R. v. Orr, 2017 BCSC 2703

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Orr, 2017 BCSC 2703 Date: 20171012 Docket: 168272-2 Registry: Victoria Regina v. Arlen Jeffrey Orr Before: The Honourable Mr. Justice Bracken Oral Ruling on Voir Dire re Arrest Counsel for the Crown: S. M. Simpson Counsel for the Accused: D. J. McKay Place and Date of Trial/Hearing: Victoria, B.C. September 11 - 14, 2017 Place and Date of Judgment: Victoria, B.C. October 12, 2017 [ 1 ] THE COURT: This is a decision on a voir dire with respect to the issue of an arrest of Mr. Orr.

The accused submits that he was wrongfully arrested by the police on May 11, 2016. He was arrested by members of the emergency response team of the Victoria City Police at or near a public business on Burnside Road in Victoria, British Columbia, in the afternoon of May 11.

The accused says that the circumstances of his arrest on May 11 and the subsequent arrest on the same matter on August 11, 2016, exactly three months later, the day that the charges were sworn by a member of the Victoria City Police, constitute an unlawful arrest. [ 2 ] The submission is that there were no grounds to arrest the accused on May 11 and that the arrest was a breach of s. 9 of the Charter of Rights and Freedoms . [ 3 ] The accused was detained for what appear to be several hours on May 11 and then released, as far as I can tell from the evidence, without any process.

Upon his re-arrest in August, he was held in custody until a court appearance and has been in custody since that time. [ 4 ] The accused says that the circumstances constitute an abuse of process and that the court should grant a remedy of exclusion of all evidence obtained in violation of the accused's rights. It is argued, as well, that there is a potential application under s. 24(1) for a remedy other than exclusion of evidence. [ 5 ] The Crown called one witness, Sergeant Philip. He is an experienced officer in the Victoria City Police and has been involved in drug investigations throughout his career.

He was involved in this investigation as a supervisor. He was aware of all of the surveillance that was conducted by the surveillance team that was engaged and he was involved in some of the surveillance himself. The accused was known to him before the investigation began. [ 6 ] Surveillance was conducted on the residence of the accused over a period of five or six days in the months of April and May of 2016. The attention of the police was initially drawn to the accused as a result of a complaint from an individual who lived in the same apartment building.

That individual suggested that the occupant of one of the apartment units was engaged in drug trafficking. The nature of the complaint was that there were frequent visitors who stayed for brief periods of time. There were also complaints about the accused propping over or someone propping over the security door of the apartment and allowing others who were not residents or authorized to enter to gain entrance to the lobby.

The accused was determined to be the tenant of the apartment where the complaint was focused and a copy of the tenancy agreement was provided. [ 7 ] The police also had received information from three confidential informants who said that the accused was selling controlled substances from his residence and in the City of Victoria. The confidential informants were believed to be reliable by the officers who dealt with them directly. [ 8 ] The police conducted surveillance on the apartment occupied by the accused on April 7 and 8 and May 4, 5, 10, and 11, 2016.

Over that period of time, the accused was observed on the balcony of his apartment on one occasion, and in several situations which the police believed were drug transactions to individuals who had come to the apartment or to the street outside the apartment, either on foot or in vehicles. [ 9 ] The nature of the interactions was described by Sergeant Philip. On the days that he was not present, he read the surveillance reports authored by others.

As a result, Sergeant Philip said that he formed the belief that the accused was selling controlled substances from his residence, and he also believed that the accused kept a supply of drugs in his apartment for the purpose of sale to others.

[ 10 ] Sergeant Philip described the observations of the accused that were made by the surveillance team on the days in question. [ 11 ] On April 7, 2016, at 12:34 hours, the accused was observed to leave his apartment, get into a silver sedan outside the apartment which was owned by an individual known to have a history of drug use and involvement in the Victoria drug culture. The accused got out a few moments later and the vehicle drove away. The accused then returned to his apartment. [ 12 ] At 1310 hours the same day, the accused came to the passenger side of a vehicle, got in and drove away.

He was lost to surveillance but was back in his apartment within nine minutes of being seen to leave the area. At 1423, the accused opened the door to his building and admitted a male who was unknown to the police. The male left at 1432, some few minutes later. The same unknown male met a vehicle nearby, got in, and 30 seconds later got out.

The police believed that the individual had purchased drugs from the accused and then immediately resold them to the occupant of the vehicle that he had briefly been inside. [ 13 ] The police believed that the accused operates as a mid-level dealer who is selling drugs to street-level dealers. On April 8 at 1358 hours, the accused opened the door to his building and admitted an unknown female. One minute later, the unknown female left the building. She was described as having a “dishevelled appearance”. [ 14 ] Surveillance was conducted again on May 4 beginning at 1229 hours.

The police observed an unknown male open the door and allow another male to enter. The unknown male who had entered left the building within a minute. The police suspect that the unknown male who opened the door was in fact the accused, but there was no positive identification or any other evidence to connect the accused with that activity. [ 15 ] At 1415 hours, the accused left the building and appeared to be texting on his cellphone that he was carrying. He went back inside the building about one minute later. About two minutes later, he came back out and this time he had two cellphones, one in each hand.

He got into the passenger side of a vehicle and drove away and the police lost sight of him. Four minutes later, however, he had returned to his apartment. [ 16 ] At 1454 hours, the accused again left by a door on the south side of the building, which I understand to be the main door of the apartment building. He went outside briefly and looked around and then re-entered the building. At 1457 hours, an unknown male arrived and waited by that door. The accused was then observed to speak to the male waiting by the door from his balcony and the male went to the front door, went in, and then left five minutes later.

The door was not secured as one of the two doors was overlapped on the other so it could not be locked. The police believed that the accused had set the door that way so that the male could enter and avoid the security lock or the security system. [ 17 ] On May 5, surveillance was conducted between the hours of 1220 and 1457. [ 18 ] On May 10, 2016, surveillance was conducted from 1048 hours to 1340 hours. At 1320 hours, the accused was observed to leave his apartment, have a brief interaction with a male who was waiting outside.

The accused let the male into the building and the male left again at 1336 hours, 16 minutes later. Later in the afternoon, the accused saw a male -- or there was a male by the apartment door and the male was apparently known to the officer who was conducting the surveillance. [ 19 ] On May 11, the accused was arrested at 1349 hours and taken into custody. [ 20 ] The police relied on observed suspected transactions.

They conceded that there was no observation of any actual hand-to-hand transaction where something could be seen being passed from the accused to another, but all of the observations were consistent with the experience of the police officers, in that the manner in which drug transactions are typically conducted at that level. The police also had information from the resident of the apartment building where the accused lived describing similar behaviour consistent with the sale of controlled substances.

Obviously the person who complained had formed the same view. [ 21 ] The police, in addition, had the information that they had received from the three confidential informants which stated that the accused was selling drugs in the City of Victoria and from his residence. Some of the information was consistent with what the police had observed. [ 22 ] On cross-examination, Sergeant Philip admitted that he was aware the accused had been previously investigated for drug trafficking, but he denied that he had any predetermined belief that the accused was selling drugs.

Sergeant Philip said that the basis for his grounds to arrest were drawn from the confidential information from the informants that he believed to be reliable, the complaint from the residents of the apartment where the accused lived, and the information that was obtained in the course of conducting surveillance on the residence. [ 23 ] Sergeant Philip is an experienced officer. He has spent at least eight years of his service focused on drug investigations and he has purchased drugs or observed many drug transactions while he was working as an undercover operator in Victoria.

His evidence is that what he had observed and what others observed in the course of the surveillance was consistent with what he referred to as a mid-level trafficking of controlled substances. [ 24 ] The accused submits that the police emphasized the behaviour that they believed to be suspicious, but ignored or failed to mention behaviour that was inconsistent with any criminal activity.

He argued that in many, if not most, of the surveillance transactions, the conduct of the accused was equally consistent with non-criminal behaviour as it was with criminal activity. [ 25 ] While I agree with counsel for the accused, the behaviour of the accused may well have been consistent with non-criminal activity, it is my view that the police are entitled to view his behaviour in the context of other information in their possession and in light of their knowledge of how transactions are typically conducted in the city and the region of Victoria. [ 26 ] Sergeant Philip explained that it is common for drug transactions in the Victoria area to have frequent short interactions in or near the residence of an accused or in a vehicle.

Individuals going to the accused's apartment for a few moments and then leaving, after having a short interaction with another person in the apartment or inside a vehicle on the street are all, in Sergeant Philip's view,

consistent with drug trafficking. [27] Section 495(1)(

b) provides that a police officer may arrest a person without warrant if there are reasonable grounds to believethat the person has committed an indictable offence. The test for reasonable and probable grounds was set out in the case of R. v.Storrey, (SCC), [1990] 1 S.C.R. 241 at paras. 16 and 17, where the court stated: [16] There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he orshe has reasonable and probable grounds to make an arrest.

Rather, it must be objectively established that those reasonable and probablegrounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed thatreasonable and probable grounds existed to make the arrest. See R. v. Brown (1987), (NS CA), 33 C.C.C. (3d) 54(N.S.C.A.), at p. 66; Liversidge v. Anderson, [1942] A.C. 206 (H.L.), at p. 228. [17] In

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

Specifically they arenot required to establish a prima facie case for conviction before making the arrest. [28] In this case, I am satisfied that the police officers who effected the arrest of the accused honestly believed that the accused was,at the time of his arrest, in possession of a controlled substance for the purpose of trafficking. The belief held by Sergeant Philip, whoauthorized the arrest of the accused, formed his belief on the information received from confidential informants, surveillance, and fromthe complainant at the apartment building, all of which Sergeant Philip believed were reliable.

Sergeant Philip also believed, havingseen the tenancy agreement, that the accused was the occupant or resident of the apartment building where the drug activity wascomplained of. [29] The information that was possessed by Sergeant Philip, in my view, satisfies the objective criteria sufficient to justify the arrest. I have no doubt that Sergeant Philip honestly believed that the accused was in possession of drugs for the purpose of trafficking. Therefore, both the objective and subjective components of the test in R. v.

Storrey are satisfied. [30] I am also satisfied that the evidence shows that there were sufficient grounds to justify the arrest, in that the law does not requirethe police to have enough evidence to establish a prima facie case, but rather reasonable and probable grounds sufficient to meet therequirements in R. v. Storrey.

The police did not attempt to justify the arrest of the accused on the ground that it was necessary to arresthim to prevent the commission of an indictable offence, but on the evidence they relied upon the authority in para. 495(1)(a), in that theybelieved the accused had committed the offence of possession of a controlled substance for the purpose of trafficking. [31] However, I must comment that it is not clear to me on the evidence what was done with the accused subsequent to his arrest. The evidence suggests that he was held in custody for some period of time.

There is nothing in the evidence to show that he was takenbefore a justice and released or that he was released on any process. It appears that he was released without any process or withoutappearing before a justice sometime soon after the search of the accused's residence was completed.

That search was conducted after hisarrest and the accused was released after the police had completed their search. [32] If I am right in that assumption, I should just remind counsel and the police that the purpose of an arrest is to take the accusedbefore a justice so as to bring him under the authority of the court or to compel him to comply with conditions that are set, most of whichconsist of his adhering to the conditions that the court or the system of justice imposes upon him. [33] It is not clear to me why the accused was arrested on May 11, only to be later released by the police and then re-arrested threemonths later on August 11, at which time he was taken before a justice and subsequently detained in custody.

It should be rememberedthat the purpose of an arrest with or without a warrant is to bring the arrestee before a justice, so that he becomes subject to the authorityof the court. Indeed, the provisions of s. 503(1) sets out the obligation of a police officer to bring a person who is arrested, with orwithout warrant, before a justice within certain time limits. [34] However, there is an arguable case to be made that the Criminal Code also authorizes a release of the person arrested onoffences such as these on an appearance before a justice by process or on an appearance notice in certain cases.

In some minor cases,even a police officer or a police supervisor may effect the release of the accused, even unconditionally. [35] These provisions are intended to prevent detention following arrest where the nature of the offence or other circumstances donot require further detention of the accused. It appears that there is a common practice of arresting an accused at the time that a search isbeing conducted, and I question whether such practice is within the authority of the Criminal Code.

Nevertheless, there is nothingbefore me by way of evidence to say why the accused was arrested May 11, nor is there any evidence as to what was done with theaccused after he was arrested and on what terms, if any, the accused was released. [36] On the issue before me, however, I find that the arrest of the accused without warrant on May 11, 2016, was lawful in that itwas well supported by reasonable and probable grounds on both the subjective and objective levels by the officer who authorized thearrest and therefore, by the officers who effected the arrest. [37] Therefore, the application to exclude evidence or for any other remedy with respect to the arrest on May 11 is dismissed. “J.

K. Bracken, J.” The Honourable Mr. Justice Bracken