R. v. Kroeker, 2019 BCPC 127

Citation: R. v. Kroeker 2019 BCPC 127 Date: 20190426 File No: 219283-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. SHAWN RICHARD KROEKER ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G.S. GILL Counsel for the Crown: G. Kipp Counsel for the Defendant: B. Coleman, Q.C. Place of Hearing: Surrey , B.C. Dates of Hearing: May 1, 2018; January 8, 2019 Date of Judgment: April 26, 2019 [ 1 ] This is a ruling on a voir dire on which Shawn Richard Kroeker is charged with the unlawful possession of various narcotics, enumerated in four courts on Information 219283, all allegedly for the purpose of trafficking in them, contrary to s. 5(2) of the

Controlled Drugs and Substances Act. [2] This is a ruling on a voir dire wherein Mr. Kroeker asserts that he was unlawfully detained and thereafter arrested during apurported traffic stop without any reasonable basis, thereby constituting a violation of his right pursuant to s. 9 of the Canadian Charterof Rights and Freedoms. [3] He further asserts his warrantless search incidental to the unlawful arrest was also thereby unlawful. Finally, he alleges abreach of his s. 10 Charter right to obtain and instruct counsel without delay. (DISCUSSION) [4] By way of overview, Mr.

Kroeker was detained on the date in question while driving his Chrysler 300 motor vehicle. Based onthe lead investigator, Cst. Desormeaux, erroneously believing he had committed a moving violation pursuant to the Motor Vehicle Act. [5] After being required to exit his motor vehicle for what Cst. Desormeaux testified he believed to be necessary for officer safety,the officer saw, in the inside compartment of the open driver's door, what he believed to be a small weigh scale and an unzipped openblack pouch, narcotics consistent with packaging for street level sales. He thereupon instructed his partner, Cst.

Amerlinck, toimmediately arrest Mr. Kroeker for possession of narcotics for the purpose of trafficking, which he did. A third police officer, I think itwas Cst. Shaw, arrived on scene and assisted briefly in a further search of Mr. Kroeker's vehicle. [6] The accused was apprised of his right to retain and instruct counsel without delay, which he declined at the scene, and wasreleased shortly thereafter on a promise to appear. [7] Legally, the onus to establish a Charter violation rests with the party asserting that violation with the standard of proof beingon a balance of probabilities.

Section 9 of the Charter provides that everyone has the right to not be arbitrarily detained or imprisoned. [8] Random traffic stops for the purpose of public safety have been found to be a justified violation of this right, however suchstops cannot be used as a pretext for criminal investigation: see R. v. Mellenthin, (SCC), [1992] 3 S.C.R. 615. [9] A warrantless arrest pursuant to s. 495 of the Criminal Code will be lawful if the arresting officer has subjectively reasonableand probable grounds that are also justified objectively.

This is evaluated by placing a reasonable person in the position of the officer.The Crown carries the burden of proving the lawfulness of a warrantless arrest. While the grounds must constitute more than a meresuspicion, the police are not required to establish a prima facie case for conviction prior to making the arrest: see R. v. Storrey, (SCC), [1990] 1 S.C.R. 241. [10]

Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. Warrantlesssearches are presumptively unreasonable requiring the Crown to establish, on a balance of probabilities, that the search was authorizedby law, that the law itself was reasonable, and that the manner in which the search was carried out was also reasonable.

The lawauthorizing any such search may be either statute-based or on the common-law. [11] A search of a motor vehicle incidental to such arrest will be lawful if the arrest is lawful and if the search is reasonablyconducted and its purpose can be rationally connected to the arrest: see R. v.

Caslake, (SCC), [1998] 1 S.C.R. 51,paras.18 through 20 inclusive. [12] Finally, items located in plain sight in a motor vehicle do not carry with them a reasonable expectation of privacy, thereforelocating those items does not constitute a search pursuant to s. 8 of the Charter. [13] Dealing with the facts, on the date in question, police officers Desormeaux and Amerlinck were driving an unmarked policevehicle when they observed, in traffic, a Chrysler 300 motor vehicle in which Cst. Desormeaux recognized as belonging to Mr. Kroeker.Cst. Desormeaux had dealt with Mr.

Kroeker only a week earlier when serving upon him a violation ticket or order requiring him toreplace a cracked windshield on the same car. That notice was served by the constable on Mr. Kroeker at a residential trailer park locatedin Surrey. [14] On the date at issue here, Cst. Desormeaux testified that he believed that the accused saw and recognized him and Cst.Amerlinck as police officers following him in traffic. Cst.

Desormeaux remembered his interaction with the accused from the weekbefore, as well as recalling that he had learned the accused had a history involving dial-a-dope-narcotics dealings. [15] That recollection, along with seeing Mr. Kroeker now driving in traffic while leaning toward the passenger seat as if perhapshiding something, while in an area of the city known for drug dealing and having had many gang-related shootings, caused the constablesome concern. [16] He followed the accused down King George Highway and through a convenience store parking lot, when Mr.

Kroeker waseventually stopped for crossing a double line on the roadway upon exiting that lot. [17] Later in his testimony, Cst. Desormeaux produced the actual history that he would have seen regarding Mr. Kroeker during theprevious May 7th interaction at the trailer park. That information was very scant as regard to any reasonable basis to suspect Mr. Kroekermay have been involved in illicit activity on the date in question. [18] It would appear, from the officer's testimony, that he was following Mr. Kroeker, as he is perfectly entitled to do of course,merely out of curiosity, and he believed Mr.

Kroeker had recognized him as a police officer and then leaning over towards the passengerseat as if to be hiding or accessing something. [19] The constable agreed all of this formed an insufficient basis to stop him. Rather, he testified he stopped Mr. Kroeker forsomething entirely unrelated, being what he then believed, or he testified to have believed, to be a traffic violation of crossing a solid line

on the roadway while exiting a parking lot. [ 20 ] Cst. Desormeaux testified that at the time of issuing the windshield replacement order on the accused, he had conducted a background check on him and learned of a 2010 conviction for trafficking in narcotics, committed in 2008, as well as a 1988 conviction for theft and assault for which he received a sentence of three days and 18 months of probation.

There were no entries for weapons- related offences or violence after 1988. [ 21 ] He also learned about an unconfirmed complaint involving trafficking in narcotics, involving a black Chrysler motor vehicle, as well as an entry for what may have been drugs seen in plain view in his car for which charges were dropped. Cst. Desormeaux would also have seen that in March 2016, Mr. Kroeker was stopped and found to carry a folding pocketknife, which was not an offence. [ 22 ] Finally, he saw in April 2016 Mr.

Kroeker sped away from officers but there was no indication of any charges once he was stopped, and apparently no drugs or weapons were located. [ 23 ] Cst. Desormeaux admitted that on the date in question, relating to these charges, the background information and observations that he made of Mr. Kroeker while driving, did not provide a sufficient basis to stop him, even for an investigative detention. Despite that, it would appear on the date in question, Cst. Desormeaux made a decision to continue following Mr.

Kroeker, as I noted earlier he is perfectly entitled to do, but also whom he had described as looking at him through his rear view mirror while driving, leaning over towards the passenger seat, in a way, as Cst. Desormeaux testified, gave him some concern. [ 24 ] Mr. Kroeker, while being followed, of course made a turn into the parking lot of that convenience store, where he did not stop but rather continued through the parking lot back onto a different roadway, where cars waiting in line provided him the opportunity to enter that roadway, albeit, while in doing so, crossing the double line on that roadway.

As I have noted previously, it was this action that Cst. Desormeaux, while still in pursuit of Mr. Kroeker, determined at the time, according to his testimony, to be a violation of a provision of the Motor Vehicle Act , resulting in his decision to pull the accused over only for the purpose of giving him a traffic ticket. [ 25 ] Cst. Desormeaux now admits that he was mistaken in this belief that Mr. Kroeker had committed a traffic violation.

The gist of this testimony is that although this was a mistake, he genuinely believed at the time that a traffic violation had been committed by a person whom he knew to have a background sufficiently related to narcotics dealings and weapons that the traffic stop, in his view at least, according to his testimony, needed to be conducted with greater care than might otherwise be the case. It was solely for that reason, he said, that upon approaching Mr. Kroeker's vehicle after it had stopped, that he immediately asked Mr. Kroeker to exit the vehicle. In other words, for officer safety so that Mr.

Kroeker could not access any weapons that might be in the vehicle or on Mr. Kroeker's person. [ 26 ] Constable Desormeaux's testimony in this regard was plagued with an inability to recall a number of details related to the investigation overall. This was compounded by sparse note taking or, in some instances, notes that were taken but did not align with testimony, particularly as regards the events occurring between the stop and the decision to arrest. [ 27 ] The difficulty with the traffic infraction as the alleged reason for the stop is that the officer did not issue Mr. Kroeker any such ticket at the scene.

When asked why not, the officer replied that he simply forgot and had decided to give Mr. Kroeker the ticket when he came in later for fingerprinting. [ 28 ] The constable did not explain satisfactorily why he failed to have any such ticket then ready to serve on Mr. Kroeker on the date designated for his attendance for fingerprinting. In the end result, no ticket was ever issued with no satisfactory explanation for why not. This renders the justification for the stop very problematic and difficult to accept. [ 29 ] The other difficulty rests with the related proposition that Mr.

Kroeker posed, after being stopped for the purported traffic violation, a genuine risk to officer safety. The background check, of which Cst. Desormeaux would have been aware at the time of the traffic stop, provided a very thin basis for any such concern, with virtually no reliable connection to dial-a-dope or other drug trafficking activities, there being a single conviction for common assault approximately 30 years earlier, and no connections to any weapons related offences whatsoever. [ 30 ] There is also no explanation before the court as to, if Mr. Kroeker posed a genuine safety concern to Cst.

Desormeaux at the time of the traffic stop resulting in Mr. Kroeker having to be asked to exit the vehicle, why he was then not patted down immediately for a safety check but instead allowed to walk from his own vehicle over to the police cruiser still occupied by Cst. Amerlinck, entirely unescorted, during which time Mr. Kroeker could have theoretically produced any number or type of weapons, had any been concealed on his person. From that I conclude it more likely than not that Mr.

Kroeker was not perceived as a threat to safety. [ 31 ] Here, it is important to note that the Crown does not appear to be asserting the accused to have been the subject of investigative detention, much less arrest, for any suspected criminal activity including that related to narcotics. Having been stopped purely for a purported traffic violation, he was asked to exit the vehicle not for the purposes of conducting an investigative search of any kind, but purely for what Cst. Desormeaux described as officer safety based on the observations of Mr.

Kroeker, prior to being stopped, appearing to lean over inside his vehicle thereby raising a concern that he might be either obtaining or stowing some kind of weapons. As I say, the officer's actions upon Mr.

Kroeker exiting the vehicle belie any such concerns. [ 32 ] For these reasons, including the generally sloppy nature of the testimony and failure to recall the very important points or failure to take notes regarding same, while it is possible that the officer's version of the events is the correct one in terms of the traffic stop and the safety concern, it is not the one that would be safe to accept as being the most probable. [ 33 ] For the foregoing reasons, I remain unpersuaded that the events on the date in question represented a legitimate traffic stop or that Mr.

Kroeker was asked to exit the police vehicle for legitimate safety concerns. As a result, his detention on the date in question constituted an infringement of his rights pursuant so s. 9 of the Canadian Charter of Rights and Freedoms . [ 34 ] I will now deal with the search incidental to the arrest. As earlier noted, had Mr. Kroeker not been required to exit the vehicle, there is no reason to believe the officer would have spotted any of the items located inside the driver's door, which thereafter triggered a

more thorough search of the vehicle leading to discovery of additional narcotics. [ 35 ] The defence contends that even if there was no arbitrary detention, which I have concluded otherwise, the Crown has failed to meet its burden to prove the resulting warrantless search of Mr. Kroeker's vehicle incidental to his arrest was reasonable. In this regard, it was urged upon the court that the sighting of the black pouch and what appeared to be a scale on the inside of the driver's door would not have been enough to constitute reasonable grounds to believe Mr.

Kroeker was committing the offence of possession of narcotics. [ 36 ] A central feature of this submission is a disagreement with the officer's testimony that the pouch containing the narcotics was already unzipped and open for easy viewing of its contents. In this regard, Mr. Kroeker maintains the pouch was zipped, closed, and that the officer himself unzipped it to look inside, only then discovering the narcotics. [ 37 ] This is an area where the testimony of Cst. Desormeaux is in direct contradiction with that of Mr. Kroeker.

After careful consideration of these competing versions, I prefer the evidence of Cst. Desormeaux. I reach this conclusion because a subsequent search of Mr. Kroeker's vehicle showed narcotics or narcotics-related packaging and paraphernalia to be distributed throughout the front portion of the vehicle in a very untidy fashion. Indeed Mr.

Kroeker's own testimony was that after he went in for drug rehabilitation, people found narcotics or related items scattered throughout his car in areas that he had completely forgotten about. [ 38 ] As such, I find it more likely than not that in the panicked moments before he was stopped, and while attempting to conceal potentially the various items in his possession, he neglected to close the zippered bag located in the inside compartment of the driver's door, thereby rendering the contents of the zippered pouch open and in plain view of Cst. Desormeaux when Mr.

Kroeker opened the driver's door to exit his car as demanded by the officer. [ 39 ] I, therefore, find that when Mr. Kroeker opened his driver's door and exited the vehicle, Cst. Desormeaux saw what appeared to him, in plain sight, a small weighing scale and an unzipped pouch that appeared to contain packaged narcotics. Being open and in plain view, Mr. Kroeker enjoyed no expectation of privacy having regard to those items and, therefore, Cst.

Desormeaux viewing them did not constitute a search within the meaning of the Charter . [ 40 ] I find the viewing of those items to be ample reasonable and probable grounds, looked at in isolation, for the officer to both subjectively and objectively believe Mr. Kroeker was at that time committing the offence of possession of narcotics. Supporting that belief was Cst. Desormeaux's testimony of his extensive experience in narcotics-related investigations. [ 41 ] The plain sight viewing of narcotics and/or narcotics-related paraphernalia in the driver's door compartment provided Cst.

Desormeaux with ample grounds from that point forward for a further cursory search of the rest of the vehicle interior for additional offence-related contraband: see R. v. Caslake . [ 42 ] Indeed, the defence did not contest the officer's search of the vehicle in the event the arrest preceding was found to be sufficiently grounded based on the plain sight viewing of the weigh scale and narcotics located inside the driver's side door. [ 43 ] To conclude, I find the warrantless arrest and search of Mr.

Kroeker's vehicle, following the aforesaid discovery in the driver's door, to be properly grounded and to not constitute any violation of his Charter rights. [ 44 ] I find that Mr. Kroeker being stopped and asked to exit his vehicle on the date in question, which resulted in the officer obtaining a plain sight view of the weigh scale and narcotics located on the inside of the driver's door, constituted a violation of Mr. Kroeker's s. 9 right to be free of arbitrary arrest or detention. This, of course, taints everything that followed. [ 45 ] Those are my reasons. (RULING ON VOIR DIRE CONCLUDED)