R. v. Rauch, 2022 BCPC 117

Citation: R. v. Rauch 2022 BCPC 117 Date: 20220401 File Nos: 180467-1, 180467-4 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CLAUDIA NALINA RAUCH RULING ON VOIR DIRE

PART 1 OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: A. Van Tine appearing by videoconference Counsel for the Defendant: N. Brooks appearing by videoconference Place of Hearing: Victoria , B.C. Date of Hearing: March 15, 16, 2022 Date of Judgment: April 1, 2022 [ 1 ] THE COURT: Claudia Rauch is charged with possession of cocaine for the purposes of trafficking. In this voir dire , Ms. Rauch seeks an order excluding evidence found in her possession by members of the Victoria City Police Department (which I will refer to

hereafter as the VCPD), on the grounds that her rights pursuant to ss. 8 and 9 of the Charter were breached when police arrested her without reasonable and probable grounds, and searched her subsequent to arrest. In the course of that search, Ms. Rauch was found to be in possession of 14 grams of crack cocaine. [ 2 ] In this voir dire , Ms. Rauch maintains that if her arrest is found unreasonable, it follows that the subsequent search upon arrest was unlawful being contrary to s. 9 of the Charter . Ms.

Rauch also acknowledges that if the arrest is found to have been based on reasonable and probable grounds, the subsequent search is valid. The search was, of course, a warrantless search and it follows that the Crown bears the onus to demonstrate it was reasonable. The Crown submits it was reasonable pursuant to a valid arrest. In this voir dire , therefore, the primary question is whether police breached Ms. Rauch's s. 8 right against unlawful arrest that early morning last May 26. [ 3 ] The Crown called three witnesses to testify with respect to the grounds for arrest.

They are Constable Tyler, Constable Ramsay, and Constable Vasylyeva. To put matters into perspective, at the material time, Constable Tyler and Constable Ramsay were partnered together and Constable Vasylyeva was working patrol alone. Constable Tyler had by May 26, 2020, been with the VCPD for less than eight months having started in September 2019. Although this was never brought out in evidence, it is obvious given Constable Tyler's evident age that at the material time she had a total of some eight months' experience in policing.

Constable Ramsay was the more experienced of the two having been with the VCPD for some five years by May 2020 and some seven years at the time of testifying. By May 2020, I accept that Constable Ramsay had amassed some experience in and knowledge of drug investigations not just in his function as a frontline police officer, but also having received training in drug investigations from the VCPD as well as the RCMP. [ 4 ] On May 26, 2020, Constable Ramsay was on patrol with Constable Tyler and, aside from his normal duties, was also tasked with training Constable Tyler.

To that end, the two agreed that Constable Tyler would try to engage in a dial-a-dope drug transaction. I accept as a fact that Constable Ramsay had knowledge of information gleaned from a confidential informant that a certain Bradley Reid was a drug trafficker in Victoria, that he largely sold cocaine, and that he used his phone number to sell drugs. In other words, Mr. Reid was engaged in dial-a-dope trafficking. [ 5 ] I accept, as well that Constable Ramsay knew of Mr. Reid, in any event, and that to his knowledge Mr. Reid had been engaged in the drug trade.

He testified that he and other VCPD officers had at times arrested Mr. Reid for drug trafficking. Constable Ramsay testified that the confidential informant was a reliable source having given good information more than a dozen times in the past and I accept that as a fact in this voir dire . Among other things, Constable Ramsay knew from the informant that Mr. Reid trafficked in cocaine at the ounce level. That was important information necessary to determine what the police officer would seek to buy from Mr.

Reid; the quantity, as well as the nature of the drug. [ 6 ] Using the information given to her, Constable Tyler called the number associated with Mr. Reid and spoke to a male. Constable Tyler recalled the evidence was as follows and I am summarizing where appropriate.

First, Constable Tyler testified she identified herself to the male as "Chantelle." She said she was looking for "a half zip of hard." The male said he could get her that and "Chantelle" said, "Call me when you're good to go." [ 7 ] At this juncture, Constable Tyler understood, based solely on information provided to her by Constable Ramsay, that she had asked a male whom she assumed to be Mr. Reid if she could buy half an ounce of crack cocaine and that the male would be able to provide it to her.

Constable Tyler followed up with a text message sometime later asking if the male “was good to go.” She was told they needed more time. They then spoke by phone and "Chantelle" told the male she was at Rock Bay. Constable Tyler testified she agreed to make the buy at Mega-Mart on East Gorge. [ 8 ] Time passed and the parties communicated several more times. "Chantelle" texted wondering when the deal would happen and was put off a few times. In one of these instances, Constable Tyler called the number and spoke to a female who indicated they would be about 15 minutes.

Finally, Constable Tyler texted the number saying, "WTF," and testified to receiving a reply by text at the 1:41 a.m. mark saying, "Coming in a silver sedan." At the 1:42 mark, she received a second text saying, "Get in with them." [ 9 ] By this time, Constable Tyler and Constable Ramsay were parked across the street from the Mega-Mart. They could see a silver sedan already in the lot. As the officers drove into the lot, they noticed two females in the car. They decided to arrest both. [ 10 ] By 1:45 a.m., Constable Tyler was back on the phone with the male she thought was Bradley Reid saying, "Don't come here.

There's cops." She called again at 1:59 saying, "Yo, what the fuck was that," to which the male replied, "I don't know. I'm talking to my girls." He added, "I just called this number and it says it's a cop." Constable Tyler then ended the call. [ 11 ] Both the driver of the vehicle and Ms. Rauch, who was a passenger, were arrested. Constable Tyler arrested the driver while Constable Vasylyeva arrested Ms. Rauch. Constable Ramsay searched the vehicle. Nothing was found in the vehicle or during a cursory search of both women. When advised they would likely be taken to the VCPD office for a more thorough search, Ms.

Rauch produced from her bra a baggie containing 14 grams of crack cocaine. [ 12 ] Constable Vasylyeva testified she had been apprised of the intended drug arrest some 30 minutes earlier. She remained in the area ready to assist. As Constable Tyler testified, Constable Vasylyeva arrived at the scene at approximately the same time as she and Constable Ramsay were in the parking lot and was able to assist in the actual arrest.

Constable Vasylyeva testified to being apprised by Constable Ramsay that they would be doing a drug buy at the Mega-Mart on Gorge Road and that the occupant who had agreed to sell the drugs would be driving a silver sedan. Constable Vasylyeva was told that anyone driving a vehicle or, frankly, anyone associated with that vehicle would be arrestable for drug trafficking. [ 13 ] As Constable Ramsay testified, it was he who formed the grounds for arrest and he instructed both Constable Tyler and Constable Vasylyeva to carry out the arrests.

Constable Ramsay's grounds for arrest were, as he described it, based on the totality of circumstances. First, he was satisfied he had a credible tip regarding Mr. Reid as a dial-a-dope cocaine dealer. That tip was, in fact, corroborated, at least to a degree, when Constable Tyler called the number, spoke to a male, and clearly made arrangements to purchase 14 grams of crack cocaine.

[14] With this confidence and the information passed along to him by Constable Tyler and the occasional glance at the text messages,Constable Ramsay testified he understood there would be a meet at the Mega-Mart, that the price for sale was fixed at $1,400 (whichmade sense to him), that the drugs would be driven to the Mega-Mart by someone in a silver sedan, and that there was likely going to beat least two occupants in the vehicle.

Constable Ramsay determined that if there was a silver sedan at the Mega-Mart in the momentafter Constable Tyler received the text at 1:41 a.m. and 1:42 a.m., those persons inside would be arrestable for drug trafficking andindeed, at 1:42, there was a silver car or a silver sedan in the Mega-Mart lot. It was the only vehicle in the lot and inside were twopersons including Ms. Rauch and both were arrested. [15] Before addressing the submissions of Ms. Rauch with respect to the grounds for her arrest, it is useful to set out the lawgoverning the assessment of reasonable grounds to arrest.

The test is set out in R. v. Storrey, (SCC), [1990] 1 S.C.R.241, at p. 250. That test is referred to in countless cases including several submitted by Crown in this case. First, it was applied by ourCourt of Appeal in R. v. Jir, 2010 BCCA 497, at para 23. In turn, the principles outlined in R. v. Jir are conveniently summarized in R.v. Alexander, 2020 BCSC 268, at para 13. The relevant portion of that

summary provides as follows: 1) Police must subjectively have reasonable and probable grounds for arrest that are objectively reasonable … 2) In order to determine whether objective grounds exist, the court should start by looking at the observations of the officer throughthe lens of someone who has the same experience, training, knowledge and skills as the officer who is making the observations, and thendecide if a reasonable person with the same lens would come to the same conclusion as the police officer … 3) The reasonable grounds standard is not only less than that required for conviction, but is also less than the civil standard of proof… 4) A reasonable grounds determination involves a consideration of the totality of the circumstances … [16] So there is no confusion, no party takes issue with the fact that it was Constable Ramsay who formed the grounds for arrest, yetdid not effect an arrest of either the driver or Ms.

Rauch. It is apparent from the reasons of Mr. Justice Joyce in R. v. Shokar, 2006 BCSC770, at para 21, that so long at Constable Ramsay had reasonable and probable grounds, both Constable Tyler and Constable Vasylyevawere entitled to rely on them. The question is whether this court can be satisfied that the Crown has proven Constable Ramsay hadformed reasonable and probable grounds for arrest. [17] Here, I should note on the face of it, at least, he would seem to.

If the evidence is accepted, Constable Ramsay, acting on areliable tip, knew his partner had arranged to buy 14 grams of crack cocaine over the telephone with a person he had good reason tosuspect was Bradley Reid, a person known to him to traffic drugs. He knew the buy was set to occur at the Mega-Mart at the time hewas present in the area, and that the person or persons delivering the drugs would be in a silver sedan.

These circumstances rise wellabove the level of suspicion. [18] In this hearing, this court is asked to find, however, that it cannot rely on the testimony of the police witnesses with respect to allof the alleged grounds for reasonable and probable grounds. In particular, Ms. Rauch submits that the police were looking for andexpected to find Mr.

Reid delivering the cocaine in a silver SUV, that they are mistaken about the silver sedan or, at a minimum, theevidence is insufficient largely in light of the fact that no officer that evening took any notes of events as they occurred, though therecertainly was time to do so. [19] The only contemporaneous notes takes are those taken by Officer Vasylyeva who took notes upon the arrest of Ms. Rauch,including the Charter warning and the response and so forth.

Apart from that, Constable Vasylyeva took no notes of anycommunications with Constable Ramsay, and neither Constable Ramsay nor Constable Tyler took notes of any of the telephoneconversations with the male they suspected was Mr. Reid or the woman with whom Constable Tyler spoke briefly. [20] After the arrest, at approximately 3:00 a.m., Constable Tyler wrote a police statement. She acknowledged she re-created thetelephone conversations from memory, but testified that she used her phone to look at the text messages to document both the messagesand the times they were sent and received.

Despite this being a police cellphone, Constable Tyler testified she no longer had the textmessages, yet could not recall deleting them. For that reason alone, the lack of notes is a problem in this case. However, that is not theonly reason I am concerned by the lack of note-taking. [21] First, it is clear that Constable Tyler has only the slightest memory of the events of May 26, 2020, events which went on over aperiod of many hours. As an example, Constable Tyler could not remember where she was when she received the text messages or whenshe spoke over the phone. She could not remember the time of the arrest.

She thought it was some minutes between receiving the text at1:42 and getting to the scene. Yet by 1:45, by her own testimony, the occupants of the vehicle had been arrested and she was, in fact, onthe phone again with the dial-a-dope suspect. She could not remember why she called the dial-a-dope suspect after the arrests, not once,but twice. However, when it was put to her that she called because she was not sure she had arrested the right people, she was certainthat could not have been the case. [22] Here, two points bear noting.

First, Constable Ramsay expected Constable Tyler to make notes of the investigation. He testifiedhe assumed she was doing so. Constable Tyler acknowledges that her training requires her to take notes. There is no explanation for thisfailure. Secondly, Constable Tyler knew virtually nothing of dial-a-dope undercover operations before this evening. She acknowledgedon cross-examination that she did not know what "half a zip of hard" was, except when informed by Constable Ramsay.

This isunsurprising as I accept it is specialized information that would be available to persons in the drug world, or persons like policeattempting to infiltrate the drug world one way or the other. [23] There was no evidence to suggest that Constable Tyler would have been familiar with what seems to be a typical practice ofseasoned drug investigators and that is to keep a drug line open as long as possible. There, really, is no explanation in this case forConstable Tyler's calling the line she associated with Mr. Reid after the arrest of Ms.

Rauch. [24] Constable Vasylyeva's failure to take notes resulted in her recalling something that could not have happened. Constable

Vasylyeva was certain in her testimony that she received information from Constable Ramsay at 1:15 to the effect that if persons showed up at the Mega-Mart parking lot in a silver sedan, they would be arrestable. This could not have been the case since Constable Tyler testified she was apprised by text at the 1:41 mark that the drugs would be delivered by someone in a silver sedan. [ 25 ] By 1:42, the arrest was almost certainly underway or imminent and Constable Vasylyeva was part of the arrest team.

If she had been told of this information between 1:41 and 1:42, I am certain she would have remembered it, but her recollection is clear she was told by Constable Ramsay at 1:15 that the drugs would be delivered by someone in a silver sedan. She was certain she could not have been told they were driving a silver SUV. Rather, the drugs would be delivered by someone driving a silver sedan. [ 26 ] There is, in my view, something very clearly wrong with this evidence.

Clearly, Constable Vasylyeva has it fixed in her mind that she was told a person or persons in a silver sedan at the Mega-Mart would be arrestable, but she cannot have been given this information at 1:15. It seems, moreover, that there is no time, given her immediate presence at the scene of the arrest, when she would have been told of a silver sedan before the arrests. That leaves open a number of possibilities including, as was put to her, that she was told of a silver SUV at 1:15 and is misremembering. [ 27 ] Constable Ramsay, too, made no notes.

He testified it would have been contrary to policy to do so as Constable Tyler was, in fact, "leading" the investigation. He also testified he saw Constable Tyler typing at times into the onboard computer screen and assumed she was making notes. Constable Tyler was not. Constable Ramsay was Constable Tyler's trainer that evening. How difficult would it have been for him to confirm at least one of them was making notes of the investigation? [ 28 ] The lack of notes has bearing on his memory, as well. First, Constable Ramsay was asked in cross-examination about a supplemental Report to Crown Counsel or RCC.

He was asked first whether the confidential informant gave him a description of Mr. Reid's vehicle. He denied it. Then it was put to him that the supplemental RCC included a description of Mr. Reid's vehicle as being a silver SUV. Constable Ramsay agreed he would have been the source of that information in the supplemental RCC, but denied having any recollection of receiving the information.

Still, it was information he had. [ 29 ] Constable Ramsay was then asked about the supplemental RCC or, as it was phrased, a revision to the original RCC because of a lack of information regarding the text messages between Constable Tyler and the suspected drug dealer. He testified that, after going back over the file, he noted that a fairly big part of the arrest grounds were missing from Constable Tyler's police statement. He testified he recalled that evening that Constable Tyler told him what vehicle they were looking for. That would have been at the 1:41 mark.

While Constable Ramsay recalled looking at Constable Tyler's texts from time to time, the evidence does not establish on balance that he saw the text at 1:41 regarding the colour and the type of vehicle. At most, Constable Ramsay was relying on what he remembers being told by Constable Tyler. Constable Tyler has no independent recollection of that evening. [ 30 ] That leaves Constable Tyler's police statement written around 3:00 a.m. the same day of the arrest. There are no contemporaneous notes and, for reasons which remains inexplicable, the text messages are not available.

The evidence with respect to Constable Tyler's notes included that at 1:41 she received a text saying, "Coming in a silver sedan" is wildly disparate. [ 31 ] I have already referred to Constable Ramsay's testimony, that is, he went through the file. He noticed Constable Tyler had omitted the mention of the 1:41 text regarding the sil ver sedan. He then amended the RCC to include that information and he was asked this on cross-examination [as read in]: Q There was an omission as to the description of the silver sedan and you added it later? A Yes. Q When was that? A I'm not sure.

After I went through Tyler's notes. Q How did you come up with the exact phrase? A It was in her statement. Q Her initial statement had it and you didn't include it? A She gave me her statement. I'm not sure if she included this or not initially. There is a chance another supervisor went over her statement. Again, I'm not sure. [ 32 ] Constable Ramsay testified that although he had received Constable Tyler's notes sometime in the early morning of May 26, 2020, they did not discuss them at the time.

As he later testified, he noted that a fairly big part of the arrest grounds were missing from Constable Tyler's police statement. He testified the two would have discussed that and the RCC would then have been amended.

Constable Ramsay acknowledged he did not write down the grounds for arrest himself. [ 33 ] At best, the evidence indicates that Constable Ramsay amended the RCC to include as grounds for arrest a comment he recalled hearing from Constable Tyler a week earlier, though not included in her police statement and not something actually seen or heard by him, that the drug dealer would be coming a "silver sedan." At the time Constable Tyler recalls receiving this message at the 1:41 mark, she and Constable Ramsay were across the street from the Mega-Mart.

Constable Tyler testified she could see a silver sedan in the parking lot and no other vehicles. [ 34 ] Both Constable Ramsay and Constable Tyler have poor memories of that evening and the days and material events following. Constable Ramsay had no recollection of having been told by the confidential informant that Mr. Reid dealt drugs out of a silver sedan, though he acknowledged he had to have been advised of that, elsewise the information would not have appeared ultimately in the RCC. Constable Ramsay could not recall when he amended the RCC. He made no notes. He never committed the grounds for arrest in

writing. He could not recall if Constable Tyler ever brought the omission of the text at 1:41 in her police statement to his attention. At the same time, he was sure they would have discussed her statement before amending the RCC. Most importantly, Constable Ramsay testified he could not remember if Constable Tyler told him the dealer would be arriving in a silver sedan or a silver car. These details are important. [ 35 ] Constable Tyler's memory of that evening is unreliable. Constable Tyler's inability to explain the missing text messages that should have been easily obtainable.

Her inability to remember what happened to those messages or even if she deleted them makes little sense. Further, while Constable Tyler testified to committing each of the text messages to writing within hours of the investigation, Constable Ramsay's testimony indicates that this was not the case. [ 36 ] The lack of note-taking also finally resulted in Constable Vasylyeva's recalling something that could not have occurred.

It is impossible to determine on the evidence called in this voir dire how Constable Vasylyeva ever learned that the grounds for arrest included that the dealer would be arriving in a silver sedan. In saying this, I acknowledge that Constable Vasylyeva's knowledge of the grounds of arrest are not critical since it was Constable Ramsay who formed the grounds. Still, the evidence remains concerning. [ 37 ] I agree with Constable Ramsay's observations and his testimony that the presence of a silver sedan at the Mega-Mart at 1:41 formed a significant part of the grounds for arrest.

Constable Ramsay may have correctly recalled being told by Constable Tyler that the dealer would be arriving in a silver sedan. He may not have. His memory, as I say, is not reliable. Constable Tyler may recall the text said, "Coming in a silver sedan," or she may not have. Her memory, too, is unreliable. [ 38 ] I say this, as well, it seems unlikely on balance that a drug dealer would text a customer to say, "Coming in a silver sedan." Common sense would suggest the phrase would have been, "Coming in a silver car." At times, both Constable Ramsay and Constable Tyler testified they were looking for a silver car.

Of course, at the time Constable Tyler is said to have received a text at 1:41, she was, by her own testimony, looking at a silver car, a four-door car, or a silver sedan. Did the text say, "silver sedan" as seems unlikely or "silver car" or even possibly a "silver SUV"? The evidence does not allow for a determination on balance in any direction. [ 39 ] Almost as soon as Ms. Rauch and the driver were arrested, Constable Tyler quickly phoned the number she associated with Mr. Reid. In the normal course, it is not hard to understand why.

Typically, as Constable Ramsay testified, police will continue to call a dial- a-dope line to gather more information or, in this case, to try to continue to lure a dealer. Why, then, did Constable Tyler have no recollection of the reason for her two calls to the number associated to Mr. Reid? [ 40 ] It was suggested to her that she called immediately because she was unsure if she had arrested the right people, that she wanted to confirm whether Mr. Reid might still be on his way.

Without recalling any reasons for the call, Constable Tyler, as I have noted, nonetheless firmly denied that this was not the reason for those calls. I am not so sure. [ 41 ] If I could be satisfied that Constable Ramsay was told by Constable Tyler at the 1:41 mark that the drugs would be delivered by a person or persons driving a silver sedan at the Mega-Mart, I would be satisfied he had grounds for arrest of the two occupants in the car at the Mega-Mart within a moment or so later.

The difficulty is that the evidence for these grounds is based on memory and a poor memory at that with no contemporaneous notes. [ 42 ] As the court writes in R. v. Oyston , 2019 BCSC 264 , at paras 46 to 49 , note-taking is a crucial part of police work. Quoting from R. v. Tweedly , 2013 BCSC 910 , at para 160 , the court in Oyston notes that, in innumerable cases, police testimony, without the advantage of contemporaneous notes, is unreliable and often not admitted into evidence for that reason.

Here, the evidence of all three officers is in evidence, but because of the absence of any contemporaneous notes, the evidence is unreliable. It does not establish on balance that the grounds for arrest existed as they have been described. [ 43 ] In particular, it does not establish on balance that Constable Tyler was told by text message that the drugs which she arranged to purchase from a dealer she believed to be Mr. Reid would be delivered by a person or persons driving a silver sedan.

In my view, given the state of the evidence in this voir dire , Constable Ramsay's recollection of a comment by Constable Tyler regarding a text message which appears to have been deleted for no apparent reason, and which was not committed to writing for at least a week after the arrest of Ms. Rauch - and only then based on memory - is insufficient in all the circumstances to demonstrate on balance that Constable Ramsay had reasonable and probable grounds for the arrest. [ 44 ] In light of these findings, I find that Ms.

Rauch's s. 9 rights against unreasonable search and seizure was violated because police had not established reasonable and probable grounds for her arrest. [ 45 ] In submissions at the end of phase one of this voir dire , Crown indicated that it would seek to make an argument pursuant to s. 24(2) for inclusion of the evidence and, in the result, unless the parties otherwise agree, I will refer the parties to the JCM to fix a date for the continuation of this voir dire . (RULING ON VOIR DIRE

PART 1 CONCLUDED)