R. v. Kumar Date:, 2016 BCPC 75

Citation: R. v. Kumar Date: 20160205 2016 BCPC 0075 File No: 204703-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. BRIAN GOPAL KUMAR RULING ON VOIR DIRE OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Crown: D. Clements, F. Lepine Counsel for the Defendant: C. Johnson Place of Hearing: Surrey , B.C. Date of Hearing: February 4, 2016 Date of Judgment: February 5, 2016

[ 1 ] THE COURT: Brian Gopal Kumar is charged on a three-count indictment with possession for the purpose of trafficking in cocaine, methamphetamine and fentanyl. The Crown has called five witnesses. These charges arise out of an arrest that took place in Delta on March 7th of 2014. [ 2 ] The first witness, Acting Sgt. Long of the Delta Police Department, was alone in an unmarked police vehicle and she was dressed in plainclothes. She noted a green Dodge Stratus stationary in the Kennedy Heights shopping mall parking lot. There were two occupants, a male and a female. It was shortly after 8:00 p.m.

The motor of that vehicle was off. This alerted her suspicions as most of the businesses were closed and the lot was sparsely occupied. A check of CPIC and PRIME, the Police Retrieval Information System, revealed that the registered owner of the vehicle had a history of drug and property-related offences. [ 3 ] Officer Long stated the reason she was there was because of complaints that there was drug-related activity occurring in the area, although as the case came into focus it seems the complaints were in relation to two separate nearby residences.

I note there were no complaints about drug activity in the mall or the parking lot. [ 4 ] At 8:25 p.m. a white Ford Focus pulled up beside the Dodge and the driver of the Dodge got into the backseat of the Ford. While in the backseat he was leaning forward and the male passenger in the front seat turned towards him. The male returned to the Dodge and the Ford drove away. [ 5 ] Officer Long followed the vehicle and shortly thereafter the vehicle picked up a female who was standing on the side of the road.

The vehicle only drove a short distance and the female then got out. [ 6 ] Having learned this, and based on the observations she had already made, Officer Long directed that an arrest be made for drug trafficking. She had followed the Ford to 72nd Avenue and Scott Road where she activated her emergency lights. The Ford stopped shortly after that and Officer Long put on her police jacket and approached the car.

She told the driver to get out and he was arrested for trafficking. [ 7 ] On that date, Officer Long had been an undercover operator for two-and-a-half years and had been involved in over 50 undercover drug transactions. When asked to give the grounds for arrest they included that the vehicle was in an area where there had been complaints of drug trafficking.

She believed there was a hand-to-hand drug transaction in the vehicle, although she later admitted that she did not see an exchange; the information that she received about the history of drug trafficking associated to the other vehicle, as well as the driver of the Dodge getting in and out of the Ford after being in there for a short period of time. When she received information from another officer, Cst.

Taggart, that a female had gotten into and out of the vehicle for a short period of time she felt she had grounds to direct an arrest of the occupants of the Ford. [ 8 ] On cross-examination she admitted that she did not see a hand-to-hand transaction. She also testified that the driver and passenger of the Dodge Stratus were not arrested. [ 9 ] Cst. Taggart saw the Ford stop and pick up a female on the side of the road. He described her as rough-looking, older-looking in her 40s, and believed that either a drug transaction was taking place or she was a prostitute. [ 10 ] After the arrest, both Mr.

Kumar and the driver were taken to the Delta Police detachment. Upon arrival, drugs were found in the backseat of the police car, which are now the subject matter of these charges. [ 11 ] The defence has argued that the observations of the police fall short of amounting to reasonable grounds for arrest. The defence relies on Mr. Justice Oliver's decision in R. v. Cayer , a 1991 case of our Supreme Court. In that case the police had under their observation David Lim, known to them as a small-time drug dealer. He was approached by Mr. Cayer.

They spoke briefly and then crossed a parking lot in a small shopping mall. The officer formed the opinion that Lim was engaged in a drug deal with the accused and directed other officers to arrest him. [ 12 ] Mr. Justice Oliver stated that in order to justify a warrantless search by a peace officer the Crown must satisfy the requirements of s. 495 of the Criminal Code of Canada . It is not sufficient that the officer honestly believed he had grounds to make an arrest. He also stated that there must be rational grounds for the officer's belief that he has reasonable and probable grounds.

Guilt by association will not by itself suffice. Mere suspicion cannot serve as a substitute for the belief required by the statute. He acknowledged that the police found a quantity of cocaine on the accused as a result of the search, but noted that fact was unknown to the police prior to its discovery and cannot now be retroactively applied to bolster those grounds of which the officer was previously aware. He cites R. v. Stevens , a 1983 case of the Nova Scotia Court of Appeal where Mr. Justice Hart said: In my opinion no police officer has the right to search any person based upon suspicion alone.

He must have reasonable and probable grounds for believing that the suspect is committing or has committed an offence and must seek his justification under the Criminal Code provisions relating to lawful arrest or some other special statutory authorization. If the police officer searches on suspicion alone he has committed an illegal act, and one that, in my view, would be within the meaning of 'unreasonable' in

Section 8 of the Charter. [ 13 ] During oral argument I discussed Mr. Justice Frankel of our Court of Appeal's comments about the phrase "reasonable and probable grounds" in a case the reasons for which were delivered a year or two ago. The case name escapes me, but I do clearly recall him emphasizing the test as not being reasonable and (my emphasis) probable grounds. I also note in a June 2012 decision which I will be referring to, R. v.

Messina, Madam Justice Stromberg-Stein consistently uses the phrase "reasonable grounds" in her judgment. [ 14 ] The Crown has argued inter alia that although none of the individual actions observed by the police amount to grounds for arrest, but it is the totality of the observations which amount to reasonable grounds. The Crown has cited three separate cases. The first case they relied on is the case of Chehil v. The Queen . It is a 2013 decision of the Supreme Court of Canada.

That case involved what can be loosely characterized, but I think accurately, a dog-sniffing case at the airport where that was one of the primary factors that resulted in the accused's arrest, along with other factors such as him purchasing a one-way ticket with cash at a very late time before the

departure, amongst other reasons. [ 15 ] The test for reasonable grounds for an arrest in cases of this type was discussed in paragraph 22. The court referred to an earlier Supreme Court of Canada case Hunter v. Southam Inc. In that 1984 case: … [T]he Court laid out the underlying principles of the s. 8 framework, which balances privacy interests and the public interest in providing law enforcement with the means to investigate crime. First, s. 8 does not protect against all encroachments on an individual’s privacy interests.

Its primary goal is to protect individuals from arbitrary state action by balancing their interest in being left alone, against the public interest in providing the state with the means to investigate crime… [The] balance must be struck on objective grounds … and, where possible, should be assessed before the search occurs… In most cases, “[t]he state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion”… The court goes on to say at paragraph 29: Reasonable suspicion must be assessed against the totality of the circumstances.

The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation.

This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience… They go on to say: A police officer’s grounds for reasonable suspicion cannot be assessed in isolation… The court goes on to say at paragraph 34: … [T]he obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations. As was noted in United States v.

Sokolow , [citation given], “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” In conducting this inquiry to ascertain whether reasonable suspicion was present, the court will assess the circumstances the police were aware of at the time of the execution of the search, including those learned after the decision to deploy the sniffer dog was made if there is a delay in deployment, as there was in this case.

However, it would not be permissible for the reasonable suspicion inquiry to assess circumstances learned after the execution of the search… At paragraph 35 the court states: Finally, the objective facts must be indicative of the possibility of criminal behaviour. While I agree with the appellant’s submission that police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, I do not accept that the evidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specific known criminal act.

In discussing the nature of judicial scrutiny, the court states at paragraph 45: The requirement for objective and ascertainable facts as the basis for reasonable suspicion permits an independent after-the-fact review by the court and protects against arbitrary state action. Under the Collins framework, the onus is on the Crown to show that the objective facts rise to the level of reasonable suspicion, such that a reasonable person, standing in the shoes of the police officer, would have held a reasonable suspicion of criminal activity.

He goes on to say at paragraph 47: An officer’s training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion. However, this is not to say that hunches or intuition grounded in an officer’s experience will suffice, or that deference is owed to a police officer’s view of the circumstances based on her training or experience in the field… A police officer’s educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard.

Evidence as to the specific nature and extent of such experience and training is required so that the court may make an objective assessment of the probative link between the constellation of factors relied on by the police and criminality. The more general the constellation relied on by the police, the more there will be a need for specific evidence regarding police experience and training. To the extent that specific evidence of the investigating officer’s experience and training supports the link the Crown asks the court to draw, the more compelling that link will be.

In discussing the meaning of the phrase "the constellation" in this case, the Supreme Court of Canada states at paragraph 61: The trial judge considered potential innocent explanations for individual factors that could have been dealt with through further investigation, and found that absent such investigation, there could be no reasonable suspicion of involvement in drug crimes. The Court of Appeal found that the trial judge erred by looking at each factor individually. In their view, it was not determinative that each factor, viewed in isolation, was capable of innocent explanation.

They found that the circumstances must be looked at in their totality, which precludes a divide and conquer approach that finds each factor individually equivocal. The court concludes in its final paragraph the police had reasonable suspicion that they would discover evidence of a drug-related crime in the accused's luggage and ultimately dismissed the accused's appeal. [ 16 ] The Crown has also relied on the decision of R. v. Messina , an oral decision given by our Court of Appeal on November 15th of 2013. In that case, Madam Justice Stromberg-Stein in paragraph 20 adopted the test as set out in R. v.

Storrey , which is a two-part test to establish reasonable grounds for an arrest without a warrant. The first step requires the arresting officer to have a subjective personal belief that there are reasonable grounds for the arrest. The second part requires objective justification for the officer's subjective belief.

In assessing objective justification, the consideration is whether a reasonable person standing in the shoes of the police officer would have believed that reasonable and probable grounds existed to make the arrest. The test requires reasonable probability or reasonable belief and not proof beyond a reasonable doubt. [ 17 ] In my view, the Messina case is distinguishable from the case at bar in that prior to the accused's arrest four different people approached his car, entered the vehicle for approximately 30 to 60 seconds and then exited and immediately left the area. [ 18 ] The Crown has also provided Mr.

Justice Schultes' decision in R. v. Gill , a judgment given on January 30th of 2015. In that case, the officer observed the driver looking down into his lap for no more than 20 seconds, then reached back into the rear of the van with his right arm.

The constable said that as this occurred he saw the flash of a plastic bag and he concluded that it was a type of packaging in which drugs, particularly marihuana, are commonly sold. [ 19 ] The defence has also relied on a decision of His Honour Judge Kitchen of our Provincial Court in an oral judgment delivered on February 6 of 2008 where he found that the grounds for arrest were not reasonable. [ 20 ] In considering all of the evidence I have heard in this case I am troubled by some aspects of this investigation.

First of all, the complaint of drug activity was about two specific residences in the Kennedy Heights area. I heard no evidence about problems specifically within the mall or the parking lot. [ 21 ] Secondly, none of the officers observed a hand-to-hand transaction or money being exchanged between the suspects.

Furthermore, and I suspect understandably, the police are unable to say what the conversations were about. [ 22 ] Lastly, the tipping point occurred in this investigation, or what I have characterized as the tipping point in the arrest, occurred when the Ford Focus stopped and picked up a female who was described as resembling either a drug addict or a prostitute. In my view, there could be several possible reasons as to why the car stopped and let her out so quickly. Perhaps she was uncomfortable with the two people in the car, and demanded to be let out.

Perhaps they knew her and just wanted to speak to her briefly. Or perhaps they were unable to agree on a price for sexual services. [ 23 ] I do not wish to be overly critical of the police actions in this investigation. I would not characterize the arrest as an illegal act, but the test to justify an arrest is both a subjective and objective one.

I have concluded on the facts of this case, the submissions of counsel and the relevant case law that the observations stated by the police fall short of reasonable grounds for arresting the accused for possession for the purpose of trafficking. [ 24 ] I trust the accused will not interpret my decision as a declaration of his innocence. However, I agree with his counsel that in these circumstances his arrest amounted to an arbitrary detention under s. 8 of the Charter . I also agree with Mr.

Justice Oliver that to allow the results of the search after the arrest into evidence would bring the administration of justice into disrepute. Accordingly, I am excluding the evidence. (RULING CONCLUDED)