R. v. Rhodes Date:, 2011 BCPC 64

Citation: R. v. Rhodes Date: 20110201 2011 BCPC 0064 File No: 184047-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL WILLIAM RHODES RULING ON VOIR DIRE OF THE HONOURABLE JUDGE GULBRANSEN Counsel for the Crown: G. Jose Counsel for the Defendant: J. Stowe Place of Hearing: Surrey , B.C. Date of Hearing: February 1, 2011 Date of Judgment: February 1, 2011 INTRODUCTION: [ 1 ] On November 12th, 2010, two members of the Surrey RCMP Drug Squad strip-searched the accused within minutes of stopping a car in which he was a passenger for an alleged traffic offence.

He is now charged with two counts of possession of controlled substances for the purpose of trafficking. [ 2 ] Mr. Rhodes asserts that the driver in fact did not commit a traffic offence. He alleges that the officers used this allegation, which did not have a basis in fact, to detain him and the driver on a flimsy suspicion that he and the driver were drug dealers. He seeks exclusion of the drugs found on his person and a cell phone seized from the car because the officers had no lawful basis to detain or arrest him.

As well, he argues that the strip search which was conducted on him was unlawful because it was not conducted in accordance with the rules set out by the Supreme Court of Canada in R. v. Golden , 2001 SCC 83 (CanLII) , [2001] 3 S.C.R. 679 . [ 3 ] In this judgment, I will have to assess the reliability and credibility of the police officers' evidence explaining why they stopped the car. I will also have to assess the basis upon which the officers relied to justify their detaining and then arresting the accused.

Even if I find that the initial searches were lawful, I must also consider whether in fact the strip search was lawful. If I find that the search was

therefore unlawful either because there was no basis for the strip search or it was conducted unlawfully, I must then consider whether I should exclude the evidence by applying the criteria contained in the decision of the Supreme Court of Canada in R. v. Grant , [2009] 2 S.C.R. 253 . [ 4 ] There is no dispute over the relevant legal principles here. A brief outline of those principles is as follows: A peace officer may briefly detain a person whom he reasonably suspects is involved in criminal activity. The officer's power to search the detainee is limited to a pat-down search for weapons.

A peace officer's power to search a person who has been arrested is of wider scope. The officer may search the detainee for an object that may be a threat to the safety of the police, the accused, or the public, or that may facilitate escape or act as evidence against the accused. The search may include the immediate surroundings of the accused, including a motor vehicle that he or she has occupied.

An arrest must be based on reasonable grounds. [ 5 ] To search a suspect incident to an arrest, however, a peace officer need not have reasonable grounds to believe, for example, that the accused actually possesses weapons or incriminating evidence. However, the purpose of the search must be for a reason related to the arrest. [ 6 ] Police conducting a search incident to a lawful arrest may well suspect that they might discover evidence of crimes unrelated to the offence for which the accused was arrested.

The search is not rendered unlawful merely because the police do find such evidence in the course of that lawful search. [ 7 ] A strip search is a separate and more restrictive kind of search. A strip search is defined as: The removal or re-arrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas; namely, genitals, buttocks, breasts, in the case of a female, or undergarments. R. v.

Golden , paragraph 47 . [ 8 ] In Golden , the Supreme Court of Canada confirmed that the police have a common-law power to conduct a strip search incident to a lawful arrest. The exercise of that power, however, is subject to much more stringent conditions than the usual search that may occur after an arrest. That is because, as the court stated in Golden , strip searches are "inherently humiliating and degrading for detainees, regardless of the manner in which they are carried out." [ 9 ] The Supreme Court declared that a peace officer may only strip-search a detainee if the following conditions exist: 1.

The detainee must have been lawfully arrested; 2. The search must either be for the purpose of discovering weapons or evidence related to the reason for the arrest; 3. There must be reasonable and probable grounds establishing that a strip search is necessary in the circumstances of the particular case; 4. The strip search must not be conducted in a manner that violates the detainee's rights under s. 8 of the Charter of Rights ; 5. A strip search must, in most circumstances, be conducted at the police station.

A search in a place other than the police station can only be done in exigent circumstances and must relate to, in essence, the safety of the police officer, the detainee or the public. CIRCUMSTANCES: [ 10 ] Csts. Brown and Bleker were in an unmarked police vehicle doing random patrols on the streets of Surrey. Cst. Brown was driving. They ended up driving northbound on 128th Street behind a car occupied by two persons, the accused, who was a passenger, and another man, who was the driver. Near the intersection of 128th Street and 90th Avenue, that car passed the vehicle ahead of it by driving to the right.

At this point, 128th contains single lanes, one northbound and one southbound. Cst. Brown believed that this move was in violation of s. 153 of the Motor Vehicle Act. [ 11 ] As they continued to follow the vehicle, Cst. Bleker ran its licence plate on the computer in the police car using the PRIME database. In the "remarks" area of the screen which appeared in response to the query of the plates was a statement that the registered owner was "hired to drive dial-a-dopers." There were no indications of the reliability of the statement.

It did not reveal the ultimate source of the information; that is, whether it was second, third or fourth-hand. It did not reveal its reliability or even when it was made. Nonetheless, this comment piqued the officers' interest in this vehicle. [ 12 ] Cst. Brown said he was looking for a convenient spot to pull the car over to give the driver a traffic ticket. As he followed, he noted that the passenger, who was the accused, frequently spoke on a cell phone making several calls. As well, he noticed that the passenger frequently looked down into his lap. He told Cst. Bleker of his observations. [ 13 ] Cst.

Brown informed the court that persons in dial-a-dope enterprises have adjusted to the prohibition on drivers using cell phones by having one person who attends to driving the car, and a passenger who takes the phone orders and handles the drug sales. He also said that drivers in this kind of business tend to be a little aggressive in their driving because they need to get quickly from customer to customer to maximize their sales. [ 14 ] Cst.

Brown believed that the actions of the passenger in apparently having multiple phone conversations and frequently looking in his lap were consistent with someone taking orders for drugs and checking to see if he had the quantity of the drug that was requested. As I said, this information was communicated to Bleker. [ 15 ] Cst. Brown signalled the car to pull over near the intersection of 128th Street and 72nd Avenue, maybe closer to 71st Avenue. They pulled over. It was Cst. Brown's role to deal with the driver, to whom he intended to issue a traffic ticket. Cst. Bleker's role was to

approach the passenger side of the vehicle. [ 16 ] It is clear from the officers' evidence that they suspected that the accused and the driver were involved in the sale of drugs. [ 17 ] When Cst. Bleker was close to the passenger's side of the car, he saw that the passenger was moving in a manner which he described as: "furiously shoving his hand down the back of his pants." That is, he seemed to be trying to conceal something. Cst. Bleker believed that he was concealing either a weapon or drugs. [ 18 ] The constable asked the accused to unlock the passenger door, which he did.

The constable then removed him from the vehicle by grabbing his right arm and pulling him out. He turned the accused around so that he faced the vehicle. The officer then did a pat- down search for weapons. At the lower end of the accused's buttocks, the officer could feel a small object, slightly smaller than a golf ball, which was hard and lumpy and which made a rustling sound consistent with being wrapped in cellophane.

He believed that this object was likely crack cocaine packaged for sale. [ 19 ] He then told the accused that he was under arrest for "possession." He said no further words about the legal basis for the arrest other than "possession." [ 20 ] He then handcuffed the accused with his hands behind his back and took him to a nearby police van, which had arrived after the arrest. It was parked in what was described as a municipal driveway which joined 128th Street at a right angle.

The side door of the van was open, and the middle seat in that van had been removed, creating a relatively large open space inside. [ 21 ] Cst. Bleker asked the accused three different times to get inside, and on three different occasions, Mr. Rhodes refused to do so. Bleker then struck the accused by kicking him in the leg to distract him, and he and another officer, Cst. Zeeman, pushed him into the van on his stomach. Inside the van, Cst. Zeeman and Cst. Hyrciuk did the strip search. Cst. Bleker, from my reading of his evidence, may have assisted by holding the accused down as well.

It is not clear from the evidence, as I have read it, precisely who held him down, but the accused was on his stomach in the van. [ 22 ] Cst. Zeeman first looked inside the accused's pants between the pants and the underwear, lifting up his pants to make that observation. He did not see anything. Patting the accused's pockets located nothing, so Cst. Hyrciuk did another pat-down search and located a small object apparently inside the accused's underwear. Cst. Hyrciuk then pulled back on the waistband of the accused's pants and underwear, making an opening of about six inches, thus giving Cst.

Zeeman a view of the buttocks of the accused. Zeeman could see a small package, which he retrieved by reaching down with gloved hands, removing it. He described the object as a clear cellophane package. There is no dispute that it contained about 33 rocks of crack cocaine and a small amount of heroin. [ 23 ] The accused was then advised of his right to counsel and he was given access to counsel when they arrived back at the police station.

He was also advised after that point, after the finding of the drugs, that he was under arrest for possession of a controlled substance for the purpose of trafficking. [ 24 ] Meanwhile, Cst. Brown had dealt with the driver, who had produced his licence and registration. Brown issued him a traffic ticket for unlawfully passing another vehicle on the right. He did not arrest the driver, who was not charged with any offence arising from this transaction. [ 25 ] Cst. Brown also answered some calls made to a cell phone seized from the passenger's seat. The callers were seeking to buy drugs. [ 26 ] Cst.

Bleker explained why he directed that a strip search be done at the scene by saying that he did not want to take the chance that the evidence could be lost. He said in the past he had had prisoners who, although handcuffed, had been able to remove things from their person and somehow dispose of the items either so they were lost or leave them somewhere in the backseat of the police car. He did not want to, he said, "lose the continuity of the evidence".

He pointed out that the object that he had felt in the accused's pants had already been somewhat dislodged by the time they had walked over to the van. [ 27 ] In cross-examination, both officers agreed that the entry on PRIME was of very limited probative value. [ 28 ] Cst. Bleker agreed that an RCMP detachment was located nearby the scene of the arrest. The accused could have easily been taken there to have the strip search performed. It was perhaps a four-to-five-minute drive to get there. [ 29 ] Cst.

Bleker believed that the vehicle in front of the suspect vehicle on 128th may have been signalling a left turn when the suspect vehicle passed it. Cst. Brown, on the other hand, said that he did not see the vehicle either signal a left turn or start a left turn. As well, Cst. Brown said that he knew that a vehicle could, under s. 153 of the Motor Vehicle Act , pass another on the right if the other vehicle was signalling or making a left turn. [ 30 ] Cst. Bleker also agreed that he did not consult a senior officer about doing the strip search.

ANALYSIS: [ 31 ] Was there a basis to believe that the suspect vehicle had violated s. 153 of the Motor Vehicle Act ? I find that Cst. Brown's evidence is more reliable on this point. He was actually watching the suspect vehicle, Bleker was on the computer. He was also aware that a vehicle could pass a left-turning vehicle on the right. He remained firm in his assertion that there had neither been a left turn, nor had the vehicle activated a left-turn signal. He also did issue a ticket to the driver. I find, therefore, that Cst.

Brown had a lawful reason to stop the vehicle for a violation of the Motor Vehicle Act. [ 32 ] Was there a lawful detention by Cst. Bleker of the accused? I find that Cst. Bleker had reasonable grounds to suspect that the driver and passenger were involved in a criminal offence; in particular, the passenger. There was, first of all, the entry from PRIME, and I think everyone agrees that that is a weak piece of evidence. It has some value, but not much; enough to pique their interest. There was

also the slightly aggressive driving noted by Brown and described as a possible descriptor of a dial-a-dope driver. The passenger was observed to be on and off his cell phone and looking down to his lap. That alone may not have been a reliable basis for a detention. It is really a moot point, because that suspicion crystallized into a reasonable suspicion, in my view, when Bleker saw the accused putting something into his pants. His conclusion that it was either a weapon or drugs is clearly supported by the objective evidence.

Adding that particular factor to the other factors that were present in my view provides a reasonable basis to allow the officer to have a reasonable suspicion that the accused was involved in criminal activity. He was therefore entitled to do a pat-down search only for weapons, particularly in the area where the accused concealed something. [ 33 ] Once Cst. Bleker felt the small package on the accused, the officer believed it contained illegal drugs, probably crack. That is surely a reasonable conclusion in these circumstances. There was undoubtedly a reasonable basis for that conclusion.

Therefore, the arrest was lawful. It was not, however, in compliance with s. 10(

a) of the Charter of Rights because uttering only the word "possession" does not a properly convey the reason for the arrest to the suspect. Nonetheless, the officer was entitled to search the accused in that case incidental to the arrest. THE STRIP SEARCH: [ 34 ] We now come to the strip search. The question is were there, first of all, reasonable grounds to believe that a strip search was necessary? Clearly the answer to that is yes. Bleker saw the accused put something down his pants. In fact, it was very likely that it was crack or some other illegal drug that he put down his pants.

The officer could only find it or retrieve it by doing a strip search of the accused. [ 35 ] Was the execution of the strip search lawful? The strip search was not executed, in my view, in accordance with the rules set out in R. v. Golden . A strip search must be carried out at a police station unless there are exigent circumstances. "Exigent" means something “calling for immediate attention” or “urgent”. If one looks, for example, at paragraph 102 of the Golden case, one finds very strong language from the court about the need for exigent circumstances and what they might mean.

I am going to read paragraph 102 in its entirety from the majority judgment. Strip searches should generally only be conducted at the police station except where there are exigent circumstances requiring that the detainee be searched prior to being transported to the police station. Such exigent circumstances will only be established where the police have reasonable and probable grounds to believe that it is necessary to conduct the search in the field rather than at the police station.

Strip searches conducted in the field could only be justified where there is a demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the safety of the accused, the arresting officers or other individuals. The police would also have to show why it would have been unsafe to wait and conduct the strip search at the police station rather than in the field.

Strip searches conducted in the field represent a much greater invasion of privacy and pose a greater threat to the detainee’s bodily integrity and, for this reason, field strip searches can only be justified in exigent circumstances. [ 36 ] I refer further to the language in paragraph 105 of that decision. The burden of proof that lays on the Crown here. This is the second-to-last statement in paragraph 105: Because strip searches are of such an invasive character, they must be considered prima facie unreasonable.

It is up to the State to rebut this presumption because it is in the best position to know and explain why the search took place, and why it was conducted in the manner and circumstances that it did. This onus rests upon the Crown in any case involving a strip search, as defined in these reasons. [ 37 ] Finally, I also wish to refer to paragraph 114 of Golden , setting out some of the boundaries or restrictions on what the police could do. This is from the first sentence at paragraph 114.

Where the circumstances of a search require the seizure of material located in or near a body cavity, the individual being searched should be given the opportunity to remove the material himself or the advice and assistance of a trained medical professional should be sought to ensure that the material can be safely removed. That latter remark does not apply to this case, but the first part of that, of course, does. [ 38 ] It is also important to remember that, looking at paragraph 116, one issue in Golden dealt with the fact that Golden did not co- operate with the police.

He was quite resistant to their attempts to do a strip search. The majority judgment in Golden disagreed with the proposition that it was somehow a relevant factor that would mitigate police misconduct. Paragraph 116 says: We particularly disagree with the suggestion that an arrested person’s non-co-operation and resistance necessarily entitles police to engage in behaviour that disregards or compromises his or her physical and psychological integrity and safety.

If the general approach articulated in this case is not followed, such that the search is unreasonable, there is no requirement that anyone co-operate with the violation of his or her Charter rights. [ 39 ] It is also clear from Golden that exigency is not established where, for example, the police station is nearby and there is an expressed fear of losing continuity of the evidence. [ 40 ] In paragraphs 106 and 107 of Golden , the court discusses the issue of the police needing to, as Cst.

Bleker put it, "maintain continuity of the evidence." The court in Golden made it clear that circumstances were not exigent where the police say that the evidence might be lost or concealed on transport back to the police station. The court was quite skeptical of any argument that would suggest that this would somehow impede the police in their ability to prove that the accused was in possession of that object. WAS THE STRIP SEARCH LAWFUL: [ 41 ] In the case at bar, Cst. Bleker did not believe that the strip search was necessary to retrieve and locate a weapon.

He believed, quite reasonably, that the accused had hidden a package of drugs on his person, a package that he felt was not an object which could threaten the safety of the accused, the arresting officers or others. The only reason offered to justify conducting a strip search "in the

field" was that the accused might dispose of the evidence while being transported, in handcuffs, in the police car to the police station. At the very least, in Cst. Bleker's mind, the accused could disrupt the continuity of the evidence by leaving it in the police car. It is very clear that that very position that Cst. Bleker took was squarely rejected by the majority judgment in Golden as constituting exigent circumstances. [ 42 ] I find, therefore, that the strip search of the accused was unlawful.

The search violated the accused's rights under s. 8 of the Charter of Rights to be free from unreasonable search and seizure. It was an unreasonable search. SHOULD THE EVIDENCE BE EXCLUDED: [ 43 ] I now have to apply the criteria set out in R. v. Grant , and according to Grant , I must consider three general categories: 1. The seriousness of the Charter-infringing State conduct; 2. The impact on the breach of the Charter-protected rights of the accused; and 3.

Society's interest in the adjudication of the case on its merits. [ 44 ] First of all dealing with the seriousness of the Charter-infringing State conduct, this must be regarded as a serious violation of the accused's rights. The police conduct, or misconduct, in a more general sense, was not deliberate or reckless. But there is a high level of negligence and unjustified ignorance of Charter standards here. The case of Golden was decided by the Supreme Court in 2001.

The reason offered by the officer to justify a field strip search was a justification which had been specifically rejected by the Supreme Court of Canada. Although I do not expect this officer to run around reading Supreme Court of Canada cases, police officers must eventually be made aware of the law which applies to them and everyone else. It is of significance here that the officer did not address or think about the fact that the urgency in this context is restricted basically to the need to strip-search someone to discover something that might be dangerous.

The concept of the rule of law requires that those enforcing the law comply with the law governing their conduct and governing the way in which the law is enforced. [ 45 ] There were no extenuating circumstances in this case justifying the search. In that regard, I think there was an unacceptable level of negligence. The officers were not acting in bad faith, but their ignorance of clearly stated and longstanding Charter standards cannot be equated with good faith. This court cannot reward or encourage the police conduct in this case.

Thus the Charter-infringing State conduct in this instance here is serious, and therefore an assessment of that category tends to favour exclusion of the evidence. [ 46 ] Next I come to the impact of the breach on the Charter-protected interests of the accused. In my view, there was a serious impact on the Charter interests of the accused. The police forced the accused to submit to a strip search in circumstances where they were not entitled to strip-search him. The search was intrusive. It took more than a few seconds.

The accused has a high expectation of privacy in the area of the body that was searched -- his buttocks and genital area. He was forcibly held down while officers lifted his pants away from his body. They patted him down again a second time and then forcefully lifted his pants and underwear up again to find the object that they were looking for.

The impact of the breach was reduced somewhat by the police doing the search inside a van, thus removing the accused from direct view of the public, but as the court said in Grant at paragraph 78, and I am quoting: An unreasonable search that intrudes in an area in which the individual reasonably enjoys a high expectation of privacy or that demeans his or her dignity is more serious than those that do not. That comment applies directly to the circumstances of this case.

A consideration of these issues also tends to favour exclusion of the evidence. [ 47 ] Finally, I must consider society's interest in the adjudication of the case on its merits. This factor favours the inclusion of the evidence. The evidence is reliable, probative and essential to the Crown's case. [ 48 ] In conclusion, on balancing these three factors, I find that the admission of the evidence, the drugs found on the accused's person, and the analysis of those drugs would bring the administration of justice into disrepute.

On weighing the three factors set out by Grant , in my view, the weight of that consideration clearly requires that I find that the evidence be excluded. [ 49 ] I direct, therefore, that this evidence be excluded from the trial. [ 50 ] This may be a moot point, but I do not exclude the evidence relating to the cell phone. That was seized from the car and that was pursuant to a lawful arrest. [ 51 ] My ruling is, gentlemen, that the evidence of the drugs and analysis is excluded. ______________________________ Judge Gulbransen Provincial Court of British Columbia