R. v. Tallman Date:, 2013 BCPC 306

Citation: R. v. Tallman Date: 20130507 2013 BCPC 0306 File No: 23421-2-C Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL JOHN TALLMA N REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.J. MROZINSKI Counsel for the Crown: Robert G.P. Brown Counsel for the Defendant: Blair F. Suffredine, Q.C. Place of Hearing: Nelson , B.C. Date of Judgment: May 7, 2013

[ 1 ] Michael John Tallman is charged with 2 counts of possession of methamphetamine and Ketamine for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA) and one count of simple possession of LSD contrary to s. 4(1) of the CDSA . These charges arise out of a search of Mr. Tallman’s backpack by a member of a private security team employed by the operators of the Shambala music festival on August 3, 2011. During that search, the various substances that are the subject of these charges were found. [ 2 ] In this voir dire , Mr.

Tallman seeks an order excluding the evidence found in his backpack on the grounds the search conducted by the security guard contravened his right under s. 8 of the Charter . This voir dire raises a number of questions. The first is whether the Charter applies to the search at all. This question arises because the search of Mr.

Tallman’s backpack was conducted on private property by a private security guard employed by the proprietors of the Shambala Music Festival. [ 3 ] If this court finds that the Charter does apply, the question then becomes whether the search, which was warrantless, was conducted incidental to a lawful arrest or was otherwise reasonable. The Shambala Festival [ 4 ] Though obviously well know in the West Kootenay, the Shambala Music Festival is in fact an internationally known music event that takes place on private property outside of Salmo, British Columbia.

The festival is run by three siblings who each year lease 250 acres of their parent’s 500 acre cattle ranch and on that site hold the festival. When the festival is not being held, the property is otherwise a working cattle ranch. [ 5 ] The festival is extremely popular. In 2011, 10,000 tickets were sold and this is not atypical.

There are a number of stages at the festival site and the operators provide twenty two hours of music programming at each stage. [ 6 ] The festival area is fenced and only ticket holders are allowed inside. [ 7 ] Not surprisingly, this event attracts all manner of persons including recreational drug users and drug traffickers. Certainly there is a concern about people trying to bring alcohol onto the site, and there is considerable concern about the presence of glass bottles whatever the content. [ 8 ] It is equally unsurprising that the festival has attracted the attention of police.

However, the operators of Shambala do not allow uniformed police onto the festival site to enforce the laws. Rather, the operators employ a private security service whose mandate it is to ensure the safety of ticket holders, and to keep prohibited items such as weapons, drugs and alcohol off the site.

There is also, as I have noted, a concern for obvious reasons with the presence of glass containers or bottles on the site. [ 9 ] While the festival operators do not themselves allow police on site, police do patrol outside the festival and in 2011 at least were inside the site by virtue of a warrant authorized pursuant to s. 487.01 of the Criminal Code . [ 10 ] The official policy of the Shambala festival is that all vehicles entering the festival site are subject to search. If a person does not want their vehicle searched, they are invited to leave.

If a vehicle is searched and illegal contraband is found, the security services will notify the RCMP who do attend at the site when called by the festival staff. [ 11 ] Once a ticket holder enters into the site, the policy is the same. If a person is suspected of having any of the prohibited items in their possession, they are to be asked if they consent to be searched and if not they are told to leave. [ 12 ] Something like this is also communicated to ticket holders on the face of their ticket.

There it states that “(T)icket holder consents to reasonable examination and searches to ensure compliance with all provincial and federal laws and facility rules and regulations and acknowledges that alcohol and illegal substances are not permitted on these premises.” [ 13 ] On August 3, 2011, Mr. Tallman was the holder of one such ticket. He was on the festival grounds and, though the festival had not yet started, Mr.

Tallman was on the grounds by virtue of his ticket and subject to the rules and regulations of the festival. [ 14 ] Carlo Michael Fannella was on that same day employed with Likos International, a security company. In that capacity he was assigned to security at the Shambala festival. As required, Mr. Fannella was in uniform: that is to say that he was wearing a bright neon green shirt that had “Liko Security” printed on the front. He testified, and I accept, that wearing that shirt, it would have been obvious to anyone that he was part of the staff responsible for security at the festival. [ 15 ] Mr.

Fannella understood his duties to be to maintain the security of the people and the property during the festival; to make sure no glass items got on the property; after that to ensure there was no alcohol or illegal drugs on the property; and, finally to make sure the site was free of dangerous camping items. His priorities were alcohol, glass and narcotics. The Search of Mr. Tallman [ 16 ] Around 3:00 in the afternoon, Mr. Fannella observed Mr. Tallman on the Shambala site drinking what looked to be a beer. Mr. Fannella confirmed it was a beer and then asked Mr. Tallman if he could search his backpack.

He testified that Mr. Tallman agreed. I am satisfied that Mr. Fannella’s purpose was to search the pack for items that should not have been on the festival grounds. In so doing, he found the items that are the subject of these charges. [ 17 ] Contary to Shambala security policy, Mr. Fannella did not tell Mr. Tallman that he had a choice between consenting to a search or leaving the festival. Rather, he testified, and I accept, that after he advised Mr. Tallman that he was not allowed to consume alcohol on the festival site, he asked Mr. Tallman if he could search his backpack. Even accepting that Mr.

Tallman was not advised that he had a choice to have his pack searched or leave, I have no doubt that Mr. Tallman agreed that Mr. Fannella could search his pack. Mr.

Tallman, who knew that Mr. Fannella was part of festival security, testified that when Mr. Fannella took his beer, he took off hisbackpack and opened the zipper so that Mr. Fannella could look inside. Mr. Tallman may not have expected Mr. Fannella would do alittle more than simply look inside that part of his backpack that he held open. Does the Charter Apply [18] The first question on this voir dire arising out of these facts is whether Mr. Fannella was acting as an agent of the state when heconducted this search such that the Charter applies? [19] The Crown submits that Mr.

Fannella was a private actor who briefly detained Mr. Tallman for investigative purposes in orderto search his pack for items prohibited on festival grounds. In doing so he was not acting as an agent of the state, nor was he actingpursuant to state authority. As such, Crown submits, the Charter does not apply. [20] Mr. Tallman maintains that Mr. Fannella in fact arrested him and as such was acting pursuant to state authority and thereforerequired to comply with the Charter. [21] The question whether Mr. Fannella arrested Mr.

Tallman as opposed to merely having detained him arises out of a distinction inthe case law between persons who carry out what is called a “citizen’s arrest” and private persons such as Mr. Fannella, who may detainpersons for purely private reasons, though such a detention can ultimately lead to criminal charges. [22] In R. v. Dell, [2005] ABCA 246, the accused sought to exclude from the evidentiary record drugs found on his person by a barbouncer who had observed him in the men’s washroom holding a canister that was later found to contain cocaine. Mr.

Dell wassearched by the bouncer, and subsequently arrested by bar staff and detained in the kitchen of the bar to await the arrival of police. [23] The question for the court in Dell was whether the Charter applied to an investigative detention by a private person. In thecourse of considering that question the court had to decide firstly whether its reasons in R. v. Lerke (1986), 1986 ABCA 15 , 67A.R. 390 (C.A.) had been overruled and, if not, whether they applied to investigative detention. [24] In R. v.

Lerke, the court held at para 23 that “when one citizen arrests another, the arrest in the exercise of a governmentalfunction to which the Charter...applies”. [25] In Dell, the Crown submitted that not only was Lerke not applied consistently in the lower courts, but that it had been overruledby the SCC in R. v. Buhay, 2003 SCC 30 , [2003] 1 S.C.R. 631. At para 19 the court in Dell concluded that Lerke was still goodlaw after Buhay.

It then went on to consider whether the reasoning in Lerke in regard to a citizen’s arrest could be extended to apply toinvestigative detentions by ostensibly private persons. [26] This last question was later put directly in issue in R. v. Asp, [2008] BCSC 794. In Asp, the question was whether a hotelsecurity officer who followed the accused from a hotel and actually physically detained him in his car until police arrived was exercisinga government function such that the marijuana subsequently found by police would be excluded as evidence against him.

In reviewingthe very question at issue in Dell which was whether the Charter applied to investigative detentions, Justice Arnold-Bailey wrotebeginning at para 18 as follows: 18 After finding that Lerke was still good law, it was necessary for the Alberta Court of Appeal to then consider whether its principlesprovide the foundation for extending Charter protection to an investigative detention by a private person. The court held that Lerke, andthe government function exception recognized in Buhay, did not apply to extend Charter protection to investigative detention.

At para.24, the court held: "In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program":Buhay at para. 28, citing Eldridge at para. 43. Arguably, citizen's arrest involves not only a broad public purpose of maintaining thepeace, but the delegation of a specific government function to private persons. The latter characteristic is absent from investigativedetention, and, as such, detention by private persons cannot be considered a specific government function attracting Charter protection. And further at para. 26: In

summary, unlike citizen's arrest, investigative detention cannot be reasonably construed to be a specific government function that hasbeen delegated to private citizens. Therefore, the principles on which Lerke is based, and the government function exception recognizedin Buhay, do not apply to extend Charter protection to investigative detention. Moreover, sound policy reasons dictate that no suchextension should be made. 19 I find this distinction, as drawn by the Alberta Court of Appeal in Dell, to be of assistance in my present analysis.

If the securityguard's actions in relation to the applicant were to amount to an investigative detention, as opposed to a citizen's arrest, the Charter doesnot apply. [27] Given the reasoning in Asp, if the actions of Mr.

Fannella amount to an investigative detention as opposed to an arrest, the lawat present is that the Charter does not apply and there is no basis to grant the application to exclude the contraband found in the search ofhis backpack. [28] Also at issue in Asp as in this case is the question whether the private security officer was in fact ‘arresting’ the accused ratherthan merely engaging in an investigative detention. As I have noted, despite some not inconsiderable use of physical force in Asp, thecourt found the hotel security guard had not arrested Mr.

Asp but had merely detained him. [29] In Dell, the court had no difficulty finding that the bouncer in that case had merely detained Mr. Dell and not arrested him. Itnoted the following in this regard at para 4:

4 The issue at the forefront of this appeal is whether the bouncer's detention of Dell in the washroom for two to five minutes prior to the search is caught by the Charter. Dell alleges a breach of s. 9 only. He does not argue that the later arrest in the kitchen contravened the Charter. In any event, no further evidence was elicited while Dell was in the kitchen. Nor is there any suggestion that the short detention in the washroom constituted a citizen's arrest. Indeed, the legal distinction in Charter cases between mere detention for investigative purposes and actual arrest is well established.

An investigative detention is brief, based on a reasonable suspicion that an individual is connected to a particular crime: R. v. Mann, [2004] 3 S.C.R. 59 , 2004 SCC 52 at para. 45 . An arrest is a continuing act, based on reasonable and probable grounds a crime has been committed. It involves a detention and a measure of ongoing restraint until the arrested person is delivered to the police: R. v. Asante-Mensah, [2003] 2 S.C.R. 3 , 2003 SCC 38 at para. 34 . [ 30 ] In this case, I have found that Mr. Fannella spent a short period of time with Mr. Tallman during which he searched Mr.

Tallman’s back pack for the purpose of determining whether Mr. Tallman had prohibited items on his person. The beer in Mr. Tallman’s hand led Mr. Fannella to suspect he might have other alcoholic beverages at the very least. [ 31 ] In terms of the question whether Mr. Fannella’s search was a continuing act such that it became an arrest, I note the following comment at para 22 of Asp : 22 The first is that the authorities continually refer to an arrest as a continuing act.

The evidence is not conclusive as to whether the security guard was going to briefly detain the applicant and let him go if he found nothing incriminating, or whether he planned to deliver Mr. Asp to the police. There is absolutely no indication of what the security guard intended to do or what offence he thought Mr. Asp may have committed. [ 32 ] Here the evidence is clear: Mr. Fannella suspected Mr. Tallman may have had in his possession prohibited items. He searched his backpack accordingly. In addition, the uncontradicted testimony of Mr. Fannella was that if Mr.

Tallman refused to be searched, he would have required him to leave the festival site in accordance with the festival’s policy. [ 33 ] It is the case that Mr. Fannella did not give Mr. Tallman that option. Though Mr. Tallman testified that he felt compelled to comply with Mr. Fannella’s request to search his back pack he opened the pack for Mr. Fannella to search. I find that Mr. Tallman knew Mr.

Fannella was a private security guard, that he consented to at least a cursory search of his backpack, and that he most likely did not expect the search to be so thorough as to result in the finding of the various drugs that are now the subject of this proceeding. [ 34 ] Moreover, there is some force to the argument that Mr. Tallman, by virtue of being a ticket holder, consented to the search as a condition of his entering the festival grounds.

It is the case that the search had to be reasonable but I am satisfied that in all the circumstances, a security guard hired for the purpose of ensuring the festival grounds were free of drugs, alcohol and glass containers, was acting reasonably in searching the backpack of a patron seen on the grounds openly consuming beer. In making this finding, I acknowledge that Mr.

Tallman testified he never read the ticket but in my view that fact, even if true, is of no moment. [ 35 ] The policy of the Shambala festival which is that persons must either consent to a search or leave is not one that would be governed by Charter . In my view, it does not follow from the fact that Mr. Fannella did not outline that policy specifically to Mr. Tallman that he is thereby an agent of the state. In conducting what I find to have been a brief, investigative search of Mr. Tallman for the express purpose of ensuring Mr. Tallman did not have in his possession any prohibited items, Mr.

Fannella was a private actor. [ 36 ] Mr. Tallman may well have subsequently been ‘arrested’ by other security staff at the site while awaiting the police. However, the question before me on this voir dire was whether Mr. Fannella arrested Mr. Tallman and therefore became a state actor as provided for by Lerke . I find he did not arrest Mr. Tallman; rather, he engaged in an investigative detention. [ 37 ] As I have found that Mr. Fannella detained rather than arrested Mr. Tallman it is unnecessary for me to go further and consider whether Mr.

Fannella’s arrest was lawful and, if so, whether it was conducted incidental to that arrest, or was otherwise reasonable given the wording of Mr. Tallman’s festival ticket. [ 38 ] For these reasons set out above, I find the Charter did not apply to the search by Mr. Fannella and there is therefore no basis to exclude the evidence obtained in the search pursuant to s. 24(2) of the Charter. The application to exclude the contraband found in Mr. Tallman’s backpack from the trial is denied. ________________ L. J. Mrozinski