 8rights (i.e., the text messages that he sent to Guray) as forming part of the reasonable and probable grounds to arrest the accused.

It is asettled principle that evidence that was obtained in violation of the accused’s Charter rights, and which was included in an information toobtain a search warrant (“ITO”), must be excised from the ITO when deciding whether the ITO is sufficient to sustain the issuance of thesearch warrant. For an example of the application of this principle where a s. 8 violation has occurred, see R. v. Grant, (SCC), [1993] 3 S.C.R. 223.

The defence submits that it should follow from this principle, by analogy, that evidence which is obtainedin violation of the accused’s s.8 rights cannot be used as grounds for arresting that person, where the Crown relies on the arrest tovalidate a warrantless search. [101] Defence counsel was unable to refer the court to any case authority in which this point was directly decided, but suggested thatthe reason for the absence of case authority could be that the proposition was self-evident. [102] Crown counsel did not make any submission on this issue, other than to concede that, if the court decided that any evidence wasobtained in violation of the accused’s Charter rights, such evidence could not properly be included in the ITO that was used to obtain thesearch warrant for the accused’s residence.

Must the evidence obtained in violation of the accused’s s. 8 rights be excluded indetermining whether the arrest of the accused was lawful? [103] This point is crucial because, in my opinion, if the text messages found on Guray’s cell phone are excluded from the body ofcircumstantial facts which comprised the grounds for arresting the accused, the remaining facts would not be capable of constitutingreasonable and probable grounds for arrest. If the arrest of the accused was unlawful, then there could be no authority for the police toconduct any searches incidental to his arrest.

In that scenario, the searches of the accused’s person, his motor vehicle and his cell phonewould all be in violation of his s. 8 rights. [104] If evidence which is obtained in violation of an accused’s constitutional rights cannot be used to contribute to reasonable andprobable grounds to support the issuance of a search warrant, I can see no logical reason why such evidence should be allowed tocontribute to reasonable and probable grounds for arresting an accused person without warrant and (as an incident to the arrest)searching the accused and his or her immediate surroundings.

In both instances, the illegally-obtained evidence is offered as part of thegrounds relied on to justify a search. [105] In cases where a search warrant has been obtained and evidence against the accused is found on the execution of the warrant, anaccused person who challenges the admission of the evidence obtained by the search on the ground that the warrant is invalid, mustprove that the grounds for the search did not amount to reasonable and probable grounds.

In cases where an accused person is arrestedwithout warrant, and evidence is obtained by a subsequent search which is said to be incidental to arrest, the Crown must prove that therewere reasonable and probable grounds to justify the arrest. But this procedural difference in the placement of the burden of proof, whilesignificant, would seem to have no bearing on the question of whether the distinction under discussion should be made. [106] It does seem unusual that counsel were unable to find any case in which this issue was directly decided. However, I think thereasoning of Mr. Justice Groberman in R. v.

Bartoli, 2003 BCSC 1888 does support the defence submission in the case at bar. In R. v.Bartoli, the police violated the accused’s s. 8 rights in searching the person of the accused and a car (in which the accused was riding asa passenger). The police searched the accused without lawful authority, and found drugs in his pocket. This evidence was offered by theCrown to established grounds for lawful arrest. The arrest was in turn relied on to justify the subsequent search of the car. Groberman J.decided that this was improper (see paras 43 - 44).

As I interpret these reasons, Groberman J. decided, by necessary implication, that

evidence obtained in violation of an accused person’s s. 8 rights was not admissible to provide the essential grounds for arresting him;and that the unlawful arrest of the accused could not justify the search of the car. [107] On the assumption that this point has not been directly decided one way or the other, I will state my opinion that evidenceobtained in violation of an accused’s Charter rights cannot be considered in deciding whether the police had reasonable and probablegrounds to arrest the accused.

In my view, such illegally-obtained evidence should be treated in the same way that evidence obtained inviolation of an accused’s Charter rights is treated, on the review of a justice’s decision to issue a search warrant. [108] I conclude that the text messages sent by the accused to Guray are not admissible as evidence, on the issue of whether the policehad reasonable and probable grounds to arrest the accused.

It follows that the arrest was not lawful and that the evidence obtained fromthe searches of the accused’s car and cell phone was obtained in violation of his s. 8 rights. [109] It may be that I am in error, and that the effect of the violation of the accused’s s. 8 rights should only be considered unders. 24(2), rather than having the additional effect of invalidating an otherwise lawful arrest. The first branch of the s. 24(2) analysisrequires the accused to prove “that evidence was obtained in a manner that infringed or denied” the accused’s Charter rights.

I think itobvious that there is a logical nexus between the police finding and reading the text messages from the accused to Guray (the violation)and the finding of the cocaine in the trunk of the accused’s car (the evidence). In that sense, I think the cocaine is “derivative” evidence,within the meaning of the authorities.

It would also appear that the cocaine was not otherwise “discoverable”, and would never havebeen found, but for the violation of the accused’s s. 8 rights. [110] It seems to me that the accused would be able to establish that the cocaine found by the police in the trunk of his car was“evidence obtained in a manner that infringed or denied” his s. 8 Charter rights.

Moreover, regardless of whether my decision (that theevidence of the text messages found on Guray’s cell phone are inadmissible on the issue of reasonable and probable grounds) is right orwrong, I think that the issue of discoverability of the evidence would have to be considered in assessing the first and second factors ofthe test established in R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 (on this point, see R. v. Cote, 2011 SCC 46, at paras 69 -74). But even so, I can see no sound reason for rejecting the accused’s submission that the violation also rendered his arrest unlawful.

Issue No. 4 Was there a violation of the accused’s s.8 Charter rights when the police fingerprintedthe accused on November 12, 2010 before any charge was laid against him? [111] The facts relating to this issue are not in dispute. After his arrest, and his telephone discussion with a lawyer, the accused wasdriven to the police station by Constable Charlebois and Constable Scrase. They arrived there at 11:52 a.m. The accused was subjected tothe usual “booking-in” procedure, and was then given another opportunity to speak to counsel, in better conditions of privacy.

At sometime after noon on that day, the accused was placed in a jail cell. [112] After midnight, in the early morning hours of November 13, 2010, Constable Charlebois, after making the decision to release theaccused without the need for a bail hearing in court, took his fingerprints and photographed him. No charge had yet been laid, and theaccused did not consent to having his fingerprints or photograph taken. [113] Constable Charlebois was uncertain as to what practice was currently in effect by the R.C.M.P. across the country, for theseprocedures.

He said he relied on a common-law police power, as authority for taking the accused’s fingerprints and photographs. Heissued a Promise to Appear to the accused (requiring the accused to appear in court on February 15, 2011) and had the accused sign awritten undertaking, before releasing him. Constable Charlebois released the accused at 2:10 a.m. [114] Constable Charlebois acknowledged that the fingerprints of the accused were important evidence in this case, to provide apotential connection between the accused and items that had been seized by the police from his vehicle and his residence.

Positions of the parties [115] The defence alleges that Constable Charlebois carried out a warrantless search of the accused, by taking his fingerprints beforehis was charged with any offence, and without his consent. The argument proceeds that the Crown cannot establish that the warrantlesssearch was nevertheless reasonable, because they did not follow the procedure permitted by the Identification of Criminals Act andbecause there is no common law police power which authorizes the taking of a suspect’s fingerprints before a charge is laid. The defencerelies mainly on the cases of R. v.

Nguyen, 2001 BCSC 186 (Catliff J.) and R. v. Carpenter, 2010 BCPC 175; 259 C.C.C. (3d) 426(O’Byrne P.C.J.). [116] The first position of the Crown is that the taking of the accused’s fingerprints does not amount to a search. In the alternative, theCrown says that the search was authorized at common law. [117] Crown counsel cited two cases which were said to have decided that the taking of a suspect’s fingerprints was not a “search”within s. 8 of the Charter of Rights. Those cases were: R. v. Mattu, [1996] B.C.J. No. 2182 (Preston J.); and R. v. Ferris, 2008 BCPC266 (in which Giardini P.C.J. relied on R. v. Mattu).

On the issue of whether a common-law police power survived the enactment of theIdentification of Criminals Act, the Crown relied on R. v. Beare [1988], 1 S.C.R. 387 and R. v. Connors (1998), (BCCA), 121 C.C.C. (3d) 358 (B.C.C.A.). Discussion [118] In my opinion, both of the issues raised here were decided by the Supreme Court of Canada in R. v. Feeney,

(SCC), [1997] 2 S.C.R. 13. I think the court decided that the taking of a person’s fingerprints is a search within s. 8 of the Charter, andthat the police continue to have the power at common law to take the fingerprints of persons who have been lawfully arrested for anindictable offence. As I see it, the debate on these issues which seems to persist, should be brought to an end. I will explain my reasonsfor saying this. [119] The judgment of the majority in R. v.

Feeney held that taking the fingerprints of an arrested person was a search within s. 8 ofthe Charter, in that it constituted “a search and seizure related to the appellant’s body” (see para. 60). This statement of the law has neverbeen reversed by the Supreme Court of Canada, and has been accepted in subsequent cases (for example, see the judgment of the OntarioCourt of Appeal in R. v. Dore (2002), (ON CA), 166 C.C.C. (3d) 225, at para. 32). [120] Eight of the nine judges in R. v.

Feeney agreed that fingerprinting a suspect who is under lawful arrest for an indictable offenceis an incident of arrest and does not violate the Charter of Rights. These eight judges also agreed that this issue had been decided in R. v.Beare. But Mr. Justice Sopinka, writing for the majority of five, found that the arrest of the appellant was unlawful, and so the common-law rule did not apply (see para. 60). Speaking for three of the four dissenting judges, Madam Justice L’Heureux-Dubé found that thearrest was lawful, and so there was no Charter violation (see para. 179). [121] In R. v.

Connors, the Court of Appeal was referred to R. v. Feeney, and the case was quoted and accepted by Cumming J.A. atpara. 60 of his reasons. Madam Justice Newbury held (at para. 117) that the Identification of Criminals Act displaced only the common-law police power to fingerprint persons arrested for

summary conviction offences. By necessary implication, Newbury J. agreed withMr. Justice Cumming’s decision that the police continued to have the power at common law to fingerprint persons lawfully arrested forindictable offences. Mr. Justice Donald thought it unnecessary and undesirable to decide the issue. [122] In my opinion, our Court of Appeal has adopted the law on these issues as stated by the majority in R. v.

Feeney (and agreed withby three dissenting judges) which I would paraphrase in this way: the police continue to have the power, at common law, to take thefingerprints of a person who has been lawfully arrested for an indictable offence, as a search incidental to that arrest. [123] The Crown concedes that s. 2(1) of the Identification of Criminals Act was not complied with, but says that the taking of theaccused’s fingerprints was authorized by the common law. [124] The common-law police power contended for by the Crown continues to exist.

But it is essential to the lawful exercise of suchpower that the suspect be under lawful arrest at the time his or her fingerprints are taken.

In the case at bar, the accused had beenarrested for an indictable offence, but if the decisions I have made on that issue are correct, the arrest cannot properly be characterized asbeing lawful. [125] My conclusion on the fourth issue is that Constable Charlebois violated the accused’s s. 8 rights against unreasonable search andseizure, when he took the accused’s fingerprints and photograph before a charge was laid against him and without his consent, and whenthe accused had not been lawfully arrested.

Summary [126] I will summarize the decisions I have made respecting the main issues raised on Voir Dire No. 1: 1. The accused has standing to challenge the lawfulness of the search of Guray’s cell phone (i.e., the search by which the accused’s textmessages to Guray were discovered). 2. Guray was not under lawful arrest when Constable Ickeringill searched his cell phone. 3. When Constable Ickeringill searched Guray’s cell phone and found and read the text messages sent to Guray by the accused, he wasacting without lawful authority and in violation of the accused’s s. 8 rights. 4.

Constable Ickeringill’s receipt of text messages from the accused, after inducing the accused to believe that he was texting withGuray, was not an “interception” and was not a violation of the accused’s s. 8 rights. 5.

The information possessed by Constable Ickeringill provided objectively reasonable and probable grounds for his belief that Gurayand the unknown person who had exchanged text messages with Guray were about to commit an indictable offence; and for his beliefthat the man they found sitting in the Audi parked in the parking lot of the Rugby Club, was the person who had been texting with Gurayand with Constable Ickeringill. 6.

If the text messages sent by the accused to Guray are excluded from the facts relied on to establish lawful grounds to arrest theaccused, the remaining facts would not be capable of constituting reasonable and probable grounds for arresting him. 7. The text messages sent by the accused to Guray are not admissible on the issue of whether the police had lawful grounds to arrest theaccused. 8. Without the text messages, the police would not have had reasonable and probable grounds to arrest the accused. 9.

The evidence obtained by the police from the searches of the accused’s person, his car and his cell phone, was obtained in violationof his rights under s. 8 of the Charter of Rights. 10. The taking of the accused’s fingerprints before he was charged and without his consent, was a violation of his s. 8 rights. [127] With respect to the outstanding procedural issue, I agree with counsel that the issue of whether any or all of the challengedevidence presented on Voir Dire No. 1 should be excluded from the trial, should be postponed. That issue will be argued as part of Voir

Dire No. 2. ____________________________ Mr. Justice D.A. Halfyard