R. v. Rebagliati Date:, 2012 BCPC 134

Citation: R. v. Rebagliati Date: 20120213 2012 BCPC 0134 File No: 74615-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KYLE EDWIN REBAGLIATI RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J. D. BAHEN Counsel for the Crown: D. Jahani Counsel for the Defendant: J. Ray Place of Hearing: Abbotsford , B.C. Date of Hearing: July 25, Sept. 29, Nov 9, 30, 2011; Jan 3, 2012 Date of Judgment: February 13, 2012

[ 1 ] THE COURT : These are my reasons for judgment on the voir dire . OVERVIEW AND

SUMMARY OF THE ISSUES [ 2 ] Mr. Rebagliati was charged with possession of cannabis marihuana as a result of a search of his motor vehicle by police at Mission on October 21st, 2010. At trial, the Crown's case was heard within a voir dire at the request of counsel. The Crown's witnesses were heard July 25th, 2011, and the trial has continued on several dates since that time for argument on the defence application to exclude physical evidence as a remedy for alleged breaches of s. 8, 9 and 10 of the Charter . [ 3 ] The defence application seeks to establish an arbitrary detention by the police.

The smell of fresh, unsmoked marihuana is a key factual component in the voir dire evidence. When the accused was outside his parked motor vehicle, a police officer says she smelled fresh, unsmoked marihuana. She believed this odour was from the accused. After arresting the accused, a pat-down search at roadside did not reveal any marihuana on his person. The accused requested an opportunity to speak to legal counsel. A subsequent warrantless search of his motor vehicle led to the discovery of about one-half pound of marihuana inside a box in the truck.

The circumstances of the detention, arrest and search of the accused are the basis for a defence argument that breaches of s. 8, 9 and 10 should lead to exclusion of the marihuana as evidence at trial. [ 4 ] There was an unjustified delay of about 55 minutes before providing opportunity to the accused to exercise his right to counsel. This delay was a further breach that should support granting the remedy of exclusion of the physical evidence at trial. The Crown says the detention was not arbitrary but was for a valid Motor Vehicle Act enforcement purpose.

The initial detention was almost immediately replaced by a lawful arrest for marihuana possession based on the smell of fresh, unsmoked marihuana. [ 5 ] When the pat-down search of the accused was conducted at the roadside, it was a lawful search incidental to the arrest for marihuana possession. The Crown argues the failure of the pat-down search to disclose any drugs on the accused at the roadside did not limit or restrict the police search incidental to arrest, nor did it terminate the lawful arrest of the accused.

The Crown says the lawful police search could continue beyond a pat-down to include the motor vehicle that was close to the accused. He had been seen driving the vehicle minutes earlier, and he stepped out of this vehicle a few moments before his arrest. The Crown says there was a delay in providing the accused with access to counsel, but that the delay has been adequately explained by police actions during the delay interval.

The Crown says if there were any breaches of s. 8, 9 or 10, these were not serious infringements and the reliable and essentially important physical evidence of marihuana found in the vehicle should be admissible at trial. [ 6 ] For the reasons that follow, I have concluded that there was a breach of s. 10, as well as breaches of s. 8 and s. 9. The breach of s. 10 was not in the more serious range of infringements and does not have close temporal, causal or contextual links to the physical evidence of marihuana that is reliable and essential to the Crown's case.

The public interest in an adjudication on the merits also favours admission of the evidence. However, the arrest was unlawful as not authorized by s. 495(2) as the arresting officer had no knowledge of the quantity of marihuana in possession of the accused at the time of arrest. The search of the motor vehicle had no lawful basis absent the authority to arrest from s. 495(2). This could have been a

summary conviction offence, but the officer did not know if the quantity of marihuana was larger than the

summary category of offence. There was nothing in the surrounding circumstances to support any inferences regarding the quantity of marihuana. The smell of the fresh marihuana did not, in this case, support any inferences regarding quantity. There were no exigent circumstances and the police could have impounded the vehicle following the 24-hour prohibition from driving issued to the accused after he admitted smoking marihuana to the arresting officer.

During the impoundment the police could have sought authorization to search the vehicle if they believed they had grounds to obtain a search warrant. [ 7 ] While detained, the accused was strip-searched in circumstances where there could have been previous access to counsel, but this was not provided for administrative reasons. I have concluded that the remedy of exclusion of the marihuana evidence is supported by the circumstances in this case.

The police conduct was not in compliance with well-established and familiar Charter principles, and the arresting officer, who was inexperienced at the time of this arrest, said in response to questions in cross-examination on the issue of access to counsel: Q Okay. Does it trouble you, Cst. Sidhu, now to know that you had proceeded in that fashion? A Of course. I would have done things differently.

I've learned a lot since then. (Transcript page 38, lines 26 to 29.) FACTUAL CIRCUMSTANCES AND CONTEXT OF THE INVESTIGATION, ARREST, SEARCH AND ACCESS TO COUNSEL [ 8 ] The events of this investigation began in Mission at about 12:30 a.m. on October 21st, 2010. Cst. Sidhu was on duty in full uniform in a police vehicle parked on a roadway in Mission. She was speaking to another officer, Cst.

Todd, who was in another parked police vehicle next to her. [ 9 ] She saw a truck driven by the accused go past her, and observed Motor Vehicle Act infractions, that the driver did not signal a turn and the vehicle had tinted glass on the passenger-side window. She followed the truck and saw it parked in the driveway of a residence. The driver stayed in the truck and then walked out of the truck but did not enter any residence.

She said if the driver had entered a residence, she was going to let the MVA infractions go without further action, but she was curious and wanted to question the driver about his actions late at night in the area after he stopped and remained in the vehicle for an unusually long time. [ 10 ] As he returned towards the vehicle after walking around the vicinity of the residences, she left her police car. As soon as she was out of her police car she smelled the strong odour of fresh, unsmoked marihuana. The odour seemed to be coming from Mr. Rebagliati.

She stalled for time, asking him questions for about seven minutes as she waited for her backup officer, Cst. Todd, to arrive at the scene. She said she would have arrested the accused as soon as she smelled marihuana but she wanted to wait, for officer safety

reasons. [ 11 ] I find this is a valid concern on the part of Cst. Sidhu, but it is not a lawful arrest given the limits of her powers of arrest in circumstances where she cannot determine or infer anything about the quantity of marihuana in possession and the category of offence.

The unlawful arrest is followed by the appropriate s. 10 information, but the request to speak to counsel cannot be granted at roadside as there is not means of exercising access to counsel in private at the arrest scene. [ 12 ] The transportation to Mission RCMP detachment and the booking process and strip search created delay of about 55 minutes from request to access counsel until the right to access counsel is exercised.

The administrative procedures at Mission detachment were presented as the basis of this delay, along with the strip search. [ 13 ] None of the personal searches of the accused disclosed any evidence. His truck keys were taken from him in the initial pat- down search at the roadside. After he was transported from the arrest scene, another officer was directed by Cst. Todd to search the truck driven by the accused. It was not impounded at this point and was parked where the accused had left it prior to his arrest. About one-half pound of marihuana was found in a dog food bag inside the truck.

ANALYSIS OF CHARTER ISSUES [ 14 ] I have considered the extensive case law authorities cited by counsel in their thorough submissions. I have also considered the recent decisions in R. v. Asp 2011 BCCA No. 433, and R. v. Truong 2011 BCSC No. 1452. There are close parallels between the circumstances in Truong involving unlawful arrest, and the circumstances in this case. I find there was a pattern of disregard for the requirements of the Criminal Code and the Charter during this investigation.

The smell of fresh, unsmoked marihuana was not supported by any surrounding circumstances that could be considered as a basis to justify an arrest without warrant. The provision of access to counsel was given less priority than police administrative practices in the absence of any exigent circumstances. The accused was questioned about marihuana and an admission of smoking marihuana was obtained after he had requested access to counsel and before any efforts were made to facilitate access. There were no officer safety or public safety issues in this case after the arrival of Cst. Todd as backup for Cst.

Sidhu, and prior to that point the officer safety issues were real but generic in the sense that the accused had not done anything to heighten the officer safety concerns.

Section 10 was breached by the unjustified delay in providing access to counsel. [ 15 ] The arrest was not authorized by s. 495(2), and I find the detention of the accused was not justified by MVA enforcement procedures as the arresting officer was prepared to forego any offences under the MVA if the accused had left his truck and entered a residence. There was a subsequent issuance of a violation ticket to the accused for the MVA infractions involving failure to signal a turn and the tinted passenger window, but I find the process under the MVA was issued after the main investigation was concluded, and the MVA process was essentially an afterthought.

Section 9 was breached by the detention for the essential purpose of satisfying a police officer's curiosity regarding the actions of the accused. After the detention, the identity of the accused was established and he was the registered owner of the truck.

There was no reason to be concerned about his proof of identity or the preservation of any evidence in this investigation. [ 16 ] I do not conclude that there was bad faith on the part of the arresting officer, but the absence of knowledgeable adherence to the powers of arrest and the willingness to delay access to counsel for an accused who was cooperative and compliant with all police directions indicates a lack of good faith in my view. [ 17 ] The more experienced officer, Cst.

Todd, directed a third officer to search the truck driven by the accused following his arrest, but this search was not incidental to a lawful arrest and could not be justified as an extension of investigative detention search powers. There was nothing to suggest the contents of the truck were dangerous, and the police had issued a 24-hour prohibition and could have impounded the truck. The search was based on suspicion, extending from the smell of fresh marihuana on the person of the accused. It was a suspicion that fell short of reasonable grounds.

The arrest of the accused was also based on suspicion, but without the specific grounds to know the quantity of marihuana that he may have possessed. [ 18 ] The consideration of an appropriate remedy for breaches of s. 8, 9 and 10(

b) requires a balancing of factors; the seriousness of the state conduct that infringes the protected rights of the accused, the impact of the infringement on the protected interests of the accused, and the public interest in providing an adjudication of the case. The pattern of disregard of the requirements of s. 8, 9 and 10 are pervasive in this investigation.

There is a need for the court to dissociate the criminal justice process from police conduct that suggests the constitutional protections of the individual accused are readily overlooked in cases of police inexperience or lack of diligence. [ 19 ] The remedy of exclusion of evidence must not be utilized as a form of police discipline or punishment, but the disregard for Charter standards in an investigation cannot be excused by reference to best efforts or absence of bad faith.

The breaches in this case were serious, and were made more serious by the combined effect that produced a pattern of police actions displaying a lack of adherence to constitutional standards. The impacts of these breaches on the protected interests of the accused were serious. There is a valid privacy interest in the motor vehicle, although it is moderated by the regulatory framework that intrudes into the operation of motor vehicles to ensure public safety and protection of property. [ 20 ] In this case, there was nothing aberrant or extreme in the driving pattern of the accused.

There was a link, not stronger than a suspicion, between the odour of fresh marihuana on the accused and the vehicle he had been driving. The warrantless search of his vehicle had an impact on the interests of the accused that was significant although not particularly serious. [ 21 ] The detention of the accused was more serious, in my view, since he was arrested without any evaluation of the criteria in s. 495(2) of the arresting officer.

There was a lack of subjective basis for the specific grounds of the warrantless arrest, and also a lack of an objective basis to justify the arrest when it is viewed by the court in this voir dire . There could only be a suspicion from the odour of marihuana without any prospect of objective validation of a quantity of marihuana from the surrounding circumstances. The breach of s. 9 was serious and directly infringed the liberty interests of the accused. [ 22 ] The lack of access to counsel while police completed administrative duties at the detachment was unjustified. The

questioning of the accused at roadside, after he expressed his request to speak to counsel leading to the admission of smoking marihuana, was a further impact on the interests of the accused undermining his right to silence in the absence of exigent circumstances. The impact of the delay in accessing counsel had a serious impact. [ 23 ] Society has an interest in the adjudication of this case on the merits, but the charge involves simple possession of marihuana, a drug that can be the focus of extensive and sophisticated organized criminal enterprise for profit in some circumstances.

Marihuana may be possessed by some persons seeking a medical therapy for chronic illnesses, or for recreational uses without profit. Some persons may not have acquired the mandatory licensing qualifications for medical usage. The evidence is reliable and is a central and critical component in the Crown's case.

I find that there is a strong public interest in the adjudication on the merits, but it is lessened by the absence of weapons, the absence of any significant amounts of cash, and the lack of public safety concerns in the circumstances of this case. [ 24 ] Balancing the factors that must be considered in determining the application of s. 24(2) to the facts of this case, I conclude that the appropriate remedy for breaches of s. 8, 9 and 10(

b) is the exclusion of the marihuana evidence obtained by the police search of the motor vehicle operated and owned by the accused. The application of the accused is granted and the evidence is excluded from this trial. [ 25 ] MS. JAHANI: Thank you, Your Honour. That's the Crown's case. [ 26 ] MR. RAY: Not calling any evidence, and I'll ask that the charge be dismissed. [ 27 ] THE COURT: Any submission? [ 28 ] MS. JAHANI: No submission, Your Honour. [ 29 ] THE COURT: The charge against Mr. Rebagliati of possession of marihuana is dismissed. (RULING CONCLUDED)