R. v. Leung Date:, 2016 BCPC 198

Citation: R. v. Leung Date: 20160610 2016 BCPC 198 File No: 165008-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL LEUNG ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: T. Corsi Counsel for the Defendant: A. Tam Place of Hearing: Victoria , B.C. Date of Hearing: June 10, 2016 Date of Judgment: June 10, 2016

[ 1 ] THE COURT: This is my ruling on the voir dire entered into in this trial to determine the admissibility of evidence obtained by police following the arrest of the defendant, Mr. Michael Leung. [ 2 ] The Crown charges that on December 4, 2014, Mr. Leung was unlawfully in possession of heroin for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 3 ] Counsel have submitted an agreed statement of facts in which it is admitted that Mr. Leung was arrested on December 4, 2014 and his vehicle searched pursuant to the arrest.

There police found 19 individually wrapped baggies of heroin under Mr. Leung’s right rear passenger seat. Each bag weighed approximately 8 grams, for a total weight of 155 grams. The drugs had a value of approximately $9,000. [ 4 ] Mr.

Leung submits the evidence obtained during this search should be excluded from his trial on the grounds that it was obtained in breach of his s. 8 and 9 Charter rights, and that the admission of the evidence would bring the administration of justice into disrepute. [ 5 ] In brief, what occurred was that in December, 2014, police were engaged in the surveillance of a residence that they believed, based on informant information, was associated with drug trafficking. In particular, police believed that an individual named Mr.

Yang was engaged in supplying drugs to drug traffickers. [ 6 ] In the course of conducting that surveillance on December 4, 2014, Mr. Leung was seen by police pulling into the driveway of the residence. A Volvo that police had previously watched in the driveway pulled in after Mr. Leung. Thereafter, one officer observed what is described as a brief exchange between the driver of the Volvo and Mr. Leung. Following what I will call the "exchange", Mr. Leung and the driver of the Volvo exited the driveway. Mr.

Leung was followed by police and subsequently arrested within an hour or so after he attended one of his classes at Camosun College. [ 7 ] The defendant submits that the arrest was unlawful and the search pursuant to arrest equally invalid. He maintains that there were no reasonable grounds in all of the circumstances for police to believe that he was in the course of committing an indictable offence, thus justifying the warrantless arrest. [ 8 ] The legal framework for the analysis in this case is conveniently set out in R. v.

Tran , 2007 BCCA 491 , at paragraph 6 where the court, in quoting from paragraph 4 of R. v. Bracchi , 2005 BCCA 461 , notes that a "search" incidental to arrest will be valid if the arrest out of which it arose was valid. The warrantless arrest [in that particular case] was authorized under s. 494 of the Criminal Code so long as the arresting officer believed on reasonable grounds that the respondent was in the course of committing an indictable offence.

The standard of proof is that of reasonable probability, that is, the arresting officer must subjectively have reasonable and probable grounds to arrest and, as well, the grounds must be justifiable from an objective point of view. [ 9 ] The question for the court on this voir dire is whether the inference that Mr.

Leung had drugs in his possession was based on reasonable and probable grounds in all of the circumstances or was the arrest, as the defendant maintains, based on nothing more than suspicion. [ 10 ] As an aside I note at this juncture that I have been provided with a number of cases by both counsel and those cases include varying results. In some of the cases, fewer factors than are present in this case, in my view, were found by the courts to support an arrest.

In others, more factors than are present here were found to be insufficient to justify an arrest. [ 11 ] I will touch on these cases briefly later in these reasons. For the moment I would just note that each case does turn on its own constellation of factors, and in this particular case I am going to focus on the factors that I have heard in the evidence that led Constable Eddy to form the belief that he had grounds to arrest Mr. Leung. [ 12 ] The grounds for Constable Eddy's belief in this case are based on both experience and knowledge.

Constable Eddy's experience includes four years or more with the Strike Force in Victoria, British Columbia, whose mandate is to investigate illegal drug transactions. [ 13 ] I do bear in mind, as the defendant asks me to, the comments by Judge St. Pierre of this court in R. v. Lahtinen , 2011 BCPC 490 , that particularly in cases where officers have a great deal of experience in drug investigations, the court has to be careful to consider that that experience can itself give rise to cynicism and, as Judge St. Pierre put it, "a jaundiced view". [ 14 ] I do bear that in mind.

I focus, however, in this case on what I have to do which is to look at whether or not the grounds which are alleged to have formed the basis of Constable Eddy's belief that he had a basis for an arrest are themselves objectively reasonable. It is not seriously argued in this case that Constable Eddy lacked a subjective belief that he had the grounds for an arrest.

At issue is whether that subjective belief is objectively justifiable, based on the circumstances as they have been set out in the evidence. [ 15 ] Constable Eddy’s knowledge is a key component in this case, and the knowledge that is relevant begins with confidential information that was received by police in the fall of 2014.

It is a fact that the information received from the confidential informant was new information, in the sense that the informant was new and was, certainly at the material time, untested, if I understand Constable Eddy's evidence correctly. [ 16 ] The information, at least as far as the evidence discloses in this particular application, was that Mr. Yang, who had a residence at 4281 Cedar Hill Road, was trafficking to drug dealers. After receipt of that information, police did a PRIME search and there learned that Mr. Yang had been arrested for possession for the purposes of trafficking in 2008.

There is no evidence of a conviction, but

Constable Eddy noted an association, at least, between Mr. Yang and the drug world as a function of the arrest in 2008. [ 17 ] Constable Eddy testified that information gleaned following a surveillance of the Cedar Hill residence also contributed to the grounds for his belief. The first in time surveillance relevant in this case was conducted on the Cedar Hill residence in November of 2014. While there is no evidence that Mr. Yang was ever present during that surveillance, Constable Eddy pointed out that what was of interest, and relevant to Mr.

Leung’s arrest, was the presence of a Volvo that pulled into the driveway of the Cedar Hill residence. [ 18 ] The driver of that Volvo remains unknown to police, and in particular to Constable Eddy, to this day. [ 19 ] After the Volvo entered the driveway, police watched a Ford Fusion also pull into the driveway. That vehicle and the person driving that vehicle, Mr. Ryan Johnston, was known to police. Constable Eddy knew him as an individual that was associated with the drug scene in the City of Victoria and surrounding area. [ 20 ] What police saw was that the Fusion and the Volvo remained in the driveway of Mr.

Yang's residence for a brief period of time. No transaction was seen. The parties subsequently left and went their separate ways. In that instance, the police opted to follow the Volvo as it proceeded to the ferry terminal in Swartz Bay where police abandoned their surveillance. [ 21 ] The second surveillance which Constable Eddy testified to was the surveillance of Mr. Yang's residence on December 4, 2014. As I have indicated already, it was during this surveillance that Mr. Leung was seen to pull into the driveway in his Land Rover.

Police then saw what they say was the same Volvo that they had seen in the driveway in November also pull into the driveway whereupon the driver was seen to have a brief exchange with Mr. Leung. Again, I note that the driver of the Volvo was not identified by police. [ 22 ] Constable Eddy was not in a position, as the driver of his police vehicle, to see what was going on, if anything, between the Volvo and the Land Rover.

Rather, Constable Eddy was being advised of what was occurring from time to time by his partner, who by then had situated himself in the back seat of their vehicle and appeared to be conducting surveillance, either by sight or through a telephoto lens. [ 23 ] Constable Eddy testified that his partner said something to the effect that he had seen the Volvo driver holding a small object with both hands. Constable Eddy testified at one point that he was told by his partner that the object passed between the driver of the Volvo and the driver of the Land Rover.

He was pressed on this further in cross-examination and testified that the object passed within the vicinity of the Land Rover. [ 24 ] What I note about this evidence is that, first of all, the evidence at its best is vague. Secondly, it changed in the course of Constable Eddy’s testimony. It is notable also that there was no notation in the surveillance report about what appeared to be an exchange between the driver of the Volvo and Mr. Leung. [ 25 ] There does not appear to be anything in Constable Eddy's police notes or anything at least that he referred to in this regard.

As such, Constable Eddy was testifying to something he remembered being told some time ago. [ 26 ] What I take from the evidence is that at best something unseen but small, and held with both hands, was passed in the vicinity of the person driving the Volvo and presumably to the driver of the Land Rover, but I am not entirely certain that the evidence goes that far. [ 27 ] The question then is whether this set of circumstances constitutes grounds for an arrest. I will note, and Crown conceded, that what followed the “exchange” in the driveway is essentially neutral. When Mr. Leung left Mr.

Yang’s residence, and prior to his arrest, there was nothing about his driving or the manner in which he conducted himself that would amount to any further grounds for arrest. The grounds, if they are made out, have to be based on what occurred up to the time that Mr. Leung left the property. [ 28 ] I have already mentioned that the cases I have been provided go both ways, in the sense that certain factors in one instance might justify, in the view of one court, an arrest and similar factors in another case might not justify an arrest. [ 29 ] The Crown does rely on a few cases. Certainly the case of R. v.

Tran , which I have already referred to, is relied on by the Crown as authority for the proposition that something much less than the factors that animated Constable Eddy in this case could justify the arrest. Mr. Tran, who was not under surveillance by police, was ultimately arrested after police watched another individual, Mr. McCandless, enter Mr. Tran’s vehicle and remain inside for some 30 seconds. As the trial court in Tran acknowledged, certainly without any knowledge of Mr. McCandless, the transaction in Mr.

Tran's car would be suspicious, but would not form any grounds for arrest. [ 30 ] What justified the arrest in Tran was the knowledge police had of Mr. McCandless's habits and his conduct. Mr. McCandless was known to be a drug user. He was seen doing what looked to be breaking into houses shortly before he entered into Mr. Tran's car, and certainly those circumstances impelled police, in that particular case, to form the opinion that what was almost certainly likely to be occurring in Mr. Tran's vehicle was a drug transaction. [ 31 ] The Crown also relies on the decision of R. v. Wan , 2008 BCSC 268 .

In Wan , two relatively inexperienced police officers saw a person waiting on the side of the road. That person caught their attention because of the manner in which the person was dressed. They watched that person get into Mr. Wan's vehicle and exit within about 30 seconds. [ 32 ] A few minutes later, police saw another man approach Mr. Wan's vehicle, and although that man did not get in, police saw a black bag. Mr.

Wan's vehicle was pulled over, drugs were found, and the Court of Appeal upheld the trial court's decision that those circumstances alone, even despite the relative inexperience of the police officer, justified an arrest. That was because what occurred fit precisely the profile of a dial-a-doper. [ 33 ] By way of contrast, the defendant relies on a number of cases, particularly the decision of R. v. Brown , 2014 BCSC 1665 , which the defendant submits is very close to the facts at hand and in that I agree. As in this case, Brown started with the reception by

police of confidential source information. In Brown , the information was that a Mr. Lambrecht and a Mr. Manuel were engaged in drug trafficking. [ 34 ] During a surveillance operation police watched Mr. Lambrecht's truck arrive into a parking lot, and then Mr. Brown's Cadillac park immediately next to him. Police watched Mr. Lambrecht leave his truck with his right hand in his pocket, and of course the officers suspected that he was holding onto something. Mr. Lambrecht was seen to enter Mr. Brown's Cadillac for less than a minute. Mr.

Lambrecht was then seen to exit the vehicle, and his hand was no longer in his pocket. [ 35 ] On that basis, the officer suspected that the person in the Cadillac was associated with or connected with illegal drug activities. Like Mr. Leung, Mr. Brown was previously unknown to police. [ 36 ] In Brown , the court went on to find that the arrest was unlawful and excluded the evidence that was found in Mr. Brown's Cadillac with the quote at paragraph 29 to the effect that: One suspicious meeting, without more, does not create a credibly-based probability that an individual is involved in an indictable offence.

The fact that the white Cadillac was reported to have been associated with drug activities is not sufficient further evidence to meet the reasonable grounds. [ 37 ] As Mr. Tam submits, unlike the case in Brown , not only was Mr. Leung previously unknown to police, but Mr. Leung's vehicle, the Land Rover, was also not a vehicle that was associated with drug activities. That is contrary to the situation in Brown where Mr. Brown's Cadillac, at least, appeared to have been known to police and appeared to have been associated with drug activities. [ 38 ] Mr.

Leung relies on a number of other cases and those have been summarized and I have reviewed those cases. I do not purport to go into all of them. They involve, as I have indicated, a number of factors. Some of those cases involve factors which would seem to weigh significantly heavier than the factors in this particular case, and yet the courts have found that an arrest was not warranted. [ 39 ] A number of the cases do make mention of the fact that police did not see the so-called hand-to-hand transaction, which is a significant and important indicator of drug trafficking activity.

Where it is missing, the courts have quickly determined that the arrest, even despite all of the other circumstances, was not justified. [ 40 ] The decision of R. v. Dhillon , 2014 ONSC 6287 , again involves a number of circumstances far more perhaps than at present in the case here today, but it also involves a discussion of the guiding principles that the courts ought to take into consideration in analyzing whether or not the officer's subjective belief that he or she has reasonable and probable grounds is objectively justifiable.

That discussion begins at paragraph 153 of Dhillon and carries through to paragraph 161. [ 41 ] Under the

section entitled "Totality of circumstances" at paragraph 154, the court writes that: The totality of the circumstances must be considered in examining whether there were reasonable and probable grounds for the arrest. Intuition or a good hunch on the part of the police is not enough. A lawful arrest cannot be based on speculation or a mere possibility . . . The court there cites R. v. Malapan , [2013] A.J.

No. 1484 . [ 42 ] With respect to confidential informants, the court writes at paragraph 155 that: Where the arrest is based in part on information supplied to the police by tipsters, one must examine the value of that information.

The value of that information for purposes of a warrantless arrest is assessed in the same manner as one would examine the value of tipster information to justify a warrantless search, dealt with below under the next heading. [ 43 ] Under "Corroboration" at paragraph 157, the court writes that: Where the arrest is based in part on police surveillance of the accused, as here, the Court may ask itself whether the police actually observed the accused engage in any hand-to-hand transaction. Further, the Court may inquire whether the person(

s) and motor vehicle(

s) that the accused came into contact with was/were associated with criminal activity, drug trafficking or drug use: R. v. Quach , [2014] A.J. No. 116 . [ 44 ] Bearing those comments in mind, I accept firstly that the confidential informant here provided information with respect to Mr. Yang. I note only that the confidential informant, as I have indicated before, was new and untested. The Crown submits, and I accept, that there was some corroboration with respect to the information provided by the confidential informant and that was in the form of Mr.

Johnston's presence at the residence, as seen in the November surveillance. [ 45 ] Even still, nothing was seen to occur between Mr. Johnston and the driver of the Volvo, whoever that person was.

Certainly the parties entered into the driveway and left the driveway, and the time period which they spent in the driveway was short, but there was nothing that Constable Eddy could suggest occurred while the parties were in the driveway. [ 46 ] Certainly Constable Eddy suspects that a drug transaction occurred at that particular time, although clearly there were no grounds for arrest and no arrest occurred. [ 47 ] After the November surveillance, the police were left with some evidence to suggest that Mr. Yang's residence was an area of interest regarding drug transactions, although it was not strong evidence.

[48] Mr. Leung, as I have indicated, was not known to police and his vehicle was not known to police. The presence of the Volvo,while suspicious - and certainly there is some evidence that the Volvo was associated in some regard potentially to criminal activity -was nothing more. [49] The transaction in this case is most problematic in the sense that the evidence, I find, does not go so far as to indicate that therewas a hand-to-hand transaction. There was some kind of an "exchange", but what that exchange was, what was involved in that exchangeis unknowable on the evidence. [50] I accept that Mr.

Yang’s residence was suspicious. I accept that there was some, albeit weak, corroboration supporting thesuspicions of the Yang residence. Mr. Leung's one-time attendance at that residence, even without any of the antecedents, does raisesuspicion. I do not find, however, that objectively it rises to the level where I could say that the inference that Mr. Leung had drugs inhis possession was, based on the circumstances, probable.

I accept that one would suspect that this could be the case, but I do not acceptthat there are sufficient grounds for the arrest. [51] Certainly contrary to the Wan decision, the circumstances in this case do not fall within the kind of known profile of adial-a-doper that was so convincing in that particular case. By way of contrast, in the Lahtinen case, just as an example, the arrest wasfound to be unjustified, yet the individual at issue was in a known drug area. [52] As I say, the cases seem to range far and wide.

Focusing specifically on this particular case and asking myself what I have toask myself, which is whether the inference that Mr. Leung had drugs in his possession was probable in the circumstances, I find that itdoes not rise above the level of suspicion in this case.

It follows that I find that the evidence obtained was in breach at least of s. 8 of theCharter, and I do not need to go on to consider whether it was in breach of s. 9. [53] I do have to consider, however, what the remedy for the breach would be and whether exclusion is the appropriate remedypursuant to s. 24(2) of the Charter. [54] The remedy of exclusion is outlined in the well-known trilogy of cases including R. v. Grant, 2009 SCC 32 , 2009 2S.C.R. 353.

Grant sets out a number of factors the courts must take into account in determining whether evidence obtained by breach ofa Charter right ought to be excluded. [55] The first question the court has to ask itself is whether or not the seriousness of the conduct leading to the breach favoursexclusion or inclusion. The seriousness of the conduct is about the nature of the police conduct in the particular case.

The question thatmust be asked is whether the conduct is of such a nature that the courts should disassociate itself from it. [56] At the other end of that spectrum is conduct which, while it may give rise to a Charter breach, is merely a technical error or amistake.

It is clear that in determining whether or not to exclude evidence on this first ground, the courts have to look at police conductas falling somewhere along a spectrum from technical breaches on one end, to conduct that is so egregious that the court has to dissociateitself from the conduct on the other. [57] In this case, there is no evidence that the conduct of police in undertaking the arrest of Mr. Leung was made in bad faith, but itis not technical error either. These were experienced officers.

Constable Eddy had some significant time to contemplate whether or nothe had grounds to arrest before making the arrest. I can appreciate the concern that police had at the particular time. There must havebeen a concern that, if Mr.

Leung did in fact have drugs in his possession, that those drugs could find their way onto the street, but I find,nonetheless, that the suspicions called for more investigation. [58] Constable Eddy made a judgment call and he is required to be careful when he makes that judgment call before he effects anarrest, an arrest being, I find, and the case authorities support this, one of the most significant intrusions into a person's Charter rights. [59] A wrongful arrest is hard to repair, if it can be repaired at all, and the courts do have to strive to dissociate themselves fromwrongful arrests.

In that regard, I reflect on the comments made by Justice Bracken in R. v. Mendez, unreported, Victoria Registry No.155164, April 20, 2012.

In Mendez, Justice Bracken excluded evidence and at para 25 of his reasons, considered the nature of thebreach and the nature of the obligations of police in determining whether or not they have grounds for an arrest. [60] There, quoting from the centre of that paragraph, Justice Bracken writes with respect to the Grant test that: . . . the purpose is not to punish the police but to preserve confidence in the rule of law. [61] As in this case, Justice Bracken found the breach was not minor or necessarily inadvertent.

It was a decision to place the accused under formal arrest without sufficient grounds for doing so. [62] Justice Bracken continues: This is not a new issue but a requirement that has been known to police for many years, including the period of time before theimplementation of the Charter. It is not the simple recitation of a few words but a serious step requiring serious thought and at leastsufficient information to satisfy the requisite grounds.

It cannot be justified on a hunch or unfounded suspicion regardless of howaccurate that hunch or suspicion might turn out to be. [63] In this case, I will note that this is more than a hunch. This is a suspicion and certainly, based on the officer's experience, I

think he well suspected that something could be amiss and that Mr. Leung might have drugs in his possession, but I have found that the suspicion is not raised to the level of reasonable grounds. [ 64 ] In this case, the first factor in Grant , that is the seriousness of the conduct leading to the breach, favours exclusion of the evidence. [ 65 ] The second factor that has to be considered is the impact of the breach on the defendant.

As both parties agree, the impact on the accused, who was arrested in public, does favour exclusion. [ 66 ] The final factor to consider is society's interest in the adjudication of the case on its merits. I find that this factor clearly favours inclusion of the evidence. The import or the trafficking of heroin and the act of making heroin available in the community, which is an insidious pollutant in our society, does merit a trial. There can be no doubt that there would be an interest, a social interest, in having this case proceed on its merits.

There is no question of that. [ 67 ] At the end of the day, the court has to balance all of these factors and determine whether or not the factors weigh in favour of or against inclusion. A discussion of this that I found helpful is set out in R. v.

Harrison , 2009 SCC 34 , particularly at paragraphs 37 to 41 in the reasons given by the majority. [ 68 ] In that case, the court is asking itself how the balance ought to be struck when you have factors, particularly the third factor, that favours the inclusion of evidence relative to the first two factors. [ 69 ] What I found useful about the discussion in Harrison , particularly at paragraphs 37 to 39, is the following: [37] In my view, when examined through the lens of the s. 24(2) analysis set out in Grant , the trial judge's reasoning in this case placed undue emphasis on the third line of inquiry while neglecting the importance of the other inquiries, particularly the need to dissociate the justice system from flagrant breaches of Charter rights.

Effectively, he transformed the s. 24(2) analysis into a simple contest between the degree of the police misconduct and the seriousness of the offence. [38] The trial judge placed great reliance on the Ontario Court of Appeal's decision in Puskas . However, the impact of the breach on the accused's interests and the seriousness of the police conduct were not at issue in [that particular case]; Moldaver J.A. opined that if there was a breach of s. 8, it was "considerably less serious than the trial judge perceived it to be", the police having fallen "minimally" short of the constitutional mark . . .

In those circumstances, the public interest in truth-seeking rightly became determinative. [39] This case is very different. The police misconduct was serious; indeed, the trial judge found that it represented a "brazen and flagrant" disregard of the Charter . To appear to condone wilful and flagrant Charter breaches that constituted a significant [intrusion]on the appellant's rights does not enhance the long-term repute of the administration of justice; on the contrary, it undermines it.

In this case, the seriousness of the offence and the reliability of the evidence, while important, do not outweigh the factors pointing to exclusion. [ 70 ] In this case, while I do not find that the Charter breach can be properly characterized as brazen and flagrant, I do find that it is serious. I find that an unlawful arrest in these circumstances is conduct from which the court should distance itself.

There is clearly a significant intrusion into the defendant's Charter rights and, at the end of the day, even bearing in mind society's strong interest in having these matters adjudicated on their merits, particularly given the amount of heroin that was found in Mr. Leung's vehicle, I find that overall the balance still weighs in favour of exclusion. For these reasons I order the evidence excluded, pursuant to s. 24(2) of the Charter . [ 71 ] MR. CORSI: Thank you, Your Honour. Crown is calling no further evidence. [ 72 ] THE COURT: Okay. [ 73 ] MR. TAM: I invite Your Honour to find Mr.

Leung not guilty then. [ 74 ] So Madam Clerk, we are out of the voir dire now. [ 75 ] MR. CORSI: Correct, I am not calling any further evidence in the trial proper. [ 76 ] THE COURT: In that instance, given that there is not sufficient evidence to justify a conviction, sir, you are entitled to an acquittal on this charge. (REASONS CONCLUDED)