R. v. Khatra, 2017 BCPC 462

Citation: R. v. Khatra 2017 BCPC 462 Date: 20170726 File No: 213182-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. TANVIR SINGH KHATRA RULING ON VOIR DIRE OF THE HONOURABLE JUDGE D. GAFFAR Counsel for the Crown: D. Novakovic Counsel for the Defendant: N. Cobb Place of Hearing: Surrey , B.C. Dates of Hearing: May 24, 25, June 8, 2017 Date of Judgment: July 26, 2017 INTRODUCTION

[ 1 ] Mr. Khatra is charged with two counts of possession of drugs for the purposes of trafficking (cocaine and heroin), contrary to s. 5(2) of the Controlled Drugs and Substances Act . The police discovered the drugs in Mr. Khatra’s pocket while dealing with him about a hit and run incident. A voir dire was declared at the outset of the trial. [ 2 ] The ultimate question on this voir dire is whether the drug evidence is admissible at trial. At this first stage, I am only concerned about whether the police conduct was unlawful or whether Mr.

Khatra’s rights under the Charter of Rights and Freedoms (“ Charter ” ) were breached. If I find that the police conduct was unlawful or unconstitutional, I will require additional submissions from counsel concerning the admissibility of the drug evidence at trial, further to s. 24(2) of the Charter . ISSUES [ 3 ] This voir dire concerned many issues. The police entered into three subsequent investigations that evening: a hit and run investigation; an impaired driving investigation; and a drug investigation. Ultimately, Mr.

Khatra was arrested for Refusing to Provide a Breath Sample (“Refusal Arrest”) and then for Possession of Drugs for the Purposes of Trafficking (“PPT Arrest”). He was searched after the Refusal Arrest (“Refusal Search”) and after the PPT Arrest at the detachment (“PPT Search”). The primary evidence in this case (crack cocaine and heroin) was discovered during the Refusal Search. His cell phones were seized, handled and retained by the police.

An Exhibit Seizure Report was filed sometime later. [ 4 ] When the police conduct a warrantless arrest or search, the Crown bears the onus of establishing the requisite grounds for the arrest or search. The standard of proof is on a balance of probabilities. This means that the Crown must establish that the police subjectively believed that they had the requisite grounds to arrest and those beliefs were objectively reasonable. Accordingly, the Crown argues the following were lawful: a. The police had the requisite grounds to demand that Mr.

Khatra provide a valid breath sample for the Approved Screening Device (“ASD”). b. The police had the requisite grounds to arrest Mr. Khatra for the Refusal Arrest and it was necessary to make an arrest, pursuant to s. 495 of the Criminal Code of Canada (“ Code ”). c. The police had the requisite grounds to conduct the Refusal Search, which was incident to the Refusal Arrest and resulted in the discovery of the drugs. d. The police had the requisite grounds for the PPT Arrest ( Code s. 495). e.

The police had the requisite grounds for the PPT Search at the detachment, which was lawfully incident to the PPT Arrest and conducted it in a reasonable manner. [ 5 ] Mr. Khatra argues that the Crown has not established the requisite grounds for the arrests and searches. Individually, Mr. Khatra alleges that various Charter rights were breached, which he must demonstrate, also on a balance of probabilities: a.

His ss. 9 and 10 Charter rights were breached when the police investigated the hit and run (investigative detention), detained him arbitrarily, failed to inform him that he was being detained and why, and did not provide him with his right to counsel. b. His s. 9 Charter rights were breached and he was arbitrarily detained because the police did not have the requisite grounds to make the ASD demand nor the Refusal Arrest. c. His s. 10 Charter rights were breached when the police failed to provide him with his right to counsel without delay after the Refusal Arrest and PPT Arrest. d.

His s. 8 Charter rights were breached by the unlawful Refusal Search incident to the Refusal Arrest. e. His s. 8 Charter rights were breached by the PPT Search, which amounted to a “strip search” and was not conducted in the required manner. f. His s. 8 Charter rights were breached by the unlawful search and seizure of his cell phone(s). g.

Section 489.1 of the Criminal Code of Canada (“ Code” ) was not satisfied when the police failed to file a Report to a Justice concerning seized exhibits and, in particular, the cell phones in a timely manner. [ 6 ] I note that counsel agreed that Mr. Khatra’s statements to the police that evening were being tendered only for the purposes of the voir dire , not for trial purposes. Accordingly, I did not hold a voir dire regarding the voluntariness of the statements. [ 7 ] On this voir dire, Cpl. Rego and Cpl. Chow testified for the Crown, while Mr. Khatra testified for the Defence. I will refer to (now) Cpl.

Rego by his former rank in June 2015 (Constable), as his former rank is relevant to the PPT Search discussed later in this decision. [ 8 ] If the evidence is found to be admissible, the parties have agreed that the prosecution’s voir dire evidence will be tendered at trial, without the need to recall the officers. I have considered all of the testimony, documentary exhibits, photographs, submissions and case law provided to me in rendering this decision.

The case law decisions are listed at the end of this decision. [ 9 ] I will begin by describing my overview of the evidence, which I have accepted as general facts. I will determine the specific facts and related legal issues later in my decision. OVERVIEW OF FACTS

[ 10 ] On the evening of June 28, 2015 at approximately 7:57 p.m., the police dispatched officers to respond to a “hit and run” report after a parked vehicle was struck. At approximately 8:00 p.m., an unknown pedestrian flagged down the police and provided information to the former Cst. Rego about a vehicle connected to the “hit and run” and pointed him towards a silver SUV. [ 11 ] Shortly thereafter, Cst. Rego saw Mr. Khatra closing the driver’s door of the silver SUV. The vehicle displayed damage consistent with the reported hit and run. Cst. Rego spoke to Mr. Khatra and asked him questions.

He cannot recall now exactly what was said during this exchange. He does recall asking Mr. Khatra what had happened and why Mr. Khatra did not stop. Mr. Khatra replied that it was not safe to do so, because it was an intersection. Mr. Khatra was unable to provide his driver’s licence but was able to provide identifying information that Cst. Rego verified on his police computer and ICBC records. [ 12 ] At approximately 8:07 p.m., Cst. Rego made a demand that Mr. Khatra blow into an approved roadside screening device (“ASD”). Mr.

Khatra blew into the first ASD a couple of times before the officer realized that it was malfunctioning. He called for a second ASD to be delivered to the scene. Shortly afterwards, Cpl. Chow arrived, prior to the arrival of the second ASD. [ 13 ] Between approximately 8:13 p.m. and 8:28 p.m., Mr. Khatra made several unsuccessful attempts to blow into the device and had ongoing interaction with Cst. Rego. At 8:28 p.m., Cpl. Rego arrested and handcuffed Mr. Khatra for Refusing to Provide a Breath Sample contrary to the Code . It does not appear that Cst. Rego provided Mr. Khatra with his Charter s. 10(

a) and (

b) rights, nor the official police warning that Mr. Khatra did not have to speak to the police, at that time. [ 14 ] Cst. Rego conducted a pat down search of Mr. Khatra and found two cell phones, two sets of keys, $160, and a baggie containing a “solid white rock substance” (believed to be crack cocaine) in the pocket of Mr. Khatra’s shorts. He later discovered that the bag contained 15 individually wrapped items of suspected drugs.

Ultimately, 11 items weighing approximately 2.65 gms total (including plastic wrapping) were found to be cocaine, while four items weighing 1.25 gms total (including plastic wrapping) were found to be heroin. I am uncertain if these weights include the sample amounts taken for the laboratory (0.15 gm cocaine, 0.06 gm heroin). [ 15 ] At approximately 8:33 p.m., Cst. Rego told Mr. Khatra that he was under arrest for Refusing to Provide a Breath Sample and Possession [of drugs] for the Purposes of Trafficking. He read the Charter rights s. 10(

a) and (

b) from a card to Mr. Khatra and provided the official police warning. When asked if he understood his right to counsel and wished to speak to a lawyer, Mr. Khatra responded, “suck a dick” to each question. He indicated that he understood that he did not have to speak to the police. It was during this time period that Mr. Khatra’s behaviour became more verbally aggressive and belligerent. [ 16 ] Cst. Rego then conducted further computer verifications and learned that Mr. Khatra had a clean driving history.

He decided to proceed under the Motor Vehicle Act , rather than the Code , concerning the Refusal to Provide a Breath Sample. He decided to issue an Immediate Roadside Prohibition (“IRP”) to prevent Mr. Khatra from driving for a period of time. Cst. Rego knew that such a prohibition would immediately result in Mr. Khatra’s vehicle being impounded for seven days. He did not inform Mr. Khatra that he was going to be released at the scene on the IRP. [ 17 ] Cst.

Rego then wrote out traffic violation tickets for the collision, failure to have a driver’s licence, running a red light, and one more traffic violation that he did not specify during his testimony. A tow truck was called to the scene. [ 18 ] At some point, the police conducted a cursory search of the vehicle. The police later searched the vehicle using a police dog, before the vehicle was towed. The police did not discover any drugs or anything relating to the offences under investigation. [ 19 ] Mr. Khatra was transported to the police detachment at approximately 9:12 p.m. Upon their arrival, Mr.

Khatra was personally searched again more thoroughly. Afterwards, the police and Mr. Khatra discussed access to counsel again. Mr. Khatra did not access counsel. Although he was not being booked into custody at that time, the police obtained a “booking” photograph of Mr. Khatra and tried unsuccessfully to take his fingerprints. [ 20 ] At 10:25 p.m., Mr. Khatra was allowed to leave the police station. He was released on an Undertaking to Appear (“UTA”) and a Promise to Appear to a Police Officer (“PTA”).

He was also given four traffic violation tickets, a driving prohibition for 90 days, and a notice of vehicle impoundment for 30 days. Mr. Khatra’s demand for the return of the cell phone(

s) was refused by the police. Due to Mr. Khatra’s behaviour over a 10-15 minute period, he was taken into custody and placed in a cell. He was released several hours later. [ 21 ] Mr. Khatra’s cell phones were seized by the police that evening. A Report to a Justice (“Exhibit Seizure Report”) about the items seized in this incident was eventually filed and approved by a Justice of the Peace. [ 22 ] Ultimately, the police never sought any driving charges or criminal charges with regards to Mr. Khatra’s driving, Failing to Remain at the Scene of an Accident, or Refusing to Provide a Breath Sample. [ 23 ] Mr.

Khatra appealed the roadside prohibition and charges. On July 21, 2015, the adjudicator overturned the driving prohibition, monetary penalty and vehicle impoundment. The adjudicator found that Mr. Khatra did not intend to refuse the ASD demand. Cst. Rego had reviewed the police file at some point prior to trial and learned that the Immediate Roadside Prohibition had fallen through but had not known the reasons.

Since the adjudicator’s decision occurred after June 28, 2015, I am not permitted to use it when assessing the officer’s subjective beliefs nor whether those beliefs were objectively reasonable on June 28, 2015. I am also not bound by that decision. POLICE NOTE TAKING [ 24 ] Mr. Cobb, for the Defence, pointed out several instances when the police failed to record information in their notes. He argues that the failure to make notes, when it is generally expected that an officer would do so, impacts the reliability and credibility of the police evidence generally and on specific points.

He provided several cases that emphasized the importance of the police making notes of relevant and material observations, and how the absence of such notes diminishes the reliability and credibility of an officer’s evidence. I have considered those cases carefully and agree with the observations made by numerous courts in B.C. and other regions of Canada. These cases are listed at the end of this decision.

[25] Ms. Novakovic argues that, while it is desirable that police officers make reasonably contemporaneous notes, it is not a rule oflaw. Ms. Novakovic submits that the question of whether or not the lack of notes impacts a witness’s credibility and reliability is left tome, as the trier of fact: R. v. Acosta, 2014 BCCA 218. [26] I agree that whether an officer has noted or recorded a relevant detail may directly relate to the officer’s reliability andcredibility. Officers are specifically trained at the outset of their policing careers about why, how, and when they should make notes, forgood reason.

It is reasonable to expect that officers make a note or a record of their observations on salient details that they later offer tothe court. The courts prefer that notes are made in a reasonably contemporaneous manner to the events or shortly thereafter. Such notesor records would provide a more reliable basis for subsequent reports and court testimony: Acosta, 2014 BCCA 218. [27] I observe that the Supreme Court of Canada has incorporated the legal requirement for note taking in specific instances: duringwarrantless strip searches (R. v.

Golden, 2001 SCC 83 , [2001] 3 S.C.R. 679 at para. 101) and cell phone searches (R. v. Fearon,2014 SCC 77 at para. 82). These specific instances inherently underscore the increasing importance and value of proper note taking.However, the B.C. Court of Appeal addressed whether police officers were required to, as a general legal rule, make notes. The courtconcluded that there is no rule of law requiring that notes be made in that fashion: Acosta, 2014 BCCA 218 at para. 15.

Nonetheless, it isclear that the courts will examine the nature, extent and accuracy of police note taking in appropriate circumstances. [28] Ultimately, I am required to assess the reliability and credibility of all witnesses generally and on specific points. The absence ofnotes or records, when it is reasonable to expect such notes to be made, may impact my assessment and impair my ability to find that aparticular witness is reliable or credible, on the totality of the evidence. CREDIBILITY AND RELIABILITY – GENERALLY [29] My assessment of the credibility and reliability of Cst. Rego’s, Cpl. Chow’s and Mr.

Khatra’s evidence is central to my findingson whether (or not) the police acted lawfully and constitutionally. At this stage, I will make only general observations about thereliability and credibility of their evidence. I will provide my specific assessment details when I discuss each legal issue later in thisdecision. [30] Pursuant to the decision in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, I am permitted to accept or reject some orall of any witness’s evidence.

Indicia for this assessment may include, but is not limited to, a. the quality of the witness’s memory, b. his or her ability to perceive and recall, c. motivation (or absence thereof) to fabricate, d. demeanour, e. any internal or external consistencies or inconsistencies in the witness’s evidence. [31] In addition, the reliability of a particular witness’s evidence may be enhanced or buttressed by corroborative evidence, amongstother things. A witness’s credibility may also be enhanced or diminished by the degree to which the witness was forthright whiletestifying or attempted to mislead the court.

I keep in mind that even an honest witness may make errors in his or her evidence. A witnessmay also appear nervous or uncertain due to reasons unrelated to his or her honesty while testifying. [32] I make the following general observations about the police evidence. Cst. Rego’s and Cpl. Chow’s note taking were deficient inmany respects, which they both candidly acknowledged in their evidence. Cpl. Chow’s notes were better but still somewhat deficient onmaterial points. The Crown agrees that where the evidence of Cst. Rego differs from Cpl. Chow, I should accept or place more weight onthe latter’s evidence.

Both officers were forthright when they did not recall a particular point. They were able to recollect someinformation not contained in their notes, which later corroborated Mr. Khatra’s evidence. However, on occasion, Cst. Rego failed toprovide information to the court when it was expected he would do so. These omissions left me with a very different impression aboutsome of the events until he was later pressed on cross-examination. [33] I found much of Cpl. Chow’s evidence to be lacking in detail, although he had recorded more relevant observations than Cst.Rego.

The nature of his written records and evidence reflected his secondary role in this investigation. However, I observe that his lackof recall was directly related to his lack of sufficient notes, particularly in areas where such notes were expected. The officer agreed thathis notes should have been better, particularly with regards to the alleged “strip search.” [34] I make the following observations about Mr. Khatra’s evidence. I note that Mr. Khatra was generally detailed in his evidence. Iacknowledge that he had the benefit of listening to the evidence of other witnesses.

Nonetheless, he was uncertain about the chronologyand actual time when some events occurred. Time precision does not overly concern me; I do not expect untrained civilian witnesses toprovide the same level of precision about these aspects as trained police officers. However, I have assessed Mr. Khatra’s credibility orreliability around chronology and events. In some instances, I have found him credible and reliable.

In other instances, I find that I amunable to accept his evidence. [35] For example, I do not accept his evidence that he was searched and the drugs were found while everyone was waiting for thesecond ASD. Aside from being contradicted by both officers, I am unable to rely on Mr. Khatra’s recollection of this sequence due toMr. Khatra’s own description of the roadside events that followed. Mr. Khatra’s evidence is that he was placed in the police vehicle afterthe drugs were discovered, awaited the second ASD, and was then directed to blow into the second ASD.

Had the police discovered thedrugs before the second ASD arrived, I would have expected the police to immediately arrest Mr. Khatra for a drug related matter at thatpoint, given the heightened seriousness of such offences. According to Mr. Khatra, they did not. However, it is clear from the policeevidence that their focus shifted immediately to a drug investigation after the drugs were discovered. Therefore, I conclude that it is morelikely that Mr. Khatra is mistaken in his strongly held recollection.

[ 36 ] Moreover, I am unable to ignore the evidence about the dynamic between the officers and Mr. Khatra. During these events, everyone agrees that Mr. Khatra became upset at various times. Mr. Khatra was not belligerent at the beginning. According to the police, he swore, yelled and screamed at some point(

s) at the roadside and at the police station. The officers’ evidence left the impression that they did not respond overtly in any way to this conduct. However, I have considered this dynamic when assessing the subtle and overt decisions made by the officers, particularly decisions relating to arrests, searches, and ultimate release from custody. [ 37 ] An example occurred at the very beginning of their dealings. Cst. Rego was asked if he made any efforts to find out if Mr. Khatra was injured. He testified that he thought about possible injuries but saw no obvious signs of injury and no air bag activation.

His notes are silent on this point. I have no evidence that he actually asked Mr. Khatra if he was injured. Yet he testified at the same time that Mr. Khatra seemed a bit “off.” [ 38 ] Another example occurred in the middle of their interaction, after the unsuccessful ASD attempts. Cst. Rego had decided to release Mr. Khatra at the roadside with an Immediate Roadside Suspension. This information might have lowered the level of Mr. Khatra’s roadside verbal aggression or “lowered the temperature.” However, Cst. Rego did not provide this information to Mr.

Khatra. [ 39 ] A further example occurred at the very end of the evening. Mr. Khatra asked the police to return the cell phones. Cst. Rego refused. Mr. Khatra became upset, yelling and screaming. Cst. Rego and Cpl. Chow took Mr. Khatra into custody and lodged him in a cell for several hours. Cst. Rego agreed that the loss of a personal cell phone would cause significant inconvenience to Mr. Khatra, as cell phones were mobile computers. I accept that Mr. Khatra was verbally aggressive, failed to follow their directions, and refused to leave. [ 40 ] From an evidentiary standpoint, I am concerned that Cst.

Rego failed to mention that Mr. Khatra was returned to custody a second time and held in cells for several hours, until pressed in cross-examination. I note that he was obviously directed to this time period by the Crown during his direct testimony. However, he omitted any reference to the escalating cell phone dispute and Mr. Khatra’s return to custody. He justified withholding this information because he felt it was not the main reason behind Mr. Khatra’s verbally aggressive behaviour. [ 41 ] I accept that the officer and Crown were trying to be circumspect in describing potentially prejudicial aspects of Mr.

Khatra’s conduct that night. However, I was somewhat surprised that he failed to mention this information earlier, given that this voir dire directly concerned police dealings with Mr. Khatra and his detention at various times. [ 42 ] While I can somewhat understand Mr. Khatra’s frustration, I do find that his behaviour was completely unacceptable throughout that evening. Mr. Khatra indicated that he regretted his behaviour but then downplayed it as being “a tiny bit” aggressive. He used the term “aggressive” to mean an exchange of words with the police.

When I consider all the witnesses’ evidence, I accept that Mr. Khatra was angry and upset. He was verbally aggressive, profane, vulgar and loud. I also infer that both sides engaged in difficult and challenging verbal exchanges. HIT AND RUN INVESTIGATION [ 43 ] The main issue relating to the initial hit and run investigation is whether Mr. Khatra was lawfully under investigative detention at this point. This issue has three aspects:

a) whether Mr. Khatra was detained;

b) whether Cst. Rego had reasonable grounds to detain Mr. Khatra for investigation of the hit and run; and

c) if so, whether Cst. Rego informed Mr. Khatra why he was being detained and provided Mr. Khatra with his right to counsel before proceeding further. [ 44 ] I begin my assessment by considering the information provided to Cst. Rego before he first dealt with Mr. Khatra. This information formed the basis for what the officer did next. The radio dispatch described a hit and run incident had just occurred. Cst. Rego was then flagged down by an individual within three minutes of the dispatch broadcast.

This individual told him that the driver of a vehicle had run a red light, almost hit the witness, and proceeded further in a particular direction. At some point, he received information that it was a silver vehicle. Cst. Rego drove in that direction for approximately 10-20 seconds when he saw Mr. Khatra’s vehicle parked at the side of the road. Mr. Khatra’s vehicle had smoke emanating from it and the whole front passenger side tire was completely smashed. Cst. Rego saw Mr. Khatra closing the driver’s car door when he approached Mr. Khatra. There was no one else in the car. [ 45 ] Cst.

Rego then began to question Mr. Khatra by approximately 8:00 p.m. He asked Mr. Khatra what happened. He also then directly asked Mr. Khatra a question pertaining to the hit and run investigation: “Why didn’t you stop?” Mr. Khatra responded with an explanation relating to safety. [ 46 ] There was a dual aspect to the hit and run investigation. On one hand, the police are empowered to stop drivers and ask to see their identification pursuant to the B.C. Motor Vehicle Act . On the other hand, the Failure to Stop at the Scene of an Accident is a criminal matter governed by the Code ( s. 252 ).

I note that the officer did not first ask Mr. Khatra to produce his identification or driver’s licence. He began by asking questions relevant to the hit and run investigation. [ 47 ] Cst. Rego then asked Mr. Khatra for his driver’s licence, which Mr. Khatra could not produce. Cst. Rego sought, obtained, and recorded personal details from Mr. Khatra while Mr. Khatra stood at the roadside. Again, Cst. Rego was empowered to verify a driver’s identity when that driver fails to produce his driver’s licence or any other form of identity, as part of his duties under the B.C.

Motor Vehicle Act and for the purposes of the criminal investigation. Cst. Rego did not recall asking Mr. Khatra for his ICBC password; Mr. Khatra recalls that he did. [ 48 ] Cst. Rego then checked the information he obtained from Mr. Khatra (date of birth; address; telephone number) and matched observed physical descriptors (height, weight, hair and eye colour) with information reviewed on the police computer in his vehicle (Mr. Khatra’s driver’s licence information on the ICBC database). Cst. Rego described the physical match as “in the comfortable range.” Cst. Rego learned that Mr.

Khatra had a valid licence and that the vehicle was registered to a male with the same last name. He also learned that Mr. Khatra was not a prohibited driver at this point. [ 49 ] The police are permitted to detain a person for investigative purposes: R. v. Mann , 2004 SCC 52 at para. 45 . A detention requires

that the person is physically or psychologically detained: Mann at para. 19. A person is detained when the police have interfered with theperson’s liberty in a significant way such that the person is not permitted to leave or the person believes that he or she is not permitted toleave: Mann at paras. 8 and 34. [50] An officer must have reasonable grounds to believe or suspect, in all the circumstances, that a person is connected to a particularcrime before that person can be detained for investigative purposes. The officer’s subjective beliefs must be objectively reasonable:Mann at paras. 27, 28, 20, and 33.

The officer must consider the entirety of the circumstances, including inculpatory and exculpatoryinformation: R. v. Chehil, 2013 SCC 49 at para. 6. The officer does not have to investigate exculpatory circumstances but cannotdisregard exculpatory, neutral or equivocal information unless the officer believes the information to be unreliable: Chehil at paras. 6 and33. [51] Not every unlawful detention or arrest will be considered an arbitrary detention. In determining whether a person was arbitrarilydetained, I must consider:

a) the facts in this case; and

b) how much the officer departed from the standard of reasonable and probablegrounds, as well as the honesty and basis for the officer’s belief in those grounds: R. v. Duguay, (ON CA), [1985] O.J.No. 2492 (Ont. C.A.) at para. 25; aff’d on other grounds, (SCC), [1989] S.C.J. No. 4. [52] It is apparent that Mr. Khatra was detained from the moment the officer began questioning him about the hit and run. It is highlyunlikely that Cst. Rego would have permitted Mr. Khatra to leave the scene, had he wished to do so, without further investigation.

Mr.Khatra’s vehicle had obviously been recently damaged and matched the description of a silver SUV broadcast by police dispatch and thewitness who had flagged Cst. Rego down a few seconds earlier. The allegation by the witness that the driver had also run a red light andalmost struck the witness provided reasonable grounds to detain Mr. Khatra. The witness pointed Cst. Rego towards Mr. Khatra’s nowstopped vehicle. [53] By the time Cst. Rego first approached Mr. Khatra, he possessed sufficient information to subjectively form reasonable groundsto detain Mr. Khatra and those grounds were reasonable.

The officer was investigating the driver for failing to remain at the scene of anaccident, a motor vehicle collision, running a red light, and almost striking a pedestrian. The standard for such reasonable grounds is nothigh. It rises above “mere suspicion,” beyond generalized suspicion and equates to a reasonable “possibility”: Chehil at paras. 26-28,citing R. v. Kang-Brown, 2008 SCC 18 at para. 75. In all the circumstances, the officer had objectively reasonable grounds to believethat Mr. Khatra was connected with the criminal act of failing to stop at the scene of an accident.

Accordingly, the detention was notarbitrary or contrary to s. 9 of the Charter. [54] Once Mr. Khatra was unable to produce a valid driver’s licence, the issue is twofold: Was Cst. Rego permitted to continue to askquestions regarding his identity, in order to try and confirm his identity with his computer records? Or, was Cst. Rego required to informMr. Khatra that he was being detained for investigation of a hit and run incident and to provide Mr. Khatra with his right to counselwithout delay? [55] Crown argues that the police were engaged in a traffic violation investigation and, therefore, Mr.

Khatra’s right to counsel wassuspended. Cst. Rego initially testified that he was engaged in both a criminal and a motor vehicle investigation. However, a shortmoment later, he characterized it as a motor vehicle collision and motor vehicle infraction investigation at that point. For the reasons thatfollow, I do not accept this latter characterization. [56] Generally, a person under investigative detention has the right to be immediately informed about the reasons for the detentionand the s. 10(

b) Charter right to counsel, and allowed a reasonable opportunity to access counsel: R. v. Suberu, 2009 SCC 33 at paras.41-42; R. v. Grant, 2009 SCC 32 at para. 58, citing Suberu. When a random police traffic stop is brief and minimally intrusive, theofficer is not required to provide the motorist with his or her right to counsel: R. v. Strilec, 2010 BCCA 198 at paras. 37 and 38, citing R.v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257 at para. 59 and R. v. Orbanski, 2005 SCC 37 at paras. 44-46.

Whendetermining whether the right to counsel must be provided to a motorist, I must consider the purpose of the traffic stop and whether thestop was “brief, minimally intrusive, and limited to what is reasonably necessary to achieve the purpose of the stop”: Strilec at para. 40. [57] In R. v. Phengchanh, 2011 BCSC 484 at para. 24, Romilly, J. stated: Police officers do not require objective justification to conduct a traffic stop.

A genuine traffic stop that is authorized by law to checkmatters such as sobriety or licensing, which includes curfew, conditions of license, ownership, insurance and mechanical fitness of thevehicle, though it may be arbitrary, is justified under s. 1 of the Charter. However, a detention loses its justification if the police conductsurpasses these "traffic stop" objectives to become a pretext for criminal investigation. See: Hufsky at 636-37; Ladouceur at 1287-9;Mellenthin at 622, 624; R. v. MacLennan (1995), 1995 NSCA 51 , 97 C.C.C. (3d) 69 (N.S.C.A.) at para. 46; and R. v.

Byfield(2005), (ON CA), 193 C.C.C. (3d) 139, 74 O.R. (3d) 206 (C.A.) at paras. 15-19…. [58] Cst. Rego was not conducting a random police stop of brief duration or minimal intrusion, where the right to counsel may besuspended. At most, it was a dual investigation of criminal and traffic matters. The police specifically approached Mr. Khatra toinvestigate a failure to stop or remain at the scene of an accident (s. 252 of the Criminal Code) after which a pedestrian was almoststruck. This was not a simple failure to stop and produce the driver’s name (s. 73 of the Motor Vehicle Act) or running a red light.

Theinitial dispatch was for a “hit and run,” a criminal offence which involved a higher level of legal jeopardy and was a hybrid offence.Accordingly, the police were required to inform Mr. Khatra that he was being detained and investigated for “hit and run,” and providethe accompanying right to counsel. [59] The breach of s. 10 of the Charter during the investigative detention does not render this detention arbitrary. The police still hadreasonable grounds to detain Mr. Khatra for investigation.

The breach of s. 10 Charter is a separate issue from the grounds for theinvestigative detention. [60] The breach of s. 10 of the Charter occurred while Cst. Rego made observations and obtained information that he used, at least inpart, to justify his ASD demand for a breath sample. Therefore, it is possible that this s. 10 breach impacted the basis of the ASDdemand and the arrests and searches that followed. However, I am unable to consider whether the s. 10 Charter breach had a cascadingimpact on the lawfulness of the subsequent police conduct and alleged Charter breaches at this time.

For the purposes of the first

(breach) stage of this voir dire, counsel did not argue whether there was any cascade effect and, if so, the nature and extent of that effecton subsequent events. This issue was not specifically addressed by Crown or Defence in their oral submissions and in the Defencewritten submissions. I invite further submissions on this issue. IMPAIRED DRIVING INVESTIGATION ASD Demand [61] The main issue relating to the next stage of the investigation involved the demand for a breath sample for the ASD.

Beforemaking an ASD demand, the police must have a reasonable suspicion that the driver has the presence of alcohol in his or her body: R. v.McGrath, 2016 BCPC 261 at para. 28, citing R. v. MacPherson, (ON CA), [2000] O.J. No. 4777 (Ont. C.A.), atpara. 6. If the officer detects the odour of liquor on the driver but is unable to locate from where it is emanating, and there is no otherevidentiary basis for an ASD demand, the reasonable suspicion threshold may not be met: McGrath, at para. 29, citing R. v. Webster,2004 BCPC 70 at paras. 6 and 15.

The smell of liquor on the driver’s breath can amount to sufficient grounds for an ASD demand:McGrath, at para. 30, citing R. v. Lindsay, (ON CA), [1999] O.J. No. 870 (Ont. C.A.) at para. 2. Crown mustestablish that the officer had the necessary subjective and objectively reasonable grounds to suspect the presence of alcohol in thedriver’s body and make the ASD demand on a balance of probabilities: McGrath, at para. 32 citing R. v. Baldwin, 2011 BCPC 181 atpara. 14. [62] Cst. Rego’s belief that Mr. Khatra was the driver and had liquor present in his body was based on the following reasons. He sawMr.

Khatra closing the driver’s door and there was no one else present in the vehicle or in close proximity. Between approximately 8:00p.m. and 8:07 p.m., Cst. Rego detected a faint odour of liquor coming from Mr. Khatra but was unable to isolate its source. The officertestified that he was not positioned “too closely” to Mr. Khatra, at a distance of approximately one to two feet. When Mr. Khatra spoke,the odour was stronger and came in “whaffs.” Cst. Rego observed that Mr. Khatra had “watery eyes,” appeared standoffish and was a bitslow. Mr.

Khatra’s vehicle appeared to have been involved in a collision with a parked vehicle that was not moving. [63] Cpl. Chow arrived while Cst. Rego and Mr. Khatra were standing on the roadway, outside of the police vehicle, awaiting thearrival of the second ASD. Although Cst. Rego only detected a faint odour of liquor from a closer distance whenever Mr. Khatra spoke,Cpl. Chow testified that he could smell liquor coming from Mr. Khatra’s body and breath from a distance of four feet. He did notdescribe the strength of the smell. Given that Cst. Rego stood much closer to Mr.

Khatra and only detected a faint smell of liquor untilMr. Khatra spoke, I do not place much weight on Cpl. Chow’s description of what he smelled. [64] Mr. Khatra testified that he possibly denied having consumed alcohol that day, but recalled later telling the officer that he hadconsumed alcohol several hours earlier. The Crown sought to contradict him on the amount of hours (11-12 hours vs. 14 hours), but Inote that the original statements were not put to Cst. Rego, and he did not use it to form his grounds to make the ASD demand. I amunaware whether the officer asked Mr.

Khatra when he last had an alcoholic drink or whether he had anything to drink that evening. Hisdenial could relate to the latter question. [65] It is unclear how Cst. Rego could attribute the observed vehicle damage to a collision with a parked vehicle, as opposed to anyother kind of collision. I am also uncertain how long Cst. Rego spoke with Mr. Khatra before re-entering his police vehicle to verify theinformation provided by Mr. Khatra with the police computer records, although seven minutes is the outside limit. I do not know howlong he remained in the vehicle.

I also note that the officer disregarded the possibility that Mr. Khatra was injured based only on hisvisual observations that Mr. Khatra did not appear injured and the air bag was not deployed, without making further inquiries. It appearsthat Cst. Rego did not ask Mr. Khatra if he was injured or if he hit his head. Mr. Khatra testified that he was in shock and in pain whenthe police arrived. This failure to inquire about injuries impacts Cst. Rego’s credibility. However, Mr. Khatra initially stated that he hithis head, but later denied hitting his head and testified that he had whiplash.

This inconsistency impacts Mr. Khatra’s credibility. [66] In all of the circumstances, the officer’s only real evidence of grounds amounted to this:

a) Mr. Khatra was the driver because heclosed the driver’s door and was the only person in close proximity to the car;

b) from a distance of approximately 1-2 feet, Cst. Regosmelled a faint odour of liquor that became stronger when Mr. Khatra spoke; and

c) the vehicle had been damaged in a motor vehiclecollision. On the balance of probabilities, the Crown has demonstrated that Cst. Rego had a reasonable suspicion that Mr. Khatra was thedriver and he had alcohol in his body. He had sufficient time to detect the odour of liquor emanating from Mr. Khatra’s breath. On thisbasis, the officer was permitted to make the ASD demand. Refusal Arrest [67] The main issues surrounding the Refusal Arrest pertain to:

a) whether the officer had subjective grounds to arrest Mr. Khatra forthe offence of refusing to provide a valid breath sample, and whether those grounds were objectively reasonable; and

b) whether it wasnecessary to arrest Mr. Khatra for Refusing to Provide a Breath Sample pursuant to s. 495 of the Code. [68] Cst. Rego described the basis for the warrantless arrest and why he believed that such an arrest was necessary, as opposed to aless severe manner of securing Mr. Khatra’s attendance in court. I note that Mr. Khatra was handcuffed in the course of this arrest. [69] According to Cst. Rego, the following events occurred after he made the ASD demand: a. The ASD demand was read to Mr. Khatra at 8:07 p.m. Mr. Khatra was arrested for failing to provide a sample at 8:28 p.m. (21minutes) later. b.

Cst. Rego had to wait for an ASD to be brought to the scene. Cst. Rego testified that the first attempt to provide a breath sampleoccurred at approximately 8:12 or 8:13 p.m. The device was working properly. c. Before the first attempt, Cst. Rego explained and demonstrated in the air how Mr. Khatra was supposed to blow into the device.On the first attempt, Mr. Khatra puffed out his cheeks, but Cst. Rego could not hear nor see any air entering the ASD tube. Cst. Regothen testified that Mr. Khatra would blow a little air and stop. This process was repeated three times.

d. Cst. Rego replaced the mouthpiece, re-explained the process and consequences of failing to provide a sample, and provided Mr.Khatra with an opportunity to demonstrate how to provide a sample in the air without the mouthpiece. Mr. Khatra then provided a longbreath, blowing into the air. e. Then, Mr. Khatra blew into the mouthpiece but stopped and started his breathing. The machine could not register any readings. f. Cst. Rego was unable to say how many attempts were made but estimated that he allowed Mr.

Khatra to make approximately 7-8 attempts over a period of 15 minutes. [70] The offence of Refusing to Provide a Breath Sample can be expressed verbally or by conduct: R. v. Lawson, 2011 BCSC 876 atpara. 30, citing R. v. Bennett, (BC SC), [1997] B.C.J. No. 432 at para. 17. A refusal expressed by conduct constitutesconstructive refusal. The court may find a constructive refusal where the officer did everything possible or reasonably expected tofacilitate the driver’s cooperation: Lawson at para. 30, citing Bennett at para. 17.

I must consider the totality of the circumstancesincluding any deliberate conduct: Lawson at para. 37. [71] Warrantless arrests are governed by s. 495 of the Code. To make a warrantless arrest, the officer must have reasonable andprobable grounds to believe that the person has committed, is committing, or will commit an offence [s. 495(1)(

a) and (b)]: Chartier, (SCC), [1979] 2 S.C.R. 474. [72] Section 495(2) places limitations on the officer’s powers of arrest and must be read together with s. 495(1): R. v. Fortune, 2012BCSC 2031 at paras. 86-87. The police are not permitted to arrest without a warrant if the officer has reasonable grounds to believe thearrest is not necessary in the public interest and not necessary to secure the person’s attendance in court.

When assessing the publicinterest, the officer must consider all the circumstances, including the need to establish the identity of the person; secure or preserveevidence relating to the offence; prevent the continuation or repetition of the offence; or the commission of a new offence. [73] Refusing to Provide a Breath Sample is a hybrid offence that can be prosecuted by indictment or as an offence punished bysummary conviction. This particular offence is also subject to the limitations of s. 495(2): R. v. Beckler, 2013 BCSC 1697 at paras. 103-105; R. v. Fortune, 2012 BCSC 2031 at paras. 86-87, 90. [74] Cst.

Rego identified his grounds for arrest. He subjectively believed that Mr. Khatra was not trying to provide a breath sample orwas preventing Cst. Rego from obtaining a breath sample. Cst. Rego believed that Mr. Khatra expressed his refusal by his conduct, notwords. Cst. Rego testified that Mr. Khatra would puff out his cheeks but that it was apparent to Cst. Rego that no breath flowed from hismouth into the ASD straw. In his view, Mr. Khatra was able to release long breaths into the air when Cst. Rego demonstrated what wasnecessary. [75] In deciding that Mr. Khatra’s warrantless arrest was necessary, Cst.

Rego testified that he considered an acronym he called“PRICE,” which meant “public interest, repetition, identification, court, and evidence.” He decided that the public interest was notserved by allowing a person suspected of driving with alcohol in his body to drive away. He acknowledged that the vehicle was not reallymobile but observed that Mr. Khatra had still been able to drive the vehicle after the collision “pretty far.” He considered whether theoffence might be repeated. Cst. Rego believed Mr.

Khatra’s identity was questionable, although the officer had conducted identificationchecks and felt that it was “okay.” Cst. Rego was concerned that brothers sometimes use each other’s names. The purpose and reason forthe arrest was to obtain evidence in the form of alcohol-related items, like receipts or beer caps. [76] I have assessed the credibility and reliability of Cst. Rego’s evidence about his grounds for the Refusal Arrest. There areproblems. First, Cst.

Rego testified in his direct examination that he made the ASD demand from his Charter card at 8:07 p.m. and thenwaited for a member to bring the ASD device. The implication was that Cst. Rego did not have an ASD device with him. He latertestified that the ASD was functioning properly. [77] However, under cross-examination, he mentioned for the first time that his ASD device was not working properly. Heacknowledged that he was supposed to check it before he started on shift but failed to do so.

According to his evidence, he discovered themalfunction after he made his demand but before he tried to obtain a sample from Mr. Khatra. He had recorded this malfunction in hisnotebook, yet failed to provide this information to the court when describing the events at the roadside. A malfunctioning ASD isrelevant to the unfolding of the event after an ASD demand is made. By omitting this evidence, the officer left the court with a differentimpression about how the events unfolded. [78] By itself, this omission may not appear material. However, Mr. Khatra’s evidence also contradicted Cst.

Rego’s evidence abouthow the tests unfolded. He recalled blowing into the first ASD a couple of times before Cst. Rego realized that it was malfunctioning.The aborted attempts on a malfunctioning device may also have contributed to Mr. Khatra’s behaviour when other tests wereadministered, as I explain below. [79] The most significant concern I have with Cst. Rego’s evidence regarding this stage of the events relates to Mr. Khatra’s ability orinability to provide a breach sample. The Crown asked Cst. Rego directly whether Mr. Khatra provided a medical explanation for hisinability to provide a breath sample. Cst.

Rego clearly responded, “no” and that Mr. Khatra did not provide any reason why he could notprovide a breath sample. Cst. Rego added that Mr. Khatra was not claiming, “that any issues prevented him from doing so or anythinglike that.” [80] Cst. Rego then flatly contradicted himself in cross-examination. He agreed that he and Mr. Khatra had a medical discussion, inwhich Mr. Khatra told Cst. Rego that he had an anxiety disorder. Mr. Khatra also told Cst. Rego that he took medication for the anxietydisorder, including in the morning and afternoon of that day. This evidence was recorded in Cst.

Rego’s notes and directly contradictedhis earlier testimony. [81] This contradiction was further compounded. Cst. Rego denied that Mr. Khatra told him that he was having an anxiety attackwhich impacted his ability to provide a valid breath sample. Cst. Rego continued that Mr. Khatra was able to blow strongly and steadilyinto the air upon request but failed to do so when he blew into the device. However, Cst. Rego is contradicted by his (then) senior

officer, Cpl. Chow, who noted in his report that “Khatra advised that he was trying but suffered from anxiety which prevents him from blowing.” I note that Cpl. Chow and Cst. Rego both wrote their notes in a reasonably contemporaneous manner. Cpl. Chow’s report was also written later that night. Cst. Rego’s report appears to have been completed almost three months later. [ 82 ] Mr. Khatra testified that he was having an anxiety or panic attack which prevented him from providing full breaths. He already suffered from a long-standing anxiety disorder, for which he took medication, including twice that day.

He had just been in a car accident. However, he initially said he hit the windshield but later denied that and indicated he had whiplash. [ 83 ] He described experiencing more shock than pain. He described trying to provide approximately two breath samples into the first ASD, which did not work. He then had to wait for the second ASD. I accept that all of these events might aggravate his anxiety disorder. I infer from his evidence that his panicked state caused him to have uneven breaths. He distinguished the practice breath samples into the air, at Cst.

Rego’s direction, from the breath samples required for the ASD. [ 84 ] I am cautious about accepting Mr. Khatra’s evidence about his ability to provide a valid breath sample due to its self-serving nature. His evidence about hitting the windshield is suspect. However, I do accept that his anxiety and panic attack may have caused him to breathe unevenly at different points. [ 85 ] Cst. Rego obviously disregarded Mr. Khatra’s explanation.

Contrary to Crown’s submissions, his possible disregard of the mental health explanation does not excuse nor explain his failure to inform the court about the mental health discussion. This is particularly so after Crown asked him questions directly on this point. [ 86 ] Cst. Rego’s misrepresentations to the court severely impact his credibility and reliability. Accordingly, I am unable to accept Crown’s submission that Cst. Rego’s beliefs were objectively reasonable, despite both Cst. Rego and Mr. Khatra agreeing that he was able to provide breath samples into the air. Mr.

Khatra testified, essentially, that he felt the breath required for the device was longer and more difficult than the sample breaths. I am not prepared to disregard Mr. Khatra’s evidence on this point. I find that the officer was not entitled to disregard Mr. Khatra’s mental health information and its possible impact on his ability to provide a valid breath sample. His

summary dismissal of this information demonstrated a lack of knowledge or regard about the mental health disorder. I also cannot accept his evidence on this point, given his lack of credibility regarding the basis for the Refusal Arrest. I find that the police did not have the requisite grounds to make the Refusal Arrest. [ 87 ] I will now consider whether the arrest was necessary, further to s. 495(2). Cst. Rego agreed that he had the power or discretion to determine what would happen to Mr. Khatra after he decided that Mr. Khatra had failed to provide a valid breath sample. He had the discretion to permit Mr.

Khatra to leave the scene in a taxi or to handcuff him and transport him to the detachment. Cpl. Chow noted that Mr. Khatra could have been issued a ticket and released from the scene with a police issued Promise to Appear in court. [ 88 ] In articulating his grounds for arrest, Cst. Rego testified that he thought about the criteria contained in the acronym “PRICE”: public interest, repetition, identification, court, and evidence. He later testified that he made no reference to “PRICE” in his notes or report. The Defence argues that such omissions impact the officer’s credibility and reliability.

I observe that PRICE simply reflects the criteria in s. 495(2), which the officer was required to consider. Thus, its omission from his notes or report does not impact his credibility or reliability on this point. [ 89 ] The real question is whether he properly applied the test in s. 495(2). On all of the circumstances, I find that Cst. Rego’s belief that an arrest was necessary for Refusing to Provide a Breath Sample was not objectively reasonable, for the following reasons. [ 90 ] It was not contrary to the public interest to release Mr. Khatra from the scene for the Refusal charge.

The public was not placed at risk by such a charge nor the suspicion that Mr. Khatra may have had alcohol in his body, in these circumstances. [ 91 ] Cst. Rego contradicted himself about whether the continuation of the offence was possible. He articulated that in such cases, there is a concern that the person would drive away. Yet he testified both in direct and cross-examination that he had called a tow truck and intended to impound the vehicle. After providing this evidence in cross-examination, he tried to change his evidence a moment later.

He stated that the vehicle was not necessarily going to be towed, because it was positioned off the main road and was not impeding traffic. Cst. Rego was further contradicted by Cpl. Chow, who observed that the vehicle was clearly damaged and smoking, rendering it undriveable. It is clear that Mr. Khatra was eligible to be released at the scene for Refusal to Provide a Breath Sample. There was no risk that the offence charged would be repeated or a new offence committed. [ 92 ] Cst. Rego considered the proof of identification issue to be a very important factor. He first said that Mr.

Khatra’s identification was “questionable.” Cst. Rego then stated that he felt satisfied that he was dealing with the right Tanvir Khatra. However, Cst. Rego then qualified this conclusion by referencing his past experiences dealing with brothers that used each other’s names to escape criminal liability. [ 93 ] I note that Mr. Khatra provided his name, date of birth, telephone, and address. I also observe that Mr. Khatra’s physical appearance matched the descriptors contained on the ICBC records for the driver’s licence of a person named Tanvir Khatra. Cst. Rego was “comfortable” that the descriptors matched.

I accept Mr. Khatra’s evidence that he provided his ICBC password as a form of identification, which was verified by Cst. Rego. According to the police, this appears to be a reasonable and relatively common means used by the police to verify identity. In all the circumstances, I accept that the officer’s comfort level in Mr. Khatra’s identification was much higher at that time and much higher than the impression he tried to leave with the court. This conclusion is supported by his initial decision to release Mr. Khatra on an Immediate Roadside Prohibition at the scene. [ 94 ] I do not accept Cst.

Rego’s evidence that an arrest was required in order to discover evidence of the Refusal to Provide a Breath Sample. (I take this to mean that the officer wanted to search Mr. Khatra or his vehicle pursuant to the arrest.) This basis is not objectively reasonable. The gravamen of that alleged offence was already observed by the officer. While such a search may be relevant to an Impaired Driving charge or an Over 0.08 alcohol level charge, I am unable to see how such evidence is relevant to a Refusal charge. I am unable to detect the link between the charge here and a discovery of evidence.

[95] In all the circumstances, I find that Cst. Rego lacked sufficient grounds for the Refusal Arrest and that the arrest was notnecessary. The next consideration is whether the unlawful arrest amounted to an arbitrary detention. I find that it does. Cst. Rego’sgrounds for the arrest, as I described above, fall far short of the requisite reasonable and probable grounds. Given my findings on hiscredibility, I also find the honesty and basis of his beliefs are greatly diminished. I conclude that Mr. Khatra was arbitrarily detained dueto the unlawful arrest.

Refusal Search – Discovery of Drugs [96] The finding that the Refusal Arrest was unlawful means that the search incident to that arrest is also unlawful: R. v. Caslake, (SCC), [1998] 1 S.C.R. 51 at para. 13. However, in case I am found to be wrong on that point, I will assess theindividual lawfulness of the search incident to arrest. [97] Either before, during or shortly after Mr. Khatra was arrested for Refusal to Provide a Breath Sample, he was handcuffed by Cst.Rego. The officer then searched Mr. Khatra at the roadside. He described it as a pat down search. When he felt something bulky in thepocket of Mr.

Khatra’s shorts, he reached into the pocket and pulled the item(

s) out. He did not recall the order in which he removeditems. He could not recall if he removed all the items at once or individually. He had no notes about the manner of his search. Hediscovered two keys, $160 in twenty dollar bills, the plastic bag containing drugs, and two cells phones. I infer that the keys and the cellphones were hard objects. [98] A search incident to arrest is lawful when the police subjectively believe that there is “some reason” or a reasonable basis for asearch that is directly linked to the reason for the arrest: Caslake at para. 25. The officer’s belief must be objectively reasonable: Ibid. Avalid purpose for the search must include one of the following:

a) to protect the public or the police;

b) prevent the destruction ofevidence;

c) the reasonable prospect of discovering evidence for trial;

d) or any other valid purpose: Caslake at paras. 19 and 22. [99] In his direct examination, Cst. Rego identified the following purposes for the search incident to Refusal Arrest:

a) to prevent ameans of escape;

b) to look for evidence of the offence; and

c) officer safety, which was always an underlying concern for Cst. Rego inevery situation. I do not find these purposes to be valid in this case. First, the car was undriveable. Mr. Khatra was now handcuffed andin the custody of two senior police officers. At this point, the officer intended to have the vehicle towed and release Mr. Khatra from thescene. This basis is not objectively reasonable. Second, as mentioned earlier, the gravamen of the Refusal offence had already beenobserved and I find that there was no reasonable prospect of locating evidence of that offence.

Third, the officer had a generalizedconcern, unrelated to Mr. Khatra, for officer safety. Mr. Khatra was not being violent, Cst. Rego had not obtained any information aboutpast violence from his computer check, and any concern he had for officer safety was “at the low end.” He testified that he was notoverly concerned about officer safety. [100] The Crown argued that Cst. Rego was entitled to search incident to arrest for identification. In law, that is a correct submission.The police may search for identification documents if this purpose is linked to the reasons for the arrest: R. v.

Caprara, (ON CA), [2006] O.J. No. 2210 (Ont. C.A.) at para. 10; R. v. Burachenski, 2010 BCCA 159 at para. 13, citing Belnavis, (SCC), [1997] 3 S.C.R. 341 at para. 28. Unfortunately, Cst. Rego did not identify the search for identification as one of hisgrounds for the search incident to arrest. He did not express a subjective belief in that purpose. [101] I am unable to infer this subjective belief because the officer was satisfied that he was dealing with the right Tanvir Khatra, afterverifying the information he received from Mr. Khatra with computerized police and ICBC records.

He was comfortable that the driver’slicence descriptors on his computer matched the person at the scene. He qualified this evidence by expressing a lingering concern thatbrothers have used each other’s identifying information in his past experience. Although the standard of proof is lower at this stage, I donot consider that Cst. Rego’s lingering and general concern, unrelated to this investigation, amounted to a reasonable basis to search foridentification. [102] Given my reasons about the invalid purpose of the search, it is unnecessary for me to deal with Mr. Cobb’s arguments regardingthe manner of the search.

I will say this: If the purpose of the search had been valid, I would have found the manner of the search to bereasonable. To properly access and view the hard objects, Mr. Cobb argues that the officer could have reached into the pocket and triedto extract them while not extracting anything else. This would have resulted in a more prolonged intrusive search with his hands in anarea close to Mr. Khatra’s genitals. Removing all the items minimized the insertion of the officer’s hands close to Mr. Khatra’s privateareas.

Section 10 Charter – Refusal Arrest [103] Cst. Rego did not provide Mr. Khatra with his Charter rights and official police warning immediately after the Refusal Arrest andbefore he searched him incident to that arrest. Whether or not the search incident to arrest was lawful, Cst. Rego was permitted toprovide the initial Charter s. 10 rights and police warning regarding the Refusal Arrest after such a search. PPT INVESTIGATION PPT Arrest [104] After locating the bag of drugs in Mr.

Khatra’s pocket, he arrested him for Possession for the Purposes of Trafficking (“PPT”).He had not yet searched the vehicle before he arrested Mr. Khatra for PPT. Either Cst. Rego or Cpl. Chow conducted a cursory search ofthe vehicle afterwards. I find that nothing more turns on the vehicle search, other than it being a search incident to both the Refusal andPPT Arrests. Its lawfulness depends on the lawfulness of those arrests. [105] Cst. Rego’s grounds for the PPT Arrest are as follows.

He observed a clear plastic bag containing a solid white rock substance.Based on his experience, he believed it to be crack cocaine. This larger bag also contained other little individual baggies with a somewhatpowdery brown substance, which he believed to be heroin. He believed that the number of the individually wrapped drugs permitted adealer to quickly sell one or two to an individual. He also believed that the bag contained quite a lot of drugs to have on one person atone time. In his view, the $160 cash in twenty dollar bills indicated the business of selling drugs and receiving cash. In his experience,

having multiple cell phones usually indicated a personal and a work phone. The officer had previous experiences where the work phonewas linked to a drug trafficking hotline and easily discarded. Cst. Rego added that he was not saying that this experience applied to thiscase. Finally, he noted the absence of drug user paraphernalia, as drug users usually had lighters, tinfoil or pipes. [106] I am unable to truly assess the bag’s size when Cst. Rego first viewed it. No photographs were ever taken of the bag in its originalstate as found by Cst. Rego. Cst.

Rego described this failure to take the photograph as an oversight. To fit into Mr. Khatra’s pocket withall the other items, I infer that the bag was not large. Cst. Rego believed the quantity of drugs to be substantial for a user, based on hisexperience. I am not prepared to accept his evidence on this point, given the frailties in his credibility described above. Objectively, hehad not confirmed the quantity of drugs before deciding to arrest for PPT, rather than possession of drugs. [107] The two cell phones were suspicious but not determinative as grounds for arrest for PPT.

I cannot ignore that many individualshave personal and lawful professional cell phones. I note that the officer did not have to consider innocent explanations, but he needed areasonable basis to disregard this obvious information. [108] The loose bills are equivocal at best. The amount is not at all large, and twenty dollar bills are commonly provided denominationsby banks. Even when added to other grounds, there was nothing about this money that actually constituted or contributed to arrestgrounds. [109] The absence of drug user paraphernalia cannot be used as a ground because Cst.

Rego had not yet searched the vehicle to properlymake that observation. Yet, Cst. Rego used this information to bolster his grounds for the PPT Arrest during his direct examination. Itjustified an arrest for PPT rather than a less serious simple possession of drugs arrest. It is difficult to accept that this error wasinadvertent, given the other flaws in his evidence, described above. [110] It is clear that Cst. Rego had the requisite grounds to arrest Mr. Khatra for possession of drugs. I accept that Cst. Regosubjectively believed that the evidence pointed to the PPT Arrest.

However, in all the circumstances, I find that his subjective beliefswere not reasonably objective for the PPT Arrest. Vehicle Search Incident to PPT Arrest [111] Mr. Khatra’s vehicle was searched by Cpl. Chow and by using a police dog after Mr. Khatra’s arrest for PPT. Nothing was found.I must determine the lawfulness of this search incident to arrest by considering the basis and manner of this search. It is linked to thepreceding events and arrests. If the prior arrests are found to be unlawful, this search is unlawful. I have not detected any issue with themanner of this search.

Section 10 Charter – PPT Arrest [112] When Cst. Rego re-arrested Mr. Khatra, he arrested him for both Refusal to Provide a Breath Sample and Possession for thePurposes of Trafficking. Cst. Rego provided Mr. Khatra with his Charter right to counsel and the official warning about Mr. Khatra’sright to remain silent by reading verbatim from the police issued card. Cst. Rego did not testify about which parts of the card he read toMr. Khatra. He testified that he told Mr. Khatra he was arrested for Refusal and PPT. He read Mr. Khatra his s. 10(

b) Charter right andasked him if he understood. Mr. Khatra replied, “Suck a dick.” Cst. Rego then testified that he asked Mr. Khatra if he wished to speak toa lawyer, to which Mr. Khatra replied, “Suck a dick.” Cst. Rego then provided Mr. Khatra “with the official warning.” When asked if heunderstood, Mr. Khatra responded, “Yup, I understand.” [113] Nothing further was done about Mr. Khatra’s right to counsel by either party at the scene. The officer testified that if Mr. Khatrahad provided a lawyer’s name or number, he would have contacted the lawyer.

However, due to the answers “suck a dick,” it appearsthat Cst. Rego never informed Mr. Khatra about the availability of the free of charge 24-hour legal aid duty counsel while at the scene:R. v. Bartle, (SCC), [1994] 3 S.C.R. 173 at para. 28. [114] Mr. Khatra’s answers to Cst. Rego were disrespectful, insulting and immature. They clearly indicate Mr. Khatra’s level of upsetand belligerence at this point in time. [115] These responses can be interpreted many ways. First, Mr. Khatra may have been declining to exercise his right to access counsel.This appears to be Cst. Rego’s

interpretation. Second, Mr. Khatra may have understood the questions asked but been too upset or angryto listen or respond appropriately to Cst. Rego’s questions about his right to counsel. However, Mr. Khatra was clearly paying attentionby the time Cst. Rego informed him about his right to silence, and responded appropriately when asked if he understood. Third, Mr.Khatra may have been more interested in insulting Cst. Rego than exercising his right to counsel. Again, Mr. Khatra’s appropriateresponse to the last question shows that he had started to express an interest in his rights by that point. Fourth, Mr.

Khatra was so upsetthat he did not understand the importance of the right to counsel when read, but started to understand the importance of what was beingsaid when reminded of his right to silence. [116] At best, Mr. Khatra’s responses were equivocal, given the many ways in which his responses could be interpreted. There was noclear waiver. Cst. Rego implied that nothing further could be productively accomplished about Mr. Khatra’s right to counsel while theywere at the scene. [117] During Mr. Khatra’s transport to the detachment, there was some discussion about a lawyer, although I was provided with fewdetails.

Upon arrival at the detachment, Cst. Rego conducted a personal, more intensive search of Mr. Khatra. After that search, he askedMr. Khatra if he wanted to talk to a lawyer. Mr. Khatra provided the name “Chamberlain” to Cst. Rego but told the officer that he didnot want to speak to Mr. Chamberlain “right now.” Cst. Rego knew that Mr. Russ Chamberlain was a defence lawyer in the area.Regardless, no reference was made to the free of charge 24-hour legal aid duty counsel for arrested persons. While Mr. Khatra may nothave wanted to speak to Mr. Chamberlain at that time, the officer did not ask Mr.

Khatra if he wished to speak to the free of charge 24-hour duty counsel. To facilitate access to counsel, the police should assist the arrested person by providing the contact information forthe 24-hour legal aid duty lawyer: R. v. Bartle, (SCC), [1994] 3 S.C.R. 173 para. 28.

[118] In all the circumstances and on the balance of probabilities, I find that Mr. Khatra did not expressly waive his right to counsel; assuch a waiver would not have been fully informed. The failure to inform Mr. Khatra about the availability of free of charge 24-hour legalaid duty counsel at the scene may have been understandable, given the insulting responses to the right to counsel. Cst. Rego may haveexpected Mr. Khatra to continue his insulting behaviour. However, this approach disregards Mr. Khatra’s last appropriate response to hisright to silence.

It would have been preferable for the officer to provide that further information to Mr. Khatra at the scene. However, itwas mandatory at the detachment, when Mr. Khatra’s behaviour appeared to settle down somewhat. Accordingly, his right to counselwas breached. PPT Search – “Strip Search” [119] Mr. Khatra was personally searched while at the police detachment. Nothing of forensic interest was located by the police. Cst.Rego describes this search as a thorough search, not a “strip search.” Cpl. Chow said it started as a strip search, but it changed to a patdown search, due to Mr. Khatra’s problematic behaviour.

Mr. Khatra stated it was a strip search, exposing various areas of his body topolice gaze. [120] The law is clear that a strip search occurs when some or all clothing is removed or rearranged, permitting a visual inspection of aperson’s private areas (namely, the genitals, buttocks, female breasts, or undergarments): R. v. Golden, 2001 SCC 83 , [2001] 3S.C.R 679 at para 47. Lack of evidence discovered from a strip search does not diminish the seriousness of using a strip search.Regardless of whether evidence is obtained from such a procedure, the invasion of privacy has already occurred.

Strip searches are not tobe conducted as a matter of routine: Golden at paras. 90 and 95. The “mere possibility” that an individual may be concealing evidence,or weapons, upon his or her person is not sufficient to justify a strip search: Golden at para. 94. A strip search must be conducted in areasonable manner, which includes the legal requirement that officers keep a proper record of the reasons for the strip search and themanner in which it was conducted: Golden at para. 101. [121] All police officers are required to understand the legal requirements for a strip search. According to Cst.

Rego, the Goldendecision is posted on the wall at his police detachment. However, Cst. Rego stated that he was not familiar with the particularrequirements of a strip search. He understood that a strip search did not require a person to be stripped naked and that it involved aninvasion of privacy. [122] According to Cst. Rego, he discussed conducting a strip search with his supervisor, Cpl. Chow. Cst. Rego suspected that Mr.Khatra had hidden more drugs due to Mr. Khatra’s “odd” behaviour and the small size of drugs, implying that they might be more easilyhidden. Cst.

Rego recalls that he then decided not to conduct a strip search, implying that this decision was made before any searchbegan. Cst. Rego described conducting “a more thorough search of Mr. Khatra” while Mr. Khatra stood in the corner of an interviewroom. Cst. Rego was unable to identify when the search started and stopped. [123] He has no notes on the issue. His entire notes about this search were: “searched more thoroughly.” His report described the searchthus: “Mr. Khatra was transported to District 2 where he was searched more thoroughly but nothing else was located.” Cst.

Rego madeno reference in his notes or report about a contemplated strip search or discussing the matter with his supervisor. The Crown’s position isthat Cst. Rego has no reference to a strip search because he did not believe that he conducted one. [124] However, Cst. Rego later contradicted himself about his experience regarding strip searches. Cst. Rego testified that he does makedetailed notes of the basis for a strip search and the manner in which a strip search is conducted. Moments later, he testified that he hasdone “zero” strip searches in his career. [125] Cst. Rego testified that he “patted him [Mr.

Khatra] down more thoroughly” and that Mr. Khatra was wearing loose, baggyclothing. He did not thoroughly pat down Mr. Khatra’s anal, genital or buttocks area, an area where drugs are more commonly hidden.Cst. Rego did not recall Mr. Khatra removing any items of clothing. Cst. Rego said he “would have” checked Mr. Khatra’s waistband “alittle bit more thoroughly.” When he checked the waistband of the shorts, Mr. Khatra was still wearing them. [126] Most importantly, Cst. Rego does not remember anyone else being present during the search. Contrary to Cst. Rego’srecollection, Cpl.

Chow clearly states that he was present for the strip search. [127] When Cpl. Chow arrived at the detachment, Mr. Khatra was very argumentative, profane and vulgar when answering theirquestions. It was at that point that Cst. Rego discussed conducting a strip search of Mr. Khatra with Cpl. Chow. According to Cpl. Chow,the grounds for the strip search were based on Mr. Khatra’s unpredictable behaviour; his inability to answer simple questions; and, in hisview, it was “possible to believe that he was attempting to hide something at that point.” [128] Cpl.

Chow made relatively contemporaneous notes; his report was finished that same evening, into the early morning hours.However, he acknowledged that he could have taken more detailed notes regarding the search of Mr. Khatra at the detachment. He wasalso aware that his notes would be provided to Crown and the Defence. [129] His only references to a “strip search” in his notes were as follows: “2122 hours, in consultation with Cst. Rego, directed male tostrip search for evidentiary reasons. Searched by Cst. Rego in presence of Cpl. Chow.

Shorts and boxer remained on.” In his report, Cpl.Chow makes no reference to a “strip search.” He does not refer to a strip search being discussed, started, nor halted at any point duringthe encounter. Both his notes and his report failed to sufficiently describe the basis and manner of the strip search, contravening the clearrequirements of the Supreme Court of Canada in Golden. [130] Cpl. Chow’s recollection of how the strip search was conducted is very different than Cst. Rego’s account. According to Cpl.Chow, Mr. Khatra was initially wearing a hoodie, a Golden State basketball jersey and a pair of shorts.

He does not recall what happenedto the hoodie. Mr. Khatra was directed to remove his shirt. Mr. Khatra complied but continued yelling profanities and making vulgarcomments. The officers conducted a visual inspection of his upper body, without placing themselves in close proximity to Mr. Khatra,due to his behaviour at the time. Cpl. Chow examined the shirt. Cpl. Chow testified that the police did not think that Mr. Khatra wasconcealing drugs in his torso, but they were trying to be methodical in their strip search.

[ 131 ] In Cpl. Chow’s view, the strip search stopped at that point. The officers decided that Mr. Khatra was not trying to be deceptive or hide anything. They decided that Mr. Khatra was simply reacting in a manner that reflected his personality. At first, Cpl. Chow described the search that followed as “a more traditional pat down search.” However, a short time later, Cpl. Chow stated that once his shirt was returned to Mr. Khatra, the police began the release process. [ 132 ] According to Cpl. Chow, Mr. Khatra’s shorts and undergarments were never removed. When asked if the police searched Mr.

Khatra’s buttock, scrotum and genital area, Cpl. Chow replied, “I don’t know.” I find this answer to be odd. He was standing right there. Such a search would be memorable, if it occurred. He later stated that he did not see such a search. [ 133 ] The remaining pat down search was conducted over the outside of Mr. Khatra’s clothing, according to Cpl. Chow. However, his notes refer to Mr. Khatra’s undergarment: “boxers.” Cpl. Chow responded that he did not remember exactly how he knew that Mr. Khatra was wearing boxers. But he insisted that Mr. Khatra was not strip searched, and that Mr.

Khatra’s shorts and boxers were not removed. [ 134 ] Mr. Khatra’s description of the strip search was somewhat different. He recalled being positioned in the corner of a room. He was not told he was being strip searched; he was told they needed to check him for drugs or to see if he had anything hidden. The police stood close to him, approximately 6 inches away. The officer directed him to remove his hoodie, and then his shirt. They then instructed him to remove his shoes and socks. The officers then directed him to remove his shorts. These items were examined by an officer after they were removed.

He believed that each piece of clothing was not returned to him before he was directed to remove another piece of clothing. However, he was later uncertain if he had his shirt on when he was directed to remove his shorts. [ 135 ] An officer then told Mr. Khatra that he thought there was something hidden in the string area of Mr. Khatra’s boxers. He was touched directly when the officer started to pull the waist string and feel all the way around Mr. Khatra’s waistband with his fingers. The officer pulled it around front and back. I interpret this evidence as the officer pulling the waistband away from Mr.

Khatra’s waist in order to feel the waistband. Mr. Khatra felt that this motion was invasive because it permitted the officer to look down into the genital area. Mr. Khatra believed that the officer was able to see his genitals because he was pulling on the elastic and looking in that direction. [ 136 ] Mr. Khatra testified that the waistband examination could not and did not occur while he was wearing his shorts.

He stated that he was chubbier in June 2015 and his shorts’ waistband was tight; the officer would not have been able to pull his shorts out to search the waistband. [ 137 ] After examining all the circumstances, I find that I am unable to rely on the evidence of both officers. There are too many contradictions; too few contemporaneously recorded details. Both officers offered questionable justifications for a strip search. Both refer to Mr. Khatra behaving oddly, in an unpredictable manner and, for Cpl. Chow, unable to answer simple questions. When combined with Cst.

Rego’s additional basis (the drugs were small), these justifications amount to a “mere possibility” - which is an insufficient basis. I find that Mr. Khatra’s s. 8 Charter right was breached. Search and Seizure of Cell Phones [ 138 ] Cst. Rego seized the two cell phones located on Mr. Khatra at roadside. Mr. Cobb suggested that Cst. Rego or another officer manipulated some buttons on one of the cell phones and noted 11 missed calls. The officer stated that it was not necessary to manipulate the cell phone in order to see that there were missed calls; the indication of missed calls popped up on the screen. Cst.

Rego stated that he had not conducted any search of the cell phone but confirmed that 11 missed calls were noted by the police. [ 139 ] The decision in R. v. Fearon , 2014 SCC 77 clearly identifies certain requirements before and during a warrantless cell phone search incident to arrest. There must be a reasonable basis for the search of a cell phone incident to arrest. It must be related to the reasons for arrest and pursue a valid law enforcement purpose.

Any warrantless search incidental to arrest must be focused and the officer must make careful notes of which areas on the cell phone were examined: Fearon at para. 4 . [ 140 ] Mr. Cobb argues that the fa

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