R. v. Francis and Gill Date:, 2015 BCPC 150

Citation: R. v. Francis and Gill Date: 20150429 2015 BCPC 0150 File No: 198910-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. KADEEM FRANCIS and AMRITBIR GILL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J.I.S. SUTHERLAND Counsel for the Crown: C. Stanley Counsel for the Defendant: D. Muldoon, C. Muldoon Place of Hearing: Surrey , B.C.

Dates of Hearing: October 10, 2014; January 6, 7, March 25, April 15, 2015 Date of Judgment: April 29, 2015 INTRODUCTION [ 1 ] Mr. Francis and Mr. Gill are charged with unlawfully trafficking cocaine on September 18, 2012. Mr. Gill is also charged with 2 additional counts: possession for the purpose of trafficking in cocaine and possession for the purpose of trafficking in heroin. The charges stem from a police undercover investigation into a dial-a-dope operation. [ 2 ] Mr. Gill and Mr. Francis challenge the lawfulness of their arrests and the searches of them consequent upon their arrests. They assert that there were insufficient grounds to arrest them resulting in a violation of their

section 9 Charter right protecting them against arbitrary detention. They further argue that the searches that followed, derived from unlawful arrests, were therefore unlawful thus violating their

section 8 Charter right to be free from unreasonable search and seizure. The remedy Mr. Gill and Mr. Francis seek is the exclusion of the evidence found in the searches or derivative of the searches and their arrest. [ 3 ] The Crown takes the position that the police had sufficient grounds to arrest Mr. Gill and Mr. Francis, and therefore, any evidence found in the searches incidental to their arrest, or derivative thereof, ought to be admitted into the trial. [ 4 ] There is no issue an offence was committed when drugs were sold to the undercover officer.

The issue is whether the police had reasonable grounds to believe it was the accused Francis and Gill who sold the officer the drugs when they were arrested. In the alternative, the Crown argues the police had reasonable grounds to believe Gill and Francis were in the process of committing an offence when they were arrested. THE EVIDENCE Sgt. Desrosiers [ 5 ] On September 18, 2012, Sgt. Desrosiers was a member of the Surrey Drug Section. A project team from that

section commenced an investigation into a phone number they had information would lead to a supplier of drugs. They believed the supplier was part of what is colloquially known as a “dial-a-dope” distribution operation. The project coordinator was Cpl. Sielsky [ 6 ] It was determined by the team that they would use an undercover police officer (“UCO”) to attempt to purchase rock cocaine by calling the phone number. Sgt. Desrosiers provided the UCO with $40 to make the purchase. The money was in two $20 bills and the police reported the serial numbers of the bills. [ 7 ] Sgt.

Desrosiers was in charge of ensuring the safety and security of the UCO and worked with a cover team in that regard. [ 8 ] Later that morning Sgt. Desrosiers was informed by the UCO that he called the phone number and had made arrangements to meet someone to purchase $40 worth of rock cocaine. [ 9 ] The meeting took place in a store parking lot around noon. At 12:01 p.m. Constable Gallos broadcast on a common radio channel accessible to members of the project team that the UCO was at the passenger side window of a white Chevrolet Cavalier with B.C. license number 905 TSF. Sgt.

Desrosiers could not see the UCO or the car from her vantage point. [ 10 ] After the meeting with the UCO, the vehicle drove away before the police could stop it. [ 11 ] Shortly thereafter, Sgt. Desrosiers picked up the UCO and he debriefed her. She said the purpose of the debrief was to confirm the transaction took place and determine whether there was anything the cover team needed to do immediately to ensure the UCO’s safety.

She was told by the UCO the following: • There were 2 people in the vehicle, a driver and passenger; • The driver handed him the rock cocaine, in exchange he handed the driver the $40; • The occupants of the car asked him lots of questions and asked that he pull up his shirt. [ 12 ] Sgt. Desrosiers did not ask him for a description of the individuals and she did not recall being given one. She could not say whether she would have broadcast a description of the individuals in the car if she had been given descriptions. [ 13 ] Approximately an hour and a half later, at 1:31 p.m., Sgt.

Desrosiers and the UCO were driving near 98A Avenue and King George Highway in Surrey. The UCO told Sgt. Desrosiers that he saw the white Cavalier and said words to the effect that the driver looked like the same guy, or similar to the guy, that he had dealt with earlier. Sgt. Desrosiers could not recall the exact words the UCO used. [ 14 ] Sgt. Desrosiers testified that she then broadcast that information to the cover team. In particular that the UCO just saw the vehicle, the vehicle licence number, and that the driver looked the same as the person he dealt with that morning.

[ 15 ] Sgt. Desrosier testified that she learned over the police radio that the vehicle had been stopped and the occupants arrested. She could not recall whether she made the direction to stop the vehicle and arrest the occupants. She said if she gave a direction, it was based on what the UCO said about the identity of the driver, the one and a half hour time lapse between when the UCO dealt with the driver and subsequently spotting the car, and the fact it was the same car. She said everyone on the project team knew the significance of the vehicle and that it needed to be stopped and the occupants arrested.

She said it is possible nobody specifically stated it because it was obvious. She could not recall who decided whether it should be a “hard” take down but it was not her or the UCO. [ 16 ] Sgt. Desrosiers testified that she made notes. Her note of the UCO’s observation at 1:31 p.m. read, “looked like same driver as this morning.” There was no mention that the UCO said anything about a 2 nd person in the vehicle. The notes indicated an arrest was made at 1:35 p.m. [ 17 ] Sgt. Desrosiers said her only other involvement was providing the UCO with an opportunity to identify the people arrested.

She said she did not remember how that was done. She could not comment on the opportunity the UCO had to view the arrested people. The UCO [ 18 ] On September 18, 2012, the UCO was a member of the Surrey RCMP drug section. By the time of this investigation, he had been involved in approximately 200 drug investigations and 75 investigations working undercover. His undercover officer training caused him to focus on issues pertaining to the identification of individuals of interest during his investigations. In particular, their distinctive characteristics like scars, tattoos, other features, and descriptions.

He did not describe facial hair as being distinctive because it can be changed, but he did say he notes any facial hair he observes. [ 19 ] The UCO testified that he was directed by Sgt. Desrosiers to call a phone number suspected to lead to the suppliers of drugs from a dial-a-dope operation. He called the number and arranged a drug transaction at a store parking lot. He relayed the information to Sgt. Desrosiers and the two of them, along with a cover team, travelled to the parking lot. [ 20 ] At the parking lot the UCO saw a white car pull into the parking lot and stop.

He walked to the passenger side window and leaned in so that he was approximately 2 feet from the passenger’s face and 4 feet from the driver’s. He observed the driver and the passenger. He and the driver introduced themselves. The passenger asked him what he needed to which the UCO replied “forty hard.” There was some discussion back and forth culminating in the UCO giving the driver $40 and the driver handing him crack cocaine.

There was more discussion between the three of them before they parted company. [ 21 ] The transaction lasted between 1-1:30 minutes. [ 22 ] The UCO gave the predetermined signal that the deal had been completed. He returned to Sgt. Desrosiers’ vehicle and told her what had transpired. He did not remember whether he provided her with a description of the driver and passenger. He then started to type his notes into his cell phone.

He heard over the radio that the surveillance team lost the vehicle. [ 23 ] The UCO described the driver as being an East Indian male, 20 to 25 years old, with brown eyes, short dark brown hair, medium build (he could not provide a height and weight as the driver was seated), and wearing a light-coloured t-shirt and black sweatpants. The UCO conceded in cross-examination that his description was generic, and that many people in Surrey, perhaps thousands, fit that description. [ 24 ] The UCO did not note any facial hair, scars, tattoos, or other unique characteristics of the driver.

A Prisoner Report relating to Mr. Gill, whom the Crown allege was the driver, was tendered in evidence. The Prisoner Report describes Mr. Gill’s appearance that day. It specifies that he was wearing a white t-shirt and had a tattoo on his left forearm. Mr. Gill displayed the tattoo to the UCO in court. On the inside of his left forearm was approximately a 6” x 1” sized tattoo. The UCO agreed he would have seen the driver’s forearms because he was wearing a short sleeve shirt; and therefore, Mr. Gill’s tattoo would have been obvious to him given Mr.

Gill was purportedly sitting behind the steering wheel of the vehicle. [ 25 ] The booking photo in the Prisoner Report also shows Mr. Gill having a distinct goatee and crooked nose. The UCO agreed he had nothing in his notes and did not recall observing the driver having facial hair or a distinctly crooked nose. He said he would have recorded those observations in his notes if he saw them. The UCO stood 4 feet from Mr.

Gill in court and agreed he also had a scar in the middle of his forehead although there is no evidence of when he incurred the scar. [ 26 ] The UCO described the passenger as being a black male, 20 to 25 years old, wearing a black baseball cap, short dark hair, and medium build (again he could not provide a height and weight estimate because the passenger was seated). The Prisoner Report for the passenger, Mr. Francis, was tendered in evidence. The booking photo of Mr.

Francis contained in the Prisoner Report shows on the day of his arrest he had facial hair in the configuration of a chinstrap like short beard. [ 27 ] The UCO said he had no previous encounters with the driver or passenger before. [ 28 ] The UCO testified that at approximately 1:30 p.m. he was driving with Sgt. Desrosiers when he saw a white vehicle similar to the one involved in the drug transaction that morning. He could not say the vehicle was the same vehicle given he did not see the licence plate. The vehicle was approaching them and made a right turn in front of them.

The UCO testified that he got a clear unobstructed view of the driver for about 4 seconds as the vehicle slowed to make the right turn. He concluded the driver was the same person he obtained the drugs from that morning. [ 29 ] The UCO conceded there was a passenger in the vehicle but he could not tell if it was the same person who was in the vehicle that morning because he had a poor vantage point to see the passenger when the vehicle made the turn. [ 30 ] The UCO believes he told Sgt.

Desrosiers it was the same person driving although in cross-examination he said it was possible he told her the driver looked similar. He recalls Sgt. Desrosiers being on the radio to the surveillance team advising them the vehicle had been located. He cannot recall precisely what she said.

[31] Three minutes later he and Sgt. Desrosiers came upon the arrest of the occupants of the vehicle. He saw Cpl. Sielsky standingwith the driver and Constable Martin standing with the passenger. The driver and passenger were in handcuffs. According to the UCO,he and Sgt. Desrosiers stopped at the side of the road to see if the UCO could determine whether the passenger was the same person hesaw in the vehicle that morning. The UCO said he remained in the vehicle but had a clear unobstructed view of the faces of the people incustody from a vantage point of 15 to 20 feet away.

He concluded the person in Constable Martin’s custody was the passenger from thedrug transaction earlier that morning. [32] The UCO testified that between the drug transaction and seeing the individuals in custody he did not make any other calls ordeal with other suspects in any other investigations. Surveillance and Arrest Evidence [33] Constables Martin and Lucic were conducting surveillance together in the same car. They did not see the actual drugtransaction but were advised of it over the police radio at approximately 12:00 noon. They were also advised that there were two peoplein the car.

No descriptions of the people were given or at least the Constables could not recall descriptions being given and did not noteany. The car was described as a white Chevrolet Cavalier with BC Licence Number 905 TSF. They saw the white Cavalier shortly afterthe transaction when it picked up a third person in an underground parking lot near the transaction. They could not see the features ofthe third person, just that it was a male. According to Cst. Lucic all he could see is that there were three young males in the car. [34] Cst. Gallos was also conducting surveillance.

He observed a short interaction between the UCO and occupants of the car whomhe described as two dark-skinned males. He does not recall any descriptors of the males being broadcast. [35] The vehicle left the vicinity at a fast speed. Constables Martin and Lucic followed for a short period. They last saw the car at12:15 p.m. At no time did they see anyone get out. [36] At 1:30 p.m. the surveillance officers heard a broadcast over the radio. Cst. Martin recalled the broadcast being from the UCO,that the same vehicle and the same two males whom the UCO dealt with were seen outside of an apartment complex. Cst.

Lucic believedthe broadcast was from Sgt. Desrosiers to the effect that the car had been located and the occupants were around the vehicle. He couldnot recall whether she said the occupants were the same people the UCO dealt with. He did not note it had been said. Cst. Gallosrecalled the broadcast being from Sgt. Desrosiers that the vehicle had been located again near an apartment building and the address ofthe building.

He said more information may have been broadcast but this was all he could remember. [37] The officers were instructed to arrest the males although none of the officers identified who exactly made that direction. Cst.Lucic believed it was either Cst. Gallos or Cpl. Sielsky. Cst. Gallos testified it certainly was not him. Constables Lucic and Galostestified that it was their intention to arrest whoever was at the vehicle. Cst.

Lucic said that was his intention whether there were two orthree people, based on his belief they were the occupants of the vehicle. [38] The constables arrived at 1:34 p.m. and observed the car parked behind a large apartment building. Cst. Martin testified that thevehicle had the same licence number and description as the one they saw leaving the vicinity of the drug transaction. [39] There were two males later identified as the accused unloading tire rims from the car. Cst. Lucic arrested the accused Gill whowas standing at the driver’s side and Cst. Martin arrested the accused Francis at the passenger side.

The arrests were made less than aminute after the officers arrived. They made their arrests based on a belief formed from the radio broadcasts that Gill and Francis wereinvolved in the sale of drugs to the UCO at noon. Cst. Lucic could not remember whether he had his firearm drawn. [40] Cst. Lucic testified that Gill initially refused to put his hands behind his back when being arrested. He said Cst. Gallos told himthat he saw Gill throw a bag of drugs under the car. Cst. Lucic did not see him throw it but he did see a bag of drugs below the driver’sside door where Gill was standing. [41] Cst.

Gallos testified that when he arrived, Constables Martin and Lucic were already on the scene. He said Cst. Lucic wastrying to arrest Gill on the passenger side of the vehicle when he saw Gill throw a bag of drugs under the passenger side of the car. Hethen assisted Cst. Lucic take Gill to the ground as he was uncooperative, however, he said it was not a hard take down and he did nothave his firearm drawn. [42] Cst. Zeeman testified that he attended the arrest location and seized a bag of drugs under the passenger side rear door.

I amsatisfied there was only 1 bag of drugs found on the ground near the car. [43] A search of Gill’s pants revealed two cell phones, keys to the vehicle, and $40. A search of Francis turned up a cell phone, $15Canadian and $29 US. None of the buy money for the transaction with the UCO was found. LAW [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 andconducted in 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 reasonablegrounds to base the arrest, but those grounds must, in addition, be justifiable from an objective point of view.

That is to say, a reasonableperson with the same experience, training, knowledge, and skills as the officer making the observations must be able to conclude thatthere were indeed reasonable grounds for the arrest: R. v. Storrey, (SCC), [1990] S.C.J. No. 12; R. v. Luong, 2010BCCA 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. Were the accused’

section 8 and 9 Charter rights breached? [45] None of the officers involved in the arrest of the accused saw the drug transaction involving the UCO and they did not get ameaningful look at the occupants of the vehicle. [46] The police did not know what became of the occupants of the vehicle or the vehicle itself between the time they lost sight of itand moments before the arrest approximately 1 hour and 15 minutes later, other than that a third person was in the car and only two were

with it later. [ 47 ] The vehicle matched the one involved in the transaction. I do not find that is enough to effect an arrest of the occupants unless there are reasonable grounds to believe from both a subjective and objective standpoint that the occupants of the vehicle were the same people involved in the transaction with the UCO. The UCO was the only person who got a meaningful look at the occupants when the transaction took place. The arresting officers were relying on his observations.

It is the UCO’s observations of the identity of the people involved in the drug transaction and the people he saw later in the car that is critical. [ 48 ] Crown Counsel suggests that I should bear in mind that the UCO must not draw suspicion by staring or taking unnaturally long looks at the people he is dealing with in order to register all of the distinguishing features of those people.

I accept that he must not draw suspicion to himself but that does not lower the bar as to what amounts to reasonable grounds to believe the identities of the people arrested and the people involved in the drug transaction match. The inability to take a good long look does not lower the constitutional protections of citizens. [ 49 ] It was also asserted that the UCO had a reasonable opportunity to observe the driver at the time of the transaction and when he later saw the vehicle make the turn in front of him.

It is argued that this is particularly significant because the UCO is experienced and the importance of identifying those he is dealing with is something he is acutely aware of. Indeed the UCO testified that when he is dealing with people in an undercover capacity he is specifically looking for distinctive features of those people. This submission cuts both ways as will become apparent during the comparison of the description given of the driver’s appearance by the UCO and Mr.

Gill’s appearance. [ 50 ] The UCO described the driver of the vehicle with whom he did the drug transaction and whom the Crown asserts was Mr. Gill, in generic terms - East Indian male, 20 to 25 years old, brown eyes, short brown hair, medium build, white t-shirt, black sweatpants. The UCO conceded that the description fit perhaps thousands of people in Surrey. In my view, this concession was appropriate. No distinguishing features that would remove Mr. Gill from this pool of potentially thousands were articulated despite Mr.

Gill having a number of distinguishing characteristics that separated him from others of his age and race. [ 51 ] Those characteristics include the tattoo on the inside of his left forearm that the UCO agreed would likely have been apparent if Mr. Gill had been sitting behind the steering wheel in a t-shirt as alleged by the Crown. The goatee and crooked nose, apparent in the booking photo, are other obvious characteristics not noted by the UCO.

I give no weight to the presence of the scar given there is no evidence of whether it occurred before or after the offence date. [ 52 ] The UCO did not get a look at the passenger at all as the vehicle approached and turned in front of him and Sgt. Desrosiers over an hour and 15 minutes after the transaction. When the UCO and Sgt. Desrosiers drove by 3 minutes later, the passenger, Mr. Francis, had already been handcuffed and at least de facto arrested by Cst. Martin.

It is clear that the reason he was arrested was because he was presently at a car that had been involved in a drug transaction with the UCO over an hour earlier. This provides compelling evidence, in addition to that of Cst. Lucic, that the police intended to arrest whoever was associated with the car at the moment the police saw it again. [ 53 ] The Crown argues that to conclude there were less than reasonable grounds to arrest Mr. Gill and Mr.

Francis I would have to accept the possibility that the East Indian driver and black passenger the UCO dealt with were replaced by a different East Indian driver and black passenger in the hour and 15 minutes between when the vehicle was last seen and the arrest. I do not agree with that analysis. [ 54 ] The decision to arrest all the occupants of the vehicle was made when it was broadcast that the UCO identified a similar looking vehicle and the same or similar looking driver approximately an hour and a half after the transaction.

Indeed Constables Martin and Lucic moved in to effect the arrests as soon as they saw the vehicle and Mr. Gill and Mr. Francis close by. [ 55 ] When the vehicle was last seen after the transaction but prior to being relocated, there were three people in the vehicle. There is no suggestion that the third person seen getting into the vehicle after the transaction was involved in the transaction.

The driver fit a generic description and the passenger was described. [ 56 ] When the UCO saw the vehicle again, and made the comments about the driver and vehicle leading to the arrests, there were only two people in the vehicle. The driver fit the description of the trafficker he dealt with earlier only generically and the UCO did not get a look at the passenger at all to determine whether he even remotely resembled the passenger he dealt with earlier. Was the passenger the third person who got into the vehicle or someone completely different?

At the time of arrest they did not know and do not appear to have asked themselves the question. The decision was made to arrest all occupants of the vehicle present when the vehicle was relocated. [ 57 ] The generically matching driver in the same vehicle as the traffickers could give rise to a reasonable suspicion justifying an investigative detention.

However, in my view, the absence of evidence removing the driver from the generic pool of potentially thousands fitting the same description even when coupled with all the other evidence, does not amount to a reasonable probability that he was involved in the earlier transaction; and therefore, reasonable grounds to arrest. [ 58 ] I also cannot conclude on the whole of the evidence, including the expert evidence that there were reasonable grounds to arrest the occupants of the vehicle based on s. 495(1)(b) - that at the time of the arrest there were reasonable grounds to believe they were in the process of committing an offence. [ 59 ] The police called a phone number and arranged a drug deal.

It was the same vehicle seen later that showed up with two occupants. But at the time of arrest, approximately an hour and a half had elapsed and the police did not know what the vehicle and its occupants had been doing the previous hour and 15 minutes as it had been lost to surveillance. By the time they saw it again, there was nothing suspicious observed. After the vehicle passed by the UCO and Sgt. Desrosiers, it was located parked at an apartment building and the occupants unloading tire rims. [ 60 ] I conclude the arrests of Mr. Gill and Mr.

Francis fall into the prohibited conduct described in Whitaker of arresting first and

then determining whether they were involved in the offence. In my view, their arrests were made on insufficient grounds and consequently their respective s. 9 Charter rights to have been violated. Any search flowing from their arrest was also unconstitutional as violating their respective

section 8 Charter right given there was not a lawful arrest to support it. [ 61 ] Having found breaches of sections 8 and 9 of the Charter, it is necessary to determine pursuant to section 24(2) of the Charter, whether the evidence sought to be excluded would bring the administration of justice into disrepute if it was admitted. By agreement of the parties, argument on the admission or exclusion of the evidence has been adjourned. ________________________________ The Honourable Judge J.I.S. Sutherland Provincial Court of British Columbia