R. v. Multani Date:, 2017 BCPC 210

Citation: R. v. Multani Date: 20170413 2017 BCPC 210 File No: 197183-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. GURPREET MULTANI RULING ON VOIR DIRE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R. HAMILTON Counsel for the Crown: F. Lépine Counsel for the Defendant: W. Jessop Place of Hearing: Surrey , B.C. Dates of Hearing: October 20, 21; December 1, 2016; March 16, 2017 Date of Judgment: April 13, 2017

INTRODUCTION [ 1 ] On August 18, 2015, Gurpreet Multani was pulled over by Constable Cory Kornicki of the Langley RCMP after leaving a local tavern. Mr. Multani was driving a rental vehicle. [ 2 ] Constable Kornicki planned to conduct a sobriety check of Mr. Multani. [ 3 ] In the process of pulling Mr. Multani over, Constable Kornicki did not observe anything in Mr. Multani’s driving that would suggest that Mr. Multani was impaired. Having said that, Mr. Multani has not argued in this case that Constable Kornicki’s decision to pull over Mr.

Multani in his rental car that night was improper or unlawful. [ 4 ] As a result of events that unfolded upon Mr. Multani’s roadside detention by Constable Kornicki, Mr. Multani was arrested, first for possession of marijuana, and then shortly thereafter he was re-arrested for possession of marijuana for the purpose of trafficking although no marijuana was ever recovered from Mr. Multani or his rental car following his arrest on August 18, 2015. [ 5 ] In the course of a “bed pan vigil” during which Mr. Multani remained in custody at the Langley RCMP detachment, Constable Kornicki took Mr.

Multani to the Langley Memorial Hospital due to concerns over Mr. Multani’s health as a result of a suspicion that Mr. Multani had secreted drugs inside his rectum. While at the hospital, Mr. Multani eventually retrieved a bag of drugs from his rectum and after testing the contents of that bag, Mr. Multani was charged with possessing heroin and cocaine for the purpose of trafficking which are the charges he faces before me in this trial. [ 6 ] At the outset of this trial, I declared a voir dire to consider Mr.

Multani’s applications for a ruling on whether he was lawfully arrested by Constable Kornicki for either the charge of possessing marijuana, or the charge of possessing marijuana for the purpose of trafficking. Mr. Multani argues that he was not lawfully arrested and, as a result, his rights pursuant to

section 9 of the Charter have been violated. Mr. Multani further argues that if he was not lawfully arrested by Constable Kornicki, then the warrantless search of him by way of the bed pan vigil was an unreasonable search and a violation of Mr. Multani’s right, under

section 8 of the Charter , to be free from an unreasonable search and seizure. [ 7 ] The Crown argues on this voir dire that there were reasonable grounds for Constable Kornicki to believe that Mr. Multani possessed marijuana on August 18, 2015 as well as reasonable grounds to believe he possessed marijuana for the purpose of trafficking following Constable Kornicki’s search of Mr. Multani’s rental car. [ 8 ] Accordingly, the Crown argues that if Mr.

Multani was the subject of a lawful arrest, then the search conducted by Constable Kornicki incidental to that arrest was a lawful search provided the search was conducted in a reasonable manner. In those circumstances, the lawful arrest and lawful search would not violate Mr. Multani’s rights as protected by sections 8 and 9 of the Charter . [ 9 ] This is my ruling on Mr.

Multani’s applications on this voir dire for a determination whether his rights as protected by sections 8 and 9 of the Charter were violated when he was arrested by Constable Kornicki on August 18, 2015 and subsequently searched by means of a bed pan vigil conducted on August 18, and 19, 2015. BACKGROUND [ 10 ] During the evening of August 18, 2015, Constable Kornicki was parked near the parking lot of a local tavern in Langley. His stated purpose for being there was to conduct sobriety checks of patrons as they left the tavern. [ 11 ] Constable Kornicki observed Mr.

Multani leave the tavern and get into his car and drive out of the parking lot. At this point in the narrative, Constable Kornicki did not know Mr. Multani, and he was not present outside of the tavern for the purpose of an ongoing investigation into drug trafficking. [ 12 ] As Mr. Multani approached the exit of the parking lot, Constable Kornicki anticipated that Mr. Multani was going to turn in a particular direction, but Constable Kornicki noticed that Mr. Multani spotted the police car and made, what Constable Kornicki felt, was a last-second decision to turn out of the parking lot in a different direction.

According to Constable Kornicki, this amounted to suspicious behaviour on the part of Mr. Multani. [ 13 ] Constable Kornicki decided to follow Mr. Multani and he engaged his emergency lights to pull Mr. Multani over to the side of the road. Mr. Multani slowly pulled to the side of the road - more slowly than Constable Kornicki thought was necessary. Despite Mr. Multani’s rather meandering response to Constable Kornicki’s emergency lights, there was nothing noted by Constable Kornicki about Mr. Multani’s driving that indicated Mr.

Multani might be impaired in his ability to drive the car. [ 14 ] Once stopped at the roadside, Constable Kornicki exited his police cruiser and approached the driver’s side of the rental vehicle. As he approached the vehicle, Constable Kornicki noticed that the driver’s seat was reclined. From what he could observe, Constable Kornicki testified initially that Mr. Multani’s hands were behind his back and down the back of his pants as Constable Kornicki approached the rental vehicle. He testified that as he arrived at the driver’s window Mr.

Multani brought his hands back in front of himself. [ 15 ] Constable Kornicki testified that once stationed outside of the driver’s window he was able to detect a strong odour of vegetative marijuana coming from inside the rental vehicle. Constable Kornicki asked Mr. Multani for his driver’s licence and the registration papers for the vehicle, and Constable Kornicki observed Mr. Multani apply some hand sanitizer before retrieving those documents for the officer. Based upon the strong odour of marijuana coming from the rental vehicle, Constable Kornicki made the decision that he was going to arrest Mr.

Multani for possession of marijuana. [ 16 ] Constable Kornicki left Mr. Multani alone in the rental vehicle as the constable retreated to his police car to call for back-up and

to check Mr. Multani’s identification on the police computer system. I was not told of anything of significance that came from Constable Kornicki’s review of Mr. Multani’s information on the police computer. [ 17 ] Constable Courtney Callens responded to Constable Kornicki’s request for back-up and, once on the scene, the two RCMP officers walked up to the rental car to effect the arrest of Mr. Multani for possession of marijuana. [ 18 ] The evidence in support of the arrest of Mr.

Multani at this point was limited to Constable Kornicki’s alleged detection of a strong odour of marijuana coming from the rental vehicle. [ 19 ] The officers approached Mr. Multani in the rental vehicle and Constable Kornicki told Mr. Multani that he was under arrest for the possession of marijuana. According to both constables, Mr. Multani was not co-operative. Constable Callens testified that she had to reach into the rental vehicle to unlock the driver’s door in order to effect the arrest of Mr. Multani. [ 20 ] Once out of the rental vehicle, Mr.

Multani was placed in handcuffs and escorted to the police cruiser. Mr. Multani was read his rights and he indicated that he wanted to speak to his lawyer. He told the officers that his cellular phone was in the car and his lawyer’s contact information was on his phone. [ 21 ] Constable Kornicki, operating on the basis that he had made a lawful arrest, went to search the rental vehicle and to retrieve Mr. Multani’s cellular phone to facilitate the call to Mr. Multani’s lawyer. Constable Callens remained at the side of the police cruiser to keep an eye on Mr. Multani. She noticed that Mr.

Multani was fidgeting with his hands while handcuffed behind his back. Ultimately the officers made a decision to handcuff Mr. Multani’s hands in front of him and onto the bars on the windows of the police car. [ 22 ] In what I would describe as a curious manner in which to facilitate Mr. Multani’s phone call to his lawyer, Constable Callens called the lawyer, put the phone on speaker phone, and then she held the phone up to the open window of the police car and stood there while Mr. Multani spoke with his counsel. I was told that at the scene, there simply was no other way to facilitate Mr.

Multani’s call to his counsel. Having said all of this, I note that Mr. Multani is not advancing, at least at this stage of the case, a breach of his right to counsel. [ 23 ] While Constable Callens was busy facilitating Mr. Multani’s public conversation with his lawyer, Constable Kornicki was busy searching the rental vehicle. [ 24 ] Constable Kornicki’s search of the rental vehicle produced two cellular phones, a closed marijuana grinder that was located inside of a Louis Vuitton bag, and the bottle of hand sanitizer. An earlier search of Mr.

Multani produced a bundle of cash totalling $855.00. [ 25 ] Constable Kornicki opened the marijuana grinder and inside he found what amounts to a few flakes of something. Those flakes have been assumed to be marijuana in the case before me. The flakes were not sent for analysis to determine their true substance. [ 26 ] With the two cellular phones, the few flakes of presumed marijuana, the bundle of cash, and the hand sanitizer, Constable Kornicki felt he had grounds to re-arrest Mr. Multani for possession of marijuana for the purpose of trafficking.

Constable Kornicki acknowledged in his evidence that, at no time prior to his decision to re-arrest Mr. Multani or any time thereafter, did either of the cellular phones receive an incoming phone call. [ 27 ] Constable Kornicki effected the arrest of Mr. Multani for possession of marijuana for the purpose of trafficking and again read Mr. Multani his Charter rights. [ 28 ] While on their way back to the Langley RCMP detachment, Mr. Multani began to show signs that he was not well. According to Constable Kornicki, Mr. Multani’s head dropped, but he was responsive to the officer’s questions.

Nonetheless, it appeared to the constable that Mr. Multani’s health was declining. Mr. Multani appeared groggy. Constable Kornicki testified that he feared that Mr. Multani was going to die. As a result, Constable Kornicki called his supervisor to advise that he was going to divert and take Mr. Multani to the Langley Memorial Hospital. [ 29 ] Mr. Multani was admitted to the emergency ward of the hospital. A doctor examined Mr. Multani by taking his vital signs which were normal. Mr. Multani did not consent to any medical treatment. Constable Kornicki told the attending physician that he suspected that Mr.

Multani had secreted drugs in his body cavity and asked the doctor to retrieve those drugs. With no warrant to search Mr. Multani and no consent from Mr. Multani for medical treatment, the attending doctor was not prepared to search Mr. Multani’s rectum. [ 30 ] The emergency physician discharged Mr. Multani and Constable Kornicki transported Mr. Multani to the Langely RCMP detachment. [ 31 ] Once at the detachment, Constable Kornicki conducted a strip search of Mr. Multani which produced no evidence. Mr. Multani was then placed in a “dry cell” where there is no running water.

The purpose of such a placement is to prevent the prisoner from flushing anything down the toilet should the prisoner excrete anything while in custody. [ 32 ] Constable Kornicki was convinced that Mr. Multani had something in his body cavity so the officer decided that he would apply for a three-day remand of Mr. Multani pursuant to

section 516 of the Criminal Code . Constable Kornicki told both Mr. Multani and his counsel of the officer’s plan to seek the three-day remand. Both Mr. Multani and his lawyer told Constable Kornicki that they were opposed to the remand. [ 33 ] The morning of August 19, 2015 was a weekday. For reasons that were not well explained to me, Constable Kornicki decided to keep Mr. Multani in custody at the Langley RCMP detachment all day rather than arrange to transport him to the Surrey courthouse for a bail hearing.

Constable Kornicki, rather implausibly, testified that he did not know that transporting a prisoner to the courthouse for a bail hearing was an option on a weekday. Rather, he decided to prepare the paperwork for a telephone bail hearing before a Judicial

Justice through the Justice Centre after 4:30 p.m. [34] The result of Constable Kornicki’s decision to process Mr. Multani by way of a telephone bail hearing before a Judicial Justicewas that Mr. Multani’s lawyer did not participate in the telephone bail hearing, and Constable Kornicki asked for and was granted thethree-day remand. I am told that Constable Kornicki told the Judicial Justice the reason for his request for the three-day remand and thatMr. Multani was given an opportunity to present his opposition to the request for the remand.

The transcript of the telephone bailhearing was not provided to me during this voir dire. [35] As I have said, Constable Kornicki’s application over the phone was successful and Mr. Multani was remanded in custody forthree days by the Judicial Justice. It is this three-day remand that lies at the heart of the “bed pan vigil” in this case. Basically theJudicial Justice granted the three-day remand so that the police could keep watch over Mr. Multani until he produced what they thoughtwas hidden inside of him. He was to be kept in the dry cell during this “vigil”. [36] Following his telephone bail hearing Mr.

Multani was returned to his cell to sit and wait. At some point, either later that sameday or the following day, the police keeping a watch over Mr. Multani became concerned for his health, and they called ConstableKornicki back to the detachment. Constable Kornicki in turn contacted Constable Callens to come to the Langley detachment. [37] Based upon their observations of Mr. Multani, the officers decided to call an ambulance to check on Mr. Multani’s health. Hehad apparently been vomiting and passing into and out of consciousness. [38] The paramedics examined Mr. Multani and checked his vital signs.

According to the evidence before me, the paramedicsdetermined that Mr. Multani was able to remain at the police detachment. Despite that medical assessment, Constable Kornicki had Mr.Multani transported back to the Langley Memorial Hospital where, as before, Mr. Multani refused to consent to any medical treatment. During his testimony, Constable Kornicki stated that there were no police notes setting out the details of Mr. Multani’s deterioration inhealth and the visit to the detachment by the paramedics.

While I have no doubt that the paramedics attended the detachment, I askedsome questions of Constable Kornicki about the absence of any notes taken, setting out Mr. Multani’s condition that led to the decisionto call the ambulance. Constable Kornicki had no answer to explain the complete absence of any notes of this rather critical point in thenarrative.

While I do not fault Constable Kornicki for not taking any notes, I find it hard to believe that in a situation where the policeofficers fear that a prisoner might die, not a single officer recorded any information about the prisoner’s health and the attendance of theparamedics to the police station. [39] In any event, Mr. Multani was transported to the hospital and again he did not consent to any medical treatment. The attendingphysician checked Mr. Multani’s vital signs and determined that he did not need to be admitted to the hospital.

Constable Kornickitestified that he called his supervisor who directed the constable not to return Mr. Multani to the police station. I was left with theimpression after hearing Constable Kornicki’s evidence that neither he nor his supervisor wanted to have Mr. Multani in their custody atthe police station in case Mr. Multani’s health deteriorated any further. Rather, their preference was to have Mr. Multani at the hospitalwhere he could receive immediate medical attention in the case of an emergency. [40] With Constables Kornicki, Callens and Mr.

Multani in this medical limbo, the three went to a quiet waiting room at the hospitalwhere they spent something on the order of two hours together waiting. Again, no notes were taken about what was discussed whilewaiting in this room at the hospital. According to Constable Kornicki, he was trying to persuade Mr. Multani to retrieve the drugsbecause keeping the drugs inside of him was risking his health. Constable Kornicki also testified that Mr. Multani was trying to broker adeal whereby if he gave Constable Kornicki the drugs, Mr.

Multani would be permitted to leave with no charges laid against him. [41] Ultimately, Mr. Multani signalled to Constable Kornicki that he wanted Constable Callens to leave the room they were in, andwhen she left Mr. Multani took down his trousers and retrieved the drugs from his rectum. The drugs were then sent for analysis andthey were determined to be heroin and cocaine. Given the volume of the drugs, Mr. Multani was charged with possessing both of thosedrugs for the purpose of trafficking. DISCUSSION AND ANALYSIS [42] In order to resolve Mr.

Multani’s applications on this voir dire I must apply the law related to the circumstances when a policeofficer can arrest someone for a crime, and when a police officer may conduct a lawful search incidental to an arrest. [43] I have found considerable assistance on these issues from the

summary of the applicable law set out by Judge Sutherland in R. v.Francis and Gill, 2015 BCPC 150 at paragraph 44. There, Judge Sutherland states: [44] The following legal principles apply to Mr. Gill’s and Mr. Francis’ Charter application:

Section 8 of the Charter provides citizens with a constitutional protection against “unreasonable search and seizure.”

Section 9 protects citizens from arbitrary detention. 3. A search made without a warrant is prima facie unreasonable under

section 8 of the Charter: R. v. Collins, (SCC),[1987] 1 S.C.R. 265. 4. The onus is on the Crown to establish on a balance of probabilities that the warrantless search was authorized by law and conductedin a reasonable manner: Collins. 5. A search conducted incidental to arrest is authorized by law provided the arrest is lawful: R. v. Caslake, (SCC),[1998] 1 S.C.R. 51; R. v. Stillman, (SCC), [1997] 1 S.C.R. 607; R. v. Fearon, 2014 SCC 77 , 2014 S.C.C. 77. 6. Consequently, the Crown bears the onus of establishing that the underlying arrest was lawful and not contrary to

section 9 of theCharter: Collins.

7. The onus is met if the Crown establishes that the officer had reasonable grounds to believe the accused has committed or is in theprocess of committing an indictable offence: Criminal Code s. 495(1)(a), s. 495(1)(b). 8. There are two components to what constitutes “reasonable grounds.” An arresting officer must subjectively have reasonable groundsto base the arrest, but those grounds must, in addition, be justifiable from an objective point of view.

That is to say, a reasonable personwith the same experience, training, knowledge, and skills as the officer making the observations must be able to conclude that there wereindeed reasonable grounds for the arrest: R. v. Storrey, (SCC), [1990] S.C.J. No. 12; R. v. Luong, 2010 BCCA 158. 9. The “reasonable grounds” standard has been equated with “a credibly based probability,” or “reasonable probability.” It requiresmore than mere suspicion but less than the civil standard of proof on a balance of probabilities or a prima facie case: Hunter v. SouthamInc., [1984] 2 S.C.R. 241; R. v.

Debot, (SCC), [1989] 2 S.C.R. 1140; Mugesera v. Canada (Minister of Citizenship &Immigration), 2005 SCC 40 , [2005] 2 S.C.R. 100. 10. A reasonable grounds determination involves a consideration of the “totality of the circumstances”: R. v. Jir, 2010 BCCA 497 11. The police are not entitled to arrest first and then determine whether the person arrested is connected to the offence underinvestigation: R. v. Whitaker, 2008 BCCA 174 , [2008] B.C.J. No. 725; R. v. Chaif-Gust, 2011 BCCA 528 . 12.

A warrantless arrest of an accused that was not based on reasonable grounds is an unlawful arrest that may result in a violation of acitizen’s right to be free from arbitrary detention or imprisonment contrary to

section 9 of the Charter: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. 13. A search conducted pursuant to an unlawful arrest is an unreasonable search within the meaning of

section 8 of the Charter:Caslake; Grant. 14. The standard justifying an Investigative Detention is met where a consideration of the totality of the objectively discernible factsgives an officer a reasonable suspicion that the person detained is criminally implicated in the activity under investigation: R. v. Simpson(1993), (ON CA), 79 C.C.C. (3d) 482 at 501 (Ont. C.A.); R. v. Mann, 2004 SCC 52 . 15. A police officer may conduct a protective pat down search of a detained person only if the officer has reasonable safety concerns:Mann. [44] I will keep those principles in mind as I analyse Mr.

Multani’s applications on this voir dire. Because I am of the view that Mr.Multani’s applications may be disposed of on the basis of his assertion that he was unlawfully arrested by Constable Kornicki, I will startmy analysis with Mr. Multani’s arrest for possession of marijuana and then consider his subsequent arrest for possession of marijuana forthe purpose of trafficking on August 18, 2015. A. Mr. Multani’s Arrest for Possession of Marijuana [45] Mr. Multani was arrested by Constable Kornicki on August 18, 2015 with no warrant. [46] Warrantless arrests of citizens are governed by

section 495 of the Criminal Code which states: Arrest without warrant by peace officer 495(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence; (

b) a person whom he finds committing a criminal offence; … [47] The basis for Mr. Multani’s arrest for possessing marijuana was the strong odour of marijuana detected by Constable Kornickias he approached and stood beside the rental vehicle driven by Mr. Multani. Constable Kornicki formed the subjective belief that Mr.Multani was in possession of marijuana based solely on his detection of the strong odour of marijuana coming from the rental vehicle. [48] Simply, the odour of burnt or vegetative marijuana can form the basis for a lawful arrest (R. v. MacCannell, 2014 BCCA 254;R. v.

Acosta, 2014 BCCA 218). [49] In assessing the lawfulness of Mr. Multani’s arrest for possessing marijuana, I must consider the reasonableness of the groundsfor that arrest from Constable Kornicki’s subjective belief, and on an objective analysis of those grounds. In considering those groundsfor Mr. Multani’s arrest, I must consider the full factual matrix of the case (R. v. Boyd, 2013 BCCA 19; R. v. Ashby, 2013 BCCA 334; R.v. MacCannell). [50] In argument on this voir dire, Mr. Multani did not challenge Constable Kornicki’s subjective grounds for believing that Mr.Multani possessed marijuana on August 18, 2015.

However Mr. Multani has argued that Constable Kornicki’s evidence should beweighed with caution because of some irreconcilable contradictions in his evidence with the evidence of his supervisor, Corporal Brown. [51] On my analysis of Constable Kornicki’s subjective grounds for believing Mr. Multani possessed marijuana on August 18, 2015,I make the following observations:

a) Constable Kornicki testified that during his seven years with the Surrey and Langley RCMP detachments, he has been assigned totraffic investigations either through the Surrey Integrated Road Safety Unit or the Langley Traffic

Section of the RCMP, and focus of his

police experience has been with traffic enforcement including impaired driving investigations;

b) Constable Kornicki testified that he has been part of many investigations involving marijuana including marijuana grow operations and he is familiar with the smell of vegetative marijuana;

c) Constable Kornicki said he has been exposed to the smell of marijuana over 100 times and that he is very familiar with the smell of marijuana. He has also taken some training courses during which he has been exposed to the smell of marijuana;

d) Constable Callens who attended the scene and was directly involved in effecting the arrest of Mr. Multani did not testify that, and was not asked if, she detected the odour of marijuana while standing next to the rental vehicle;

e) During his search of the rental vehicle, Constable Kornicki found an item that was called a marijuana grinder in a Louis Vuitton bag in the car. The marijuana grinder was sealed and was inside the bag;

f) Inside the marijuana grinder, Constable Kornicki found a few flakes of something. Whatever those flakes were, it has been assumed that they were marijuana. The flakes were not sent for testing to determine if they were marijuana and there is no evidence in this trial that the device identified as a marijuana grinder contained marijuana;

g) Constable Kornicki did not testify that when he found the item called a marijuana grinder it smelled like vegetative marijuana. He did not testify that when he opened the marijuana grinder he realized that the strong odour of vegetative marijuana was coming from the grinder. [ 52 ] The last three points I have made, I recognize, refer to events that occurred after Mr. Multani’s arrest and cannot factor into my analysis as to his subjective grounds for believing that Mr. Multani possessed marijuana.

But I raise them to point out that the only basis for Constable Kornicki’s subjective grounds for believing that Mr. Multani possessed marijuana was his detection of the odour of marijuana coming from the vehicle Mr. Multani was driving when he was arrested. [ 53 ] In determining the weight that I can give to Constable Kornicki’s evidence that he detected a strong odour of vegetative marijuana coming from the rental vehicle, I must also consider the following:

a) Constable Kornicki was confronted during cross-examination with the proposition that while Mr. Multani was in custody at the Langley RCMP detachment, Constable Kornicki told Mr. Multani that if he produced the drugs that Constable Kornicki suspected were being hidden in Mr. Multani’s rectum then Constable Kornicki would release Mr. Multani with no charges (the “Deal”). Constable Kornicki flatly denied that he offered the Deal to Mr. Multani.

b) Constable Kornicki’s supervisor in this case, Corporal Brown, gave evidence that not only did Constable Kornicki seek Corporal Brown’s approval to propose the Deal to Mr. Multani, Corporal Brown was present in Mr. Multani’s cell when Constable Kornicki presented the Deal to Mr. Multani.

c) Constable Kornicki testified that he took Mr. Multani to the Langley Memorial Hospital the second time out of medical necessity. He also testified that while he was at the hospital he found himself in “no man’s land” because when he contacted his supervisor for some direction after the emergency physician would not admit Mr. Multani for treatment, he was instructed by his supervisor not to return Mr. Multani to the Langley detachment.

d) Mr. Multani’s supervisor, Corporal Brown, testified that he was present when the paramedics assessed Mr. Multani at the detachment and the paramedics determined that Mr. Multani’s vital signs were good which meant that Mr. Multani was fit for incarceration and that he could be held at the police detachment. Corporal Brown also denied any conversation with Constable Kornicki after Mr. Multani was assessed at the Langley Memorial Hospital about not returning Mr. Multani to the police detachment out of concern over Mr. Multani’s medical condition.

In other words, Corporal Brown denied placing Constable Kornicki in this “no man’s land” at the Langley Memorial Hospital. [ 54 ] The foregoing conflicts in the evidence between Constable Kornicki and Corporal Brown leave me in the position of not knowing who to believe on these points. This is an important issue since the only evidence upon which I could find that Mr.

Multani’s arrest for the possession of marijuana was lawful is if I accept Constable Kornicki’s evidence that he detected a strong odour of marijuana when he approached and was standing beside the rental vehicle. [ 55 ] In assessing Constable Kornicki’s grounds for arresting Mr. Multani for the possession of marijuana, I am mindful that the Crown does not need to establish grounds for the arrest beyond a reasonable doubt. Indeed, the Crown does not need to establish a prima facie case for the grounds for the arrest.

As noted above in Judge Sutherland’s decision in Francis and Gill , the reasonable grounds standard must amount to “a credibly based probability” or “a reasonable probability.” There must be more than a suspicion or a mere hunch ( Hunter v. Southam Inc. ; R. v. Debot ; and Mugesera v. Canada Minister of Immigration ). [ 56 ] Ultimately, I must determine whether I believe Constable Kornicki when he testified that he formed his subjective grounds for the arrest of Mr. Multani based upon his detection of a strong odour of marijuana coming from the rental vehicle.

And while I have no evidence that the alleged smell of vegetative marijuana was coming from the marijuana grinder found sealed inside the Louis Vuitton bag, or that the flakes found inside the grinder were in fact flakes of marijuana, based upon the rather low threshold needed to justify a warrantless arrest, that being something less than a prima facie case or less than the balance of probabilities - whatever that means - I am prepared to find that Constable Kornicki had the necessary subjective grounds to arrest Mr.

Multani for possession of marijuana on August 18, 2015. [ 57 ] Turning now to consider whether there were objective grounds to support the warrantless arrest of Mr. Multani for possession of marijuana on August 18, 2015, I must consider whether a reasonable person with the same experience, training, knowledge, and skills as Constable Kornicki would conclude that there were indeed reasonable grounds for Mr. Multani’s arrest ( R. v. Storrey , and R. v. Luong ).

[ 58 ] The difficulty with this stage of the analysis is that it falls to be determined on whether the smell of vegetative marijuana was present or not and whether someone with Constable Kornicki’s training and experience would be able to detect that odour of marijuana. If the smell of marijuana was present, then I am satisfied that someone with Constable Kornicki’s training and experience would be able to detect that smell of marijuana and, in that case, the objective grounds for Mr. Multani’s arrest, in my view, would be met.

If the smell of marijuana was not present, then the objective grounds for the arrest are not met. To conclude that the vegetative smell of marijuana was present when Constable Kornicki approached the rental vehicle requires me to believe what Constable Kornicki told me in his evidence. And while I have serious reservations about the reliability of Constable Kornicki’s evidence, I am satisfied that the Crown has met the relatively low threshold needed to support a conclusion that Mr. Multani was lawfully arrested for possession of marijuana. [ 59 ] Accordingly, I conclude that Mr.

Multani’s arrest for possession of marijuana on August 18, 2015, was lawful based upon Constable Kornicki’s evidence that he smelled a strong odour of vegetative marijuana coming from the rental vehicle as he approached and stood beside that vehicle that day. I have reached that conclusion despite the fact that there is no evidence that marijuana was found in the vehicle, but there were flakes of something found inside a sealed marijuana grinder located inside a Louis Vuitton bag in the car.

There is no evidence that the flakes found inside the marijuana grinder were the source of the strong odour of vegetative marijuana coming from the rental car. Constable Callens did not corroborate Constable Kornicki’s evidence that there was a strong odour of marijuana coming from the rental car. And there are irreconcilable differences between Constable Kornicki’s evidence and Corporal Brown’s evidence that call into question the reliability of Constable Kornicki’s evidence. [ 60 ] I have reached my conclusion that Mr.

Multani’s arrest for the possession of marijuana was lawful, despite the concerns noted above, based upon the low threshold the Crown must meet in order to establish a lawful arrest. B. Mr. Multani’s Arrest for Possession of Marijuana for the Purpose of Trafficking [ 61 ] Mr. Multani’s arrest for the possession of marijuana was based solely on Constable Kornicki’s detection of a strong odour of vegetative marijuana coming from the rental vehicle as he approached the vehicle on August 18, 2015. [ 62 ] Having concluded that Mr.

Multani’s arrest for the possession of marijuana was lawful, it follows that Constable Kornicki’s search of Mr. Multani and his search of the rental vehicle, subsequent to the lawful arrest, were lawful searches provided the searches were done reasonably. [ 63 ] The search of Mr. Multani was simply a pat down search which revealed a bundle of cash in one of Mr. Multani’s pockets. The sum of that cash was $855.00. [ 64 ] The search of the rental vehicle turned up two cellular phones and the marijuana grinder with a few flakes of something inside of it.

Constable Kornicki already knew of the presence of the hand sanitizer because Mr. Multani had used the hand sanitizer before handing over his driver’s licence and the registration papers for the rental vehicle. [ 65 ] Following his search of Mr. Multani and the rental vehicle, Constable Kornicki formed the subjective view that he had grounds to arrest Mr. Multani for possession of marijuana for the purpose of trafficking. He formed those subjective grounds on the basis of finding $855.00 in one of Mr.

Multani’s pockets, two cellular phones in the rental vehicle, and the marijuana grinder with a few flakes of something sealed inside which he located inside a Louis Vuitton bag in the car. [ 66 ] In assessing both the subjective and objective grounds for Mr. Multani’s arrest for possession of marijuana for the purpose of trafficking it is important, in my view, to keep in mind the following:

a) Mr. Multani was randomly selected by Constable Kornicki for a roadside sobriety check on August 18, 2015. Mr. Multani was not the subject of a drug investigation when he was pulled over that night;

b) There is no evidence that once identified, Mr. Multani was known by Constable Kornicki to be associated with the drug trade;

c) There is no evidence of any suspicious activities or possible drug transactions that supported Constable Kornicki’s decision to arrest Mr. Multani for possession of marijuana for the purpose of trafficking;

d) The cellular phones found in the rental vehicle were not ringing consistently or at all. In fact there is no evidence that either cellular phone rang during the evening of August 18, 2015 or during the three-day remand following Mr. Multani’s telephone bail hearing;

e) Constable Kornicki did not find any drugs when he searched the rental vehicle. While it is true that he found the marijuana grinder, there is no evidence that the flakes in the grinder were marijuana. Regardless, Constable Kornicki’s search of the rental car did not turn up any quantity of marijuana that would support an arrest for the possession of marijuana for the purpose of trafficking. [ 67 ] Constable Kornicki testified that in his experience he is aware that drug traffickers will conceal their supply of drugs inside their rectum. But there is nothing flowing from Constable Kornicki’s search of Mr.

Multani or his search of the rental car that would raise a credibly based probability that Mr. Multani had secreted drugs inside of his body cavity. [ 68 ] First, there is nothing about the circumstances of Mr. Multani or the evidence discovered in the search of Mr. Multani or the search of the rental car to raise even a suspicion that he was trafficking in drugs. Constable Kornicki testified that the two cellular phones were suspicious to him. Yet he conceded in cross-examination that he has two cellular phones - one for work and one for personal use. And the fact that Mr.

Multani’s cellular phones were not receiving incoming calls significantly diminishes the presence of the two phones as an indication that Mr. Multani was trafficking in drugs. [ 69 ] Second, Constable Kornicki’s evidence that when he approached the rental vehicle he saw Mr. Multani’s hands behind his back and inside his pants is not reliable. While I have no doubt that Constable Kornicki observed Mr. Multani’s hands behind his back, in answer to the court’s questions Constable Kornicki was unable to state that he could see Mr. Multani’s hands inside his pants. All that Constable Kornicki saw was Mr.

Multani move his hands from behind his back to in front of him as Constable Kornicki arrived at the

driver’s window of the rental car. If Constable Kornicki felt that this movement of Mr. Multani’s hands was sufficiently suspicious tosuggest that he might be hiding drugs down the back of his pants or inside his body cavity, then Constable Kornicki’s decision to leaveMr. Multani alone in the rental car while he took Mr. Multani’s identification back to his police cruiser makes no sense. [70] Third, Constable Kornicki testified that his discovery of the bundle of cash, the two cellular phones, and the hand sanitizer gavethe officer reasonable subjective grounds to believe that Mr.

Multani was trafficking in marijuana. He says that he formed thatsubjective belief despite the fact that he found no drugs present that could be trafficked, the fact that the cellular phones were not ringing,the fact that he did not observe Mr. Multani involved in any kind of suspicious activity that could be viewed as conducting drugtransactions, and the fact that neither Mr. Multani nor the rental car were on the police radar as associated with drug transactions. [71] So, while it may be that Constable Kornicki formed the subjective grounds to believe that Mr.

Multani was trafficking inmarijuana, I cannot accept that there were objective grounds for Mr. Multani’s arrest for trafficking marijuana on August 18, 2015. [72] An assessment of the objective grounds for a warrantless arrest is very factually sensitive. Comparing the factualcircumstances in one case with another in the course of assessing the objective grounds for the arrest is often of little assistance. Havingsaid that, I found the decision of Mr. Justice Rogers in R. v.

Dhami, 2016 BCSC 2341 and the decision of Madam Justice Gray in R. v.Pope, 2015 BCSC 2391 to be of some assistance in assessing the objective grounds for Constable Kornicki’s arrest of Mr. Multani forthe possession of marijuana for the purpose of trafficking on August 18, 2015. [73] In R. v. Dhami, Mr. Justice Rogers considered a defence application for a ruling that the arrest of Mr. Dhami was unlawful onthe basis that the Crown failed to establish that there were objectively reasonable grounds for Mr. Dhami’s arrest. In reviewing the factof the case before him, Mr.

Justice Rogers noted that the police considered Mr. Dhami to be connected with a drug trafficker operatingout of an apartment in Kelowna. While conducting surveillance on this apartment in the course of a drug investigation, the policeobserved Mr. Dhami as a passenger inside of a vehicle seen leaving the apartment building. [74] When the vehicle in which Mr. Dhami was travelling failed to signal a right turn, the police following the vehicle decided topull over the vehicle for a traffic violation. The vehicle did not pull over immediately; rather, the driver took 10 - 15 seconds to stop thecar.

While speaking with the occupants of the vehicle, one of the police officers noticed a marijuana cigarette in plain view near whereMr. Dhami was sitting. As well, the officer noticed a white glob of lotion on Mr. Dhami’s chin. In searching the vehicle the policelocated a jar of lotion that appeared to have the signs of a recent finger scoop of the lotion taken from it. [75] One of the officers at the scene had been involved in a drug arrest and investigation a month earlier where the person underinvestigation had used Vaseline to assist in inserting drugs into his rectum.

The combination of the delay in the vehicle pulling to theside of the road, the presence of the marijuana cigarette in plain view, the jar of lotion and the evidence of the recent scoop, the presenceof a glob of lotion on Mr. Dhami’s chin, and intelligence connecting Mr. Dhami to the drug trafficker’s operation in Kelowna, allcoalesced in the police officer’s mind to form the subjective belief that Mr. Dhami had secreted drugs in his rectum. [76] Justice Rogers concludes that there were not objectively reasonable grounds to arrest Mr. Dhami for possession of drugs for thepurpose of trafficking.

When looking at the circumstances of Mr. Dhami’s arrest, they are much more compelling than thecircumstances of Mr. Multani’s arrest, if for no other reason than in the case of Mr. Dhami he was known to be affiliated with anotherdrug trafficker and he was observed leaving an apartment building that was under surveillance in the course of a major drug investigationinto a second drug trafficker. [77] At paragraph 94 of his decision, Mr. Justice Rogers says that without some evidence that the occupants of the vehicle weretrafficking in drugs, the mere presence of the lotion in the car, Mr.

Dhami’s rubbing his hands together and finding a glob of the lotion onhis chin, were not sufficient to ground a reasonable belief that Mr. Dhami had secreted drugs in his rectum. I am of the view that thesame observation and conclusion is apt with respect to Mr. Multani. [78] In R. v.

Pope, Madam Justice Gray provides a thorough and helpful analysis of a number of cases in which she reviews thecircumstances in which the judges reached a conclusion that the Crown had, or had not, established objectively reasonable grounds forthe arrest of the different accused. [79] In the case before her, Madam Justice Gray had to consider whether the Crown had established objectively reasonable groundsfor the arrest of Ms. Pope in circumstances where the police had observed the accused involved in two suspicious interactions with twodifferent individuals. In the facts before her, Justice Gray notes that Ms.

Pope was not known to the drug investigators, her vehicle wasnot known to drug investigators, the investigators did not actually observe a transaction between Ms. Pope and the two other individuals,and that the area where the suspected drug transactions occurred was not an area known for drug activity. [80] In deciding that the police did not have objectively reasonable grounds to arrest Ms. Pope, Justice Gray concludes that theofficers were acting on a hunch or suspicion but not on a credibly based probability that a crime had been committed. [81] Again, in my view, the case against Ms.

Pope was considerably stronger than the case against Mr. Multani. I am of the viewthat at the time of his arrest of Mr. Multani, Constable Kornicki had a hunch or a suspicion that Mr. Multani may have secreted drugsinside his rectum, but he did not have a belief rooted in a credibly based probability to that effect. [82] On the basis of the foregoing, I find that Constable Kornicki did not have reasonable grounds to arrest Mr. Multani for thepossession of marijuana for the purpose of trafficking when he re-arrested Mr. Multani on August 18, 2015. Having determined that thearrest of Mr.

Multani was an unlawful arrest, it follows that the bed pan vigil search of Mr. Multani was not a lawful search and thusviolated his

section 8 right to be free from an unreasonable search (R. v. Caslake and R. v. Grant). [83] While the Crown argued that a bed pan vigil is not a search covered by

section 8 of the Charter, I disagree on the basis of R. v.Poirier, 2016 ONCA 582 at paras. 11 and 48-49 and R. v. Monney, (SCC), [1999] 1 S.C.R. 652. [84] In the result, I find that the arrest of Mr. Multani for possession of marijuana for the purpose of trafficking was unlawful and

the bed pan vigil search conducted of him following that arrest was unlawful. [ 85 ] The parties elected to argue the lawfulness of Mr. Multani’s arrest and search and sought my ruling on those issues before embarking on any arguments as to whether the evidence seized through the bed pan vigil search should be excluded. In light of my ruling, if the parties wish to

schedule additional court time to advance those arguments they may do so through the Judicial Case Managers. The Honourable Regional Administrative Judge R. Hamilton Provincial Court of British Columbia