Regina v. Rezaie et al. Date:, 2014 BCPC 195

Citation: Regina v. Rezaie et al. Date: 20140408 2014 BCPC 0195 File No: 217382 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Hanh Duc NGUYEN Mokhtar REZAIE Jay Lee JUNG RULING ON VOIR DIRE OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: M. Namazi and D. Peltier Counsel for Nguyen : M. Nathanson Counsel for Rezaie : L. Myers, Q.C.

Counsel for Jung : D. Karp Place of Hearing: Vancouver , B.C. Dates of Hearing: October 1-4, December 2, 3, 4, 6, 2013, January 31, 2014 Date of Judgment: April 8, 2014 [ 1 ] This case deals, once again, with the question of when the state is justified in interfering with the liberty of its citizens. On April 10, 2012, (early afternoon) members of the Gang Crime Unit (GCU) were surveilling an intended target at an apartment parkade in the Yaletown area of Vancouver. This surveillance proved unproductive.

The members were about to leave when they turned their attention to a young man seated in a mini-van near the entrance to the parkade. This man was unrelated to their initial investigation. This attention later led to the arrest and search of the three co-accused before the court. [ 2 ] Mr. Rezaie, Mr. Nguyen and Mr.

Jung are charged with various offences under the Controlled Drugs and Substances Act . [ 3 ] A Voir Dire with respect to the constitutionality of the arrests and searches in this case was sought by the defence and not opposed by the Crown in this matter. [ 4 ] Counsel for the accused alleged the following Charter of Rights breaches: 1)

Section 9 – the unlawful detention of the accused; 2)

Section 8 – subsequent unlawful searches of the accused’s person and items they may have been carrying; 3)

Section 8 – unlawful searches of the associated vehicles; 4)

Section 10(b) – a breach of the accused’s right to counsel including impermissible questioning of the accused’s prior to their right to counsel being facilitated; 5)

Section 10(b) – a breach of the right to counsel by delaying the accused’s access to a telephone for some 17 hours while search warrants were being obtained; [ 5 ] Counsel also argued that, on the basis of R. v. Lauriente, [2010] B.C.J. No. 242 (BCCA) I should also consider an alleged unlawful arrest and questioning of a third party when determining the seriousness of the impugned police conduct in this matter. I have not found it necessary to consider this argument in order to determine this matter.

RULING [ 6 ] For the reasons that follow I have concluded that the administration of justice would be brought into disrepute if the evidence seized from the accused and the associated vehicles in the Homer Street parkade were admitted into evidence and it is hereby excluded. Grounds to Detain the Accused [ 7 ] The GCU members were driving in an undercover police van. They (Det. Cst. Powell, Det. Cst. Fiorda and Det. Cst. Hyde) were at an apartment building on Cooperage Way in Vancouver in an effort to confirm that a certain person named in a Crime Stoppers Tip resided there. Their trip was not fruitful.

That investigation was completely unrelated to the current one. [ 8 ] It is while the members were leaving this building`s underground parkade that they embarked on this investigation. It is important to set out in some detail the evidence provided by these members as to why they believed that they had a basis to detain the accused in this matter. In my opinion, and notwithstanding that our characterization of certain evidence may differ, Ms.

Namazi, the Crown, in her thorough and helpful written submissions, has fairly summarized that evidence in the following paragraphs from those submissions: Detective Powell 1. Detective Powell articulated his reasons for detention as follows (see Transcript of Proceedings, October 2, 2013, p. 48, line 37 – p. 73, line 15, and p. 85, line 4 – p. 86, line 37): 1. The driver of the Dodge Caravan (Rezaie) appeared nervous; 2. Rezaie really paid attention to the GCU members and their vehicle – “his eyes looked like they were wide open…he was paying more attention than someone would normally pay attention”;

3. It appeared that Rezaie was waiting for someone – the car was running, he was smoking a cigarette, his window was open; he was in a no stopping zone; 4. A query of the licence plate of the Dodge Caravan revealed: i. CPIC had the registered owner information. The vehicle was registered to a Vietnamese female named Trang Thi Nguyen who was in her late 30’s or early 40s. This was significant because: 1. Rezaie was a younger Middle Eastern male and clearly not the registered owner; 2. Drug traffickers typically drive vehicles not registered in their name; ii.

The first PRIME entry attached to the registered owner was from 2002 and it was a flag record or alert – a record that a police officer had determined was worthy of some attention. It stated that the registered owner is associated to Asian organized crime and to drug trafficking. There was a collection of about 15 people that also came up on the same flag record – the record grouped these people and said they were all linked to the same Asian organized crime group and drug trafficking; iii. The second PRIME entry attached to the registered owner was from 2004.

It stated that the registered owner was also the registered owner of a different van where a male was driving the car – follow-up investigation on that male indicated he may be the registered owner’s boyfriend. He was arrested while driving the vehicle in relation to a drug transaction in the downtown eastside of Vancouver; iv. The registered owner lived at 906 – East 30 th Avenue, Vancouver. This was suspicious as the vehicle was not associated to 918 Cooperage Way; 5. Within eight or nine minutes (about 1:12 PM), another minivan (Honda Odyssey) pulled up to the Dodge.

It looked like there was brief conversation; 6. The Dodge immediately followed the Honda into the underground, which required key FOB access; 7. After about twenty-five minutes (at approximately 1:43 PM), the GCU members entered the same underground in order to see whether these “guys emerge with any bags or anything like that”. The officers made the following observations: i. The Honda was parked only a few stalls away from the Dodge – both were in visitor parking stalls; ii.

After about five minutes, Rezaie and the driver of the Honda (Nguyen) emerged together from a door connecting with the apartment complex; iii. Rezaie was carrying a black reusable canvas shopping bag. The bag was square in shape, had handles which Rezaie was holding, and had white or bright green emblems in a box on the bag. The bag was weighted, appeared full, and completely square in shape – there was definitely something inside; iv. The black reusable shopping bag was significant because Det.

Powell had recently worked on three large drug investigations where he had seen drug traffickers use these bags to hand off drugs; v. Rezaie was doing something behind the back of the driver seat of the Dodge – the officer believed it had something to do with the black bag. He spent a “fair amount of time” there doing something; vi. Nguyen was carrying a shoulder bag and entered the driver seat of the Honda; 8. A query of the Honda licence plate revealed: i. The registered owner was an older Vietnamese male, born 1948 by the name of Duc Hung Nguyen – clearly, the younger Nguyen was not the registered owner; ii.

The residence of the registered owner was 435 East 50 th Avenue, Vancouver. It was suspicious that the address was not 918 Cooperage Way and yet the driver had a FOB to grant access to that latter underground; 9. The fact that both vehicles were minivans was also significant. This was based on Det. Powell’s experience as a police officer, generally, and specifically based on two other GCU files within the past year where those two targets were driving minivans as well that were registered in someone else’s name. Det.

Powell had also received information from another colleague who advised that another target who drove minivans had stated it was their transportation of choice because it was a non-descript vehicle; 10. The Honda and the Dodge left the parkade together – one following the other. They then proceeded to drive in the same direction, one following the other – they were driving in tandem. This was significant because it demonstrated, along with the other observations, that the two men were working together “on the same thing”; 11. While the vehicles were driving in tandem, Det.

Powell also noticed that Rezaie was looking in his rear-view mirror, looking behind him, as though he was aware of the officers following them; 12. The fact that Rezaie and Nguyen had exited an apartment building with the reusable shopping bag was also significant. 2. As a result of the totality of markers, Det. Powell believed that Rezaie and Nguyen were involved in a drug transaction.

Detective Hyde 3. Detective Hyde articulated his reasons for detention as follows (see Transcript of Proceedings, October 3, 2013, p. 2, line 21 – p. 20, line 9): 1. GCU members had received information in the form of a Crime Stoppers tip that there was high level drug trafficking occurring at 918 Cooperage Way; 2. When the GCU members emerged from the underground at Cooperage Way, Det. Hyde noticed that Rezaie was stopped in front of a fire hydrant with the Dodge running.

He stated that Rezaie “readily stared” at the GCU members and their vehicles as they drove past – “it was odd and somewhat suspicious that the male had looked at us so thoroughly” – “he really looked hard at us as we drove by”. From Det. Hyde’s experience as a police officer, police stare at people when they go by and it’s very rare to see somebody actually looking back at police, almost making eye contact – “it’s generally other police officers that might do that or somebody who might be up to no good”; 3. Rezaie appeared nervous and seemed to be waiting for someone; 4. In his previous police experience, Det.

Hyde had encountered drug traffickers who used non-descript vehicles, such as minivans, when they were conducting criminal activities to “hide in plain sight”; 5. Approximately 10 minutes later, another minivan pulled up and stopped momentarily, and then proceeded to drive into the underground of 918 Cooperage Way with the Dodge following it – using a fob to enter; 6. Det. Powell ran the licence plate of the Dodge. He advised Det. Hyde and Det. Fiorda that the vehicle came back to a Vietnamese female who had a previous history of drug trafficking; 7.

About 35 to 40 minutes after the GCU members first observed the Dodge, they entered the underground parkade at 918 Cooperage Way. The following observations were significant: i. The Dodge and the second minivan, a Honda Odyssey, were parked near each other; ii. Within minutes, Rezaie and Nguyen exited the elevator foyer of 918 Cooperage Way together; iii. Rezaie was carrying a black canvas-style shopping bag (with green markings on it) and also had a man satchel over his shoulder. The black shopping bag was rectangular or square in shape. The bag appeared weighted – the handles were taut.

The base of the bag was flat; iv. Rezaie walked towards the Dodge and opened the rear passenger sliding door behind the driver seat. He proceeded to do something behind the driver seat while standing outside the vehicle. He was doing this for a minute to two minutes; v. Nguyen also was carrying a man satchel over his shoulder. Nguyen went to the Honda and turned on the ignition; vi. As the GCU members drove out of the underground, Det. Hyde observed Rezaie bent over and leaning into the Dodge through the driver side passenger door; vii. The Honda then exited the parkade and the Dodge followed in tandem behind; 8.

In his experience, larger scale drug transactions are completed in privacy and do not take a long period of time; 9. In his experience, drugs and contraband are commonly carried in non-descript bags such as reusable shopping bags. 4. As a result of the totality of the markers so far, Det. Hyde also believed that Rezaie and Nguyen went into the apartment building at 918 Cooperage Way to conduct a drug transaction. The contents of the black bag either had drugs or money inside which had been attained from the transaction. 5. Det.

Hyde then observed the vehicles go southbound on Cooperage Way, followed by a right turn on Nelson Street, then cross Pacific and Expo. The vehicles continued westbound up to Beatty, followed by a left turn westbound on Smithe Street. They continued driving in tandem – for example, changing four lanes together across Smithe Street into the right-hand lane, and then they entered the west lane of the 800 block Homer Street. It was readily apparent the vehicles were driving together to a destination of some sort. Detective Fiorda

6. Detective Fiorda articulated his reasons for detention as follows: 1. The GCU members attended 918 Cooperage Way in relation to what later turned out to be an unrelated Crime Stoppers tip about drug traffickers in that building; 2. When they exited the underground parkade, they observed Rezaie in the driver seat of a newer model Dodge Caravan. He was stopped in front of a fire hydrant in a no stopping zone with the vehicle turned off. It appeared that Rezaie was waiting for someone; 3. That this was a non-descript ordinary vehicle was consistent with his previous knowledge about drug traffickers; 4.

As the GCU members passed him, Rezaie stared at them – looked at them closely. It was not a glance. It was as though Rezaie was trying to see who was in the car. He also was doing the same with the other light vehicle traffic in the area; 5. Rezaie appeared nervous; 6. Det. Powell queried the licence plate on CPIC and PRIME: i. the vehicle was registered to a Vietnamese female by the name of Tran Nguyen with an address that was not in that building; ii. the registered owner had a 2004 cocaine drug trafficking file and a 2002 file associating her with drug trafficking and gang members; 7.

The downtown core of Vancouver contains many condominiums that are used as stash houses by drug traffickers; 8. About 10 minutes later (1:12 PM), a second newer model minivan stopped momentarily next to the Dodge. It appeared that Rezaie was interacting with the driver of the second van; 9. The Honda entered the secure underground parkade and the Dodge followed – using a key fob to gain access; 10. At about 1:44 PM, the GCU members entered the underground. The following additional observations were made: i. The plate number of the Honda was obtained and queried.

The registered owner was an older male born in 1948 and he did not live at 918 Cooperage Way; ii. Rezaie and Nguyen exited together from the stairwell entrance to the building. Both were carrying man purses. Rezaie was holding a black reusable canvas shopping bag with a green emblem on it – the bag appeared to be weighted and the base of the bag was flat; iii. Rezaie went to the Dodge and opened the driver side sliding passenger door. He proceeded to “fidget” with something in that area; iv. Nguyen walked directly to the Honda, entered the driver seat, and turned on the ignition; 11.

As the GCU members began to exit the parkade, Det. Fiorda saw Rezaie with the black bag inside the Dodge; 12. At about 1:48 PM, Det. Fiorda drove out of the underground and waited for the Dodge and Honda to exit as well – which they did, with the Dodge following closely behind the Honda. 13. The minivans then proceeded to drive together in tandem. This demonstrated to Det. Fiorda that Rezaie and Nguyen were on their way to another location together to deliver the black bag – one was escorting the other. 31. Det.

Fiorda believed everything he had observed and been told was consistent with mid to high-level drug trafficking. The reusable shopping bag and the in tandem driving were significant.

He believed he had grounds to detain the individuals associated to the vehicles as they were about to engage in a drug transaction. [ 9 ] The above fairly encapsulates what the officers testified to as being their grounds for making a decision to detain any persons associated to these two vehicles. [ 10 ] When the two vans exited the parkade and appeared to turn the same way and drive in the same direction the team commenced following them.

They sent out a radio dispatch seeking marked police vehicles to stop the two vans. [ 11 ] It is not precisely clear whether these officers knew what their intentions were in stopping these two vehicles and then detaining the individuals in them. When asked in chief what he wanted the marked units to do, Officer Powell answered: ..basically hold the occupants – get control of the occupants until we can come over and assist with our investigation …to stop these guys so we could come deal with them. (Day 2, p.71, ll.32-36)

[ 12 ] Officer Powell said this in cross-examination (on Day 3, p.87-88): Q Okay. But you agree with me that when you say you were going to detain, when you use that word, when you made the call out to get lights and sirens there, the idea that detention was to acquire more grounds, you didn't think you had enough grounds to arrest clearly at that point, right? A Not right then, no.

I felt we -- we were pretty close but not quite, no. [ 13 ] Officer Hyde also agreed that he did not believe there to be sufficient grounds to arrest these men when the call went out for a marked police car to effect a “traffic stop” and pull the vehicles over in order to “continue the investigation”. Officer Hyde said this (Day 4, p.51): Q There was nothing to close to grounds to arrest at that point? A I wouldn't necessarily agree nothing close to grounds, but we hadn't reached -- at least myself, I had not reached grounds within my -- my own personal beliefs that I had enough grounds for arrest, Your Honour.

Q Okay. And that's what he wanted to do was to get these vehicles stopped so that the three of you could come over and continue investigating and make some observations as to conversations and see if you could get close to being able to arrest, correct? A Yes. We wanted to continue the investigation, Your Honour. [ 14 ] Officer Fiorda also agreed that in his mind when the call went out for uniformed members to stop these two men there were no sufficient grounds to justify an arrest.

In cross-examination he said (Day 4, p.8): Q So you used the term "traffic stop" in your evidence, but what you -- what you're really trying to say is simply, just stop these guys? A Just stop these guys, yeah. Q Okay, and you -- you wanted to stop them because at that point are you saying, in answer to -- I'm summarizing your response to Mr. Nathanson, are you saying you didn't believe you had reasonable and probable grounds to arrest them? A That's right.

It was a detention. [ 15 ] It was clear that there was no subjective belief on the part of these officers to arrest these men when the vehicles exited the Cooperage Way parkade. Was there a proper basis, from a subjective and objective standpoint, for an investigative detention? Analysis of Grounds to Detain Investigative Detentions [ 16 ] Madame Justice Smith, writing for a unanimous court in R. v. Dhillon, [2012] B.C.J. No 1188 (B.C.C.

A) succinctly summarized the law relating to investigative detentions: 31 If a detention is found to have occurred, it is necessary to determine whether that detention was arbitrary contrary to s. 9 of the Charter . A detention is not arbitrary if it is authorized by law, either statutory or common law. In Mann, the Court posed the following questions: (

i) whether at common law there existed a police power to detain individuals for investigative purposes; and (ii) whether a concomitant common law power of search incidental to an investigative detention existed.

The Court traced the existence of both powers back to Waterfield, where the Court recognized that duties imposed on police officers by statute or at common law may engage associated police powers such as the power to arrest, detain and/or search ( Mann at paras. 24-26). 32 In answering the first question, the Court in Mann held that a lawful detention at common law is one that is based on reasonable grounds.

Reasonable grounds to detain for investigative purposes exist if the detention is "reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence": Mann at para. 34. In Mann, the Court emphasised that "[t]he power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest." Subsequently, in R. v.

Kang-Brown , 2008 SCC 18 , [2008] 1 S.C.R. 456 , the Court described the reasonable suspicion standard for an investigative detention (at para. 75): "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S.

Perrault, "Suspicious Searches: What's so Reasonable About Them?" (1999), 24 C.R. (5th) 123 : ... the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment. What distinguishes "reasonable suspicion" from the higher standard of "reasonable and probable grounds" is merely the degree of probability demonstrating that a person is engaged in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search.

33 Objectively reasonable suspicion includes both a subjective and an objective element. The importance of establishing both elementswas underscored by Mr. Justice Frankel, for the majority, in R. v. Reddy, 2010 BCCA 11: [67] As is the case with the power of arrest, an officer invoking the power of investigative detention must subjectively believethat the requisite standard has been met, and the officer's belief must be objectively reasonable: Mann at para. 27; R.v.

Greaves, 2004 BCCA 484, 189 C.C.C. (3d) 305 at para. 33. 34 In addition to the requirement of reasonable grounds to suspect that an individual is involved in criminal activity, Mann requiresthat, to be lawful, an investigative detention must be reasonably necessary in order to justify the otherwise unreasonable interference withan individual's liberty: [34] ...The evolution of the Waterfield test ... calls for investigative detentions to be premised upon reasonable grounds.The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer'ssuspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

Reasonable groundsfigures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated inthe criminal activity under investigation.

The overall reasonableness of the decision to detain, however, must further be assessed againstall of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer'sduty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong ofthe Waterfield test. [Emphasis added.] Officer Training and Experience [17] The Crown relies heavily on the experience of these officers in seeking to support the collective decision made here to orderthese men detained.

I have no difficulty in concluding that these officers have, between them, considerable experience in dealing withvarious levels of drug trafficking investigations. [18] In R. v. MacKenzie 2013 SCC 50 , 2013 S.C.J 50 (SCC) Mr. Justice Moldaver writing for a slim majority said this: 62 Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met.Police officers are trained to detect criminal activity. That is their job. They do it every day.

And because of that, "a fact or considerationwhich might have no significance to a lay person can sometimes be quite consequential in the hands of the police" (Yeh, at para. 53).Sights, sounds, movement, body language, patterns of behaviour, and the like are part of an officer's stock in trade and courts shouldconsider this when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold. 63 Thus, in assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should beconducted through the lens of a reasonable person "standing in the shoes of the police officer" (R. v.

Tran, 2007 BCCA 491, 247B.C.A.C. 109, at para. 12; see also R. v. Whyte, 2011 ONCA 24, 272 O.A.C. 317, at para. 31). 64 That is not to say, however, that police training and experience must be accepted uncritically by the courts. As my colleagueKarakatsanis J. notes in Chehil, "hunches or intuition grounded in an officer's experience will [not] suffice", nor is deference necessarilyowed to a police officer's view of the circumstances because of his or her training or experience in the field (para. 47).

Reasonablesuspicion, after all, is an objective standard that must stand up to independent scrutiny. 65 In sum, while it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engagingin indiscriminate or discriminatory practices, it is equally vital that the police be allowed to carry out their duties without unduescepticism or the requirement that their every move be placed under a scanning electron microscope. [19] The use of “drug courier profiles” by experienced officers was also in issue in the companion case to MacKenzie (above) calledR. v.

Chehil, 2013 SCC 49 , [2013] S.C.J 49 (SCC). In Mackenzie and Chehil (above) drug sniffer dogs were used in thecourse of an investigative detention. In Chehil (above) Madame Justice Karakatsanis noted that the standard of “reasonable suspicion”giving grounds for an investigative detention of some kind is a robust standard subject to rigorous judicial scrutiny: 3 In my view, there is no need to revise the reasonable suspicion standard. It is a robust standard determined on the totality of thecircumstances, based on objectively discernible facts, and is subject to independent and rigorous judicial scrutiny.

As Doherty J.A. saidin R. v. Simpson (1993), (ON CA), 12 O.R. (3d) 182 (C.A.), at p. 202, the standard prevents the indiscriminate anddiscriminatory exercise of police power. [20] The Court then expands on the importance of judicial oversight in determining whether the threshold of “reasonable suspicion”has been met. For clarity it is helpful, in my mind, to set out the court’s analysis in this regard: Nature of Reasonable Suspicion 22 In Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145, the Court laid out the underlying principles of the s. 8framework, which balances privacy interests and the public interest in providing law enforcement with the means to investigate crime.First, s. 8 does not protect against all encroachments on an individual's privacy interests. Its primary goal is to protect individuals fromarbitrary state action by balancing their interest in being left alone, against the public interest in providing the state with the means to

investigate crime (pp. 159-60). This balance must be struck on objective grounds (pp. 166-67), and, where possible, should be assessedbefore the search occurs (p. 160). In most cases, "[t]he state's interest in detecting and preventing crime begins to prevail over theindividual's interest in being left alone at the point where credibly-based probability replaces suspicion" (p. 167). 23 Both the impact on privacy interests and the importance of the law enforcement objective play a role in determining the level ofjustification required for the state to intrude upon the privacy interest in question.

In Hunter, this Court also recognized that thisbalancing of interests can justify searches on a lower standard where privacy interests are reduced, or where state objectives of publicimportance are predominant (p. 168). Thus, the Court has found reasonable suspicion to be a sufficient threshold in certain investigative contexts,1 and Parliament has employed this standard when authorizing certain searches in legislation.2 24 In the case of sniff searches, the use of the reasonable suspicion standard reflects, in part, the minimal intrusion of a dog sniff.

For aphysical search of luggage incident to arrest, which will be more intrusive, the more exacting reasonable and probable grounds standardis engaged, as the arrest must be justified, see R. v. Caslake, (SCC), [1998] 1 S.C.R. 51. This mirrors the continuumestablished under s. 9 of the Charter to justify detentions, ranging from reasonable suspicion (for investigative detentions) to reasonableand probable grounds (for arrests): see R. v.

Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. 25 The reasonable suspicion threshold respects the balance struck under s. 8 by permitting law enforcement to employ legitimate butlimited investigative techniques.

This balance is maintained by subsequent judicial oversight that prevents indiscriminate anddiscriminatory breaches of privacy interests by ensuring that the police have an objective and reasonable basis for interfering with anindividual's reasonable expectation of privacy. 26 Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then besubjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances.

In Kang-Brown, Binnie J. provided the following definition of reasonable suspicion, at para. 75: The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case."Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity.

A "reasonable" suspicionmeans something more than a mere suspicion and something less than a belief based upon reasonable and probablegrounds. 27 Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must begrounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, ofcrime.

As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the moredemanding reasonable and probable grounds standard. 28 The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the policewill reasonably suspect that innocent people are involved in crime.

In spite of this reality, properly conducted sniff searches that arebased on reasonable suspicion are Charter- compliant in light of their minimally intrusive, narrowly targeted, and highly accurate nature:see Kang-Brown, at para. 60, per Binnie J., and A.M., at paras. 81-84, per Binnie J.

However, the suspicion held by the police cannot beso broad that it descends to the level of generalized suspicion, which was described by Bastarache J., at para. 151 of A.M., as suspicion"that attaches to a particular activity or location rather than to a specific person". 29 Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation ofobjectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in thetype of criminal activity under investigation.

This inquiry must be fact-based, flexible, and grounded in common sense and practical,everyday experience: see R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286, at para. 60. A police officer's grounds for reasonablesuspicion cannot be assessed in isolation: see Monney, at para. 50. 30 A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a "generalized" suspicionbecause it "would include such a number of presumably innocent persons as to approach a subjectively administered, random basis" for asearch:United States v.

Gooding, 695 F.2d 78 (4th Circ. 1982), at p. 83. The American jurisprudence supports the need for a sufficientlyparticularized constellation of factors. See Reid v. Georgia, 448 U.S. 438 (1980), and Terry v. Ohio, 392 U.S. 1 (1968).

Indeed, thereasonable suspicion standard is designed to avoid indiscriminate and discriminatory searches. 31 While some factors, such as travelling under a false name, or flight from the police, may give rise to reasonable suspicion on theirown (Kang-Brown, at para. 87, per Binnie J.), other elements of a constellation will not support reasonable suspicion, except incombination with other factors. Generally, characteristics that apply broadly to innocent people are insufficient, as they are markers onlyof generalized suspicion.

The same is true of factors that may "go both ways", such as an individual's making or failing to make eyecontact. On their own, such factors cannot support reasonable suspicion; however, this does not preclude reasonable suspicion arisingwhen the same factor is simply one part of a constellation of factors. 32 Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors.

Much asthe seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to areasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standardaddresses the possibility of uncovering criminality, and not a probability of doing so. 33 Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors.

The totality of thecircumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regardingreasonable suspicion. As Doherty J.A. found in R. v. Golub (1997), (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 751, "[t]he officer must take into account all information available to him and is entitled to disregard only information which he has goodreason to believe is unreliable". This is self-evident. 34 However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to

seek out exculpatory factors or rule out possible innocent explanations. As was noted in United States v. Sokolow , 490 U.S. 1 (1989), at p. 10 (citing Illinois v. Gates , 462 U.S. 213 (1983), at p. 244, footnote 13), "the relevant inquiry is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts".

In conducting this inquiry to ascertain whether reasonable suspicion was present, the court will assess the circumstances the police were aware of at the time of the execution of the search, including those learned after the decision to deploy the sniffer dog was made if there is a delay in deployment, as there was in this case. However, it would not be permissible for the reasonable suspicion inquiry to assess circumstances learned after the execution of the search: see Kang-Brown , at para. 92 . 35 Finally, the objective facts must be indicative of the possibility of criminal behaviour.

While I agree with the appellant's submission that police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, I do not accept that the evidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specific known criminal act. 36 A nexus must exist between the criminal conduct that is suspected and the investigative technique employed: see Mann , at para. 34 .

In the context of drug detection dogs, this nexus arises by way of a constellation of facts that reasonably supports the suspicion of drug- related activity that the dog deployed is trained to detect. For instance, in R. v. Payette , 2010 BCCA 392 , 291 B.C.A.C. 289 , the Court of Appeal for British Columbia stated that in order to justify the deployment of a sniffer dog, the constellation must be "capable of providing the required objectively discern[i]ble nexus between the [accused] and illegal drug activity" (para. 22).

Binnie J. was of a similar view in Kang-Brown , where he cast reasonable suspicion broadly, linking it to the presence of contraband (para. 25). The particularized indicia of drug couriering have been documented by the police and can be established by objective evidence. 37 In sum, when single-profile narcotic dogs are deployed on the basis of reasonable suspicion, the police intrusion must be connected to factors indicating a drug-related offence.

Reasonable suspicion does not, however, require the police to point to a specific ongoing crime, nor does it entail the identification of the precise illegal substance being searched for. The reasonable suspicion held by the police need only be linked to the possession, traffic, or production of drugs or other drug-related contraband. [ 21 ] With respect to the profiling of those involved in drug trafficking activities the Court stated: 40 The application of the reasonable suspicion standard cannot be mechanical and formulaic. It must be sensitive to the particular circumstances of each case.

Characteristics identified by a police profile can be considered when evaluating reasonable suspicion; however, profile characteristics are not a substitute for objective facts that raise a reasonable suspicion of criminal activity. Profile characteristics must be approached with caution precisely because they risk undermining a careful individualized assessment of the totality of the circumstances. [ 22 ] It is clear from these passages that an assessment of the entirety of the circumstances is necessary in every case (See also R. v.

Boyd, [2013] BCJ No. 64 ). [ 23 ] The circumstances in this case involve many instances of police officers forming certain beliefs based on their training and experiences in other cases. Those instances must be subject to rigorous judicial scrutiny in order to determine their objective reasonableness. The Court in Chehil (above) noted: 45 The requirement for objective and ascertainable facts as the basis for reasonable suspicion permits an independent after-the-fact review by the court and protects against arbitrary state action.

Under the Collins framework, the onus is on the Crown to show that the objective facts rise to the level of reasonable suspicion, such that a reasonable person, standing in the shoes of the police officer, would have held a reasonable suspicion of criminal activity. 46 Rigorous judicial scrutiny is an independent review that ensures that the suspicion relied on by the police is supported by factors that are objectively ascertainable, meaning that the suspicion is based on "factual elements which can be adduced in evidence and permit an independent judicial assessment": P. Sankoff and S.

Perrault, "Suspicious Searches: What's so Reasonable About Them?" (1999), 24 C.R. (5th) 123 , at p. 125 . The constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a logical inference of criminal behaviour. If the link between the constellation and criminality cannot be established by way of a logical inference, the Crown must lead evidence to connect the circumstances to criminality.

This evidence may be empirical or statistical, or it may be based upon the investigating officer's training and experience. 47 An officer's training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion. However, this is not to say that hunches or intuition grounded in an officer's experience will suffice, or that deference is owed to a police officer's view of the circumstances based on her training or experience in the field: see Payette , at para. 25 .

A police officer's educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard. Evidence as to the specific nature and extent of such experience and training is required so that the court may make an objective assessment of the probative link between the constellation of factors relied on by the police and criminality. The more general the constellation relied on by the police, the more there will be a need for specific evidence regarding police experience and training.

To the extent that specific evidence of the investigating officer's experience and training supports the link the Crown asks the court to draw, the more compelling that link will be. [ 24 ] It is also clear from these passages that, while the assessment of grounds must be made through the lens of someone who has the same experience, training, knowledge and skills as the officers who are making the observations there still must be a meaningful process for judicial scrutiny of the sufficiency relating to the grounds for detention and arrest.

The court is required to determine whether the subjective belief of a police officer is objectively reasonable and that task cannot be properly accomplished by simply deferring to

the opinion of a knowledgeable and experienced police officer. The danger, of course, is that the objective and subjective components of the test for detention and/or arrest become conflated. [ 25 ] Referred to (with approval) in the Chehil (above) decision is the following passage from R. v. Paquette, [2010] B.C.J.

No. 1741 (BCCA) : 25 … While I appreciate the objective reasonableness requirement must be viewed in the light of the investigating officer's background and experience, deference to an officer's intuition must not render the objective element of the inquiry meaningless. [ 26 ] As I have also stated in other decisions, what must be remembered is that when the cases refer to a "reasonable person, standing in the shoes of a police officer" they are not referring to a police officer who holds an inappropriately jaded or overly jaundiced view of the vast breadth of behaviour that innocent civilians engage in on a daily basis.

It cannot mean an officer whose observations of everyday actions are made through such a distorted lens that otherwise ubiquitous and omnipresent factors and activity are precipitously suspected to be criminal. (See R. v. Lahtinen, [2011] BCJ 2076 (B.C. Prov. Ct.) ). [ 27 ] Officers should scrupulously guard against the use of anecdotal examples from other cases to then justify hastily formed generalizations about otherwise benign behaviour in the larger population.

This is an insidious and dangerous form of inductive reasoning leading to serious breaches of an individual’s liberty rights under the Charter . [ 28 ] These officers seemed to have concluded that since many criminals these days are behaving in ways that are intended to emanate the veneer of normalcy that observations of individuals consistent with this veneer lead to a proper basis for an investigative detention.

The inferences that were being drawn here in this case are truly troubling. [ 29 ] Officer Fiorda testified that, at first he thought that the mere fact the vehicle was being driven by a male who appeared Middle Eastern but was registered to a female with a Vietnamese name called into question whether the vehicle was being driven with the permission of the owner (Day 6, p.62). [ 30 ] With respect to seeing Mr. Rezaie sitting in a minivan outside of the Cooperage Way apartment in Yaletown, Officer Hyde said (Day 4, p.4): Yeah.

It was a younger male, you know, appeared relatively affluent and just the neighbourhood itself, it's very -- it's not really a family orientated neighbourhood driving minivans, you know, if they're used for -- you know, whether it be construction or sort of trades, occupations. Other than that they're generally used for families who have, you know, multiple kids and need the space. His appearance didn't seem to be that of somebody who would be driving a minivan.

You know, there was no -- there's no emblems on the van that indicated that he was a trades worker, and driving by, you know, it didn't pop out like there's kids' seats in the back or anything like that, you know, and further to that, you know, if it was -- he was also smoking in the van and it's -- in today's day and age it's -- you know, it's rare that people are going to smoke where there's children maybe. [ 31 ] Of course, later, after the police have arrested the accused, the other minivan, (driven by Mr. Nguyen), in fact, did have two children’s seats in the vehicle.

It is clear that the experiential lens that the cases talk about do not contemplate evidence like this being deferred to by the court as the kind of circumstances that support a suspicion of criminality. It should be noted that Officer Hyde had no information whatsoever as to how many families, if any, resided in that building. [ 32 ] The evidence is that Mr. Rezaie appeared to be intently looking at the police as they went by him.

Notwithstanding the fact that he was parked in a “no parking” zone and may simply have been wary of police coming by, Officer Hyde testified that in his experience as a police officer, “police stare at people when they go by and it’s very rare to see somebody actually looking back at police, almost making eye contact – “it’s generally other police officers that might do that or somebody who might be up to no good”.

This does not appear to be, on its face, a situation where this officer is simply adding this factor into his constellation of factors. [ 33 ] In R. v Chehil (above) at paragraph 35 the court says: Generally, characteristics that apply broadly to innocent people are insufficient, as they are markers only of generalized suspicion. The same is true of factors that may "go both ways", such as an individual's making or failing to make eye contact.

On their own, such factors cannot support reasonable suspicion; however, this does not preclude reasonable suspicion arising when the same factor is simply one part of a constellation of factors. [ 34 ] However, Officer Hyde stretches the bounds of any objective reasonableness when he suggests that, in general, persons who look back at officers are either police officers or are people who might be up to no good.

These kinds of conclusions certainly bring into question the reliability of other conclusions. [ 35 ] Again, the reliance on the fact that persons involved in drug trafficking are using non-descript vehicles and also have been known to use re-useable shopping bags are the very kind of characteristics that apply so broadly to innocent persons as to make them, on their own or otherwise, of little to no weight. As stated in R. v.

Chehil (above) the more general the constellation relied on by the police, the more there will be a need for specific evidence regarding police experience and training to credibly support the link the Crown asks the court to draw. [ 36 ] Officer Fiorda testified (Day 5, p.5):

Well, for one, you know, more sophisticated drug traffickers often use ordinary non-descript vehicles to facilitate the distribution of money and drugs. These vehicles could consist of rental vehicles, you know, not higher end vehicles, more like vans, just your plain basic vehicle. A vehicle that you wouldn't typically -- wouldn't typically bring a lot of attention to yourself, I guess you could say.

And a lot of times sophisticated drug traffickers or people involved in organized crime will use vehicles that are not registered in their name, that's just another attempt I guess to avoid police detection and usually the vehicles are registered in the names of people who do not have a criminal record . And there's that insulation or degree of separation between the organized criminal and the registered owner so -- (emphasis added) [ 37 ] Of course Mr. Rezaie was operating a mini-van that apparently was not registered in his own name.

However, the registered owner was, according to PRIME (a police information database) somehow linked to Asian organized crime. That record was 10 years old. Was this circumstance consistent with the officer’s evidence that drug traffickers attempt to deflect attention from themselves by operating vehicles not linked to criminal activity? Probably not. The other obvious point to look at is the fact that the vague notation was 10 years old and involved someone other than the operator.

The probative value of this information was extremely limited. [ 38 ] With respect to the use of shopping bags as a means to transport narcotics, Officer Fiorda said this (Day 5, p.5): Mm hmm, yeah. I mean currency and drugs are very commonly transported in -- what I've noticed in my time in the gang squad is, you know, shopping bags, boutique bags, boxes, shoeboxes, grocery bags, gym bags, things that -- these things help them conceal product when they're going from one destination to the next. [ 39 ] The gist of this evidence is that drug traffickers commonly carry drugs in containers of various kinds.

Of course, all that can be concluded from this is that an observation of a person carrying a receptacle of some sort would not be inconsistent with criminal activity. It is, simple common-sense would dictate, a completely neutral factor.

In light of the evidence that there are multiplicities of universally employed receptacles that are also used by drug traffickers, it would be unhelpful to view the presence of one as somehow additive to any grounds supporting a reasonable suspicion. [ 40 ] With respect to the use of condominiums Officer Fiorda testified (Day 5, p.6): the common thing that I've seen in my experience in the last several years is condominiums.

One common theme that keeps coming up is they love the -- by saying they, I mean organized criminals love the security that newer condominiums have to offer because you need key or fob access to enter the underground. It offers them a security that I guess they feel insulated from apprehension or detection from police. With the two investigations that I mentioned, Typhoon and Texas, that was a common theme.

The packaging that I just mentioned and the use of the vehicles, right, and also the use of condominiums, parkades, underground parking lots, and the stash suites were in -- in Project Texas, the stash suite was in a condo and I'm very well aware of numerous locations in the Vancouver downtown district that are inhabited by drug traffickers. [ 41 ] The same comments relating to the use of receptacles is appropriate here. The omnipresence of apartments and condominiums in the city of Vancouver is hard to ignore. Again, it would be illogical to characterize this observation as anything but a neutral factor.

It is akin to an observation that drug traffickers tend to use umbrellas when it rains. [ 42 ] When the two vans exited the parkade together Officer Fiorda reached a conclusion (Day 5, p.18): Well, given that they were driving this route, in tandem, I felt like one was escorting the other one. I felt that there was either drugs or money inside this bag. Everything was so far that play up until this point was consistent with what I've seen in the past, and that's when I made a decision that a detention of both vans was warranted.

A drug investigation to further determine what's going on. [ 43 ] How Officer Fiorda could reasonably reach a conclusion that “either drugs or money” were in the bag is not easily understood, even when paying due respect to the considerable experience that he possesses. [ 44 ] When considering the evidence of the officers and examining the conclusions that were drawn at the time I have great difficulty accepting that they themselves held the subjective beliefs that were relayed to this court.

Their conclusions with respect to the import of many of their observations were at best presumptuous and at worst disingenuous. I prefer to conclude that they were presumptuous. It is not necessary, however, for the purposes of this analysis to make a determination on whether, on a subjective basis, the officers, in fact, held the belief that there was a reasonable suspicion justifying an investigative detention. [ 45 ] With respect to whether those beliefs were reasonable on an objective basis I am obliged, of course, to carefully consider all of the circumstances in this case.

It would be an error to examine, in a piecemeal fashion the evidence and fail to consider all of the evidence that was tendered. Of course, it would not be feasible to specifically refer to all of the relevant evidence proffered in this case.

However, I did have the benefit of transcripts and I have carefully reviewed them with a view to satisfying myself that all relevant evidence was considered in deciding this matter. [ 46 ] The judicial scrutiny endorsed by the Supreme Court of Canada involves analysing the evidence of the officers and relating their training and experience to the observations made in the instant case with a view to determining whether their subjective beliefs were reasonably held from an objective viewpoint. I have great appreciation for the difficult work that police engage in on a day to day basis.

In this case there were emergent and expedient decisions that were required and I have been careful not to, as Justice Moldaver warned, treat their evidence with “undue scepticism” or require that their “every move be placed under a scanning electron microscope”. [ 47 ] That said, I have concluded that the evidence here falls far short of establishing the necessary grounds for an investigative

detention. Here, there was a constellation of factors that amounted merely to a generalized suspicion because it simply would include such a number of presumably innocent persons as to approach a subjectively administered, random basis for a detention.

The entirety of the circumstances here could only lead these experienced officers to say to themselves, “this may look like things we have seen in the past that have turned out to be criminal activity but it is also behaviour so omnipresent and ubiquitous that it would be completely improper to conclude that any kind of investigative detention is justified”. [ 48 ] The behaviour observed does not itself need to consist of criminal behaviour but police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion (See R. v.

Chehil (above)). [ 49 ] Because I have concluded that reasonable grounds for an investigative detention did not exist in this case I do not feel it necessary to deal with the correlative requirement that, to be lawful, an investigative detention must be reasonably necessary in order to justify the otherwise unreasonable interference with an individual's liberty. These officers were requesting uniformed officers to pull the accused vehicles over and hold them for attendance by Officers Powell, Hyde and Fiorda.

Although not communicated to the other officers, it did not appear to be the investigators intention to have these vehicles pulled over pursuant to any Motor Vehicle Act considerations. [ 50 ] These officers provided vague and confusing evidence as to what they were going to do once the vehicles and their occupants were detained. Essentially, they wished to “continue their investigation”. They would have been obligated, in this circumstance, to provide the detainees with their rights under the Charter .

To sum it up, this is hardly the kind evidence that could lead to a finding that their detention was reasonably necessary for some valid purpose. [ 51 ] In the case of R. v. Yeh, [2009] S.J. No. 582 (Sask C.A.) an extended panel of the Saskatchewan Court of Appeal said this: 75 It is, of course, well established that the police do not enjoy a general power to detain individuals for the purpose of ferreting out possible criminal activity.

More particularly, they may not conduct an investigative detention to determine whether an individual is, in some broad way, "up to no good." In order to justify an investigative detention, the police suspicion must be particularized, i.e. it must relate to specific criminal wrongdoing. The Supreme Court of Canada in Mackenzie (above) commented on Yeh (above) with approval. [ 52 ] In short, the accused (including Mr. Jung who was simply observed walking away from the area of the two vehicles in question) have clearly established breaches of their rights under

Section 9 of the Charter to be free from arbitrary detention. Searches of the Accused [ 53 ] The two vehicles turned into the west lane of 800 Homer Street and the team decided not to follow them down that lane. Officer Powell got out of the van at this point and walked down the lane attempting to see where the vans had went to. He walked into an underground parking lot and observed Constables Tanino and her partner Cst. Schroeder who had three males in custody. Cst. Tanino had Mr. Nguyen and Cst. Schroeder had Mr. Jung who, according to Cst.

Tanino was walking away from the vans with a re-usable shopping bag in his hand. Mr. Rezaie was standing near the open side door of the Dodge minivan. Rezaie was the only one of the three who had not yet been placed in handcuffs. (Day 3, p.92) [ 54 ] Officer Powell went to Mr. Rezaie and looked into the van’s interior and noticed a Harry Rosen re-useable shopping bag behind the driver’s seat. He looked at the bag and was able to see a large stack of 20 dollar bills (1.5-2 inches thick). Believing that a drug transaction had taken place he then arrested Mr.

Rezaie for possession of a controlled substance. [ 55 ] Officer Powell noted that Mr. Jung appeared to have possession of the black shopping bag that was observed at the Cooperage Way parking lot. He believed that all three of the young men present there, Jung, Nguyen and Rezaie were all arrestable once he had observed the money in the van Mr. Rezaie had been operating. [ 56 ] Once Officer Powell had advised Officers Fiorda and Hyde, who were now present at the scene, that he had observed money, he heard Officer Fiorda go over to the other two men to arrest them as well.

From the time they first saw the Honda van enter the underground parkade at Cooperage Way to the time they made the decision that the accused were to be arrested was approximately 12- 13 minutes. [ 57 ] Searches incident to arrest discovered 3 kilograms of what turned out to be cocaine in the black shopping bag Mr. Jung was carrying to the building entrance and approximately 86 thousand dollars in the Harry Rosen bag in the Dodge van.

The police also took keys and fobs for residences they believed to be associated to the accused. [ 58 ] Any grounds that might have justified an arrest (and search incident to) in this case were obtained by virtue of an unlawful detention. [ 59 ] While mindful of the direction in Mackenzie (above) and other cases that the issue of detention and search should be kept

analytically distinct and independently justified, in my mind, in the circumstances of this case, it follows from my earlier finding thatthere were no grounds to detain the accused that the arrest and searches incident to those arrests that followed this unlawful detentionwere also unlawful. It is not necessary in light of my findings to determine the issue of whether there was a defacto arrest or detention atthe outset. There is a clear breach of the accused’s rights pursuant to

Section 8 to be secure against unreasonable search or seizure. Delay in the Access to Counsel [60] Upon further investigation the investigators came to believe that there was a residence at the Homer Street building associatedto Mr. Jung and a residence at the Cooperage Way building associated to Mr. Nguyen.

The investigators immediately anticipated thatthey would be applying for search warrants for those apartments. [61] Obviously, due to the unforeseen way that this investigation was precipitated, the officers did not have the usual planning andresources in place in order to conduct searches of any residences believed to be associated to the accused.

They still needed to apply forsearch warrants and marshal up the police resources (including the Emergency response Team (ERT)) necessary to safely searchresidences which they believed to have some association to organized criminal activity. [62] This unique set of circumstances led to a decision by investigators to hold the accused incommunicado for over 17 hours.During that time the accused were not permitted to contact anyone including legal counsel. This long delay of the right to counsel isimpugned by the defence as constituting a breach of the right to counsel under

Section 10(

b) of the Charter. [63] The arrests of the accused took place around 2:00 p.m. in the afternoon. There can be no real dispute that the police, once theyhad effected arrests and conducted the searches that they did in the Homer street parkade, needed time to investigate associatedresidences, arrange scene containment, draft search warrant applications and engage in other necessary tasks in order to obtain andexecute search warrants. Additionally, there can be no argument with the assertion that there was a significant amount of money andnarcotics discovered upon the arrest of the three accused.

This led investigators to believe, reasonably, that the accused may be linked tohigh-level organized crime. With that belief came certain reasonable, but generalized, concerns relating to officer and public safety. Theplanning and preparation that would have normally taken place prior to an arrest like this was obviously not in place. Investigatorsrequired time and resources in order to get up to speed in this emerging situation.

The question becomes, was it reasonable to prevent theaccused from having access to counsel during this period of time? [64] When explaining his decision for preventing the accused from obtaining access to counsel during this period of time, OfficerPowell testified: We had planned on executing search warrants at two different residences which we still had to do some work-up, and I didn'twant any chance that these guys might -- might call a defence lawyer or an associate and try to arrange for someone else to help -- helpthem clear out a -- clear out a residence at Jung's place, or at Cooperage Way and try to destroy evidence. (Day 2, p.92, ll.21-26) [65] This was followed later by Officer Powell stating the following in chief examination: Q All right.

So you continued to have concerns that other people might attend this suite, or that contact might be made with theseindividuals; is that right? A Yeah, yeah. My biggest fear was that Mr. Nguyen, in particular, that he was part of a group that utilized -- that likely utilized thesame defence lawyer, right, and I didn't want Mr.

Nguyen to reach out to his defence lawyer, or potentially an associate, and basicallybring attention to that suite anymore.(Day 2, p.107, ll.18-28) [66] That concern was clarified by Officer Powell the following day when he testified that: I was concerned that maybe inadvertently defence counsel might -- might be asked to call a family member and say, hey, youknow, can you call my mom, tell her I'm okay, I'm in jail or -- so I didn't want any inadvertent disclosure potentially either.

Any sort ofphone calls where a phone call could be made by one of the suspects in custody, to any person associated to the suite or any other personthat was aware of those two suites or where they resided or what they had access to. (Day 3, p.4, ll.43-47, p.5, ll.1-6) [67] It was clear from the evidence that a decision was made to disallow any phone calls for the accused and that that decision was tobe re-evaluated as the investigation progressed.

However, it was equally clear that investigators believed that phone calls were not likelyto be allowed until warrants were executed at the respective residences (See Day 2, p.107, ll.43-47, p.108, ll.1-8). [68] Officer Powell undertook to attend the Cooperage Way building and investigate which suite was possibly associated to Mr.Nguyen. Officer Fiorda arranged to secure suite 2002 at the Homer Street address (associated to Mr. Jung).

Officer Fiorda was alsotasked with preparing the search warrant applications. [69] Officer Fiorda also directed officers to arrest anyone coming from the suite in the Homer Street building. He fully expected thatthey would then be searched incident to arrest for, among other things, evidence. (Day 6, p.23). The officer appeared to be completelyunaware that this type of precipitous arrest has long been impugned as being inconsistent with the Charter, most recently in R. v. Orr,2010 BCCA 513 , [2010] B.C.J.

No. 2576 (BCCA) [70] At about 3:00 p.m. in the afternoon officers did, in fact, arrest a man who appeared to be exiting from the suite in question at theHomer Street apartment building. The ERT team cleared that suite subsequent to that arrest. The suite at the Cooperage Way building

was contained (police officers were watching the suite for people coming and going) by 4:10 p.m. [71] Officer Fiorda testified that even if they had been able to also clear the suite on Cooperage way of any persons he still wouldhave delayed the access to counsel until after the sought after search warrants had been executed. (Day 6, p.19). [72] He said this (Day 6, p.20): Just because ERT cleared it doesn't mean we're executing a warrant.

We still had officers who were guarding a site thatpotentially had evidence inside the suite, and there -- that's also based on the concern that communication -- any communication that weallow suspects to have could be extended to other associates. We had two fobs that were outstanding at 918 Cooperage Way. Those two people, whoever they may be, could easily come backto 918 Cooperage and interfere with an ongoing investigation, intimidate, ambush police, pose any threat to, you know, public anddestroy evidence.

So just because ERT cleared it, it doesn't mean that now we want to let our guard down and -- and allow phone calls. [73] Officer Fiorda was tasked with being the affiant of the search warrants that were being sought. He, no doubt, was required tospeak with numerous police officers as well as review their notes and reports (once they had been prepared). It was not until the earlymorning hours of the following day (April 11, 2012) that the task of writing the information to obtain the search warrants had beencompleted. The process of faxing the materials to the Justice Centre was problematic. About 2:50 a.m.

Officer Fiorda received back theendorsed search warrants. [74] That morning (April 11, 2012) Search warrants were executed at around 5:17 am at the Cooperage Way residence and at5:34 am at the Homer Street residence. [75] Cst. Gormley testified that the Emergency Response Team did not have the resources to clear the suite at Cooperage Wayuntil 6:50 AM.

A robot was used as he stated this method of clearing was safer in high risk situations. [76] The law is clear that it will be an exceptional circumstance where a delay in providing access to an accused will be justified.There will be cases where the police are entitled to delay access to counsel until they have an emergent situation under control. (See R. v.Radjenovic, [2011] BCSC 1839; R. v. Patterson, [2006] BCCA 24; R. v.

Budd, [2009] BCJ No. 2598 (BCCA)). [77] However, after a careful review of the applicable case law and the facts of this specific case I find that any delay inproviding access after the time that the suites were contained by the police and the scenes were “under control” was unjustified andamounted to a breach of the accused’s rights under

Section 10(

b) of the Charter. [78] Officer Fiorda relayed vague and ill-defined concerns that until the search warrants were executed there was a realisticconcern that armed gang members would arrive and overrun the officers assigned to containment. The evidence does not support thisconcern. This case is not the same as cases where relatively short delays have been found justifiable (i.e. R. v. Strachan, [1988] S.C.R.980 (SCC) where the police needed to find restricted weapons or R. v.

Schultz (1991), (BC CA), 67 C.C.C. (3d) 360(BCCA) where there was a need in a kidnapping case to protect certain victims from suspects still at large). [79] The evidence relating to the reasons for delaying access (i.e. destruction of evidence, officer and public safety concerns)were vague and generalized.

Specific and particular information relating to compelling safety concerns vis a vis these accused was not atall definitive. [80] In this case there was a generalized worry by police officers that the lawyers called by these accused would either purposelyor inadvertently relay messages to others prejudicing the integrity of the impending execution of search warrants. This generalizedconcern, however remote, no doubt exists in many cases. However, it cannot, in my mind, be used in this case to justify the 13 hour or sodelay in providing access to counsel from the time the suites were contained.

This amounts to a serious breach of the accused’s rightsunder

Section 10(

b) of the Charter. [81] With respect to any questioning of the accused on arrest and before access had been granted I find that it was minimal andlargely directed to issues relating to officer and public safety. I do not find that this brief questioning attempting to determine whatpersons, if any, were inside the now targeted residences amounted to a breach of the right to counsel and if it did, it was very minor. Section 24(2) [82] The exclusion or admission of evidence following breaches of the Charter is now controlled by the analysis mandated byparagraph 71 of R. v. Grant, 2009 SCC 32 , [2009] S.C.J.

No. 32. 71 ... When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admittingthe 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 theadjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines ofinquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice intodisrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant tothe s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

[83] With respect to the first factor -- seriousness of the breach -- the greater the level of state misconduct, the greater will be theneed of the courts to disassociate themselves from that conduct. Wilful or reckless disregard for Charter rights will, therefore, tend tosupport exclusion. [84] The officers in this case should have known that their observations were woefully insufficient to warrant a detention of theaccused in this case.

It is clear from all of the evidence in this matter that the detention of the accused was for the purpose of determiningwhether they were, in some broad way, “up to no good”. [85] These kinds of interferences with liberty that are based on mere suspicions or intuitive hunches are very serious and are thekinds that courts need to strongly dissociate themselves from. [86] As the Supreme Court of Canada observed in R. v. Kokesch (SCC), [1990] S.C.J.

No. 117 at par. 46: Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone,not charge ahead and obtain evidence illegally and unconstitutionally. Where they take this latter course, the Charter violation is plainlymore serious than it would be otherwise, not less.

Any other conclusion leads to an indirect but substantial erosion of the Hunterstandards: the Crown would happily concede s. 8 violations if they could routinely achieve admission under s. 24(2) with the claim thatthe police did not obtain a warrant because they did not have reasonable and probable grounds. The irony of this result is self-evident.

Itshould not be forgotten that ex post facto justification of searches by their results is precisely what the Hunter standards were designed toprevent: see Hunter, supra, per Dickson J. (as he then was), at p. 160; and Greffe, supra, per Lamer J., at pp. 790 and 798 [87] With respect to the second factor, one of the interests protected here is, as Kokesch (above) makes clear, the right to be leftalone. It is clear that the evidence (narcotics, money and key fobs) would never have been obtained in this case if the officers hadproceeded in a more prudent and constitutionally compliant manner.

While the majority in Grant (above) have determined thatdiscoverability should no longer be determinative of admissibility (par. 122) they were clear that the discoverability doctrine is useful inassessing the actual impact of the breach on the Charter protected interests of the accused. [88] As Madame Justice Smith noted in Dhillon (above, at par. 77): The effect of the state's non-compliance on Mr. Dhillon's Charter-protected interests was also, in my view, significant.

Even a search of amotor vehicle, where there is a reduced expectation of privacy, cannot be justified where there are no reasonable grounds or validconsent for the use of that police power. As was noted in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, one of three companiondecisions to Grant: [31] ...being stopped and subjected to a search by the police without justification impacts on the motorist's rightfulexpectation 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 detention and search "must be weighed against the absence of any reasonable basis for justification" (para.56). [Emphasis in original.] [89] It should be noted that the Court in Dhillon (above) found fit to exclude from evidence an automatic weapon being carried inthe trunk of a car. [90] Another interest, of course, was the right to access counsel. The importance of this right has been well documented in case aftercase.

As our Court of Appeal noted in Budd (above) at para. 32: There can be no doubt, however, that depriving an arrested person who has exercised his right to contact counsel of that right, wherethere are no exigent circumstances, is a serious violation of s. 10(

b) of the Charter. [91] With respect to the third factor, the majority in Grant said the following when discussing whether exclusion of evidence due toa Charter breach extracts too great a toll on the truth-seeking process at par. 80: 80 The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence isadmissible regardless of how it was obtained (see R. v. Wray, (SCC), [1971] S.C.R. 272) is inconsistent with theCharter's affirmation of rights.

More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into allthe circumstances, not just the reliability of the evidence. [92] Police are granted considerable power to interfere with the liberty of citizens. There can be little doubt that, in a free anddemocratic society, the citizenry have a right to expect that that power will be exercised in a Charter-compliant fashion. The long-termrepute of the justice system would surely be negatively affected if the court were to admit the evidence seized in this case.

Without thestandards for police interference being scrupulously observed there is a very real danger that prejudices and biases will determinewhether an individual will have their liberty interfered with. We must carefully guard against that eventuality. [93] What must be remembered at all times is that the courts only see cases where police conduct like this actually resulted in thediscovery of some evidence. We do not see all the other instances where such unlawful interference results in no evidence being

discovered. This is why judicial oversight is so very important. Many peoples in the world have endured bloody struggles to gain for themselves the kinds of liberty rights that we enjoy. We cannot and should not take these rights for granted. [ 94 ] The cumulative nature of these breaches makes them more serious. A breach of the right to counsel alone, depending on the circumstances, can be very serious as well (See R. v. Koczab 2014 SCC 9 where 17 kilos of cocaine was excluded following a

Section 10(

b) breach). While I have found here that the circumstances did not justify such an inordinate delay in providing access to counsel, if I am wrong in that determination, and in all the circumstances, I would have still found the remaining breaches serious enough to conclude that the administration of justice would be brought into disrepute if the evidence seized from the accused in the Homer Street parkade was admitted into evidence. RULING - EVIDENCE EXCLUDED _____________________________ The Honourable Judge D. St. Pierre Provincial Court of British Columbia