R. v. Narayan, 2023 BCPC 269

Citation: R. v. Narayan 2023 BCPC 269 Date: 20230426 File No: 241992-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. JOSHLINE NALINI NARAYAN JOHN WILLIAM ZIETSOFF ORAL RULING ON VOIR DIRE (Re Accused Narayan) OF THE HONOURABLE JUDGE T. HINKSON Counsel for the Federal Crown: R. Pappas-Acreman Counsel for the Accused: E. Ariaee, articled student (agent for A. Goldin) Place of Hearing: Surrey , B.C. Date of Hearing: April 11, 12, 19, 2023 Date of Sentence: April 26, 2023

I. Introduction [ 1 ] THE COURT: Ms. Narayan is charged on Information 241992-1 with possession of fentanyl and methamphetamine for the purposes of trafficking; possessing credit cards in the name of others, knowing those cards were obtained by the commission of an indictable offence; and possession of break-in instruments. [ 2 ] Ms. Narayan alleges breaches of ss. 8 and 9 of the Charter occurred during an encounter with the police on February 19, 2021. [ 3 ] The Crown conceded Ms. Narayan’s standing. [ 4 ] Ms.

Narayan argues: (1) the subjective reasonable grounds for arrest for possessing break-in instruments are not objectively justifiable; and (2) that the search of a green cardboard box was unreasonable, as it was outside the search incident to arrest for possessing break-in instruments. [ 5 ] The Crown argues the police actions were lawful and that Ms. Narayan’s Charter rights were not infringed. [ 6 ] At the outset of the voir dire , the Crown advised they were directing a stay of proceedings against Ms. Narayan respecting Count 4, possession of break-in instruments. [ 7 ] Ms.

Narayan was co-accused with her passenger on each count, but the Crown has stayed all charges against the co-accused. II. Facts A. Background [ 8 ] The Tilbury Industrial Area in Delta, British Columbia, is a mostly industrial area containing logistics and manufacturing companies. Most of the businesses are closed at night. [ 9 ] On cross-examination, Sgt.

Martens, the sole police witness on the voir dire, agreed that the Delta Police Department had a mandate for targeted patrols in the Tilbury Industrial Area in early 2021 to prevent and deter property crime in the vicinity, and that deterrence can be achieved by mere police presence alone. If he came across other offences, he would obviously respond. Break and enters, thefts from autos and other property crimes were the Delta Police Department’s general concerns at the time. B. The Arrest [ 10 ] On February 19, 2021, at approximately 2:30 a.m., Sgt.

Martens of the Delta Police Department was patrolling alone in the Tilbury Industrial Area. He was a constable at the time, and he was wearing a full uniform and driving a marked police vehicle. He observed a later model, green-coloured Ford Explorer, driving eastbound towards two industrial logistics yards on a dead end road in the 8200 block of River Way. [ 11 ] The rear taillight on the driver's side of the Ford was burnt out. He began to follow the vehicle and watched as it completed a U- turn. As it drove by him, now heading westbound, he could see two figures inside. A female appeared to be driving.

He made a U-turn and activated his emergency lights, pulling the vehicle over. He intended to speak with the driver about the burnt out taillight. [ 12 ] Before approaching the vehicle, he queried the vehicle’s licence plate on his police computer. He learned that Ms. Narayan was the registered owner and that there were some PRIME files, but he did not read those at that time. [ 13 ] He exited his vehicle and approached the driver’s side window of the Ford. He saw a female driver and a male front seat passenger. He spoke with the female driver, later identified as Ms. Narayan.

He advised her that he had pulled her over because her taillight was burnt out. [ 14 ] Given the time of night and the fact there were very few businesses open, he wanted to determine if she had a lawful excuse for being in the industrial area. He asked her what they were doing in the area at that time of night. She said she and her passenger were “looking for a place to have sex.” He asked her where she worked, and she said, “Rogers.” After being allowed to refresh his memory from a supplemental statement he prepared shortly before this voir dire, Sgt.

Martens recalled that he asked her that to determine whether she was a sex trade worker or if she had others means of employment. He explained he wanted to verify her well-being. [ 15 ] Sgt. Martens requested the driver’s identification, and Ms. Narayan produced a Canadian passport and her British Columbia driver’s licence. Because of the reason she had given for being in the area, Sgt. Martens suspected she might be a sex trade worker.

To verify her safety and confirm the passenger’s identity, he leaned over and asked the passenger for his name, which the passenger was unwilling to provide but eventually muttered. [ 16 ] Sgt. Martens accepted on cross-examination that the two could have been a couple, and the explanation for being in the area could have been legitimate. He agreed there was no sign she was in any trouble. [ 17 ] Using his flashlight from outside the vehicle, he looked in the rear passenger windows, which were slightly tinted, to verify if there was another passenger inside the vehicle behind the driver or passenger seat.

On cross-examination, he testified this was for officer and public safety purposes and that other passengers could potentially be an imminent threat. He denied that he was looking for evidence of a criminal offence at this time. [ 18 ] Sgt. Martens noticed various tools situated in plain view on the ground in the footwell behind the driver’s seat or on the back

bench seat. Those included plyers, gloves, a flashlight, and -- poking out from under the rear passenger seat directly behind the driver -- the tip of a reciprocating saw blade. The passenger saw him looking in the backseat area and stated, “Oh, I do welding.” [ 19 ] Sgt. Martens looked in the rear tinted window, using his flashlight from outside the vehicle, and observed a black hockey-style bag which was partially unzipped. He could see that the bag contained a portion of a large metal tube which appeared to be a catalytic converter or a gas tank for an acetylene torch. There were no other passengers inside.

At all times, the driver’s side window was the only window that was open. [ 20 ] Sgt. Martens returned to his police vehicle and requested a cover unit to attend. He began to check the vehicle’s occupants on his police computer and verified the front passenger’s identity on PRIME, observing his photograph to verify his identity, as he was linked to Ms. Narayan’s vehicle on previous files. [ 21 ] Sgt. Martens conducted CPIC and PRIME queries and learned both occupants had been targeted in several files relating to property offences such as breaking and entering. On cross-examination, he acknowledged that Ms.

Narayan did not have a criminal record of convictions. [ 22 ] Cst. Bains and Cst. Kerr arrived on scene to cover Sgt. Martens. He advised them of his findings and that he would be arresting both Ms. Narayan and her passenger for “possessing break-in tools or instruments.” [ 23 ] Sgt. Martens exited his vehicle and he and the other officers had Ms. Narayan and her passenger step out at the same time. Both of them were arrested for possession of break-in instruments. To obviate the need to call Cst. Kerr as a witness, Ms. Narayan admitted that Cst. Kerr arrested Ms. Narayan at 2:54 a.m., at Sgt.

Martens’ direction, for possession of break-in instruments. [ 24 ] Sgt. Martens testified that Cst. Kerr provided the Charter warning to Ms. Narayan and Cst. Bains provided the Charter warning to the passenger. It was just before 3:00 a.m. [ 25 ] At approximately 3:02 a.m., Sgt. Martens began searching the vehicle. He located an extensive array of other tools, two cellular phones on the front passenger seat, and a backpack on the back passenger seat containing several items that appeared to belong to a female.

Next to the backpack was a green and yellow small cardboard box, about three inches by three inches, and one-inch tall. The box was marked “Christian Dior.” [ 26 ] Sgt. Martens opened the box, and it appeared to contain a substance he recognized as “crystal meth,” along with a glass pipe. [ 27 ] He opened the black hockey-style bag and discovered a catalytic converter and a number of other tools. Examining the wear and tear on the catalytic converter, he noticed that it appeared to have been cut recently. [ 28 ] Sgt. Martens requested that Cst. Bains and Cst. Kerr give Ms.

Narayan and her passenger the Charter warning for possession of stolen property based on the catalytic converter that appeared to have been freshly cut, as well as possessing controlled substances relating to the glass pipe and suspected methamphetamine in the green box. [ 29 ] Again, to obviate the need to call Cst. Kerr as a witness, Ms. Narayan admitted that Cst. Kerr rearrested her at 3:03 a.m., at Sgt. Martens’ direction, for possession of substances controlled by the Controlled Drugs and Substances Act and for possession of stolen property. [ 30 ] At this time, Sgt.

Martens had concerns about stolen property and controlled substances and began looking for both. He located a can of bear spray wedged between the front passenger seat and the centre console. He opened and searched the centre console, where he found a compartment that contained small bags of what appeared to be and was later confirmed to be narcotics, as well as some credit cards inside a pink wallet that were not in the name of either occupant.

He agreed on cross-examination that it was common to have contraband or drugs in these kind of compartments and that he was not looking for break-in instruments in searching the pink wallet. [ 31 ] Sgt. Martens began the process of logging the evidence and securing it in his police vehicle. Ms. Narayan and her passenger were searched incident to arrest. Cst. Kerr searched Ms. Narayan’s purse, and then Sgt. Martens searched the passenger. Ms. Narayan had a small amount of cash, and her passenger had over three thousand dollars in his possession. [ 32 ] Upon releasing Ms. Narayan at 3:34 a.m., Sgt.

Martens issued a violation ticket to her for her burnt out taillight. C. Grounds for Arrest for Possessing Break-In Instruments. [ 33 ] Sgt.

Martens testified that he formed his grounds shortly after conducting CPIC and PRIME queries; queries he was using to continue building his grounds based on “the totality of all [his] observations,” including the search results and the circumstances, including: the time of night; that they were in a very slow area of River Way, with few businesses open at the time; that they were driving near businesses that were closed; the tools he observed, which he concluded from experience were not for welding; and Ms. Narayan and her passenger’s background and history regarding property crime offences.

He had no further conversation with them after returning to his vehicle to conduct his queries and await the arrival of cover units. III. Issues [ 34 ] The issues are:

(1) Were Sgt. Martens’ subjective grounds for arresting Ms. Narayan for possessing break-in instruments objectively justifiable; and (2) was the search of the green cardboard box incident to arrest for possession of break-in instruments reasonable. IV. Analysis

Issue 1: Were Sgt. Martens’ subjective grounds for arresting Ms. Narayan for possessing break-in instrumentsobjectively justifiable? [35]

Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. An illegal arrest is anarbitrary detention: R. v. Grant, 2009 SCC 32, at paras. 54 and 55. [36] While it is generally the accused’s onus to prove a violation of her rights on a balance of probabilities, in the context of awarrantless arrest, the Crown has the burden of establishing that the arrests were lawful -- i.e., that the police acted in a lawful andreasonable manner -- also on a balance of probabilities: Hunter et al. v. Southam Inc., (SCC), [1984] 2 SCR 145, at pp.9 and 12; R. v.

Collins, (SCC), [1987] 1 SCR 265, at para. 22; R. v. Jackson, 2022 BCSC 581, at paras. 9 to 11. [37] If the arrests were unlawful, the searches and seizures incident to the arrest are in violation of s. 8 of the Charter, which providesthat everyone has the right to be secure against unreasonable search or seizure. [38] The police power to arrest without a warrant comes from s. 495 (1) of the Criminal Code. Before me, it is agreed that theapplicable

section is (a): 495(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commitan indictable offence. [39] For the arrest to be lawful under s. 495(1), the arresting officer must: (1) subjectively believe they have the requisite groundsupon which to base the arrest; and (2) those grounds must be objectively justifiable: R. v. Storrey, (SCC), [1990] SCJNo. 12, at para. 17. [40] It is conceded that Sgt.

Martens had subjective grounds. [41] The assessment of whether objective grounds exist is conducted by first looking at the observations of the officer (which the trialjudge has found as facts) through the lens of someone who has the same experience, training, knowledge, and skills as the officer who ismaking the observations, and then deciding if a reasonable person with the same lens would come to the same conclusion as the policeofficer: R. v. Lo, 2015 BCSC 1159, at para. 66, citing R. v.

Luong, 2010 BCCA 158, at para. 24. [42] Although the requirement for objective reasonableness must be viewed in light of the arresting officer’s background andexperience, deference to an officer’s intuition must not be such that it renders the objective element of the inquiry meaningless: R. v.Payette, 2010 BCCA 392, at para. 25. [43] The standard is more than mere suspicion but proof on a balance of probabilities is not required. Reasonable probability orreasonable belief (credibility based probability) is sufficient: R. v. Spence, 2011 BCCA 280, at para. 33.

The determination involves aconsideration of the “totality of the circumstances”: R. v. Jir, 2010 BCCA 497, at para. 28. [44] For the reasons that follow, I conclude that Sgt. Martens’ grounds for arresting Ms. Narayan for possessing break-in instrumentswere objectively reasonable. [45] Sgt. Martens is currently a patrol supervisor in the patrol division of the Delta Police Department. He has worked with the Deltapolice for 17 years, or 15 years at the time of this encounter. He worked 10 years as a dog handler and has been in the patrol division forseven years. He was promoted to sergeant in November 2021.

He has had extensive experience on a wide range of files, includingfraud, domestic assaults, robberies, break and enters and other property crimes, sudden deaths, robberies, homicides, and shootings. Forfive of his 10 years as a dog handler, he worked with a narcotics dog. By the time he met with Ms. Narayan, he had been involved inwell over 200 property investigations.

On cross-examination, he testified he has been involved in well over a thousand traffic stops, andhe estimated he would conduct two to five traffic stops in a 12-hour shift as a constable. [46] It is noteworthy that, prior to policing, he had experience as a construction worker building houses. On cross-examination, hetestified that although he has never been a welder himself, his father was a contractor and carpenter who also worked in construction, andSgt.

Martens had seen him using welding equipment, which he owned, from as long as he could remember. [47] He testified the tools that he observed before the arrest were, in his experience, not used for welding but could be used by awelder, and what he observed in the hockey-style bag could have been a tank used to fuel a welding torch.

He testified that if thepassenger established that he was a certified welder, that would have helped him in forming his opinion as to what was going on insidethe vehicle, but he could not say how it would affect his decision to arrest the occupants. [48] He did not agree that he had reasonable grounds to arrest before looking at the occupants on the CPIC and PRIME databases. When he did so, he learned that Ms.

Narayan had no record of convictions despite PRIME entries relating to herself, the passenger, andthe vehicle they were in. [49] The question, to apply the analysis described in Luong, is what a reasonable person with the experience, training, knowledge, andskills that I have found Sgt. Martens to have would come to conclude. [50] This is not merely a case of giving deference to an officer’s intuition.

While the grounds laid out above, taken individually and inisolation, might not be objectively reasonable grounds to believe that an indictable offence had been or was about to be committed, takentogether, they provide compelling objective justification.

It is not possible to separate mere possession of tools, a benign act on its own,from the surrounding circumstances, including that it was very early in the morning; most of the businesses were closed; the vehicle wasdriving on a dead end road; tools were scattered about the vehicle; and there was an object that appeared to a catalytic converter or a tankfor a torch in a bag in the back.

[51] Furthermore, while Ms. Narayan did not have a conviction history, the fact is that, on top of all the other observations that hadbeen made, the reasonable person described in the authorities would have learned that Ms. Narayan, her passenger, and her vehicle wereassociated to several files where they were targeted relating to property offences such as breaking and entering. [52] As Sgt. Martens stated, the grounds were building as the situation evolved.

This was a fluid and dynamic situation whereindividual factors and observations coalesced, such that a reasonable person as described in the authorities would have come to the sameconclusion as to reasonable grounds for arrest. [53] I conclude the subjective and objective elements have been established and the arrest for possession of break-in instruments waslawful. Issue 2: Was the search of the green cardboard box incident to arrest for possession of break-in instruments reasonable? [54]

Section 8 of the Charter guarantees the right to be secure against unreasonable search or seizure. In order to be reasonable, asearch must be: (1) authorized by law; (2) the law itself must be reasonable; and (3) the search must be carried out in a reasonablemanner: R. v. Caslake, (SCC), [1998] 1 SCR 51, at para. 12. [55] The three important limits on the power to search incident to arrest are: 1. This power does not impose a duty…[The police] must be in a position to assess the circumstances of each case so as to determinewhether a search meets the underlying objectives. 2.

The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be athreat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. Thepurpose of the search must not be unrelated to the objectives of the proper administration of justice… 3.

The search must not be conducted in an abusive fashion… Caslake, para. 14. …the three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence fromdestruction at the hands of the arrestee or others, and the discovery of evidence which can by used at the arrestee’s trial. The restrictionthat the search must be “truly incidental” to the arrest means that the police must be attending to achieve some valid purpose connectedto the arrest.

Whether such an objective exists will depend on what the police were looking for and why. … the police must have one ofthe purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer’s belief that this purpose willbe served by the search must be a reasonable one. Caslake, para. 19. …the police must be able to explain within the purposes… [of] (protecting the police, protecting the evidence, discovering evidence) orby reference to some other valid purpose why they searched. They do not need reasonable and probable grounds.

However, they musthave had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must beobjectively reasonable. Caslake, para. 25. Requiring that the search be truly incidental to arrest means that if the justification for the arrest is to find evidence, there must be somereasonable prospect of securing evidence of the offence for which the accused is being arrested. Caslake, para. 22. [56] Ms. Narayan does not challenge the search of the vehicle incident to her arrest. Her focus is on the green box. [57] Sgt.

Martens testified in cross-examination that he was searching the vehicle without a warrant and incident to arrest to look forevidence to support the offence of possessing break-in instruments. What he had in mind when searching the vehicle were “robust”objects used for cutting or prying, such as plyers, reciprocating saws, grinders, and crowbars. He agreed that a number of those itemswould be metal or another hard material. He also agreed that a legitimate police tactic or tool included leveraging a traffic stop foranother investigation. [58] Sgt.

Martens located several sets of plyers; six saw blades; a grinder wheel; binoculars; safety goggles; wire cutters; Allen keys; acrescent wrench; a charged DEWALT grinder; three unopen packs of reciprocating saw blades; at least three screwdrivers; sockets; twodrill bits; a cutting wheel; and a pipe wrench. As noted above, he also located a backpack on the back passenger seat containing severalitems which appeared to belong to a female. [59] The green “Christian Dior” box was found next to the backpack. Sgt. Martens described it as being about three inches by threeinches and one-inch tall.

He testified that the purpose behind his search was the discovery of break-in instruments to be used at trial, notfor officer or public safety reasons. Under cross-examination, he testified he was not aware of the intended purpose of the box orwhether it was used for storing break-in tools or instruments, unless it contained a porcelain rock that could be used for breaking glass. He agreed it was otherwise not big enough to store break-in instruments and that he did not write in his statements that he was lookingfor a porcelain rock in the box. [60] Sgt.

Martens testified he opened the box and it appeared to contain a substance he recognized as “crystal meth,” along with aglass pipe. He further testified that when he looked in the hidden compartment under the cup holders, he was looking for drugs, notbreak-in instruments.

[ 61 ] Defence counsel argues that the explanation Sgt. Martens offered in his testimony should be rejected on the basis of credibility. In particular, defence counsel argues that Sgt. Martens did not mention that he was considering the possibility of a porcelain rock in the cardboard box in any of his prior statements in the investigation, including a supplemental report that was prepared days before the voir dire, and nor was it part of his direct evidence. [ 62 ] Crown counsel argues that even though the evidence was new, it is not invalidated by that fact, and Sgt.

Martens is not to be held to a standard of perfection. His testimony was clear, unhesitating, and, faced with a very involved investigation with a great deal of evidence to log, he simply did not create an exhaustive list. The Crown argues Sgt. Martens always had the explanation he provided, but he did not include it in his notes because of an oversight. [ 63 ] I do not think this, in itself, raises a credibility issue. However, while Sgt.

Martens agreed on cross-examination that he did not record in his statement that he was looking for a porcelain rock at the time he searched the green box, at no time in his direct evidence or under cross-examination did he indicate that he always felt the green box could have contained a porcelain rock and that he simply failed to record it as a result of an oversight. [ 64 ] Furthermore, defence counsel argues that the general concern the Delta Police Department had concerning break and enters in the area colours the entire interaction, and says the fact that Sgt.

Martens was looking for evidence of an offence generally colours the entire interaction and is a factor to consider as to why the green box was searched. [ 65 ] In light of the Delta Police Department’s general concern about stopping crime in the area and the reason for the patrol, and faced with the sheer volume and array of what was found during the search, I conclude that at the time of the search, Sgt. Martens did not specifically turn his mind to why he was searching the green “Chistian Dior” box.

The box was very small and, on its face, was unlikely to contain any break-in instruments, including porcelain rocks, particularly given the nature of the other tools that were found in the vehicle and the markings on the box. [ 66 ] I find that the explanation provided was a reasonable explanation that occurred to him under cross-examination as a reason for searching one small item among a number of things that were searched and indexed that evening. In so finding, I make no adverse credibility findings with respect to Sgt.

Martens’ evidence, which was generally credible, clear, forthright, unshaken, and unvarnished. [ 67 ] However, in addition to finding that Sgt.

Martens did not have a valid purpose for searching the green box incident to arrest in mind when the search was conducted, I am also not satisfied that there was a reasonable prospect of securing evidence “of the offence for which the accused is being arrested” in searching the green box. [ 68 ] Therefore, I conclude the search of the green box was not “truly incidental to arrest” for possession of break-in instruments and that the search of the green box was therefore unreasonable. (RULING ON VOIR DIRE CONCLUDED)