R. v. Yoo Date:, 2011 BCPC 187

Citation: R. v. Yoo Date: 20110203 2011 BCPC 0187 File No: 201636-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FRANCIS KYUNGHO YOO EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Crown: H. Pineo Counsel for the Defendant: G. Lee Place of Hearing: Vancouver , B.C. Date of Judgment: February 3, 2011 INTRODUCTION [ 1 ] THE COURT: On October 10th, 2009, the accused, Mr. Yoo, was a passenger in a black Escalade that was travelling on Kingsway in Vancouver, British Columbia. There were three other young persons in the vehicle. Mr.

Nguyen was the driver and the others were in the back seat. [ 2 ] The police pulled the vehicle over because the registered owner was listed as an older female, but the driver did not match that description. The police wanted to make sure the driver had permission to be driving the vehicle. [ 3 ] One police officer, Constable Stamatakis, went up to the car and spoke to the driver. He did so through the open driver's window. He immediately smelled a strong pungent odour of fresh (by using the word "fresh," I mean vegetative), marihuana coming from the car. He subsequently placed both the driver and Mr.

Yoo under arrest. [ 4 ] Constable Stamatakis searched Mr. Yoo incident to arrest and found two plastic bags of marihuana inside Mr. Yoo's jacket pocket. The marihuana in those bags weighed approximately 28 grams in total. As a result, Mr. Yoo was charged with unlawfully possessing marihuana in an amount less than three kilograms for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs

and Substances Act . [ 5 ] Mr. Yoo seeks to exclude the evidence seized during the search of his person. He contends his arrest was unlawful. Further, he contends the search of his person was also unlawful because it was not incident to a lawful arrest. ISSUE [ 6 ] The issue in this case is whether the arrest and subsequent search of Mr. Yoo was lawful and, if not, whether the evidence ought to be excluded under s. 24(2) of the Charter. BACKGROUND FACTS [ 7 ] I will now review the relevant background facts.

I have limited my review to the facts relating essentially to the arrest and search. [ 8 ] After the police pulled over the Escalade, Constable Stamatakis approached the vehicle. The driver rolled his window down. At that point, Constable Stamatakis smelled the strong, pungent odour of fresh marihuana coming from the car. He asked the driver whether this was his vehicle and was told it was his mother's car. [ 9 ] Constable Stamatakis said once he smelled the strong odour of fresh marihuana coming from the vehicle, he believed they were in possession of marihuana.

He believed he had reasonable grounds to arrest all the occupants of the vehicle based on the strong scent of marihuana coming from inside the vehicle. Accordingly, he proceeded to place the driver and then Mr. Yoo, the passenger, under arrest while Constable Irving dealt with the passengers in the back seat. [ 10 ] Constable Stamatakis recalled that all of the occupants got out of the vehicle at roughly the same time. As they got out, he told the driver that he was under arrest. He read the driver his Charter rights and then searched him. He also told Mr.

Yoo he was under arrest for possession of marihuana and later read him his Charter rights. At that point, it appears Constable Stamatakis was three to five feet away from Mr. Yoo. He said the wind was blowing in his direction and he smelled a strong odour of fresh marihuana coming from Mr. Yoo. [ 11 ] Constable Stamatakis was probed about the sequence of events during cross-examination. He acknowledged he told Mr. Yoo he was under arrest when Mr. Yoo was getting out of the car. He did no further investigation.

He said that all four of the individuals in the car got out of the vehicle at about the same time. [ 12 ] Constable Stamatakis acknowledged that at the point he placed Mr. Yoo under arrest, he had not seen Mr. Yoo in possession of marihuana. It was put to Constable Stamatakis that at the point he placed Mr. Yoo under arrest, he had not smelled anything on him. Constable Stamatakis said, at that point, the smell from the car was so strong that he could not say who specifically possessed the marihuana.

At that point, he did not know exactly who had the marihuana or if the marihuana was in the vehicle. [ 13 ] Constable Stamatakis said, based on his experience, he thought he had reasonable and probable grounds. He testified he had been involved in numerous grow-op investigations and dealt with marihuana hundreds of times. In his experience when there are numerous parties involved, they usually are in collaboration with one another.

As well, he noted that where there are drugs found, weapons are also often found. [ 14 ] Constable Stamatakis said, at the time, he believed he had reasonable grounds to place all the occupants of the vehicle under arrest. He was asked why he believed the occupants of the vehicle were arrestable. Constable Stamatakis said the smell of marihuana was so strong it was impossible for the occupants of the vehicle not to smell it. In his view, all of the occupants of the vehicle had knowledge. [ 15 ] It was put to him that he believed all occupants of the vehicle had knowledge, but that he did not know who had control.

He agreed that was the case. Constable Stamatakis acknowledged it was hard to tell who had control. However, he felt all of the occupants of the vehicle were arrestable whether they had control over the drugs in the vehicle or not. [ 16 ] Constable Stamatakis was specifically cross-examined on whether he smelled anything on Mr. Yoo and when that occurred. Constable Stamatakis said Mr. Yoo was at the curb on the passenger side of the vehicle when he dealt with him. The vehicle was approximately five feet from Mr. Yoo. The passenger door was closed.

Constable Stamatakis could not recall if the passenger window was open, but the driver's window was open. He was asked whether he was certain that the smell of marihuana came from Mr. Yoo. Constable Stamatakis said there was no uncertainty in his mind. Mr. Yoo was standing beside him, near the car, and the smell came from him. [ 17 ] It was put to Constable Stamatakis that he had used the word "seemed" in direct examination. He replied he did not feel uncertain. However, he acknowledged that he noticed the smell coming from Mr. Yoo while he was reading him his Charter rights.

He later stated that, smell or no smell, he would have searched Mr. Yoo. In

summary, it was put to him in cross-examination that when he placed Mr. Yoo under arrest, he did not really know if Mr. Yoo had marihuana on him. Constable Stamatakis said at the time he placed Mr. Yoo under arrest, he did not know if Mr. Yoo had marihuana on his person. He later said that when he placed the persons in the vehicle under arrest, he did so on the basis that he thought there was marihuana in the vehicle.

It was his belief that the occupants of the vehicle were in possession of marihuana, but he did not know if it was on one of them, all of them, or in the vehicle. [ 18 ] Constable Irving was Constable Stamatakis' partner on the day of the arrest. He said that while Constable Stamatakis went to the driver's side, he went to the passenger's side. Almost immediately, he saw Constable Stamatakis pull the driver out of the vehicle and place him under arrest for possession of marihuana. Next, he saw Constable Stamatakis go to the passenger side and arrest Mr.

Yoo for possession. [ 19 ] Constable Irving said that he dealt with the two persons in the back based on the smell of marihuana. When he did so, he was

relying on what Constable Stamatakis told him he had smelled. Constable Irving said he later searched the vehicle, but found nothing. However, while searching the vehicle, he could smell fresh unburned marihuana. Constable Irving said the odour was so potent he knewthere would be drugs somewhere in the vehicle. In cross-examination, he acknowledged that he was not sure if the two persons hearrested had possession. However, in his view, all of the occupants in the vehicle could possibly have had possession of marihuana. ANALYSIS [20] Mr. Yoo argues there were no reasonable grounds for his arrest.

He submits the arrest was unlawful and his s. 9 Charter rightsnot to be arbitrarily detained were breached. Additionally, Mr. Yoo argues, the search incident to his arrest was also unlawful andcontrary to s. 8 of the Charter, namely, his right to be secure against unreasonable search and seizure. [21] The Crown argues there was no breach of any of Mr. Yoo's Charter rights in that Constable Stamatakis had reasonable groundsto arrest Mr. Yoo. The Crown submits a number of cases have now held that the smell of raw marihuana may form the basis forreasonable grounds to arrest.

The Crown argues that the grounds needed to effect a lawful arrest do not need to meet the standard neededto establish a prima facie case for conviction. [22] In my view, the legal principles applicable to this case are not in dispute. However, what is in dispute is how those principlesshould be applied in the specific circumstances of this case.

I will begin by noting that it is trite law that an accused person in a criminalproceeding who seeks to have evidence excluded under s. 24(2) of the Charter must prove on a balance of probabilities that the evidencewhich he seeks to exclude has been obtained in violation of a right guaranteed by the Charter and that its admission into evidence wouldbring the administration of justice into disrepute. The Arrest [23] I will now address the legal principles related to arrest and search together with the relevant circumstances.

A police officer mayarrest a person whom he or she has reasonable grounds to believe is committing or has committed an indictable offence. An officer mayalso arrest a person for a

summary conviction offence, but only if the officer finds the person committing the offence. Accordingly,whether the Crown proceeds by indictment or by

summary conviction is significant because the factors a court must consider inanalyzing the validity of an arrest are different depending on how the Crown proceeds. It is acknowledged that the offence in this caseproceeded on a

summary conviction basis. Therefore, s. 495(1) of the Criminal Code applies. [24] Section 495(1)(

b) provides that a peace officer can arrest a person without a warrant "whom he finds committing a criminaloffence." The phrase, "finds committing," has been considered in several cases. In one case, R. v. Biron (1976), C.C.C. (2d) 513, themajority of the Supreme Court of Canada interpreted that phrase to mean apparently committing the offence.

In a more recent case, R. v.Abel 2008 BCCA 54, the British Columbia Court of Appeal wrote that "finds committing" means that the person effecting the arrestmust have come upon someone who, at the very moment and the very place, is engaged in criminal activity. [25] These and other cases were reviewed in R. v. Burgess 2009 BCPC 74, where my sister judge Howard PCJ concluded that thevalidity of an arrest under s. 495(1)(

b) is to be assessed applying the same objective standard applied under s. 495(1)(a). There must bereasonable grounds for the arrest. The arrest will be lawful if an ordinary person faced with the same circumstances as the arrestingofficer would have concluded that the person arrested was apparently committing a criminal offence. A police officer may conduct asearch of a person incident to lawful arrest. The search may include the person's immediate surroundings, including a motor vehicle. Asearch may also be conducted for weapons or for evidence related to the offence for which the suspect was arrested.

The Smell of Marihuana [26] The issue at the heart of this case is whether the odour of raw marihuana smelled by the arresting officer was sufficient to giverise to a valid arrest. The distinction between an arrest based on reasonable grounds and an arbitrary arrest is set out in R. v. Storrey, (SCC), [1990] 1 S.C.R. 241. It is not sufficient for a police officer to personally believe that he or she has reasonablegrounds to make an arrest. (The older cases often refer to "reasonable and probable grounds" because that was the wording of federalstatutes at the time those cases were decided. As was noted in R. v.

Webster 2008 BCCA 458, the words "and probable" no longerappear in federal statutes). It must be objectively established that reasonable grounds did, in fact, exist. That is to say that a reasonableperson placed in the position of the police officer must be able to conclude there were indeed reasonable grounds for arrest. [27] In the Burgess case, Howard J. summarized a number of cases dealing with the odour of marihuana.

The cases she summarized,and other cases relied on by the Crown, suggest that evidence of odour alone may be a basis on which to arrive at an objective belief thata crime has been or is about to be committed. However, the ultimate conclusion on that issue will always depend on the facts of eachcase. [28] In R. v. Brownridge, [2000] B.C.J. No. 1549, the court found there were objectively reasonable and probable grounds for thepolice officer to believe that marihuana was in the van. In that case, the police officer had stopped the accused, who was driving a van,for speeding.

The officer testified he had smelled the odour of raw marihuana while talking to the accused and the odour was comingfrom inside the van. [29] These two observations caused him to believe there was raw marihuana located somewhere inside the van. As I have noted, thecourt in that case found there were reasonable and probable grounds for the officer to believe the marihuana was in the van.

However,the conclusion that there were objectively reasonable grounds to support the officer's belief that there was marihuana in the van was notthe end of the inquiry. [30] The court in Brownridge next considered the question whether there were reasonable grounds to believe that the accused was inpossession of any marihuana in the van. In Brownridge, the Crown's case fell on this issue.

The judge concluded the police officer'ssubjective belief never rose above mere suspicion that the accused had the guilty knowledge required to constitute possession. [31] In Burgess, Howard J. reviewed the Brownridge decision and concluded:

In my view, Brownridge stands for the proposition that an officer's belief that the marihuana is in a vehicle based on the mere smell of bulk marihuana emanating from that vehicle may well be held to be an objectively reasonable one. Whether there was also a reasonable basis for believing that in any given case one or all of the occupants of that vehicle may be in possession of that marihuana will depend on the facts of the case. [ 32 ] In this case, Constable Stamatakis testified he believed he had reasonable grounds to arrest based on the strong odour of marihuana from inside the vehicle.

He decided initially to arrest all of the occupants. He said the smell of marihuana in the car was so strong it was impossible not to smell it. Consequently, in his view, all of the occupants of the vehicle had knowledge. [ 33 ] The facts of this case are very different from the facts of the cases cited both by counsel for the defence and for the Crown. Some of those differences are: 1. Although the Escalade was stopped for a police check, there was nothing illegal or suspicious about the manner in which it was driven. 2. There was nothing suspicious about the behaviour of the occupants. 3.

There was no evidence that the area where the car was seen and stopped was in any way connected to any kind of illegal activity. 4. Nothing was done by any of the occupants to attempt to mask the odour apparently emanating from the car. 5. There was no evidence that the driver or Mr. Yoo, when they were spoken to, acted in a suspicious manner, were excessively nervous, or similar reactions that have been noted in other cases. 6. The accused in this case was one of four occupants in the vehicle. He was not driving the car. 7. The drugs eventually found on Mr. Yoo were not in plain view. 8.

It was not clear to the officer which of the occupants had the marihuana or whether it was in the vehicle. [ 34 ] In particular, in relation to Mr. Yoo himself, the officer acknowledged: (

a) At the point he placed Mr. Yoo under arrest or that he told Mr. Yoo he was under arrest, he had not smelled anything on him. Constable Stamatakis said at that point the smell from the car was so strong he could not say who specifically may have possessed the marihuana. (

b) Constable Stamatakis testified that at one point, when he was standing about five feet from Mr. Yoo, he smelled marihuana coming from Mr. Yoo. However, he acknowledged he noticed the smell coming from Mr. Yoo while he was reading him his Charter rights. (

c) Constable Stamatakis further acknowledged that at the time he placed Mr. Yoo under arrest, he did not know if Mr. Yoo had marihuana on his person. [ 35 ] Based on the testimony I heard in this case, I find that Constable Stamatakis had already placed Mr. Yoo under arrest when he smelled marihuana emanating from Mr. Yoo's person. He did not know at the time he placed Mr. Yoo under arrest whether there was marihuana on his person or whether there was marihuana in the car.

Accordingly, the basis for the arrest was the mere smell of raw marihuana emanating from the vehicle. [ 36 ] As noted in Burgess , the officer's belief that marihuana was in the vehicle based only on smell may have been objectively reasonable. However, whether there was also a reasonable basis for believing the occupant, in this case Mr. Yoo, may have been in possession is the question that has to be addressed. [ 37 ] In my view, there was no reasonable basis at the time that Mr. Yoo was placed under arrest for the officer to conclude Mr. Yoo had marihuana in his possession.

Further, even if marihuana had been found in the car, at the point Mr. Yoo was placed under arrest the officer had no basis to conclude that Mr. Yoo had control of the vehicle or was in any way in possession of its contents. Mr. Nguyen was the driver and Mr. Nguyen had told the officer it was his mother's car. [ 38 ] If the police officer had no basis for concluding that Mr. Yoo had personal possession of marihuana or that Mr. Yoo had control of the vehicle and its contents, I cannot see on what basis he could have concluded that Mr. Yoo was apparently committing an offence.

I conclude, in the specific circumstances of this case, that the arrest of Mr. Yoo was not a lawful arrest. Accordingly, I find it was not proper for the officer to search him incident to arrest. Section 24(2) Analysis [ 39 ] I now turn to the s. 24(2) analysis. The question which now arises is whether the evidence so obtained should be excluded under s. 24(2) of the Charter . That

section provides that: 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. [ 40 ] In R. v. Grant , 2009 SCC 32 , and in the companion case, R. v. Harrison , 2009 SCC 34 , the court provided a

summary of the revised approach to a s. 24(2) analysis. In Grant , the court said: A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the

administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewedin a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court mustassess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousnessof the Charter-infringing state conduct ... (2) the impact of the breach on the Charter-protected interests of the accused ... and (3)society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessmentsunder each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring theadministration of justice into disrepute. (para 71) Seriousness of the Charter-Infringing conduct [41] This branch focuses on whether the court should disassociate itself from conduct that shows wilful or flagrant disregard of theCharter by the police. If the police conduct is deliberate and in violation of an established Charter standard, then exclusion of theevidence is favoured.

The main concern on this branch of the inquiry is to preserve public confidence in the rule of law. [42] In Grant, the court identified a spectrum of state conduct from minor violations to serious disregard for Charter rights. In thiscase, while I conclude that the violation by Constable Stamatakis was not done in bad faith in the sense that he appreciated he wasdepriving Mr. Yoo of his Charter rights, his behaviour in not taking the time that was needed to assess the situation and in not taking amore cautious approach is a factor I have taken into account.

Impact on Charter-Protected Interests of the Accused [43] This branch of the s. 24(2) analysis evaluates the extent to which the breach actually undermined the Charter rights infringed. The greater the impact on the Charter-protected interests of the accused, the more likely that the admission of the evidence willundermine public trust and bring the administration of justice into disrepute. [44] In Grant, the court said an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacyand, more broadly, human dignity.

An unreasonable search that intrudes on an area in which the individual reasonably enjoys a highexpectation of privacy or that demeans his or her dignity is more serious than one that does not. In this case, the detention and searchhad an impact on Mr. Yoo's liberty and privacy interests. The question is how that impact should be characterized. As was noted inHarrison, being stopped and subjected to a search by police without justification impacts on a person's rightful expectation of liberty andprivacy in a way that is much more than trivial. As Mr. Justice Iacobucci observed in R. v.

Mann, 2004 SCC 52 , [2004] 3S.C.R. 59, the relative non-intrusive nature of the detention and search must be weighed against the absence of any reasonable basis forjustification. Society's Interest in Adjudication on the Merits [45] The third issue is whether the truth-seeking function of a criminal trial is better served by the inclusion or exclusion of theevidence.

At this stage, the court considers factors such as the reliability of the evidence and its importance to the Crown's case. [46] The admission of unreliable evidence does not serve the public interest in uncovering the truth or the interest of the accused in afair trial. The importance of the evidence to the Crown's case is relevant but corollary to the inquiry into the reliability of the evidence.

Section 24(2) focuses on the long-term repute of the justice system rather than the short-term public clamour for a conviction. [47] In Harrison, the court said: The evidence of the drugs obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtuallyconclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking functionof the trial. While the charged offence is serious, this factor must not take on disproportionate significance.

As noted in Grant, while thepublic has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vitalinterest in a justice system that is beyond reproach ... [48] In this case, Mr. Yoo was found in possession of a total of 28.04 grams of marihuana in two plastic bags. I acknowledge that thisis reliable physical evidence, but in all of the circumstances, I agree with the approach suggested in Harrison and in Grant that it mustnot take on disproportionate significance. Balancing [49] Finally, I turn to balancing the various factors.

In Harrison, the court said: The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question ofwhether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighedin the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration ofjustice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of thecriminal justice system.

Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be[addressed]. Taken together, I find that the factors identified in Grant and Harrison support the exclusion of the drug evidence found in this case. The harmful effect of subjecting individuals to Charter-infringing detentions and personal searches outweighs the benefit of includingthe physical evidence in this case. Accordingly, I find that the evidence seized as a result of the arrest and search of Mr. Yoo should beexcluded. [REASONS FOR JUDGMENT CONCLUDED]