R. v. Sodyl Date:, 2013 BCPC 213

Citation: R. v. Sodyl Date: 20130619 2013 BCPC 0213 File No: 217265-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALBERT GENNADI SODYL EXCERPTS FROM PROCEEDINGS RULING ON VOIR DIRE OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: H. Pineo Counsel for the Defendant: C. Drinovz Place of Hearing: Vancouver , B.C. Date of Judgment: June 19, 2013

[ 1 ] THE COURT: This is a ruling on a voir dire. Mr. Sodyl is charged on the 29th day of January 2012, City of Vancouver, he unlawfully possessed a controlled substance, heroin, contrary to s. 4(1) of the Controlled Drugs and Substances Act . [ 2 ] Evidence was heard in this case on March 5th, 2013. The evidence was heard in a voir dire because the defence is seeking the exclusion of a small quantity of heroin. Constable Stevens had found this heroin upon Mr.

Sodyl's person after he was searched. [ 3 ] The defence alleges breaches of s. 8, 9, and 10. [ 4 ] Constable Stevens is a Vancouver Police Department member since 2002; he has experience in various units and district patrols. [ 5 ] On January 29th, he was in company with Constable Singbeil and was dispatched to the 1000 block of West 50th Avenue at about 11:30 p.m. Apparently a local resident had called the police to report that for about two hours or so a dark-coloured sedan had been parked in the neighbourhood and there was a man inside the vehicle.

The resident was not familiar with the vehicle and had called the police to come and investigate. [ 6 ] They positioned their vehicle in behind the sedan, and they broadcast the licence plate to dispatch. There is no evidence that this inquiry turned up any relevant information. For instance, the vehicle was not reported stolen or anything like that. [ 7 ] There is no evidence that the person inside the vehicle was appearing to do anything suspicious. The vehicle was not parked illegally and there was no basis to suspect any illegal or untoward activity taking place in or around the vehicle.

In other words, the vehicle did not look, from the evidence I heard, in any way out of place for this low-crime, affluent neighbourhood. [ 8 ] Constable Stevens did concede in cross-examination that had the vehicle started up and tried to drive away, that they would not have allowed that. They wanted to investigate. [ 9 ] Constable Stevens approached the passenger side while Constable Singbeil attended on the driver's side. [ 10 ] Constable Stevens began scanning the interior of the vehicle for what he said was "safety reasons".

He testified that he observed a small metal pipe about four to five millimetres in diameter and it was wrapped in white tissue, and the tissue had a dark- coloured residue on it to his eye. [ 11 ] This tube was never seized. At no time did the constable ever examine the tube or even take a photo of it so that counsel or the court, for that matter, could determine the accuracy of the description.

He conceded in cross-examination that it did not appear to be a normal crack-cocaine pipe. [ 12 ] He became concerned that the driver had possibly ingested narcotics and might be impaired in his ability to drive, so he attended on the driver's side of the vehicle to investigate. [ 13 ] He noted that the driver's speech was slow and deliberate, that he appeared lethargic and sleepy, that his pupils appeared dilated and slow to constrict, even in response to a flashlight stimuli. [ 14 ] There were no real notes made coincident with the events, although later a report to Crown counsel was prepared. [ 15 ] The constable put great weight on the fact that the pupils were unusually dilated, and this was why he came to the opinion that specifically heroin, which is an opiate, had been ingested and that opinion was due to the dark residue on the white tissue paper that he had observed. [ 16 ] It was clear that Constable Stevens was attempting to rely upon his experience, that one of effects of consuming an opiate like heroin was that the pupils become dilated. [ 17 ] There is no evidence that any prior suspicions of that kind were actually confirmed in the past.

This experience must be viewed with great caution and scepticism; it is not expert evidence.

He admittedly is not in any way trained to understand and detect the effects of opiate consumption. [ 18 ] While I agree with those cases which have concluded that the court cannot take judicial notice of the effects of various drugs, surely those symptoms that are described should either be consistent with general knowledge or established by credible expert evidence. [ 19 ] For instance, where a material factor relied upon does not easily fit into the category of indicators of impairment which have been considered in the established authorities, confirmatory evidence from a witness with the appropriate expertise is essential in order to enhance the reliability of those observations and place them in proper perspective. [ 20 ] Again, without wanting to venture into the arena of evidence that the court can properly take judicial notice of, anyone with a cursory knowledge of physiology would certainly question the assertion that opiates cause the pupils to become dilated. [ 21 ] That is no doubt why s. 254(2) of the Code exists because it allows an officer to conduct physical coordination tests in order to elevate a suspicion of impairment into reasonable grounds to make a demand for an accused to accompany an officer to the station for a full evaluation by a qualified drug-recognition expert. [ 22 ] In this case, there was no odour, no bloodshot eyes, no flushed face, no smoke observed, there was no slurred speech in relation to Mr.

Sodyl. [ 23 ] The driver, who was admitted to be Mr. Sodyl, was asked if he had consumed drugs or alcohol and he denied that. Constable

Stevens did not believe this response. [ 24 ] After telling the driver that he suspected impairment, Constable Stevens testified that he was told by the driver that he had smoked pot, which is in the colloquial verbiage, marihuana in the proper term, in the previous two hours. Again, Constable Stevens did not believe this. [ 25 ] I should note that Mr. Sodyl testified on these proceedings and denied making that comment. [ 26 ] The keys were not in the ignition, and the vehicle was not running.

It was then that Constable Stevens said he formed the belief that the driver was impaired in his ability to drive and placed him under arrest for impaired operation of a motor vehicle. [ 27 ] Mr. Sodyl was asked to get out of the car; there was no attempt or intention to provide Mr. Sodyl his rights under the Charter . That was conceded by Constable Stevens. [ 28 ] This is problematic in the sense that Constable Stevens was not even contemplating the provisions of s. 254(2)(

a) which I referred to earlier allowing tests upon a suspicion being formed. [ 29 ] He asserts that he held the grounds required under s. 254(3.1) which is the grounds necessary to demand a full drug recognition expert evaluation.

Of course, he admits that he was never intending to actually carry through with that procedure. [ 30 ] In cross-examination, Constable Stevens conceded he was not aware of the provisions found in s. 254 of the Code in relation to drug impairment that provide for the authority of an officer to conduct physical coordination tests when impairment by drugs is suspected. [ 31 ] He conceded he was not qualified to conduct field sobriety tests and had not intended to call anyone to the scene who was qualified.

There is clearly no intention to involve a drug recognition expert or to properly conduct an investigation into the suspected involvement of drugs. [ 32 ] He testified that whether or not he could prove that Mr. Sodyl was impaired was not his focus that night. The constable simply focused on what he said was "the protection of public safety". [ 33 ] The focus was evident in that there were very little notes made at the time by this officer that would support any reasonable grounds for the arrest of Mr. Sodyl.

Of course, as I have mentioned earlier, after drugs were seized a report to Crown counsel was prepared. [ 34 ] In fact, Constable Stevens testified that his intention was not to pursue a criminal investigation. His only concern was public safety, and he intended on simply removing Mr. Sodyl from the vehicle and send him on his way; however, prior to doing that, Constable Stevens had another unit attend the scene and he directed a female officer to search Mr. Sodyl and the vehicle incident to Mr. Sodyl's arrest. [ 35 ] As a result of this search, it was discovered that Mr.

Sodyl possessed six small baggies of a white powdery substance. Constable Stevens suspected this to be a narcotic, and he then arrested Mr. Sodyl for possession of a controlled substance. [ 36 ] It was then that he gave, for the first time, the Charter rights to Mr. Sodyl. Mr. Sodyl was released at the scene and proceeded to take a taxi away. [ 37 ] The seized substance was weighed later, found to be about 1.2 grams with the packaging. It was suspected to be heroin, and that is, in fact, what it eventually was analyzed to be. [ 38 ] Mr.

Sodyl testified on the voir dire and asserted that he had just stopped to use the telephone and he fell asleep.

He denied consuming any heroin and denied telling the officer he consumed marihuana prior in the evening. [ 39 ] He testified that the officers never said anything about the tube to him, and when the officer queried the tissue, he told the officer that it was for his nose. [ 40 ] With respect to submissions, some submissions were made orally on this matter and some were the subject of written submissions, and I thank counsel for those. [ 41 ] The Crown maintains that the constable possessed the proper grounds to arrest Mr.

Sodyl for impaired driving and that therefore the search was incident to that lawful arrest. [ 42 ] They concede that Mr. Sodyl's s. 10 rights were initially breached but no evidence was obtained as a result of that breach and he was properly Chartered after the arrest for the drug possession; therefore, they argue that the evidence should not be excluded under s. 24(2) of the Charter . [ 43 ] The defence argues that there was multiple breaches here and that the conduct of the police here was serious enough to warrant the exclusion of the drugs that were seized from Mr.

Sodyl. [ 44 ] The drugs sought to be introduced into evidence on the trial proper by the Crown were seized as a result of a warrantless search. [ 45 ] As the search was warrantless, prima facie , the search was unreasonable, and the Crown has the burden to prove on a balance of probabilities that the search was reasonable because (

a) it was authorized by law, (

b) the law itself is reasonable, and (

c) the manner in which the search was carried out was reasonable.

[46] The overarching principle of liberty in a free and democratic society is that people are free to be left alone by the state unlessthere is an appropriate basis on which to interfere with that freedom, and R. v. Kokesch, Supreme Court of Canada; R. v. Harrison,Supreme Court of Canada; R. v. Reddy, our Court of Appeal say as much. [47]

Section 73 of the Motor Vehicle Act says: 73

(1) A peace officer may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested tostop by a peace officer who is readily identifiable as a peace officer, must immediately come to a safe stop. [48] Subsection 2 of that

section says:

(2) When requested by a peace officer, the driver of a motor vehicle or the person in charge of a motor vehicle on a highway must statecorrectly his or her name and address and the name and address of the owner of the motor vehicle. [49] Here in this case, a "complaint" is called in about a vehicle and occupant who are doing nothing whatsoever illegal or evensuspicious.

It was suggested that the fact that the vehicle had been there for some time was somehow suspicious, but I find it is quitedifficult to accept that proposition. [50] The initial "stop" is problematic; ostensibly, the officer treated it like a traffic stop. There was no indication that it was effectedfor the purposes enumerated in the Motor Vehicle Act, for example s. 73. In fact, Constable Stevens did not even know whether thedriver's licence was ever provided or not. [51] There have been some cases that assist. There is the case of Schaeffer, 2005 SKCA 33 , [2005] S.J.

No. 144, from theSaskatchewan Court of Appeal where the police stopped a driver parking -- the driver was driving, actually, in a park at 11 p.m. for no --they stopped him for no other reason other than to discourage crime and to maintain quiet and to confirm that park users had a pass. Thatstop was random and breached s. 9 of the Charter, the court found, and the court excluded a conscriptive breath test. [52] The court there distinguished Wilson from the Supreme Court of Canada because in that case the Supreme Court of Canada heldthat the stop was not random.

The officer was looking for impaired drivers and Wilson was driving away from a hotel shortly after thebar closed. [53] R. v. Ritch, [2009] B.C.J. No. 2747, that is from our Supreme Court, the accused there and another were found by the policesleeping in a parked car on Ralph Street by Swan Lake Park in a little neighbourhood by Saanich. Constables Jantzen and Thompson hadbeen dispatched there, they received a civilian complaint about 8:30 a.m. of a suspicious parked car with two persons in it.

Thesuspiciousness was that there was two people sleeping in a vehicle. [54] The description of the vehicle and the licence plate were provided by the citizen to the police. A check on the vehicle indicatedit was registered to a woman who did not live in the neighbourhood. The vehicle, though, had not been reported as stolen or had anyother defects.

Justice Masuhara found that a generalized concern that the vehicle did not belong in the neighbourhood was not sufficientreason to interfere with the occupants. [55] I find that there is no articulable basis upon which the officers here could justifiably interfere with Mr. Sodyl's liberty and abreach under s. 9 commences right from the initial purported "traffic stop". [56] In R. v. Grant, a Supreme Court of Canada recent decision at paragraph 54 noted, while it used to be that unlawful detentionswere not necessarily arbitrary.

The court there said: The s. 9 guarantee against arbitrary detention is a manifestation of the general principle, enunciated in s. 7, that a person's liberty is not tobe curtailed except in accordance with the principles of fundamental justice. [57] They go on later in that paragraph to say that:

Section 9 serves to protect individual liberty against unlawful state interference. A lawful detention is not arbitrary within the meaningof s. 9 (Mann, at para. 20), unless the law authorizing the detention is itself arbitrary.

Conversely, a detention not authorized by law isarbitrary and violates s. 9. [58] Even if I was wrong in the finding with respect to the initial "stop", what happens next, in my opinion, are further examples ofbreaches relating sections 8, 9, and 10. [59] Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. [60] The reasonable grounds threshold for arrest for a drug-recognition expert demand is both a statutory and a constitutionalprecondition.

For grounds to be reasonable, the officer must have subjectively held an honest belief that the accused committed theoffence within three hours. That subjective belief must also be objectively reasonable, and supported by a constellation of objectivelydiscernible facts. R. v. Bernshaw stands for that proposition. [61] The Supreme Court of Canada in Storrey sets out a test for what constitutes reasonable grounds for an arrest.

The arrestingofficer must have, again, a subjective belief of reasonable grounds and these grounds must be justifiable from an objective point of view. [62] Paragraph 14 of Storrey explains why it is so important to be vigilant with respect to powers of police to interfere with theliberty of a citizen. That paragraph essentially says that

section -- the arrest section, s. 495(1): . . . [make] it clear that the police were required to have . . . probable grounds . . . Without such an important protection, even the mostdemocratic society could [fall] too easily . . . to the abuses and excesses of a police state. [And] in order to safeguard the liberty ofcitizens . . . [while] attempting to [get] a warrant for an arrest, [they have to] demonstrate to a judicial officer that they have reasonable

and probable grounds . . . In the case of an arrest made without a warrant -- The court says there, and I quote: -- it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which theybase the arrest. [63] The case law is clear that the reasonable person to be used in assessing whether the arrest is justifiable from an objective basisis a person presumed to have the knowledge, skills, and training and experience of an officer making those observations and not simplythat of a layperson, and that has long been the law, and certainly R. v.

Jir, 2010 BCCA 497 , [2010] B.C.J. No. 2171 from ourCourt of Appeal supports that proposition. [64] However, while the assessment of grounds must be made through the arresting officer's lens, to use the language of the Court ofAppeal, there still must be a meaningful process for judicial scrutiny of the sufficiency relating to the grounds for the arrest. [65] The court is required to determine whether the subjective belief of a police officer is objectively reasonable, and that taskcannot be properly accomplished by simply deferring to the opinion of a knowledgeable and experienced police officer.

The danger, ofcourse, is that the objective and subjective components that have been long-established in law become conflated. [66] Constable Stevens did not seize an important piece of evidence, an item he relied upon to advance his investigation, that metalpiping. It is impossible now for a trier to assess the reasonableness of his belief that that item was related to drug use given the evidenceof Mr. Sodyl as well. [67] There is no basis for accepting his belief that opiates cause the pupils to dilate.

That is simply a bald assertion on ConstableSteven's part not related to any experience that he was able to articulate. [68] There are precious few other indicia of drug use that would enable this officer to base a belief that an offence was occurring,and, in fact, he himself did not intend to pursue an impaired investigation any further other than searching Mr. Sodyl and his vehicle. [69] In this case, Constable Stevens relied upon much less than adequate grounds to form the belief that Mr. Sodyl was committing acriminal offence.

It is clear that he was completely unfamiliar with the Code provisions relating to persons suspected of being impairedby drugs as opposed to alcohol. [70] For the reasons I gave above, the basis for his opinion is not objectively reasonable. There was an admission by the officer thathe was not contemplating this matter going to court prior to the search of Mr. Sodyl. [71] Constable Stevens forwarded this matter for charge approval despite his candid admissions regarding the reasons for failing tocomply with the Code provisions and his concurrent obligation to provide Mr. Sodyl's rights under s. 10.

That is difficult to understand. [72] I am aware that many interdictions of citizens on the street are resolved by way of no-charge seizures either through theexercise of police discretion or through a simple recognition at the time that the interdiction was clearly not Charter compliant and thattherefore the charge approval standard was not likely met. [73] Of course, I cannot know what happened before the evidence that was provided in this case was tendered.

The evidence that isheard in a trial often bears little resemblance to the initial report to Crown counsel. [74] In any event, the arrest was based on these inadequate grounds and is therefore unlawful. [75] Any search that was ostensibly conducted as incident to that arrest is a breach of Mr. Sodyl's rights under s. 8, and the drugsdiscovered on Mr. Sodyl's person were the product of that search. [76] With respect to 24(2) of the Charter, I am relying on R. v. Reddy, 2010 BCCA 11, which summarized the approach set out inGrant.

The Grant factors were summarized there: . . . the seriousness of the Charter-infringing state conduct -- Is one of the first factors. The second factor is: (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rightscount for little); and (3) society's interest in the adjudication of the case on its merits. [77] The court there also relied on the R. v.

Harrison which I mentioned earlier, 2009 SCC 34. [78] With respect to the seriousness, the search on arrest has three principal purposes, one is protecting the police, the second one isprotecting evidence, and the third is discovering evidence. [79] It must truly be incidental to a lawful arrest. The officer must be able to explain within these purposes or reference to anothervalid purpose why the officer conducted the search.

The officer does not need reasonable and probable grounds but the officer mustsubjectively have had some reason relating to the arrest for conducting the search at the time he or she conducted the search and thisbelief must be reasonable. [80] The breaches were serious in this case and it had to have been known by Constable Stevens that he was not complying with hisobligations that he had. He had the initial intention of just releasing Mr. Sodyl to basically "get him off the road". He said he did not

expect to discover drugs on Mr. Sodyl; his intention was to release Mr. Sodyl. In that case, what purpose was the search conduced for? It is not entirely clear. [ 81 ] I recognize that an officer is not obliged simply because he believes he has grounds for an arrest in these circumstances to pursue the investigation to its conclusion, for example, a drug recognition evaluation, but I have found the belief was completely unwarranted if, in fact, it was actually subjectively held, and I have very serious doubts on that issue given the way that the matter was proceeded with. [ 82 ] With respect to the impact on Mr.

Sodyl's rights, R. v. Harrison , the Supreme Court of Canada says at paragraph 31: This said, being stopped and subjected to a search by the police without justification impacts on the motorist's rightful expectation of liberty and privacy in a way that is much more than trivial. As Iacobucci J. observed in Mann , the relatively non-intrusive nature of the detention and search "must be weighed against the absence of any reasonable basis for justification" (para. 56 (emphasis in original)).

A person in the appellant's position has every expectation of being left alone — subject, as already noted, to valid highway traffic stops. [ 83 ] With respect to society's interest in the adjudication on the merits, again I am referring to R. v. Reddy and R. v. Harrsion .

There was a small quantity of narcotics seized in this case, for the reasons stated in Reddy , which involved firearms that were excluded, and Harrison , involving some 77 kilograms of cocaine that was excluded, I too have balanced the interests in this matter in coming to the conclusion that to admit the evidence in this case would bring the administration of justice into disrepute and therefore it is excluded. (RULING CONCLUDED)