R. v. Marriott, 2017 BCSC 2425

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Marriott, 2017 BCSC 2425 Date: 20170816 Docket: 15459-3 Registry: Powell River Regina v. Donald Arthur Marriott Before: The Honourable Mr. Justice Pearlman Oral Ruling on Voir Dire re Lawfulness of Arrest and Subsequent Searches Counsel for the Crown: C. Tait Counsel for the Accused: M. Smith Place and Date of Trial/Hearing: Powell River, B.C. Place and Date of Judgment: Powell River, B.C.

August 16, 2017 [ 1 ] THE COURT: Counsel, while I am organizing my materials, let me just say that because I am giving these rulings more or less extemporaneously, in the event that a transcript is ordered, I do reserve the right to edit for grammar and style; however, neither the substance nor the result will change. [ 2 ] This is my ruling on the voir dire held to determine whether the s. 8 and 9 Charter [ Canadian Charter of Rights and Freedoms,

Part 1 of the Constitution Act, 1982 , being

Schedule B to the Canada Act, 1982 (U.K.), 1982 , c. 11 (“ Charter” )] rights of the accused, Mr. Donald Arthur Marriott, were violated upon his warrantless arrest, subsequent search incidental to that arrest, later strip search and the warrantless search of the hotel room at the Marine Inn in Powell River. [ 3 ] The accused is charged that on October 17, 2014, at Powell River, he unlawfully had possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (“ CDSA ”).

He is also charged on a second count alleging that on the same date he unlawfully possessed heroin for the purpose of trafficking, contrary to s. 5(2) of the CDSA . [ 4 ] In order to provide the context for this ruling, I intend to briefly review some of the evidence adduced on the voir dire hearing that is material to the legal issues I am required to decide, and in doing so I will focus largely on the evidence of Sgt. Hees. From June through October 2014, Sgt.

Hees was involved in an ongoing investigation of persons who were bringing drugs to Powell River and seeking to gain control of the local drug trade. [ 5 ] On October 17, 2014, Sgt. Hees was in plainclothes, driving an unmarked police vehicle. He had received information that Mr. Marriott and a woman named Nicole Richardson had rented a room at the Marine Inn in Powell River. He attended at or near the Marine Inn and observed a black motorbike, a street bike, parked at the back of the Marine Inn. Sgt.

Hees had information from a confidential source or sources that one of the individuals in the group he was investigating drove a black racing-type motorbike. [ 6 ] At 3:35 p.m. on October 17, Sgt. Hees determined that the plate on the motorbike was a trailer plate, UTL 48R, and that plate was registered to a boat trailer in the name of a woman who lived in Prince Rupert. Sgt. Hees had no information associating that woman with any criminal activity. [ 7 ] Sgt. Hees concluded, on the basis of his knowledge and experience as a police officer, that the motorcycle was not insured.

In his belief, the plate was most likely stolen. In reaching that conclusion, he took into account the fact the plate did not belong on a motorcycle, that it ought to have been on a trailer, and that the registered owner had no prior criminal involvement. He also took into account the fact that by October many people had pulled their boats out of the water and would not notice that the licence plate for the trailer was missing. He concluded that the owner had probably not noticed that the plate had been stolen and therefore had not reported its loss. In cross-examination, Sgt.

Hees maintained that he thought that there was a high probability the plate was stolen when he observed the wrong type of plate on the motorcycle. [ 8 ] Sgt. Hees then contacted his partner, Cst. Parsons, and instructed him to maintain surveillance on the motorcycle which Parsons did, starting at about 4:45 p.m. on October 17. [ 9 ] At 5:02 p.m., Cst. Parsons advised Sgt. Hees that a male with a red motorcycle helmet was approaching the bike. Sgt. Hees then approached in his vehicle. He observed the male on the bike. The bike was running. Sgt.

Hees put on his police vehicle lights, identified himself as a police officer, and asked the rider to park the bike, which he did. Sgt. Hees arrested Mr. Marriott for possession of

the stolen licence plate. He informed the accused of his Charter rights, warned him, handcuffed him and then conducted a searchincidental to the arrest. [10] Sgt. Hees testified that in conducting the search he was looking for any weapon and for identification. In the course of thesearch, Sgt. Hees located a cell phone in the accused’s jacket pocket and a wallet which he opened to see if it contained a driver’s licence.As he pulled out the sleeve containing the driver’s licence, he observed a small baggie containing a white substance which he believed tobe drugs. [11] Sgt.

Hees had initially arrested the accused at 5:05 p.m. At 5:17 p.m. he rearrested Mr. Marriott for possession of a controlledsubstance and again cautioned him and read him his s. 10 Charter rights. [12] Sgt. Hees acknowledged in cross-examination that when he made the decision to arrest the accused for possession of the stolenlicence, he thought there was a high likelihood that, on searching the accused, he would find drugs or other evidence that would furtherthe drug investigation. [13] Subsequent to the arrest for possession of a controlled substance, Sgt. Hees completed his patdown search.

In checking the areaof the accused’s groin, he felt a hard item. At the time that he conducted the patdown search, a second officer, Cst. Hofsink had arrived.Sgt. Hees instructed Cst. Hofsink that after he had transported the accused to the detachment, he should conduct a complete search of theaccused, including a strip search, the object of the strip search being to locate and seize the item apparently in the crotch of the accused’spants. Sgt. Hees testified that he believed that the strip search was necessary in that it might result in the production of either a weapon orother evidence.

He also believed that a strip search should be conducted in cells rather than in the public area by the roadside. [14] At approximately 5:42 p.m. on the afternoon of October 17, 2014, Sgt. Hees received information from Cst. Parsons that thatofficer had spoken with the receptionist at the Marine Inn who had informed him that her manager earlier in the day had thought he hadseen Ms. Richardson and a male at or near Room 213 at the Marine Inn. With that information, Sgt. Hees testified that he becameconcerned about the possibility that any evidence that might be in Room 213 would be destroyed.

He had received confidentialinformation that the group he was investigating would keep most of their drugs and money in hotel rooms and only carry small amountsof drugs and cash, sufficient for whatever transactions they might be conducting. [15] Shortly after 6:00 p.m. Sgt. Hees made the decision to return to the Marine Inn, together with other officers, to conduct awarrantless search of Room 213. Until he had received Cst. Parsons’ report, Sgt. Hees had intended to prepare an ITO and obtain awarrant before searching the hotel room. [16] According to Sgt. Hees, the officers entered Room 213 at 6:16 p.m. Sgt.

Hees had requested that two uniformed officers,Csts. Bakker and Hofsink, attend to clear the room. They did so. Csts. Bakker and Hofsink each testified. They estimated that the timerequired to clear the very small hotel room was between one and two minutes. They said that after they had cleared the room, theyremained outside in the hallway to ensure that no one else approached the room. Sgt. Hees and Cst. Parsons remained in the room for atotal of nine minutes before they departed and returned to the detachment. [17] With that background, I turn now to consideration of the arrest of the accused.

Because both the arrest and the subsequentsearches were conducted without a warrant, they are presumed to be prima facie unreasonable and the Crown bears the onus ofdemonstrating that the arrest and the searches were reasonable and lawful. [18] Section 495(1) of the Criminal Code, R.S.C. 1985, c. C-46, authorizes a peace officer to arrest without warrant a person whohas committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictableoffence. [19] In R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241, in summarizing the applicable principles, the court said this: In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. Onthe other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically they are not requiredto establish a prima facie case for conviction before making the arrest. [20] In R. v.

Jir, 2010 BCCA 497, the Court of Appeal cited this passage from the judgment of Madam Justice Bennett in R. v.Luong, 2010 BCCA 158, at para. 24: The assessment of whether objective grounds exist undertaken by a trial judge is conducted by first looking at the observations of theofficer (which the trial judge has found as facts) through the lens of someone who has the same experience, training, knowledge andskills as the officer who is making the observations, and then deciding if a reasonable person with the same lens would come to the sameconclusion as the police officer. [21] The police are not required to rule out all possible innocent explanations; see R. v.

MacCannell, 2014 BCCA 254, at paras. 44to 46. In making an assessment based on the totality of the circumstances known to the police at the time the arrest was made, the courtmay take into account the arresting officer’s experience and training. [22] Here I am satisfied that Sgt. Hees had the subjective belief that the arrest of Mr. Marriott for possession of the stolen licenceplate was reasonable. I must, however, determine whether the officer had objectively reasonable grounds for the arrest. [23] The Crown submits that Sgt.

Hees’ observation of a licence plate registered to a boat trailer for a female with no connection tocriminal activity, and the fact that the licence was attached to the motorcycle with zip straps provided reasonable grounds for theofficer’s belief that the licence was stolen, particularly bearing in mind that the licence was for a different class of vehicle than amotorcycle.

[ 24 ] The defence says that the licence had not been reported as stolen, and that in cross-examination, Sgt. Hees agreed that sometimes people will place a plate on a vehicle, including a motorcycle, thinking that they have lawful authorization to move the vehicle from one place to another. [ 25 ] Mr. Smith points out that Sgt. Hees did not follow up with the licence holder to determine whether the licence had been stolen, and suggests that Sgt. Hees had time to do so while Cst. Parsons was maintaining his surveillance and before the arrest of Mr. Marriott. However, as Sgt.

Hees testified, he had no telephone number for the owner. He was also dealing with an ongoing investigation. [ 26 ] Defence also makes the point that Sgt. Hees would not have made the arrest for possession of the stolen licence plate at the hotel parking lot if he were not engaged in a drug investigation. [ 27 ] In my view, Sgt. Hees did have objectively reasonable grounds for arresting the accused for possession of the stolen licence plate.

I find that the reasons the officer gave for his belief that the licence plate had been stolen are objectively reasonable, even though the arresting officer was engaged in an ongoing drug investigation in which the accused was a target and did anticipate that the results of the search subsequent to arrest would produce evidence that would assist in the drug investigation. He nonetheless had probable grounds to arrest for possession of the stolen licence, and did make that arrest on those grounds. [ 28 ] With respect to the search incidental to the arrest, Sgt. Hees conducted a patdown search.

He was entitled to both search for evidence related to the offence of possession of stolen property and to conduct the patdown search for purposes of officer safety and security. In the course of conducting that search, he was certainly entitled to open the accused’s wallet for the purpose of determining whether it contained identification documents. In short, I am satisfied that the arrest of the accused and the search incidental to that arrest was lawful, and did not breach the accused’s ss. 8 and 9 Charter rights. [ 29 ] I turn now to the strip search. In R. v.

Johal , 2015 BCCA 246 , at para. 25 , the court stated the test first articulated in R. v. Golden , 2001 SCC 83 , for a strip search in compliance with s. 8 of the Charter .

The Court of Appeal said: To comply with s. 8 of the Charter , a strip search must be incidental to a lawful arrest, conducted for the purpose of discovering evidence related to the reason for the arrest, justified by reasonable and probable grounds and carried out in a reasonable manner. [ 30 ] In Golden , the Supreme Court of Canada set out 11 questions which are reproduced in Johal at para. 28 , and which the court in Johal described as useful indicators of the reasonableness of a strip search.

I will return to those factors momentarily. [ 31 ] Here the sequence of events leading to the strip search was as follows. First, the accused had been lawfully arrested for the possession of stolen property. A search incidental to that arrest had located substances believed to be controlled substances or drugs, and led to the accused’s arrest for possession of a controlled substance. During the course of a lawful patdown search following the accused’s arrest for possession of a controlled substance, Sgt.

Hees located a hard object in the area of the crotch of the accused’s trousers. [ 32 ] The purpose of the strip search was to locate what was believed to be a weapon or evidence concealed on Mr. Marriott’s person. The purpose of the search related to finding evidence relating to the offence for which Mr. Marriott had been arrested. A strip search was the only practical way in which that evidence might be retrieved. The real issue here is the manner in which the search was conducted. [ 33 ] Turning to the questions outlined by the Supreme Court of Canada in Golden .

First of all, the strip search was conducted at a police station. The search was conducted in a way that did not jeopardize the health or the safety of either Mr. Marriott or the officers involved in the search. The strip search was authorized by Sgt. Hees, the supervising officer, and was conducted by two male officers. It was not unreasonable to have the two officers, Csts. Hofsink and Bakker, involved in the search. The search was conducted without the application of any force. Mr. Marriott was asked to remove his shirt, and then his pants.

When it became apparent that he was wearing two pairs of boxers, he was asked to remove each of those. The officers located the object, a baggie containing what was subsequently analyzed to be controlled substances, by visual search. The baggie fell to the floor of the room where the search was being conducted, and was retrieved by Cst. Bakker. [ 34 ] The search was conducted in the detachment telephone room with the door closed, and only the accused and the two officers present. However, the room contains a video system which films 24 hours a day.

That system was activated and the guard or guards present in the adjacent guard room area had the ability to monitor the images displayed by the video camera. Further, the video filming of activity in the telephone room is recorded, saved and stored. [ 35 ] In R. v. Fine , 2015 BCPC 3 , a decision of the Honourable Judge E.M. Burdett of the Provincial Court, similar circumstances were considered. At paras. 65 and 66, the learned Provincial Court judge said this: Apart from one requirement, I find that Constable McLean properly followed the guidelines set out in Golden .

In my view, the RCMP practice in the Kelowna detachment of video recording and broadcasting strip searches to a central monitoring room breaches the requirement that the strip search is carried out in a private area such that no one other than the individuals engaged in the search can observe the search. I find that the video taping of strip searches and simultaneous broadcast to monitoring rooms at the Kelowna detachment is routine.

Constable Celli testified that he assumed the cameras were “always on” as there is no start and stop mechanism on them. [ 36 ] The court went on to conclude that the videotaping and simultaneous broadcast of the accused’s strip search violated her s. 8 rights. [ 37 ] Here Cst. Bakker testified that it was likely or possible that others would have seen the recording and that the recording system is always on. Mr.

Marriott was not advised that the strip search would be recorded. [ 38 ] I also take into account that the sequence of the strip search which I had previously described suggests that by the end of the search Mr. Marriott was completely naked. That is contrary to the objective of ensuring that a strip search, if possible, be conducted in a

way that does not leave the person being searched completely undressed at any one time. As I have already noted, the strip search wasrecorded and retained. [39] I conclude that the manner of the strip search, and in particular the broadcasting of the strip search to the guardroom monitoringequipment, constituted a breach of Mr. Marriott’s s. 8 rights. [40] Accordingly I find that the strip search was unlawful and breached the accused’s s. 8 rights. [41] I turn now to the warrantless entry to Room 213 at the Marine Inn. [42] In R. v.

Crocker, 2009 BCCA 388, the British Columbia Court of Appeal said, at para. 88: The burden was on the Crown to establish, on a balance of probabilities, that the warrantless entry into Mr. Crocker’s residence, whichwas prima facie unreasonable, could be justified both subjectively and objectively based on exigent circumstances. In other words,Cst. Johnson had to subjectively believe that exigent circumstances existed and the evidence must have established an objective basis forthat belief. [43] At para. 89, the Court in Crocker cited the following passage from the majority decision of Mr. Justice Sopinka in R. v.

Grant, (SCC), [1993] 3 S.C.R. 223 at 243: Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance ofthe evidence if the search or seizure is delayed.

While the fact that the evidence sought is believed to be present on a motor vehicle,water vessel, aircraft or other fast moving vehicle will often create exigent circumstances, no blanket exception exists for suchconveyances. [44] The Court in Crocker also noted the provisions of s. 11(7) of the CDSA, which provides: A peace officer may exercise any of the powers described in subsection (1), (5) or (6) [the search and seizure provisions] without awarrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. [45] Here Sgt.

Hees had made the initial arrest of the accused in the parking lot behind the Marine Inn. Later that afternoon, helearned from Cst. Parsons, who had been maintaining surveillance at the Marine Inn, that the manager had apparently seen a man and awoman at or near Room 213 earlier that day. At that point, Sgt. Hees became concerned that there might be someone in Room 213 andthat that person would have had a clear view of the arrest of Mr. Marriott and the towing away of his motorcycle.

He had the subjectivebelief that there was an imminent risk of the destruction or concealment of any drugs or other evidence of drug dealing that might belocated in Room 213. [46] Very shortly after receiving Cst. Parsons’s advice, Sgt. Hees made the decision to conduct a warrantless search of Room 213 forthe purpose of ensuring that there was no one in the room. [47] The defence submits that if indeed there was any person in the room at the time of the arrest, they would have had ample timeto remove any evidence that might be in the room, and that Sgt. Hees ought to have considered, before arresting Mr.

Marriott where hedid, how that arrest might affect the ongoing drug investigation. [48] Further, Cst. Parsons had been watching the room following the arrest of Mr. Marriott. He had walked by the room at one point,and had not heard or observed anything that led him to believe anyone was in the room until he had spoken with the receptionist whotold him about the information she had apparently received from the manager earlier in the day. [49] The defence submits that any exigent circumstances that arose in this case were at least partially the result of the police officers’own creation, and specifically Sgt.

Hees decision to make the arrest of Mr. Marriott in a public place in close proximity to one of thelocations where he believed the persons he was investigating might be staying. [50] I accept the submission of the defence that the circumstances that triggered Sgt. Hees’ decision to conduct the warrantlesssearch were partially of Sgt. Hees’ own creation. [51] More significantly, however, the manner of entry, and specifically the duration of the entry, is more troubling. Sgt. Heesarranged for Csts.

Hofsink and Bakker to attend because he wanted to ensure that if there were any occupants in the room, they wouldimmediately recognize the police officers as members of the RCMP. The purpose of the warrantless search was simply to clear the roomand determine that there was no one present. As I have already recounted, Csts. Hofsink and Bakker estimated that clearing the roomrequired no more than one or two minutes. It was simply a matter of looking into the room, checking the bathroom, checking the rooftoparea adjacent to the room window, and looking under the bed. [52] Although Csts.

Bakker and Hofsink left the room as soon as they had cleared it, Sgt. Hees and Cst. Parsons remained in theroom for another seven minutes. There is no explanation of their reason for doing so. [53] Taking into account my finding that the police conduct in arresting Mr. Marriott where they did contributed to the exigentcircumstances and the absence of any satisfactory explanation for why Sgt. Hees and Cst.

Parsons found it necessary to remain in theroom for nine minutes, I find that the Crown has not met its onus establishing that the warrantless search of Room 213 was conducted intruly exigent circumstances and in a reasonable manner. [54] I conclude that the warrantless search of Room 213 also breached the accused’s s. 8 rights. [55] That concludes my ruling on the voir dire. “PEARLMAN J.”