R. v. Klassen and Marchuk, 2018 BCPC 399

Citation: R. v. Klassen and Marchuk 2018 BCPC 399 Date: 20180727 File No: 220423-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. BEVERLEY KEITH KLASSEN and JANESSA RAE MARCHUK ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE D. JAHANI Counsel for the Crown: Federal Crown - D. Novakovic Counsel for Mr. Klassen : J. Dunne Counsel for Ms. Marchuk : J. Davidson Place of Hearing: Surrey , B.C. Dates of Hearing: February 8, May 14, and May 15, 2018 Date of Judgment: July 27, 2018

[1] THE COURT: This is the court's ruling on Ms. Marchuk's application to exclude evidence pursuant to s. 24(2) of the Charter.In a prior ruling, I have found that Ms. Marchuk's and Mr. Klassen's rights pursuant to s. 10(

b) of the Charter were violated. [2] Mr. Klassen chose not to participate in and/or provide arguments in the s. 24(2) voir dire. Hence, the only issue before thecourt is whether the statement made by Ms. Marchuk following a breach of her s. 10(

b) Charter rights ought to be excluded along withany evidence flowing from that statement. [3] During the course of this voir dire, Cst. Babala testified rendering expert opinion for the Crown. Cst. Lidstone testified withrespect to her dealings on scene with Ms. Marchuk. The testimony focused mainly on the issue of an outstanding warrant for Ms.Marchuk. [4] The facts as they related to the warrant are that once Ms. Marchuk was arrested for possession for the purposes of trafficking,the arresting officer requested another officer to attend to assist with Ms. Marchuk. Cst.

Lidstone arrived and took custody of Ms.Marchuk. [5] During the course of checking her identification, Ms. Marchuk gave her name as Janessa Anderson and stated that she had atheft. When the name did not produce a hit on the police database, considering that she had a theft, her last name, Marchuk, as appearedon her identification card, was used. It was just the difference between maiden versus married name and there are no suggestions herethat Ms. Marchuk was trying to give a false name. [6] Ultimately, it became apparent that Ms. Marchuk had a warrant out for her arrest from Delta dating back to 2015.

The officertestified that the computer system only showed that there is an outstanding warrant and whom to contact. She contacted the Delta PoliceStation and confirmed that the warrant was still outstanding. Cst. Lidstone then executed an arrest of Ms. Marchuk based on the warrantand took Ms. Marchuk to the station. [7] Once at the station, Ms. Marchuk was searched pursuant to the arrest on the warrant and, as per Crown submission, furtherevidence was obtained from that search. Delta police eventually called back stating that the warrant is not valid, giving the officerdirection to release Ms. Marchuk. [8] Ms.

Marchuk, during the course of her interaction with Cst. Lidstone over the warrant, had told her that the warrant was in errorand that this had happened before. Position of the Parties [9] It is generally Ms. Marchuk's position that the statement, “a joint, maybe a roach”, being the drugs she says are in the carwhich is owned by Mr. Klassen, ought to be excluded. It is further the defence position that the drug evidence disgorged by Ms.Marchuk following the arrest for simple possession should be excluded. [10] It is generally the Crown's position that despite the s. 10(

b) Charter violation, the statement and the drug evidence ought not tobe excluded and that, if there is to be an exclusion, the statement ought to be excluded and not the drugs. [11] The analysis pertaining to the test for exclusion pursuant to s. 24(2) of the Charter is found in R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353. The factors to consider are set out at paragraph 71: ... (1) the seriousness of the Charter-infringing state conduct ... (2) the impact of the breach on the Charter-protected interests of theaccused ..., and (3) society’s interest in the adjudication of the case on its merits.

Analysis [12] In a s. 24(2) analysis, the burden is on the applicant who seeks exclusion, here Ms. Marchuk, to persuade the court, on abalance of probabilities, that the admission of the evidence would bring the administration of justice into disrepute, as set out in R. v.Collins, [1987] 1 SCR 280. [13] A s. 24(2) analysis starts with the position that there is already a violation and that the administration of justice has already beennegatively impacted.

Its focus is prospective in that it seeks to ensure that no further damage is done to the repute of the justice system:Grant, para. 69. [14] The three factors set out in R. v. Grant ought to be balanced. This balancing is qualitative in nature and not mathematicallyprecise: Grant at para. 140. [15] Echoing R. v.

Brodie, 2017 BCSC 1784, the court must weigh its consideration under all three factors to determine whether onbalance, and having regard to all the circumstances, admitting the impugned evidence would bring the administration of justice intodisrepute in the long term from the perspective of a reasonable person: Grant, paras. 68 and 85 to 86; R. v. Coté, 2011 SCC 46, at para.48. Furthermore, it is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case: R. v.Harrison, 2009 SCC 34 at para. 36.

First Prong - The Seriousness of the Charter-Infringed State Conduct [16] As set out in paragraph 72 of Grant, this first prong requires the court to assess in making a determination as to whether theadmission of the evidence would bring the administration of justice into disrepute by condoning state misconduct. [17] The more serious the misconduct, the more the court ought to disassociate itself from it, favouring exclusion. Good faith on thepart of the police will reduce the need for such disassociation. The main concern is to maintain the public confidence in the

administration and the rule of law. [ 18 ] In quoting Brodie , at one end of the spectrum are breaches that are technical or trivial, inadvertent or minor, or ones resulting from an understandable mistake. At the other end of the spectrum are those that can be characterized as brazen or flagrant, abusive, deliberate, or egregious. Clearly, wilful violations are undoubtedly more serious than unintentional ones.

However, reckless or careless violations that demonstrate insufficient regard for Charter rights also inevitably undermine the public's confidence and the rule of law : Brodie at para. 132 ; Harrison at para. 24 ; Grant at paras. 74 and 75 . [ 19 ] In the case at bar, Ms. Marchuk essentially argues that the officer showed ignorance of Charter standards, that he was unable to articulate the full s. 10(

b) Charter right, needing to read it from the Charter card. Ms. Marchuk submits that this violation is even greater a year and a half later, at the time of trial, and I take it to mean the officer, being unable to recite the content of the Charter card by memory during his testimony. Furthermore, it is Ms. Marchuk's position that the violation is more serious because the officer proceeded to ask questions from both the driver and the passenger following the incomplete informational component of s. 10(

b) Charter rights. [ 20 ] I agree that s. 10 violation s or any Charter violations are serious in nature, however, I do not agree that the officer was ignorant, showed a flagrant disregard for the rule of law, or insufficient disregard for Charter rights. His conduct was not deliberate or in bad faith. [ 21 ] The officer was very polite and respectful in his dealings with both accused individuals. Throughout his investigation, he was cognizant of his grounds and the limitation s those grounds placed on him at different levels of the investigation commencing with the Motor Vehicle Act stop.

For example, concerning the officer's previous drug investigation experience, the officer did not let his observations, being the new plates, the slow driving, not pulling over as soon as possible and then pulling into a dark alley, and the ringing cell phone, convert his original purpose for pulling over the Nissan, which was the Motor Vehicle Act infraction, into a drug investigation. It only became a drug investigation once the officer saw the score sheet. Even when he saw the score sheet, he distinguished between his grounds to arrest or detain.

It is worth also mentioning that he was respectful of each of the accused's personal bodily integrity. He had a female officer attend to take custody of Ms. Marchuk and to perform any necessary searches incidental to arrest. When Mr. Klassen requested his cuffs to be loosened, he complied with this request. [ 22 ] The officer should have provided a more thorough recitation of s. 10(

b) Charter rights from memory, inclusive of the full informational component, however this is not a situation where no s. 10 rights were provided when jeopardy changed, as it was the case in R. v. Brodie . [ 23 ] I also distinguish the case at bar from the case of Brodie . In Brodie , the accused provided a self-incriminating statement during the course of police questioning. The conduct of one of the officers was unprofessional throughout the interview.

At the time he made those statements, he was detained by the police in relation to other matters, unrelated to the topic about which he made the incriminating statement, being the driver in an accident. [ 24 ] During the course of police interaction s with him on the unrelated topic, police then started questioning him about the driving- related offence without giving him his s. 10 (

b) rights. This was important, as jeopardy had changed with the change to the new topic and the new Charter rights ought to have been given. [ 25 ] Also, in assessing if the officer was ignorant or had disregard for the law, while I do not condone the fact he did not provide the full information al component by memory, or that he did not read from the Charter card when it was available to him, I would have to look at the context and his reasons.

Being a lone officer with two individuals in a dark alley whom he had just detained and asked to exit from the vehicle so as to conduct a drug investigation, it is understandable why, in the dynamic of the moment, he would not read from his Charter card and would recite from memory. [ 26 ] With respect to Cst. Lidstone, she made efforts to ensure that the warrant is outstanding before arresting Ms. Marchuk pursuant to the warrant, and did not automatically arrest her on the warrant. Furthermore, there is no evidence to suggest that Cst. Lidstone may have questioned Ms.

Marchuk inappropriately prior to her having a chance to speak to counsel. [ 27 ] I do not find either officer as having engaged in multiple or a series of Charter violations. In my view, this conduct of the state or the resulting breach does not fall on the serious end of the spectrum and mitigate in favour of admission.

Second Prong - The Impact of the Breach on the Charter- Protected Interest s of the Accused [ 28 ] The seriousness of the breach at this stage deals with examining the degree to which the violation of Charter rights impacted or affected the interest that ought to have been protected by those rights. The more serious the incursion on these interests, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. [ 29 ] Unlawfully obtained statements usually deal with the breach of the right to counsel under s. 10(b).

The failure to advise of the right to counsel undermines the person's right to a meaningful and informed choice as to whether to speak. It further affects and undermines the right to counsel and, most fundamentally, the protection against testimonial cross-examination. [ 30 ] As per paragraph 96 of Grant : ... particular circumstances may attenuate the impact of a Charter breach on the protected interests of the accused from whom a statement is obtained in breach of the Charter. For instance, if an individual is clearly informed of his or her choice to speak to the police, but compliance with s. 10(

b) was technically defective at either the informational or implementational stage, the impact on the liberty and autonomy interests of the accused in making an informed choice may be reduced. [ 31 ] It is the position of defence, amongst others, that the breach of Ms. Marchuk's s. 10(

b) Charter right s created a domino effect that resulted in Ms. Marchuk's Charter -protected rights, both s. 7 and s. 10, to be seriously impacted. This domino effect being the arrest for possession for the purposes of trafficking and the arrest pursuant to the warrant.

[32] While I appreciate the principles set out in R. v. Pino, I have to assess the substance of what transpired post-breach to see thedegree of impact on the accused, especially since it is the defence position that a domino effect exists. Furthermore, I should note thatthe facts of Pino are different from the case at bar. [33] The Charter right that was violated was a s. 10(

b) Charter right. It was violated not because of a total lack of compliance,meaning a situation where no s. 10 rights were provided as was the case in Brodie, but it was due to an incomplete compliance with theinformational component of the section. [34] Also, despite this breach, the officer did provide Ms. Marchuk with the official warning that, "I am a police officer. You don'thave to say anything to me. Anything you say can be taken as evidence.

Do you understand", to which she replied, "Yes". [35] I should note that the Charter rights were read to her from the Charter card at both arrests, the simple possession and thepossession for the purposes of trafficking. Ultimately, Ms. Marchuk's response to the question of whether she wished to speak with alawyer, was, "Yes, I guess so". [36] The statement provided by Ms.

Marchuk in response to the officer's question was not self-incriminatory in the sense ofconfessing that she had drugs on her person, but it was self-incriminatory in the sense that, for the purposes of grounds to arrest, itcommunicated to the officer, at a minimum, the following: (

a) it showed she had knowledge of the presence of a joint, maybe a roach, inthe car when Mr. Klassen had denied any drugs being in the car; (

b) the location in the car of the joint or roach was unclear; and (c)provided grounds for the officer to arrest both. [37] The officer testified that if Ms. Marchuk had not made the statement, the arrest for simple possession would not have occurred.He would have proceeded with the Motor Vehicle Act violation unless other grounds surfaced to continue this investigation. [38] One cannot speculate as to what Ms. Marchuk would have or not have said had she been given proper and complete s. 10(b)Charter rights at detention, which is why this court, in a previous ruling, found a s. 10(

b) breach was complete. [39] The s. 10(

b) violation could be said, therefore, to have had an impact on Ms. Marchuk with respect to the statement. The impacton the statement was attenuated by the official warning, which she understood, and despite which she answered the officer's question.Her subsequent arrest for possession did arise, however, as a result of her statement. [40] Once arrested for simple possession and while the officer was reading Mr. Klassen's Charter rights from the card, he noticedMs. Marchuk disgorging baggies of what he believed, based on his experience, to be drugs off of her person.

Having made theobservation of the baggies of drugs, the officer arrested both Mr. Klassen and Ms. Marchuk for possession for the purposes oftrafficking, or I would call it the second arrest. [41] Defence essentially argues that the disgorged drugs flow from the s. 10(

b) violation which had led to the first arrest and, assuch, ought to be excluded. While I agree that pursuant to R. v. Bartle, (SCC), [1994] 3 SCR 173, the burden ofpersuasion rests on the Crown to show that Ms. Marchuk would have not acted differently had her s. 10 rights been respected, such as hernot contacting a lawyer even if given full and complete informational component, I do not agree that this principle extends or applies toher disgorging drugs from her person after the arrest for simple possession. The domino effect was broken by Ms. Marchuk's ownactions.

Her disgorging or expelling drugs are instigated by Ms. Marchuk and they do not arise from the officer providing incompleteinformational component of the s. 10(

b) Charter rights. [42] Ms. Marchuk did not testify at the Charter voir dire or the s. 24(2) voir dire. I do not have any evidence from Ms. Marchuk asto why she, on her own accord, disgorged the drugs from her body post the first arrest so as to suggest that the first arrest was being thecause and, hence, why the drugs ought to be excluded. I have no evidence from her as to how her behaviour was impacted by this breach.This evidence could logically only come from Ms.

Marchuk. [43] I cannot speculate that the drugs may have been discovered depending on the original location on her body as a result of a pat-down officer safety search and search incidental to that first arrest. The facts stop short of this ever happening. Ms.

Marchuk was neversearched incident to the first arrest, therefore I do not have any evidence that the drugs would have been discovered because of thesearch pursuant to the arrest for simple possession. [44] It would be speculative and not a logical inference within the facts of this case to link the disgorging of drugs as flowing fromthe simple possession arrest. There could be other reasons, such as Ms. Marchuk being concerned about being arrested for the warrant ifshe knew that the warrant would show as outstanding. She clearly told Cst. Lidstone that this has happened before.

While this may alsobe speculative, it still could be another reason for expelling drugs. Hence, speculation in general as to the reason the drugs weredisgorged will not assist in the analysis without proper evidence. [45] The warrant was showing as outstanding on the police computer system regardless of the fact that later it was found as being nolonger valid. It could further, therefore, follow that as a result of this warrant, Ms.

Marchuk could and would have been arrested and theevidence discoverable at the time pursuant to any search related incidental to that arrest. [46] Therefore, I cannot make a finding that the expelling of drugs results from the breach of s. 10(

b) or the arrest for simplepossession. Likewise, I do not find the arrest pursuant to the warrant to arise from the s. 10(

b) breach. [47] The arrest for possession for the purposes of trafficking was lawful. This arrest was based on the officer seeing the drugsexpelled by Ms. Marchuk on her own accord. The search of Ms. Marchuk's person was done pursuant to that second arrest and hence,lawful. Therefore, as it relates to the impact of the breach on Ms. Marchuk, it favours the exclusion of statement and the admission of thedrugs. Society's Interests in Adjudication on the Merits of this Case

[ 48 ] In this prong of the analysis, one asks whether the truth seeking of the criminal trial process would be better served by the admission of the evidence or by its exclusion: Grant at para. 79 . [ 49 ] The factors to consider, amongst others, are the reliability of the evidence and the importance of the evidence to the Crown's case.

The exclusion of reliable evidence may render the trial unfair from the public perspective and, hence, bringing the administration of justice into disrepute: Grant at para. 81 . [ 50 ] In quoting Brodie at paragraph 142 : A court analysing this factor must be careful not to allow the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis because this would afford less Charter protection to those charged with more serious crimes: Harrison at paras. 34 and 40 . [ 51 ] While the public has the heightened interest in seeing a case adjudicated on its merits, where the offence charge is serious, the public also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. [ 52 ] Sometimes the importance of maintaining Charter standards outweigh the price paid by the society for an acquittal.

Society has an interest in state factors consistently respecting Charter rights regardless of the content. [ 53 ] The fact that the evidence obtained as a result of the Charter breach may facilitate the discovery of the truth, and the adjudication of a case on its merits ought to be weighed against factors pointing to exclusion in order to balance the interest of truth with the integrity of the justice system. [ 54 ] In consideration of all the circumstances of the case, I must then determine whether , on balance , the admission of the evidence obtained by a Charter breach would bring the administration of justice into disrepute. [ 55 ] The statement at the time at which it was advanced by Ms.

Marchuk was not reliable in that , contrary to what she told the officer, she did have drugs on her person and therefore did not want to incriminate herself. The drugs, by contrast, are real evidence and, hence, reliable. [ 56 ] The real evidence obtained is significant to the Crown's case. As per Grant in the s. 24(2) analysis, I am also required to consider whether the admission of any derivative evidence would bring the administration of justice into disrepute.

Real derivative evidence is considered to be reliable and, hence, usually admitted. [ 57 ] Balancing all the factors set out in Grant , I conclude that the repute of the administration of justice is best served by the admission of the drugs and the exclusion of the statement. As such, the drugs will be admitted and the statement will be excluded. (Ruling On Voir Dire Concluded)