R. v. Bahamonde Date:, 2015 BCPC 180

Citation: R. v. Bahamonde Date: 20150623 2015 BCPC 0180 File No: 217450-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. EUGENIO ALFONSO BAHAMONDE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G. RIDEOUT CORRIGENDUM Counsel for the Crown: D. Hartney Counsel for the Defendant: N. Cobb Place of Hearing: Vancouver , B.C.

Dates of Hearing: September 10, 2014; February 24-25, 2015 Date of Judgment: June 23, 2015 A Corrigendum was released by the Court on July 6, 2014. The corrections have been made to the text and the Corrigendum is appended to this document.

INTRODUCTION [ 1 ] Eugenio Alphonso Bahamonde (the “applicant”) has been charged that on or about November 7, 2012, at Vancouver, he trafficked in cannabis marijuana in an amount not exceeding 3 kg, contrary to s. 5(1) of the Controlled Drugs and Substances Act (“ CDSA ”). [ 2 ] In addition, the applicant has also been charged that on the same date, at Vancouver, he unlawfully possessed cannabis marijuana in an amount not exceeding 3 kg for the purpose of trafficking contrary to s. 5(2) of the CDSA . [ 3 ] The applicant has asserted that his rights pursuant to ss. 8 , 9 and 10 of the Canadian Charter of Rights and Freedoms (the “ Charter ”) have been violated.

The applicant has submitted that if the Court were to find that the applicant’s rights were violated then the evidence observed and seized through the course of the police investigation on November 7, 2012, ought to be excluded. [ 4 ] A voir dire has been declared to determine whether or not the applicant’s Charter rights were violated. If those rights were violated then what remedy, if any, should apply? DETAILED BACKGROUND [ 5 ] On November 7, 2012, members of the Richmond RCMP were investigating a series of break and enters that had recently occurred in Richmond.

The members tasked with this investigation were part of a unit known as the Quick Response Team (“QRT”), which was devoted to the investigation of prolific and priority offenders. [ 6 ] Constable Bal (“Bal”) was part of the QRT and was on duty on November 7, 2012. His partner that day was Constable Jaggassar (“Jaggassar”).

Bal and Jaggassar, along with other members, were targeting a suspect, who was believed to be living in a residence located in the area of School Avenue and Kerr Street in Vancouver. [ 7 ] RCMP members who were assigned to this investigation established a covert surveillance of the subject’s residence in the mid- afternoon. In direct examination, Bal testified that he was in the backseat of an unmarked, four-door Buick sedan. Jaggassar was in the front driver’s seat. [ 8 ] The Buick was parked on the east side of Kerr Street.

Bal was using a set of binoculars to look out of the rear view of the backseat towards the suspect’s residence. Bal described that he was on his knees in the backseat of the Buick and he was using the rear desk lid as a support for his elbows as he watched the residence. [ 9 ] While in this position, he noticed a BMW X5 (“X5”), later identified as the applicant’s motor vehicle, parking on the other side of the street, approximately nine feet away from the Buick.

At that time, the applicant was the lone occupant in the driver’s seat of the X5. [ 10 ] When the X5 arrived Bal decided, for officer safety purposes, that he should check out anything suspicious that may be associated to the X5. The rear windows of the Buick were completely up and had a 35 percent tint. Other than making the scene outside of the Buick a little darker, Bal testified that he otherwise had a good view of the X5. [ 11 ] With respect to the relative height of the X5 and the Buick, Bal estimated that the X5 was “slightly higher” than the Buick.

Bal also testified that one would have to factor in the power adjustable seats that he assumed were in the X5, though overall, he felt he had a good view into the X5. [ 12 ] With the use of his surveillance binoculars, Bal observed the applicant on his cell phone for a short period of time. After approximately two to three minutes following the cell phone call, an unknown male came from a side alley and got into the front passenger side of the X5.

A conversation appeared to take place for several minutes, though Bal did not know what the conversation was about even with the use of his binoculars. [ 13 ] Bal then described the applicant reaching into the back of the X5 and bringing forward onto his lap a black backpack with the zippers facing towards him. He described the backpack as being on the thighs of the applicant. [ 14 ] In the following exchange in direct examination, Bal described what the applicant did with that backpack: Q And what do you observe next?

A Next I see the driver, X5 driver unzip the bag, and I see the lid -- the cover of the bag flip open, and then what I see is something that really stands out which is there's like a white brim of something. At the time I didn't know what it was, but there was this kind of like

white line that I could see, and it was quite visible against the black silhouette of the vehicle. At that point I see the X5 driver reach in, pull out a large Ziploc bag with a substance that I believed to be dry bud marihuana. That observation is made with binoculars. Actually, all the observation are made with binoculars while I'm looking inside the vehicle. And it's brought out just above the -- the door sill so it's near his chest. I'm able to clearly see that it's medium- to large-size bud marihuana consistent with my training and experience as a police officer.

And it looks like its fairly high quality bud as well. Q Do you -- does he pick up anything else besides the marihuana or at this point -- THE COURT: Alleged marihuana. (Transcript, September 10, 2014, Page 10, Lines 34-47; Page 11, Lines 1-10) [ 15 ] Bal was then asked to describe his experience with marijuana from his police experience.

Bal went on at some length describing his involvement in search warrants in relation to grow operations, kids smoking marijuana in parks, pungent odour associated with marijuana being smoked, while assigned to traffic detail motor vehicle stops where people were arrested for smoking marijuana and, prior to his police experience, he detailed working as a security officer in downtown Vancouver and going to rock concerts where marijuana was smoked. [ 16 ] Bal went on to tell the Court that in relation to his experience with marijuana, he was qualified at some point as a Drug Recognition Evaluator (“DRE), but that qualification had lapsed at the time of this trial. [ 17 ] Bal was then asked that as a result of his investigations was he able to observe the colour and texture of marijuana.

He responded as follows: A Absolutely. I've gone hands-on with marihuana numerous occasions. When you're dealing with searches and seizures from vehicles and you are doing exhibits forms, you're handling it, you're going down and weighing them, you're putting them into exhibit bags, you're lodging them into exhibits so you are handling the actual drugs themselves.

On top of all the other cases that I've been witness to where marihuana has been seized from various investigations, my wife's a member of the marihuana team for four plus years in Richmond; so I've -- through her, we've gone to different overtime files where we were doing electrical safety and other files where that's what we're dealing with is just marihuana files for the entire day dealing with bud and exhibits. (Transcript, September 10, 2014, page 13, Lines 5-20) [ 18 ] While the suspected marijuana activity was taking place in the X5, Bal told Jaggassar, “Jag, I think we got a drug deal that is taking place right here in front of us.” Jaggassar then handed his radio-mike to Bal, to relay his observations, while Bal was also manipulating his binoculars. [ 19 ] Bal testified that he relayed his observations to the entire team.

Those observations included that he saw dried bud and a scale come out of the bag and placed “onto the gear shift/armrest kind of console.” [ 20 ] When Bal was asked why he was of the opinion that he observed a scale he responded that he had recently lost some weight and had to weigh his own food so bought himself a digital scale for his kitchen counter. [ 21 ] Bal then went on to describe the applicant pulling out a large Ziploc freezer bag of suspected marijuana and that some of that marijuana was put by the applicant on the suspected scale located in the centre console area.

Bal also observed the male passenger hand something that appeared to be flat to the applicant. While he was not sure what it was, Bal suspected that it was money. [ 22 ] Bal then observed the applicant handing a Ziploc baggie with suspected marijuana to the male passenger describing this interaction as follows: The passenger has both hands on it. Basically, the bag disappears. I believe that it ends up in one of the pockets of the passenger. I don't -- I don't know where it went.

Basically, there was a little bit of a shift of the passenger in the sheet -- and the seat, and at that point I just waited for what was happening next. (Transcript, September 10, 2014, Page 17, Lines 29-35) [ 23 ] Bal then observed the applicant doing something with a small object underneath the door sill of the driver’s side of the X5 towards the centre. He was not able to observe what was taking place. [ 24 ] Bal then observed the applicant lighting what he believed to be a suspected marijuana cigarette.

It was passed back and forth between the applicant and the unknown male passenger until it was “completely gone.” Bal testified that he relayed that information to the other police officers on scene. [ 25 ] After the suspected marijuana cigarette was smoked, the unknown male passenger exited the X5 and proceeded into a multiunit complex situated close by. The unknown male passenger was pursued by Jaggassar, but he was unable to locate that individual.

[ 26 ] The X5 then began to leave the area. Bal alerted the team that the X5 was leaving. A covert pursuit was deployed at the direction of the team leader, Corporal Lee (“Lee”). Bal recalled the X5 travelled over multi-blocks until it pulled into a Safeway parking lot located in the 1700 block of East Broadway.

When Bal got to the Safeway parking lot, he testified that he observed Constable Kevin Arnold (“Arnold”) speaking with the applicant and that he waited for Arnold to, as he put it, “… finish everything they were doing.” Bal then went up and told Arnold that he had the right person. [ 27 ] Bal was then asked to describe his observations of the applicant when he was in the custody of Arnold in the following exchange: Q Can you tell about -- the court about observations of -- of Mr.

Bahamonde when you -- you first arrived and he was in handcuffs with Constable Arnold, any observations about his -- his eyes, his smell, that sort of thing? A Well, I walked directly up to Mr. Bahamonde in the company of Constable Arnold, and I said, "Yeah, this is the -- this is the same -- this is the same guy. This is the right guy." And it was the fact that I was comparing the image I had earlier, the observations of him being the driver with the marihuana to the individual before me now.

I also had a strong odour of marihuana coming from his clothes, and I also observed red cognitiva, which his reddening of the eyes consistent with the consumption of THC. Q And if you can just briefly tell the court why you would be in a position to make that observation? A TH -- well, marihuana is one of the seven drug categories in the DRE program. It -- under cannabis, THC causes involuntary reddening of the eyes, the white parts. There's a lot of other symptomology that if I was going into a more thorough examination that would be tell-tale signs of marihuana use.

Using involuntary eye tremors -- (Transcript, September 10, 2014, Page 31, Lines 22-47) [ 28 ] Bal recalled having some brief conversation with the applicant. Bal described the demeanour of the applicant as “cooperative, respectful.” [ 29 ] Shortly after the arrest of the applicant, Bal seized a cell phone which he believed to be the same cell phone that he saw the applicant using prior to the drug transaction with the unknown male. Bal later downloaded at the police detachment received text messages.

The received text messages were read in by Bal at this hearing. [ 30 ] Bal was of the opinion that his lawful authority for the search of the cell phone was based on reasonable and probable grounds believing that the applicant was involved in the possession for the purpose of trafficking in marijuana. The search of the cell phone was incidental to that arrest. [ 31 ] Bal was also involved in counting money that was seized from the backpack located in the rear of the X5.

The total amount seized from the backpack was $1,440. [ 32 ] In concluding his evidence in direct examination, Bal testified that based on the totality of his observations, he was of the opinion that there was not a “shadow of a doubt” in his mind that what he observed established reasonable and probable grounds to arrest the applicant for possession for the purpose of trafficking. [ 33 ] In cross-examination, Bal agreed that he did not note the times that he made any of his notes respecting this investigation.

However, he testified that he had a “vivid recollection” that he made notes respecting his observations of the X5 while he was en route to the Safeway parking lot in the front seat of the Buick. [ 34 ] Though his Report to Crown Counsel was apparently dated November 16, 2012, Bal was positive that he thought he had prepared his Report to Crown Counsel within 48 hours of the investigation.

After reviewing his notes and his Report to Crown Counsel, he agreed with the applicant that there was no indication as to when his Report to Crown Counsel was in fact downloaded to the PRIME system of record keeping. [ 35 ] Bal confirmed he made his observations of the activities in the X5 with work issued surveillance binoculars. He agreed that the X5 was positioned nine feet away from his point of observation.

It was with the use of these binoculars that he says that he was able to reach the opinion that the substance in the Ziploc bag was a “high quality marijuana.” [ 36 ] When pressed by the applicant, Bal agreed from his experience as a DRE that, in fact the quality of marijuana is determined by its tetrahydrocannabinol (“THC”) content. Bal went on to explain what he meant in his reference to “high-quality marijuana” in the following exchange: Q Well, that's got to be like the first day of class in the DRE course, isn't it?

The quality of marihuana is not determined by anything other than its THC percentage content by weight. A Yes, Your Honour. The comments that I had made was in reference to the size that I was seeing compared to what I normally see on the streets. And that's what I was equating the quality of the marihuana. Not -- Q The -- A -- not the THC content. Simply looking at the marihuana, I'm not able to determine the THC content. Q Yes. You purport to make all kinds of observations about the shape and egg-shape at some point in time, of the -- whatever you

say you observed in the car across the street, right? You make a lot of observations about its physical characteristics. A I do, Your Honour. (Transcript, February 24, 2015, Page 39, Lines 28-47) [ 37 ] Bal agreed that the X5 was across the street from the Buick, but essentially side-by-side as far as positioning. Bal agreed with the proposition that it would be helpful in criminal investigations if another police officer could corroborate his observations.

In the following exchange, Bal detailed his conversation with Jaggassar relating to his observations of activities taking place in the X5: Q Did you ever ask Constable Jaggassar what his vantage point was or if he was able to see any of the things you say you saw? A I believe I asked Jag if -- or Constable Jaggassar if he had saw any of the transactions that I was talking about. Q Why do you believe that? Do you have a note of asking him? A I don't -- Q His response? A I don't.

I remember a conversation taking place and asking, "Did you observe anything in the vehicle?" Q You distinctly recall that unaided by any note? A I remember asking him that, yes, Your Honour. (Transcript, February 24, 2015, Page 41, Lines 40-47; Page 42, Lines 1-7) [ 38 ] Bal also agreed with the applicant in cross examination that in his direct examination he had testified that he smelled a strong odour of marijuana on the applicant’s clothing and in his facial area. He also noted that the applicant had red “cognitiva” or reddening of the eyes.

Bal agreed that the other police officers involved with him on November 7, 2012, were experienced officers and that he, “would have hoped that multiple police officers would have observed that, they would have that in their notes, along with reporting it in the Report to Crown Counsel.” [ 39 ] Bal also agreed with the applicant that he would have expected that there would be a latent smell of just consumed marijuana in the X5 at the Safeway parking lot.

Though it was not put to him by the applicant that none of the other officers testified in this trial noted the odour of marijuana in the X5, Bal volunteered that he was unable to account for the lack of observations of his fellow officers on scene at the Safeway parking lot. [ 40 ] Bal agreed that there were senior officers on the scene at the Safeway parking lot, but none of those senior officers actually worked in a specialized drug section. No explanation was provided by Bal as to the basis of that knowledge.

In any event, he did agree with the applicant that the senior officers would have encountered day by day experience in relation to marijuana. [ 41 ] Bal testified that he recalled running the X5 license plate on a computer just prior to the applicant being released. Bal recalled that he did not have a computer in his police vehicle, so he used another police officer’s computer at the scene. [ 42 ] Bal could not recall whose computer he used. He went on to recall that the device he used was likely a portable device.

Bal then went on to give a “likely explanation” why it must have been a portable device, rather than the standard laptop computer, and of that, “maybe” one of the other officers on scene would have had the portable device plugged into the cigarette lighter of one of the police vehicles. [ 43 ] The applicant put it to Bal that he had just testified that he had used a computer at the Safeway to run the license plate of the X5 in the following exchange: Q Sir, I thought you testified a few moments ago to recalling running the car at the Safeway parking lot.

His Honour said ex post facto , and that you said you did it on somebody else's computer. Do you remember giving that evidence just a few short minutes ago, sir? A I do, Your Honour. Q Whose? A I don't recall the computer -- (Transcript, February 24, 2015, Page 52, Lines 20-28) [ 44 ] Bal served a 24 hour prohibition on the applicant. Bal agreed with the applicant that a 24 hour prohibition was based upon the purported smoking of the marijuana by the applicant, along with the observations of the red eyes, and odour of marijuana on his clothing and facial area.

In the following exchange, Bal explained what happened in this case with respect to the 24-hour prohibition that was

served on the applicant: Q You must be familiar with 24-hour prohibitions. A A 215, 24-hour suspension, yes, Your Honour, I am. Q Have you ever had another instance where you told a person to tear one up after you'd served it on him, like you did -- tell us last day you did with Mr. Bahamonde? A The 215 itself, there was a fatal error made on the front of the date of the actual 215. At that point we were unable to -- I think there was an attempt made that we tried to amend it and crossed it out and as soon as you make a change to the 215, then we had to withdraw it. Q Sir, I'm sorry. It must be me.

I just asked you if you've ever had another instance of tearing up a 215, not to tell us about what you did on this particular -- I said have you ever had another case like this one, where you told us last day you called the person you had issued it to and told them to tear it up? A Not a -- not a 215, no. Q That's pretty significant and distinguishing this case from any other you've done, right? A Yes, Your Honour. (Transcript, February 24, 2015, Page 54, Lines 39-47; Page 55, Lines 1-14) [ 45 ] Jaggassar observed the X5 pulled to the side and parked.

He described the position of the X5 to be off set against his vehicle. Jaggassar did not consider this to be suspicious, until Bal told him that a male got into the passenger side of the X5 and that Bal was “kind of suspicious.” After several minutes, Bal advised Jaggassar that the driver of the X5 had taken out a black backpack and that he put what appeared to him to be a “green leafy substance, plant like substance” on a scale. [ 46 ] At this point, Jaggassar was not sure what they should do as this was not the primary purpose of their investigation.

He handed his radio to Bal so he could transmit his observations to the team so a determination could be made by Lee, respecting what they should do about the activities involving the applicant. [ 47 ] When Bal believed that the applicant was rolling and then smoking a marijuana cigarette, Jaggassar and the other team members were advised by Lee, that once the X5 was underway, that they were to follow the X5 and to stop it when it was safe to do so. [ 48 ] Jaggassar was advised by Bal that the passenger had exited the X5 and gone into the adjacent townhouse complex.

Jaggassar left his vehicle and pursued this individual without success. He then returned to his vehicle and with Bal in the backseat, they picked up Constable Shin (“Shin”) and travelled to the Safeway where he observed the applicant to be in custody in handcuffs. [ 49 ] Jaggassar relied entirely on the observations made by Bal to justify his subsequent investigation actions. Those actions included a search of the X5, which resulted in the seizure of marijuana, scales and the $1440. [ 50 ] In cross-examination, Jaggassar confirmed the importance of taking thorough notes as a memory aid.

Jaggassar confirmed that he used his notes prepared at the scene to complete his Report to Crown Counsel, approximately eight days later.

In relation to observations made by Bal, and relied upon by Jaggassar to prepare his Report to Crown Counsel, he noted in his notebook, “Drug deal witnessed by Constable Bal vehicle (veh) older silver BMW X5.” [ 51 ] Jaggassar agreed with the applicant that there was no note in his notebook or in his Report to Crown Counsel confirming that while he could not see what was going on inside the X he, nevertheless, could see the side of the driver of the X5. [ 52 ] Jaggassar agreed with the suggestion of the applicant of the significance of the smell of marijuana.

Jaggassar confirmed that he had no note in his notebook or in his Report to Crown Counsel of any smell of marijuana relating to this investigation. [ 53 ] Lee was partnered with Constable Christopherson (“Christopherson”).

Lee confirmed in direct examination that he relied on information received from Bal, that he had observed a drug transaction taking place in the X5, and that the applicant appeared to have been smoking marijuana. [ 54 ] Lee testified that he made the decision to have the applicant stopped as he posed a, “threat to public safety if he was allowed to just drive away in the vehicle.” In addition, Lee testified that he also made the decision to have the applicant stopped in relation to the alleged drug transaction. [ 55 ] Lee and Christopherson followed the X5 for up to 10 minutes in which the X5 travelled along Kerr Street, Rupert Street, Kingsway and East Broadway until it pulled into the Safeway parking lot located in the 1700 block of East Broadway.

Lee recalled that other members of the QRT also arrived at the Safeway parking lot. The applicant exited from the X5 and Lee observed Arnold and Christopherson shouting verbal commands for the applicant to lay prone on the ground. [ 56 ] Lee recalled that some of the team members had their side arms drawn. Lee had his side arm drawn at the low ready position. He described the low ready position entailing the side arm being removed from the holster, but pointed at the ground. [ 57 ] In cross-examination, Lee confirmed the importance of making detailed notes of any investigation.

Lee commenced his notes at approximately 3:35 PM. Lee remained at the Safeway parking lot for approximately 90 minutes before clearing the scene. He completed

the Report to Crown Counsel six days later. [ 58 ] After refreshing his memory from his notes, Lee agreed that the applicant appeared “befuddled” when police officers were making the demand that he prone out on the ground. Lee could not recall if the other team members at the Safeway were pointing their sidearm at the applicant. He was focused on his side arm with the intention that he keep it under control, as he did not want to do anything “accidental.” [ 59 ] Lee agreed that he made no note that the applicant was apparently observed smoking marijuana in the X5.

Lee further agreed that when he prepared his Report to Crown Counsel that he made the following entry, “Corporal Lee also strongly took into consideration the fact that the driver was now operating a motor vehicle while intoxicated by a drug, and that by allowing him to drive away would put the public at risk.” [ 60 ] Lee agreed with the applicant that he was one of the officers, along with Bal, who prepared portions of the Notice of 24-hour prohibition, Report to ICBC, and of the Notice of Impoundment in relation to the X5.

Lee was unaware that both the Notice of Prohibition and the Notice of Impoundment were later withdrawn by Bal. He confirmed after looking at a copy of the documents that he was in error when he marked down November 11 th as the date of service of the motor vehicle documents. [ 61 ] Lee further agreed that no sobriety tests were ever performed by the applicant.

Though he was on the scene for 90 minutes there was no entry in either his notebook or in his Report to Crown Counsel about any odour of vegetative marijuana, though he was familiar with that smell. [ 62 ] Though the supervising officer on scene, Lee confirmed that he made no direction as to who should perform the arrest of the applicant. He recalled Arnold and Christopherson being the two officers who first approached the applicant.

After being referred by the applicant to his Report to Crown Counsel, Lee agreed that he was in error and that it was Arnold and Constable Cieslar (“Cieslar”) who performed the arrest. [ 63 ] Lee recalled asking a member of his team to call the Vancouver Police Department, but he could not recall who contacted the VPD. Though the X5 was impounded in Vancouver, Lee could not explain why it was towed to Richmond, other than the RCMP in Richmond apparently had a towing contract with a local company.

As of the date of this hearing, Lee did not know what had become of the X5. [ 64 ] Cieslar was also part of the QRT on November 7, 2012. He was partnered with Arnold conducting surveillance from an unmarked covert police vehicle. He received information relayed by radio from Bal indicating that he had observed a hand to hand drug transaction taking place in the X5 and he saw marijuana in a black backpack. [ 65 ] Cieslar recalled next receiving information from Bal that the X5 had left the scene. Cieslar and Arnold departed the scene and next saw the X5 at the Safeway parking lot.

Cieslar saw the applicant exiting the X5, so he exited his police vehicle along with Arnold. He recalled identifying himself as a police officer. He recalled that Arnold then took over the commands and the applicant was taken into custody. [ 66 ] Cieslar confirmed that he had his firearm drawn at the low ready position. After the applicant was taken into custody, Cieslar decided to take on the task of photographing the exterior and interior of the X5, along with photographing of the text messages located on the cell phone seized from the applicant.

Cieslar used his personal cell phone for that purpose. [ 67 ] In cross-examination, Cieslar confirmed that at 3:50 PM he made the following entry in his notebook, “1550, drugs, 711 EVR, BMW X5, Safeway.” There were three other very brief entries made by Cieslar in his notebook in relation to photographs that he took with his personal cell phone. [ 68 ] Cieslar agreed with the applicant that he considered the arrest to be a high risk arrest.

Cieslar had little recall in relation to any information he may have received from any databases or broadcast information relating to the applicant’s background. [ 69 ] Cieslar agreed that from his training that in dynamic situations, such as high risk arrests, that it would be appropriate to make reasonably comprehensive and contemporaneous notes [ 70 ] Cieslar was unfamiliar with the area of the Safeway in the 1700 block of East Broadway.

He did not make any notes of the nature of the vehicle or pedestrian traffic at that time, though he agreed it was likely “very busy.” [ 71 ] Cieslar agreed with the applicant that from his policing experience he was familiar with the odour of marijuana in both its smoked and vegetative state. He agreed with the applicant that throughout his dealings in this investigation at the Safeway that he made no note of any odour of marijuana. [ 72 ] Constable Hughes (“Hughes”) was also part of the QRT on November 7, 2012, tasked with the surveillance of the break and enter suspect in Vancouver.

Like the other members involved in this investigation, he received information relayed by Bal that he had observed a drug transaction involving the applicant. [ 73 ] Hughes next received information that the X5 was leaving the scene. He could not remember the exact route taken by the X5 as it travelled away from their location, He recalled following it as it made various turns onto several streets ending up at the Safeway off of East Broadway. [ 74 ] In cross-examination, Hughes confirmed that he had no notes whatsoever with respect to the drug trafficking investigation involving the applicant.

Hughes confirmed that he did prepare a “Will Say” statement at some later date. [ 75 ] Hughes agreed that from his training he knew the importance of making notes in investigations, but elected not to make notes in this case due to his “limited contact” with the X5.

[ 76 ] Hughes also agreed that at the Safeway parking lot he took on the task of keeping people back from the scene of the arrest of the applicant, including people who had parked their vehicles in the vicinity of the X5. [ 77 ] Arnold was on loan to the QRT on November 7, 2012. He was a passenger in a covert police vehicle driven by Cieslar. He recalled receiving directions from Lee to perform a vehicle stop of the X5 based on the grounds that the applicant was in possession of marijuana for the purpose of trafficking. [ 78 ] Arnold described following the X5 to the Safeway parking lot on East Broadway.

At that point, Cieslar activated the emergency equipment of the police vehicle while it pulled in behind the X5. Arnold exited the police vehicle at the same time that the applicant was exiting the X5. [ 79 ] Arnold identified himself as a police officer and he then advised the applicant that he was under arrest and that he was to prone out on the ground. Arnold described to the applicant as appearing “frozen for a few seconds” as if it taken by surprise. [ 80 ] The applicant complied with the demand that he prone out on the ground.

The applicant was handcuffed following which Arnold told him that he was under arrest for possession for the purpose of trafficking. [ 81 ] Arnold then proceeded to advise the applicant of his rights pursuant to s. 10(

a) and (

b) of the Charter . In relation to s. 10 (a), the applicant responded with a “yeah” when he was asked if he understood the reason for his arrest. In relation to s. 10 (b), the applicant responded, “I am not sure what is happening.” Arnold then asked the applicant if he wanted to call a lawyer and he responded with a “yes.” Arnold cautioned the applicant that he would not be able to afford him privacy in his contact with a lawyer at that time. [ 82 ] Arnold then asked the applicant if he had a lawyer in mind.

The applicant responded that Aseem Dosanjh (“Dosanjh”) was his lawyer, but he did not have Dosanjh’s telephone number on his cell phone. Arnold used his work issued cell phone to contact Dosanjh’s office. Arnold was advised that Dosanjh was out of the office for a few days and perhaps legal aid should be contacted. [ 83 ] The call to Dosanjh was made at 4:00 PM, and at 4:06 PM, Arnold asked the applicant if he wanted to speak to legal aid and he stated “okay.” At 4:09 PM, legal aid was contacted and Arnold held his phone up to the ear of the applicant.

A short conversation took place which ended at 4:13 PM. [ 84 ] At the end of the call Arnold asked the applicant if he spoke to a lawyer and he responded in the affirmative. Arnold then asked the applicant if he understood the legal advice that he received and he responded in the affirmative. [ 85 ] Arnold testified that he was unable to provide privacy for the applicant in his call to a lawyer for several reasons. First, Arnold did not have a secure standard police vehicle.

Second, the back of his covert police vehicle was usually full of equipment. [ 86 ] In cross-examination, Arnold could not recall what police vehicle he was riding in that day, though agreed that it may have been a Buick sedan.

He also agreed that he had no notes relating to why the applicant could not be provided privacy in the back of the Buick or one of the other police vehicles on scene. [ 87 ] Arnold also agreed that he had no notes of what may have been in the backseat of his police vehicle or any of the other police vehicles on scene. [ 88 ] Arnold also agreed that he had no note that Lee had directed him, or that anyone had directed him, to arrest the applicant. Arnold agreed it was a “high risk takedown” in a busy parking lot.

The high risk takedown involved some of the police officers deploying semiautomatic .9 millimetre handguns. [ 89 ] Arnold agreed that it was important to take careful and detailed notes as part of any investigation. [ 90 ] Arnold agreed that in his Report to Crown Counsel, he noted that he was familiar with the smell of fresh and burning marijuana and has investigated numerous drug files. Arnold stated that reference was a “standard heading” that he put in the start of all of his drug investigation reports.

He also agreed that he made no mention whatsoever of picking up any odour of marijuana during the course of this investigation because he did not note any odour of marijuana. [ 91 ] Arnold agreed that the applicant was responsive to questions put to him that at no time was there any indication that the applicant was impaired in any way. POSITION OF THE PARTIES (

i) The Applicant [ 92 ] In broad strokes, the applicant took the position that the reasonable and probable grounds articulated by Bal were uncorroborated and ultimately unreliable and, therefore, the applicant’s highly public arrest at gunpoint was thus arbitrary and contrary to s. 9 of the Charter . [ 93 ] The applicant also submitted that the subsequent search of the X5 cannot be justified as a search incident to an unlawful arrest and thus contrary to s. 8 of the Charter . [ 94 ] Lastly, though Arnold did his best to try to accommodate the applicant’s desire to speak to legal counsel, the failure to provide any reasonable privacy was contrary to s. 10(

b) of the Charter . [ 95 ] The applicant noted that the arrest of the applicant was a high risk arrest in which semiautomatic weapons were drawn in a busy public parking lot in the middle of the afternoon when no basis whatsoever would justify such dramatic police actions. Where the police choose to act in a potentially dangerous manner, then the Court ought to examine with care the circumstances surrounding the police conduct to determine if that conduct was justified.

[ 96 ] The applicant submitted that it was only Bal who noted the strong odour of marijuana on the clothing and facial area of the applicant. Though Arnold had extensive dealings with the applicant in close quarters, he did not observe, nor did he make any note of any odour of marijuana on the applicant. The applicant invited the Court to find that Arnold was a credible witness on that point. [ 97 ] The applicant further submitted that the Court must look with care at the evidence of Jaggassar.

He was but an arm’s length away from Bal in the Buick when Bal was purportedly making observations of activities in the X5. Though ideally positioned in the Buick, Jaggassar made no observation of any smoke coming out of an open window of the X5. This was particularly important as Jaggassar testified at one point that he had looked over his shoulder at the X5. [ 98 ] In addition, the applicant submitted that there was a clear conflict in the evidence of Bal and Jaggassar in relation to the positioning of the X5.

Bal testified that the X5 was nine feet away from the Buick and that they were essentially side-by-side. Jaggassar testified that the X5 was more at an angle, rather than side-by-side. This was important as it would impact on Bal’s viewing position if Jaggasar’s evidence was accepted as reliable. [ 99 ] The applicant submitted that apparently there was no attempt made to measure the distance from the ground to the windowsill of the X5 or from the ground to the windowsill of the Buick to assist the Court in determining what would be Bal’s viewing angle.

In addition, Bal’s observations were being made through a 35 degree tint on the Buick. [ 100 ] The applicant further submitted that the X5 clearly had rear tinted windows which were not noted by Bal, but would clearly impact on his ability to see what was taking place in the back seat of the X5. [ 101 ] The applicant submitted that it was Lee who called for the arrest of the applicant, due to his suspected consumption of marijuana. However, the only observations noted in Lee’s notebook were to the effect that Bal observed a drug transaction and that the driver sold marijuana for money.

There was no note of the broadcast that the driver was apparently smoking marijuana. [ 102 ] Lee agreed that he was on scene at the Safeway and for upwards of 90 minutes had no recollection of what was taking place with the applicant. The applicant noted that Lee completed some information in relation to the 24-hour suspension, but otherwise had little detail that could assist the Court as to what was taking place with the applicant into the Safeway parking lot. [ 103 ] The applicant submitted that the dangers inherent with the high risk arrest in this case were established from the evidence given by Hughes.

He has testified that when he arrived at the Safeway he saw police officers with guns drawn, so he took on the task of keeping people back from the scene including people who were parked in the vicinity of the X5. [ 104 ] The applicant submitted that the Court should carefully examine the evidence given by Bal. The applicant submitted that Bal often could not answer a simple question with a simple answer. [ 105 ] In addition, the applicant noted that Bal made no effort to seek any corroboration of his observations from his fellow officers at the time of the alleged drug transaction or at the Safeway parking lot.

The applicant further noted that Bal’s notes could not be described as detailed contemporaneous notes consistent with his evidence given in the voir dire . [ 106 ] The applicant further submitted that Bal would embellish or overstate his evidence.

For example, the applicant submitted that Bal’s observation of the suspected marijuana as being of a “high quality” was simply not borne out from his experience as a DRE. [ 107 ] The applicant submitted that it was inconceivable that none of the police officers on scene at the Safeway noted any odour, let alone a strong odour, of marijuana on the clothing and facial area of the applicant.

Nor, for that matter, did any of the police officers on the scene of the Safeway have any notes or made observations of any odour of marijuana coming from within the X5. [ 108 ] The applicant submitted that once he agreed to talk to legal aid duty counsel that he was not told nor afforded the opportunity to exercise that contact in private. The applicant submitted that Arnold was not Charter compliant when he held the cell phone up to the ear of the applicant while he was in handcuffs.

No reliable explanation was provided to explain why the applicant, a person with no apparent history with the criminal justice system, could not be placed in the back seat of one of the covert surveillance cars and permitted to speak to legal counsel. [ 109 ] The applicant submitted that the breaches were serious and while not expressly resulting from bad faith, the police actions could not be described as being exercised in good faith.

The applicant submitted that the evidence gathered from the search of the X5 ought to be excluded pursuant to s. 24(2) of the Charter . [ 110 ] The applicant made reference to numerous cases in support of his position.

Those cases are noted at Appendix A to this ruling. (ii) The Crown (the “Respondent”) [ 111 ] The respondent took the position that in relation to the issue raised by the applicant with respect to s. 9 of the Charter that if the Court finds Bal’s grounds for establishing the arrest of the applicant to be subjectively and objectively legally justified then the applicant would have failed to establish a breach of that section. [ 112 ] The respondent submitted that the other officers involved in this investigation who were relayed Bal’s observations could then rely on his observations with respect to the subsequent arrest of the applicant and the search of the X5. [ 113 ] The respondent submitted that Bal gave detailed evidence concerning his observations surrounding activities in the X5 at the time of the alleged drug transaction.

The respondent noted that Bal would be able to look easily into the driver’s side of the X5 and that Bal did not “stretch the evidence and say that he was able to see looking down.” [ 114 ] The respondent submitted that the use of binoculars by Bal would enhance his observations and thus enhance his credibility.

[115] The respondent further submitted that if the Court was satisfied that Bal observed the bud marijuana being held up by theapplicant in the X5, coupled with the hand to hand observations between the unknown male passenger and the applicant, thoseobservations alone would satisfy the grounds to make a warrantless arrest absent the evidence of the smoking of the marijuana cigarette. [116] The respondent further submitted that this was a case where there were some inconsistencies in the various police officersevidence both in relation to observations and their note taking.

The respondent submitted that it was open for the Court to prefer theevidence of one officer over another, especially so if there is no competing defence evidence. [117] In relation to the issue raised by the applicant with respect to s. 10(

b) of the Charter, the respondent submitted that the SupremeCourt of Canada decision in R. v. Taylor, 2014 SCC 50 established that the police were under no obligation to provide the applicant withthe use of their own cell phone at the scene. [118] In this case, it was submitted by the respondent that Arnold held his own cell phone up to the ear of the applicant and told him inadvance of the contact with counsel that he could not afford him complete privacy.

The actions of the applicant in speaking to counselwhen complete privacy could not be afforded to him would suggest acquiescence. [119] It was submitted by the respondent that Arnold went above and beyond what was required by a police officer at the time hecontacted requested counsel, and then legal aid duty counsel. All of this was done at an early opportunity to assist the applicant in gettinglegal advice. [120] The respondent made reference to numerous cases in support of his position. Those cases are noted at Appendix B to this ruling. LEGAL FRAMEWORK (

i) Statutory Framework [121] The applicant was arrested without warrant. The statutory basis for his arrest is found in s. 495(1) of the Code which reads asfollows: 495.

(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence; The term “reasonable grounds” in s. 495(1) means reasonable and probable grounds. [122] The test for reasonable grounds to arrest without warrant includes both a subjective and an objective element. The test wasarticulated by the British Columbia Court of Appeal in R. v. Crocker, 2009 BCCA 388, at paragraph 77, as follows: The test for reasonable grounds to arrest includes both a subjective and objective element.

The arresting officer must have an honestbelief that the individual to be arrested has committed an indictable offence and there must be objective or reasonable grounds to supportthat subjective belief. See R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 at para. 48, Stillman at para. 28, and Shepherdat para. 17. Reasonable grounds for an arrest can be based on hearsay evidence: Eccles v. Bourque, (SCC), [1975] 2S.C.R. 739.

If there are no reasonable grounds to arrest an individual then the arrest is unlawful and the search incidental to the arrest isunreasonable. [123] The requisite reasonable grounds for the warrantless arrest of the applicant rest on an assessment of the subjective and objectivebeliefs of Bal when he made his observations of the activities of the applicant in the X5. Whether his observations were credible indetermining the reliability of his testimony is for the Court to determine: (see R. v.

Acosta, 2014 BCCA 218 at paragraph 15). [124] If the warrantless arrest of the applicant was lawful, than a search incidental to that arrest would extend to a search of his X5when he emerged from it at the Safeway parking lot shortly before his arrest: (see Crocker at paragraph 78). (ii) Charter Framework [125]

Section 8 of the Charter states: Everyone has the right to be secure against unreasonable search or seizure. [126] This

section of the Charter guarantees a broad and general right to be secure from unreasonable search and seizure by agents ofthe state. The purpose of this

section is to protect individuals from unjustified state intrusions upon other privacy. Accordingly, there is apresumption of unreasonableness where a search is taking place without a warrant unless the party seeking to justify the warrantlesssearch is able to rebut: (see Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145). [127] In this case, the applicant’s X5 was thoroughly searched as an incident to his warrantless arrest based upon Bal’s purportedreasonable belief that the applicant was committing an indictable offence.

The search of the X5 would be justified if the arrest of theapplicant was determined to be lawful. [128] The purposes of the search would be justified if that search was based upon the establishment of the reasonable grounds by Bal,and that the search was required for the safety of the police or the public, protection or discovery of evidence, and other relevantcircumstances: (see R. v. Caslake, (SCC), [1998] 1 S.C.R. 51).

[129]

Section 9 of the Charter states: Everyone has the right not to be arbitrarily detained or imprisoned. [130] It is not every unlawful arrest that necessary falls within the words “arbitrarily detained” within the meaning of s. 9. If it wasdetermined that the applicant was unlawfully arrested than whether or not such an unlawful arrest established an arbitrary detentiondepends on the particular facts of this case and the view taken by this Court with respect to the extent of any departure from the standardof reasonable and probable grounds for a warrantless arrest. [131]

Section 10(

b) of the Charter states: Everyone has the right on arrest or detention (

b) to retain and instruct counsel without delay and to be informed of that right; [132] It is not in issue that the applicant was not arrested. He clearly was. Once arrested by Arnold, he was obliged to provide theapplicant with the opportunity to exercise his right to instruct counsel without delay. During that process Arnold, or other police officers,must refrain from attempting to elicit evidence from the applicant until he has had that opportunity to retain and instruct counsel. [133] In addition, it is well-established that in implementing duties imposed by s. 10(

b) of the Charter that Arnold was required tofacilitate a reasonable opportunity for the applicant to contact counsel in private. ANALYSIS AND FINDINGS OF FACT

(1) Sections 8 and 9 Charter Issues [134] This case was unusual. All of the police officers assigned to the QRT investigation on November 7, 2012, had no expectationwhatsoever that they would become distracted from their principal task of investigating a series of Richmond break and enters by thedrug investigation involving the applicant. [135] Though Lee was the Corporal in charge of the QRT investigation, assignment of duties as the drug investigation unfolded didnot appear to have any set structure.

Perhaps this was not a surprise because the drug investigation was completely unexpected. [136] After Bal believed that the applicant had smoked a marijuana cigarette and then left the area in his X5, Lee made the call thatthe applicant was to be stopped as soon as it was safe to do so because he posed a threat to public safety if he was allowed to drive awayin the X5. [137] Not only was the applicant allowed to drive away from the scene, it would appear that he drove the X5 for 10 minutes, overmulti-blocks in East Vancouver before pulling into the Safeway parking lot.

At that time, a high risk arrest was performed with variouspolice officers deploying their semiautomatic firearms in a highly public setting. [138] It was difficult to comprehend that a busy Safeway parking lot was determined to be a safe place to perform such a high riskarrest.

Indeed, Lloyd testified that he had to keep members of the public back from the scene of the arrest. [139] While the police did not want to compromise their investigation of the Richmond break and enters by stopping the X5 at thescene when Bal made his observations, I find the Richmond break and enter investigation would not and should not have taken a priorityover the public safety concerns expressed by Lee. [140] There were extensive submissions advanced by both the applicant and the respondent respecting contemporaneous notes, or thelack thereof, made by the various police officers witnesses in this case.

While reasonable contemporaneous notes would be desirable,there is no rule of law that requires that police officers make contemporaneous notes: (see Acosta, paragraph 15). However, that doesnot reduce the potential importance of detailed notes to assist the memory recall of police officers. [141] I find in this case that there was a paucity of contemporaneous notes made by the QRT members. I find this was based on thefact that the QRT members were focused on the break and enter investigation and were called upon at the last moment to becomeinvolved in the investigation respecting the applicant.

It was clear from the cross-examination of the police witnesses that they were allaware of the importance of making detailed contemporaneous notes which was part of their training to become police officers. [142] Lloyd made no notes whatsoever as he determined in his mind that he was only peripherally involved in the investigationinvolving the applicant and did not need to make any contemporaneous notes. [143] The importance of detailed notes has been discussed in many decisions. Perhaps the most useful and informative judicialcomment on the importance of detailed notes is found in R. v.

Berner, 2010 BCPC 94 , 2010 BCPC 0094 in which GulbransenP.C.J., at paragraph 44, had this to say: Every police officer is expected to take careful notes. In many circumstances where an officer is required to do many tasks, as in thiscase, the officer of necessity must be selective in what he or she records. Thus, an officer would make a note of significant times whenevents occurred; of significant observations of the scene; or observations about a suspect; the "gist" of what the accused or witnessessaid. Notes are meant to record facts to assist the officer in refreshing his or her memory later on.

[ 144 ] In Berner , the Court ultimately found that the investigating police officer had made careful and fairly detailed notes establishing an accurate account of the investigation of the accused. The Court further found that the police officer’s recording of her notes were important to refresh her memory of the event. [ 145 ] The importance of detailed contemporaneous notes would be important in this case to refresh the various police officers’ memories as to what was being relayed to them by Bal, as he was making observations of the applicant in the X5.

Those notes would also add substance to the reliability of the observations being communicated by Bal. [ 146 ] As noted at paragraphs 15 through 17 of this ruling, Bal purported to have considerable experience with marijuana, and in particular, symptomology relating to marijuana. Bal testified that when he arrived at the Safeway parking lot and came into contact with the applicant that he noted a strong odour of marijuana coming from the applicant’s clothes and observed “cognitiva” to the eyes.

Bal described “cognitiva” as a reddening of the eyes that would be consistent with the applicant consuming THC. [ 147 ] In the following exchange in direct examination, Bal was asked how he would be in a position to make the observations respecting symptomology consistent with consumption of THC: Q. And if you can just briefly tell the court why you would be in a position to make that observation? A. TH -- well, marihuana is one of the seven drug categories in the DRE program. It -- under cannabis, THC causes involuntary reddening of the eyes, the white parts.

There's a lot of other symptomology that if I was going into a more thorough examination that would be tell-tale signs of marihuana use. Using involuntary eye tremors -- THE COURT: But what did you observe of him that are -- A. Just -- just -- THE COURT: -- consistent with your training?

A The red -- the red cognitiva, the reddening of the eyes. (Transcript, September 10, 2014, Page 31, Lines 38-47; Page 32, Lines 1-5) [ 148 ] In cross-examination, Bal referred to the applicant’s eyes as displaying a “red conjunctiva”. (See Transcript, February 24, 2015, Page 49, Line 26.) [ 149 ] At no time was Bal ever qualified to give opinion evidence respecting symptomology consistent with the consumption of either marijuana generally or specifically THC. Bal purported to rely on his experience as a DRE.

However, for reasons that were not explained, that designation had “lapsed”. [ 150 ] The word “cognitiva” used by Bal on several occasions in his testimony does not appear to exist. Cognitiva could not be found in the Shorter Oxford English Dictionary (3 rd Edition), Black’s Law Dictionary (4 th Edition Revised) or Dorland’s Medical Dictionary (24 th Edition). [ 151 ] The word “conjunctiva” was found in Dorland’s Medical Dictionary (24 th Edition). Conjunctiva was described as a delicate membrane that lines the eyelids and covers the exposed surface of the eyeball.

There does not appear to be any relationship between consumption of marijuana or THC and conjunctiva. [ 152 ] I did not get the sense that Bal made any inadvertent error when he referenced cognitiva or conjunctiva as symptomologies consistent with consumption of marijuana or THC. For someone who purported to have previous experience as a DRE, Bal would appear to have been wrong on this point. [ 153 ] I find Bal was wilful and careless in using the terms cognitiva and conjunctiva to describe the applicant’s eyes at the Safeway parking lot.

This misuse of medical terminology I infer was designed to enhance Bal’s credibility and reliability as a witness with respect to his knowledge of the symptomology related to marijuana and THC consumption. [ 154 ] Bal also gave the impression that he had extensive general knowledge of marijuana, which included working on overtime files of his wife, who apparently was a member of the marijuana team in Richmond for four years.

As noted in particular at paragraph 17 of this ruling, he would at times spend an entire day with his wife dealing with “bud and exhibits.” [ 155 ] The thrust of his evidence would suggest that Bal was essentially volunteering on his spare time to work on files that were not specifically tasked to him. If that were so, it would be a practice that should be discouraged.

I conclude that Bal embellished the time that he spent on drug-related files to enhance his credibility and reliability in relation to his general knowledge of marijuana. [ 156 ] Bal testified in direct examination that when he was using his binoculars to observe the activities of the applicant in the X5, at the time of the alleged trafficking transaction, that he considered the marijuana to be “fairly high-quality bud.” In cross-examination, he explained that what he meant was not in reference to THC percentage, but rather the marijuana that he observed was not the sort of marijuana that he normally saw on the streets.

[ 157 ] I find that explanation troubling. Bal clearly testified that the bud marijuana that he observed was consistent with his training and experience as a police officer in establishing that the marijuana looked to him to be “fairly high-quality bud.” There was no indication that he relayed this information onto any of his fellow police officers on November 7, 2012.

I find that Bal embellished on this point to enhance his credibility and reliability. [ 158 ] On numerous occasions, without prompting, Bal would remind the Court that he was making all of his observations with surveillance binoculars, while at the same time, relaying his observations with the radio given to him by Jaggassar along to his team members.

Why Bal would continuously need binoculars to view activities in the X5 that was positioned a mere nine feet away from his position was difficult to accept? [ 159 ] When the applicant and the unknown male were in the front of the X5, Bal observed a conversation taking place between the two of them. Oddly, Bal went on to testify that he could not make out the words being spoken, “even with the binoculars.

I cannot tell what they are saying.” I infer Bal was trying to impress the Court that he had some lip reading experience. [ 160 ] How he was able to multitask by manipulating the radio and continuously using the binoculars was difficult to accept. I note from a review of Jaggassar’s evidence that he makes no reference to any binoculars being used by Bal.

Jaggassar testified that he was in the front seat of the unmarked police car while Bal was in the backseat so that “he could have a better view” of the house that was the subject of the break and enter investigation surveillance. [ 161 ] This is not a finding that binoculars were not used, rather, I find the use and the importance of the binoculars were overstated or exaggerated by Bal.

I find that he overstated or exaggerated the use and the importance of the binoculars to enhance his credibility and reliability. [ 162 ] It was concerning that on numerous occasions Bal would testify he made an observation in relation to events involving this investigation, and then testify that he did know what happened. In addition, Bal would frequently characterize his observations as what “basically” happened: (for example, see paragraph 22 of this ruling). [ 163 ] In criminal proceedings, it is important that police officers give accurate evidence to the best of their ability.

Additionally, it is not what basically happened that assists a Court in the fact finding process, rather, it is what actually happened that most effectively assists a Court in that process. [ 164 ] The respondent submitted that Bal did not “stretch the evidence and say that he was able to see looking down” into the X5. [ 165 ] In direct examination, Bal testified that he saw the applicant remove a small portable scale from a bag that he had placed on his lap and that he put the scale “into the centre console.” In the following exchange in direct examination, he was asked if he made any further observations about the scale: Q Constable Bal, can you please continue describing, you mentioned about your belief on why this was a scale.

So the object that you believed to be a scale, after you see that, what else do you observe in terms of the events? A So after I see the scale come onto -- out of the bag and onto the gear shift/arm rest kind of console -- THE COURT: Console area where the transmission shift is? A Yes, yes, Your Worship. Or, sorry, I keep on calling you Your Worship. THE COURT: That's okay. A Your Honour, I apologize. THE COURT: That's okay.

A Too much -- too much traffic court. (Transcript, September 10, 2014, Page 15, Lines 46-47; Page 16, Lines 1-14) [ 166 ] In addition, Bal testified that when the applicant brought the bag from the back seat and onto his lap that the zippers of the bag were facing towards the applicant. [ 167 ] The evidence would establish that Bal made his observations from a four-door Buick sedan. He made those observations through the tinted rear window of the sedan. The X5 is a sport utility vehicle with an elevated wheel suspension system.

The photographs of that vehicle would clearly establish that the driver door window sill would be higher than Bal’s vantage point in the sedan. [ 168 ] I do not find that Bal would have been able to see the scale being placed on the centre console of the X5.

Nor am I persuaded that he would have been able to see the bag placed on the applicant’s lap with the zippers facing towards the applicant. [ 169 ] I also find that Bal minimized the impact of the tinted windows of the police sedan and the X5 in relation to his ability to make precise observations of activities taking place within the X5. [ 170 ] Jaggassar testified that after the unknown male had left the X5 that he pursued this person on foot but lost sight of him in a housing complex.

Jaggassar returned to the Buick and left the scene after they picked up Shin. [ 171 ] Bal testified in direct examination that after the X 5 commenced leaving the School Avenue area that he was in the back seat of

the Buick. Jaggassar was the driver and they picked up Shin, who had been conducting foot surveillance. Shin got into the front passenger seat: THE COURT: The four of you in the Buick? A Three of us, Your Honour. THE COURT: Three in the Buick? A Yes. Myself in the rear, driver’s side rear seat of the Buick; you have Constable Jaggassar in the front seat as the driver. THE COURT: And the foot. A. And, then, we just picked up Constable Shin in the passenger seat. The COURT: Okay, three in the Buick? A.

Three in the Buick. (Transcript, September 10, 2014, Page 25, Lines 24 - 34) [ 172 ] In cross-examination Bal testified that he had a “vivid” recollection that as they covertly pursued the X 5 that he was writing down all the “important notes” of the drug transaction while sitting in the front passenger seat: Q How do you know that, all of these months later, without any note along the lines of “notes made en route to Safeway” like I suggested a few minutes ago. A Because I vividly recall the event and I was sitting in the front passenger seat of the vehicle - - Q Yeah?

A - - as we’re driving to the scene and I’m trying to write down all the important notes that I need to refresh my memory. (Transcript February 24, 2015, Page 32, Lines 39 - 47; Page 33, Lines 1 - 2) [ 173 ] Bal’s testimony on February 24, 2015 was clearly inconsistent with his testimony given on September 10, 2014. This inconsistency was very troubling as it was potentially misleading. I infer from Jaggassar’s testimony, which I accept, that Bal remained in the backseat of the Buick with Jaggassar in the front driver seat and Shin in the front passenger seat when they covertly pursued the X5.

I find that Bal’s testimony of his vivid recall given on February 24, 2015, was designed to enhance his credibility and reliability. In this case, it had the opposite effect. [ 174 ] Bal testified that it was at the Safeway parking lot that he observed Arnold to have the applicant in custody. It was at that point that Bal went up to Arnold to confirm that he had the right person in custody. It was then that he observed the strong odour of marijuana coming from the clothes and facial area of the applicant.

It was also at that point that he made the observations with respect to the cognitiva of the applicant’s eyes. [ 175 ] Arnold was in close contact with the applicant. It was Arnold who read the Charter rights to the applicant and also facilitated the call to legal counsel. In cross-examination, Arnold testified that he had no written note with respect to any odour of marijuana in relation to the applicant. As well, he testified that he also did not observe any odour of marijuana, though he was familiar with the smell of fresh and burning marijuana as he had investigated numerous drug files.

I accept Arnold’s observations to be credible and reliable. [ 176 ] In cross-examination, Bal testified that he could not account for observations, or lack of observations, made by other police officers at the Safeway in their interactions with the applicant. In further cross-examination, Bal would appear to rely on his lapsed DRE experience to support his observations in preference over observations of other team members in the following exchange: Q Okay. But except that they were all experienced police officers who, like yourself, who had been experienced you think in detecting the smell of marihuana, right?

A I can't speak to their experiences and their duties and what they have gone through. I know what I've done as a traffic police officer. Q Yeah? A As a DRE and I know what my observations were that day. Q There were senior officers to you there? A There were senior officers, but not one of them has actually worked on a specialized drug section. Q Not what I'm asking you, sir. They're senior officers. They would have encountered the same day-to-day marihuana experience that police officers encounter all over this province, right?

A They would have had different run-ins with marihuana, yes, Your Honour. (Transcript, February 24, 2015, Page 50, Lines 6-24) [ 177 ] Bal’s assertion that none of the senior officers that day had worked on any specialized drug

section was difficult to accept. No evidence was provided as to what was a specialized drug section, nor did Bal explain why he concluded that there were no senior officers that day who had worked on any specialized drug section. [ 178 ] It was, however, clear that Lee, Jaggassar, Arnold and Cieslar all testified that they were familiar with the odour of marijuana, including in its burnt form and in its vegetative form. In particular, it was Cieslar who photographed the interior of the X5 at the Safeway parking lot.

The photographs taken of the X5 established that after the applicant exited the X5 that all of the doors and windows of the X5 were closed. [ 179 ] In cross-examination, Cieslar confirmed that he has smelled burnt or vegetative marijuana on many occasions and that in relation to this investigation that he had no note in his notebook of picking up any odour of marijuana at any time, though it was clear that he did enter the X5 to take photographs of the interior. [ 180 ] Also, in cross-examination, Bal testified that he did not know what happened to the suspected marijuana cigarette when it was finished.

He agreed that he had no note of it being “flicked” out of the X5 window and onto the street.

Bal agreed that the X5 was thoroughly searched at the Safeway parking lot and no remnant of a marijuana cigarette was located. [ 181 ] While it may well be that marijuana was smoked by the applicant and the unknown male in the X5, it would have been expected that other police officers on scene at the Safeway parking lot, in particular, Arnold and Cieslar would have made some note or made an observation of burnt or vegetative marijuana either on the applicant or from with the X5. [ 182 ] At paragraphs 41 through 43 of this ruling, reference is made to Bal’s testimony in cross-examination regarding the use of a computer to run the licence plate relating to the X5.

I did not find his responses to be responsive, nor did his responses enhance his credibility and reliability. [ 183 ] While Bal’s observations and actions at the Safeway parking lot do not go to his reasonable and probable grounds to justify the warrantless arrest of the applicant, his observations and actions at the Safeway parking lot do bear on the issues of the credibility and the reliability of his reasonable and probable grounds. [ 184 ] I have found that Bal has exaggerated his evidence to enhance his credibility and reliability with the Court.

In circumstances where a Court finds that a police officer has exaggerated his observations, a Court must approach that officer’s belief in his reasonable and probable grounds with caution. (See R. v. Sundberg , 2010 BCPC 171 at paragraph 60 .) [ 185 ] I have also found that at times Bal embellished or overstated his observations on November 7, 2012.

Similarly as in Sundberg , where a Court finds that a police officer has embellished or overstated his observations, the Court must approach that officer’s belief in his reasonable and probable grounds with caution. [ 186 ] I have found that there were both inconsistencies and potentially misleading evidence arising from Bal’s testimony. I would not view these inconsistencies and potentially misleading evidence as either inadvertent or trivial.

Inconsistencies and potentially misleading evidence arising from Bal’s testimony also require that the Court must approach his reasonable and probable grounds with caution. [ 187 ] The need for caution in assessing Bal’s reasonable and probable grounds is all the more important in the context of what unfolded at the Safeway parking lot when the applicant was arrested. The arrest was a high risk arrest with semiautomatic firearms deployed in a highly public setting.

While the firearms were at the low ready position rather than the ready position, a miscalculation could certainly result in an unintended tragic consequence. [ 188 ] As noted at paragraph 123 of this Ruling, it is for this Court to determine whether Bal’s evidence of his observations was credible and reliable.

I find that Bal’s evidence of his observations in establishing his subjective and objective grounds to justify the warrantless arrest of the applicant lacked credibility and reliability. [ 189 ] Bal’s propensity to embellish, exaggerate or overstate his evidence had a significant negative impact on his credibility and reliability. [ 190 ] I find that the warrantless arrest of the applicant was not lawful. The subsequent warrantless search of the X5 would not be justified as a search incidental to arrest. The onus to justify the warrantless search rests on the respondent. The respondent has not met that onus.

The search of the X5 was in violation of s. 8 of the Charter . [ 191 ] The applicant was unlawfully arrested at the Safeway parking lot in which firearms were deployed by the police in a highly public setting.

Members of the public were in close proximity and indeed had to be held back from the scene of the unlawful arrest. [ 192 ] The applicant remained publicly displayed in handcuffs for approximately 90 minutes when he was then released simply with a Promise to Appear at Court, Notice of Impoundment and a 24 hour driving prohibition which Bal later told him to tear up as it was defective. [ 193 ] As was noted in the legal framework, it is not every unlawful arrest that necessarily falls within the words “arbitrarily detained” within the meaning of s. 9 of the Charter .

In this case, I find that the detention of the applicant was arbitrary and contrary to s. 9 of the Charter .

(2) Section 10 Charter Issues [ 194 ] Interesting issues were raised by the applicant in relation to s. 10 of the Charter . As I have found that the applicant was unlawfully arrested, I need not address those issues. Accordingly, I make no finding in relation to whether or not the applicant’s s. 10 rights were violated. (3) Section 24(2) Analysis [ 195 ] The breaches of s. 8 and s. 9 of the Charter are intertwined with each other and they are closely connected, causally, temporally and contextually to the evidence observed and seized following the unlawful search of the X5. [ 196 ] In R. v.

Reddy , 2010 BCCA 11 , Frankel J.A. summarized the approach set out in R. v. Grant , 2009 SCC 32 , for determining the admission of evidence obtained in breach of a Charter right at paragraphs 91 through 94 as follows: [91] The Grant factors are succinctly stated at paragraph 71 of that decision.

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

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

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

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

Although "seriousness of the offence" remains a consideration, it has far less importance than under the Collins/Stillman framework, because s. 24(2) focuses on the long-term implication for the repute of the administration of justice, and not the public's short-term desire for a conviction: para. 84 . (Emphasis Added) (

i) The Seriousness of the Charter Infringing State Conduct [ 197 ] I have found that Bal embellished, exaggerated or overstated his evidence in an effort to enhance his credibility and reliability with the Court. He also gave evidence that was potentially misleading. The Court must disassociate itself from such misconduct. [ 198 ] Police powers to arrest without warrant should be used with restraint. The Code requires that a police officer have reasonable and probable grounds before making an arrest.

Those grounds were not met in this case. [ 199 ] In relation to the search of the X5 that search was not authorized by law. [ 200 ] It was worrisome that the applicant was publicly displayed in handcuffs for approximately 90 minutes in a highly public setting. This public display I found to be arbitrary and unlawful. The Court must disassociate itself from such misconduct. [ 201 ] Good faith has not been made out. Nor are the breaches as a result of inadvertence.

I do not find that that there are extenuating circumstances present in this case that would mitigate the breaches. [ 202 ] The first avenue of inquiry favours exclusion of the evidence seized from the X5. (ii) The Impact of the Breaches on the Charter Protected Interest

[203] The privacy interests of the applicant were violated in this case. [204] The applicant enjoyed a privacy interest in relation to his X5.

That privacy interest was violated when the X5 was unlawfullysearched. [205] The applicant also enjoyed personal privacy interests that were violated when he was unlawfully arrested and then arbitrarilydetained for upwards of 90 minutes in handcuffs in a highly public setting at the Safeway parking lot following his high risk arrest. [206] The police conduct was deliberate and that conduct impacted the liberty and privacy interests of the applicant. [207] The second avenue of inquiry favours exclusion of the evidence. (iii) Society’s Interest in the Adjudication of the Case on its Merits [208] Under this heading, the Court must consider whether the truth seeking function of the criminal process would be better served byadmission of the evidence, or by its exclusion.

The Court should also consider societies “collective interest in ensuring that those whotransgress the law are brought to trial and dealt with according to the law.” (See R. v. Askov, (SCC), [1990] 2 S.C.R1199, at paragraphs 1219 and 1220.) [209] The evidence of the marijuana, the money and the ringing cell phone that were seized in this case would be reliable inestablishing that the applicant was likely involved in a dial-a-dope scenario. The exclusion of this evidence would defeat the case for therespondent. [210] I have found that Bal embellished, exaggerated or overstated his evidence.

He also gave evidence that was potentiallymisleading. Good faith was not made out. The Court must be mindful of the need to disassociate itself from evidence that is the productof unlawful conduct. (See R. v. Truong, [2011] B.C.J. No. 2078 at paragraphs 35 and 36.) [211] The third Avenue inquiry favours exclusion. (iv) Balancing the Grant Factors [212] I conclude that when viewed reasonably and from a long term perspective, the admission of the observed and seized evidencewould have a serious negative impact on the long term repute of the administration of justice. DECISION [213] On the b

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