R. v. Rauch, 2022 BCPC 118

Citation: R. v. Rauch 2022 BCPC 118 Date: 20220504 File No: 180467-1, 180467-5 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CLAUDIA NALINA RAUCH RULING ON VOIR DIRE

PART 2 OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: A. Van Tine Counsel for the Defendant: N. Brooks Place of Hearing: Victoria , B.C. Date of Hearing: April 5, 2022 Date of Judgment: May 4, 2022 [ 1 ] THE COURT: This is a problem about Ms. Rauch not attending because now -- look, I will short circuit it. I could go through a lengthy decision in terms of what occurred, but we all know the Grant test. It is a three-part test -- [ 2 ] CNSL N. BROOKS: Mm-hmm.

[ 3 ] THE COURT: -- and, really, at this juncture, we are only concerned with the last part of that test, if I could say, and by that, I mean that the Crown is only making submissions with respect to the third part of the three-part Grant test. [ 4 ] So the question now is whether or not the evidence should be introduced pursuant to s. 24(2) of the Charter or whether -- when that test is taken into consideration, whether the evidence should be admitted.

So there are three considerations: the seriousness of the Charter -infringing state conduct; the impact of the breach -- or of the breach on the Charter -protected interests; and finally society's interest in the adjudication of the case on its merits. As I said at the beginning, the Crown's submission, and it is Crown that bears the onus on s. 24(2), is simply that we should focus on society's interest in the adjudication of this case on its merits, and I do not disagree, first of all. [ 5 ] It is a fact in the voir dire , at least, that Ms. Rauch was found with 14 grams of crack cocaine on her person. It is a

Schedule I drug. It is a serious drug. It is one of those drugs that contributes, I think, and I think we would all agree, with the crime and the misery that that kind of substance presents for society generally and certainly in our city. So it is a serious case and there is a serious interest in adjudicating this case, but that does not leave aside the first two legs of the Grant test.

It is a balancing act, and given my findings on the first part of the voir dire in terms of the Charter -infringing state conduct, the difficulty, of course, is I just cannot -- I just -- I do not want to even give -- you know, go into much detail in terms of what it was the police did or did not do or did or did not know. You cannot tell from the evidence whether they were acting in good faith or not. I will leave it at that. [ 6 ] The impact of course is significant. Ms. Rauch was arrested and searched pursuant to arrest.

She was required to turn over the evidence as a result of the conduct which breached her s. 8 rights. The evidence could not have been obtained otherwise. I think in the circumstances, even leaving aside I think what we all appreciate to be society's interest in adjudicating this case, the court cannot let that evidence in without bring the administration of justice into disrepute. That is most unfortunate, but the evidence is excluded. So the application, at least, to exclude the evidence is granted. [ 7 ] Now, we are going to get out of the voir dire and go back into the trial.

I am just going to note in the record that we are in the trial and Ms. Rauch is appearing by telephone. We are in the trial. So I am over to you. [ 8 ] CNSL A. VAN TINE: That concludes the Crown's -- [ 9 ] THE COURT: Yes. [ 10 ] CNSL A. VAN TINE: -- case -- [ 11 ] THE COURT: Okay. [ 12 ] CNSL A. VAN TINE: -- and the Crown would invite the court to -- [ 13 ] THE COURT: Right. [ 14 ] CNSL A. VAN TINE: -- acquit Ms. Rauch. [ 15 ] THE COURT: Right, right. So, obviously, there is no evidence in this case on which -- [ 16 ] CNSL N. BROOKS: Mm-hmm. [ 17 ] THE COURT: -- to convict Ms.

Rauch, and so I say this with regret because I think Ms. Rauch should have made efforts to make it to court today -- [ 18 ] CNSL N. BROOKS: Mm-hmm. [ 19 ] THE COURT: -- and as I say -- [ 20 ] THE ACCUSED: Uh -- [ 21 ] THE COURT: As I said at the outset, it is more than ironic that I have to make this order and, given the way that Ms. Rauch has conducted herself throughout this trial, I do not -- I mean, at the end of the day, Ms. Rauch should not be left with any misimpression that the court does not take this seriously. I am doing this for the reputation of the judiciary, nothing else. I say nothing about Ms.

Rauch or her behaviour, but she is entitled to an acquittal under the circumstances. So I do enter an acquittal on this single count. (RULING ON VOIR DIRE

PART 2 CONCLUDED)