R. v. Barnes and Plant, 2018 BCPC 99

Citation: R. v. Barnes and Plant 2018 BCPC 99 Date: 20180323 File No: 213688-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. KIRSTEN JANE BARNES and KEVIN JACKIE PLANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.S. GILL Counsel for the Crown: A. Dorin and M. Reinhart Counsel for Barnes : J. Reveley Counsel for Plant : J. Sandhu Place of Hearing: Surrey , B.C. Date of Hearing: November 7 and 8, 2017; March 6 and 7, 2018 Date of Judgment: March 23, 2018 Introduction [ 1 ] Kirsten Barnes and Kevin Plant are charged that they, on or about August 18, 2015, at Langley British Columbia, did

unlawfully possess a controlled substance, to wit: cocaine, for the purpose of trafficking, contrary to s.5(2) of the Controlled Drugs and Substances Act . This is a voir dire alleging the breach of ss. 8, 9 and 10 of the Canadian Charter of Rights of the accused. [ 2 ] Both accused were arrested in or near the car within about 75 minutes of being seen to have carried out what police believed to be dial-a-dope sale of narcotics.

In this voir dire , the defence alleges the police conducted the arrest without the requisite reasonable and probable grounds to do so, and that as a result, the warrantless search of the accused in the course of and incidental to that arrest was therefore unlawful. The manner of search of the accused Barnes at the police detachment is also alleged to have been conducted unreasonably, and therefore unlawfully. Finally, it is alleged that both the informational and implementational components of the right of both accused persons to retain and instruct counsel without delay was breached. The Facts [ 3 ] Cst.

Dirk Odendaal, an officer with the Vancouver Police Department, was on August 15, 2015 working in Langley when he spotted a car southbound on 200 th Street near 84 th Avenue. He observed a female passenger with blonde hair and a passenger who he could not see as well. The car was a black Nissan Maxima that appeared to be driven as if in a hurry, weaving in and out of traffic and making a number of unsafe lane changes.

Rather than stopping the vehicle for the observed motor vehicle offences, he decided to follow to see if there might be further driving infractions. [ 4 ] While following the vehicle the Constable queried a police database and learned this vehicle had been associated with two anonymous complaints of possible drug trafficking involving a female driver but with no passenger. The most recent entry was only four days earlier at a location at or about the 5400 block of 203 rd Street in Langley.

The second complaint was earlier, from July 25, 2015, for which the database entry described a white female with blonde hair meeting another female for a suspected drug deal, and immediately leaving thereafter. [ 5 ] The Constable testified that the foregoing information made him suspicious that the vehicle he was following might be involved in drug related activity. The car continued a further distance southbound on 200 th Street, and eventually entered a superstore parking lot located at 64 th Avenue, proceeding to the south end of the parking lot, and reversing into a parking stall.

The Constable positioned his own vehicle to the east of that location, at a distance he estimated as being between 120 and 150 feet away, facing the front passenger side of the car under observation. [ 6 ] Almost immediately after the car parked, the officer testified to seeing a taller white male, estimated to be between 40 to 50 years of age, and having what he regarded as the general appearance or impression of being a drug user, enter the rear seat of the Nissan motor vehicle for a period of 20 to 30 seconds, seated in the back seat closer to the driver than the passenger, but on this he was not 100% confident.

He was unable to see what occurred inside the car, other than that there was some movement of the rear seat male passenger’s head turning from side to side.

Specifically, he witnessed no physical interaction with either front seat occupant, and he saw nothing in the rear seat passenger’s hands after he left the vehicle. [ 7 ] The appearance of the suspected drug user entering the car was given as being: • rough around the edges but did not look to be homeless; • gaunt face; • unhealthy look; • wearing a blue T-shirt and shorts; • about 6 feet tall, slim or build. [ 8 ] The officer testified that in his 15 years of policing experience he had seen lots of people looking like this, and although this person was never on the officer’s side of the car, and notwithstanding the officer was observing from a distance and that he made no notes of his appearance at the time, he nonetheless believes this person to have the general appearance of a drug user.

However, the officer admitted that the appearance of this male was not really the focus of his attention, in any event. The lack of more detailed notes will be seen to be a problem throughout this case. [ 9 ] On cross-examination, the Constable agreed it was entirely possible for someone to enter a car in this fashion for less than one minute and it not be a drug deal. For example, he agreed it could have been someone known to the occupants in the car who was just dropping something off for them.

This man simply did not appear to the Constable as even remotely someone who might, for example, be buying or selling tickets to a concert. Importantly, the Constable agreed that he did not for a moment think that what he was observing was anything other than a drug deal, something he concluded even as this person approached the Maxima and before he entered it. It would seem from this that his mind was already closed to other possibilities. [ 10 ] On exiting the vehicle, the male was seen hastily walking away.

He was not followed or otherwise checked to see if he might have anything on his person indicative of having just conducted a drug transaction, and this is because, the Constable explained, the user was not to him, the focus of his investigation. The officer also made very few notes about this person’s description, limited only to being a white male of 40 to 50 years, blue T-shirt and shorts. Notably lacking is any note of the purportedly disheveled or gaunt appearance. [ 11 ] The officer confirmed that it was at this point he formed the firm opinion that he had just observed a drug transaction.

He agreed he saw nothing further after this in the way of any deals, exchanges of anything, cell phone usage, or anything else that could be activity consistent with narcotics dealings. He immediately contacted members of the Langley RCMP to attend and assist. A/Corporal Cheng, and Constables Kehler, Bauer and Mann eventually attended to assist. [ 12 ] Cst. Kehler testified that he was in an unmarked police vehicle when Cst. Odendaal called for assistance. Cst. Kehler, A/Cpl.

Cheng, and Constables Mann and Bauer went to the area and set up some distance away. Cst. Mann exited the police vehicle and found an observation point on foot, as did A/Cpl. Cheng. Cst. Kehler remained in the police vehicle that he and Cst. Mann had arrived in. I am not sure about the role, if any, played by Cst. Bauer as he was not further mentioned. [ 13 ] In any event, during the ensuing observation period, none of these officers were able to add to any of the observations or information formulating Cst. Odendaal’s grounds for arrest. Indeed, these officers were not in the drug

section and were not accustomed to this kind of work, but rather, were simply helping out as requested. [ 14 ] Pending, or shortly after those officers’ arrival, Cst. Odendaal conducted further research on the car, querying the registered owner, Barnes, and learning about what he described as several police files associated to that person, along with a mug shot.

He further described those police files to relate to what he described as an extensive history of drug trafficking and offenses related to drugs, but he was not sure whether these entries related to convictions or whether it was based on something less than that. Unfortunately, he took no notes about what he had queried and learned from the police database and so we are left with his somewhat vague recollections. [ 15 ] The Constable had no information about the male occupant other than that he was observed to be heavier set and wearing all black clothing.

He was observed to have exited the car for a stretch and a smoke. His identity was then unknown, there were no computer database entries identified regarding him or in any way connecting him to this car or its female owner/driver. No suspicious behaviour on his part was observed, other than that he was in the vehicle with the driver, as well as during the drug sale that was believed to have taken place in the car while parked in the parking lot. No narcotics had been seen in or around the car. The sole basis for this officer’s belief of reasonable and probable grounds to arrest Mr.

Plant was his presence in the car during the roughly 90 minutes of observations. [ 16 ] Watching the female driver exit the Nissan motor vehicle and proceed to a gas bar about 50 feet away to purchase a drink before returning to the car, he determined, by comparison to the mug shot, that she was indeed the registered owner of that vehicle and accused before this court, Kirsten Barnes. [ 17 ] It was immediately after this that Cst. Odendaal determined he now had reasonable grounds to arrest both the female driver and the male passenger.

He summarized this information to be the history of the vehicle, the history of the driver based on the earlier mentioned multiple files, which he could not recall exactly how many, but which he estimated to be in excess of 10, and finally, based on his belief that the occupants of the vehicle under observation had just conducted a dial-a-dope drug transaction in front of him. [ 18 ] It was at this point that Cst.

Odendaal advised the other officers, via radio, that he believed he had reasonable grounds to believe that both occupants of the vehicle had engaged in a dial-a-dope drug transaction and that the driver could be arrested for providing the mode of transport to facilitate the transaction, and the front seat passenger could be arrested as a team member, based on the fact that both of them were in the car when the older male had briefly visited in the back seat of the car. [ 19 ] After consultation between the officers, it was decided the arrest would occur upon return of the female driver to the car and before she entered the car, to reduce the risk of it departing the scene before the arrest could take place. [ 20 ] It was at approximately 3:30 p.m. that these officers heard over the radio to proceed with the arrests.

As already noted, the decision to arrest both accused for the offence of possession for the purpose of trafficking was based on grounds formulated and relayed exclusively by Cst. Odendaal, however, for purposes of police command authority, this decision was relayed via A/Cpl. Cheng. Nothing turns on that. [ 21 ] Cst. Odendaal arrested Ms. Barnes as she approached the car. He told her she was under arrest for drug trafficking, informed her of her Charter rights, placed her in handcuffs and then read her Charter rights verbatim, which I would assume to be from a card.

He asked her if she understood and if she wished to contact a lawyer. She responded affirmatively to both questions. He then read her the official police warning. [ 22 ] Two of the other police officers, Constables Kehler and Mann, participated in the arrest of the front seat male passenger, now identified as the accused Kevin Plant. [ 23 ] Within about one minute of the command to arrest, Cst. Kehler proceeded directly in his police vehicle towards the Nissan motor vehicle, approaching from the rear on the passenger side of the car.

As he approached, the front seat male passenger, now identified as the accused Plant, was described by Cst. Kehler as seated in the right front passenger seat but with the door partially open, and with one of his legs hanging out the side of the car. After exiting his police vehicle, and as he approached Mr. Plant on foot, he saw what looked like a bag of drugs in plain view, directly under the vehicle at the point where Mr. Plant was seated. [ 24 ] Cst. Kehler testified he did not see this bag on the ground when pulling up in his police vehicle, but that he would have seen it had it then been there.

He believes the bag was discarded by Mr. Plant just as Cst. Kehler was exiting his police car. He testified that upon seeing the bag, he believed he now also had his own reasonable and probable grounds to arrest, and he advised Mr. Plant that he was under arrest for possession for the purpose of trafficking. [ 25 ] Cst. Mann arrived at this point in his own police vehicle. His testimony about the sequence of events is somewhat at odds with that of Cst. Kehler, testifying that Mr. Plant’s passenger door was not open as Cst. Kehler had testified, but closed, and that he had heard Cst. Kehler instructing Mr.

Plant to show him his hands, or to quit fumbling with his hands, while grabbing Mr. Plant’s arms through the open window of the closed passenger side door, while informing him that he was under arrest. [ 26 ] According to Cst. Mann, he was the one who opened the passenger door, and that is when he saw the drugs on the ground. Later in his testimony, Cst. Mann noted that it could have been either he or Cst.

Kehler who opened the door, but that in any event, it was only after the door had been opened and the arrest already effected that the bag of suspected drugs was seen on the ground. [ 27 ] Regardless of the differences in their recollection of events, it is clear that neither Cst. Kehler nor Cst. Mann ever saw Mr. Plant handle the bag of suspected narcotics at any time. Furthermore, it was neither of these officers, but rather A/Cpl. Cheng who, on arriving

by foot, was immediately directed to the suspected bag of drugs laying, as yet unmoved, on the ground directly under the front passenger side door sill, at a location where it would likely fall if, for example, it had fallen out of the passenger door when opened. [ 28 ] According to Cst. Mann, Mr. Plant was handcuffed and seated on a curb while the officers discussed which of them would handle the aforementioned bag of drugs, as well as other items that were seen in the car including cell phones. This took approximately two minutes. Cst. Mann then read Mr.

Plant his Charter rights from a card at 3:37 p.m. [ 29 ] A search of Mr. Plant incidental to his arrest resulted in the discovery of what was then estimated to be about $300 in cash, but which was confirmed on actually counting it later at the detachment to be in the sum of $360. [ 30 ] At 3:38 p.m., Mr. Plant affirmed that he wished to speak with a lawyer he named. Cst. Mann agreed that neither he nor Cst. Kehler provided any access to counsel at the scene. The officers requested the attendance of a fully marked police car with a cage separating the front seats from the rear, for the purpose of transporting Mr.

Plant in custody to the Langley police detachment. [ 31 ] Between 3:38 p.m. and 4:08 p.m., while awaiting the police transport to arrive, Mr. Plant remained seated on the curb. Cell phones that he had been asked to identify ownership of kept ringing, and Cst. Kehler attended to answering and noting down details of those calls, which appeared to be callers looking to purchase narcotics. [ 32 ] The marked police car, having a front/rear seat divider, arrived and took Mr. Plant to the Langley RCMP detachment, departing at 4:08 p.m. [ 33 ] A/Cpl. Cheng testified that he took custody of Ms.

Barnes at 4:00 p.m., placing her into the back of Cst. Mann’s police vehicle. He and Cst. Mann transported her back to the Langley detachment, departing the scene at approximately 4:08 p.m., and arriving at cells by 4:25 p.m. [ 34 ] A/Cpl. Cheng further testified he arranged calls to legal counsel for both accused but the one call he made on behalf of Ms. Barnes did not reach counsel. He had no further dealings with her, and as will be seen later in these reasons, Ms.

Barnes did not receive the benefit of any further access to counsel prior to her release from police custody later that afternoon. [ 35 ] According to A/Cpl. Cheng, Mr. Plant was seated on a bench following his arrival at the police detachment from 4:25 p.m. until 4:40 p.m. when he was placed in a private room for a discussion with his lawyer that lasted until 4:50 p.m. [ 36 ] Cst. Mann testified, providing further detail regarding Ms. Barnes while she was at the police detachment.

He testified that she was held in a cell for approximately 50 minutes, during which time she was not afforded any access to counsel, but she was further searched by a female officer who asked Ms. Barnes to remove her top, move her brassiere around using her own hands, as if to demonstrate nothing was concealed within, and then place her shirt back on. The officer described this as a standard police procedure on booking in prisoners to ensure that they do not possess any weapons or other contraband. [ 37 ] Cst. Mann agreed that this search of Ms.

Barnes, while not as intrusive as a more invasive search involving the removal of all clothing and/or examination of private areas of the body, could nonetheless be characterized as a lower grade strip search. [ 38 ] Finally, Cst. Mann agreed that there was really no explanation for Ms. Barnes not being provided access to counsel. He explained that although Cst. Odendaal had chartered and warned her at the scene, she was inadvertently not provided with access to counsel at the detachment. [ 39 ] Cst. Mann agreed in cross-examination that during the time Ms.

Barnes spent in the police cell, including being searched as described above, Mr. Plant was being processed and being provided with access to counsel, and the exhibits seized in respect of this investigation were being processed. As well, police were determining whether these accused could be released, and if so, on what conditions. Ultimately, both accused were released on a promise to appear, Mr. Plant being released at 5:15 p.m. and Ms. Barnes at 5:33 p.m. Law and Analysis [ 40 ]

Section 9 of the Canadian Charter of Rights and Freedoms provides as follows: Detention or imprisonment 9. Everyone has the right not to be arbitrarily detained or imprisoned. [ 41 ]

Section 495 of the Criminal Code addresses the authority to arrest without warrant: Arrest without warrant by peace officer 495

(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (

b) a person whom he finds committing a criminal offence; or (

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in

Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. [ 42 ] The arrest in the present case, as governed by the provisions of s. 495(1) of the Criminal Code requires reasonable and probable grounds on the part of Cst. Odendaal, effectively directing the arrest that Ms. Barnes and Mr. Plant had committed or were committing

the indictable offence of possession of narcotics for the purpose of trafficking. It is trite law that contraband discovered after a decisionto arrest cannot be used to justify the original decision to arrest. [43] In R. v. Storrey, the test for an arrest pursuant to s. 495 of the Criminal Code was set out by the Supreme Court of Canada atparagraph 17: [17] In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds onwhich to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonableperson placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for thearrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically they are notrequired to establish a prima facie case for conviction before making the arrest. [44] In R. v. Debot (1989), (SCC), 52 C.C.C. (3d) 193 (S.C.C.), Wilson, J. at para. 53 described the sufficiency ofgrounds for a warrantless search in the following terms requiring an assessment not piecemeal but on the totality of the circumstances: [53] In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantlesssearch. First, was the information predicting the commission of a criminal offence compelling?

Second, where that information wasbased on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated bypolice investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test.Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses inone area may, to some extent, be compensated by strengths in the other two. [45] In R. v.

Brown, 2012 ONCA 225, the Ontario Court of Appeal determined the trial judge to have erred in conflating the questionof reasonable grounds to detain and then arrest, with reasonable grounds to arrest. The objective component of the grounds to arrest wasdescribed at para. 14 in the following terms: [14] In our view, however, there must be something in the conduct observed by the officer, placed in the context of the rest of thecircumstances, that lends some objective justification or verification to the officer's belief.

Section 495 of the Criminal Code and, moreimportantly, s. 9 of the Charter demand that the belief be "reasonable", meaning that a reasonable person standing in the shoes of thepolice officer be able to see the grounds for the arrest. Without this objective component, the scope of the police power to arrest wouldbe defined entirely by the police officer's perception of the relevant circumstances.

The individual's constitutional right to be left alone bythe state cannot depend exclusively on the officer's subjective perception of events regardless of how accurate that perception might be.The issue is not the correctness of the officer's belief, but the need to impose discernable objectively measurable limits on police powers. (Emphasis added) [46] In R. v. Wilson, [2012] B.C.J. No. 2731, the Court of Appeal made clear at para. 21 that an arresting officer’s personalexperience is relevant to whether the officer’s subjective belief in grounds to arrest is objectively justified.

This is important because asfurther explained in para. 22, referencing the observations of Mme. Justice Ryan in the case of R. v. To, this could include observationsof activity which would baffle a layman but which police interpret, through their specialized experience, as indicative of a particularcustom identified in the drug trade. Indeed, and as further noted in the case authorities referenced at para. 24 of the decision, what mayappear to be entirely innocent to the general public may have a very different meaning to an officer experienced in drug operations. [47] Based on R. v.

Payette, 2010 BCCA 392 at para. 28, taking into account the officer’s special knowledge is not the same asdeferring the entire objective assessment of grounds to the officer’s intuition. That would make the objective assessment meaningless. [48] Also, an officer contemplating arrest pursuant to s. 495 cannot ignore potentially exculpatory evidence. This observation wasalso made by my brother Judge Woods in the case of R. v. Naidu, at para. 75, referencing therein the case of R. v. Todd, 2007 BCCA176. Rather, all of the evidence must be assessed in the aggregate.

So while there is clearly a weighing that is required, it must alwaysbe remembered that the requisite standard is not particularly high, nothing like proof beyond a reasonable doubt or even a prima faciecase but rather reasonable and probable grounds. [49] Innocent alternatives may not necessarily preclude the existence of reasonable grounds. In R. v. Gill, 2015 BCSC 310, at para.49, Schultes, J. noted that: [49] Innocent alternatives only undermine grounds for arrest when the inference the officer drew that an offense was taking place wasnot reasonable.

The officers do not have to rule out other explanations, if there is an objective basis for what they did in for concerningcriminal activity. [50] In this case, while the decision to arrest was made and directed by Cst. Odendaal, he himself arrested only one of the accused,Ms. Barnes. The arrest of Mr. Plant was effected by Cst. Kehler at the direction of Cst. Odendaal, being fully apprised of Cst.Odendaal’s grounds for believing the offense of possession for the purpose of trafficking in narcotics had been, or was being committed. This is entirely permissible: R. v. Shokar, 2006 BCSC 770 , [2006] B.C.J.

No. 1163. [51] In supporting Cst. Odendaal’s decision to arrest, the Crown relied upon R v. Gill, supra. There, a police officer sitting in hisvehicle taking notes, saw a young man on foot in the parking lot seeming to be milling about. About two minutes later, a minivan pulledup in a parking stall one space away from the officer’s car.

A female was seen occupying the right front passenger seat. [52] The young man approached the minivan, spoke through the driver’s side window, was gestured to get into the back seat whichhe did, at which point the Constable, suspecting a drug deal to be in the works, began recording with his cell phone. The driver was seento gaze downwards for about 20 seconds and then reach into the rear of the van with his right arm at which time the officer saw a flashof a plastic bag that he testified his own brain interpreted as being a dime bag, packaging commonly used to sell narcotics, particularlymarijuana.

The officer then saw money in the hand of the driver’s arm as it was again withdrawn to the front seat. The young male thenleft the van and walked away and the van also drove off, the entire transaction taking about a minute.

[ 53 ] The police officer in Gill had eight years of experience that included the carrying out of drug investigations, including a number of dial-a-dope operations. He described a typical transaction in the area where this event occurred as one where a prospective purchaser arranges deal by telephone or text message, arrives at a pre-agreed location, enters a vehicle, conducts the exchange of drugs for money, and then exits the vehicle which also departs the scene, the entire transaction taking less than a minute. What he saw on the date in question of course fits that scenario very well.

The officer admitted to having no previous knowledge about any of these people he was observing or about the vehicle they occupied, but he did include as part of his grounds, the knowledge based on his experience that dial- a-dope workers were known to operate in pairs.

Although he agreed that what he witnessed might have been a legitimate transaction, he, nonetheless, identified this particular transaction as a drug deal, based on his experience. [ 54 ] Finding the officer’s observations objectively consistent with the specific characteristics he associated to these types of transactions, and being more than generic characteristics merely supporting a bald assertion, but rather describing quite a distinctive type of transaction matching objectively observed activity, Schultes, J. further noted that innocent alternatives can only undermine grounds for arrest when the inference the officer drew that an offense was taking place, was not reasonable.

In other words, if there is an objective basis supporting an inference of criminal activity, other potentially innocent explanations need not be first ruled out before acting. [ 55 ] Schultes, J., at para. 47 of Gill noted the importance of not only objective experience on the part of a police officer, but the use of that experience to link expected indicia with observed behaviours: [47] As to the

interpretation offered by an officer’s past experience, I think the danger to be avoided is that that officer will simply assert that certain behaviour is consistent with drug trafficking, without being able to ground that assertion in objective experience or to link in a transparent way what was observed to that experience, in a way that the court can assess. [ 56 ] I consider the grounds existing in Gill to be significantly stronger than those in the present case, by virtue of the officer actually observing a hand to hand transaction in the vehicle, the episode lasting a very short period of time, and after which all participants to the transaction immediately left the scene. [ 57 ] In R. v.

Juan , 2007 BCCA 351 , police made an undercover prearranged purchase of 9 ounces of cocaine from an individual who delivered the product in a vehicle in which the accused was the front seat passenger. Police, on seeing the individual with the cocaine outside of the car, also proceeded to arrest the passenger still seated in the right front seat of the car. The trial judge concluded the officer lacked the objective grounds in arresting the accused simply because he was a passenger in the vehicle.

The appeal court concluded the trial judge to be in error, because he overlooked the officer’s experience and knowledge as to the customs of the drug trade and, in particular, passengers accompanying principals engaged in high value drug sales for the purpose of providing protection. [ 58 ] Juan is also distinguishable because in the present case Cst. Odendaal had no reason to believe the transaction he thought he was observing as a drug deal was one of high value and, on that basis, the presence of a passenger would not necessarily support the existence of drug dealing. [ 59 ] In R. v.

Tran , 2007 BCCA 491 , a known drug user and property offender, M., was followed by police as he proceeded from house to house and was then seen entering an alleyway where a car pulled up. He was seen to enter the car for a period of about 15 seconds before exiting. During the time in the car, he was observed kneeling in the front passenger seat and in close proximity to the driver.

The appeal court upheld the trial court finding of reasonable and probable grounds to arrest the driver on the basis of M.’s background as a known drug addict, his suspicious behaviour during the surveillance, his actions kneeling down inside the vehicle for a very brief meeting, and his body language while in the vehicle, leading to the reasonable inference a drug transaction had taken place. [ 60 ] The facts in Tran differ from the instant case in that Cst.

Odendaal was essentially unable to provide any information regarding the movements or actions of any of the individuals during the brief time they were together in the Nissan motor vehicle, other than that the person having entered it turned his head toward both of the occupants while he was in the car. [ 61 ] In R. v. Pope , 2015 BCSC 2391 , police observed what they believed to be two hand-to-hand transactions involving a target vehicle at two different locations, two hours apart.

Each interaction was observed to have occurred in less than a minute, with the other party to each of the meetings going to the driver’s side door of the target vehicle and on the second such occasion, leaning in through the driver side window. Nothing was actually seen exchanging hands. Gray, J. concluded this to insufficiently ground the arrest. [ 62 ] In R. v.

Chong , 2013 BCPC 121 , a tip received by police from an off duty officer believing he had observed a drug transaction several days earlier, led to a traffic stop of the target vehicle, during which the officer conducting the stop observed nervous behaviour, a ringing cell phone that the occupants were not answering, and an open plastic bag in the front passenger seat foot well containing a number of small empty Ziploc baggies that the officer associated with drug packaging.

These observations, including the tip preceding the traffic stop, were determined by the Court as insufficient to objectively ground the arrest. [ 63 ] Cst. Odendaal is an experienced member of the Vancouver Police Department, having observed over 150 dial-a-dope transactions in his 15 ½ years in the service. In the roughly 50 drug investigations he has been involved in, he has served in the role of an undercover drug buyer approximately four times, handling exhibits approximately 10 times, and being the lead investigator another approximately 10 times. I conclude that Cst.

Odendaal is a highly experienced police officer, having significant experience in the ways and means of the drug trade including indicia associated with street-level and dial-a-dope drug transactions. [ 64 ] Cst. Odendaal testified that he looks for the following indicia associated with dial-a-dope drug transactions: 1. Much like a pizza delivery business, the seller uses a car to deliver to a caller/buyer, immediately driving off to the next deal; 2. Rental vehicles are used in order to avoid generating police database hits; 3. Cell phones are used to arrange transactions;

4. There are often different or mismatched demographics between occupants in terms of their age and appearance; 5. Certain areas of the town are habitually used; 6. The transactions usually involve very brief stops with a buyer appearing quickly at the vehicle window and exchanging money for product; 7. Sometimes the buyer will enter a car but very briefly and then leaves; 8. Drug users indebted to their dealers often drive these vehicles to pay off the drug debt; 9. The vehicles usually have either one or two occupants.

Where there are two occupants, this usually facilitates one of them handling the money and the other handling the product. [ 65 ] Measured against these stated factors, the totality of the circumstances involved in Cst. Odendaal’s observations is comprised of the following: (

a) Hurried driving by a female driver with a male front seat passenger [ 66 ] This observation is of course of very little value on its own, other than to have triggered the officer’s curiosity. (

b) Two Police Database files indicating possible drug trafficking [ 67 ] The officer testified these two complaints originated from members of the public complaining of possible drug trafficking by a female. One file was only 4 days earlier, and the other was almost a month old. They were completely uncorroborated and unlike the situation he was observing, had no indication of a passenger being involved. The Constable agreed on cross-examination that this information was simply an opinion expressed by an unknown member of the public and that it did not comprise any evidence of an actual drug deal.

In other words, as with the case of the hurried driving, this information essentially comprised little more than a basis for continuing curiosity on the part of the officer. (

c) Location of the parking lot [ 68 ] This particular parking lot was described by Cst. Odendaal as being situated in a high drug trafficking area. That opinion however was supported by very little specific experience with the area, the officer admitting he was only privy to a few drug transactions occurring in a very large area of that part of town over the course of the past couple of years or so. I find this to be insufficient evidence to objectively ground an opinion that the target vehicle was parked in an area known for drug trafficking. (

d) A person was observed engaging with the vehicle occupants [ 69 ] This individual was described as gaunt, unhealthy, and looking rough around the edges. He approached on foot and entered the rear seat compartment of the car shortly after it parked in a large parking lot. Here, it is important to note that even before this person entered the car, the officer formed the opinion that he had the general appearance and impression of a drug user.

The officer appears to have formed this conclusion even before this individual entered the car and despite the fact that the officer never saw his face at all as he walked away and made no notes whatsoever of this person’s appearance at the time. The officer regarded these shortcomings as being of very little consequence because he admitted this individual was not the focus of his observations. Indeed, no effort was made to follow this individual to determine whether he had indeed just engaged in a drug transaction. (

e) A 30 second meeting in the car where nothing was observed happening [ 70 ] This person remained in the car for less than 30 seconds during which time the officer saw nothing suspicious except that he looked alternately to each of the front seat occupants. When he left the car, he departed on foot and was not observed as having anything in his hands.

Despite agreeing that there may well have been other innocent explanations for this meeting, the officer admitted on cross- examination that he didn’t think for even a second that he was witnessing anything other than a drug deal, knowing this even as this person approached the car. This testimony establishes, in a significant way, that the officer was relying on a hunch based on his many years of experience with the drug trade, rather than on objectively verifiable observations linking them to known indicia. Even before the male had entered the car, the officer had effectively decided the matter. (

f) A further PRIME database search indicating the registered owner associated to drug dealing [ 71 ] Cst. Odendaal’s database query of the car revealed its registered owner to be the accused Kirsten Barnes and matching the appearance of the female driver. He testified to seeing several police files associated to her that indicated what he interpreted as having an extensive history of drug trafficking and drug related offences.

The problem with this testimony is that the officer was unable to provide any further detail about the source of this information, how old this information was, or whether it had in any way been corroborated. He could not be sure how many, if any of these files involved convictions. In other words, the information was unsourced, vague and conclusory without any realistic opportunity to assess its reliability. The problem was further compounded by the officer’s very poor note taking, which limited his ability for more detailed recall. (

g) Nothing whatsoever is known about the male occupant [ 72 ] Cst. Odendaal admitted that he could not identify the front seat male passenger and that neither the passenger nor the female driver were observed touching or handling anything while in the vehicle. (

h) The car remains in the parking lot for a further 75 minutes [ 73 ] Unlike the expected behaviour associated with dial-a-dope operations, this vehicle did not immediately leave the parking lot

after engaging in the meeting believed by Cst. Odendaal to have been a drug transaction. Rather, it remained in the parking lot forapproximately 75 minutes, during which time no further interactions were observed between the vehicle’s occupants and anyone else. Furthermore, no use of cell phones was observed whatsoever. The occupants were merely waiting in the car until, at one point, thefemale driver, now known to be the accused Kirsten Barnes, exited the vehicle for the purpose of purchasing a beverage from a gas barlocated in the parking lot. [74] Cst.

Odendaal theorized that the absence of any further suspicious activity during these 75 minutes might have been due to theoccupants waiting to be resupplied with drugs. I find he chose to draw that inference, as opposed to inferring other alternatives moreconsistent with innocence because he had already made up his mind earlier during the surveillance. Conclusion on grounds to arrest [75] I believe there to be serious shortcomings with the foregoing grounds relied on by Cst. Odendaal and this is the case despite hisextensive experience in this field of work.

There is a reasonable basis to conclude that the Constable made up his mind well before hegave the order to arrest, and furthermore that he did not actually rely very much, or at all, on some of the above-noted factors he cited. [76] The officer also appears to have given little or no weight to the absence of a number of indicators he cited as supporting thepresence of drug-related activity, including the absence of a rental vehicle, and the absence of objectively suspicious activity being notedto be involved when the suspected drug user entered the rear passenger compartment of the car.

He knew nothing about the male frontseat passenger now known to be the accused Kevin Plant. Also, a number of the indicia that he spoke to were poorly documented in hisnotes and thereby detracting from his ability to clearly and accurately recall his observations of that day and just exactly what he reliedon. [77] Here I would note that there appears to be one particular area where the testimony of Cst. Odendaal was not entirely supportedby that of the other officers attending at his request to assist with the arrest on the date in question. A/Cpl.

Cheng testified that Cst.Odendaal, when seeking the assistance of the other officers to attend, told them he had witnessed not one but rather several drugtransactions. This is a serious discrepancy with Cst. Odendaal’s own stated grounds. It is impossible to know whether this discrepancylies with A/Cpl. Cheng’s recollection, or that of Cst. Odendaal’s, because of the sparse nature of Cst. Odendaal’s notes. This casts doubton what it was that he actually observed and was relying on to arrest. [78] I conclude that while Cst.

Odendaal may well have formed a subjective belief, based on his years of experience and mostlyarising from a police officer’s hunch, that he was observing these accused engaging in drug-related activity, his grounds are not wellsupported by his notes, are inconsistent with what he may have relayed to other officers, and furthermore, to the extent he has statedthem, are not objectively supported based on the observations on the totality of the circumstances.

They are insufficient in respect of theaccused Barnes and they are virtually non-existent in respect of the accused, Plant. [79] I would only add, that the observation and discovery of a suspected baggie of drugs on the ground underneath that area of thecar where Mr. Plant was seated as he was being approached to be arrested does not provide any additional grounds for arrest which, as Ihave noted above, had already been decided and directed at the instance of Cst. Odendaal. [80] I find the arrest of both of these accused to therefore be in violation of

Section 9 of the Charter. Search Incidental to Arrest [81]

Section 8 of the Canadian Charter of Rights and Freedoms provides as follows: Search or seizure 8. Everyone has the right to be secure against unreasonable search or seizure. [82] In R. v. Collins, (SCC), [1987] 1 S.C.R. 265 the Court summarized the proper approach to search and seizurecases at para. 23: [23] A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search wascarried out is reasonable... [83] Police may search without warrant anyone they lawfully arrest incidental to that arrest.

This power is derived from thecommon law as confirmed in Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158. The scope of this power is summarizedin R. v. Caslake, (SCC), [1998] 1 S.C.R. 51 at para. 25: [25] In

summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common lawdoctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that thesearch must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated inCloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, whythey searched. They do not need reasonable and probable grounds.

However, they must have had some reason related to the arrest forconducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do notautomatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference.

However, thatinference may be rebutted by a proper explanation. [84] Having determined that the arrest of these accused was without reasonable and probable grounds, and therefore unlawful, itfollows that any search incidental to their arrest was also unlawful and therefore prima facie unreasonable. This would include allaspects, including search at the scene, their search at the police detachment (however conducted), and their fingerprinting prior torelease.

[85] As a result I conclude the s. 8 Charter right of both accused, to be secure against unreasonable search or seizure, to have beenbreached. Right to Counsel [86]

Section 10 (

a) and (

b) of the Charter provides as follows: Arrest or Detention 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; [87] In R. v. Taylor, 2014 SCC 50, the Court described the s. 10(

b) Charter right in these terms: [21] The purpose of the s. 10(

b) right is "to allow the detainee not only to be informed of his rights and obligations under the law but,equally if not more important, to obtain advice as to how to exercise those rights": Manninen, at pp. 1242-43. The right to retain andinstruct counsel is also "meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination": R. v.Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460, at para. 40.

Access to legal advice ensures that an individual who is under controlof the state and in a situation of legal jeopardy "is able to make a choice to speak to the police investigators that is both free andinformed": R. v.

Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310, at para. 25. [88] Pursuant to Taylor, at para. 23, the three duties imposed on police who arrest or detain are: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aidand duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [89] Taylor stipulates that barriers to counsel access cannot be assumed but must be proven: [33] Constitutional rights cannot be displaced by assumptions of impracticality.

Barriers to access must be proven, not assumed, andproactive steps are required to turn the right to counsel into access to counsel. [Emphasis in original.] [90] There appears to be little dispute that both accused were informed of the reason for their arrest and of their right to accesscounsel immediately upon their arrest. [91] What is lacking is that on the facts of the present case, it is clear that the accused Barnes was, through police inadvertence,entirely overlooked in terms of any actual provision of access to counsel, both at the scene, as well as at the police detachment prior toher release.

The Crown concedes the lack of provision of counsel at the detachment to constitute a significant breach of her s. 10Charter right to counsel. [92] I agree, and find Ms.

Barnes to have suffered a breach of her s. 10 right to counsel. [93] With respect to the accused Plant, although he was provided with access to counsel at the police detachment, defence arguesthat such access ought to have been provided at the scene of the arrest and that regardless, police should have refrained from asking anyquestions of either accused person until such time as their right to counsel had been fully implemented. [94] Taylor reviews these requirements at paras. 24 to 26: [24] The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention (Suberu, at paras.41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel.

Thearresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonablyavailable opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000),2000 ABCA 301 , 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factualinquiry. [25] This means that to give effect to the right to counsel, the police must inform detainees of their s. 10(

b) rights and facilitate access tothose rights where requested, both without delay. This includes "allowing [the detainee] upon his request to use the telephone for thatpurpose if one is available" (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercisehis right to counsel unless the police give him a reasonable opportunity to do so (see Brownridge v.

The Queen, (SCC),[1972] S.C.R. 926, at pp. 952-53). [26] Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from takingfurther investigative steps to elicit evidence (R. v. Ross, (SCC), [1989] 1 S.C.R. 3, at p. 12; R. v. Prosper, (SCC), [1994] 3 S.C.R. 236, at p. 269).

[ 95 ] I disagree that Mr. Plant should have been provided access to counsel at the scene. I make this determination because of the circumstances of the investigation and arrest having arisen in an ad hoc manner and without sufficient opportunity for police to have planned for such access. None of the police vehicles had a back seat that was secured from the front seats so as to prevent access to vehicular controls, police files or other material. A car having a secure cage isolating the rear seat had to be summoned to facilitate his transport to police cells.

That car arrived within a reasonable period of time, and Mr. Plant was afforded access to counsel on his arrival at the Langley detachment by 4:40 p.m., or within one hour of his arrest. I conclude this access to have been, in the words of Taylor , at the first reasonably available opportunity. [ 96 ] The greater difficulty with the Crown case is the matter of police questioning Mr. Plant at the scene of the arrest regarding ownership of the cellphones in the car and prior to having spoken to counsel.

This, as seen above and citing Taylor , is contrary to his constitutionally protected right to silence and to counsel. [ 97 ] For the foregoing reasons, I conclude that both Ms. Barnes and Mr. Plant have, sustained a breach of their s. 10 Charter right to counsel. The Honourable Judge Gill Provincial Court of British Columbia