R. v. Yang Date:, 2016 BCPC 164

Citation: R. v. Yang Date: 20160606 2016 BCPC 0164 File No: 233226-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. WEI CHANG YANG RULING ON VOIR DIRE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: T.C. Johnson; H. Magnin Counsel for the Defendant: C.S. Johnson Place of Hearing: Vancouver , B.C. Dates of Hearing: Mar. 29 & 30; Apr. 29; May 27, 2016 Date of Judgment: June 6, 2016

Introduction [ 1 ] On August 14 th , 2013, the accused was arrested and his vehicle was searched incidental to the arrest. During the search, the police located sixty pounds of marihuana in bags that were in the trunk. The accused alleges the arresting officers lacked the requisite reasonable and probable grounds necessary to affect the arrest and therefore violated his s. 9 Charter rights and his rights pursuant to s. 8. Background [ 2 ] Between 2010 and 2013, the RCMP began an investigation into the importation of the precursors necessary to manufacture drugs, as well as, the trafficking of marihuana.

The investigation was called Project E - Nametode. During the investigation the police relied on informant information and surveillance observations. [ 3 ] One of the officers involved was Cpl. Choy. His involvement included being the affiant, conducting surveillance and assuming the role of primary investigator. [ 4 ] Cpl. Choy has been an RCMP officer for 13½ years. He spent 3½ years working in drug enforcement where he was involved in the investigation of, mid to low level marihuana dealers, and as such he has seen multiple drug transactions. Between 2009 - 2013, Cpl.

Choy worked with the Border Integrity Waterfront Joint Forces Unit and he has experience handling confidential informants. [ 5 ] With respect to the instant matter, confidential informant information was received indicating that, Steven Chow was importing chemical precursors into Canada and that the accused was his partner. Information also indicated they were involved in marihuana trafficking.

As for the reliability of the informant, he/she had been previously used by the RCMP and the information was reliable. [ 6 ] During Project E- Nametode the police conducted 32 days of surveillance wherein the accused was observed meeting and exchanging bags with people. On occasion people would come to the accused’s residence, enter for a short period of time and leave carrying a bag. Some of the observations made include: February 15, 2012, the police saw the accused meet Mr. Dee Tran and give him a bag containing $5, 000 comprised of ten dollar bills.

November 1, 2012, Steven Chow was followed to the accused’s residence. When Mr. Chow arrived the accused was waiting outside holding a fabric bag. The bag was put into the trunk of Mr. Chow’s vehicle who then drove away and took the bag to a restaurant in Vancouver. November 14, 2012, an unknown male arrived at the accused’s residence. The male exited the residence carrying a blue bag. This bag was placed into the male’s trunk and the male drove away. April 23, 2013, the accused went into a business in Vancouver. He exited a short time later and went to his vehicle where he removed a bag.

He then walked to a parked vehicle and gave the bag to an unknown occupant of the vehicle. Later the same day, the accused travelled to large parking lot and he met an unknown male. The accused gave the male something small who then placed a pink bag into the trunk of the accused’s vehicle. April 29, 2013, an unknown male met with the accused in his driveway. The unknown male had a plastic bag which was the size of medium Kleenex box. The two looked in the bag and entered the accused’s home. The unknown male left a few minutes later without the plastic bag and carrying a brown fabric type bag.

April 30, 2013, the accused met a person in the 2800 block of East 49 th Avenue. This person gave the accused a manila envelope. Later in the day unknown persons attended at the accused’s residence where he and two others look at paper work. Further, in the early evening of the same day, a vehicle arrived at the accused’s residence and the driver delivered to the accused a fabric bag that looked similar to the one used on the 29 th of April. During the surveillance the accused was seen entering a licensed medicinal marihuana grow operations on Brooks Street in Vancouver, and one on Randolph Street in Burnaby.

With respect to the Brooks Street location, the accused was observed entering the residence on 7 occasions and on one occasion he drove up to the property and left without entering. As for the Randolph Street location, the accused went there on two occasions. Further, cars associated to this address were seen at the accused’s residence.

May 14, 2013, a vehicle from the Randolph Street residence went to the accused’s residence. The occupants of the vehicle unload boxes from their vehicle and put them inside the accused’s residence. The persons then left the residence and loaded a box into their vehicle. The vehicle was stopped and inside the box were 10 tin foil bags that smelled of marihuana. The operator of the vehicle was associated to a medicinal marihuana grow licence as well as a transport permit. May 28, 2013, a vehicle from the Randolph Street residence arrived at the accused’s residence.

The accused’s vehicle was driven out of the garage and the Randolph street vehicle was backed into the garage. May 29, 2013, the accused drove a blue van from his residence to the Randolph Street residence. He entered the residence and remained for about an hour. He is then observed watching unknown males load two boxes into a vehicle. The accused then entered this vehicle and he is driven back to his residence. Later in the day, the accused is observed making a hand to hand transaction in the rear lane of the 2800 block East 49 th Avenue.

August 14, 2013, the accused was followed from his residence into Vancouver where he got out of his car and entered a Honda van. He remained in the van for several minutes. He then exited and went to a second floor business on Victoria Drive. The accused then went to a parking lot where he met a male in the far corner of the lot. The accused then walked back through the lot and entered the front passenger’s seat of a vehicle. The male that he had just met entered the driver’s seat of the same vehicle. A member of the surveillance team then saw the accused looking into a bag containing marihuana.

The accused then left and met with Mr. Chow. After a brief conversation, the accused drove to an alley near 41 st and Victoria Drive where he parked next to a white Cadillac. Four large black bags were taken from the trunk of the Cadillac and placed into the trunk of the accused’s vehicle. The accused then drove away. The arrest [ 7 ] Based on all of the circumstances Cpl. Choy gave the instruction that the accused was to be stopped and arrested. When questioned as to his basis for having the accused arrested, Cpl.

Choy highlighted the following: the accused’s attendance at the residences on Randolph and Brooks, the source information that had been received, the number of times the accused met with people and exchanged items, the bags leaving the accused’s home and the events on the 14 th wherein Cpl. Choy believed the accused looked at a small sample of marihuana, met with his partner, Mr. Chow and then after all was agreed upon, he received the four large bags of the marihuana. [ 8 ] Cpl. Duffy testified about the stop and the arrest of the accused. Cpl. Duffy was a member of the team assigned to Project E - Nematode.

On the date of the arrest he was aware of the surveillance observations and the informant information outlined above. [ 9 ] On August 14 th , 2013, Cpl. Duffy was instructed by Cpl. Choy to stop and arrest the accused. Cpl. Duffy, who was driving an unmarked police unit, pulled in behind the accused and activated his emergency lights. The accused pulled to the curb and stopped. [ 10 ] Once at the curb the accused got out of his vehicle. Cpl. Duffy stopped behind and exited his vehicle. He told the accused that he was the police and to get back in his vehicle. Cpl.

Duffy did this as the amount of traffic caused him to be concerned for the safety of the accused. [ 11 ] The accused complied with Cpl. Duffy’s direction. Cpl. Duffy then moved towards the accused’s vehicle and as he did so he could smell a strong odor of marihuana. Upon reaching the accused’s window Cpl. Duffy showed the accused his police identification and arrested the accused for possession for the purposes of trafficking. The accused’s vehicle was searched and the police found 60 pounds of marihuana concealed inside the four bags. [ 12 ] When questioned about his grounds for arrest, Cpl.

Duffy outlined that it was the totality of all of the circumstances as set out above. He indicated that, even if he had not smelled the marihuana that he would have arrested the accused. In other words, regardless of the smell of marihuana, he felt reasonable and probable grounds existed to justify the arrest. [ 13 ] With respect to Cpl. Duffy’s experience, he started his policing career in 2003. He worked for several years in general duty and general investigations. He worked for a year in Criminal Intelligence and in 2011 he started working with the Waterfront Joint Forces Operations.

He has been involved in approximately 50 marihuana drug investigations and he has performed approximately 10 investigations involving the possession and trafficking of cocaine. [ 14 ] In addition to his operational experience, Cpl. Duffy has spoken to experienced members about marihuana and he has learned about the cultivation and the trafficking of marihuana through informant information. Cpl. Duffy is able to distinguish between the odor of fresh marihuana versus dried marihuana. Position of the parties

[15] The accused argues the police lacked objectively reasonable grounds to believe that the accused was involved in thecommission of a drug offence. The accused asserts that many of his activities were equally consistent with a person lawfully attending atand working at a medicinal grow operation.

The defence concedes that the events of August 14, 2013, at their best, may supportreasonable grounds to detain, but not to arrest. [16] The Crown argues the totality of the evidence in conjunction with the officer’s experience supports a subjective belief that theaccused was committing an offence and that the subjective belief is objectively reasonable in all of the circumstances. [17] The Crown points out the officers do not need a prima facie case before they can arrest and that all of the information possessedby the officers must be accessed through the eyes of experienced police officers.

Finally, the Crown cautions against speculating withrespect to alternative explanations for individual observations, rather, all of the information must be considered collectively. The law [18]

Section 9 of the Charter provides that, a person has the right not to be arbitrarily detained or imprisoned. The law is clear thatbefore the police can make a warrantless arrest they must have reasonable and probable grounds to believe that the person has committeda crime. This requires a subjective belief that is objectively reasonable: see R. v. Storrey, (SCC), [1990] 1 S.C.R. 241. R. v. Montgomery, 2009 BCCA 41 at paragraph 24. [19] At para. 17 of Storrey, Mr. Justice Cory commented on the reasonable grounds to arrest: In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. Onthe other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically they are not requiredto establish a prima facie case for conviction before making the arrest. [20] In R. v.

Luong, 2010 BCCA 158, Madam Justice Bennett discussed the assessment of whether objective grounds exist, and atpara. 24 comments: [24] The assessment of whether objective grounds exist undertaken by a trial judge is conducted by first looking at the observations ofthe officer (which the trial judge has found as facts) through the lens of someone who has the same experience, training, knowledge andskills as the officer who is making the observations, and then deciding if a reasonable person with the same lens would come to the sameconclusion as the police officer.

This, in my view, is what the Court was referring to in Kang-Brown, supra. There is no need to call anindependent expert to testify. Such evidence would not be admissible as it is irrelevant. It is the arresting officer's lens which is key tothe assessment of reasonable grounds. The reasonable grounds standard is less than the civil standard of proof: R. v. Debot, (SCC), [1989] 2 S.C.R. 1140. [21]

Section 8 of the Charter provides that, everyone has the right to be secure against unreasonable search or seizure. A warrantlesssearch is prima facie unreasonable. This presumption maybe displaced if the search is authorized by law, the law itself is reasonable andthe search is conducted in a reasonable manner: Hunter v. Southam Inc., [1994] 2 S.C.R. 145, R. v. Caslake, (SCC),[1998] 1 S.C.R. 51. [22] The common law authorizes searches incidental to arrest.

The power to search incidental to an arrest requires the search to betruly incidental in that the search is for evidence, weapons or tools for escape. [23] If it is found that an arrest was done without reasonable and probable grounds then the search incidental to the arrest will beunreasonable. This relationship between an arrest and a search incidental to the arrest was commented on by Lamer C.J., in Caslake,supra, at paragraph 13: In this case, the Crown is relying on the common law power of search incident to arrest to provide the legal authority for the search.

InCloutier, supra, my colleague L'Heureux-Dubé J. (for a unanimous Court) discussed this power in detail. She held that it is an exceptionto the ordinary requirements for a reasonable search (articulated in Hunter, supra) in that it requires neither a warrant nor independentreasonable and probable grounds. Rather, the right to search arises from the fact of the arrest. This is justifiable because the arrest itselfrequires reasonable and probable grounds (under s. 494 of the Code) or an arrest warrant (under s. 495).

However, since the legality ofthe search is derived from the legality of arrest, if the arrest is later found to be invalid, the search will be also. As Cory J. stated in R. v.Stillman, (SCC), [1997] 1 S.C.R. 607, at para. 27, "[n]o search, no matter how reasonable, may be upheld under thiscommon law power [of search incident to arrest] where the arrest which gave rise to it was arbitrary or otherwise unlawful." Analysis [24] Cpl. Choy and Cpl. Duffy are experienced police officers who have conducted drug investigations. Significantly, Cpl. Choyspent 3 ½ years working in drug enforcement.

Also of significance is Cpl. Duffy’s ability to distinguish the odor of marihuana. [25] Against this backdrop, when the accused was arrested the officers were aware of several meetings and exchanges involving the

accused and unknown persons. Some of the meetings were on the street whereas some were at his residence. They were also aware that the accused, who did not have a medicinal licence, had been attending licensed marihuana grows and that boxes from one of the locations were taken to his residence. [ 26 ] Additionally, the officers had received reliable, but general informant information that the accused was involved in drug trafficking with Mr. Chow. On the date of the accused’s arrest he had been observed making a meet in a parking lot where he appeared to examine a bag of marihuana.

Shortly thereafter he met with Mr. Chow and almost immediately thereafter he met with an unknown person and four large plastic bags were loaded into his vehicle. [ 27 ] The totality of the information and the observations caused the officers to believe that the accused was in possession of marihuana for the purposes of trafficking. I accept the officer’s subjective belief and when it is considered in the context of their experience and knowledge, I find their belief was objectively reasonable.

Accordingly, I find the accused has failed to satisfy the court that his rights pursuant to s. 9 of the Charter were violated. [ 28 ] Given this court’s finding on the arrest of the accused, I find the search incidental to his arrest was reasonable and not a violation of his s. 8 Charter protected rights. _____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia