R. v. Chand Date:, 2012 BCPC 342

Citation: R. v. Chand Date: 20120926 2012 BCPC 0342 File No: 214498-C-2 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER WILLIAM CHAND RULING ON VOIR DIRE OF THE HONOURABLE JUDGE W.J. KITCHEN Counsel for the Crown: Elizabeth M. Rennie Counsel for the Defendant: Matthew A. Nathanson & Gloria M. Ng Place of Hearing: Vancouver , B.C. Dates of Hearing: February 20, 21 & 24 & August 13, 14, 16 & 17, 2012 Date of Judgment: September 26, 2012 [ 1 ] Chand is charged with nine counts as a result of a search of his motor vehicle on July 20, 2010. It is alleged that police found

two handguns, a Glock .40 calibre and a Glock 9 mm., and as a result they laid charges of possession of restricted firearms, possession of unlicensed firearms, transporting firearms in a careless manner and transporting ammunition in a careless manner. [ 2 ] Prior to the trial the defence gave notice to the Crown that there would be arguments under the Charter of Rights and Freedoms , Sections 7, 8, 9 and 10(a)&(b), and it was therefore agreed by counsel and the Court at the outset that proceedings would be by voir dire.

Since the search of Chand’s vehicle was without warrant, the Crown has had the onus of showing that the search was reasonable. The Facts [ 3 ] The investigation of Chand began on July 8, 2010, when Sgt. Brandon of the Combined Forces Special Enforcement Unit Gang Task Force received information from members of the Vancouver Police Department concerning Chand, including that Chand had been warned by police on June 11, 2010 that there was an existing threat against his life.

The Vancouver Police turned over to the Gang Task Force an information package concerning Chand and a Warrant for a Dial Number Recorder to assist in tracking where Chand’s cellular telephone could be found for the purposes of surveillance. [ 4 ] On July 12, 2010 the Gang Task Force began its surveillance of Chand. A black Toyota Pickup Truck, driven by Chand, was seen leaving the underground parking area of 7321 Halifax St. in Burnaby where the police believed Chand resided in an apartment owned by his father.

The black Toyota was registered to John’s Custom Fibreglass Ltd., a company owned and operated by Chand’s father. Chand’s Toyota was travelling in tandem with a blue 1998 Dodge Caravan driven by an unknown driver. [ 5 ] On July 14, 2010 Chand was again seen leaving Halifax Street, this time as a passenger in a black 2010 Hyundai Santa Fe driven by Autumn Pearson, believed to be Chand’s girlfriend.

Initially the police had seen only Pearson in the vehicle but some distance from Halifax Street the police saw that two other heads “popped up” in the back seat of the vehicle. [ 6 ] Three minutes later but some distance away, accompanied by an unknown male, Chand got out of the Santa Fe and into a parked grey 2004 Infiniti. He drove away but five minutes later he and the unknown male left the Infiniti and transferred to Chand’s black Toyota pickup truck, which was parked on Ridge Drive in Burnaby.

They drove to a residence in Burnaby where they remained for a period of time and then departed. [ 7 ] On July 15, 2010, Chand was seen walking in the area of Halifax Street, shirtless and wearing shorts and perhaps taking a circuitous route to his residence. On the same date the police arranged to stage the seizure of an Avis rental car from Chand’s girlfriend in order have a confrontation with Chand but nothing of significance came of that incident. [ 8 ] The next day Chand was seen driving the Toyota in Maple Ridge and Burnaby. No relevant surveillance occurred from then until the time of Chand’s arrest.

Evidence of Sgt. Brandon [ 9 ] Sgt. Scott Brandon of the Gang Task force made the decision and gave the order to arrest Chand on July 19, 2010 because he concluded that he had reasonable grounds to believe that Chand was in possession of a firearm. Brandon’s evidence is therefore critical to the examination of the subjective and objective grounds necessary for making the arrest. [ 10 ] Brandon said that he relied on “source information” received from the Vancouver Police and from the Gang Task Force that he said independently corroborated each other.

From this information he knew that Chand had ties to the Hells Angels and specific members within the Hells Angels including Jules Stanton, who was an enforcer for that organization. Brandon knew also from PRIME, which he did not explain but which appears to be a police information database, that Chand was “tagged” as a person of violence and a person in possession of weapons.

In addition, Chand was “known” by the Gang Task Force to be a person involved in gang conflicts throughout the Lower Mainland. [ 11 ] Brandon had information that Chand was an associate of a person named Mike Fryer and believed that Fryer was most likely the unknown male often seen in the company of Chand. He had no information that Fryer was in possession of firearms, and he confirmed that he had done background checks on him.

But he said that during the time the Gang Task Force had Chand under surveillance he did not believe that Chand and Fryer were in fact ever seen together. [ 12 ] Brandon said he knew there was a credible threat to Chand’s life – this information came from “confidential human sources”. He said, “I can’t really disclose the things that we were told. Other persons in the gang world were in conflict with Mr. Chand.” Brandon said this caused a real dilemma for the police because people can be killed in public places and there is a huge concern to public safety. [ 13 ] Brandon said the police intended to “surveill” Mr.

Chand and attempt through source information or observations to establish that Chand was in possession of a weapon and to arrest and charge him for that. The surveillance was intended to corroborate the source information. He said that although they made efforts to see evidence of Chand carrying a weapon, there was no surveillance that indicated he might be carrying a weapon. [ 14 ] When asked about the credibility of the sources, he said, “We brought on line one of the affiants who was meeting with the confidential human sources to go over their pedigrees and establish their credibility.

Handlers were meeting with sources at every available opportunity to try to get additional information. Surveillance was also intended to look for corroboration.” [ 15 ] Brandon gave as an example of this corroboration that police had information from their sources that Chand was paranoid. He said that the incident on July 14, 2010 when Autumn Pearson drove from the Halifax Street underground corroborated this. Chand had been hiding in the vehicle, he believed, and then changed vehicles twice in a short period of time, demonstrating paranoia.

He said that as they investigated the police continued to receive source information and they attempted to corroborate it. He gave no further examples of any corroboration. He said that police were trying to get the best evidence – the most recent. He added, “You don’t want to

rely on blue herrings and waste your time.” [ 16 ] Brandon said there had been a shooting in the Halifax Street underground parking lot on April 14, 2010 and he regarded that as significant. Brandon had seen video clips of the incident, now filed as Exhibit 14 on this voir dire. It appeared to Brandon that two vehicles were entering the underground when the first one, a van, was fired upon.

The second vehicle, consistent with a Dodge van sometimes driven by Chand, “took tactical advantage” and the appearance of the driver was consistent with Chand’s description, although Brandon said that identification of any persons or vehicles in the video was not feasible because of the quality of the video. [ 17 ] Brandon said that the video confirmed information they had received from confidential human sources. He did not provide details other than to say, “The source information that we had coupled with what I saw that person do, tactically savvy, and his actions made me believe in my mind that it was Mr.

Chand. Most people would freeze and not do anything.” He added, “When the incident occurred I think it was a caretaker who said it ( a vehicle found with bullet holes ) belonged to Mr.

Chand.” He said that police had asked Chand about the incident and he said that he was out of town at the time of the shooting and that it was his Dad’s place, not his. [ 18 ] Brandon said that he had never been to the Halifax Street apartment, nor the underground, and he believed the video was taken from a Closed Circuit Television, although he said, “I have no idea how they put it together.” [ 19 ] On July 19, 2010 Brandon decided to arrest Chand and charge him with possession of a firearm. He said that in fact he believed he had reasonable grounds a few days before that.

He had in mind that they had source information that Chand had access to weapons, and the video from April 14, 2010 had confirmed that in Brandon’s mind. Police also had information that Chand had a hidden compartment in his vehicle and Brandon believed that was true. In addition a number of sources said that Chand was paranoid and the incident from July 14 confirmed that in Brandon’s mind.

In addition, there was information from sources, and from PRIME that Chand was dangerous. [ 20 ] He said, I had grounds to believe he was in possession of a weapon a few days before he was arrested based on the underground video, the source information, my own observations, the surveillance observations of his paranoid behaviour, and of the continued and corroborated source information that we got from Day One right through till the end of our investigation with respect to weapons and possession and him being dangerous.

Even at that time we were still making efforts to confirm the source information and make our own observations or to observe an action or inaction to confirm our reasons for belief. Then on the final day or night before, we learned he was going to be meeting with a very prolific gang member that he may or may not have been in conflict with – we didn’t know at the time. Knowing his paranoia, I wasn’t going to be letting him go and meet anybody in a public place for his safety or the public safety.

We decided that evening to pull him over and arrest him for possession of a handgun. [ 21 ] He explained that the “very prolific gang member” he may or may not have been in conflict with was Jules Stanton and their arrangement was described by Brandon as a “potential meeting”. In conclusion, he said that when he gave the order to arrest and charge Chand, “I had reasonable grounds, but not as much as I would like.” The Arrest [ 22 ] On July 20, 2010 at two minutes after midnight police pulled over the black Toyota on Production Way in Burnaby.

Chand was driving and Michael Gibson, a person unknown to the police, was in the passenger seat. Police took both occupants from the vehicle at gunpoint and placed them under arrest for possession of firearms. The vehicle was then searched and a police officer searching in the area of the passenger seat opened the glove box and “gave it a pull.” He said the glove box fell down and came free, almost hitting where you put your feet.

He then saw the butts of two guns, magazines, and ammunition in the back of the area, which had been exposed. [ 23 ] While the search of the vehicle was occurring, at 12:17 a.m. and 12:24 a.m. respectively, Cst. Krempeaux of the RCMP read arrest scripts to Chand and Gibson. Chand advised he understood the provisions of Sections 10(a)&(

b) of the Charter and said that he wanted to call a lawyer. He was read the police warning and said that he understood. Gibson said that he did not have anything on him and he just wanted to go home. [ 24 ] An exhibit officer took control of the truck and contents after the hidden firearms had been found. The items located in the truck included: a. A Glock model 26 semi-automatic pistol, 9 mm – a prohibited weapon. b. A Glock model 22 semi-automatic pistol, .40 cal. – a restricted firearm. c. A detachable cartridge magazine for a Glock 9 mm. d. Two detachable cartridge magazines for a Glock .40 cal. e.

Fifty-Six Glock 9 mm cartridges. f. Twenty-Nine Glock .49 cal. Cartridges. g. A bulletproof vest. Provision of “Right to Counsel”

[25] After being arrested on Production way, Chand and Gibson were taken separately to the Burnaby Detachment of the RCMP. Cst. Krempeaux had seized the two cell phones of Chand and did not let Chand use them at the arrest scene or thereafter because thephones might be required in evidence and there would be security concerns. [26] Chand arrived at the detachment at 12:47 a.m. and was allowed to use the washroom. At 1:02 a.m. Krempeaux took him to thebooking room and began to process him – searching him, seizing his effects, and filling out a police form.

He said that he did notprovide Chand with an opportunity to call a lawyer because that is “the last thing on his list”​​. He explained that he had several tasks toperform related to Chand and he did them in a routine order so that he ensured all tasks were completed. He had found in the past thatwhen he interrupted a task, or changed the sequence, there was a possibility that something would be missed. [27] The police form Krempeaux mentioned is Exhibit #19 in these proceedings, referred to by the police as a “C-13”. Thedocument has blank spaces and tick boxes to be filled in by the booking officer.

There is information concerning the identification of theprisoner such as name, address, telephone number and physical descriptors. There is information recorded concerning the identity of theinvestigating officers and the charges. There are tick boxes for the recording of personal effects seized from the prisoner and spaces forspecial notes, where in the case of Chand it was recorded he had a fanny pack, 2 Blackberry cell phones, 2 knee tensor bandages, anelbow tensor and wrap and a flashlight.

There were also spaces to record comments concerning medical condition, impairment, balance,speech, psychological condition etc. [28] Krempeaux said that the booking process took some time and the result was that it was 2:00 a.m. before Chand was providedwith an opportunity to telephone his lawyer. The call was completed and Chand was returned to his cell at 2:07 a.m. Krempeaux saidthat he then took Michael Gibson for his phone call, which was made at 2:35 a.m. even though Gibson had not gone through whatKrempeaux called “my structure”.

Krempeaux changed his routine for Gibson because he realized there had been a delay in allowingGibson an opportunity for his phone call. In fact, Cst. Hughes of the Transit Police who was part of the arrest team said that he hadstarted booking in Gibson at 2:20 a.m. and the process was interrupted part way through so that Gibson could be provided with his phonecall.

As far as Hughes was concerned there had been a delay from 12:47 a.m. when they arrived at the detachment until 2:20 a.m. whenHughes began the booking process for Gibson because there were other prisoners being booked in – “We were waiting in line.” [29] At 3:37 a.m. police attended to interview the passenger, Michael Gibson. A few minutes later the interview began – Gibson wasreminded that he was under arrest for possession of a firearm, warned, and confirmed to police that he has spoken to a lawyer. [30] After the interview with Gibson, police went to speak with Chand at about 4:55 a.m.

Chand was advised that Chand’s lawyer,Matthew Nathanson, had been called and a message had been left, but no call back had been received from Nathanson. About half anhour later Chand’s own cellular phone was returned to him from his effects so that he could phone Nathanson’s cell phone number thatwas recorded in Chand’s phone. A message was again left for Nathanson. [31] Just before 7:00 a.m. the police agreed to release Michael Gibson from custody.

Chand remained in custody and police phonedChand’s girlfriend to inform her that Chand was “okay” and that the police had tried calling Chand’s lawyer but he was not answeringthe phone. Finally at about 11:00 a.m. Chand spoke to Nathanson. At about 1:00 p.m. Chand was reminded of the reason for his arrest,“Chartered and warned”, and confirmed that he had spoken to counsel. Crown Argument [32] Ms. Rennie for the Crown agrees that there is a presumption that a warrantless arrest and search are unreasonable.

The burdenis on the Crown on the balance of probabilities to prove that the arrest and search were reasonable. The Crown agrees that Sgt. Brandonshould be the focus of such a discussion because he made the decision to arrest Chand and the Crown says Brandon had both subjectiveand objective grounds for the search. [33] The Crown argues that Chand may have standing to claim alleged violations of the Charter with regard to himself but not withregard to Michael Gibson.

With regard to Gibson, even if his rights were relevant, the police had grounds to detain Gibson when theyarrested Chand and shortly thereafter saw a bulletproof vest in plain view. [34] The Crown says that Chand had a reasonable but reduced expectation of privacy in the Toyota pickup. He was not the ownerbut he was the driver and therefore had care and control of it at the time of his arrest. On the other hand, Gibson was only a passenger,which does not automatically lead to a reasonable expectation of privacy.

On the criteria of the Edwards Case, there was no evidence heowned the vehicle, had historical use of it, had a subjective expectation of privacy, or that he was able to restrict access or admit orexclude others from it. Therefore, says the Crown, Chand has no standing to address alleged breaches of Gibson’s Charter Rights. [35] With regard to the grounds for the search, the Crown says it is the totality of the circumstances or the cumulative effect of theevidence that must be weighed by the court. The standard is not one of a prima facie case for conviction but one of reasonableprobability.

Source information may be referred to if it is compelling, credible and corroborated and weaknesses in one area can becompensated for with strengths in others. This is to be found in the case of Regina v.

Whyte, (2011) 2011 ONCA 24 , 266CCC (3d) 5 where in paragraph [12] the Court says, The test to be applied for considering whether an informer’s tip provides reasonable grounds for an arrest or search is whether the tip iscompelling, whether it is credible and whether the tip was confirmed by independent investigation. [36] Compelling source information is information that is sufficiently specific to warrant the attention of the police. For there to becorroboration there need not be corroboration of each detail but sufficient confirmation to remove the possibility of innocentcoincidence.

The Crown argues the source information met that test, with corroboration from different sources and from policesurveillance. In addition, the video of the shooting in the underground corroborated information about Chand. [37] The Crown says the arrest of Chand was therefore justified and the search which followed was properly incidental to the arrest.

The search derived its legal authority from the fact of the arrest and was truly incidental to the arrest as the purpose of the search wasrelated to the purpose of the arrest. The police were looking for firearms after the two occupants had been arrested for possession of aprohibited firearm. In the alternative, argues the Crown, the police had enough for investigative detention and, upon seeing thebulletproof vest in the vehicle, had the right to search the vehicle more fully. Further, the police had the right to stop the vehicle and itsoccupants and search it because of the exigent or near exigent circumstances. [38] Concerning

Section 7 of the Charter the Crown says the arrest and detention of Chand was in accord with the principles offundamental justice. There was no evidence of mistreatment or excessive force during this high-risk arrest and police action wasreasonable in the circumstances. [39] With regard to

Section 10 of the Charter, both Chand and Gibson were specifically advised why they were being arrested andboth said they understood. Both were then given the informational and implementational components of that section. With regard to thetime taken to provide access to a telephone, the Crown says that was reasonable and explained by Cst. Krempeaux and in fact was partlyattributable to Chand himself having to go to the bathroom for ten minutes.

Krempeaux indicated that it was not his intention to delayChand’s access to counsel but that time “got away from him”. [40] The Crown says that if the Court were to find that there were Charter violations the results of the search should be admittedunder Charter Section 24(2). If there is found to be a violation of Charter

Section 10(a)&(b), there is no causal connection between thatviolation and the results of the search. If breaches occurred with regard to the search, the Crown says that the Court must apply theprovisions of Regina v. Grant, 2009 SCC 32 , [2009] SCJ 32 where the Supreme Court held that when faced with anapplication for exclusion under s. 24(2) a court must assess and balance the effect of admitting the evidence on society’s confidence inthe justice system having regard to: 1. The seriousness of the Charter-infringing state conduct; 2.

The impact of the breach on the Charter-protected interests of the accused, and; 3. Society’s interest in the adjudication of the case on its merits. Defence Argument [41] Ms. Ng for the defence argues that there were violations of Chand’s rights under Sections 7, 8, 9, and 10(

b) of the Charter andthese violations must be considered cumulatively as parts of an on-going transaction showing a pattern of disregard for Chand’s rights. With regard to Michael Gibson, the defence argues that any breaches of his rights must be considered when the court examines CharterSection 24(2). [42] The defence discussed the warrantless search. The grounds of Detective Brandon included the video taken of the shooting inthe underground parking lot, information from confidential human sources including the final information about meeting Jules Stanton,and police surveillance. [43] Ms.

Ng said that the underground video was grainy, of poor quality, and one is unable to make out faces or license plates. Brandon relied on that video and concluded that it was Chand shown using a gun but Brandon had never personally seen Chand, nor hadhim under surveillance, nor had Brandon been to the parking lot where the shooting apparently occurred.

Objectively, it is for the courtto determine if Chand can be identified from that video and the video is not of sufficient quality or clarity to make a reasonableidentification of Chand or anyone else. [44] Concerning confidential human sources and whether they were compelling, credible and corroborated, Ng said there was noreal corroboration.

The so-called “paranoid behaviour” of Chand when he hid in a vehicle leaving Halifax Street and changed vehiclestwice in quick succession, Ng said could equally be explained by the fact that the police themselves had warned Chand on June 11, 2010that there was a threat to his life. [45] Brandon had also said that Chand was “always strapped” meaning he always carried a weapon but Brandon agreed that policehad seen no indications of that in their surveillance.

Bulges in his clothing were not seen and on one or two occasions he was out inpublic wearing only shorts and Ng argued it was unlikely he could have had a gun concealed anywhere. [46] Another lack of corroboration was the expectation that Chand was frequently in the company of Mike Fryer who was also aperson of concern to the police but during the entire time Chand was under surveillance Chand was not seen with anyone identifiable asFryer and when he was arrested he was with someone else. [47] Concerning the requirement that human sources should be credible, Ms.

Ng argued that there was no necessary foundation inthe evidence whatsoever for the court to determine the credibility of the sources – there were merely conclusory statements fromBrandon to that effect. [48] Ms. Ng referred to the case of Regina v. Storrey, (SCC), [1990] 1 SCR 241 where at paragraphs 14 & 17Chief Justice Lamer said: Section 450(1) makes it clear that the police were required to have reasonable and probable grounds that the appellant had committed theoffence of aggravated assault before they could arrest him.

Without such an important protection, even the most democratic societycould all too easily fall prey to the abuses and excesses of a police state. In order to safeguard the liberty of citizens, the Criminal Coderequires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable andprobable grounds to believe that the person to be arrested has committed the offence.

In the case of an arrest made without a warrant, itis even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they basethe arrest.

... In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. Onthe other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not requiredto establish a prima facie case for conviction before making the arrest. [49] Ms.

Ng pointed out that there was no evidence from any of the affiants referred to by Brandon who were meeting with thesources to establish their credibility. Brandon said they “checked the pedigrees” of their sources but there was no evidence of theinformants’ past performances, whether they had a record of being correct or incorrect, how the “pedigrees” were checked, what criteriawas used etc. In addition, there was an assertion by Brandon that they did not rely on stale information but he gave no indication of howrecent or fresh the information was.

There was no evidence concerning how much detail the sources provided, whether the sources were 1st, 2nd, 3rd or 4th hand, whether it was in the nature of a rumour, what sort of weapons were allegedly possessed by Chand, where andwhen were they possessed, etc. [50] Ms. Ng discussed the evidence Brandon gave concerning information from sources that Chand would be meeting with JulesStanton. Brandon had said that played a

part in his decision to arrest Chand because, “I wasn’t going to be letting him meet anybody.” But there was evidence given by Brandon as to when they would be meeting, if he knew at all, and he agreed that he did not know ifChand was in conflict with Stanton or “with him”. And Brandon had made the comment that the prospective meeting “did not increasemy grounds.” [51] Concerning the alleged violation of the implementational component of the right to counsel, Ms. Ng referred to the followingpassage from Regina v. Suberu, [2009] SCC 33: 4.2 The Meaning of “Without Delay” in

Section 10(

b) of the Charter [37] Once an individual is detained, s. 10(

b) of the Charter is engaged and guarantees an individual the right to retain and instructcounsel without delay, and to be informed of that right. The issue raised on this appeal asks whether the words “without delay” requirethe police to execute their duties to facilitate a detainee’s right to counsel immediately upon detention, or whether this obligation can befulfilled at a later point in time. [38] Once engaged, s. 10(

b) imposes both informational and implementational duties on the police. The informational duty requires thatthe detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation imposed on thepolice under s. 10(b), requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. Thisobligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonableopportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so. [39] The content of the police duties under s. 10(

b) is not at issue in this appeal. Instead, the question is whether the right to retain andinstruct counsel “without delay” means that these duties must be executed immediately at the outset of a detention, or whether theseduties manifest at some later point subsequent to the start of a detention. [40] As with “detention”, any

interpretation of the phrase “without delay” must be consistent with a purposive understanding ofthe Charter provision in which it occurs. As this Court noted in R. v. Therens, (SCC), [1985] 1 S.C.R. 613, at pp. 641-42, and in R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, the purpose of s. 10(

b) is to ensure that individuals know of theirright to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion whichleaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant toassist detainees regain their liberty, and guard against the risk of involuntary self-incrimination. [41] A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incriminationand the interference with liberty that s. 10(

b) seeks to address are present as soon as a detention is effected. In order to protect against therisk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them inregaining their liberty, it is only logical that the phrase “without delay” must be interpreted as “immediately”. If the s. 10(

b) right tocounsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them inregaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises. [42] To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(

b) creates an ill-definedand unworkable test of the application of the s. 10(

b) right. The right to counsel requires a stable and predictable definition. Whatconstitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room formisunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a rightthat imposes specific obligations on the police. In our view, the words “without delay” mean “immediately” for the purposes of s. 10(b).

Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, thepolice have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediatelyupon detention. [52] Ms. Ng submitted that Cst. Krempeaux did not have much explanation concerning why it took almost an hour before he evenfirst attempted to connect Chand with his counsel.

She argued that his evidence was inconsistent concerning the time it would take tosearch and book Chand, Krempeaux having said initially it would have been “real quick” and “I don’t think it took that long” but later in

re-examination saying, “It would have taken some time.” [53] Ms. Ng submitted that providing access to counsel should have been first and foremost in the minds of both Krempeaux and hisfellow officers since they knew well ahead of time that the men would be arrested, several officers would be involved, and one of thefirst matters of business when an accused is arrested is to deal with the Charter rights of that person. [54] In submissions concerning Charter Section 24(2), Ms. Ng referred to several cases, beginning with Regina v. Grant, SCC,2009 SCC 32 , [2009] SCJ 32.

She said that the belief that Chand possessed firearms was nothing more than a “hunch” and thedelay in giving Chand and Gibson their right to counsel showed “bad faith”. Multiple breaches that are all part of the same transactionfavour the exclusion of evidence. Analysis re: Arrest & Search [55] I conclude, and counsel agree, that Sgt. Brandon was the police officer who made the decision to arrest and search Chand. Allother police officers who were involved in the operation relied upon the decision and authority of Sgt. Brandon when the arrest andsearch were effected. It is therefore the evidence of Sgt.

Brandon that must be examined in order to determine if the Crown has, on thebalance of probabilities, shown that there were reasonable and probable grounds to believe that Chand possessed a firearm at the time hewas arrested. [56] Sgt. Brandon was a forthright witness. He took his own initiative at times in explaining in some detail the activities of thepolice but he did not go beyond the bounds of counsels’ questions. He was articulate and objective. He acknowledged problems therehad been with the investigation such as limitations on surveillance and mistakes or misapprehensions that had occurred.

His evidenceshould be relied upon in making findings of fact related to the search and arrest issues. [57] I conclude that Brandon had the subjective belief that Chand possessed a firearm at the time police took action to arrest him.

He gave several reasons for his believing that to be the case including his understanding that Chand’s paranoia had been confirmed, thatthere was what he believed to be reliable information that Chand was “always strapped”, reliable information that he had a secretcompartment in his vehicle for holding a weapon, and that he believed there was to be a meeting with Jules Stanton which could be adanger to all concerned, including the public. His subjective belief was confirmed by his accompanying actions, moving to prevent themeeting with Stanton by arresting Chand.

The strength of Brandon’s belief may be gauged from his comment, “I wasn’t going to let himbe meeting anyone.” [58] The Crown must show that Brandon objectively had reasonable and probable grounds to believe that Chand possessed afirearm. Brandon himself articulated what he believed were those objective grounds in the previously quoted extract from his evidence. Those reasons were: 1.

Brandon had seen the video of the shooting from the underground parking lot and had concluded that it was Chand in the videowho appeared to be the intended target. 2. “Source information”, including information that Chand was paranoid and edgy. 3. Brandon’s own observations. 4. Surveillance observations by the police of Chand’s paranoid behaviour. 5. Information from sources corroborating each other that Chand – - Possessed weapons - Was dangerous 6.

Information that Chand was meeting with Jules Stanton with whom he may or may not be in conflict. [59] I will deal first with the video taken in the underground parking lot. This video is in evidence as an exhibit and was described tosome extent by Sgt. Brandon during his evidence. Sgt. Brandon had never been to the parking lot nor ever seen any of the persons hebelieved to be in the video, including Chand. [59] It is not clear from the video where the locations are in the video but Sgt.

Brandon seemed to believe that the two movingvehicles shown in the video were first entering and then leaving the underground parking lot. It is clear he believed there was anassailant shown but this is not readily apparent, nor is it apparent that there is a gunfight – only running people who cannot be identified. Obviously Sgt. Brandon had other information concerning the video including that there had been a gunfight and where and when it hadtaken place but there was no other evidence before the court concerning this. [60] Sgt.

Brandon identified one person in the video as Chand because that person matched Chand’s body type and behaved like anexperienced gunfighter.

It was clear that Brandon had information about Chand’s past experiences but that information was not evidencebefore the Court and there is a real concern that Brandon’s understanding of Chand’s reputation came from underworld rumour andreputation more than from reliable information. [61] Brandon’s evidence was that the video in the underground parking lot recorded events that had occurred on April 14th, 2010,about three months prior to when Brandon made the decision to arrest Chand. About a month prior to the arrest, Vancouver Police hadapparently warned Chand that there was a threat on his life.

Those are the only two events that Brandon related as having occurred prior

to the Vancouver Police turning over the file for the Gang Task Force to investigate. There was other information Brandon had availablesuch as that Chand was paranoid and dangerous, but there were no events. That is a significant absence of information concerningChand’s activities during that three month time period and makes the events of April 14th lack much context and become rather stale andout of date. [62] In

summary, the video of the events in the underground parking lot, objectively, may or may not having been an attempt on thelife of a person who may have been Chand. The events had occurred well prior to the decision to arrest Chand. The video by itself wasa very limited use in assessing the state of affairs on July 19, 2010 and making the decision to arrest Chand. [63] Brandon also considered “source information” in making his decision. That source information was to the effect that Chandwas edgy, paranoid, dangerous, and possessed weapons including in a secret compartment in his vehicle.

Brandon went on to say thatinformation was confirmed with the surveillance of the Gang Task Force. As to the sources and the information itself he expressed theopinion that the sources “had a good pedigree” and were reliable, and the information was credible and compelling.

He gave no otherinformation concerning the sources in direct examination, and there was very limited cross-examination of Brandon concerning thesesources or his opinion of them. [64] The Crown made the submission that since Brandon was unchallenged in his opinion of the sources, his conclusions stand andthe Court should accept those opinions on the issues of whether the source information was compelling, credible and corroborated. As ageneral proposition, I must reject that as being inconsistent with the provisions of Regina v. Whyte, SCC (2011) 2011 ONCA 24, 266 CCC (3d) 5. The opinions of Sgt.

Brandon are certainly worthy of some consideration, but it is clear that it is theresponsibility of the Court to determine if it has been proved on the evidence there were objective grounds for arresting Chand, and theCourt must make an independent examination of the evidence to determine that issue. As Lamer J. said in Regina v. Storrey, (SCC), [1990] 1 SCR 241, the officer’s decision to arrest must be justifiable from an objective point of view. [65] In addition to that, it is clear that Sgt.

Brandon himself had limited information available concerning these sources and he wasrelying on other police officers to make all decisions concerning these informants. He referred in his evidence to “handlers” and“affiants” when asked for information concerning whether the informants had been found reliable in the past and whether theirinformation was credible. [66] The evidence before the Court concerning these informants was very limited.

There was no evidence concerning how theyobtained their information – whether by direct dealing with Chand, or speaking to others who had dealt directly with him, or by rumouror reputation in the underworld. There were no details provided concerning their past reliability. Brandon said the informantscorroborated each other but there was no evidence on the issue of whether they were independent or had any connection with each other.

There was no evidence as to the currency of their information, and whether it related to a period of time before the alleged shooting in theparking lot, or after that but before the warning to Chand by the police, or after that but some time prior to the police investigation. Finally, the nature of the information is very non-specific and difficult if not impossible to corroborate – comments such as that Chand is“edgy”, “paranoid”, and “dangerous” are of the nature of rumours and such matters of opinion do not lend themselves to objectivecorroboration.

I must conclude that the source information, examined objectively, is also a very limited indication of the state of affairson July 19, 2010 and whether Chand possessed firearms on that date. [67] Brandon referred to his “own observations” as one of his considerations in making the decision to arrest Chand. There was noevidence what these observations were and therefore the Court is not able to examine them on the issue of objective grounds. [68] Brandon next said that he also considered surveillance by the police that confirmed Chand’s paranoid behaviour.

He referred tothe incident where a vehicle left the underground parking lot where Chand was believed to reside and after it had gone some distancepolice saw “two heads pop up.” From the evidence it would seem that Chand was not identified at that time as one of those “heads” butfrom the sequence of events that followed I conclude that Chand was probably one of those persons.

Brandon also referred to aconfusing incident where Chand left his vehicle some distance from the residence and took what might have been a circuitous route onfoot to the residence. [69] I conclude those incidents show Chand was probably trying to avoid detection by persons in the vicinity of the residence. Hisreason for doing so is a matter of speculation. It is clear that the police believe him to be involved in criminal activity and Chand’sevasiveness may relate to that. Or it may show “paranoia” as Brandon refers to it – fear of others.

That could be irrational, which wasapparently Brandon’s concern, or it could have related to the fact the Vancouver police had previously warned Chand there was a threaton his life. Brandon was not aware that the police had actually warned Chand and he should have been – it was very significant to thepolice investigation. Looking at that warning objectively, it is an equally logical explanation of Chand’s behaviour. [70] I conclude that the police surveillance was equivocal on the issue of whether Chand was paranoid in the sense of beingirrationally fearful.

The observations made by the police may have been routine behaviour by a criminal wishing to avoid detection, ormay have been a sensible response by someone who had been warned by the police that his life had been threatened. [71] The final matter mentioned by Brandon in making his decision was that Chand had arranged a meeting with Jules Stanton. Itwas clear that Brandon had concluded that this created a highly dangerous situation that he could not permit. Brandon gave littleinformation concerning Stanton other than he was a Hells Angel who was apparently shot and killed sometime after the arrest of Chand.

Brandon believed him to be dangerous, but did not know if he was “for or against” Chand. There was no evidence what the meeting wasgoing to be about, or where, when, and why the meeting was going to occur. There was no evidence of contemporaneous surveillance ofStanton that may have been relevant. In short, there was very little information provided that the police could attempt to corroborate.

Like the other source information, it lacked specifics, and there was no information concerning the sources themselves other thanBrandon’s opinion that the source or sources were credible and corroborated. [72] Given the vagaries of the information concerning the meeting with Stanton, it also is of very limited relevance objectively. Theissue is whether there were reasonable and probable grounds to conclude that Chand should have been arrested for possession of afirearm at the time he was driving around in his truck with an unknown passenger on the evening of July 19, 2010. The Stanton

information has limited use on that issue. [73] When the Vancouver police turned over Chand’s file to the Gang Task Force it was the intention of the Task Force to gathermore evidence against Chand so that he could be arrested for possession of a firearm – Brandon said that in his evidence. During theweek or so the Task Force had the file, very little of real significance occurred. I must look at the totality of the evidence available to thepolice: Regina v. Debot, SCC, (SCC), [1989] 2 SCR 1140.

I conclude that in looking at all of the evidence availablecumulatively, including the video from the underground lot, the source information in general and in particular related to the Stantonmeeting, and the police surveillance, there was not enough objectively to conclude there were reasonable and probable grounds to arrestChand for possession of a firearm. [74] Brandon himself had doubts on that issue. He mentioned in his evidence that he would have preferred more evidence himself. It is clear that his real concern was the risk to the public if Chand and Stanton were to meet.

Good police work is as much concernedwith the prevention of crime as the investigation of crime. Brandon’s motivation in his concern for the protection of the public must becommended. However, this case is concerned with the investigation aspect of the decision to arrest Chand, and in that regard the arrestwas not justified. Analysis re: Charter

Section 10(a)&(b) [75] I will examine the police dealings with both Chand and Michael Gibson after their arrest. I conclude that Chand may assert onlyhis own rights under

Section 10 and I reject any defence submission that suggests Chand has an interest in Gibson’s rights to counsel. However, the dealings with Gibson were concurrent with Chand’s experience and reflect on the police attitude and procedures, whichwould have some relevance on an application under Section 24(2) of the Charter. [76] At 1:00 a.m. on July 20, 2010 Chand and Gibson had arrived at the Burnaby RCMP detachment and were ready for processing. Chand was not afforded an opportunity to phone his counsel until 2:00 a.m., one hour later. Gibson was given his first such opportunityat about 2:20 a.m.

In the meantime the police had involved themselves with paperwork relating to the arrest of the two men. I heardevidence concerning that paperwork and examined the documentation referred to by the police, what they termed a “C-13”. Thatdocument has tick boxes and blanks to be filled in and I conclude it would take a matter of minutes to complete it. I have examined whatwas actually filled in on Chand’s C-13 and the information is simple and straightforward – there was nothing complex that would havedelayed its preparation. I must reject Cst.

Krempeaux’ recollection that Chand’s hour long wait to phone counsel was due to thisnecessary paperwork. I conclude it was the case, as was the recollection of Cst. Hughes, that several other accused were being processedand there was a line-up or a wait for this booking process to take place. The paperwork did not take long; the rest of the time both Chandand Michael Gibson were “in limbo”. [77] The real problem is that the routine followed by Cst. Krempeaux should not have been the procedure at all.

Krempeaux saidthis was his “structure” that he always followed, searching and booking a prisoner before giving him a phone call. He said it was partlynecessary because if he interrupted his normal routine he might miss something, but it was hardly a complicated procedure and it wouldnot be difficult to follow, even if interrupted. [78] What the law requires is that the access to counsel should have been provided at the outset of the dealings at the detachment.

As was stated in the Suberu Case, “… it is only logical that the phrase “without delay” must be interpreted as “immediately”. [79] This Court hears evidence frequently concerning police affording accused persons their right to counsel. In nearly every casewhere a person is accused of impaired driving and taken for a breathalyser test, the first matter of business is to provide the accusedperson with a phone call. Booking, searching, fingerprinting and paperwork are all done after the phone call and breathalyser tests havebeen done, with little difficulty.

There is no reason at all why that procedure could not have been followed in this case, particularlywhere the accused were spending much of the period of delay simply waiting in a line-up. [80] I conclude that both accused should have been afforded access to counsel immediately after telephones became available around1:00 a.m. and that with regard to Chand in particular, his implementational right to access counsel under

Section 10(

b) of the Charterwas breached. [81] With regard to Michael Gibson, the unwarranted delay had no direct effect on Chand’s rights. However, it reflects on thegeneral attitude and approach to the rights of an accused by those police officers dealing with Chand and Gibson at that time. Analysis re: Charter Section 24(2) [82] This analysis begins with reference to the decision of Regina v.

Grant, SCC, 2009 SCC 32 , [2009] SCJ 32 where atparagraph 71 the Chief Justice and Charron J. said: A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewedin a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court mustassess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousnessof the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) theimpact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count forlittle), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance theassessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidencewould bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations setout in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

[83] In examining the seriousness of the Charter-infringing state conduct this Court must consider two “breaches” - that there wereinsufficient grounds to believe that Chand possessed a firearm, and that Chand’s implementational right to counsel was improperlydelayed. The former breach resulted in the finding of evidence and is the significant breach. The latter, along with the police dealingwith Michael Gibson, colours the situation and reflects on the issue of whether the police were acting in good faith. [84] Sgt.

Brandon’s belief that he had reasonable and probable grounds to believe Chand possessed a firearm must be characterizedas a “hunch”. The situation is similar to the case of Regina v. Harrison, SCC, 2009 SCC 34 , [2009] SCJ 34 where atparagraph 20 the Court observed: While an officer’s “hunch” is a valuable investigative tool – indeed, here it proved highly accurate – it is no substitute for proper Charterstandards when interfering with a suspect’s liberty. [85] In that case the Court went on to conclude that reasonable grounds for the officer’s conduct were entirely non-existent. That isnot the case here.

There were suspicions about Chand – that he was dangerous, paranoid, edgy, possessed weapons and might have adangerous meeting with Jules Stanton – but those suspicions were not substantiated in court. Even cumulatively this information fell farshort of amounting to reasonable and probable grounds. [86] The other police conduct to be examined relates to the delay in providing access to counsel. In assessing the significance ofthis, I refer to Regina v.

Bohn, BCCA, [2000] BCJ 867 where at Paragraph 45 Ryan J. said: In addition to the failure to bring the warrant and to produce it upon request, the trial judge found that the police infringed the right of theappellant to consult counsel within a reasonable time. The s. 10(

b) breach was serious because, in conjunction with the s. 8 breach it isdemonstrative of the inattention of the police to the rights of the appellant. To use the words of Dickson CJC in Strachan, supra, at p.1007, it was “a part of a larger pattern of disregard for Charter rights.” [87] Similarly in this case the delay in providing Chand with access to counsel within a reasonable time demonstrated a generalinattention of the police to the rights of Chand.

The preparedness to arrest and search him, lacking grounds, coupled with the policedealings with him after arrest, displayed a cavalier attitude by the police to the rights of Chand. [88] The second consideration in the Grant Case is the impact of the breach on the Charter-protected interests of the accused. TheCourt in Grant observed that admission might send the message that individual rights count for little. As noted by the Chief Justice inRegina v. Harrison, SCC, 2009 SCC 34 , [2009] SCJ 34, [28] This factor looks at the seriousness of the infringement from the perspective of the accused.

Did the breach seriously compromisethe interests underlying the rights(

s) infringed? Or was the breach merely transient or trivial in its impact? These are among thequestions that fall for consideration in this inquiry. [89] It is clear from the nature of the investigation in this case that the police believed Chand to be active in criminal gangs that werevery dangerous to society. From the evidence given by Sgt. Brandon, I conclude that the police were determined to arrest and searchChand for firearms, and they were prepared to do that wherever he happened to be when they found him. Their commitment to do sowas not merely transient – it continued for a matter of days.

Nor was it trivial – they were determined to search him even though theyrecognized themselves that they would have preferred more evidence to support their decision. From the point of view of Chand, theinfringement was very serious. [90] Finally I must consider society’s interest in adjudication of the case on its merits. This case involves very reliable realevidence. The several offences charged are all serious and the evidence seized by the police is critical to this prosecution.

The public isvery interested in seeing such matters prosecuted, particularly because they are such very dangerous matters; the concerns of Sgt.Brandon were certainly realistic. [91] However, the public is equally concerned that the police respect the rights of all citizens, without discrimination or bias. Suspected gang members deserve that respect as much as any other citizen.

Quoting again from the Harrison Case, at paragraph 40: … allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis “would deprive thosecharged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect,declare that in the administration of the criminal law ‘the ends justify the means’” (para. 150). Charter protections must be construed soas to apply to everyone, even those alleged to have committed the most serious criminal offences.

In relying on Puskas in thesecircumstances, the trial judge seemed to imply that where the evidence is reliable and the charge is serious, admission will always be theresult. As Grant makes clear, this is not the law. [92] Summarizing the Grant factors I conclude that the breaches by the police were very serious, the impact on the accused veryconsiderable, and the public interest in seeing the Charter appropriately respected would prevail over the public interest in seeing thecase prosecuted.

I must conclude that admission of the evidence at issue here would bring the administration of justice into disreputeand therefore the evidence is excluded.

BY THE COURT