R. v. Chen and Le Date:, 2012 BCPC 233

Citation: R. v. Chen and Le Date: 20120621 2012 BCPC 0233 File No: 202132-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHUNG YU CHEN BAO-PHUC LE RULING #1 ON VOIR DIRE OF THE HONOURABLE JUDGE B.E. BASTIN (Re: Bao-Phuc Le) Counsel for the Crown: M. Knowlan Counsel for Accused Chen : K. Merrigan Counsel for Accused Le : D. Baker

Place of Hearing: Vancouver , B.C. Date of Hearing: June 21, 2012 Date of Judgment: June 21, 2012 [ 1 ] THE COURT: Regina v. Chung Yu Chen and Bao-Phuc Le, Ruling Number 1 on voir dire for the defendant, Bao-Phuc Le. [ 2 ] The two defendants, Mr. Chen and Mr. Le, are jointly charged with two counts in Information number 202132. Count 1 charges the offence of producing cannabis (marihuana).

Count 2 charges possession of marihuana for the purpose of trafficking. [ 3 ] At the outset of the trial, the court declared what has been referred to as an omnibus voir dire , wherein all evidence relevant to various defence Charter challenges would be heard. This ruling relates only to the Charter challenges made on behalf of the defendant, Mr. Le. [ 4 ] An overview of this case is necessary to put this ruling in context. On May 28th of 2009, Burnaby RCMP received an anonymous tip that marihuana was being grown in a residence at 7688 McGregor Avenue, in Burnaby, British Columbia.

An investigation of the residence by the Burnaby RCMP led to an application for a search warrant being made on November 18th, 2009. The application was refused by a judicial justice of the peace. [ 5 ] The police investigation continued into the early months of 2010. Finally, on April 8th of 2010, a search warrant was granted for the McGregor Avenue residence. [ 6 ] The execution of the search warrant led to the discovery of a significant marihuana grow operation in the residence. During the time of the execution of the search warrant, the defendant, Mr.

Le, arrived at the residence in a motor vehicle and drove into the driveway. There he was arrested by Constable Coogan of the Burnaby RCMP. [ 7 ] The vehicle driven by Mr. Le was a white Acura TL, bearing British Columbia licence number 268 NBA. In this judgment, that motor vehicle will be referred to as "the Acura." [ 8 ] The arrest of Mr. Le was made on the basis of grounds acquired by Corporal Aitken of the Burnaby RCMP. Those grounds were provided by Corporal Aitken to Constable Greenhall, who in turn informed Constable Coogan of the grounds, and Constable Coogan acted on those grounds in arresting Mr.

Le. [ 9 ] Part of the grounds for the arrest of Mr. Le involved an event that occurred on January 26, 2010. On that date, Constable Musinovic, and other RCMP members, were conducting surveillance of the Acura motor vehicle mentioned above. Constable Musinovic requested the assistance of a uniformed unit to stop the Acura vehicle and determine the identity of the driver. [ 10 ] That traffic stop was performed by Constable Reinhart at approximately 4:15 p.m. on January 26, 2010 at a location at 16th Avenue and Cascade Street in Burnaby. Constable Reinhart obtained Mr.

Le's full identification from him the course of the traffic stop. [ 11 ] The arrest of Mr. Le at the McGregor Avenue residence was effected by Constable Coogan at 10:13 p.m. on April 8th, 2010. Just prior to the arrest, Mr. Le had verbally identified himself to the officer as "Bao-Phuc Le." [ 12 ] After the arrest, Mr. Le was searched pursuant to it. In the course of that search, Constable Coogan located in one of Mr. Le's pockets, a key ring that held three keys. One of the keys was able to unlock the side door of the garage of the residence.

Another one of the keys unlocked the door inside the garage that led into the main living area of the residence. [ 13 ] What is to be determined on this voir dire is the defence application, made on behalf of Mr. Le, to exclude evidence that the Crown seeks to have admitted against Mr. Le on the trial. The position advanced by defence counsel is that the traffic stop conducted by Constable Reinhart on January 26th, 2010 was unlawful and resulted in Mr. Le being arbitrarily detained. The defence submits that Mr. Le's s. 9 Charter right not to be arbitrarily detained was breached.

It is submitted that the evidence obtained from the traffic stop ought to be excluded from the trial pursuant to s. 24(2) of the Charter . The evidence in question is the identification of Mr. Le obtained by Constable Reinhart in the course of the traffic stop. [ 14 ] The second part of the subject defence application concerns the arrest of Mr. Le. Counsel for the defence submits that without the evidence of the January 26th, 2010 traffic stop of Mr. Le by Constable Reinhart, Corporal Aitken, and therefore Constable Coogan, did not have reasonable grounds to arrest Mr.

Le. [ 15 ] The defence submits that the arrest of Mr. Le was unlawful, and that, as a result, the search of Mr. Le's person after the arrest was also unlawful and unreasonable. Therefore, it is submitted that Mr. Le's s. 8 Charter right to be secure against unreasonable search or seizure was breached, and that the product of the search, namely the house keys, ought to be excluded from the trial evidence pursuant to s. 24(2) of the Charter . [ 16 ] The position of the Crown in this application is that both the traffic stop and the arrest of Mr. Le were lawful. The Crown submits that the arrest of Mr.

Le was lawful even if the evidence of the traffic stop is excluded from Corporal Aitken's grounds for authorizing the arrest of Mr. Le. [ 17 ] Finally, the Crown submits that if the court finds a breach of Mr. Le's s. 9 Charter right referable to the traffic stop, and/or a breach of Mr. Le's s. 8 Charter right in relation to the post arrest search of his person, the evidence obtained in either circumstance should not be excluded from the trial because its admission would bring the administration of justice into disrepute pursuant to s. 24(2) of the Charter .

[ 18 ] I will now review the evidence given on the voir dire that relates to this application. The evidence on the voir dire that relates to the defence challenge to the admissibility of the evidence obtained in the course of the January 26th, 2010 traffic stop, comes primarily from Constable Reinhart. [ 19 ] Constable Reinhart gave her evidence in chief on the voir dire on May 1st and May 2nd of 2012. Her evidence in cross- examination was given on two separate dates, namely May 2nd, 2012 and May 10th, 2012.

The two separate segments of cross- examination occurred because of Crown disclosure that took place after the first segment of cross-examination. [ 20 ] The disclosure involved three short video clips showing an Asian male under police surveillance on January 26th, 2010. There is also audio on the clips where the voice of Constable Musinovic can be heard.

The three video clips are contained on the DVD disk that is entered as Exhibit XXX on the voir dire . [ 21 ] The important part of the audio heard on Exhibit XXX concerns Constable Musinovic's instructions to Constable Reinhart as to the stopping of the Acura vehicle. In this regard, Constable Musinovic can be heard on the disk to make the following comment to Constable Reinhart: "If you can find an infraction, that would be excellent; if you don't, that's fine. Just run a plate and tell him it's a female RO." [ 22 ] The evidence from the video clips is important in assessing the evidence of Constable Reinhart.

In her evidence in chief, given on May 2nd, 2012, Constable Reinhart testified that she first learned a male was driving the Acura vehicle when the vehicle turned to the left and she was able to see the driver. [ 23 ] In the course of cross-examination on May 10th, 2012, after viewing and listening to the DVD that is Exhibit XXX, Constable Reinhart acknowledged that her evidence regarding knowledge of a male driving the Acura vehicle was incorrect and misleading. [ 24 ] Constable Reinhart testified that her evidence in chief, given on May 2nd, 2012, was incorrect because of a faulty recollection of events that occurred more than two years prior to the giving of her evidence. [ 25 ] When pressed by defence counsel, suggesting that her evidence of May 2nd, 2012 did not seem to demonstrate any uncertainty as to her recollection of the events of January 26th, 2010, Constable Reinhart testified that her evidence given on May 2nd, 2012 was to the best of her recollection, and that that recollection turned out to be inaccurate. [ 26 ] Defence counsel also suggested to Constable Reinhart that the stopping of the Acura vehicle was done at the direction of Constable Musinovic for the sole purpose of identifying the driver and not for any legitimate purpose related to the enforcement of the Motor Vehicle Act .

Constable Reinhart answered this suggestion by testifying that she thought the suggestion of Constable Musinovic was a plausible reason to stop the vehicle; that is because of the discrepancy between the female registered owner and the male driver. [ 27 ] Constable Reinhart was asked in cross-examination if she knew a male by the name of Le was associated to the Acura vehicle, and she answered that she may have known that but could not recall. [ 28 ] Constable Reinhart stated several times in her evidence that she simply could not recall events related to the stopping of the Acura vehicle on January 26th, 2010. [ 29 ] I turn now to review the evidence given on the voir dire that relates to the arrest of Mr.

Le at the McGregor Avenue residence. [ 30 ] As noted above, that arrest was made by Constable Coogan at approximately 10:13 p.m. on April 8th, 2010. At the time of the arrest, the marihuana grow operation had already been discovered in the McGregor Avenue residence, the search warrant having been executed at approximately 4 p.m. that same day. [ 31 ] Constable Coogan made it clear in his evidence that his grounds for arresting Mr. Le came from Corporal Aitken, and were given to him, that is Constable Coogan, by Constable Greenhall, who had spoken to Corporal Aitken. [ 32 ] The grounds for the arrest of Mr.

Le then comes solely from Corporal Aitken. It is therefore necessary to fully examine those grounds as they emerge from the evidence of Corporal Aitken on the voir dire . [ 33 ] Corporal Aitken testified that he was the supervisor of the Marihuana Enforcement Team, and was overseeing the execution of the search warrant at 7688 McGregor Avenue. The officer testified that he prepared a briefing note based upon the entire investigation of the McGregor Avenue residence. That briefing note is entitled "search plan 2009-25630" and is marked as Exhibit D on the voir dire .

The search plan referred to "targets" who were persons "associated to the alleged offence." One of those targets was the defendant, Bao-Phuc Le, who was designated as target T3 in Exhibit D. [ 34 ] Corporal Aitken testified that in his opinion there were reasonable grounds to arrest Mr. Le in relation to the McGregor Avenue grow operation because Mr.

Le had been identified on January 26th, 2010 as the driver of the Acura motor vehicle that had been seen at the McGregor residence by surveillance officers on that day, and on several other occasions in the course of the investigation. [ 35 ] Of particular note, in the opinion of the officer, was the presence of the Acura vehicle and two men associated with the vehicle, at what the officer believed was a "harvest party" taking place for several hours at the residence on a date the officer first testified was March 18th, 2010. In cross-examination the officer corrected the date to March 17th of 2010, which was St.

Patrick's Day. [ 36 ] Corporal Aitken testified that he was fully aware of the contents of the Information to Obtain the Search Warrant for the McGregor residence that was prepared by Constable Musinovic. Corporal Aitken's evidence as to why he believed Mr. Le was arrestable is fully set out at page 12 of the transcript of his evidence as follows: On one of the dates during the course of the investigation, Your Honour, that vehicle 286 NBA was street checked by a uniformed member, subsequent to leaving the residence. Mr. Le was identified through a valid driver’s licence at that point in time, and as such was

his identity confirmed he was made a subject of interest in the file, and then as that particular vehicle was seen again at the residence, andfrom the information that was contained within the affidavit regarding that vehicle and the times that it had attended the residence, inaddition to that -- that incident on the evening of March 18th, I formed the grounds that Mr.

Le, as the person most commonly seenoperating that vehicle, was -- and the fact that he was seen coming and going from that residence, including occasions on his own, that hehad care and control of that residence, free access to that residence, and as such was a suspect, and should he be found at the residence oron the property that he was to be arrested. [37] Corporal Aitken did not specifically enumerate the dates when surveillance officers observed the Acura vehicle at theMcGregor Avenue residence. It is necessary to refer to the ITO, that is part of Exhibit F on the voir dire, to ascertain that information.

That reference will be done later in this ruling. [38] I will now summarize the submissions of counsel as they relate to the Charter issues to be decided on the voir dire. Withrespect to the traffic stop of Mr. Le, conducted by Constable Reinhart on January 26, 2010, counsel for the defence submits that the stopwas done without a legitimate or lawful purpose. Defence counsel submits that the only possible legitimate reason for stopping thevehicle driven by Mr. Le, was because the vehicle was registered to a female, and Mr.

Le, a male, was driving the vehicle. [39] Defence counsel submits that at least on the balance of probabilities, the court should find that the police knew before the stopthat Mr. Le was driving, and was lawfully associated to the vehicle. Information concerning that association is set out at paragraph 67 ofthe ITO.

That information was learned by Constable Musinovic on December 1st, 2009. [40] Defence counsel submits that Constable Reinhart's evidence, as to the purported grounds for the traffic stop, should be rejectedbecause of the serious conflict in her evidence about the stop that arose after the material in Exhibit XXX came to light. [41] Defence counsel submits that the traffic stop of Mr. Le was concocted, and was for a general investigation purpose, andtherefore resulted in the breach of Mr.

Le's s. 9 Charter right not to be arbitrarily detained. [42] The defence submits that the police misconduct in stopping the Le vehicle is a serious matter. The defence submits that theidentification evidence provided by Mr. Le was conscriptive because the law required Mr.

Le as a driver of a motor vehicle to fullyidentify himself to Constable Reinhart, including the production of his driver's licence. [43] In the circumstances, the defence submits that to admit the identification evidence into the trial would bring the administrationof justice into disrepute, pursuant to s. 24(2) of the Charter. [44] The defence position advanced with respect to the traffic stop is primarily based upon the British Columbia Court of Appealdecision in R. v. Kaddoura, 2009 BCCA 113 , [2009] B.C.J. No. 526. As to the case of R. v.

Nolet, [2010] S.C.C. 24, cited byCrown Counsel, the defence submits that that case applies to a police stop of a motor vehicle for a legitimate regulatory purpose, and thatsuch was not the case in the stopping of the Le vehicle on January 26, 2010. [45] If the court accepts the defence position advanced with respect to the January 26, 2010 traffic stop of Mr. Le, it is submitted bycounsel for the defence that the evidence of the identification of Mr. Le flowing from the stop should not be considered as part of thegrounds for Corporal Aitken to conclude that Mr.

Le was "arrestable." When that information is removed from the grounds for arrestadvanced by Corporal Aitken, the defence submits that they were not lawful grounds for Mr. Le's arrest. [46] In argument on this point, defence counsel referred to the cases of R. v. Storrey, [1990] S.C.R. No. 241, R. v. Huynh, [2010]B.C.J. No. 2140, and R. v. Debot, (SCC), 1989 2 S.C.R. 1140. [47] Counsel for the defence stresses in argument that absent the evidence of the January 26, 2010 traffic stop, Mr.

Le was not at anytime identified as being at the McGregor Avenue residence, save for the date when he was arrested there. [48] Defence counsel concedes that the police had the lawful authority to detain Mr. Le at the McGregor residence on April 8th,2010, however it is submitted that only a pat down search would be permitted in that circumstance, not the intrusive search of Mr. Le'spockets that, in fact, occurred (see R. v. Mann, 2004 SCC 52 , [2004] S.C.J. No. 49). [49] Defence counsel submits that the analysis of the court in the Nguyen case ought to apply to the case of Mr.

Le, and the courtshould exclude from the trial the keys seized from Mr. Le. [50] In short, the defence submits that the search of Mr. Le's person was not incidental to a lawful arrest, therefore it is submittedthat Mr. Le's s. 8 Charter right to be secure against unreasonable search or a seizure was breached. [51] The defence submits that in all of the circumstances, the fruits of the search of Mr.

Le, that is the house keys, ought to beexcluded from the trial evidence pursuant to s. 24(2) of the Charter, as the admission of that evidence would bring the administration ofjustice into disrepute. [52] Counsel for the Crown submits that the traffic stop of Mr. Le and his arrest were both lawful and that the defence applicationshould therefore be dismissed. The Crown submits that the arrest of Mr.

Le was lawful even without the traffic stop of January 26, 2010being considered as part of the grounds for that arrest. [53] In the alternative, with respect to both the traffic stop and the arrest, the Crown submits that the evidence resulting from each ofthose events ought not to be excluded from the trial pursuant to s. 24(2) of the Charter, should the court find a Charter breach withrespect to either event. [54] The Crown submits that in either circumstance it would not bring the administration of justice into disrepute by admitting the

challenged evidence into the trial. [55] With respect to the traffic stop of Mr. Le, Crown counsel submits that the Kaddoura case relied on by the defence has beensuperseded by the Supreme Court of Canada case of R. v. Nolet. In Nolet, the court held that a detention arising from a traffic stop isjustified if a vehicle is stopped by police for a legitimate regulatory purpose.

The Crown submits that the Acura vehicle driven by Mr.Le was stopped for a legitimate regulatory purpose. [56] In this regard, the Crown submits that Constable Reinhart's evidence can be accepted to the effect that she checking the driverof the Acura vehicle for a valid driver's licence and registration, and also to determine if the driver was prohibited, or the vehicle wassubject to impound. The Crown submits that all of these actions are legitimate reasons for the police to stop a vehicle pursuant to s, 70and s, 73 of the British Columbia Motor Vehicle Act. [57] Crown counsel refers to the case of R. v.

Nguyen, 2008 BCPC 105 , 2008 B.C.P.C. 0105 in support of this argument. Crown counsel submits that Mr. Le was not arbitrarily detained. [58] If the court finds otherwise, the Crown submits that by application of the principles of law, respecting s. 24(2) of the Charter,that arise from the Supreme Court of Canada case of R. v. Grant 2009 SCC 32 , [2009] S.C.J. No. 32, the evidence flowingfrom the traffic stop of Mr.

Le should not be excluded from the trial. [59] As to the seriousness of the police conduct, the Crown submits that it was not severe or deliberate, and that there was not awilful or flagrant disregard for Mr. Le's Charter rights. The Crown submits that Constable Reinhart's error in her evidence was amistake, and does not equate to acting in bad faith. [60] The Crown submits that the impact on Mr. Le's privacy interests, occurring as a result of the traffic stop was minimal and at thelow end of the scale. [61] Finally, the Crown submits that the identification evidence related to Mr.

Le that was obtained by the traffic stop, is importantto the Crown case on a relatively serious charge of producing marihuana. [62] The Crown submits that there is a strong public interest in having the subject case decided on its merits. [63] The Crown submits that if the traffic stop of Mr. Le violated his s. 9 Charter right not to be arbitrarily detained, in all thecircumstances it would not bring the administration of justice into disrepute to admit his trial evidence, the evidence obtained from thetraffic stop. [64] I turn now to address the argument of the Crown related to the arrest of Mr. Le.

Here the Crown submits that the arrest of Mr.Le was clearly lawful if the evidence flowing from the vehicle stop of Mr. Le on January 26th, 2010 is not excluded from considerationfor the grounds for the arrest. The Crown submits simply that the grounds for the arrest of Mr.

Le that were held by Corporal Aitkenand have been set out above in this judgment were more than sufficient to meet the test set out in the Storrey case to constitute a lawfularrest. [65] Crown counsel submits that even if the evidence of the January 26th, 2010 traffic stop is excluded from Corporal Aitken'sgrounds for arrest, there is still sufficient lawful basis for the arrest of Mr. Le. In this regard, the Crown submits that Mr.

Le wasobviously driving the Acura motor vehicle at the McGregor Avenue residence on April 8th, 2010 when he was arrested there. [66] In addition, the Crown points to the information in the possession of the police that Bao-Phuc Le was "associated" to the Acuravehicle (see paragraph 67 of the ITO, Exhibit F on the voir dire). [67] Crown counsel also refers to the information possessed by the police as to Mr.

Le's suspected involvement in previousmarihuana grow operations (paragraph 68 of Exhibit F on the voir dire). [68] Crown counsel submits that even without the identification evidence from the January 26th, 2010 traffic stop, Corporal Aitkenhad reasonable grounds to believe that Mr. Le was at the residence of the grow operation on a number of occasions, and that the onlyreason for him to be there was to be involved in the grow operation taking place in the residence. [69] As general support for the Crown's submission and the lawfulness of the arrest of Mr. Le, Crown counsel has referred to thecases of R. v.

Chaif-Gust [2011] BCCA 528, R. v. Le, 2001 BCCA 658, and R. v. Le, 2006 BCCA 463. Crown counsel also refers to thecase of R. v. Whitaker, 2008 BCCA 174. In that case, the arrest of the accused was found to be unlawful as not based on reasonablegrounds. Crown counsel submits that the grounds for arrest in the subject case are much stronger than those in the Whitaker case. [70] In

summary, the Crown submits that the arrest of Mr. Le was lawful and that the search of his person was lawful as an incidentto that lawful arrest. The Crown submits that there was no breach of Mr. Le's s. 8 Charter right in this case. If the court finds a breachof Mr. Le's s. 8 Charter rights, the Crown submits that pursuant to s. 24(2) of the Charter, it would not bring the administration of justiceinto disrepute to admit into the trial the challenged evidence, that evidence being the keys seized from Mr.

Le by Constable Coogan. [71] The Crown submits that the three main considerations required by the Grant case all mitigate in favour of the inclusion of thecontested evidence into the trial. [72] I will now set out my findings with respect to the traffic stop of Mr. Le on January 26th, 2010.

On this issue, I agree with thedefence submission to the effect that the Supreme Court of Canada decision in Nolet does not mean that the British Columbia Court ofAppeal decision in Kaddoura is not good law. [73] The Kaddoura case implicitly supports the proposition that a police traffic stop of a person driving a motor vehicle, can amountto an arbitrary detention if the stop is not done for a legitimate purpose.

[74] The same approach was taken by the Supreme Court of Canada in the case of R. v. Harrison, 2009 SCC 34 , [2009]S.C.J. No. 34. In that case, a police officer stopped a motor vehicle driven by the accused on the basis of suspicion alone. The trialjudge held that the traffic stop constituted an arbitrary detention. That ruling was accepted by the Supreme Court of Canada. Atparagraph 20 of the Harrison judgment Chief Justice McLachlin said simply: The Charter breaches in this case are clear.

The only issue before the court in Harrison was whether or not certain evidence ought to be excluded from the trial. [75] My finding in the subject case is that Constable Reinhart did not stop the Le vehicle for a legitimate purpose. I find thatConstable Reinhart's evidence as to her thoughts in relation to stopping the Acura vehicle, is of no weight because the officer testifiedthat she had no recollection at all of that event. [76] In addition, the officer acknowledged that her evidence in chief as to the stop was incorrect and misleading.

In my opinion,Constable Reinhart was acting as the agent of Constable Musinovic in conducting the traffic stop. Constable Musinovic was fully awareof the status of the Acura vehicle as evidenced by the information about the vehicle that he acquired on December 1st, 2009 and is setout at paragraph 67 of the ITO that is part of Exhibit F on the voir dire. [77] Because the status of the Acura vehicle was fully known by the police collectively, the vehicle could only be lawfully stoppedby the police for a driving infraction. That did not occur.

I find at least on the balance of probabilities, that the stopping of the vehicledriven by Mr. Le was arbitrary and resulted in Mr. Le being arbitrarily detained. [78] Mr. Le, as the driver of a motor vehicle, was obliged or obligated at law to identify himself to Constable Reinhart and toproduce his driver's licence and registration documents for the vehicle. Mr.

Le was, in effect, conscripted to provide to the policeidentification information related to himself. [79] As to whether that information ought to be excluded from the trial evidence, I am, of course, required to apply theconsiderations set out in the Grant case to determine whether or not the admissibility of the evidence would bring the administration ofjustice into disrepute pursuant to s. 24(2) of the Charter. [80] As to the seriousness of the police conduct, I would characterize it as quite serious. I agree with the defence submission that thepolice exhibited a cavalier attitude towards Mr.

Le's Charter right not to be arbitrarily detained. [81] Constable Musinovic obviously knew that there were legal considerations involved in the traffic stop of the vehicle driven byMr. Le. This view is evidenced by Constable Musinovic instructing Constable Reinhart to stop the motor vehicle for a Motor VehicleAct infraction if possible. [82] In my opinion, Constable Musinovic ought to have taken greater care in deciding how, if at all, the vehicle driven by Mr. Lewas to be stopped.

The officer could have, and perhaps should have, sought the advice of Crown counsel on this important aspect of thepolice investigation in this case. [83] In instructing Constable Reinhart as he did, Constable Musinovic did not act in good faith, in my opinion. I would characterizehis conduct as careless and not respectful of Mr. Le's s. 9 Charter right. [84] As to the impact of the breach of the Charter protected interest of Mr. Le, I say simply that Mr. Le was entitled to operate theAcura motor vehicle without being interfered with by the police unless he committed a motor vehicle infraction.

I would expect that anydriver of a motor vehicle stopped by the police would be unsettled, embarrassed and uncomfortable, particularly in rush hour traffic as inthis case. [85] Citizens lawfully driving a motor vehicle in circumstances like those of Mr. Le, are entitled not to be subject to suchunpleasantries. It is of great significance on the s. 24(2) inquiry, to consider that the evidence obtained from Mr. Le as to hisidentification was conscriptive in nature.

That factor weighs heavily against the admission of the evidence, in my opinion. [86] The subject case, like most cases, is one where there is a high level of public interest in having the case decided on its merits. The identification of Mr.

Le is important evidence for the Crown in the subject prosecution. [87] Weighing the considerations that apply to s. 24(2) of the Charter, I have concluded that to admit the challenged evidence intothe trial would bring the administration of justice into disrepute. [88] I therefore rule that all evidence obtained by Constable Reinhart that related to the identification of Mr. Le as the driver of theAcura vehicle on January 26th, 2010 is not admissible on the trial, and that evidence cannot be considered as part of the grounds for thearrest of Mr.

Le on April 8th, 2010. [89] I turn now to examine the lawfulness of the arrest of Mr. Le. That arrest was made on the basis of grounds acquired byCorporal Aitken. The lawfulness of the arrest must be determined according to the law set out in the Supreme Court of Canada case inthe Storrey decision. The legal test is whether the arresting officer had both subjectively and objectively reasonable and probablegrounds to believe that the arrested person has committed an indictable offence. The power to arrest is given by s. 495(1)(

a) of theCriminal Code. That

section has been amended since the Storrey decision. The

section now requires the arresting officer to have"reasonable grounds" to believe a person has committed an indictable offence. [90] Taking that amendment into consideration, the Supreme Court of Canada in the case of R. v. Feeney (SCC),[1997] S.C.J. No. 49, ruled as follows, at paragraph 24 of the judgment: Section 495(1)(

a) sets out the subjective requirement for a warrantless arrest: the peace officer himself or herself must believe reasonable

grounds exist. An objective requirement was added in R. v. Storrey, (SCC), [1990] 1 S.C.R. 241: objectively there mustexist reasonable and probable grounds for the warrantless arrest to be legal. [91] That test has been consistently applied in British Columbia. A sampling of British Columbia decisions on this issue includes R.v. Shokar, 2006 BCSC 770, R. v. Le, 2009 BCCA 14, and quite recently R. v. McLellan, 2012 BCSC 39. [92] Corporal Aitken's grounds for authorizing the arrest of Mr. Le were significantly based upon the identification of Mr. Le as thedriver of the Acura vehicle on January 26th, 2010.

That is so because the Acura vehicle was observed by police surveillance at theMcGregor Avenue residence on January 26th, 2010, before the traffic stop of Mr. Le. The court has ruled that the traffic stop evidencecannot be considered as part of the grounds for the arrest of Mr. Le. It is therefore not possible to assess Corporal Aitken's subjectivegrounds for the arrest of Mr. Le, absent the traffic stop evidence.

I will assume the officer would have had subjective grounds for theApril 8th, 2010 arrest without the traffic stop evidence. [93] The real issue concerning the arrest relates to the objective grounds for it. This issue really resolves itself by a determination asto whether or not it was reasonable for Corporal Aitken to conclude that Mr.

Le had personally been at the McGregor Avenue residenceon several occasions prior to April 8th, 2010 because he drove the motor vehicle into the driveway of the residence on April 8th, 2010,and the vehicle had been seen at the residence on various occasions before that date. [94] Corporal Aitken obtained his information about the investigation from various sources that were the same sources used byConstable Musinovic to prepare the ITO for the search warrant. In assessing the objective grounds held by Corporal Aitken for thearrest of Mr. Le, I will do so by considering the content of the ITO.

The critical issue with respect to the objective grounds for the arrestof Mr. Le concerns his association to the Acura vehicle, the association of the Acura vehicle to the McGregor Avenue residence, andthat's the association of Mr. Le to that residence. [95] Corporal Aitken referred in his evidence to the Acura vehicle being seen at the residence on several occasions. Paragraph 191Vof the ITO states that the Acura vehicle was seen at the residence by police or informant A on seven occasions, from September 15th,2009 until April 8th of 2010.

Five of those occasions are enumerated in the ITO and are as follows: November 29th, 2009 (paragraph66); December 1st, 2009 (paragraph 71); January 26th, 2010 (paragraph 123 and 124); March 16th, 2010 (paragraph 161), and March17th, 2010 (paragraph 170). The remaining two occasions when the Acura vehicle was seen at the McGregor residence were eitherobservations of informant A or observations of the police omitted from the ITO.

There is no mention in the ITO of any person beingseen in the Acura on either of those two occasions. [96] On November 29th, 2009, December 1st, 2009 and March 16th, 2009, no person was seen in the Acura. [97] On January 26th, 2010, the Acura vehicle was seen to drive away from the McGregor residence, being driven by "an Asianmale in his 20s with short black hair and wearing dark sports jacket." (ITO paragraph 124). [98] On March 17th, 2010, the Acura vehicle was seen at the McGregor residence for several hours, and at approximately 6:05 p.m.that day was seen to be driven by "an Asian male, wearing all dark, approximately five-foot-seven inches tall, slim build." [99] Informing his grounds to believe that Mr.

Le was "arrestable" Corporal Aitken clearly concluded that he had reasonablegrounds to believe that Mr. Le was at the McGregor residence on several occasions during the course of the police investigation. Asnoted above, on five of those occasions, no person was seen to be associated to the Acura vehicle. On the other two occasions, a persondescribed very generally as an Asian male, was seen to drive the Acura vehicle to or from the McGregor residence. [100] In my opinion, Corporal Aitken's conclusions regarding the involvement of Mr.

Le, and whatever was occurring at theMcGregor residence, are questionable, even with the inclusion of the identification evidence obtained by Constable Reinhart on January26th, 2010. [101] However, with the exclusion of that evidence, as this court has ruled, it is my opinion and ruling that prior to Mr. Le's arrival atthe McGregor residence on the evening of April 8th, 2010, Corporal Aitken did not objectively have reasonable and probable grounds tobelieve that Mr. Le had committed an indictable offence in relation to the marihuana grow operation discovered in the residence. [102] The presence of Mr.

Le in the Acura vehicle at the residence on April 8th, 2010 added significantly to the objective grounds forhis arrest. But at that point, the police still did not have any clear evidence that Mr. Le had personally been at the residence previously inthe Acura vehicle. That conclusion was a matter of inference, and it was weakened by the fact that the police had seen several vehiclesand persons at the subject residence throughout the course of their investigation. [103] I am well satisfied that Constable Coogan had lawful grounds to detain Mr.

Le for investigative purposes, but I find that therewere not objective, reasonable and probable grounds to arrest Mr. Le. [104] In reaching this conclusion, I have considered the information in the ITO as to the suspected "harvest party" on the evening ofMarch 17th, 2010, and Mr. Le's suspected involvement in drug matters in the past. That information amounted only to suspicion, in myopinion, and did not elevate the grounds for the arrest of Mr. Le to being objectively reasonable. [105] I have also considered that at the time of the arrest of Mr.

Le, the police had discovered the grow operation in the residence andhad evidence that the house was not being lived in. That meant that people would have to attend the residence to tend to the growing ofthe marihuana. All of that evidence begged the question as to whether Mr. Le was such a person. [106] The vehicle driven by Mr. Le on April 8th, 2010 had been seen at the residence on seven occasions in the course of theinvestigation, but on no occasion is there evidence that Mr. Le was with that vehicle.

[ 107 ] On the basis of the analysis of the evidence on the voir dire that has been set out above, I find that Corporal Aitken, and therefore Constable Coogan, did not have objective reasonable and probable grounds to arrest Mr. Le for committing the indictable offence of producing marihuana or conspiring to do so. I find that the arrest of Mr. Le by Constable Coogan was unlawful. [ 108 ] In reaching this conclusion, I have, of course, considered the cases of Chaif-Gust , Le (2001) and Le (2006) referred to in argument by Crown counsel.

I find that those cases are distinguishable from the case at bar in that each of them involved the arrest of a defendant who was inside a residence where illegal drug activity was occurring. The subject defendant, Mr. Le, was never seen in the McGregor Avenue residence. [ 109 ] Although little would seem to turn on it, I feel obliged to decide the issue as to whether or not Mr. Le was arbitrarily detained. As Frankel J.A. noted at paragraph 62 of Whitaker : An arbitrary detention does not necessary automatically follow from an unlawful arrest. [ 110 ] In my opinion, Mr.

Le was lawfully detained initially by Constable Coogan for investigative purposes. That detention almost immediately became a formal arrest. The arrest was based upon an assumption made by Corporal Aitken that Mr. Le had personally been at the McGregor Avenue residence on several occasions prior to April 8th, 2010. That assumption was not objectively reasonable for the reasons set out above. [ 111 ] Although the issue is certainly not free from doubt, I conclude on the balance of probabilities that Mr. Le was arbitrarily detained at the point he was arrested by Constable Coogan. [ 112 ] A search of Mr.

Le's person following his arbitrary detention, and his unlawful arrest, was clearly unlawful, and resulted in a breach of Mr. Le's s. 8 Charter right to be secure against unreasonable search or seizure. [ 113 ] I turn now to consider, pursuant to s. 24(2) of the Charter , whether the admission into the trial of the evidence seized from Mr.

Le, that is the house keys, would bring the administration of justice into disrepute. [ 114 ] It has been set out above in this judgment, at some length, as to the analysis the court is required to make in this regard, as a result of the Supreme Court of Canada decision in Grant . [ 115 ] As to the seriousness of the police conduct in arresting Mr. Le, one must go back to the illegal traffic stop, that in large measure provided grounds for Mr. Le's arrest. I maintain my view that the police conduct with respect to the unlawful traffic stop, was relatively serious.

That conduct had a ripple effect on the arrest of Mr. Le. [ 116 ] As to the effect on Mr. Le of the violation of his s. 8 Charter rights, it is my opinion that that effect was substantial. Mr. Le was handcuffed and physically searched by the police. In my opinion, the privacy interests of citizens, in the position of Mr.

Le, are entitled to a high level of protection. [ 117 ] As to society's interest in having the case decided on its merits, it must be concluded that that interest would be significant. [ 118 ] In ultimately deciding the issue of the admissibility of the evidence involved in this case, I am first guided by the Supreme Court of Canada decision in the case of R. v. Mann . In the Mann case, the court found a lawful detention, but an unlawful arrest. The accused's pockets were searched and some marihuana was found.

The court commented that "individuals have a reasonable expectation of privacy in their pockets." The court upheld the trial judge's decision to exclude the seized evidence from the trial pursuant to s. 24(2) of the Charter . [ 119 ] I am also guided in the subject case by the comment of Chief Justice McLachlin in Grant as follows: The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system. [ 120 ] The police conduct in the traffic stop of Mr. Le was quite serious. That conduct led to a significant impact on Mr.

Le's Charter rights on January 26th, 2010, and on April 8th, 2010. [ 121 ] Although the evidence in question is reliable, and important to the Crown's case, I find upon a balance of all the relevant factors, that the challenged evidence ought to be excluded from the trial as its admission would bring the administration of justice into disrepute. [ 122 ] I therefore rule that the house keys seized from Mr. Le by Constable Coogan on April 8th, 2010, are not admissible in evidence in this trial. (RULING #1 ON VOIR DIRE CONCLUDED)