R. v. Gallegos-Garcia Date:, 2013 BCPC 315

Citation: R. v. Gallegos-Garcia Date: 20131120 2013 BCPC 0315 File No: 217072-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DANIEL GALLEGOS-GARCIA RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: C. Tait Counsel for the Defendant: J.. Stowe Place of Hearing: Vancouver , B.C. Dates of Hearing: February 13, 22; June 30; August 6, 2013 Date of Judgment: November 20, 2013

A corrigendum was released by the Court on December 10, 2013. The corrections have been made to the text and the Corrigendum is appended to this document INTRODUCTION [ 1 ] On November 19, 2011, Constable Jason Funk and Constable Tracey Prentice were on patrol at approximately 6:25 am in the area of Ash Street and W. 6th Avenue in the City of Vancouver, when they observed an Infiniti G 35 pulled to the side of the road. The Infiniti was disabled due to a flat tire. Daniel Gallegos-Garcia (“the accused”) was in the process of fixing the tire. [ 2 ] The police officers pulled over to offer assistance.

Within minutes the accused was arrested for possession of marijuana by Constable Funk. As a result of a search incident to arrest, Constable Funk located other illicit drugs along with a cell phone on the accused. The accused was then advised that he was under arrest for possession for the purpose of trafficking. [ 3 ] The accused was handcuffed and for a period of time was placed in a police wagon before he was released by Constable Funk without charge. However, Constable Funk was keenly interested in the Infiniti automobile.

Constable Funk directed that the Infiniti automobile be towed to the Vancouver Police Compound based upon three concerns. First, he was concerned that the location of the Infiniti posed a safety risk. Second, he was of the opinion that the Infiniti needed to be searched for further evidence as “offence-related property”. Third, that he wanted to further investigate or “follow-up” how the Infiniti became disabled. [ 4 ] Later that day, a K-9 unit went through the Infiniti automobile with negative results. Constable Funk, an admitted automobile enthusiast, decided to conduct a further search of the Infiniti.

He pried open a part of the console of the Infiniti and he located a secret compartment in which further illicit drugs were located. [ 5 ] Though Constable Funk thought about securing a warrant to enter the Infiniti, he took no further steps in fact to secure a warrant, thus the search of the Infiniti was without warrant authorization. [ 6 ] The accused now faces charges that he possessed cocaine and heroin for the purpose of trafficking. The accused has also been charged with possession of marijuana.

ISSUES [ 7 ] The accused asserts that his rights under ss. 8, 9 and 10 of the Charter were violated in this investigation and that the evidence discovered flowing from searches of the accused and the Infiniti G35 ought to be excluded by operation of s. 24(2) of the Charter . BACKGROUND [ 8 ] Constables Funk and Prentice were on general duty patrol at approximately 6:25 am when they came upon a parked automobile off to the side of W. 6th Avenue at the intersection with Ash Street. The four-way flasher lights of this automobile were activated.

The officers noticed that the accused was actively working to change a flat tire for the spare tire. [ 9 ] The officers pulled their vehicle over to offer assistance to the accused. The accused told Constable Funk that he was on his way to his girlfriend’s place when he heard a “thump” so he pulled over to the side of the road and discovered he had a flat tire. He also discovered that he did not have a jack to change the flat tire for a spare tire.

It would appear the accused had called for tow truck assistance. [ 10 ] Constable Funk observed damage to the sidewall of the tire and also noticed a corresponding strike on the wheel. Constable Funk testified that his observations of the damage seemed to him to be inconsistent with the story given by the accused.

As such, Constable Funk began to look for other damage when he noticed what he believed to be an illegal window tint on the front of the automobile. [ 11 ] Constable Funk testified that he was “quite an enthusiast with motor vehicles” and was of the opinion that the tint was an aftermarket tint that had been applied. Constable Funk testified that it was in his “mind” to tell the accused that he should have the tint removed when he happened to look through the window and saw in the center console a clear jar which contained leafy material that appeared to be consistent with marijuana.

He testified this jar was in plain view. [ 12 ] Constable Funk testified that he asked the accused if he was the only person in the car that night. The accused responded: “No, just me”.

Constable Funk then pointed at the center console and asked the accused: “Can you explain this?” Though it did not appear that Constable Funk had any prior knowledge of the accused, when he asked the accused for an explanation, it was in the mind of Constable Funk that perhaps the accused had an exemption from Health Canada. (See Transcript, February 6, 2012, p. 18, l. 38-47.) [ 13 ] Constable Funk testified that when he asked the accused for an explanation the accused responded: “That’s my cannabis, medicinal marijuana.” In response to that answer, Constable Funk engaged the accused in conversation about his Health Canada exemption and whether or not he could produce the exemption card.

Constable Funk was told by the accused that he just got his exemption card that week.

[ 14 ] Constable Funk did not believe the accused and arrested him for possession of marijuana at 6:35 am. The reason for the arrest appeared to be based on Constable Funk's determination that the accused could not say anything about Health Canada or the process. In the direct examination he framed his answer as follows: ... -- I was trying to take him at his word, but at that point I determined that I didn't believe he had a Health Canada exemption.

I know from my experience that a lot of people are -- are getting these cards to purchase marijuana at a dispensary from people who can't issue cards, and they're not a Health Canada exemption or anything else like that, and I suspected that he probably had something similar to that. But he wasn't able to produce it, and at that point I didn't believe him with the things he was saying.

I didn't he had a Health Canada exemption, he couldn't say anything about Health Canada or the process, therefore I arrested him for possession of marijuana. (Transcript, February 6, 2013, Page 20, Lines 13 – 27) [ 15 ] Immediately following that evidence, Constable Funk advised the Court in the following exchange that he perhaps got the order of events wrong: THE COURT: You've got something else there in the conversation? A Yeah, Your Honour, sorry, I think I might have made things out of place a little bit.

The question about the card and about him getting it this week and saying he's new to this is actually after I had arrested him for the possession, but -- THE COURT: Well that is important. A Okay. He did say, you know, something about he got it from the weed centre and that it was a medicinal thing. THE COURT: Was that pre -- A It was -- THE COURT: -- or post arrest?

A It was just pre arrest, and at that point, you know, having -- having asked a couple questions about it, trying to determine whether -- or what kind of an exemption he had or where he got it from, I -- I believed that he didn't have one, and therefore I arrested him for possession of marijuana.

And then I chartered him for possession at 6:35 in the morning. (Transcript, February 6, 2013, Page 20, Lines 34 – 47 and Page 21, Lines 1 – 9) [ 16 ] During cross-examination, Constable Funk was questioned about a traffic ticket that was issued to the accused on November 20, 2011, for driving without due care and attention and for operating a motor vehicle with tinted windows. In answering that question the following exchange took place: Q But you'd already seen what you believed to be tinted windows, which I gather since you issued the traffic violation report is an offence under the Motor Vehicle Act , right?

A Yes, and like I said, between seeing the illegally tinted windows, and then seeing beyond the tinted windows, because I'm looking at the windows and seeing this suspected marijuana in the centre console, it happened so quickly that, you know, I was still trying to formulate in my mind as to what was transpiring. Q Okay.

A And that's one of the reasons why this ticket was issued the following day, because there had to be follow-up investigation done, and like I said, things were transpiring very quickly, much quicker than -- than -- you know, than we were able to sort of keep up with at the time, so it happened over a very short time.

Once I -- out of an abundance of caution after I came to the conclusion -- even though -- I was trying to give Daniel the benefit of the doubt, he's saying he did have an exemption card, but he didn't have it with him, and when I first -- out of an abundance of caution when I -- when I first began to think that well I don't think that he really does because of some of the inconsistencies in answers and he didn't really know about it, I then stopped him, arrested him and chartered him for possession, out of an abundance of caution . [Emphasis Added] (Transcript, February 7, 2013, Page 8, Lines 4 – 33) [ 17 ] Constable Funk denied in cross-examination that the accused was detained when he was questioning the accused about the suspected marijuana and whether or not the accused had a medical exemption through Health Canada.

When questioned by the Court if the accused was subject to any restraint the following exchange took place: THE COURT: So up until you arrested him, could he have just got up and walked away and you would have arranged for a tow truck to

impound the car and ticket the car for being unsecured in an unsafe parking zone? A I guess it's quite possible, but it probably wouldn't have happened at that point, I still had some further questions. (Transcript, February 7, 2013, Page 6, Lines 19 – 26) [ 18 ] After arresting the accused for possession of marijuana, Constable Funk conducted a search of the accused incident to arrest and located what he believed to be some flaps of heroin and rocks of cocaine. Constable Funk also located a cell phone on the accused which was ringing.

Constable Funk believed that the accused was involved in a “dial-a-dope” scenario. Constable Funk then arrested the accused for possession for the purpose of trafficking. The accused was advised of his Charter rights in relation to both arrests. [ 19 ] Constable Funk testified that following the arrest of the accused for possession for the purpose of trafficking he asked further questions of the accused about the Infiniti.

The accused produced a valid driver’s license, provided a telephone number and told Constable Funk that his mother owned the Infiniti. [ 20 ] While denying that there was any search of the Infiniti at the roadside, Constable Funk testified that he did go into the motor vehicle for a “cursory search” in which he may have gone in “quickly” to get the vehicle registration and he also believed that he found a second cell phone.

Other than the suspected marijuana in the glass jar, he did not see anything else that appeared suspicious and did not want to disturb anything else as he had requested K-9 search assistance. [ 21 ] He later received information that a K-9 unit was not available and Constable Funk had to determine what he was going to do with respect to the Infiniti and what to do with the accused. In relation to the Infiniti, Constable Funk testified in the direct examination that he was concerned about the Infiniti posing a risk to other drivers so decided the Infiniti should be towed to the police compound.

In addition, he wanted to have a K-9 unit search the Infiniti as, in his opinion it was, “quite possible that the vehicle could have been offence-related property at that time.” (Transcript, February 6, 2013, Page 30, Lines 38-47 and Page 31, Lines 1-2.) [ 22 ] In relation to the accused, Constable Funk testified that the accused was in handcuffs at the roadside for a period of time and that he also was placed in a police wagon in handcuffs for approximately 15 to 20 minutes while Constable Funk decided what to do with the accused.

Ultimately, he decided to release the accused without any documentation or process. The release of the accused was apparently based upon the belief of Constable Funk that further “follow up” was necessary. He explained that “follow up” in the following exchange in cross examination: Q He wasn't provided any documentation in relation to his arrest and release, was he? A He was released without charges at that point. We had follow-up to do.

We -- like I said, I believed that we were going to find more drugs and more money in the car, we wanted to have that stuff printed, if we found it, and there was a lot of stuff to do. So yeah, we released him without charges at the -- at the scene at the time. (Transcript, February 6, 2013, Page 61, Lines17-25) [ 23 ] Constable Prentice recalled having discussions with Constable Funk in relation to the release of the accused at the road side.

Her recollection of that discussion and what became of the accused was somewhat vague, but in the following exchange in the direct examination she was clear in her recollection that the accused was “definitely un-arrested”: Q Do you recall making -- or being involved in a decision to release the accused pending investigation? A Constable Funk and I did discuss that we were going to release him pending further investigation that day, yes. Q Do you recall where the accused was released from? A Again, I don't have absolute recollection.

There is a part of me that believes that we allowed him to be taken by the wagon to Main Street, but I'm not sure. It's just it was cold, he didn't have clothing, and I do believe that we got the wagon to drive him to the SkyTrain, but I can't be positive. I just don't recall if he -- once we took him out of the wagon, if we left him there, and there's -- my memory just doesn't -- I'm not sure a hundred percent.

He was un -- he was definitely un-arrested, and I'm just -- I'm not sure if we did transport him or not, I would have to check with the wagon. (Transcript, February 7, 2013, Page 39, Lines 12-31) [ 24 ] The Infiniti was towed to a secure police compound at the direction of Constable Funk. Constable Funk was asked by the Court what he told the accused was going to happen to the Infiniti, and what authority he was relying upon to impound the Infiniti: THE COURT: Did you tell him what you were going to do with the car -- or that you were going to impound the car?

And second, under what authority did you impound the car? A Well, I can't recall what I said specifically to him, other than I think one of us gave him a card with an incident number on it, and

I think we told him that the vehicle was going to be towed, and whether I told him what authority or whatnot, I don't recall if I did or not,but from our standpoint the vehicle was offence-related property in my mind. He -- the person I had in front of me I believed was adial-a-doper, they were using their vehicle in the commission of an offence to engage in dial-a-doping activity.

The vehicle needed to besearched for further evidence and it was offence-related property. (Transcript, February 6, 2013, Page 62, Lines 37-47 and Page 63, Lines 1-6) [25] Constable Prentice was also questioned in cross-examination as to what authority was relied upon to justify impounding theInfiniti for evidence.

It was the testimony of Constable Prentice that the decision to impound was Constable Funk's “call.” She took nopart in that decision. [26] The Infiniti was initially searched through the deployment of a K-9 unit at the secure compound with negative results.Constable Funk was not satisfied with the negative result and conducted his own thorough search of the Infiniti. Due to his knowledge ofautomobiles, his attention was drawn to the console unit. He felt that the console unit had been modified.

Upon manipulation and pryingof the console he managed to separate the main console and discovered a secret compartment which contained marijuana and money. [27] The search of the Infiniti was conducted without a warrant. Constable Funk testified that he thought about a warrant but felt hecould search the Infiniti as incident to lawful arrest of the accused. The basis for this belief was noted in cross examination in thefollowing exchange: Q Did you obtain a warrant to search the vehicle? A No, I did not. Q Did it cross your mind? A I did think about it, I've been in the drug squad for a long time.

I did think about it, but incident to lawful arrest, because he wasusing that vehicle and it was part of the crime, it's an offence to -- what I believed was dial-a-doping and possession for the purpose oftrafficking, and that there was drugs inside the vehicle, and he had access and control of that vehicle, he was in the trunk, he was by hisown admission in -- the only person using that vehicle that night -- or at that time, I searched it incident to lawful arrest. (Transcript, February 6, 2013, Page 63, Lines 8-22) [28] Constable Funk recalled that he spoke to the mother of the accused in the afternoon of November 19, 2011.

On November 20,2011, the accused came to the police station, as it was in the mind of Constable Funk to perhaps interview the accused about the drugsand money located in the Infiniti. Apparently, some form of interview took place with Constable Funk and the accused. At some point,either before or after the interview, the accused was rearrested for possession for the purpose of trafficking.

The accused was booked andthen released on an appearance notice. [29] Also on November 20, 2011, the accused was issued a violation ticket for driving without due care and attention and operatinga motor vehicle with an illegal tinted window. Both offences have designated fines of $360 and $109 respectively.

When questioned incross-examination as to why this violation ticket was issued, Constable Funk testified in part as follows: A And that's one of the reasons why this ticket was issued the following day, because there had to be follow-up investigation done,and like I said, things were transpiring very quickly, much quicker than -- than -- you know, than we were able to sort of keep up with atthe time, so it happened over a very short time. ... (Transcript, February 7, 2013, Page 8, Lines 16-22) POSITION OF THE PARTIES [30] The accused submitted that when Constable Funk looked through the window of the Infiniti at the roadside that amounted to asearch which was unlawful and in breach of the accused’s rights under s. 8 of the Charter. [31] It was submitted that s. 8 protects an individual's reasonable expectation of privacy and involves “balancing important societalinterests against the individual claimant’s privacy interests.” (R. v.

Kang-Brown, 2008 SCC 18 , [2008] 1SCR 456 at para. 134.) [32] It was submitted that in this case the accused had permission from his mother to be driving her car and, therefore, would enjoy areasonable expectation of privacy. (R. v. Belnavis, (SCC), [1997] SCJ 81 at para. 19.)

[33] It was further submitted that although the accused was present at the time of this initial search by Constable Funk, and althoughthe accused was not the owner of the Infiniti, the fact that the windows were tinted would lead to a conclusion that the interior of theInfiniti was not in public view. It follows that the accused would, therefore, have the ability to regulate access to the Infiniti. [34] Accordingly, it was submitted by the accused that this first vehicle search was not reasonable as it was not authorized by eitherstatute or at common law.

The fact that Constable Funk may be an automobile enthusiast could not be justified to validate his lookingthrough the Infiniti windows. [35] The accused submitted that Constable Funk in his own testimony was clearly not conducting a Motor Vehicle Act investigationat the time of the first initial search.

It was submitted by the accused that Constable Funk had no statutory authority to justify the initialsearch. [36] It was further submitted that the presence of Constable Funk and Constable Prentice at the roadside was of no assistance to theaccused and that the suggested reasonable safety concerns of, in particular, Constable Funk were without foundation. [37] It was further submitted by the accused that absent the observations made by Constable Funk when he initially looked throughthe windows of the Infiniti, when he saw the jar with suspected marijuana, that he would have no grounds whatsoever to arrest theaccused or search the accused. [38] It was further submitted by the accused that the entry into the Infiniti automobile by Constable Funk to purportedly locatevehicle registration amounted to a search that was a warrantless search and thus was not authorized by statute law or at common law.

Thefact that Constable Funk seized a cell phone from the Infiniti would clearly establish that this was a search. [39] It was further submitted by the accused that the towing of his vehicle to the police compound where it was later searched wasan unlawful seizure violating the accused’s s. 8 right.

The accused further submitted that there were no exigent circumstances present inthis case and Constable Funk should have secured a warrant to search the Infiniti. [40] It was further submitted by the accused that safety concerns expressed by Constable Funk were not reasonable safety concernsthat would justify the impoundment of the Infiniti.

Additionally, as the accused had been released at the roadside, there could be nojustification for the subsequent search of the Infiniti at the police compound as an incident to arrest. [41] In relation to the application of s. 9 of the Charter, the accused submitted that his arrest for both possession of marijuana andpossession for the purpose of trafficking in marijuana was based upon evidence obtained during the initial vehicle search when ConstableFunk saw the glass jar with the suspected marijuana in the console of the Infiniti. [42] Accordingly, it was submitted by the accused that absent the evidence obtained by Constable Funk during the initial vehiclesearch, the detention and arrest of the accused was not authorized.

If the arrest was not authorized by law then the detention of theaccused would be arbitrary. [43] In relation to the application of s. 10 of the Charter, it was submitted by the accused that he was detained psychologically byConstable Funk after Constable Funk observed the suspected marijuana in the jar located in the Infiniti.

The accused points to theevidence given by Constable Funk that the accused was not free to go as Constable Funk had some questions which needed to beanswered by the accused. [44] In the result it was submitted that when Constable Funk observed the suspected marijuana that an investigation had commencedpursuant to the Controlled Drugs and Substances Act (CDSA), which resulted in the actual detention of the accused and thus he ought tohave been advised promptly of his rights under s. 10 of the Charter (R. v.

Grant, 2009 SCC 32 , [2009] 2 SCR 353 at para. 41-44 and para. 58). [45] It was further submitted that Constable Funk breached the s. 10 right of the accused after his arrest for possession for thepurpose of trafficking as Constable Funk did not advise the accused of his s. 10 rights though he was facing an increase in legal jeopardy(R. v.

Sinclair, 2010 SCC 35 , [2010] SCJ 35 at para. 51). [46] It was submitted by the accused that there were multiple breaches and while the accused did not assert bad faith in relation tothe conduct of Constable Funk, it was the position of the accused that the actions of Constable Funk could not be characterized as goodfaith. [47] In relation to remedy, the accused submitted that all of the evidence obtained by Constable Funk ought to be excluded under s.24(2) of the Charter.

In the alternative, it was submitted by the accused that evidence obtained as a result of the warrantless seizure insearch of the Infiniti automobile should be excluded. [48] It was submitted by Crown Counsel that the accused has not established on a balance of probabilities that the accused wasdetained prior to his arrest at the roadside.

It was submitted that Constable Funk was trying to sort out what was taking place and wantedto give the benefit of the doubt to the accused. [49] In relation to the testimony of Constable Funk that he arrested the accused “out of an abundance of caution”, it was submittedby Crown counsel that while that evidence appeared to be “disjointed” the Court should still find that the arrest was authorized at law. [50] It was further submitted by Crown counsel that any purported breach of s. 10 of the Charter cannot affect an otherwise validsearch, “except for those exceptional situations where s. 10 has to be followed in order for a valid s. 8 search, consent, right?” (Transcript, August 6, 2013, Page 32, Lines 2 -8.) [51] It was further submitted by Crown counsel that prior to the impoundment of the Infiniti, Constable Funk believed that theaccused was involved in a dial-a-dope operation.

Accordingly, it was the submission of Crown counsel that the impoundment and

subsequent search of the Infiniti was lawfully validated as a search incident to arrest. [52] In support of the submission of Crown counsel that the impoundment and subsequent search of the Infiniti was lawfullyvalidated, the Crown relied upon the decision of R. v. Nolet, 2010 SCC 24 , [2010] 1 SCR 851. The Nolet case involved awarrantless search of a truck trailer by the police after the driver of the truck trailer was randomly pulled over so the police couldconduct an investigation of the truck trailer pursuant to commercial trucking regulations.

This truck trailer was ultimately impounded andsearched without the issuance of a search warrant. THE LAW Applicable Constitutional and Statutory Framework [53] The Accused has submitted that his rights guaranteed by ss. 8, 9 and 10 of the Charter were breached. Those sections of theCharter read as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention (

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

b) to retain and instruct counsel without delay and to be informed of that right; and (

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. [54] The offence of possession of marijuana is contained in s. 4 of the CDSA. The relevant subsection of s. 4 reads as follows: Possession of substance 4.

(1) Except as authorized under the regulations, no person shall possess a substance included in

Schedule I, II or III. ... Punishment

(5) Every person who contravenes subsection (1) where the subject-matter of the offence is a substance included in

Schedule II in anamount that does not exceed the amount set out for that substance in

Schedule VIII is guilty of an offence punishable on

summaryconviction and liable to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both. [55] The legal authority to justify an arrest for possession of marijuana without warrant is found in s. 495 of the Criminal Code andreads as follows: 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 anindictable offence; ... [56] Search, seizure and detention of property or things pursuant to the CDSA is authorized by s. 11 of the Act and reads as follows: Information for search warrant 11.

(1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that (

a) a controlled substance or precursor in respect of which this Act has been contravened, (

b) any thing in which a controlled substance or precursor referred to in paragraph (

a) is contained or concealed, (

c) offence-related property, or (

d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in

part in relation to acontravention of this Act, under

section 354 or 462.31 of the Criminal Code is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any suchcontrolled substance, precursor, property or thing and to seize it.

[57] In this case, s. 11(1) of the CDSA must be read in conjunction with sub-paragraph (7) which reads: Where warrant not necessary

(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions forobtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. GENERAL PRINCIPLES [58] In this case the operative arrest was pursuant to s. 495 (1) (

a) of the Code. The test for an arrest without a warrant in relation tos. 495 (1) (

a) is set out in R. v. Storrey (1990), (SCC), 53 CCC (3d) 316, (SCC). It was held that an arrest without awarrant may be made where the police officer believes on reasonable and probable grounds the accused has committed an indictableoffence and where such grounds are objectively justifiable. It is not necessary that the police officer make a prima facie case forconviction before arresting. Cory J. at para. 17 had this to say: 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. ... [59] The law is well established in Hunter v. Southam Inc., (SCC), [1984] 2SCR 145 that a warrantless search isprima facie unreasonable and contrary to s. 8 of the Charter.

Once it is established that a search was warrantless the onus shifts to theCrown to establish that the search was none the less reasonable. This onus may be discharged by resort to the common law if thewarrantless search was incidental to a lawful arrest. The onus may also be discharged by operation of statute, which in this case, wouldbe s. 11 of the CDSA. [60] The Supreme Court of Canada in R. v.

Caslake, (SCC), [1998] 1 SCR 51 at para. 19 identified the three mainpurposes of a search incident to arrest as follows: 19 As L'Heureux-Dubé J. stated in Cloutier, the three main purposes of search incident to arrest are ensuring the safety of the policeand public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can beused at the arrestee's trial. The restriction that the search must be "truly incidental" to the arrest means that the police must be attemptingto achieve some valid purpose connected to the arrest.

Whether such an objective exists will depend on what the police were looking forand why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for a validsearch incident to arrest in mind when the search is conducted.

Further, the officer's belief that this purpose will be served by the searchmust be a reasonable one. [61] In relation to automobiles, Caslake at para. 23 establishes that the search must also be truly incidental to the arrest of theindividual, taking into account: ... the basis for the arrest, the location of the motor vehicle in relation to the place of the arrest, and other relevant circumstances. [62] There is also appellate authority that stands for the proposition that there is no "automatic" right to search a motor vehicleincident to arrest.

Whether a vehicle search incident to arrest is valid will depend on whether there is a valid purpose for such a search.Otherwise, the right of an accused to a reasonable expectation of privacy in the vehicle will make such a search a contravention of s. 8 ofthe Charter, see R. v. Bulmer, 2005 SKCA 90 at para. 19). [63] In this case, it was submitted by the accused that there were no exigent circumstances to justify the physical entry by the K-9Unit or Constable Funk into the Infiniti either at roadside or at the police compound.

The CDSA does allow a police officer to enter aplace, including a vehicle, without a warrant if the conditions for obtaining a warrant exist, but by reason of exigent circumstances itwould be impracticable to obtain one. Pursuant to the previous Narcotic Control Act, s. 10 of that legislation permitted the police to entera place, including a motor vehicle, without a warrant. This

section was discussed by the Supreme Court of Canada in R. v. Grant (1994), (SCC), 24 CR (4th) 1, where at page 20-23, Sopinka J. stated that warrantless searches under s. 10 of the NarcoticControl Act “must be limited to situations in which exigent circumstances render obtaining a warrant impracticable”. Sopinka J. went onto say: This exception to the general rule which proscribes warrantless searches must be narrowly construed. In general, the test will only besatisfied where there exist an imminent danger of the loss, removal, destruction or disappearance of the evidence sought in a narcoticsinvestigation if the search or seizure is delayed in order to obtain a warrant. ANALYSIS Overview

[64] Constable Funk conducted four searches in relation to his investigation of the accused. The initial search took place whenConstable Funk looked through the tinted window of the Infiniti and observed suspected marijuana contained in a jar in the console. [65] The second search occurred when the accused was arrested for possession of marijuana.

The accused was personally searchedas an incident to his arrest. [66] The third search (the “cursory search”) occurred when Constable Funk entered the Infiniti apparently looking for vehicleregistration but during the course of which he may have seized a cell phone. [67] The final search occurred when the Infiniti was thoroughly searched at the Vancouver police compound.

This search includedthe deployment of a K-9 unit and included a subsequent thorough search of the vehicle by Constable Funk. [68] It was submitted by the accused that these searches were all performed without the benefit of a warrant, thereby violating therights of the accused pursuant to s. 8 and s. 9 of the Charter. It was further submitted that the accused was detained at the roadside whenConstable Funk looked through the window of the Infiniti and then demanded that the accused provide an explanation for whatConstable Funk apparently viewed in the Infiniti.

If that was the point of detention then Constable Funk failed to advise the accused ofhis rights under s. 10 of the Charter. [69] It was also submitted by the accused that the grounds for his arrest without a warrant could not be justified by application of s.495 of the Code. The validity of the arrest of the accused would be a threshold issue. Validity of the Arrest [70] When Constable Funk saw the suspected marijuana in the Infiniti, he testified that his belief was supported by his approximatesix year experience with the drug squad.

He also testified that he was aware that “a lot” of people in Canada have exemptions fromHealth Canada and, accordingly, questioned the accused about an exemption card.

Indeed, Constable Funk testified that he found it “odd” that the suspected marijuana was “lying around in the open, if they didn’t have that.” (Transcript, February 6th, 2013, P 18, L 45-47.) [71] Constable Funk testified that the accused told him that he had an exemption card, but he did not have the exemption with him.Constable Funk testified that he did not believe the accused in relation to the exemption and as he was unable to produce an exemptioncard or say anything about Health Canada or the process, that he then arrested the accused for possession of marijuana. [72] Constable Funk testified that he wanted to give the benefit of the doubt to the accused in relation to an exemption.

The failure ofthe accused to produce an exemption card was a material element in Constable Funk's decision to arrest the accused. [73] When Constable Funk was being cross examined about the tinted windows and the issuance of a traffic violation for the tintedwindows, Constable Funk responded that the violation was issued the next day as part of the “follow up investigation”.

Withoutprompting from counsel, Constable Funk went on to testify that he arrested the accused “out of an abundance of caution.” The fullexchange of the evidence is found at paragraph 16 of this Ruling. [74] To constitute a valid arrest of the accused Constable Funk must have a subjective and an objective basis for the reasonablegrounds to arrest the accused. A succinct

summary of the law on this point is found in R. v. Shokar, 2006 BCSC 770, where Joyce J atparas 19 -21 stated the following: 19 There must be both a subjective and an objective basis for the reasonable grounds to arrest the suspect. The arresting officer or theofficer who directs the arrest must believe that he has reasonable and probable grounds -- the subjective element.

Further, it must beshown that a reasonable person standing in the shoes of the officer would have believed that reasonable and probable grounds existed tomake the arrest -- the objective element. 20 The standard to be applied in assessing whether or not there were reasonable and probable grounds is not proof beyond a reasonabledoubt or even a prime facie case. It is one of reasonable probability (R. v. Storey, (SCC), [1990] 1 S.C.R. 241). Whetheror not a reasonable probability exists is also to be determined based on the totality of the circumstances (R. v.

DeBot, (SCC), [1989] 2 S.C.R. 1140). 21 The police officer who must have reasonable and probable grounds to arrest is the one who decides that the suspect should bearrested. The officer who actually effects the arrest is entitled to rely on the request or instruction of another police officer who has therequisite reasonable and probable grounds to justify the arrest. It is not necessary that the officer who actually performs the arrest forman independent judgment that there are reasonable and probable grounds. (See R. v. DeBot and R. v. Hall, [2006] S.J. No. 92, 2006SKCA 19). Therefore, as long as Cst.

Currie had reasonable and probable grounds, Cst. Weatherby was entitled to rely on them. [75] I have considered all of the circumstances surrounding the arrest of the accused. This includes Constable Funk's experience as apolice officer, and in particular, his drug squad experience.

I am unable to ignore or try to explain away the unprompted testimony ofConstable Funk when he told the court that he arrested the accused “out of an abundance of caution.” That is not a justifiable subjectivebelief in establishing reasonable grounds. [76] An arrest of an individual without a warrant requires that police officers maintain a high standard of care to ensure that anindividual subject to an arrest without a warrant is properly arrested.

Significant legal consequences can flow from an arrest and wherethe grounds do not elevate from mere suspicion to credibility based probability, a warrantless arrest will not be authorized by law. [77] Accordingly, I find that Constable Funk did not have the requisite subjective belief in establishing reasonable grounds to arrestthe accused and those grounds cannot be justified objectively. Therefore, the arrest of the accused without warrant was not justified

pursuant to s. 495 of the Code, nor justified under any other statute or at common law. [78] It follows that the search of the accused at the roadside was contrary to s. 8 of the Charter. As well, it amounted to an arbitrarydetention contrary to s. 9 of the Charter.

In addition, the “cursory search” of the Infiniti would, therefore, be contrary to s. 8 of theCharter as would the subsequent thorough search of the Infiniti at the police compound. [79] Whether it was due to his note-taking, which I find to be poor, or simply as a result of the passage of time, I did not find thatConstable Funk had a reliable recollection of what took place at the time of the arrest of the accused. Nor did he have a reliablerecollection of subsequent investigation events.

I found this surprising as Constable Funk had at least six years experience with the drugsquad. [80] Additionally, and without prompting, it appeared that Constable Funk became confused over the timing of events leading up tothe arrest of the accused concerning conversation about the exemption card. That evidence is found at paragraph 15 of this Ruling.

Ifthe conversation about the Health Canada card took place after the arrest then I find at best Constable Funk would have no more than asuspicion of possession from peering through the tinted window. [81] My concern about the timing of the conversation relating to the Health Canada card elevated concerns over the reliability ofConstable Funk’s testimony overall. In particular, I was troubled by answers given by Constable Funk in relation to straightforwardquestions in both direct and cross-examination.

Constable Funk gave long answers to straightforward questions and often those answersincluded language that revealed Constable Funk simply was not sure of events that unfolded in this investigation. I do not findConstable Funk to be reliable in relating events in an accurate way in his investigation of the accused. [82] Prior to determining whether the evidence in this case should in whole or in part be admitted or excluded in the trial proper, itwould be appropriate to examine other constitutional issues raised by the accused. POINT OF DETENTION IN RELATION TO

SECTION 10 [83] It was submitted by the accused that he was detained at the time Constable Funk began to question him about the suspectedmarijuana. Accordingly, if the accused was detained then he should have been advised of his rights under s. 10 of the Charter. [84]

Section 10(

a) of the Charter provides that where a person is arrested or detained, that individual must be told of the reasons forthe arrest or detention in a prompt manner. In R. v. Nguyen, 2008 ONCA 49 , [2008] OJ 219, the Ontario Court of Appealsummarized the law regarding the informational component of s. 10(a). In that review, the court held that the use of the word“promptly” in s. 10(

a) is subtlety different from the phrase “without delay” in s. 10(b). The term “promptly” is a positive term whichmeans “immediately” (paras 16-22). [85] In R. v. Mann, 2004 SCC 52, at para 21, Iacobucci J had this to say: 21

Section 10(

a) of the Charter provides that "[e]veryone has the right on arrest or detention to be informed promptly of the reasonstherefor." At a minimum, individuals who are detained for investigative purposes must therefore be advised, in clear and simplelanguage, of the reasons for the detention. [86] There is nothing in the testimony of Constable Funk that would suggest that he was unaware of the obligations set out in s. 10 ofthe Charter. This was not a situation at the roadside where exigent circumstances were in play.

The questioning of the accused byConstable Funk was clearly related to Constable Funk's initial observation of the suspected marijuana. In addition, it is quite clear fromthe testimony of Constable Funk as discussed at paragraph 17 of this Ruling that the accused was not free to go. [87] I find that the accused was detained by Constable Funk after he observed the suspected marijuana inside the Infiniti thendemanded an explanation from the accused regarding the suspected marijuana. Accordingly, there were breaches of the accused’s rightsunder s. 10(

a) and (

b) of the Charter. THE SEARCHES The Initial Search [88] Constable Funk testified that when he observed the Infiniti pulled over to the side of the road that he turned the police vehiclearound and returned to the area where the Infiniti was located to see if the driver required assistance. Constable Funk determined that theInfiniti became disabled after one of the rear tires struck an object which resulted in the tire going flat.

Constable Funk testified that hewas not satisfied with some of the answers provided by the accused in response to his questioning the accused about the flat tire. [89] Constable Funk told the Court that he was also an automobile “enthusiast” and that he had a significant knowledge ofautomobiles. As a result of this enthusiasm, he became interested in the tinted windows in the Infiniti believing that the tint may beillegal. He did not testify that this belief was, at this time, an investigation pursuant to the Motor Vehicle Act.

The tinted windows andstrike to the tire rim became part of a Motor Vehicle Act investigation after the Infiniti was towed to the police compound. [90] It is well-established that not every examination by police officers will constitute a “search” within the meaning of s. 8 of theCharter. An examination by police officers “will be a search within the meaning of s. 8 only if it constitutes an intrusion on anindividual’s reasonable privacy interest”. See, R. v.

Kang-Brown, 2008 SCC 18 , [2008] 1 SCR 456 at para 136). [91] The Court in Kang-Brown directed that a trial Court must look at specific context and circumstances surrounding a search

where s. 8 of the Charter may be engaged. In this case I must address two distinct questions. The first question is whether or not the accused had a reasonable expectation of privacy in the interior of the Infiniti.

If the answer to the first question is “yes” then the second question is whether the initial search was reasonable. [ 92 ] The Court in Kang-Brown at para. 140 sets out the factors that are relevant to the determination of whether or not the accused had a reasonable expectation of privacy in the interior of the Infiniti: 140 To determine whether the accused had a reasonable expectation of privacy, the totality of the circumstances must be considered. The accused must establish both an objective and a subjective expectation of privacy.

In Edwards , at para. 45, and Tessling , at para. 32, this Court developed a non-exhaustive list of factors to assist in making this determination. The factors for determining whether the accused had a reasonable expectation of privacy may be summarized as including: (

i) the presence of the accused at the time of the alleged search; (ii) the subject matter of the alleged search: (

a) ownership and historical use of the subject matter; (

b) whether the subject matter was in public view; (

c) whether the subject matter had been abandoned; (

d) where the subject matter is information, whether the information was already in the hands of third parties; if so, was there a duty of confidentiality in relation to it? (iii) the place where the alleged search occurred: (

a) ownership, possession, control or use of the place where the alleged search took place; (

b) the ability to regulate access, including the right to admit or exclude others from the place; (

c) notification of the possibility of searches being conducted in the place; (iv) the investigative technique used in the alleged search: (

a) whether the police technique was intrusive in relation to the alleged privacy interest; (

b) whether the information obtained in the alleged search exposed any intimate details of the accused's lifestyle, or information of a biographical nature. [ 93 ] The registered owner of the Infiniti was the mother of the accused. There was no evidence to suggest that he did not have the consent of the registered owner to have the care and control of the Infiniti. [ 94 ] The accused had the ability to regulate access to the Infiniti including the right to admit or exclude people from access to the Infiniti.

It was also clear that the Infiniti was not abandoned, rather the accused had requested tow truck assistance as he did not have a proper jack to repair the flat tire. [ 95 ] The interior of the Infiniti was not in public view as the windows were tinted. At no time did Constable Funk seek the permission of the accused to look into his car.

In the context of this case, if Constable Funk was such an automobile enthusiast, one would expect that he would seek permission from the accused to look into his Infiniti. [ 96 ] It must be kept in mind that Constable Funk and Constable Prentice pulled over to see if they could assist the accused. This was not a situation where a search was conducted following a statutorily authorized motor vehicle stop ( R. v.

Grunwald , 2010 BCJ 1088 ). [ 97 ] I conclude that in relation to the circumstances of this case that the accused had a reasonable expectation of privacy in relation to the Infiniti and, therefore, the initial search by Constable Funk was a warrantless search. As it was a warrantless search, that initial search was prima facie unreasonable. [ 98 ] As I have found that the initial search was a warrantless search and prima facie unreasonable, the Crown, therefore, has the onus of establishing on a balance of probabilities that the search was reasonable ( Caslake , at para. 11 ).

In that determination a search or seizure will be reasonable “if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable” ( Kang-Brown at para 144 ). [ 99 ] Though Constable Funk and Constable Prentice had pulled over to see if they could assist the accused, I find that the evidence establishes that their assistance was not necessary as the accused had the situation under control. He had called for a tow truck to provide assistance. The four-way flashers of the Infiniti were on and the location of the Infiniti was not impeding traffic.

Indeed, at this time in the morning it would appear that traffic was minimal. [ 100 ] In the circumstances of this case, I find that the accused had a reasonable expectation of privacy in relation to the interior of the Infiniti and that the initial search conducted by Constable Funk when he looked through the tinted window was not pursuant to any statutory or common law authority. [ 101 ] Accordingly, I find that the initial search of the Infiniti was in violation of s. 8 of the Charter .

The Search of The Accused [ 102 ] I have found that the arrest of the accused by Constable Funk was not authorized by law and therefore the search of the accused as an incident of arrest cannot be justified.

In addition, as I have found the circumstances surrounding the initial search of the Infiniti to be a breach of s. 8 of the Charter , it follows that the personal search of the accused must also be in breach of s. 8 of the Charter . [ 103 ] Upon his arrest at the road side the accused was placed in handcuffs for a period of time and was also placed in a secure police van for 15 to 20 minutes before he was released without charge, or in the words of Constable Prentice, the accused was “un-arrested.” Accordingly, I find that the accused was arbitrarily detained at the earliest when he was being questioned by Constable Funk after he looked through the tinted window of the Infiniti, and certainly the accused was arbitrarily detained at the latest after he was unlawfully arrested.

This amounted to a breach of s. 9 of the Charter . The Cursory Search of the Infiniti [ 104 ] Constable Funk testified that after he had arrested the accused and searched the accused, he may have entered the Infiniti to get motor vehicle registration to identify the owner.

However, Constable Funk testified that he recalled that the accused told him that his mother was the registered owner which would question the need for Constable Funk to enter the Infiniti. [ 105 ] Constable Funk did not describe this entry into the Infiniti as a search, rather he described it as a “cursory search” resulting in a quick entry into the vehicle to get vehicle registration.

However, he also testified that he recalled finding and seizing a cell phone in the Infiniti when he made this quick entry. [ 106 ] I do not find that any exigent circumstances were in existence at the roadside when the accused was first detained and then arrested. The entry and search of the Infiniti cannot be justified by ss.11(1) and (7) of the CDSA.

Additionally, as I have found that the accused had an expectation of privacy in relation to the Infiniti, the warrantless entry into the Infiniti was prima facie unreasonable and not authorized pursuant to any statutory or common law authority. [ 107 ] As the Crown has not discharged their burden it follows that the cursory search of the Infiniti was a breach of s. 8 of the Charter . The Thorough Search of the Infiniti [ 108 ] Constable Funk made the “call” to have the Infiniti towed to the police compound. He testified that the reasons were threefold.

First, he was concerned that the location of the Infiniti posed a safety risk. Second, he was clear in his evidence that he viewed the Infiniti as “offence-related property” and that the Infiniti needed to be searched for further evidence. Third, he wanted to do further “follow-up” relating to the Infiniti becoming disabled. [ 109 ] I have found that Constable Funk did not have a clear recollection of many aspects of the investigation into the accused and his connection to the Infiniti. Constable Prentice also had problems recollecting with clarity events that took place at the roadside with the accused.

However, she was certain that Constable Funk discussed releasing the accused at the roadside “pending further investigation that day.” [ 110 ] Constable Prentice characterized the release status of the accused as being one of “definitely un-arrested.” It would appear that the Infiniti was not as fortunate as it was towed to the police compound at the direction of Constable Funk. There was no suggestion in the evidence of either police officer that there was any urgency.

Indeed, it would appear that the Infiniti was both disabled and under the control of both police officers when the accused was “un-arrested.” [ 111 ] I find the only possible legal justification for impounding and towing the Infiniti without a warrant would be pursuant to the Motor Vehicle Act or perhaps a local parking bylaw. Neither of these were raised in evidence as justifications by either Constable Funk or Constable Prentice.

Safety concerns, as expressed by Constable Funk, I find to be vague and unreliable. [ 112 ] Constable Funk testified that he did think about a warrant after the Infiniti was towed to the police compound, but felt he could search the vehicle as an incident to arrest. In his view the Infiniti was “offence-related property” and that alone would justify the impoundment and the subsequent search of the Infiniti. [ 113 ] Later that day, at the direction of Constable Funk, a K-9 unit searched the Infiniti with negative results.

Not satisfied with that negative result Constable Funk went into the interior of the Infiniti and as a result of his knowledge of automobiles he felt there was something amiss in relation to the vehicle console. Through physical manipulation Constable Funk was able to dismantle a portion of the console where he discovered more marijuana and $2,000. He went on to search the trunk where he testified he found marijuana shake.

It seems the search by the K-9 unit missed this contraband. [ 114 ] Upon discovering the drugs and the money, Constable Funk, in the company of Constable Prentice went to the residence of the accused to discuss what they had found. The accused was not present, but the police officers were able to speak to the accused’s mother. Following that, it would appear that the accused attended at the police department the following day, where he was rearrested for possession for the purpose of trafficking.

The accused was booked and released with process. [ 115 ] Though one of the justifications to impound the Infiniti was stated to be following up on the breakdown of the Infiniti, there does not appear to be any follow up performed by Constable Funk. Rather, the accused was issued a traffic violation ticket for driving without due care and attention with a ticket amount of $360 and a further offence of having tinted window beside driver with a ticket amount of $109.

Constable Funk did not have a clear recollection of issuing the traffic violation ticket but it is clear from reviewing the ticket that the badge number of the issuing officer was that of Constable Funk. [ 116 ] I had a clear sense from the evidence of Constable Funk that somehow the Motor Vehicle Act infractions could be viewed as some form of ex-post de facto justification for the impoundment and towing of the Infiniti. I have a great deal of difficulty in finding that

the strike to the tire rim and subsequent flat tire on the Infiniti could amount to driving without due care and attention. [ 117 ] Of greater concern is the fact that the Infiniti was impounded and searched without warrant.

Notwithstanding his approximate six years experience with the drug squad, it would appear that Constable Funk had either forgotten or was not aware of the need to obtain a warrant unless it was impracticable to obtain a warrant due to exigent circumstances. [ 118 ] It was clear that Constable Funk did think about a warrant but absolutely no evidence was offered by Constable Funk to explain why he did not secure a warrant. It was his assertion that he was entitled to search the Infiniti as offence related property since Constable Funk believed that the accused was involved in a dial-a-dope scenario.

The law has been well-established since 1993 that before a police officer may enter a vehicle he or she must have reasonable grounds to believe that illicit drugs are located in that motor vehicle and there must also be exigent circumstances [ 119 ] While the Grant decision references the former Narcotic Control Act , it remains, in my opinion, good law as it relates to s.11 of the CDSA . I find in this case that the search of the Infiniti at the police compound could not in any way, shape or form be characterized as a search incident to an arrest.

Indeed, any arrest that may have been in effect respecting the accused ceased to exist when he was “un- arrested” at the roadside. [ 120 ] Although the Crown cited R. v. Nolet , as authority for the proposition that police officers may conduct thorough searches of a vehicle without warrant, I find that case is distinguishable. Nolet involved a legally authorized and cursory search of a commercial vehicle under a specific regulatory scheme under Saskatchewan law, which then led to a subsequent seizure and a more thorough search of the truck and its contents.

At paragraph 50 of the decision, the Court specifically found that there was a “close causal and spatial connection between the arrest and the search.” No such causal and spatial connection exists in this particular case. [ 121 ] I find that the impoundment and towing of the Infiniti to the police compound at the direction of Constable Funk was not authorized pursuant to any statutory law or at common law. I also find that the thorough warrantless search of the Infiniti by the K-9 Unit and by Constable Funk was not authorized by any statutory law or at common law and was a breach of s. 8 of the Charter .

SECTION 24(2) ANALYSIS [ 122 ] I have found that numerous breaches of the Charter have been established in this case. In R. v. Reddy , 2010 BCCA 11 , Frankel J.A. summarized the approach set out in R. v. Grant , 2009 SCC 32 , for determining the admission of evidence obtained in breach of a Charter right commencing at paras. 91 - 94 as follows: 91 The Grant factors are succinctly stated at paragraph 71 of that decision.

In deciding whether to admit or exclude evidence, a court must now assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct); (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little); and (3) society's interest in the adjudication of the case on its merits.

See also: Harrison at para. 2 92 With respect to the first factor -- seriousness of the breach -- the greater the level of state misconduct, the greater will be the need of the courts to disassociate themselves from that conduct. Wilful or reckless disregard for Charter rights will, therefore, tend to support exclusion: paras. 71-74. Further, as the Chief Justice and Charron J. noted (at para. 75): "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.

However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: [citations omitted]. 93 As for the second factor -- impact of the breach on the accused -- it was observed that "[t]he impact of a Charter breach may range from fleeting and technical to profoundly intrusive".

The more serious the impact is on the rights of the accused, the more likely it will be that exclusion is warranted: paras. 76, 77. 94 The last factor -- society's interest in a decision on the merits -- involves the question of "whether the truth seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion": para. 79. The reliability of the evidence is an important consideration, as is the importance of the evidence to the truth-seeking function of the trial.

Although "seriousness of the offence" remains a consideration, it has far less importance than under the Collins/Stillman framework, because s. 24(2) focuses on the long-term implication for the repute of the administration of justice, and not the public's short-term desire for a conviction: para. 84. The Seriousness of the Charter Infringing State Conduct [ 123 ] In R. v.

Harrison , 2009 SCC 34 at para. 22 , the Court held that in conducting the first inquiry under s. 24(2) the Court should disassociate itself from the misconduct where "the police knew (or should have known) that their conduct was not Charter compliant”: [22] At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. Did it involve misconduct from which the court should be concerned to dissociate itself? This will be the case where the departure from

Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter-compliant.On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is muchless of a concern. [124] In relation to the initial arrest police have specific powers to arrest, powers which should be used with restraint. The CriminalCode requires that a police officer have reasonable and probable grounds before making an arrest. The arrest of the accused out of “anabundance of caution” would not meet the necessary standard.

From his experience with the drug squad one would expect that ConstableFunk should have known that he did not have the necessary subjective grounds to arrest the accused. [125] In relation to the searches, none of the four searches were authorized. In particular, the thorough search of the Infiniti at thepolice compound was vexing. I find the thorough search of the Infiniti at the police compound amounts to unacceptable conduct byConstable Funk. [126] On the whole of the evidence in this voir dire, I conclude that Constable Funk should have known that he had no authority toconduct the four searches.

Good faith is not made out. Nor is inadvertence. I find that extenuating circumstances are absent. [127] The first avenue of inquiry favours exclusion of the evidence. The Impact of the Breaches on the Charter Protected Interest [128] In R. v. Loewen, 2010 ABCA 255 Berger J. A., in dissent (his dissent was reversed on appeal, but not on this point), in dealingwith the second of the Grant factors commencing at paras. 96 – 101, had this to say: 96 The second avenue of inquiry requires the Court to consider the seriousness of the Charter-infringing state conduct.

In doing so, Iturn to both the factual underpinnings and choice of language in Grant and Harrison which require careful attention. The issue in Grantwas whether the firearm found on his person should have been excluded. The Court held that the Charter breach was "neither deliberatenor egregious" (para. 133). Although the impact on Grant's rights was "significant"(para. 138), the firearm was "highly reliable"evidence (para. 139). 97 In Harrison, the police conduct was characterized as "brazen" and amounted to "blatant disregard for Charter rights". Thebreaches were said to be "serious".

The impact on the accused's liberty and privacy interests and rights was judged to be "significant"although not "egregious" (para. 32). 98 The latter pronouncement suggests that the test of "egregiousness" need not be met. The effect on the accused's rights need only be"significant".

Mindful that in Harrison the cocaine was "highly reliable" and "virtually conclusive of guilt", it was nevertheless deemedinadmissible because the seriousness of the violation outweighed the reliability of the evidence. 99 It follows that in evaluating the seriousness of the Charter-infringing state conduct, a "significant" impact on an accused's libertyand privacy interests, even if the breach itself does not qualify as "egregious", will suffice. 100 In the context of unreasonable search and seizure, the focus is on the degree to which search or seizure intruded upon privacy,bodily integrity and human dignity.

A spectrum of interest may be engaged from unlawful forcible taking to "relatively innocuousprocedures such as fingerprinting": Grant at para. 109. 101 In the instant case, was the alleged intrusion upon privacy "significant"? It has long been acknowledged that there is a lesserexpectation of privacy in motor vehicles than, by way of illustration, the right of a pedestrian to be free of intrusive inquiries by thepolice.

That said, while driving is a highly regulated activity: "... [B]eing stopped and subjected to a search by the police without justification impacts on the motorist's rightful expectation of libertyand privacy in a way that is much more than trivial." (Harrison at para. 31) [129] I have found in this case that the privacy interests of the accused were violated. In particular, that he did enjoy a privacy interestin relation to the Infiniti. It flowed from that breach that the accused was then, without justification, arrested and searched.

He wasforcibly restrained in handcuffs and placed in a secure police wagon for 15 to 20 minutes. Following that, he was released, or “un-arrested”, without charge, but his Infiniti was impounded without justification. The investigation techniques that were utilized in thiscase by Constable Funk cannot be condoned. The effect of admitting the evidence adduced in this voir dire may encourage particularinappropriate conduct by the police in the future. Constable Funk's deliberate conduct impacted the liberty of the accused and his privacyinterests.

I conclude Constable Funk’s deliberate actions were not Charter compliant and they amounted to significant and seriousbreaches. [130] The second avenue of inquiry favours exclusion of the evidence Society’s Interest in the Adjudication of the Case on its Merits [131] Under this heading, the Court must consider whether the truth-seeking function of the criminal process would be better servedby admission of the evidence, or by its exclusion. The court should also consider society’s “collective interest in ensuring that those whotransgressed the law are brought to trial and dealt with according to the law”: R. v.

Askov, (SCC), [1990] 2 S.C.R. 1199,at paras. 1219 and 1220.

[132] The evidence of the drugs, the money and the ringing cell phone at the roadside would be reliable in establishing that theaccused was likely involved in a dial-a-dope scenario. The exclusion of this evidence would defeat the case for the Crown. [133] The key consideration for an inquiry into the issue of trial fairness is the “nature of the evidence obtained and the nature of theright violated”: R. v. Mann, [2004] SCR 59, at para. 52. Where the trial fairness would be negatively impacted by the admission of theevidence, that may be a sufficient ground for exclusion: R. v.

Harrison, 2008 ONCA 85 , [2008] O.J. No. 427 (C.A.) at para.38. [134] In R. v. Truong, [2011] B.C.J. No. 2078, Romilly J. found serious breaches of s. 8 and s. 9 of the Charter in relation to the arrestof the accused and the subsequent search of the accused. Good faith was not established and the Court found the need to disassociateitself from the conduct of the police in that case: 35 This Court should not condone state deviation from the rule of law. The Court must be mindful of the need to disassociate itselffrom evidence that is the product of unlawful conduct.

The more deliberate the unlawful conduct, the greater need for the Court todisassociate itself from it. 36 In my opinion, the Charter-infringing conduct in this case supports the conclusion that Constable Weekes displayed anunreasonable ignorance and disregard of his Charter obligations to the accused. [135] I find that characterization by Romilly J. to be particularly apt to this case. I find that the evidence either observed or seized byConstable Funk in this case was illegal and unconstitutional. [136] The third avenue of inquiry favours exclusion.

Balancing the Grant Factors [137] It is my opinion that, when viewed reasonably and from a long-term perspective, the admission of the evidence would have aserious negative impact on the repute of the administration of justice and as such I conclude that the evidence presented within this voirdire in relation to the drugs, money and ringing cell phone must be excluded. DECISION [138] On the basis of the foregoing the application by the accused is allowed. The observed and seized evidence is excluded. _________________________________ The Honourable Judge G.

Rideout Provincial Court of British Columbia CORRIGENDUM – Released December 10, 2013 In the Ruling on Voir Dire dated November 20, 2013, the following changes have been made: [1] On page 1, paragraph 3, the second and third sentences should be replaced with “Constable Funk directed that the Infinitiautomobile be towed to the Vancouver Police Compound based upon three concerns. First, he was concerned that the location of theInfiniti posed a safety risk. Second, he was of the opinion that the Infiniti needed to be searched for further evidence as “offence-relatedproperty”.

Third, that he wanted to further investigate or “follow-up” how the Infiniti became disabled.” Paragraph 3 should now read asfollows: The accused was handcuffed and for a period of time was placed in a police wagon before he was released by Constable Funk withoutcharge. However, Constable Funk was keenly interested in the Infiniti automobile. Constable Funk directed that the Infiniti automobilebe towed to the Vancouver Police Compound based upon three concerns. First, he was concerned that the location of the Infiniti posed asafety risk.

Second, he was of the opinion that the Infiniti needed to be searched for further evidence as “offence-related property”. Third,that he wanted to further investigate or “follow-up” how the Infiniti became disabled. [2] On page 9, paragraph 26, the last sentence, the words “heroin, cocaine” should be replaced with “marijuana”. It should nowread as follows: The Infiniti was initially searched through the deployment of a K-9 unit at the secure compound with negative results. Constable Funkwas not satisfied with the negative result and conducted his own thorough search of the Infiniti.

Due to his knowledge of automobiles,his attention was drawn to the console unit. He felt that the console unit had been modified. Upon manipulation and prying of theconsole he managed to separate the main console and discovered a secret compartment which contained marijuana and money.