R. v. Fuelkell Date:, 2015 BCPC 30

Citation: R. v. Fuelkell Date: 20150130 2015 BCPC 0030 File No: 197557-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRANDEN JAMES FUELKELL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE R.D. MILLER Counsel for the Federal Crown: C. Stanley Counsel for the Defendant: G. Jose Place of Hearing: Surrey , B.C. Dates of Hearing: March 13, 14, July 11, 2014 Date of Judgment: January 30, 2015

[ 1 ] THE COURT : This is a voir dire decision, a decision subsequent to a voir dire conducted to determine the admissibility of evidence that flowed from a police officer (Cst. Lucic) stopping a car in which the defendant was a passenger. I heard from two Crown witnesses on this voir dire (Cst. Lucic and Cst. Sangha), as well as the defendant.

As this is a voir dire to determine if there were breaches of the defendant's rights under the Canadian Charter of Rights and Freedoms , the degree of proof required is "proven on the balance of probabilities," though in respect of the warrantless searches here, the onus is on the Crown. [ 2 ] I have concluded that I accept the evidence of Cst. Lucic and reject the evidence of the defendant.

I arrived at that conclusion after reviewing the content of the testimony of Lucic and the defendant and reminding myself of the manner in which each of them testified before me and, to a lesser degree, reminded myself of how the testimony of Cst. Sangha confirmed or contradicted the testimony of either of them. [ 3 ] The content of Cst. Lucic's testimony was quite clear, consistent and logical. He made what were apparently comprehensive notes and he possessed a clear and comprehensive memory. Put another way, he showed himself to be a good recorder and reporter of the events surrounding his investigation.

It was obvious that he knew the important features of his investigation and made notes, both written and mental, of those important features. His examination and cross-examination were extensive and intensive and, on many occasions, repetitive. By "repetitive" I mean he was asked on several occasions to explain what he had done and why he had done it.

Although sometimes his answers were not perfectly consistent from one time to the other, the overwhelming impression was left with me that he had a very good recollection of this investigation and that recollection was consistent with the notes that he wrote at the time. When he did not remember a detail, he said so; he did not try to "fill in the gaps." [ 4 ] Cst. Sangha was not a lot of help. She seemed to have little recall and few notes. Basically, corroborative of Cst. Lucic, she added little or nothing to those parts of his testimony that are in dispute. [ 5 ] The defendant was not a good witness.

His memory was clearly not as good as the officer's and, of course, he made no notes. Something that, while certainly not determinative, was noticed by me when assessing the defendant's evidence and his credibility was the way he described the words of arrest used by Cst. Lucic. The defendant said on more than one occasion that these words were very clear in his memory and I think he said "burned in" at one point. He said Lucic told him he was under arrest for the investigation of "narcotics". He said Lucic used the word "narcotics" both in chief and in cross. Cst.

Lucic, of course, said he used the word "drugs" or "controlled substances." The word "narcotics" has not been used in the world of criminal justice for some 17 years since the Narcotic Control Act was repealed and the Controlled Drugs and Substances Act replaced it. It is clear and obvious to me that Cst. Lucic did not refer to "narcotics" when he arrested the accused.

This misuse of the word "narcotics" would be of little or no consequence to me, but for the fact that the accused, on at least two occasions, stressed how certain he was and how vividly those words were burned into his memory of October the 30th, 2012. Clearly, he was telling me something that he thought would enhance his credibility before me, and whether it was true or not was of little concern. [ 6 ] I also found the accused's testimony about these events revealed a patchy and sometimes unreliable memory.

For instance, one time when he asked whether he had asked for privacy to talk to his lawyer, he said, "That doesn't sound like something I'd do." Also, it is clear that if Cst. Lucic was going to fabricate his story about the strip search, he would not have included the details about having the accused remove his pants and underpants and examine his genitalia and buttocks, especially not after the drugs had been given up by the accused.

So when the accused says that never happened, he is demonstrating to me that he just does not recall these details, even though they are significant. [ 7 ] As stated earlier, when reaching a decision about the facts on a voir dire such as this, the degree of proof required is on the balance of probabilities, naturally, the accused's cross-examination and arguments were meant to cast out. While they were definitely taken into account by me, I have concluded I believe what Cst. Lucic told me but not what the defendant told me. Accordingly, I accept what Cst.

Lucic testified to as forming the facts that I accept and upon which I will base my analysis of his legal arguments. [ 8 ] Mr. Jose, on behalf of the accused, has presented a number of well-presented and well-argued arguments about what he says were breaches of his client's Charter rights and what I should do about those breaches, if I conclude they occurred. My conclusion about the facts is determinative of many of those arguments. 1. The vehicle stop. My conclusion is that I believe Cst.

Lucic when he testified that he observed the vehicle in which the accused was a passenger travelling at a speed of 90 to 100 kilometres per hour in an area where the legal speed limit was 50 kilometres per hour. I believed him when he said he saw the vehicle being driven erratically, including pulling out to pass other vehicles by crossing a solid line and failing to signal a lane change. All of this is sufficient to legally authorize his requiring the vehicle to pull over and stop. The law is clear that, therefore, the accused was not unlawfully detained.

The fact that Lucic suspected drug offences might also be being committed does not alter the lawfulness of the stop. 2. Embarking upon a "drug investigation" which included the asking of the accused to get out of the car was said by counsel to be an improper detention. Here, the officer was a police officer with seven years' experience and of that seven years, three had been spent investigating drug offences. He described the constellation of observations that led him to begin a drug investigation and to ask the accused to step outside the car.

This included the state of the vehicle's interior, the fact that neither the driver nor the passenger (the accused) had identification, neither party was the registered owner of the car and the driver could not tell the officer the owner's last name; the accused had two cell phones and the ringing of one of them seemed to make the accused nervous (his hand apparently shook) and, finally (and in my view fairly significantly), the fact that this officer had stopped this same car only a week before and found illegal drugs.

Defence counsel urged me to conclude that these observations were insufficient to justify the officer's actions. I disagree. I accept that the constellation of observations described by Lucic gave him the grounds to expand his investigation and asked the two occupants to get out of the car. When the driver exited the vehicle (again, I accept as a fact what the officer told me), Lucic saw a rock of crack cocaine in the console between the two occupants. 3. The arrest of the accused. The so-called deficient advice to him about his right to counsel, the search of the accused resulting

in the finding of cash and the "search" of the cell phone the officer saw the accused shut off and put in the passenger side pocket, are allsaid to be breaches of the accused's rights under the Charter. I disagree. Given my findings of fact about the events prior to asking thedriver and passenger to get out of the car, the officer seeing the illicit drug in a cup holder in the console separating the two men, issufficient to allow him to form a proper conclusion that they were both in possession of that illegal substance and basing his arrest ofthem upon that conclusion.

Further, that conclusion, and that arrest, lead to a lawful seizing and turning on of the phone he had seen theaccused shut off and place in the side pocket. When the phone was turned on, he saw a text indicating that the phone was being used inthe trafficking of drugs. Then it was legitimate to answer it when it rang and record in his notes what was said by the callers. Defencecounsel says I should disbelieve the officer when he says he saw that text.

I am told that because it was not in his notes and was onlymentioned in cross-examination after an overnight adjournment that I should conclude it was a concocted memory. I disagree. I think itis well within ordinary experience to have details of an event that were previously forgotten come back to us when our attention is drawnto that event in a specific way and when we have had overnight to contemplate. Here, I accept the officer's testimony on that point. Iwas also told that turning on the phone in question was a search of it not warranted by the circumstances. Again, however, I disagree.

The officer explained how such phones in these circumstances frequently contain further evidence of possession of drugs. I accept thatin the circumstances facing this officer, it was reasonable to turn on the cell phone he had seen the accused dealing with and puttingaway. I have also now had the opportunity to consider the Supreme Court of Canada decision of Fearon. In it, the Supreme Court ofCanada confirms the right to search a cell phone upon arrest. It sets out four "safeguards" that must be met. In the case before me, it isobvious the first three of those safeguards have been met.

The fourth, detailed notes, is a bit troublesome. However, as this search tookplace before the Supreme Court of Canada decided Fearon and, though the notes might not be "detailed," there are notes. I am preparedto conclude that this fourth safeguard was complied with. In

summary, the "search" of this phone in these circumstances did not violates. 8 of the Charter. 3(

a) Was the accused properly advised of his right to counsel? It should be noted that when Cst. Lucic informed them that he wasdetaining them for a drug investigation, he immediately told them to get out of the car and when they did (or at least when the driver did)Cst. Lucic immediately saw the rock of cocaine in the cup holder in the console and immediately told them they were under arrest andthat they were advised of their right to counsel.

There was confusion between Lucic and Sangha as to who actually told the accused ofhis right to counsel but even the accused confirms that it was done upon arrest and that the options were discussed. I am satisfied thatthere was no breach of s. 10 of the Charter. 4. After the accused and the driver were arrested and the car searched, Lucic took the two males back to the detachment with theintention of doing a "full search" of both of them.

He said he intended to do a strip search because of what he had observed and found(including the texts and phone calls) leading him to believe that the accused was engaged in drug dealing and was concealing drugs inaddition to the rock cocaine found in the car. In addition to what he observed on the day in the question, the officer said he also relied inpart on his experience with the individual he had arrested a week earlier in that same car. That individual had secreted illegal drugsdown his pants. The governing authority is R. v. Golden, 2001 SCC 83 , [2001] SCJ No. 81.

The court there was clear thatgiven the nature and intrusiveness of a strip search "a higher degree of justification" is required. The court stated that a strip search canonly be justified as incidental to arrest if that arrest was lawful, as I concluded it was here, it must be related to the reasons for arrest, andthat again is clearly the case here; the arrest was for so-called possession for the purpose of trafficking and the search was to beconducted to see if the accused had drugs on his person.

The Crown must also establish "they have reasonable and probable grounds forconcluding that the strip search is necessary in the particular circumstances of the arrest." Here, the officer had reasonable and probablegrounds to believe that this accused was involved in a so-called dial-a-dope drug trafficking operation. He knew from past experiencethat such people frequently secreted the product down their pants (15 of 20 such searches produced drugs) and the week before someonehe had arrested in this same car had been discovered to have drugs down his pants.

It seems to me that this constellation of knowledgeand observations justified the proposed search. The question then turns to whether the way the search was to be conducted wasreasonable. Clearly, it was. All the steps and conditions specified by the court in the Golden decision were met here. It was to beconducted at the police station by a single male officer who has obtained approval from his supervisor. It was to be in private, it wasensured that he would not be completely undressed at any time and there would be no physical contact. In

summary, I have concludedthat the observation of Lucic (including the events of the week prior) were sufficient to justify the so-called strip search and the searchwas to be conducted in a reasonable way. However, the facts of the "search" here are a bit unusual and must be taken into account byme. There was no strip search that resulted in the obtaining of evidence.

The officer told the accused he was going to require him toremove his clothing in private to be searched but when he told the accused that, the accused admitted he had drugs and retrieved a baggyof what turned out to be cocaine and heroin from the front of his pants. According to Lucic but denied by the accused, the officer thenconducted an actual strip search. I accept that happened, despite the accused's denial. However, that actual search was after the drugswere found.

If I am wrong about the circumstances facing the officer justifying the intended strip search, I must consider theapplicability of s. 24(2) as that subsection has been defined by the Supreme Court of Canada in R. v. Grant and related cases. I first mustconsider the seriousness of the Charter-infringing state conduct.

Here, I accept the seriousness of an intended act is less than that of acompleted act, except that an unauthorized strip search would be a serious breach but here, what was intended, complying as it does withall the "rules" set out in the Golden case was to be as reasonable as possible in the circumstances. Then I must look at the impact thebreach had on the interests of the accused. It would have been correctly argued that invading the accused's privacy in the intendedmanner would have been significant.

However, that did not happen until after the drugs were found and the degree of that impact can beassessed in part by the observation that the accused seemed so unaffected by it that he has now forgotten it even took place. I also musttake into account society's interests in having this real evidence admitted at a drug trafficking trial. Considering all those things plus allthe other circumstances surrounding this investigation and arrest, I am satisfied that excluding this evidence would tend to bring theadministration of justice into disrepute.

So in these circumstances, I am satisfied the officer's actions were justified and that the evidenceproduced by the accused from his pants should be admitted in evidence. [9] In

summary then, I have concluded that all the evidence sought to be admitted by the Crown was not obtained in violation ofthe accused's Charter rights and is, therefore, admissible. (RULING CONCLUDED)