R. v. Boulrice, 2021 BCPC 105

Citation: R. v. Boulrice 2021 BCPC 105 Date: 20210421 File No: 236996-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. TRAVIS WAYNE BOULRICE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE JETTÉ Counsel for the Crown: V. Yip Counsel for the Defendant: M. Stern and S. Dhaliwal A/S Place of Hearing: Surrey , B.C. Date of Hearing: 1 March 2021 Date of Judgment: 21 April 2021 Introduction

[ 1 ] Travis Wayne Boulrice is charged with three counts of trafficking in controlled substances contrary to s. 5(1) of the Controlled Drugs and Substances Act (“ CDSA ”). During the course of a police investigation into dial-a-dope drug sales in Surrey, Constable Kimberly Babala, acting undercover, phoned a known drug line on 13 September and again on 20 September 2018. On each occasion, Constable Babala spoke to a male who identified himself as Frank, and arranged a meeting to purchase drugs. [ 2 ] On 13 September, Constable Babala entered a blue Acura parked near the Gateway SkyTrain Station in Surrey.

The male driver and sole occupant of the vehicle drove a short distance away, stopped, and handed her nine bars of Alprazolam - also known as Xanax - in exchange for $60. [ 3 ] On 20 September, Constable Babala called the same drug line and arranged another meeting at the same location. She got into what appeared to be the same blue Acura, which was operated by the same male who sold drugs to her on the first occasion. Once again, the car was driven a short distance away, stopped, and the sale was completed.

This time, Constable Babala paid $140 for 10 bars of Alprazolam/Xanax and one gram of cocaine. [ 4 ] The male who sold drugs to the UCO on the 13 th and the 20 th was not arrested after either of those transactions. The information was not sworn until 10 February 2020. [ 5 ] The parties have filed an Agreed Statement of Facts. The defence has admitted the continuity of the drugs sold at these two meets, and that they are the controlled substances particularized in counts 1 to 3. In addition to Constable Babala, the Crown called Constable Barban, who was the primary investigator on this file.

Issues [ 6 ] There is only one issue to be decided in this case: has the Crown proved beyond a reasonable doubt that Mr. Boulrice was the male who sold drugs to Constable Babala on 13 and 20 September 2018? Proof of Identification [ 7 ] I have already referred to the fact that these charges were not sworn until 10 February 2020. By the time this matter came before me on 1 March 2021, it had been some two and a half years since the two police witnesses made their in-person observations of the driver of a blue Acura. What the police did have was a photograph of Mr.

Boulrice’s BC driver’s license, which was obtained by Constable Barban during a traffic stop on 10 September 2018. That photograph was produced at trial and marked as an exhibit. Both officers refreshed their memory from the photograph on that license before testifying. Both officers identified Mr. Boulrice in court as the man who sold drugs to Constable Babala. a. Constable Barban [ 8 ] This officer had been working with the RCMP’s Surrey Drug Unit for only a few months when he became involved in this investigation.

He had two years prior experience with drug investigations as a general duty officer prior to joining the drug unit. [ 9 ] Constable Barban testified that he was conducting surveillance of a known drug stash house in Surrey on 10 September 2018 when he observed a blue Acura, which drew his interest. He and his team decided to follow this vehicle as it drove away. The vehicle stopped at the Sport Chek in Willowbrook Mall in Langley and the driver got out and went inside.

The officer testified that he also entered that store and observed the driver as he walked around and then purchased items at the cashier on the way out. [ 10 ] The officer testified that he followed the same vehicle away from Langley and back into Surrey where he conducted a traffic stop after the driver failed to stop at a red light. The driver produced a BC driver’s license. The officer took a photograph of the license, and returned it to the driver after confirming that he was able to recite his date of birth and other indicators that appear on the license.

He was satisfied that the driver and the male in the license photo were one and the same. [ 11 ] Constable Barban was part of the surveillance cover team when Constable Babala met with the male in the blue Acura on both September 13 and 20. He testified that he was able to see the blue Acura at both meets, but was only able to observe the driver of that car on the 13 th . [ 12 ] On 13 September, Constable Barban testified that he was on foot and standing on the second platform at the Gateway SkyTrain Station when he saw a blue Acura arrive and Constable Babala get inside.

He said that from his position about 50-60 feet away he could see down through the front windshield of the Acura and was able to identify the driver as the same male he had stopped on the 10 th . He testified in chief that this observation lasted for about 5-10 seconds; this was reduced to 3-4 seconds in cross-examination. He also said that after the vehicle was driven some distance from the station and came to a stop, he was able to observe the UCO and the driver in profile for about 1-2 minutes with the aid of binoculars.

In cross-examination, he agreed that he was only able to observe the male for about 5-10 seconds. [ 13 ] Constable Barban described the male as Caucasian, with short brown hair and face stubble. He said that this person looked the same as the male he dealt with at the traffic stop on 10 September. [ 14 ] Constable Barban did not provide evidence of the plate number of the blue Acura he pulled over on September 10. I do not have evidence from either officer of the plate number of the blue Acura driven by the trafficker on September 13 and 20.

The closest the evidence comes to establishing that the same vehicle was involved on each occasion is Constable Barban’s testimony that the car he observed at the two drug meets “might be” the same car he stopped on 10 September. b. Constable Babala [ 15 ] Constable Babala is a 17-year veteran of the RCMP. She was with the Surrey Drug Unit for five years, and was assigned to the provincial surveillance team before that. She had been involved in as many as 200-250 drug investigations by September of 2018. She is

a trained undercover officer. [16] Constable Babala testified about her calls to the drug line on the 13th and again on September 20, and her meetings with the malein the blue Acura at the Gateway SkyTrain Station. Constable Barban showed her the photograph of the driver’s license taken at the traffic stop on the 10th before she attended the first meet on 13 September.

Constable Barban told her that this might be the person shewould be meeting. [17] Constable Babala testified that upon first approaching the blue Acura on the 13th, she immediately recognized the driver as thesame person who was depicted in the driver’s license photo. She described the location of the meet, and said the trafficker drove thevehicle a short distance before stopping and completing the sale.

She said she was with the driver in the car for about 1-2 minutes. [18] Constable Babala repeated this process on 20 September, and gave similar evidence with respect to the location of the meet,traveling a short distance, and stopping to complete the sale. This time she was in the car with the driver for 2-3 minutes; she testified that this was the same person she dealt with on the 13th. [19] It was daylight during both meetings. Her description of the male on each occasion was essentially the same: Caucasian, short brown hair, Seattle Mariners baseball cap.

On the 13th he was wearing a black t-shirt and jeans; on the 20th a light grey Adidas hoodyand jeans. She did not observe any distinguishing characteristics. c. In-Court Identification [20] Constable Barban was asked if the man he stopped on 10 September and observed again with Constable Babala on the 13th wasin court. He pointed to the accused, who was the only person seated in the gallery of the courtroom. [21] Constable Barban refreshed his memory by looking at the photograph of the driver’s license before testifying.

He testified that inaddition to his observations of the male on September 10 and 13, he later observed the male in a blue Acura “a few more times” duringsurveillance, and again in a surveillance video. With respect to surveillance of the male, he did not tell me anything about where he or thetarget were at the time, his distance from the target, whether he was mobile or on foot, the length of those observations, whether it waslight or dark, etc. He offered no description at all of the surveillance video, and he did not tell me when he last observed that video.

Hedid not tell me when any of this surveillance happened other than to say it was after the two meetings at the Gateway SkyTrain Station.He agreed that he has not seen that male in the two and half years since the events giving rise to these charges. [22] Constable Babala was asked if she recognized in court the male she dealt with on September 13 and 20. She also selected theaccused, who once again was alone in the gallery. Constable Babala testified that although she has not seen the man from the blue Acurasince September of 2018, she refreshed her memory from the driver’s license prior to taking the stand.

In cross-examination, ConstableBarbala was asked whether she thought she would be able to recognize this male if she saw him in a context other than court; she said itwould depend if he had a beard or not, and that in a different context, all she would be able to say is that he looked familiar. The lastthing she said in cross-examination was that if she saw the man in a Safeway, she would not be able to identify him. [23] The man who was identified in court by both police witnesses had a large black beard. The male in the driver’s license photodoes not have facial hair.

Constable Babala testified that the male she dealt with on both occasions did not have facial hair. ConstableBarban testified that the male he observed in the blue Acura on 13 September had face stubble, and that his appearance was the same on the 10th. Analysis [24] In my view, this case is no different from any identification case involving civilian witnesses. The same dangers of mistakenidentification may arise depending on the circumstances.

Where police investigate, do not make an arrest, and a long time passes beforecharges are sworn, there may be problems proving the case when the case finally comes to trial. Those difficulties are amplified whereout-of-court identification procedures like photo packs have not been employed to test the reliability of the identification evidence. It haslong been recognized that the identification of an accused person for the first time in the dock will not be enough to prove that element inmost cases. Similarly, unfair out-of-court identification procedures may taint in-court identification evidence: R. v.

Reitsma, (1998), (SCC), 125 C.C.C. (3d) 1 SCC. One obvious example of an unfair identification procedure would be a one person lineup or photo pack. [25] I must consider whether the evidence I have heard from these officers is both credible and reliable. I take no issue with thecredibility of either officer, but I have concerns regarding the reliability of their identification evidence in this case. [26] Cross-examination turned up significant difficulties with Constable Barban’s evidence. He did not make any notes of hisobservations of the male from the blue Acura on 10 September at the Sport Chek in Langley.

He made no mention of this event in hispre-trial interview with Crown counsel in the early part of February of this year. He first recalled the incident on the morning he wasscheduled to testify; he reported this new memory to Crown prior to taking the stand. His explanation for not including this in his notes,that his work on 10 September was not “active surveillance”, was not terribly persuasive given his choice to follow that vehicle awayfrom the residence which was the primary target of his investigation.

It is clear that the events of 10 September are linked to his claim that he could identify the man who met with Constable Babala on the 13th as the same man he identified in court. [27] Constable Barban’s evidence in chief about the location of the blue Acura at the beginning of the meet on 13 September and theroute taken by the driver before the car stopped and the sale was completed aligned perfectly with the evidence of Constable Babala.Unfortunately, that version is completely different from Constable Barban’s notes made in the immediate aftermath of the meet.

In hisnotes, Constable Barban identified a different location for the blue Acura when the UCO arrived and got into the car. He wrote that thevehicle drove east rather than west, and on a different road entirely. To make matters worse, Constable Barban testified that he reviewedConstable Babala’s notes of these same events prior to giving his evidence; he claimed that he was entitled to do so because he was the

primary investigator on the file. It would appear that when giving his evidence he preferred Constable Babala’s notes to his own. [28] The Crown acknowledges that there are problems with Constable Barban’s evidence, but submits that Constable Babala’sevidence does not suffer from similar frailties. She submits that Constable Babala spent significant time with the trafficker on twooccasions which were close in time, and that she was able to identify that man again in court.

She argues that the failure to show theConstable a photo pack prior to court does not undermine the strength of this evidence from an experienced undercover operator. Shesays that viewing the driver’s license photo of the accused prior to testifying in court did not taint or corrupt her in-court identification ofthe accused. She invites me to consider the decision of the Alberta Court of Appeal in R. v.

Murtaza, 2020 ABCA 158 (leave to appeal toSCC dismissed at 2021 SCC 4), where a conviction for selling drugs to an undercover officer some three years prior to trial was upheld.In that case, the officer had refreshed his present recollection of the identification of the trafficker from a short video of the drugtransaction itself that displayed a clear view of the subject’s face. [29] I note that Murtaza is an appellate decision upholding the trial judge’s conclusion that the element of identification had beenproved beyond a reasonable doubt.

The court concluded the trial judge was entitled to make this finding on the evidence, and made nolegal error in doing so. In other words, the court found that the weight to be afforded to this evidence was a matter for the trial judge. Inote as well that the video viewed by the officer in this case was a recording of the very transaction which was the subject matter of thecharge. In my view, it would have been open to the trial judge to make her own determination of the identity of that person, separate andapart from the evidence of the officer who was engaged in that transaction.

The trial judge in Murtaza declined to examine the video andmake her own determination whether the accused was depicted there because she was satisfied beyond a reasonable doubt based solelyon the evidence of the undercover officer: Murtaza, supra, at paras. 11-12. [30] Crown argues that in our case, two police officers have identified the same man, and that this evidence mutually reinforces theidentification evidence offered by the two of them. I find, however, that Constable Barban’s evidence was weakened incross-examination.

Although he was the more sure of the two police witnesses, I find that Constable Barban’s evidence standing alonedoes not get the Crown over the bar. The flaws I have referred to in these reasons lead me to conclude that his identification of theaccused is not sufficiently reliable to prop up the evidence of Constable Barbala. [31] Constable Babala agreed in cross-examination that changing the context would likely leave her unable to identify the accused asthe man she met on two occasions in September of 2018, even after having had the benefit of viewing the driver’s license photo.

Thatevidence highlights nicely why in-dock identifications of the only person in court who could conceivably be the accused can bedangerous. The danger was enhanced in this case because that in-court identification was aided by the viewing of a one-person photolineup, the driver’s license photographed by Constable Barban way back on 10 September 2018. [32] The case I am dealing with here is distinguishable from the circumstances in R. v. Schmidt, 2012 BCPC 247 , 2012BCPC 0247.

In that case, a police officer was shown a target sheet displaying photos of five individuals before completing anundercover drug purchase. After the meeting, he told his cover officer that he had purchased drugs from one of the males on the targetsheet. He added the photo to his notes, and reviewed his notes and the photograph prior to giving evidence. He included in his notes adescription of the male, in particular that he was Asian and had a mole on the right side of his chin. The officer identified Mr. Schmidt attrial after confirming the presence of a small mole on the right side of his chin.

The trial judge found that the undercover officer hadderived a measure of familiarity with his target from the photograph.

He characterized this as recognition evidence, and found that theviewing of photographs prior to making the in-court dock identification was a matter that went to the weight to be afforded to thatevidence: Schmidt, supra, at paras. 15-21. [33] The trial judge in Schmidt concluded that despite the diminished weight to be assigned to this evidence as a result of the officerhaving viewed the target sheet photo before testifying, the presence of the chin mole on both the trafficker and the man identified incourt by the officer was “singularly powerful evidence” of a unique identifying feature which supported the in-dock identification of theaccused: Schmidt, supra, at paras. 30, 34, 55-6. [34] Another case featuring a police in-dock identification based on the viewing of a single photograph is R. v.

Kabanga-Muanza,2014 ONSC 3474. The court accepted that this evidence is entitled to less weight than evidence provided by a witness whoseidentification of a suspect has been tested by the presentation of a photo pack, or participation in some other out of court procedure (atpara. 64).

Here, the court found that there was additional circumstantial evidence that corroborated and supported the officer’sidentification evidence; this evidence clearly connected a cell phone seized from the accused at point of arrest to the call that set up themeeting to purchase drugs (at paras. 69, 76-78). [35] There is nothing in the evidence before me that circumstantially supports the identification evidence of Constables Barban andBabala.

The only evidence that might possibly have helped in this way - that the blue Acura which was stopped on 10 September was in fact the same car that showed up for the drug meets on the 10th and 13th - does not exist.

If it existed, that evidence would be at leastsomething capable of supporting the Crown’s assertion that the male on all three occasions was one and the same. [36] For the following reasons, I have concluded that the Crown has failed to prove the element of identification beyond a reasonabledoubt: (1) the viewing of the driver’s license photo by both officers prior to giving evidence, which was equivalent to the viewing of a one manphoto pack some two and half years after the events of September 2018; (2) the two in-dock identifications of the only possible target in the courtroom gallery;

(3) Constable Babala’s frank concession that she would not likely recognize the man who sold drugs to her if she saw him at a localSafeway; (4) the flaws in Constable Barban’s evidence which were disclosed in cross-examination and undermined the reliability of his evidenceover all;

(5) the absence of a particular distinguishing feature which matched the trafficker to the accused before the court; and (6) the absence of anything else in the evidence which served to buttress or corroborate the in-dock identifications of the two police witnesses. [ 37 ] In the result, I find the accused not guilty on all counts. _____________________________ The Honourable Judge M. Jetté Provincial Court of British Columbia