R. v. Fast, 2020 BCPC 256

Citation: R. v. Fast 2020 BCPC 256 Date: 20201216 File No: 20105-2-C Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEREK ERNEST ALLEN FAST ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J. P. MACCARTHY Counsel for the Crown: T. J. Corsi Counsel for the Defendant: D. J. McKay Place of Hearing: Colwood, B.C. Date of Hearing: November 5 & 6, 2019 and November 10, 2020 Date of Judgment: December 16, 2020 I. Introduction [ 1 ] THE COURT: Derek Ernest Allen Fast is charged by way of indictment and is being tried on five counts of possession for the purposes of trafficking in fentanyl, methamphetamine, cocaine, heroin/fentanyl mixture, and buprenorphine.

[ 2 ] The charges arose out of a July 19, 2018, call to the West Shore Detachment of the RCMP by the operator of a gated mini storage complex in the City of Langford, British Columbia (the "Mini Storage Complex"). [ 3 ] The report to the RCMP was made because of the operator's discovery of a non-responsive individual, still breathing, but slumped over the steering wheel while occupying the driver's seat of a Dodge Durango motor vehicle (the "Vehicle"), which was stopped at the rear of the Mini Storage Complex. That individual turned out to be Mr.

Fast (hereinafter the "Accused"). [ 4 ] Upon the arrival of dispatched RCMP member, Constable Kara Martin, the Accused was initially detained under the Motor Vehicle Act arising out of a suspicion that the Accused was impaired by alcohol and therefore purportedly subject to a roadside prohibition. [ 5 ] The Accused was then arrested for prohibited driving, following which both the Accused and the Vehicle were searched. A search of the Accused was conducted at the scene in the Mini Storage Complex, by Constable Elyse Patten, who was attending in a back-up role for Constable Martin.

Constable Patten also seized a wallet from the Accused and conducted a brief search of the wallet. The illicit drugs, being the subject matter of the charges, were observed in the rear cargo area of the Vehicle after a search by Constable Patten. Shortly thereafter, Constable Martin arrested the Accused for drug impaired driving. [ 6 ] A subsequent search of the Vehicle was conducted at the West Shore RCMP detachment by Constables Martin and Patten, after the Vehicle was impounded and then towed there from the Mini Storage Complex.

Following the search of the Vehicle at the Mini Storage Compound, Constable Martin then arrested the Accused under the provisions of the Criminal Code for impaired driving. [ 7 ] All searches were conducted without a warrant. [ 8 ] Defence submits that a number of violations of the Accused's guaranteed rights under the Charter of Rights and Freedoms ,

Part 1 of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK) , 1982, C.11 , (the " Charter "). [ 9 ] If it is established that the Accused's Charter rights were violated, then this court will have to determine whether the admission of the evidence into the trial proper would bring the administration of justice into disrepute, all in connection with and pursuant to s. 24(2) of the Charter . [ 10 ] An important factual issue has arisen. Is the Mini Storage Complex a “highway” within the meaning of the Motor Vehicle Act, 1996 S.B.C., c. 318 and amendments thereto (the " Motor Vehicle Act " or " MVA ")? II. Issues on the Voir Dire [ 11 ] The issues on the voir dire are as follows:

a) Did Constable Martin, upon initial detention, fail to provide the Accused with his Charter rights under s. 10(a) (to be informed promptly for the reasons therefor) and s. 10(

b) of the Charter (to retain and instruct counsel without delay and to be informed of that right)?

b) Upon the arrest of the Accused for driving while prohibited, did Constable Martin infringe the Accused's Charter right to contact counsel without delay?

c) Was Constable Patten's search of the rear cargo area of the Vehicle at the scene in the Mini Storage Complex a contravention of the Accused's right under s. 8 of the Charter (to be secure against unreasonable search or seizure)?

d) Was Constable Patten’s search of the Accused's wallet at the scene a further contravention of the Accused's s. 8 rights?

e) Was Constable Martin's search of the Vehicle at the RCMP Detachment, with the assistance of Constable Patten, a further contravention of the Accused's s. 8 rights?

f) Was the initial arrest and detention of the Accused a violation of the Accused's s. 9 rights (not to be arbitrarily detained)? III. Evidence on the Voir Dire [ 12 ] Crown called only Constable Martin and Constable Patten to provide evidence on the voir dire. Pam Girard, who had placed the report call from the Mini Storage Complex to the RCMP, was not called to testify. A. Evidence of Constable Kara Martin in the Voir Dire [ 13 ] At the time of hearing of the voir dire, Constable Martin had three and a half years of service with RCMP.

She had been trained in impaired driving investigations at the time of the incident involving the Accused. She is, and was at the time of incident, qualified as a breathalyzer technician. [ 14 ] Subsequent to this incident, she received specialized training and is now trained as a Standard Field Sobriety Test ("SFST") member and is thereby qualified to administer the SFST.

She was not so qualified at the time of this incident. [ 15 ] Police forces and RCMP detachments on southern Vancouver Island share the use of the SFST members among their ranks. [ 16 ] Constable Martin was on general duty on July 19, 2018, when she received a call from dispatch just before 17:00 hours (or 5:00 p.m.). It was for a "check well-being of an individual who was slumped over the steering wheel of his vehicle unresponsive, but breathing". Constable Martin proceeded in her police cruiser to the Mini Storage Complex.

Constable Patten attended separately to provide backup and arrived after Constable Martin.

[ 17 ] Constable Martin arrived at the electronic front gate of the Mini Storage Complex at approximately 17:03 hours. She was met by Pam Girard. The electronic front gate opens and closes using a PIN code in order to gain access into the Mini Storage Complex's gated, fenced, and secure facility. Operators may also manually open the gates to permit access. Constable Martin confirmed in her evidence that the area comprising the Mini Storage Complex was private property and not a public roadway and is also an area to which there is not general public access. [ 18 ] Ms.

Girard opened the gate to allow Constable Martin to enter. Ms. Girard informed Constable Martin that there was no one else in the area or on the premises, and that the Vehicle was parked at the back right corner of the Mini Storage Complex. Ms. Girard remained at the front office beside the entrance gate as Constable Martin proceeded through the open gate, in her police cruiser to locate the Vehicle. [ 19 ] Constable Martin described the Mini Storage Complex as being quite a large facility, with multiple rows of storage lockers.

Constable Martin drove to the back right corner of the Mini Storage, where she observed the Vehicle. She positioned her police cruiser behind the Vehicle. Constable Martin said that it took several minutes once inside the Mini Storage Complex to arrive at the location of the Vehicle. [ 20 ] The Vehicle, as described by Constable Martin, was a SUV-style, seven-passenger vehicle. There were a total of four doors accessing the passenger compartment, with two on each side accessing the front two passenger seats, and with two on each side to access the middle two passenger seats.

A single rear tailgate door provided access to the rear cargo area; located in front of that tailgate door was a fold-down three-seat passenger row, situated behind the middle two passenger seats. [ 21 ] Upon arrival, Constable Martin took some time and ran the licence plate on the Vehicle to determine the name of the registered owner. Thereafter, Constable Martin exited her police cruiser and approached the Vehicle. As she proceeded to the front of the Vehicle on the driver's side, she made observations into the rear cargo area and the middle passenger seats of the Vehicle.

There were no other individuals seated in the Vehicle, other than the driver. She did observe a large blanket covering the rear cargo area. [ 22 ] She observed that the Vehicle was shut off, the transmission was in the park position, and the driver side window was down all the way. She viewed the driver's side of the Vehicle and observed the male occupant, eventually identified as the Accused, slumped over in the driver's seat with his seatbelt on. He was snoring loudly. He was holding the Vehicle keys on a lanyard in his right hand and the keys were out of the ignition.

There were a number of items in the middle console, including a lot of change, a lighter, and a cellphone. [ 23 ] She observed that the Accused had sweat dripping from his forehead, he looked very white, and had clammy-looking skin. She attempted to get the individual's attention by calling out to him a couple of times. Starting at what I understand to be just before 17:16 hours, she identified herself as being the police. In response, the Accused was roused but appeared quite confused, mumbling under his breath. She asked him what his name was.

He provided his first name and then fell back to sleep, and then subsequently woke up again. The Accused indicated that he did not have any identification on his person. Eventually she got his name and his date of birth from him. That information did not match the name of the registered owner of the Vehicle. She asked the Accused to look at her, so that she could see his eyes.

She observed that his pupils were very "constricted", to the point that she could not see any of the black of his pupils. [ 24 ] At that point, based upon her experience and training, she had a suspicion that the Accused appeared to be impaired by alcohol or drugs. She cautioned the Accused that he was being detained under investigation for "impaired operation". That occurred at between 17:16 and 17:20 hours. She did not smell an odour of liquor.

However, she testified that in previous investigations, she had not smelled a liquor odour, but the individual subject of those investigations had blown significantly high readings during their breath tests. [ 25 ] She observed that the Accused was slurring his speech, and when he awoke his forehead was cocked downward; before exiting the Vehicle, he fumbled with the seat belt, and used the Vehicle door frame to prop himself up. He had trouble maintaining his balance and was unsteady on his feet. As they were conversing, he appeared to continue to nod off.

Constable Martin kept having to repeat her questions to the Accused multiple times in order to get an understandable response. [ 26 ] Based upon her observations of the mannerisms and the constricted "pin pricked" eyes of the Accused, Constable Martin read a demand to the Accused for him to provide a sample of his breath for analysis by means of an approved screening device ("ASD"), apparently making that demand pursuant to s. 215.41(3.1)(

a) of the MVA . The Accused appeared to understand and then complied with the demand, but it resulted in a "zero" reading on the ASD, meaning no alcohol in his system. As I understand it, that test took place outside of the Vehicle at around 17:22 hours. [ 27 ] At this point and based upon her observations, Constable Martin realized that the Accused was not capable of operating a motor vehicle. [ 28 ] Having ruled out impairment by alcohol, Constable Martin still suspected that something was "on board" with the Accused, namely that he had drugs in his system.

She therefore read out the demand for the Accused to undergo a SFST, to be conducted by a trained police officer. That demand occurred at 17:22 hours. The Accused appeared to understand that demand. She then called in the request to dispatch for the attendance of a trained SFST officer. She testified that in some cases it may take as long as long as 50 minutes for that trained member to arrive. Dispatch did not provide her with any time estimate for the arrival of the SFST officer. [ 29 ] In her evidence, Constable Martin explained the procedures and that the SFST field officer would conduct a battery of tests.

Based upon those results, the SFST officer would then advise the investigating officer (in this case her) whether there were reasonable grounds for a Drug Recognition Examination (“DRE”) to be performed by a drug recognition expert and, if so, whether a DRE demand should be made. At that point, if having received this necessary information from the SFST field office, the investigating officer would then have reasonable grounds to believe that the subject of the investigation (in this case the Accused) was impaired. She could then make an arrest for impaired operation, provide the s. 10(

b) Charter rights and a police caution, and then make the DRE demand. [ 30 ] Up to this point, it appears, based upon Constable Martin's evidence, that she was continuing her investigation under

Part 4 of the MVA, and in particular s. 214 (24-hour prohibition) and s. 215.41 (automatic roadside driving prohibition).

[ 31 ] Constable Martin testified that up to this time, and while still awaiting the SFST field officer's arrival, she had continued to detain but had not arrested the Accused for impaired operation. She further testified that under the Motor Vehicle Act , she was not required to nor did she read the Accused his s. 10(

b) Charter rights. [ 32 ] While awaiting the arrival of the SFST officer, the Accused accepted the offer from Constable Martin and agreed to move to the inside of the air-conditioned police cruiser, and consented to undergo a pat-down search for weapons, for officer safety, which search was completed by Constable Patten. The Accused walked unsteadily towards the police cruiser and, in the course of doing so, to steady himself, he held onto a "charge bar" located at the front of the police cruiser. He was generally struggling to stay on his feet.

The Accused's hat and wallet were removed from him as part of the pat-down search. Constable Patten conducted the search of the wallet and determined that it contained $1,880 cash. [ 33 ] The Accused was placed into and seated upon the back seat of the police cruiser, where he continued to nod off to sleep.

Constable Martin indicated that in her experience this was consistent with a drug user "being on the nod", that is a repeating pattern of dropping off to sleep, awakening, and then dropping off to sleep once again. [ 34 ] As the Accused was being escorted by Constable Patten to the rear of the police cruiser, Constable Martin proceeded to run checks using the police databases, and thereby using the Accused's name and birth date that she had previously obtained from the Accused at approximately 17:16 hours.

These online inquiries were partly to determine if there were any outstanding warrants for the Accused or any other conditions that related to officer safety. The photograph available from the police databases matched that of the Accused. Also, Constable Martin was able to determine that the Accused had a Canada-wide driving prohibition. [ 35 ] At that point, being 17:23 hours, Constable Martin arrested the Accused for driving while prohibited, read him his s. 10(

a) Charter rights from her Charter card, then read him his s. 10(

b) Charter rights, to which he responded that he wanted to speak with a lawyer, and then she read him the standard police caution. The Accused remained in the rear seat of the police cruiser but was not in handcuffs. [ 36 ] Therefore, contemporaneously, at around that time of 17:23 hours, the Accused had exercised his right to counsel by indicating that he wanted to speak to a lawyer. [ 37 ] Also, at that point, the Accused made a spontaneous utterance and said, "I can't believe I fucked up.

I was doing so good." [ 38 ] In response to a subsequent question from Constable Martin, posed at around 17:39 hours, the Accused identified the lawyer to whom he wished to speak as Donald McKay. Thereafter, Constable Martin placed a telephone call to Mr. McKay at 17:43 hours and left a voice message for him. The Accused was satisfied with the voice message being left for Mr. McKay and declined the opportunity to speak to other counsel. [ 39 ] Constable Martin also informed Constable Patten that the Accused had been arrested for prohibited driving.

Constable Patten apparently then went to speak to Pam Girard, who was near the scene of the Vehicle. [ 40 ] In the meantime, while Constable Martin and the Accused were still in the police cruiser, and after the Accused had indicated at 17:23 hours that he wanted to speak to a lawyer, but before calling Mr. McKay at 17:43 hours, Constable Martin asked the Accused questions about who was the registered owner of the Vehicle. The Accused then identified the registered owner by name.

However, the Accused could not provide a telephone number to permit the police to contact the registered owner and inform the registered owner of the police's plan to impound and tow the Vehicle under the Motor Vehicle Act , because it was being driven by a prohibited driver. The Accused said that he had only spoken to the registered owner over the internet. In response to Constable Martin's question, the Accused said he did not know why he had the Vehicle. Constable Martin stated that none of the questions posed to the Accused related to the impaired driving investigation. [ 41 ] Before calling Mr.

McKay, Constable Martin exited the police cruiser, went to the Vehicle where she confirmed the Vehicle's VIN number. She also photographed the Vehicle, and specifically the front area and the driver's seat where the Accused had been seated, which she says is her practice when dealing with impaired driving investigations. From that vantage point, and looking through the Vehicle windows, she could observe the standard interior passenger area, including the second row of passenger seats, which were unoccupied.

At that point, neither she nor Constable Patten were aware that there was a row of collapsible seats located in the cargo area, which were in in the collapsed down position. [ 42 ] Both Constable Martin and Constable Patten were making their observations of the Vehicle through the windows of the Vehicle. There was still a significant amount of daylight. Up to that point, no interior search of the Vehicle had been conducted. [ 43 ] Constable Martin testified that once the Accused was secured in the rear seat of the police cruiser, he was no longer a concern for her personal officer safety.

However, in her view, it was necessary to check the Vehicle to make sure that there was nothing else that was going to harm herself or her RCMP partner. She said that this was significant because they were going to be at the scene for some time, awaiting both a call about the arrival time and the actual attendance of the SFST member to conduct the SFST examination. [ 44 ] Constable Martin explained that from the time the Accused indicated that he wanted to speak to a lawyer at 17:23 hours until she learned of Mr. McKay's name at 17:39 hours and then placed the call to Mr.

McKay at 17:43 hours, she was still awaiting that return call regarding the SFST member. [ 45 ] Furthermore, she testified that she provided the Accused with access to counsel as soon as practicable, having regard for the necessity to "check the Vehicle" and "clear the Vehicle" before placing the call to legal counsel. [ 46 ] Constable Martin noted, at this point, that it was necessary to conduct an officer safety search, which took place from approximately 17:23 hours to 17:39 hours, because:

a) The Accused was unable to provide an answer as to whether there was any other occupant in the Vehicle;

b) The Accused had provided her with no explanation as to how he had come to have the Vehicle and this Vehicle was not registered to the Accused;

c) She did not have any contact information for the registered owner through the online systems available to her, nor from the Accused;

d) Thus, the registered owner was nowhere to be seen; and

e) She had observed the large cargo area covered with a large blanket. [ 47 ] She also testified that she was operating at "heightened awareness" for the possibility that there may be another person in the Vehicle, especially with the large blanket covering the rear cargo area. Therefore, it was necessary to ensure there was nobody under that blanket. She recounted her experience with a previous roadside stop involving a domestic violence investigation where an individual, bound by no-contact provisions with the driver, was hidden under a blanket to evade the police.

That driver denied that there was anybody else in that motor vehicle, notwithstanding other reports to the contrary. [ 48 ] Therefore, the officer safety search of the Vehicle proceeded before placing the call to Mr. McKay, first by way of observations of the interior of the Vehicle being made by Constable Martin and Constable Patten. In addition, Constable Patten then moved to the rear hatch door of the Vehicle, opened it, lifted the blanket covering the cargo area, closed the rear hatch door, and then reported to Constable Martin.

At that point, Constable Patten informed Constable Martin that she had observed a black zip-up case that had a number of "baggies" sticking out of it. [ 49 ] It was now apparently approaching 17:43 hours. Constable Martin testified that she noticed that it was taking some time to get the SFST officer available for the impaired driving investigation, and that she was mindful of the Accused's right to counsel, having been arrested on the driving while prohibited charge. She testified that she was trying to provide the Accused's right to counsel at the roadside. Therefore, at 17:43 hours, she then called Mr.

McKay, who at 17:39 hours had been identified by the Accused as his lawyer. [ 50 ] Constable Martin then went on to testify that upon her arrival at the scene, she initially made observations of the interior of the Vehicle from outside the Vehicle, and that she was not thereby conducting a search inside the Vehicle.

She also confirmed that it was not necessary to search the Vehicle as part of the prohibited driving investigation. [ 51 ] She was uncertain as to whether or not the driver's side door from which the Accused had exited was open or closed when she re- approached the Vehicle for the officer safety check, but confirmed she would have had to open the driver's side door in order to confirm the Vehicle's VIN number. [ 52 ] Other than opening the driver's side door to verify the Vehicle's VIN, it would not have been necessary for her to enter the Vehicle to assist in the impaired driving investigation.

She was able to photograph that which was present in the front seat area. Also, she did not have to open the remaining passenger doors as part of the impaired driving investigation as, again, she could make observations through the side windows. [ 53 ] At 17:57 hours, and in response to her request for a SFST officer made at approximately 17:22 hours, Constable Martin received a call from Constable From. Constable Martin explained that it was common practice for the SFST officer or the drug recognition expert to speak to the investigating officer and review the evidence.

This is because the SFST is conducted once the investigating officer has reasonable suspicion that there may be drugs in the system of the person subject to the investigation. [ 54 ] She testified that if she believed that she had reasonable grounds to make the arrest for impaired driving by drugs, she did not want to delay the process further by having the SFST officer attend at the scene to perform the SFST. [ 55 ] Constable Martin provided Constable From with details of her observations and, based upon those discussions, Constable From agreed that Constable Martin had the necessary grounds to arrest the Accused for impaired driving. [ 56 ] Therefore, she immediately re-arrested the Accused for impaired operation of a motor vehicle, provided him with his s. 10(

a) and 10(

b) Charter rights from her issued Charter card, and also read the Accused the formal "DRE demand" from her Charter card, such that he would be required to undergo a drug recognition examination by a qualified drug recognition officer.

As part of that demand, the Accused was informed that he would have to accompany Constable Martin back to the West Shore RCMP detachment to undergo that examination. [ 57 ] Constable Martin then updated Constable Patten that she was taking the Accused back to the West Shore detachment for the DRE examination and, further, that it would be necessary for the Vehicle to be searched incidental to arrest and in connection with the impaired operation investigation.

They agree that they "did not feel comfortable" conducting that search at the scene; therefore, it would be conducted in a secure bay at the West Shore RCMP detachment. Constable Patten remained with the Vehicle to maintain continuity of the evidence. [ 58 ] Constable Martin conceded in cross-examination that, in furtherance of the impaired driving due to drugs investigation, that the Vehicle search may include looking for drugs and drug paraphernalia. [ 59 ] Immediately prior to departing the scene of the Mini Storage Complex at 18:03 hours, Constable Martin received a return call from Mr. McKay.

Constable Martin explained that she was in the process of transporting the Accused back to the West Shore RCMP detachment, and upon arrival she would return Mr. McKay's call and have the Accused within a private area in order to speak with Mr. McKay. She and the Accused arrived back at the West Shore detachment just prior to 18:12 hours. [ 60 ] Immediately thereafter, the Accused was placed in a secure private room, and he and Mr. McKay had a private telephone conversation. Following that conversation, the Accused indicated that he was satisfied with the information that he had received from his legal counsel.

[ 61 ] At that point, Constable Martin turned the Accused over to Constable From to administer the drug recognition test, which the Accused failed, following which a demand was made of the Accused to provide a urine sample, which he did. Constable Martin remained in the cellblock while the tests were being administered. [ 62 ] At approximately 19:29 hours, Constable Martin then brought the Accused into the main booking area, at which point she informed the Accused that the Vehicle was seized and being brought back to the West Shore detachment as the investigation was still continuing.

She also discussed with him the finding of the amount of $1,880 in the Accused's wallet. She asked him why he had that much money on him, to which he explained that he had accumulated and then cashed some disability cheques. Constable Martin informed the Accused that she was seizing these funds as part of the investigation.

The Accused did not object, but Constable Martin did concede on cross-examination that neither an explanation from the Accused nor an objection would have changed the decision to seize the money. [ 63 ] The paperwork for the Accused's release was completed and he was released around 19:29 hours. He was placed into a taxicab and departed. [ 64 ] In the meantime, the Vehicle had been towed back to the West Shore RCMP detachment and placed in a secure bay. The stated intention was to search the Vehicle as part of the drug impaired driving investigation.

Constable Martin and Constable Patten started the search of the Vehicle at 19:49 hours and concluded at 21:03 hours. Exhibits were seized from the Vehicle, catalogued, and some photographs were taken. B.

Evidence of Constable Elyse Patten in the Voir Dire [ 65 ] At the time of hearing of the voir dire, Constable Patten had five years of service with RCMP, all at the West Shore detachment. [ 66 ] Constable Patten was on general duty on July 19, 2018, when she received a call from dispatch at approximately 17:03 hours with a request that she provide back-up for Constable Martin, who was at the Mini Storage Complex checking upon the well-being of an individual who was slumped over the steering wheel of his vehicle. [ 67 ] Constable Patten arrived within five to seven minutes at the scene and parked her police cruiser behind Constable Martin's Vehicle.

The storage lockers were on the right-hand side (that is the passenger side) of the Vehicle and there was a fence on the left-hand side. The Vehicle was standing in what was described as a driveway or alleyway in which two motor vehicles could pass. The Vehicle was facing towards a downward slope. [ 68 ] Constable Patten joined Constable Martin standing beside the passenger door of the Vehicle, with the occupant, later identified as the Accused, seated in the driver's seat.

Constable Patten was informed by Constable Martin within about a minute or two of her arrival that the Accused had been detained for impaired operation of a motor vehicle. [ 69 ] The Accused exited the Vehicle and was taken to the front of Constable Martin's police cruiser, where Constable Patten conducted what she described as a routine safety search of the Accused to ensure there were no weapons upon him. The search disclosed a large wallet in the Accused's right rear pocket containing a large sum of paper money in Canadian dollars.

Since it was a valuable, and in keeping with her routine practice, the wallet was placed in a safe spot on the hood of Constable Martin's police cruiser, and then subsequently counted at the scene by Constable Patten, in order to ensure that no question would be raised about the amount contained within the wallet. There was no identification found in the wallet.

The wallet was turned over to Constable Martin as an exhibit. [ 70 ] Constable Patten believed that it was Constable Martin who placed the Accused into the rear of Constable Martin's police cruiser. [ 71 ] At that point, Constable Patten noticed that Pamela Girard was on the scene, located downward from the front of the Vehicle. She spoke briefly to Ms. Girard and subsequently took a statement from Ms. Girard at approximately 17:35 hours. [ 72 ] Constable Patten stood by, while Constable Martin was in her police cruiser and the Accused was in the backseat.

She then received a direction from Constable Martin that the Accused was a prohibited driver and was being arrested for driving while prohibited. [ 73 ] At that point, she and Constable Patten moved towards the Vehicle and were looking inside to ensure that there were no other persons in the Vehicle nor any other safety concerns. Constable Martin was photographing inside the Vehicle.

They both observed that none of the seats were occupied, but that there was a brown and white blanket laying over the extended rear cargo area of the Vehicle. [ 74 ] Constable Patten testified that she had a concern there was potential of someone being underneath the blanket, having had prior experiences with individuals trying to hide from the police in these circumstances. Accordingly, she went to the back of the Vehicle and opened up the unlocked rear trunk hatch. When she first opened up the rear trunk hatch, she observed that the blanket was approximately halfway over what appeared to be a speaker system.

She pulled back the blanket to get the best possible view to confirm that there was nobody hiding underneath that blanket. In order to do so, she grabbed the left corner of the blanket to pull it back, in order to be able to see underneath it and to determine if there was somebody hiding underneath the blanket. She determined that there was nobody there.

She agreed in cross-examination that with the blanket pulled back, it appeared to be a small space on the left-hand side of the rear of the Vehicle, but stated that it was necessary to pull the blanket back because "it is amazing how small a space some people can fit in." [ 75 ] Only at that point was she able to observe a plastic bag on the far left side, and then to its right a black pouch inside the recess of the speaker.

The zipper on the pouch was clearly broken and she could see the contents inside; she noticed that there were multiple small baggies, which she said are also referred to as "dime baggies". [ 76 ] Having made a mental note of her observation, she then flipped the blanket back down and closed the rear trunk hatch door. She said that was the extent of her search, which she said was of a very short duration and took about 30 seconds to one minute. She did not handle the black pouch or any other items in the rear cargo area. She informed Constable Martin of her observations.

[ 77 ] Constable Patten then testified about the search conducted upon the Vehicle once it had been towed back to the West Shore RCMP detachment and placed in the secure bay. Constable Martin conducted the search, while Constable Patten was keeping track of the various exhibits that were located. Those exhibits included a number of suspected drugs. There were 101 grams of suspected cocaine, 49.6 grams of suspected methamphetamine, and 33.9 grams of suspected fentanyl. There were also 13 small pills, being 5.2 grams, which were suspected fentanyl, but that was later determined not to be fentanyl.

According to her testimony, the search took approximately one hour and 14 minutes. [ 78 ] The found drugs are the subject matter of the present charges against the Accused. IV. Analysis of the Alleged Charter Breaches A.

Whether the Mini Storage Complex was a "highway" under the Motor Vehicle Act [ 79 ] In the course of the voir dire, it became apparent that it would be necessary in any analysis of the Charter breaches to start with a determination of whether or not the Mini Storage Complex was a "highway" or "industrial road" as defined under the Motor Vehicle Act , and furthermore what was the application of the Motor Vehicle Act to this incident. [ 80 ] It is clear that Constable Martin was proceeding under s. 215 (24-hour prohibition) and 215.41 (Automatic Roadside Driving prohibition) of the Motor Vehicle Act once she arrived upon the scene and located the stopped Vehicle and the Accused slumped over in the driver's seat. [ 81 ] Her evidence was that she detained the Accused "for investigation for impaired operation" and because she was doing so under the Motor Vehicle Act , she did not need to provide the Accused with access to counsel at that point.

She also proceeded on the basis that under the Motor Vehicle Act , a motorist is required to provide samples or perform field sobriety testing roadside as part of the requirements. [ 82 ] To eliminate the possibility of alcohol impairment, notwithstanding a lack of liquor odour, under s. 215.41 (3.1) of the Motor Vehicle Act , she made a demand of the Accused to provide a sample of breath for analysis by means of an ASD. [ 83 ] Thereafter, the Accused was arrested for prohibited driving, purportedly under s. 95 of the Motor Vehicle Act . B. Statutory Framework [ 84 ]

Section 1 of the Motor Vehicle Act entitled "Definitions" provides in part as follows:

Definitions 1 In this Act: "highway" includes (

a) every highway within the meaning of the Transportation Act , (

b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and (

c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited, but does not include an industrial road; "industrial road" means industrial road as defined in the Industrial Roads Act , and includes a forest service road as defined in the Forest Act and land designated as a development road under s. 139 (1) of the Petroleum and Natural Gas Act [ 85 ]

Section 95 of the Motor Vehicle Act provides:

Part 2 — Suspensions of Licences and Prohibitions from Driving Driving while prohibited 95

(1) A person who drives a motor vehicle on a highway or industrial road knowing that (

a) he or she is prohibited from driving a motor vehicle under s. 91, 92, 93, 94.2, 215, 215.43 or 251 (4)… commits an offence and is liable, (

c) on a first conviction, to a fine of not less than $500 and not more than $2000 or to imprisonment for not more than 6 months, or to both, and (

d) on a subsequent conviction, regardless of when the contravention occurred, to a fine of not less than $500 and not more than $2000 and to imprisonment for not less than 14 days and not more than one year. [ 86 ] Sections 215 and 215.41 in

Part 4 of the Motor Vehicle Act provide as follows: 24 hour prohibition

(1) In this section: "approved screening device" means a device prescribed by the Lieutenant Governor in Council for the purposes of this section; "driver" includes a person having the care or control of a motor vehicle on a highway or industrial road whether or not the motor vehicle is in motion.

(2) A peace officer may, at any time or place on a highway or industrial road if the peace officer has reasonable grounds to believe that a driver's ability to drive a motor vehicle is affected by alcohol, (

a) request the driver to drive the motor vehicle, under the direction of the peace officer, to the nearest place off the travelled portion of the highway or industrial road, (

b) serve the driver with a notice of driving prohibition, and (

c) if the driver is in possession of a driver's licence, request the driver to surrender that licence.

(3) A peace officer may, at any time or place on a highway or industrial road if the peace officer has reasonable grounds to believe that a driver's ability to drive a motor vehicle is affected by a drug, other than alcohol, (

a) request the driver to drive the motor vehicle, under the direction of the peace officer, to the nearest place off the travelled portion of the highway or industrial road, (

b) serve the driver with a notice of driving prohibition, and (

c) if the driver is in possession of a driver's licence, request the driver to surrender that licence.

(4) If a peace officer requests a driver to surrender his or her driver's licence under this section, the driver must forthwith surrender to the peace officer his or her driver's licence issued under this Act or any document issued in another jurisdiction that allows him or her to drive or operate a motor vehicle. Immediate roadside driving prohibition 215.41

(1) In this section, "driver" includes a person having the care or control of a motor vehicle on a highway or industrial road whether or not the motor vehicle is in motion.

(2) In this

section and in sections 215.42, 215.43, 215.47, 215.49 and 215.5: "approved screening device" means a device prescribed by the Lieutenant Governor in Council for the purposes of this section; "fail" means an indication on an approved screening device that the concentration of alcohol in a person's blood is not less than 80 milligrams of alcohol in 100 millilitres of blood; "warn" means an indication on an approved screening device that the concentration of alcohol in a person's blood is not less than 50 milligrams of alcohol in 100 millilitres of blood.

(3.1) If, at any time or place on a highway or industrial road, (

a) a peace officer makes a demand to a driver under the Criminal Code to provide a sample of breath for analysis by means of an approved screening device and the approved screening device registers a warn or a fail, and (

b) the peace officer has reasonable grounds to believe, as a result of the analysis, that the driver's ability to drive is affected by alcohol, the peace officer, or another peace officer, must, (

c) if the driver holds a valid licence or permit issued under this Act, or a document issued in another jurisdiction that allows the driver to operate a motor vehicle, take possession of the driver's licence, permit or document if the driver has it in his or her possession, and (

d) subject to

section 215.42, serve on the driver a notice of driving prohibition. [ 87 ] For the purposes of committing an offence under s. 95, the Accused is required to be driving a motor vehicle on a "highway or industrial road", knowing that he was prohibited from driving. [ 88 ] However, there is no evidence about how the Vehicle arrived at the Mini Storage Complex or that the Accused was the driver. [ 89 ] Neither Constable Martin nor Constable Patten made any observation of such driving by the Accused which must be established in order for Constable Martin to have jurisdiction to make an arrest on that charge (see, for example, R. v.

Wong , 2016 BCPC 208 at paragraphs 21 to 24 ). [ 90 ] The evidence supports the conclusion that the Accused was "in the care and control of a motor vehicle" as required in part by the

definitions of "driver" in ss. 215 and 215.41 of the Motor Vehicle Act . However, there is no evidence as to whether or not the Accused was in the care and control of the Vehicle outside of the Mini Storage Complex. (Again, see Wong , supra .) [ 91 ] For the purposes of proceeding under ss. 215 and 215.41, the Accused had to have the care or control of the Motor Vehicle on a

highway or industrial road, whether or not the Vehicle was in motion. [92] There is no evidence that the Mini Storage Complex is either a "highway" within the meaning of the Transportation Act, nor an"industrial road" as it is defined under the Motor Vehicle Act, including the other applicable incorporated

definitions. [93] In order to be a highway under the Motor Vehicle Act, the Mini Storage Complex must therefore fall within the definitionprovisions of a “highway” found in s. 1, subsections (

b) and (c). V. Crown's Submissions [94] Crown says that the Mini Storage Complex is a highway by virtue of subsection (

c) of the definition of a “highway”. [95] Crown concedes that the Mini Storage Complex is not a parking lot, but says that it is open to the general public to park whileaccessing the individual storage units contained within the Mini Storage Complex. While accepting that it is not a primary purpose,Crown says that parking is an important incidental purpose which then brings the Mini Storage Complex within the definition of a"highway". [96] Crown relies upon the decision in Gallardo v. ICBC, 2007 BCPC 253 (CanLll) (“Gallardo”).

The Gallardo case involved adenial of insurance coverage for a stolen vehicle, allegedly stored contrary to the terms of the claimant's ICBC storage policy. The theftoccurred from a "privately owned/operated parking lot", which parking lot, the evidence clearly showed, was intended to be used bymembers of the public for parking upon paying a required fee.

Thus, the Court concluded that this "parking lot" was a "highway" for thepurposes of the ICBC policy of insurance. [97] I do not find the Gallardo decision to be useful for the present set of facts, given that the parking lot in the Gallardo case wasclearly open to the public and for the primary purpose of parking for a fee. That is not the situation in the present case before me. [98] Similarly, Crown relies upon another civil insurance coverage case, being that of Jassal v. Hera, [1991] B.C.J. No. 3063 (S.C.)(“Jassal”).

Trainor J. was required to determine whether or not an accident that occurred in a parking lot used by a business for itscustomers without charge, actually took place on a highway, as then defined under the Motor Vehicle Act. The Court found, on the factsof that case, there was an invitation that was extended for the public's use of the parking lot that brought it within the definition of ahighway. [99] Again, I do not find that the Jassal decision is useful in the present set of facts.

The parking lot in that case was very much opento and subject to an invitation extended to people doing business on the adjacent premises. Again, that is not the evidence before me inthe case at bar. VI. Defence Submissions [100] Defence says that the Mini Storage Complex where the Vehicle was found by the police was not a "highway" as defined in theMVA. [101] In support of that submission, reliance is placed on the reasoning in Jago v. British Columbia (Superintendent of Motor Vehicles),[2011] B.C.J. No. 2035; 2011 BCSC 1454 ("Jago").

I find Jago to be useful and very persuasive in conducting the necessaryanalysis in this matter. [102] Defence also cites the analysis in R. v. R., 2012 BCPC 3 , 2012 BCPC 0003, wherein a roadway contained within aprivate campground was held not to be a highway within the meaning of the Motor Vehicle Act because it was not designed nor intendedfor or used by the general public. It was found to be a private roadway for use of registered users of the campsite and their guest. It wasnecessary to register to gain entrance and the entrance gates were locked at night.

I also find that analysis to be useful in this case. VII. Analysis, Application of the Jago Case and findings [103] In Jago, Mr. Justice Barrow dealt with a judicial review of the decision of an adjudicator regarding an immediate roadsideprohibition under s. 215.41 of the Motor Vehicle Act. The prohibition had been issued when a police officer had observed a motoristbacking up his vehicle, turning it around and then driving down an ungated driveway. The question turned on whether or not thedriveway met the s. 1 definition of a highway and specifically under subsection (

c) of that definition. [104] The court in Jago concluded that the driveway did not meet the grammatical and ordinary sense of the definition of a "highway".In coming to that conclusion, Justice Barrow reasoned as follows: [13] The issue posed is one of statutory

interpretation. It is thus apt to begin with Re Rizzo and Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27, where at para. 21, Iacobucci J. adopted the canon of statutory construction expressed by Dreidger inConstruction of Statutes (2nd ed. 1983) at p. 87: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [14] A significant aspect of the scheme created by the Act for the issuance of roadside driving prohibitions is, for purposes of thisanalysis, that it extends only to drivers found driving or in care or control of a vehicle on a highway or industrial road. People founddriving on private property that does not fall within the definition of “highway” or “industrial road” are not subject to such prohibitions. [15] In its grammatical and ordinary sense, subsection (

c) of the definition of “highway” serves to extend the definition to privatedriveways to which the public has access (or is invited) for the purpose of parking or servicing motor vehicles. As the adjudicatorpointed out, there was no gate or other obstruction at the point where the petitioner’s driveway met Broadwater Road. Even assuming

that the absence of such an obstruction is sufficient to confer access, a proposition that is not free from doubt, access alone is not enough; rather, the definition requires that the access be for the purpose of parking or servicing motor vehicles. Put in the form of a question, it comes to this: can it be said that the petitioner’s driveway was open to use by the public for the purpose of parking or servicing vehicles?

There is simply no evidence to support that conclusion and thus, in my opinion, the driveway does not meet the grammatical and ordinary sense of the definition of “highway”. [16] I am fortified in this conclusion by considering the effect if the result were otherwise, that is, if this driveway were held to be a highway. The result, it seems to me, would be that virtually all private driveways, save those with gates or similar obstructions, would be highways. Such a conclusion is not consonant with the intention of the legislature as disclosed by the manner in which they have chosen to define the term.

It seems to me that the distinction the legislature has sought to draw is between places which are open to use by the motoring public and those that are essentially private. I recognize that the legislation, and in particular the roadside prohibition scheme it creates, is aimed at securing the safety of the public using roads and highways. I also recognize the well-grounded concern that Constable Tait had for the safety of the public based on the petitioner’s condition and his obvious intent.

It is that risk which counsel for the respondent argues supports the conclusion that all private driveways to which the public has access are highways. I am unable to agree. While it is open to the legislature to extend the reach of the scheme to drivers about to enter a highway, they have, thus far, chosen not to. [17] In addition to the language of the definition, the foregoing conclusion is supported by authority, and in particular the decision of Cowan Co.Ct.J., in R. v. McMeekin (1982), 16 M.V.R. 27 (B.C.Co.Ct.) (a case that Ms. Wolfe on behalf of the respondent very fairly drew to the court’s attention).

The accused in McMeekin was charged with driving without due care and attention under the Motor Vehicle Act , R.S.B.C. 1979, c. 288. She was in a parking lot of an apartment complex when she had an accident. The parking lot was posted with signs indicating that it was for tenants’ parking only. Ms. McMeekin was convicted at trial and she appealed. The only issue was whether the parking lot was a “highway” within the definition found in the 1979 version of the Act . The definition of highway in that version of the Act is the same as the current definition, except that the former was not divided into subparagraphs.

Cowan Co.Ct.J. made reference to Harrison v. Hill , [1932] S.C.(J.) 13, and reached three conclusions regarding the definition of “highway”. At para. 17 he wrote: (1) "General public access" means unrestricted entry to all members of the population within implied limits for a purpose unrelated directly to the property's ownership. (2) "Public access" to private property means entry to all members of the public who enter by legal right, or by implied or express permission of the owner, and as a matter of fact, the public enters the property unmolested by the owner.

(3) The Motor Vehicle Act restricts the "public access to private property" group to those who enter for the purpose of parking, service of vehicle, or by invitation to the public. . . . In the result, he concluded that the parking lot was not a highway and overturned the conviction. [ 105 ] The operator of the Mini Storage Complex was not called as a witness. The available evidence that I accept is the Mini Storage Complex was a large, private, gated, and secured area, enclosed by fences. It had a large number of mini storage units. [ 106 ] Ingress to the Mini Storage Complex was restricted.

Access apparently required an individual to be admitted by the operator or to have a security code to open the gate. [ 107 ] Vehicles could then pass through the gates and follow the interior roadways within the Mini Storage Complex. [ 108 ] Having regard to subsection (

b) of the definition of "highway", there is no evidence that the interior of the Mini Storage Complex was designed or intended for or used by the general public for the passage of vehicles. [ 109 ] There is no direct evidence before the court as to what purposes a member of the public had access or was invited, and specifically there is no evidence that it was for the purposes of "parking or servicing vehicles". [ 110 ] There is insufficient evidence before this Court to conclude that there was access or an invitation extended to members of the public for a possible ancillary or incidental use of the private area for the purposes of parking or, for that matter, for servicing of vehicles. [ 111 ] On the whole of the evidence before me, I cannot conclude that the Mini Storage Complex was a highway as contemplated by any of the definitional requirements set forth in s. 1 of the MVA. [ 112 ] If I were to find that the Mini Storage Complex was a highway, then like Cowan, Co.Ct.

J. in paragraph 17 of McMeekin and Justice Barrow at paragraph 18 of Jago , the definition of highway might as well include all private roads, as well as public highways. [ 113 ] Furthermore, I would be making unsupported and unwarranted assumptions about the reason for the operators of the Mini Storage Complex providing access or an invitation to the "public" to the Mini Storage Complex. I would be ignoring the distinction intended by the legislature between places which are open to use by the motoring public and those that are essentially private. VIII.

Results of Court's Finding that the Mini Storage Complex Was Not a Highway A. Were the Accused's s. 9 Charter Rights Violated? [ 114 ] Several things flow from this Court's finding that the Mini Storage Complex was not a highway within the meaning of the Motor Vehicle Act at all relevant times.

[ 115 ] Since the Accused was not driving on a highway, nor did he have the care and control of the Vehicle on a highway, Constable Martin had no reasonable and probable grounds for detaining the Accused for the impaired driving investigation under the Motor Vehicle Act , nor did she have any reasonable and probable grounds thereafter to charge and arrest the Accused for prohibited driving. [ 116 ] Therefore, I have concluded that the Accused's s. 9 Charter Right to not be arbitrarily detained or imprisoned was breached by Constable Martin from the outset, and specifically starting with the Accused's initial detention under Motor Vehicle Act for the impaired driving investigation and then, thereafter, his arrest for driving while prohibited. [ 117 ] Because of that Charter breach, more Charter breaches occurred in connection with the resulting searches.

B. Did the Searches Amount to a Breach of the Accused's s. 8 Charter Rights? [ 118 ]

Section 8 of the Charter provides everyone with the right to be secure against unreasonable search. [ 119 ] Even if the initial detention and the arrest of the Accused were lawful, the safety searches must not be greater than is required. If so, then the infringement makes the safety search unlawful. Also, the safety search must be in response to an imminent and immediate threat to officer safety (see R. v. MacDonald , 2014 SCC 3 ). [ 120 ] There must be some evidentiary support for the safety search and speculative possibilities are insufficient.

The investigating officers must consider alternative methods of investigating before conducting a warrantless search (see R. v. Jones , 2013 BCCA 3345 ). C. The Search of the Person of the Accused [ 121 ] The Accused's person and his wallet were searched following his detention, purportedly incidental to arrest and purportedly for officer safety concerns. [ 122 ] However, given that both the detention and the arrest under the Motor Vehicle Act violated the Accused's s. 9 rights, Crown cannot rely on the improper arrest to justify the search.

Therefore, I have concluded that the search of the Accused's person by Constable Patten violated the Accused's s. 8 rights and was unreasonable. [ 123 ] In coming to this conclusion, I am mindful of the evidence of Constable Martin to the effect that, as a condition of her invitation to permit the Accused to enter the air-conditioned police cruiser and wait for the arrival of the SFST member, he was asked and he consented to the pat-down search. It was a brief search and in the usual set of circumstances would meet the requirements set out in R. v.

Mann , 2004 SCC 52 (“ Mann ”), particularly where there are reasonable grounds to believe there may be a risk to safety of the officer or others during the detention. [ 124 ] However, in my view and in all of these circumstances, the unlawful detention and arrest eliminates the right of the police in this case to conduct that search of the Accused. The pat-down search extends to a lawfully detained individual (see R. v. Bassi , 2019 BCSC 1224 , citing Mann at paragraph 45 ). [ 125 ] The Accused's wallet was searched at the scene in the Mini Storage Complex to count the money.

It appears that it was searched again at the West Shore RCMP detachment when Constable Martin seized the cash found in it. The extent of that second search is unclear on the evidence. [ 126 ] On the same basis, as noted above, and for the further reasons set out below, I find both of those searches violated the Accused's s. 8 rights. [ 127 ] Based upon Constable Patten's evidence, I have concluded that she did search the wallet as part of an officer safety search at the scene. She was unable to find any identification, but saw there was a substantial amount of cash.

Clearly the wallet was not a weapon, nor did it pose any reasonable safety concerns. [ 128 ] She also testified that the she removed the cash contents of wallet and counted it in order to determine the amount of cash in the wallet, which was substantial, and to thereby avoid any later problems about the actual amount of cash in the wallet. She was not asked, nor did she offer, any other alternative procedures such as, with the consent of the Accused and without viewing the wallet contents, taking the wallet and its contents and sealing them in an evidence bag to protect the contents.

Constable Patten had no basis for searching the wallet at the scene. It also seems to me that there was an available alternative for maintaining the safety of the wallet and any evidence, without conducting a search until a search warrant could be obtained. [ 129 ] The search for evidence in the wallet during the investigative detention of the Accused is not authorized (see R. v. Basi ). In my view, even based upon a lawful detention, in these circumstances, this search crossed the line from a safety search into the realm of a search for evidence, without justification. D.

Search of the Vehicle [ 130 ] Following the Accused's arrest under the Motor Vehicle Act , purportedly for driving while prohibited, Constable Martin and Constable Patten conducted a search of the Vehicle, purportedly incidental to that arrest and premised upon officer safety concerns. [ 131 ] Again, given that the detention and arrest violated the Accused's s. 9 rights, the Crown cannot rely upon that arrest to justify searching the Vehicle.

Therefore the search of the Vehicle was unreasonable and was in violation of the Accused's s. 8 rights. [ 132 ] If the arrest of the Accused on the prohibited driving charge was lawful and gave rise to a valid search of the Vehicle, both incidental to arrest and for officer safety purposes, the extent of that search must come under some scrutiny. [ 133 ] Both officers expressed their reasons why it was necessary to conduct a safety search and specifically look under the blanket covering what turned out to be the speaker system in the rear cargo area.

This entailed lifting of the rear tailgate in order to gain access

into the rear cargo area. In their respective opinions, it also meant lifting the blanket to gain a better view. [134] Based upon the photographs placed into evidence, it seems quite unlikely that an individual could be located under orimmediately beside that portion of the speaker which was fully draped by the blanket.

In my mind, it is questionable that there was anyrealistic imminent and immediate threat to officer safety requiring that covered portion of the speaker to be undraped. [135] The suggestion made by Constable Patten is that in the process of pulling back the blanket, although it was not immediately seenby her, the black broken zippered pouch became visible to her, along with its contents of plastic bags, which she took to be drugs orassociated with drugs. [136] However, I have concluded that, based upon the evidence before me, that the "plain view" doctrine does not apply to thisdiscovery. [137] The doctrine was expressed in R. v.

Squire, [2016] N.J. No. 351; 2016 NLCA 54, at paragraph 65 as follows: . . . The application of the doctrine has been expressed to be dependent on the existence of three requirements: (

i) the officer must belawfully in a position from which the evidence was plainly in view; (ii) discovery of the evidence must be inadvertent and (iii) it must beapparent to the officer at the time that the observed item may be evidence of a crime or otherwise subject to seizure . . . [138] In this case, Constable Patten was not in a lawful position from which the evidence was plainly in view. She was conducting anunlawful search of the Vehicle, first because of the s. 9 violation and then because the search went beyond a safety search.

Given thetime spent looking in the rear cargo area, which, according to Constable Patten, was anywhere between 30 seconds to a minute, it doesnot appear that its discovery was inadvertent. [139] Once the Vehicle was impounded and taken into the secure bay at the RCMP detachment, a further warrantless search of theVehicle occurred, at which time the illicit drugs were located. [140] There was a significant passage of time from the arrest of the Accused on the impaired-by-drug driving charge, which was around17:57 hours, to the commencement of the Vehicle search at the detachment at 19:49 hours.

It concluded at 21:03 hours. [141] The relocation of the Vehicle to the secured area was an intentional decision of Constable Martin and Constable Patten. Thatsearch was justified by the police officers and relied upon by Crown as a search of the Vehicle incidental to the arrest on theimpaired-by-drug driving offence. It was obviously a detailed and lengthy search. [142] In R. v. Karaim, [2019] B.C.J. No. 2257; 2019 BCPC 275 (“Karaim”), the Honourable Judge Gouge provided the followingdetailed and helpful review of "Search Incidental to Arrest": [20] In R v.

Vu, 2013 SCC 60 , [2013] 3 SCR 657, Justice Cromwell said @ paragraph 46 (underlining by JusticeCromwell): Prior authorization of searches is a cornerstone of our search and seizure law. As the Court affirmed in Hunter, the purpose of s. 8 is "toprotect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searchesbefore they happen ....

This, in my view, can only be accomplished by a system of prior authorization" (p. 160 (emphasis in original)).Dickson J. went on in Hunter to say that the requirement of prior authorization "puts the onus on the state to demonstrate the superiorityof its interest to that of the individual" (ibid.). The purpose of the prior authorization process is thus to balance the privacy interest of theindividual against the interest of the state in investigating criminal activity before the state intrusion occurs.

Given that as a foundational principle, one would think that searches without prior judicial authorization would be permissible only whenexigent circumstances preclude an application for a search warrant. So, for example, no one would suggest that Constable Landersshould have applied for a search warrant before frisking Ms. Karaim for weapons. By contrast, no exigency required Sergeant Chubey tosearch the bags and parcels in the taxi immediately. Indeed, as he acknowledged, it would be much safer to search them under controlledconditions at the detachment.

That could have been done, equally conveniently and effectively, two days after Ms. Karaim’s arrest,allowing ample time to apply for a search warrant. So, applying Hunter and Vu, one would think that a warrantless search of the bagswas unreasonable and an infringement of Ms. Karaim’s rights under

section 8. [21] In R v Stillman (SCC), [1997] 1 SCR 607 @ paragraph 41, the majority of the Court adopted the followingstatement of principle from R v Alderton (1985) 17 CCC (3d) 2014 (underlining added): Searches made incidentally to an arrest are justified so that the arresting officer can be assured that the person arrested is not armed ordangerous and seizures are justified to preserve evidence that may go out of existence or be otherwise lost. As neither circumstanceexisted here, the Crown cannot rely on a power that is incidental to an arrest to justify seizure of the hair samples ….

In my opinion, thepower to search and seize does not extend beyond those purposes. However, later authorities make it clear that searches incidental to arrest for other purposes may be permissible. [22] The leading authority is R v. Fearon 2014 SCC 77 , [2014] 3 SCR 621, which was concerned with a police search of acell phone incidental to a lawful arrest.

The majority judgment was given by Justice Cromwell, who said at paragraph 3 that a searchincidental to arrest requires the court to “… strike a balance between the demands of effective law enforcement and everyone’s right tobe free of unreasonable searches and seizures …”. At paragraph 16, Justice Cromwell said: Although the common law power to search incident to arrest is deeply rooted in our law, it is an extraordinary power in two respects. Thepower to search incident to arrest not only permits searches without a warrant, but does so in circumstances in which the grounds toobtain a warrant do not exist.

The cases teach us that the power to search incident to arrest is a focussed power given to the police so thatthey can pursue their investigations promptly upon making an arrest. The power must be exercised in the pursuit of a valid purpose

related to the proper administration of justice. The central guiding principle is that the search must be, as the case law puts it, truly incidental to the arrest. At paragraph 22, Justice Cromwell referred to the following passage from R v Caslake [1988] 1 SCR 51 (underlining added by Justice Cromwell, bold italics added by me): If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest.

This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched . They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable . Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference.

However, that inference may be rebutted by a proper explanation. At paragraphs 48 – 49, Justice Cromwell explained why a cell phone search incident to arrest was permissible in that case: Beyond the facts of this case, there are other types of situations in which cell phone searches conducted incidental to a lawful arrest will serve important law enforcement objectives, including public safety. Cell phones are used to facilitate criminal activity. For example, cell phones "are the 'bread and butter' of the drug trade and the means by which drugs are marketed on the street": Howell , at para. 39.

Prompt access by law enforcement to the contents of a cell phone may serve the purpose of identifying accomplices or locating and preserving evidence that might otherwise be lost or destroyed. Cell phones may also be used to evade or resist law enforcement. An individual may be a "scout" for drug smugglers, using a cell phone to warn criminals that police are in the vicinity or to call for "back up" to help resist law enforcement officers: see, e.g., United States v. Santillan , 571 F.Supp.2d 1093 (D. Ariz. 2008), at pp. 1097-98 .

In such situations, a review of recent calls or text messages may help to locate the other perpetrators before they can either escape or dispose of the drugs and reveal the need to warn officers of possible impending danger. I conclude that prompt cell phone searches incidental to arrest may serve important law enforcement objectives. The evidence in this case shows why prompt follow-up of leads may be necessary and how the search of a cell phone may assist those efforts. In this respect, cell phone searches are unlike the taking of dental impressions, buccal swabs and hair samples discussed in Stillman .

There, the Court noted that there were no relevant considerations of urgency supporting the extension of the power to search incident to arrest to these procedures: there was no risk that the accused's teeth or DNA would be lost or destroyed if the procedures were not carried out promptly: para. 49. And, of course, such searches, unlike cell phone searches, are very unlikely to allow police to identify and mitigate risks to public safety or to assist them to preserve evidence that might otherwise be lost or destroyed.

Similarly, in Golden , while the strip search incident to arrest was aimed at the discovery of illegal drugs on the accused's person, there was little reason to think that the search needed to be performed promptly upon arrest in order to fulfill this purpose: paras. 92-93. At paragraphs 74 – 84, Justice Cromwell identified the need for limits on the power to search cell phones incidental to arrest. While he was speaking there specifically of cell phones, his decision on that question provides useful guidance for the principles which I must apply in the case at bar.

He said: . . .we should concentrate on measures to limit the potential invasion of privacy that may, but does not inevitably result from a cell phone search. This may be done by making some modifications to the common law power to search cell phones incidental to arrest. Ultimately, the purpose of the exercise is to strike a balance that gives due weight, on the one hand, to the important law enforcement objectives served by searches incident to arrest and, on the other, to the very significant privacy interests at stake in cell phone searches.

The requirement that the search of the cell phone be truly incidental to the arrest should be strictly applied to permit searches that are required to be done promptly upon arrest in order to effectively serve the purposes of officer and public safety, loss or destruction of evidence, or discovery of evidence. (paragraphs 74 - 75) A further modification is that the third purpose for which searches incident to arrest are permitted - the discovery of evidence - must be treated restrictively in this context.

The discovery of evidence, in the context of a cell phone search incident to arrest, will only be a valid law enforcement objective when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. Only in those types of situations does the law enforcement objective in relation to the discovery of evidence clearly outweigh the potentially significant intrusion on privacy. (paragraph 80 – underlining added) The Crown bears the burden of establishing that the search incident to arrest was lawful.

In my view, that burden is not met, absent detailed evidence about precisely what was searched, how and why. That sort of evidence was lacking in this case, and the lack of evidence, in turn, impedes meaningful judicial review of the legality of the search.

As I mentioned earlier, this after-the-fact review is particularly important in the case of warrantless searches where there has been no prior judicial screening as occurs when a warrant is required. (paragraph 87 – underlining added) [23] If it were the law that a lawful arrest, without more, justifies a search of the belongings of the person arrested, Justice Cromwell would surely have said so. It follows that: (

i) something more is required to justify a warrantless search; (ii) there must be evidence to establish that additional factor. [24] In the passages quoted above, Justice Cromwell gave some examples of additional factors which might justify a warrantless search. No doubt, there are others which will arise in other cases.

[143] In the present case, the decision to conduct the search of the Vehicle at the detachment arose out of a concern about conductingthat search in the Mini Storage Complex. Given that rationale, it appears that there was no reason to conduct that search immediately. Inmy view, the Vehicle was safely stored in the secure bay at the RCMP Detachment. That afforded the police the opportunity to make anapplication for a search warrant. Therefore, the onus described at paragraphs 75 and 87 of Fearon is undischarged. Therefore, the searchof the Vehicle cannot be justified as incidental to the arrest of the Accused. E.

Did the Accused's Initial Detention and Subsequent Arrests Under the Motor Vehicle Act Amount to a Breach of the Accused's s. 10Charter Rights? i. Defence and Crown Submissions [144] Even if this court finds that the detention and arrest were lawful and not a breach of s. 9, Defence says that the Accused's s. 10(b)Charter rights to retain and instruct counsel without delay and to be informed of that right were infringed. [145] Defence says that there is no direct authority under the Motor Vehicle Act to temporarily suspend the Accused's s. 10(

b) Charterrights under that Act. [146] Defence cites and relies upon the following authorities:

a) R. v. Davis, [2018] O.J. No. 1220 (Ontario Court of Justice);

b) R. v. Mian, 2014 SCC 54 , [2014] 2 S.C.R. 689 (SCC);

c) R. v. Patterson, 2006 BCCA 24 , [2006] B.C.J. No. 104 (BCCA);

d) R. v. Rover, 2018 ONCA 745 , [2018] O.J. No 4646 (ONCA); and

e) R. v. Sandhu, [2017] O.J. No. 1714. [147] Defence says that "without delay", according to R. v. Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460, as analyzed in R. v.Davis at paragraph 29, and therein citing R. v. Sandhu at paragraph 7: …means "immediately". It does not mean "as soon as practicable". It does not mean after the arresting officer has attended to otheraspects of the investigation, such as speaking to the other occupants of the vehicle or writing notes. [148] Crown and Defence both agree that that the Supreme Court of Canada in R. v. Mian, 2014 SCC 54 , 2014 2 S.C.R. 689(“Mian”), at paragraph 74, does recognize that compliance with the s. 10(

b) informational rights may be suspended in exceptionalcircumstances, referencing R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233 at page 1244 (“Manninen”); and R. v.Strachan, (SCC), [1988] 2 S.C.R. 980 at pages 998-99 (“Strachan”). [149] In Mian, the Supreme Court of Canada did not disturb the trial judge's finding that there was no evidence of a "real and presentdanger that the operation would be frustrated or delayed or compromised" by a suspension of the s. 10(

b) right. In that absence, theSupreme Court concluded that there were no exceptional circumstances to justify the delay in complying with their s. 10 informationalduties. [150] Defence points to the delay in informing the Accused of his right to counsel, which only occurred at 17:23 hours following theinitial detention at 17:20 hours, and being at the time of his arrest for prohibited driving at 17:23 hours. The Accused exercised that rightat 17:23 hours.

Questioning of the Accused by Constable Martin continued between 17:23 and 17:43 hours, and during which period oftime a search of the Vehicle was also being conducted. There was a further delay on the part of Constable Martin and apparently sheonly inquired about Mr. McKay's name from the Accused at 17:39 hours. There was further delay until 17:43 hours, when ConstableMartin placed a call and left a voice message for Mr.

McKay on behalf of the Accused. [151] Therefore, as I understand the submission, once the Accused exercised his right to access counsel, Constable Martin failed toimmediately provide the detainee with a reasonable opportunity to consult counsel. [152] Crown concedes that if this court determines that the Mini Storage Complex is not a highway, then the RCMP members were notinvolved in a lawful investigation of the Accused for offences under the Motor Vehicle Act. [153] I understand that Crown further concedes, on that basis, there was a delay in affording the Accused his right to counsel. ii.

Analysis and Conclusion [154] In essence, I accept the Defence submissions on the s. 10(

b) violation and agree that those Charter rights were breached. [155] In doing so, I note the delay in providing the Accused with his right to counsel in this case was initially occasioned by the waittime for the SFST officer. After the arrest for prohibited driving, there was a further delay, during which time questioning of theAccused occurred and a search of the Vehicle was undertaken, as well as the further delay in finding out the name of Accused's lawyerand placing a call.

The overall time between the initial detention and informing the Accused of his right to counsel, following his arrestfor prohibited driving, was only about three minutes up to the actual exercise of the actual right at 17:23 hours. The longer delay wasfrom 17:23 hours until the lawyer's name was obtained at 17:39 hours, and a call placed to Mr. McKay at 17:43 hours. All of thisoccurred against the factual background that there no reasonable and probable grounds for detaining the Accused at that time. IX.

Application of s. 24(2) of the Charter [156] Based upon the above described Charter breaches under ss. 8, 9, and 10, the Accused seeks to exclude evidence pursuant to s.

24(2) of the Charter . X. The Legal Principles A. The Charter [ 157 ]

Section 24 of the Charter reads: 24

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute [ 158 ] In R. v. Grant , 2009 SCC 32 (“ Grant ”) , the Supreme Court of Canada revised the approach to be taken in determining whether evidence obtained in breach of a Charter right should be excluded.

In doing so, the court brought clarity to s. 2(2) and the phrase, "bringing the administration of justice into disrepute". McLachlin C.J. (as she then was) and Charron J., noted at paragraphs 67-70: 67 The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term "administration of justice" is often used to indicate the processes by which those who break the law are investigated, charged and tried.

More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. 68 The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) d

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