R. v. Stoney, 2020 BCPC 8

Citation: R. v. Stoney 2020 BCPC 8 Date: 20200123 File No: 233903-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. EVANTEE STONEY RULING ON VOIR DIRE OF THE HONOURABLE JUDGE E. GORDON Counsel for the Crown: S. Charles Counsel for the Defendant: V. Hartney Place of Hearing: Vancouver , B.C. Dates of Hearing: Dec. 12, 13, 14, 2018; Jan. 14, 18, 29, Feb. 4, May 22, 27, 28, June 24, 25, July 19, 22, 26, Sept. 3, Oct. 22, Dec. 10, 2019; Jan. 2, 2020 Date of Judgment: January 23, 2020 [ 1 ] Evantee Stoney is before the Court on a charge of Possession of Cocaine for the Purpose of Trafficking. The trial has

proceeded as a voir dire into the admissibility of the evidence (Cocaine) seized from him. He alleged that his rights pursuant to ss. 8, 9 and 10 of the Charter had been violated. On July 26, 2019, I ruled, somewhat regretfully, that the investigating officers had not violated ss. 8 and 9 because the stop of the vehicle in which Mr. Stoney was a passenger had been a dual purpose stop. The police were entitled to stop the vehicle under The Motor Vehicle Act once it was seen to have turned right without signalling. [ 2 ] I did, however, rule that Mr. Stoney’s rights pursuant to s. 10 were violated.

First when Constable Quach delayed advising him of his legal rights once she had detained him and decided to arrest him. [ 3 ] Second, once Constable Quach did apprise Mr. Stoney of his rights and he indicated that he wished to exercise his right to counsel, Constable Quach did not provide him with an opportunity to do so and instead elected to continue questioning him. [ 4 ] Third, while it was not raised in argument before the Court in July, it has become an issue since; whether the investigating officers were derelict in their duty to Mr.

Stoney by failing to personally ensure that he contacted counsel. [ 5 ] The issue before the Court today is whether, as a result of the s. 10 breaches, s. 24 of the Charter calls for the exclusion of the evidence at trial. [ 6 ] On September 12, 2018, shortly after midnight, while driving westbound on East Hastings Street in Vancouver, British Columbia, two members of the Vancouver Police Department observed a running vehicle go into gear driving toward Gore Street. At that point in time the passenger, Constable Quach, ran the plate number on her mobile data terminal.

She did so simply because the vehicle was in that area at that time of day and the officers therefore suspected drug activity. [ 7 ] Before the results of the search came through, the vehicle turned and failed to signal. The officers followed and decided that they then had reason to pull the vehicle over. [ 8 ] Once the vehicle stopped, the results of the search came through and Constable Quach saw that both the registered owner, Corina Klaassen and the vehicle were believed to be involved with drug trafficking activity. [ 9 ] The officers approached the vehicle.

Constable Gooderham approached the driver and Constable Quach went to the passenger side. She shone her flashlight into the car and for the first time observed that there was a passenger in the rear passenger seat. She directed him to roll down the window. The passenger was Mr. Stoney. The officer smelled burned marijuana, shone her flashlight further into the car, poked her head in and saw a marijuana roach in the door well. [ 10 ] She shone the flashlight around the backseat and saw nothing else that was either of interest to her or suspicious to her. [ 11 ] Constable Quach acknowledged all that Mr.

Stoney was detained at the point in time that she decided that she had grounds to arrest him for possession of marijuana, and that she deliberately elected not to provide him with his legal rights at that time. [ 12 ] She asked him what he was doing in the vehicle and where they were going. He said that he had just purchased dog food and that they were going to where he stayed to feed his dogs. [ 13 ] Constable Gooderham asked Ms. Klaassen where they were going and she said that they were headed to a bar. [ 14 ] Constable Quach testified that in the presence of both Mr. Stoney and Ms.

Klaassen, she and her partner discussed the detainees’ respective responses through the open windows. [ 15 ] Constable Gooderham on the other hand testified that he and Constable Quach met at the rear of Ms. Klaasen’s vehicle and discussed the inconsistent responses. He testified that as a result of the inconsistencies, the officers decided to “proceed with the arrest”. [ 16 ] I accept Constable Gooderham’s version. Constable Quach’s version belies all common sense. [ 17 ] The individuals were removed from the vehicle, advised they were under arrest, and read their rights. Mr.

Stoney said that he wished to contact counsel. [ 18 ] The individuals were searched. 11.85 grams of crack Cocaine were found on Mr. Stoney, as was $20.00 in American currency and $1,275.00 in Canadian currency. [ 19 ] Notwithstanding that Mr. Stoney had requested to speak with counsel, Constable Quach decided to delay the implementational component of his right to counsel and question him about the source of the monies found on him.

She purported to suggest that she thought that individuals could be questioned about matters not under investigation but acknowledged that she was in fact investigating the source of the funds. In any event, I did not believe her evidence on the point that she believed that she could question Mr. Stoney prior to letting him contact counsel. The Charter is older than she is. I have no doubt that she knew her obligations to Mr. Stoney and elected to ignore them. [ 20 ] The officers walked Mr.

Stoney to the police station one block away. [ 21 ] He was searched in the jail and a further 105.36 grams of powder Cocaine was found. [ 22 ] The jail guards permitted and assisted Mr. Stoney in attempting to contact counsel. [ 23 ] Constable Quach was not questioned with respect to whether Mr. Stoney exercised his right to counsel from the jail. While Constable Gooderham testified that he believed that Mr.

Stoney did, he acknowledged that he had no personal information in that regard. [ 24 ] The issue before me is whether the seriousness of the violations and the impact of the violations upon the protected Constitutional right warrant exclusion of the evidence or whether a trial on the merits in this case calls for the inclusion of the evidence.

[25] Counsel for Mr. Stoney argued that this Court should disassociate itself from the police conduct in order to maintain theintegrity of the administration of justice. [26] She argued that there was no compelling or urgent reason for the police to have violated Mr. Stoney’s rights. [27] She argued the violations were deliberate and, therefore, the first branch of the test in Regina v. Grant, 2009 SCC 32 ,[2009] 2 SCR 353, weighs heavily toward exclusion of the evidence. [28] She pointed out that even though the Crown does not seek to tender any of Mr.

Stoney’s answers to the questions into evidenceagainst him, that that does not mean that his right to counsel was not severely impacted. [29] She argued that the deliberate police conduct in both delaying the provision of rights to ask questions of the detainee, and thencontinuing to question him once he indicated a desire to speak with counsel are a pattern on the part of the two officers. [30] She argued that the police had no reason to violate Mr.

Stoney’s rights. [31] She argued that it is because a detainee is so vulnerable at the outset of his or her detention that the implementationalcomponent of s. 10 is so important; and it is that vulnerability that was exploited when the officers elected to deny the right to Mr.Stoney. [32] She pointed out that it is trite to say that officers are obligated to know their obligations toward those who they arrest. [33] She argued that the consideration of whether it is in society’s interest that this case be decided on its merits must be weighedagainst respect for the administration of justice. [34] She argued that the police conduct was part of their usual practice and it, in turn, in and of itself shows a lack of respect for theadministration of justice. [35] Crown counsel argued that all of the drugs seized should be admitted into evidence, but even if I conclude that the drugs foundat scene should be excluded, that the Cocaine found on Mr.

Stoney in the jail were so far removed from the Charter violations that thatseizure ought to be admitted into evidence. [36] Mr. Stoney was notified of his rights at 12:25 am and allowed to call counsel from the jail at 1:18 am. Crown counsel arguedthat the implementational delay was mitigated into irrelevance. [37] He pointed out that Constable Quach testified that she did not let Mr. Stoney call counsel at the scene because it was a publicarea.

Yet, I note that Constable Gooderham testified, in contradistinction to her evidence, that there were no pedestrians around. [38] Crown counsel argued that because it is jail policy that every prisoner contact counsel that it is of no moment that the arrestingofficers did not themselves ensure that Mr. Stoney was able to do so. [39] He argued that the breaches were not serious; that they did not lead to anything. With respect, I disagree. [40] He argued that Constable Quach was careless but that her carelessness does not amount to anything. He argued that she havingasked Mr.

Stoney where they were going did not necessarily call for an inculpatory answer and that she did not ask him any questionsabout the marijuana roach. [41] She asked Mr. Stoney where they were going once she had decided that she had grounds to arrest him and had decided toquestion him in relation to her suspicions about drug trafficking activity before apprising him of his legal rights. She was investigatingher suspicions of much more serious criminal activity than mere possession of a partially smoked marijuana cigarette. She had receivedinformation on her mobile data terminal telling her that both Ms.

Klaassen and Ms. Klaassen’s vehicle were suspected of drug traffickingactivity. It is very apparent that Constable Quach was on a much more serious investigation than the one she believed that she hadgrounds to arrest Mr. Stoney for, and it is that investigation that had her ask Mr. Stoney what he was doing in that car. And it is for thatinvestigation that the delay in advising Mr. Stoney of his legal rights once he was detained that is very much before me in the s. 24(2)inquiry. [42] Crown counsel argued that Constable Quach was not acting in bad faith.

That she was merely acting on a misunderstanding ofthe boundaries of appropriate questioning. [43] He argued as well that there is a dearth of evidence with respect to the officers’ knowledge regarding the implementationalcomponent and that the Court cannot conclude that the officers did not know that Mr. Stoney made a call to counsel and received hervoice mail. [44] He argued that the delay in the implementational component was so brief that it is at the very low end of the spectrum. [45] He argued that the answers elicited in violation of Mr. Stoney’s s. 10(

b) rights had no impact upon the investigation. Withrespect, I disagree. [46] He argued that Mr. Stoney was going to be arrested and was, therefore, going to be searched and that, therefore, the breach wasso minimal that the third prong of the Grant factors call for inclusion of the evidence. [47] It is a large amount of Cocaine. It is highly reliable evidence. [48] I was provided with the following authorities:

(

a) The Queen v Mitchell , [2018] ONCJ 121 (

b) The Queen v Kenowesequape , [2018] ABQB 135 (

c) Regina v Choi , [2019] BCPC 224 (

d) Regina v Ban , [2013] BCSC 2394 (

e) Regina v Le , [2019] SCC 34 (

f) Regina v Fearon , [2014] SCC 77 (

g) Regina v Robertson , [2019] BCCA 116 (

h) Regina v Lauriente , [2010] BCCA 72 (

i) Regina v Taylor , [2014] SCC 50 (

j) Regina v Dupe , [2010] ONSC 6594 and (

k) Regina v Flintroy , [2019] BCSC 78. [ 49 ] In analyzing what occurred and the practices of the two officers, I conclude that the evidence was located only because of the s. 10 violations and that, therefore, the breaches were very serious. [ 50 ] Constable Quach decided that she could arrest Mr. Stoney once she both smelled the burned marijuana and saw the marijuana roach. She knew that she was obligated to apprise him of his rights at that point in time. Yet, she deliberately elected not to do so that she could freely enter upon the drug investigation part of the dual purpose motor vehicle stop. She asked Mr.

Stoney why he was with Ms. Klaassen and where they were going. [ 51 ] Constable Gooderham testified that it was only because of Mr. Stoney’s response and Ms. Klaassen’s differing response that the officers decided to remove both individuals from the car, apprise them of their rights and search their persons. Without that inconsistency, they likely, to use Constable Gooderham’s language, would not have “proceeded with the arrest”. His evidence was that he frequently not only did not apprise marijuana smokers of their rights he simply let them go. [ 52 ] Had Constable Quach apprised Mr.

Stoney of his rights as soon as she detained him, or, even when she decided that she had grounds to arrest him, what occurred may very well have been much different. [ 53 ] Constable Quach’s deliberate decision to hold off on the informational component of Mr.

Stoney’s rights viewed in the light of what the officers did is very serious and gets at the heart of the right against self-incrimination that s. 10 was designed to protect. [ 54 ] The Supreme Court of Canada in Le at paragraph 139 ruled: Section 24(2) of The Charter provides that, where evidence was obtained in a manner that infringed a Charter right or freedom, that evidence shall be excluded if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute .

While the judicial inquiry under s. 24(2) is often rhetorically cast as asking whether evidence should be excluded, that is not the question to be decided.

Rather, it is whether the administration of justice were to be brought into disrepute by its admission…If so, there is nothing left to decide about exclusion: our Charter directs that such evidence must be excluded, not to punish police or compensate for a rights infringement, but because it is necessary to do so to maintain the ‘integrity of, and public confidence in, the justice system.’ [ 55 ] And at paragraph 140: Where the state seeks to benefit from the evidentiary fruits of Charter -offending conduct, our focus must be directed not to the impact of state misconduct upon the criminal trial , but upon the administration of justice .

Courts must also bear in mind that the fact of a Charter breach signifies, in and of itself, injustice, and a consequent diminishment of administration of justice. What courts are mandated by s. 24(2) to consider is whether the admission of evidence risks doing further damage by diminishing the reputation of the administration of justice – such that, for example, reasonable members of Canadian society would wonder whether courts take individual rights and freedoms from police misconduct seriously.

We endorse this Court’s overall repute of the justice system, viewed in the long term by a reasonable person, informed of all relevant circumstances and the importance of Charter rights. [ 56 ] With respect to the interrelationship of the three heads of Grant , the Court ruled: The third line of inquiry, society’s interest in an adjudication of the case on its merits, typically pulls in the opposite direction – that is, towards a finding that admission would not bring the administration of justice into disrepute.

While that pull is particularly strong where the evidence is reliable and critical to the Crown’s case…we emphasize that the third line of inquiry cannot turn into a rubber stamp where all evidence is deemed reliable and critical to the Crown’s case at this stage…Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility … (at paragraph 142). … While this inquiry is concerned with the societal interest in ‘an adjudication on its merits’… the focus, as we have explained, must be upon the impact of state misconduct upon the reputation of the administration of justice.

While disrepute may result from the exclusion of relevant and reliable evidence … so too might it result from admitting evidence that deprives the accused of a fair hearing or that amounts to ‘judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies’… An ‘adjudication on the merits’, in a rule of law state, presupposes an adjudication grounded in legality and respect for longstanding constitutional norms. (At paragraph 158).

[ 57 ] I have concluded that the Cocaine seized from Mr. Stoney was not discoverable without the first violation of his s. 10 rights. [ 58 ] The end does not justify the means. The police were obligated to act within the bounds of the Charter and they very much deliberately chose not to do so. [ 59 ] In all of the circumstances, the police behaviour was not benign, it was very much malignant. All three heads of the Grant factors call for and compel the exclusion of the evidence seized. ____________________________ The Honourable Judge E. Gordon Provincial Court of British Columbia