R. v. Dayal, 2019 BCPC 43

Citation: R. v. Dayal 2019 BCPC 43 Date: 20190226 File No: 225178-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. SANJIT SINGH DAYAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE M.R. JETTÉ Counsel for the Crown: A. Dorin Counsel for the Defendant: M. Stern Place of Hearing: Surrey , B.C. Dates of Hearing: January 30, 31, 2019 Date of Judgment: February 26, 2019 INTRODUCTION

[ 1 ] Sanjit Singh Dayal is charged with a single count of possessing cocaine for the purpose of trafficking on December the 9 th , 2016 contrary to section 5(2) of the Controlled Drugs and Substances Act . The charge arose from a police initiated investigative detention of Mr. Dayal, a pat down search for officer safety, and his subsequent arrest. All of this occurred as police were about to execute a search warrant at a nearby residence which had been targeted in a month’s long investigation of a dial-a-dope drug line. The search turned up approximately 50 rocks of crack cocaine in the pocket of Mr.

Dayal’s pants. [ 2 ] Mr. Dayal argues that the investigative detention violated his right not to be arbitrarily detained as guaranteed in

section 9 of the Charter of Rights and Freedoms . Because this was a warrantless detention and search, the onus shifts to the Crown to show that the objective facts meet the standard for an investigative detention, that a reasonable person, standing in the shoes of the police officer, would have held a reasonable suspicion that Mr. Dayal was engaged in the criminal activity under investigation, and that the detention was necessary in all of the circumstances: R. v. Chehil , 2013 SCC 49 . [ 3 ] Mr.

Dayal also argues that if I should find that the detention was lawful, he concedes that, in this case, the Crown has established that the pat down search for officer safety which followed his detention was supported by objectively reasonable grounds to believe that the officer’s safety, or that of others, was at risk; a belief based on vaguely expressed concerns or on mere hunch or intuition are not sufficient: R. v. Mann , 2004 SCC 52 at paras. 40 and 45 ; R. v. Crocker , 2009 BCCA 388 at paras. 25 and 66 . Conversely, it is submitted that if I find that the initial detention violated Mr. Dayal’s

section 9 right not to be arbitrarily detained, I must also find that there was no lawful authority for the pat down search which formed the evidentiary underpinning for Sgt. Long’s subjective belief that Mr. Dayal had drugs in his pocket, rendering his subsequent arrest and search incidental to that arrest unlawful, and a breach of

section 8 of the Charter . [ 4 ] Mr. Dayal further submits that even if I find that the detention and search incidental to that detention did not violate sections 8 and 9 of the Charter , the Crown has failed to demonstrate Sgt. Long’s subjective belief that Mr. Dayal had drugs in his pocket was objectively reasonable, with the result that I must still find that the arrest and search breached

section 8 of the Charter . [ 5 ] At the outset of the voir dire , Crown counsel conceded that the arresting officer breached Mr. Dayal’s

section 10(

b) Charter right to retain and instruct counsel without delay; I will not deal with the factual underpinnings for that concession in these reasons.

SUMMARY OF THE EVIDENCE [ 6 ] Sgt. Jill Long was attached to the drug

section of the Delta Police Department for a five-year period ending in May of 2017. Sgt. Long is an experienced drug investigator, and has acquired a detailed understanding of street level dial-a-dope trafficking, including the systems employed by traffickers to resupply traffickers from locations which police commonly refer to as “stash houses” or “stash sites.” [ 7 ] Sgt. Long was the supervisor/team leader of a Delta police investigation of an active dial-a-dope line reported to police by a confidential informant and a retired Delta police member sometime in August of 2016.

I was not told what information the tipsters gave to police. Sgt. Long testified that the goal of the investigation was to locate a stash house or stash site for the drugs, identify which part of a residence is being used in this way (i.e. main level or basement suite), and identify any individuals who have access to that place. This investigation culminated in the execution of a search warrant at a suspected stash house located at the basement suite of 8922 140A Street in Surrey (“the residence”), and the near simultaneous detention and arrest of Mr.

Dayal on the street outside that residence. [ 8 ] The residence first came to the attention of police towards the end of October 2016 (Sgt. Long could not be any more precise about the date) following an undercover drug sale. After that sale the trafficker drove to a parking lot at Bear Creek Park and met briefly with Jasgran Birring, who was there with several unidentified males. Mr. Birring walked over to the driver side window of the trafficker’s vehicle and there was a brief conversation. The trafficker then drove out of the park, and Mr.

Birring, after speaking to one or more of the other males, drove away. [ 9 ] Police surveillance followed Mr. Birring to 8922 140A Street. The home is located approximately two thirds of the way down the right side of a long cul-de-sac. Sgt. Long testified that police observed Mr. Birring enter the residence, but she did not say which part of the home he entered. Sgt. Long also testified that police were aware that a number of homes in this area have basement suites. [ 10 ] Sgt. Long also testified about another encounter between Mr. Birring and one of the street level traffickers working for this drug line.

On this occasion the trafficker sold drugs to Sgt. Long who was playing the role of a drug purchaser. At the conclusion of that sale the trafficker told her that he needed to reload, which she understood to mean that he was running low on product and needed to obtain more. Following that meeting the trafficker was observed meeting with Mr. Birring. Sgt. Long did not explain where that meeting took place, and she could not provide the date, nor did she describe what happened at that meeting.

In particular, I was not told of any interaction between the two that might have been consistent with an exchange or transaction. [ 11 ] Sgt. Long testified that the residence was placed under surveillance over the course of nine days including December 9, when Mr. Dayal was arrested and the warrant was executed. She was doing static surveillance there on November 9, 2016 when she observed a dark blue BMW drive into the cul-de-sac and park a few houses away from the residence. She observed a male, who she was later able to identify as Mr.

Dayal, get out of his vehicle and walk towards the front door of the residence, then out of view. About four minutes later Mr. Dayal returned to his vehicle and drove away. Mr. Dayal was not carrying anything, and Sgt. Long was not able to determine whether he entered the house at any point. There is no evidence before me that Mr. Birring or any vehicle associated to him was observed at or near the residence at this time, or that Mr. Dayal met with anyone while he was in the area. [ 12 ] Sgt. Long testified that Mr.

Dayal or his vehicle were observed “at the residence” on six of the nine days when police were conducting surveillance there. The only specific date she could recall, and not perfectly, was November 24. She did not explain what “at the residence” meant with one exception; she testified that on one occasion (she did not offer a date) Mr. Dayal was observed accessing the door to a basement suite, and that he just walked right in. Sgt. Long did not clarify whether she or someone else from her unit made that observation.

I was not told anything of the layout of this residence, or why she believed that this particular door at the back of the house was believed to be the entrance to a basement suite.

[ 13 ] The 9 th of December was the day planned for the execution of a warrant at the basement suite of the residence. Sgt. Long was part of a surveillance unit that observed Mr. Birring drive from his residence to a meeting with someone in another vehicle at Bear Creek Park at about 10:30 that morning. She testified that she observed what she believed to have been a transaction between Mr. Birring and the other driver through the window of one of the two vehicles. The other driver and Mr. Birring then performed a “fist bump”, and both vehicles drove away. Sgt.

Long did not provide any descriptive details of what she reported as a transaction or exchange, nor did she explain why she believed that this was what she had observed. [ 14 ] After Mr. Birring and the other driver left the park, other members of Sgt. Long’s unit performed traffic stops of both vehicles. I was not told whether anything material to this investigation was discovered as a result of those traffic stops. [ 15 ] Sgt. Long returned to the residence to wait for the Emergency Response Team (“ERT”) which was slated to make the initial entry at the basement suite. During that drive, Mr.

Dayal’s BMW passed her police vehicle and turned into the cul-de-sac. She pulled in after the BMW and saw that it had already been parked on the street a few properties before the residence. A number of large unmarked military style ERT vehicles were parked directly in front of the residence. Sgt. Long watched as Mr. Dayal got out of his vehicle and began to walk away from the residence as he was looking back towards the ERT vehicles; she parked a few car lengths behind the BMW. [ 16 ] Sgt. Long got out, showed her police badge, announced that she was police and told Mr.

Dayal to stop; he complied with that direction. She noticed that he was carrying a cell phone and car keys; she removed those items and handed them to Constable Fiddick, who was also in the area. She directed that he put his hands behind his back, placed him in handcuffs, and told him that he was being detained for the offence of possession for the purpose of trafficking (“PPT”). Sgt. Long conceded that at this point she lacked reasonable and probable grounds to make an arrest. [ 17 ] Sgt. Long agreed in cross-examination that when Mr.

Dayal was first detained, she had no idea whether anything material to their investigation had been located in the basement suite. She offered that drugs located in that suite would have elevated her suspicion to the level of reasonable and probable grounds to arrest Mr. Dayal for PPT. [ 18 ] Sgt. Long’s justification for the initial detention was based on the following: She initially testified that she believed Mr.

Dayal had knowledge of drug trafficking at the residence because he or his vehicle had been observed there or in the area a number of times, including the one occasion when he walked in through a back door, and that she believed the drug line was being reloaded from there. Later in her evidence in chief, Sgt. Long added that she also believed that Mr. Dayal was Mr. Birring’s superior in this drug organization, and that Mr. Dayal was reloading Mr. Birring, who was in turn reloading the street level traffickers. She appears to have arrived at this conclusion in part because Mr.

Dayal made brief stops at or near the residence and was not observed carrying anything. She also noted that it was a concern to her that a person she believed to have had this connection to the target residence might put members of the ERT and/or the public at risk. [ 19 ] Sgt. Long commenced a pat down search of Mr. Dayal for officer safety. Her justification for handcuffing Mr. Dayal and conducting the search was her belief that this group of drug traffickers were engaged in violent offences, including assaults, extortions, kidnappings and shootings, so she was concerned that Mr. Dayal might have a weapon.

She did not refer to any notes, reports or personal knowledge to support this belief. During cross-examination she conceded that although she was aware that Mr. Dayal had “negative police contacts”, she could not say what that meant, and could not recall what she knew about that at the time of the detention and search. With respect to her assertion that individuals connected to the drug line had engaged in violent conduct, she testified that currently she could not offer specifics and “could only speak in generalities”, but she knew more about these things at the time of Mr. Dayal’s detention.

She could not say which individuals in the group were believed to have been involved in violent offending. [ 20 ] Sgt. Long’s pat down search started at Mr. Dayal’s waistband, continued down his right leg to his ankle, then back up his left leg starting at the ankle. During the course of a two-second search over top of one of Mr. Dayal’s pockets, she felt two objects which she initially described as bulges or balls.

She testified that these objects were not soft but jagged, which in her experience was consistent with rock or crack cocaine packaged for dial-a-dope sales, and that they were held or contained in a “dialer bag.” She was 100% sure that these objects were drugs. Sgt. Long testified that she then formed the belief that Mr. Dayal had drugs in his pocket, and concluded, in her mind at least, that the detention had become a de facto arrest. She reached into his pocket, pulled out the drugs and placed Mr. Dayal under arrest for PPT, following which she read to him Charter of Rights warnings from a card.

She testified that the entire encounter lasted for some 20-30 seconds. [ 21 ] While I was told that a warrant had been issued to search the basement suite at the residence, the evidence which was presented in support of that warrant is not part of the record before me. As a result I was not given a complete picture, or even an executive

summary, of the evidence police relied on when applying for a warrant to search the basement suite of the residence. THE INVESTIGATIVE DETENTION i. Legal Principles [ 22 ] In R. v. Mann , supra , the Supreme Court of Canada laid down the ground rules for investigative detentions short of arrest. The court held that investigative detentions must be premised upon reasonable grounds, and that the detention must be viewed as reasonably necessary on an objective view of the circumstances.

The officer must reasonably suspect “that there is a clear nexus between the individual to be detained and a recent or ongoing criminal offence… (and) that the individual is implicated in the criminal activity under investigation.” R. v. Mann , supra , at para. 34 ; R. v. Chehil , 2013 SCC 49 at para. 29 .

The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference… Mann , supra , at para. 34 .

[ 23 ] Reasonable suspicion, like reasonable grounds, must be grounded in objective facts, but reasonable suspicion is a lower standard which engages the reasonable possibility, rather than probability, that a crime has been or is being committed, and that a particular individual is implicated in that criminal activity: R. v.

Chehil , supra , at paras. 27 and 32 . …the analysis must remain focused on one central question: Is the totality of the circumstances, including the specific characteristics of the suspect, the contextual factors, and the offence suspected, sufficient to reach the threshold of reasonable suspicion? Chehil , supra , at para. 39 . [ 24 ] The cumulative effect of the evidence is taken into account when determining whether there are reasonable grounds to detain or arrest. The reviewing court must not engage in a piecemeal analysis of the evidence.

Rather, the court is to weigh and consider the totality of the circumstances viewed through the lens of a police officer experienced in these types of investigations : R. v. Luong, supra , at para. 17; R. v. Basanez , 2017 ABCA 70 at para. 28 ; and R. v. Ashby , 2013 BCCA 334 at para. 57 . [ 25 ] It is also important for the reviewing judge to keep in mind that in assessing the totality of the circumstances, the court cannot disregard exculpatory, neutral, or equivocal information; this evidence must also be weighed in arriving at a conclusion regarding reasonable suspicion: R. v.

Chehil , supra , at para. 33 . [ 26 ] In reviewing grounds for an investigative detention or grounds for arrest, I must act judicially based on my assessment of the evidence. Bare assertions and conclusory statements not supported by evidence may leave me unable to determine whether there were objectively reasonable grounds to support a detention or arrest. ii. Analysis [ 27 ] Here the question to be decided is this: When she initiated her investigative detention of Mr. Dayal, did Sgt. Long reasonably suspect that there was a clear nexus between Mr.

Dayal and a recent or ongoing criminal offence, and that he was implicated in the criminal activity under investigation? [ 28 ] Sgt. Long explained that the goals of the investigation were to locate a place being used as a stash site for drugs and cash, and to identify the persons responsible for that end of the operation. In fact, she testified that these goals became the focal point of the investigation. If that location was a residence, police would seek to identify the specific area or areas in the residence being used in this way. Sgt.

Long said that she was aware that many houses have basement suites and other entrances, which I took to be her acknowledgment that there might be more than one resident or tenant occupying separate areas of a house located on a single property. What flows naturally from this proposition is that mere attendance at or near a suspected stash site would not by itself establish complicity in drug activity there. [ 29 ] To paraphrase the language of the court in R. v. Mann , supra , the ongoing criminal offence and the criminal activity under investigation when Sgt. Long detained Mr. Dayal, was the belief that Mr.

Birring was living at or resorting to the basement suite of the residence, that drugs were being “stashed” there, and that Mr. Birring was using those drugs to reload street level traffickers who were attached to a specific drug line. It is only in this way that Mr. Dayal’s visits to the residence could ever be said to implicate him in a drug trafficking offence. Absent sufficient evidentiary support for those core elements, it is my view that the Crown will have failed to establish that Sgt. Long’s decision to detain Mr.

Dayal was objectively reasonable in all of the circumstances. [ 30 ] The evidence before me which I find might be capable of providing some support for these core elements is the following: 1. The undercover purchase made by Sgt. Long, where the trafficker indicated that he needed to “reload”, which Sgt. Long understood to mean that he was running low on product (drugs) and needed to obtain a new supply. The trafficker left the area and met with Jasgran Birring. I was not told anything about where that meeting took place, or the nature of the interaction between Mr. Birring and the trafficker at that meeting. 2.

On another occasion (I was not given a specific date), a trafficker completed a sale to an undercover officer, then met with Mr. Birring at a parking lot in Bear Creek Park. Mr. Birring was in the company of a few unidentified males. Mr. Birring got out of his vehicle and walked to the trafficker’s driver side window. There was a short conversation, then the trafficker drove out of the park. After the trafficker left, Mr. Birring spoke to the other males, then drove away. 3. Police surveillance followed Mr. Birring from the Bear Creek Park meeting to the residence. I was told only that Mr.

Birring was observed entering the residence, but was given no further details. 4. On December 9, after police had obtained a warrant to search at the basement suite of the residence but before that warrant was executed, Sgt. Long participated in the surveillance of Mr. Birring. He was observed driving to Bear Creek Park, where he met with the driver of a second vehicle. Sgt. Long testified that she observed what she believed was an exchange between the two of them, followed by a “fist bump”. Sgt. Long did not explain why she believed that this was an exchange.

Both vehicles departed from the park and were stopped by other members of the drug unit. I was not told what if anything came out of those traffic stops. It was not asserted that the male in the other vehicle was someone who was in some way or another connected to the business of the particular drug line that was the subject of the investigation. [ 31 ] What is obviously lacking in this review is any indication that Mr. Birring was reloading the drug line.

I was not told of any activity at the residence which is or might possibly be consistent with that location, or some part of it, being employed as a stash site. The meetings between Mr. Birring and others which were observed are equally as consistent with Mr. Birring being a drug purchaser himself. Even the comment made by the one trafficker that he needed to “reload” (which preceded one of the meetings at Bear Creek Park) was understood by Sgt. Long to mean that he was running low on product, not that he had run out.

The “exchange” on December 9 was not described sufficiently for me to determine whether anything that happened there might be consistent with the police theory that Mr. Birring was reloading street level dealers, although it is clear that this is what Sgt. Long assumed was happening based on her settled view of Mr. Birring. There was no exchange observed at all during the earlier meetings, one of which caused police to begin static

surveillance at the residence. [32] This evidence was then bootstrapped to the surveillance of Mr. Dayal or his vehicle at or around the residence on six occasionsup to and including his detention on December 9. I find that Sgt. Long, acting on her belief that the residence was being used as a stashhouse and that Mr. Birring was implicated in that activity, interpreted the evidence connecting Mr. Dayal to that place through that singlelens. [33] The surveillance of Mr. Dayal was also employed to reinforce the narrative that the residence was being used as a stash site. Sgt.

Long’s evidence in this regard displayed the logical fallacy of proceeding in this way. Because she believed that the residence was astash site without regard to innocent explanations or inferences which might reasonably arise from police observations over the course ofthe investigation, all of Mr. Dayal’s visits there or near there were automatically assumed to have been in furtherance of that conduct. [34] Sgt. Long traveled further down this path of reasoning, and offered her opinion that Mr. Dayal was in fact Mr.

Birring’ssuperior in this drug organization, and that his visits were to provide additional drugs to be stored at the stash site which would in turn beused by Mr. Birring to reload the street level dealers. There is simply no evidence in the record before me to support this opinion. Remarkably, Sgt. Long herself supports this belief, at least in part, with the observation that although Mr. Dayal was never observedcarrying anything into the residence, she believes that drugs are often carried and concealed in hoodies or hoodie pockets.

Taking thisapproach to its logical conclusion, hauling a box or package or bag into a place would be as indicative of drug trafficking as carryingnothing at all. This strikes me as the sort of jaded circular reasoning which was the subject of comment in R. v. Nguyen et al., 2014BCPC 195 at para. 26: …what must be remembered is that when the cases refer to a “reasonable person, standing in the shoes of a police officer”, they are notreferring to a police officer who holds an inappropriately or overly jaundiced view of the vast breadth of behavior that innocent civiliansengage in on a daily basis.

It cannot mean an officer whose observations of everyday actions are made through such a distorted lens thatotherwise ubiquitous and omnipresent factors and activity are precipitously suspected to be criminal. [35] The observations of Mr. Dayal at the residence also lack the specificity required to support a reasonable suspicion that Mr.Dayal was engaged in drug activity there, even if I were to accept that there is before me a sufficient evidentiary underpinning for thepolice theory that this basement suite was a stash site, and that Mr. Birring was involved in that. [36] For example, Sgt.

Long was unable to articulate with any sort of precision the nature of the observations of Mr. Dayal or hisvehicle at or around the residence. She referred to six sightings, only two of which were of Mr. Dayal himself. On one of thoseoccasions, which may have been November 24, he was seen to enter at the rear of the residence, which Sgt. Long described as entry tothe basement suite. There is no evidence before me to support her assertion that Mr. Dayal entered a basement suite. The otherobservation of Mr.

Dayal was on November 9, when he walked up the driveway, was lost to surveillance, and then returned to hisvehicle four minutes later. Police cannot say if he entered the residence, whether front or rear, up or down. [37] With respect to the other four observations, Sgt. Long could not say if it was Mr. Dayal or just his vehicle observed at or nearthe residence. She did not provide dates or the time of day when those observations were made. She could not tell me where specificallyMr. Dayal was observed, whether he met with anyone, or where his car was parked. There is no evidence that Mr. Dayal ever met withMr.

Birring. She had no information, documentation or records indicating that Mr. Dayal was, or was not, connected to that residence orits basement suite in any other way. The possibility that Mr. Dayal merely resided in the upstairs portion of the home, or was associatedto someone else who lived there, was not something that appears to have entered into Sgt. Long’s thinking. I find I cannot exclude as areasonable possibility that Mr. Dayal may have been residing in the main living area of the house, or was somehow connected to one ormore persons there. [38] The only other observation of Mr.

Dayal in the area of the residence was on December 9, when Sgt. Long followed him into thecul-de-sac. Mr. Dayal parked several properties away from the front of the residence, and was walking away from it while looking backtowards the ERT vehicles when Sgt. Long initiated the investigative detention. I do not find that these observations strengthen in anyway, or cast in a new light, the earlier observations of Mr. Dayal at the residence, such as they were. [39] I have concluded that although Sgt.

Long herself believed that the basement suite of the residence was being employed as astash site for the drug line and that Mr. Birring was reloading the street level traffickers, the Crown has failed to establish that her beliefwas objectively reasonable. Given the unusual circumstances here, I have purposely not described the standard as either reasonable andprobable grounds or reasonable suspicion. I do find, however, that applying either standard, the evidence falls short. [40] Dealing with Mr. Dayal specifically, I find that Sgt.

Long’s suspicion that he was implicated in the offence of drug traffickingwas not objectively reasonable. I do so on alternative grounds: (1) the evidence falls short of establishing objectively reasonable groundsto believe that the basement suite was a stash house, and that Mr. Birring was reloading the drug line; or (2) even if I should find that Sgt.Long had objectively reasonable grounds to believe that Mr. Birring was reloading from the residence, the observations of Mr. Dayalsummarized in these reasons do not provide objectively reasonable grounds to suspect that Mr.

Dayal was implicated in that activity. [41] In the result, I find that Mr. Dayal’s

section 9 Charter right was breached when he was detained and searched by Sgt. Long. GROUNDS FOR ARREST i. Legal Principles [42] Section 495(1)(

a) of the Criminal Code empowers a peace officer to arrest where he or she has reasonable and probablegrounds to believe that the person has committed or is about to commit an indictable offence. For the warrantless arrest to be valid, theofficer’s subjective grounds to arrest must be objectively reasonable. The court reviewing the sufficiency of the grounds asks whether areasonable person, standing in the shoes of the police officer, would believe that reasonable and probable grounds existed to make thearrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 at para. 17.

[43] Reasonable and probable grounds to arrest arise where credibly-based probability replaces mere suspicion that a person hascommitted or is about to commit a criminal offence: Hunter et al. v. Southam Inc., (SCC), [1984] 2 S.C.R. 145. [44] In R. v.

Luong, 2010 BCCA 158, the Court of Appeal commented on how the experience and training of the arresting officerfactors into the court’s task of determining whether there were objectively reasonable grounds to make an arrest: [24] The assessment of whether objective grounds exist undertaken by a trial judge is conducted by first looking at the observationsof the officer (which the trial judge has found as facts) through the lens of someone who has the same experience, training, knowledgeand skills as the officer who is making the observations, and then deciding if a reasonable person with the same lens would come to thesame conclusion as the police officer.

See also R. v. Wilson, 2012 BCCA 517 at para. 21; R. v. Messina, 2013 BCCA 499 at para. 24. [45] Commenting on the test for review of investigative detentions, the Ontario Court of Appeal cautioned that “a hunch basedentirely on intuition gained by experience cannot suffice”, no matter how accurate that hunch might prove to be: R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 at page 501. Where the issue is grounds to arrest, mere suspicion that an offence isbeing committed is not enough. [46] In this case, Sgt. Long did not tell Mr. Dayal that he was under arrest before removing the objects from his pocket.

She hastestified that she formed reasonable and probable grounds to make a drug arrest based on what she felt in that pocket during the aboveclothing pat down search. There is no question that where a police officer has formed reasonable and probable grounds to arrest adetainee, a search incident to arrest may be conducted prior to the arrest itself: R. v. Parchment, 2005 BCSC 1871 at para. 38; affirmed2007 BCCA 326 at para. 38. [47] It is my task on review to determine whether, in the totality of the circumstances, the grounds relied upon by Sgt. Long toremove the objects from Mr.

Dayal’s pocket and execute an arrest were objectively reasonable. ii. Analysis [48] I will approach this issue in two ways. [49] First, having found that Sgt. Long’s initial investigative detention of Mr. Dayal was not supported by objectively reasonablegrounds to suspect that he was part of or somehow complicit in a drug trafficking operation at the residence, I find that the subsequentsearch incidental to that detention was also unlawful and constituted a breach of

section 8 of the Charter. It was the search over clothingwhich purports to have provided Sgt. Long’s reasonable grounds to transform the detention into an arrest. Sgt. Long agreed in cross-examination that without the fruits of that search, she lacked grounds to arrest Mr. Dayal. Excluding from my consideration theunlawfully acquired fruits of that search, there are no longer objectively reasonable grounds to support the arrest of Mr. Dayal. [50] Second, even if I am wrong in my finding that the detention and search incident to that detention were unlawful, I find that Sgt.Long’s search of Mr.

Dayal’s pockets over clothing did not provide objectively reasonable grounds to arrest him for a drug traffickingoffence. This was a pat down search of approximately two seconds duration. Sgt. Long could not say what type of pants Mr. Dayal waswearing, or the material they were made of. She could not recall if she was or was not wearing gloves; if she had been wearing gloves,there would have been an additional barrier between her hands and the objects inside Mr. Dayal’s pocket. While I accept that Sgt.

Longis an experienced drug investigator, I do not find her assertion that she was 100% certain that these were drugs is objectively reasonablein the circumstances of a two-second pat down search over clothing, from which she claimed she was able to identify not only that theobjects were crack or rock cocaine, but also that they were wrapped for resale and stored inside a dialer bag. [51] While I appreciate that the evidence will be different and often distinguishable when looking at other cases which have dealtwith these issues, I am inclined to see this case as being similar to aspects of the evidence in R. v.

Ko, 2011 BCSC 1123, where JusticeDavies made the following observation when reviewing a decision to arrest for drug offences in that case: [73] Concerning that matter I am, however, compelled to say that I cannot accept Officer Merriott’s assertion that he could, in lessthan one second through at least two layers of clothing, detect not only the quantities of rock cocaine and heroin but also determine thatthe drugs were “powdered” and packaged for re-sale. [52] I find that the Crown has failed to show that the pat down search produced objectively reasonable grounds to arrest Mr.

Dayalfor drug offences, and that his subsequent arrest breached

section 8 of the Charter. APPLICATION OF SECTION 24(2) [53] The parties have scheduled court time for submissions regarding the application of section 24(2) of the Charter to the breachesof 8 and 9, together with the

section 10(

b) breach conceded by Crown counsel. ____________________________ The Honourable Judge M.R. Jetté Provincial Court of British Columbia