R. v. Desrochers, 2020 BCPC 273

Citation: R. v. Desrochers 2020 BCPC 273 Date: 20201127 File No: 24621-1 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NICHOLAS JAMES DESROCHERS BAN ON PUBLICATION

SECTION 517 CCC RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J. GUILD Counsel for the Crown: D. Heighes Counsel for the Defendant: D. Verdurmen Place of Hearing: Salmon Arm, B.C. Date of Hearing: October 19, 20, 2020 Date of Judgment: November 27, 2020

INTRODUCTION [ 1 ] Mr. Desrochers was charged on Information 24621-1 with five indictable offences under the Criminal Code that relate to events on December 24, 2019, and elected to have a trial in the Provincial Court of British Columbia.

I summarize the charges as follows: 1) Possession of a stolen truck valued over $5,000 contrary to s. 355(a); 2) Possession of a firearm and ammunition while he was prohibited from doing so, contrary to s. 117.01(1); 3) Possessing a firearm without authorization, contrary to s. 91(1); 4) Occupying a motor vehicle knowing there was a firearm or prohibited ammunition in the vehicle, contrary to s. 94(1); and 5) Possessing an unloaded handgun with readily accessible ammunition capable of being discharged in that handgun without authorization, contrary to s. 95(1). [ 2 ] He filed a Notice of Charter Application on September 4, 2020, well before the first day of trial, October 19, 2020.

Two witnesses testified before the Charter voir dire was requested. At that point, the Crown required Mr. Desrochers to show he had standing before commencing the hearing, and argued he did not. I found that he had standing and stated I would provide full reasons at a later date. These are my reasons. LAW [ 3 ] The Charter violation alleged relates to s. 8 of the Canadian Charter of Rights and Freedoms [1] ( Charter ), which states: “ Everyone has the right to be secure against unreasonable search or seizure.” [ 4 ] The threshold for declaring a voir dire to inquire into an alleged Charter breach is low.

The applicant need only demonstrate a reasonable basis upon which the court could find a Charter violation. [2] [ 5 ] Mr. Desrochers must establish a reasonable expectation of privacy in what he claims was seized and/or searched. The determination of a reasonable expectation of privacy is made before entering into a voir dire , because if he has an insufficient privacy interest, there can be no violation of his Charter rights and therefore no right to a hearing on that issue. [ 6 ] A judge must have regard to all of the circumstances when determining if a person has a reasonable expectation of privacy.

A detailed list of factors was set out in R. v. Edwards . [3] In R. v. Patrick , [4] the Supreme Court of Canada grouped the factors under four headings: (1) the subject matter of the alleged search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances. PARTIES’ POSITIONS AND ANALYSIS

(1) The Subject Matter of the Alleged Search [ 7 ] It is important to ascertain with some specificity the subject matter for which the privacy claim is made. [5] In this case, the claim is with respect to a bag and its contents. It is a physical object that is readily identifiable and is not in dispute.

(2) The Claimant’s Interest in the Bag [ 8 ] The Crown’s case alleges that the accused was driving a stolen truck and had spent some considerable time in it. Witnesses testified in the trial that they saw a male operating a truck in their yard where it was stuck in snow, and that he said he was travelling from Alberta to Vancouver Island and had stopped to let out his two dogs. The Crown will allege that the male is Mr. Desrochers.

The witnesses did not identify him. [ 9 ] The testimony indicated that police were not called to report an offence, but to try to assist in getting the truck and the male out of the caller’s yard. In the caller’s view, although the male was continually working at getting his vehicle unstuck, he was not taking any meaningful action because it would require a tow truck and the male would not listen to him, which made the caller feel uncomfortable. [ 10 ] The Crown is also expected to lead the following evidence: • Mr.

Desrochers threw something out of the truck when it was stuck; • He was arrested for mischief and possessing a stolen vehicle; • After his arrest police determined that the truck was stolen; • After that police asked him if he wanted anything from the truck and Mr. Desrochers replied that he wanted the bag in question; • Police then retrieved the bag from the truck, took it back to and searched it at the police detachment, apparenlty to make an

inventory of the bag and its contents; • In the course of that search they found a magazine for a handgun and ammunition; and • Police later found a handgun that was compatible with the ammunition and magazine near the truck in the snow. [ 11 ] It is the Crown’s position, or theory, that the bag belonged to Mr. Desrochers; that he accordingly knew of its contents since he had been travelling for some time; that he possessed the magazine and ammunition; and that he threw the handgun found by police in the snow.

The Crown is expected to argue that the evidence supports that theory and should lead to his conviction on three of the charges. Mr. Desrochers relied on the testimony led at trial, evidence expected to be led by the Crown, and the Crown’s theory or path to conviction in support of the standing argument. There is no dispute that he had an interest in the bag and its contents.

(3) The Claimant’s Subjective Expectation of Privacy in the Bag [ 12 ] Notwithstanding the testimony, expected evidence and the Crown’s theory, the Crown argued that Mr. Desrochers had no standing because he had no privacy rights with respect to the bag. As I understood it, the argument was this: he was lawfully arrested and in police custody; the truck was stolen so Mr. Desrochers had no lawful interest in it; the police had control over the truck and its contents when the bag was seized; and the bag was searched at the police detachment during the booking-in process.

Since a person who is lawfully in the state’s custody does not have a reasonable expectation of privacy in respect of his belongings when they are held by the state, Mr. Desrochers had no subjective expectation of privacy in the bag and did not have standing. [ 13 ] The Crown referred to R. v. Bishop , [6] R. v. Blake [7] and R. v. Copan [8] in support of the proposition that Mr. Desrochers lost any subjective expectation of privacy in the bag when he was booked into the jail cells. In Copan , it was accepted that the items were taken into police custody as a result of a legitimate and proper search.

There is no such admission by Mr.

Desrochers. [ 14 ] The appellant’s argument in Copan was that once police sealed an envelope that contained his property, including money, he thereby obtained a reasonable expectation of privacy, the police became bailees without reward, and the subsequent search by police of that sealed envelope violated his privacy, despite the police lawfully having custody of the items throughout. [ 15 ] It was in those circumstances that the court stated the appellant did not have control over his items and likewise did not have an expectation of privacy by virtue of them being placed into a sealed envelope.

The court limited their statement to the specific facts of the case, [9] where the police would have found the illicit nature of the items had they in fact inspected them before putting them in the envelope. In other words, the possibility was left open that in another case police could be bailees and a person in custody might have a reasonable expectation of privacy with respect to some items. The facts are very different from this case. [ 16 ] The Court in Blake referred to Copan in support of the conclusion that there was no s. 8 violation in Mr. Blake’s case. Mr. Blake had been arrested for one offence.

It was admitted that police seized his shoes for a valid purpose and with lawful authority while he was being booked into custody at the police detachment. As noted, that is not the situation in the case at bar. [ 17 ] After seizing the shoes, an officer looked at the soles and concluded they were the same as the soles in a photograph that had been circulated to police in respect of an investigation into a different offence. The Yukon Court of Appeal held that in those circumstances, Mr. Blake did not have a reasonable expectation of privacy in the tread on the soles of his shoes.

Just as the police in Copan were entitled to look at the money, the police in Blake were entitled to look at the soles of the shoes. There is no general broad statement in Blake that an arrestee can never retain a privacy interest in items while in custody. [ 18 ] In Bishop , a Charter voir dire was held to determine if the arrest and search of a residence were lawful. In addition, Mr. Bishop claimed a s. 8 Charter violation when police seized his personal effects as he was being booked into cells – the same circumstances as in Blake .

His personal effects were itemized for return, and subsequently police came to understand that two items might afford some evidence with respect to the offences with which he was charged. [ 19 ] In the argument before me, the Crown referred to Blake and paragraph 125 in Bishop for the broad proposition that once in lawful custody, an accused no longer has a reasonable expectation of privacy in any items seized. But that is not what was said in Blake , nor in Bishop . What Bruce J. said in Bishop was that in accordance with Copan , Mr.

Bishop no longer had a reasonable expectation of privacy in the items that were taken from him when he was booked into cells. [ 20 ] Madam Justice Bruce also referred to R. v. Budd , [10] where the court held that seizure of keys that had been transferred to another state official, a deputy sheriff, did not violate the Charter , as the keys were lawfully seized at the time of booking in and were kept in control of the state. In Budd , Wilson J. noted that police were not entitled to seize personal effects before the person was placed in cells, [11] which appears to be what occurred in the case at bar.

That certainly leaves room for argument in this case. [ 21 ] For over 25 years various courts, including the Supreme Court of Canada, have stated that a person who is in custody, especially pre-conviction, retains some privacy interests. [12] In R. v. Stillman , [13] a 17-year-old was arrested for murder and refused to provide DNA samples. While in custody, he blew his nose and threw the tissue in a wastebasket. The tissue was seized by police. The Supreme Court of Canada held he retained a privacy interest in the tissue and the DNA in it even while in custody.

The court acknowledged that an arrestee has a lowered expectation of privacy, but also differentiated between those in custody pre- and post-conviction, with the latter having an even lower – though not absent – expectation of privacy. [14] [ 22 ] In R. v. W.S. , [15] Henderson J. found that W.S., who was in police custody at a detachment, still retained a privacy interest in his vehicle which was parked at his residence. Police had control over that vehicle. W.S.’s right to privacy was violated when police facilitated a search in it by another person. [ 23 ] In the recent decision of R. v.

Smith [16] provided by defence counsel, in the course of arrest police seized Ms. Smith’s purse. She wanted to give it to another person at the scene and police refused. Police searched the purse at the arrest site and found contraband. The trial judge’s finding that the search violated Ms. Smith’s rights was upheld on appeal. The Crown argued for a very broad police power

to search incident to arrest. In the course of disposing of that argument, the court referred to an excerpt from R. v. Nolet [17] : [53] The following day an RCMP officer from the Integrated Proceeds of Crime Unit searched the tractor-trailer rig for the purpose of creating an inventory. Caslake ruled that “an inventory search per se does not serve a ‘valid objective in pursuit of the ends of criminal justice’” because its purposes “relate to concerns extraneous to the criminal law. If the police feel the need to inventory a car in their possession for their own purposes, that is one thing.

However, if they wish to tender the fruits of that inventory search into evidence at a criminal trial, the search must be conducted under some lawful authority” (para. 30). Corporal Houston’s work was incidental to RCMP administrative procedures rather than to the arrest of the appellants. As a result, it did not meet the requirements of a warrantless search, and the fruits of the “inventory” search were thus harvested in breach of s. 8 . [18] [ 24 ] Finally, in R. v.

Santana , [19] released after this case was argued, and in circumstances somewhat similar to the case at bar, the issue on appeal was the warrantless search of a vehicle and the seizure and search of items found in it. The Ontario Court of Appeal reversed the trial ruling and held that police unlawfully visually examined the interior of the vehicle, seized a jacket and searched it, resulting in a violation of Mr. Santana’s S. 8 Charter rights. The court inherently accepted that the arrestee maintained a privacy interest in various items in the vehicle despite being arrested and only a passenger in it. [ 25 ] In

summary, it is clear that arrestees retain a diminished expectation of privacy. Depending on the circumstances, that may extend to personal items under state control, which in turn may depend on the lawfulness of the seizure or search. Since police apparently only concluded that the vehicle was stolen after arrest, the grounds for Mr. Desrochers’ arrest for mischief are entirely unclear, and from the anticipated evidence it may be that police failed to meet the requirements of s. 10(

a) and (b). The Crown’s basis for asserting a lawful search are far from self-evident. [ 26 ] The Crown referred to R. v. Russell [20] for the proposition that the police had the authority to conduct an inventory search of the bag. What Russell states is that where a vehicle is lawfully taken into police custody , as it was in that case, the police have authority to conduct an inventory search of its contents, [21] which may include an inventory search of items found in the vehicle, such as a laptop, bag, or purse. [ 27 ] Mr.

Desrochers did not admit he was lawfully arrested, that the vehicle was, at the time of arrest or later, in lawful police custody, or that the search was a valid inventory search. To the contrary, the Charter Notice indicated that there was no valid purpose for the search. Not making any of those admissions was a reasonable position to take. If those findings are made in favour of Mr. Desrochers, the Crown may not be able to show the search was lawful. Those issues cannot be summarily dismissed.

At this point, and without pre-determining the issues, it appears those arguments, or some of them, have a reasonable prospect of success.

(4) The Claimant’s Expectation of Privacy in the Bag was Objectively Reasonable [ 28 ] In the course of submissions, Crown acknowledged that if Mr. Desrochers had a sufficient subjective expectation of privacy in the bag, then it would be objectively reasonable. I agree with that concession. CONCLUSION [ 29 ] I reject the Crown’s position that Mr. Desrochers did not and could not have standing for several reasons.

First, assuming there was a lawful arrest, the result would be that no one who was lawfully arrested would ever have standing to make a Charter argument that their s. 8 rights were violated by police conduct. It would mean that state actions would be immune from judicial scrutiny and above the supreme law of the land. That is not the case. People in custody retain a reasonable expectation of privacy, albeit diminished. In each case it must be determined whether, in all the circumstances, the claimed expectation of privacy reasonably extends to personal items.

Since circumstances vary from one case to the next, it is impossible to conclude that no one in circumstances similar to Mr. Desrochers could ever have standing. [ 30 ] Second, Mr. Desrochers does not admit that police had authority to conduct an inventory search of his bag, or that it was in fact an inventory search as alleged by the Crown. In other words, the nature of the authority for the search is a live issue. The Crown’s position is predicated upon Mr. Desrochers’ arrest being lawful. That is not admitted. The Crown’s position as to the lawfulness of the search is just that – a position.

It is not at all clear that the facts in the case at bar are identical to those in Russell and therefore must lead to the same result. [ 31 ] Mr. Desrochers could, on the information and evidence before me, reasonably argue that his arrest was unlawful; that the police did not provide his Charter rights as required, or failed to hold off questioning him; or that the seizure, or the search of the truck before the bag was seized, were unlawful.

Based on the evidence at trial so far, he could argue that the police had not assumed control over the vehicle because it was not towed that day and the police left it unattended. Given my review of the law, it is arguable that Mr. Desrochers continued to have a privacy right in the bag and that police did not have lawful authority to seize or search it. [ 32 ] Third, in 2000, an obiter comment in R. v.

Khuc, Bui, Pham & Tran [22] indicated it would be improper for the Crown to oppose an application for a voir dire if the accused relied on the evidence and position to be advanced by the Crown – precisely what is occurring in this case. In a later decision by a different panel, R. v. Stein , [23] the correctness of the comment in Khuc was questioned.

The court indicated that what was said in Khuc was perhaps contrary to what had been said by Prowse J.A. in an earlier case, [24] namely that an accused could not rely on a Crown theory to establish standing, but had to rely on evidence. [ 33 ] The comment in Khuc , to my reading, did not refer solely to theory, but to the combination of evidence and the Crown’s view or expected submissions as to what should flow from that evidence. That theory equates to position is shown by having regard to a defence request for particulars. Crown’s theory or position does not constitute formal particulars within

section 587 of the Criminal Code , so that the Crown is not bound by particularization of its theory - its position as to liability [25] . In any event, the court in Stein also appeared to refer to the inferences sought by the Crown – its position or theory as to liability – as providing a basis for standing: [22] … If the case for the Crown is that because of an ownership interest or control of the property, an accused should be found to be in possession of items discovered in and about the property, then such accused could be found to have status to challenge a search because

the individual will be able to satisfy certain of the Edwards criteria . [26] … (Emphasis added) [ 34 ] Whatever actual differences there may be between the comments in Khuc and Stein is unclear to me. In any event, more recently the Supreme Court of Canada stated that an accused can rely on the Crown’s facts and theory of the case: [32] … where the alleged Crown facts, if taken to be true, would establish certain elements of the applicant’s s. 8 claim, he or she need not tender additional evidence probative of those facts in order to make out those same elements.

Although the entirety of the facts and the Crown theory may not be apparent at the time of the voir dire, the court may infer it from the nature of the charges. [27] … (Emphasis added) [ 35 ] An accused can ask the court to assume as true any fact the Crown will allege, rather than calling any evidence, to establish standing. [28] The facts alleged can include the necessary inferences, which is part of the Crown’s theory or position.

That supports the comment in Khuc , which seems to resolve to an issue of fairness. [ 36 ] If the Crown seeks to have evidence entered at trial, an accused may require the Crown to establish the lawfulness and reasonableness of the search and/or seizure. Mr. Desrochers was relying on the evidence and some of the inferences or theory to be advanced by the Crown in this case to convict him – that he possessed a bag and knew of its contents. That does not mean he is bound to agree with all of the Crown’s case, theory and the conclusions that Crown seeks the court to find. That is the essence of a trial. Arguing Mr.

Desrochers has no privacy interest while at the same time seeking to use that same or related interest to convict him is at odds and incompatible with a fair trial. [ 37 ] Finally, in each of the cases relied on by the Crown, a voir dire was held to determine Charter issues. If the Crown’s proposition - that an accused who is in lawful custody can never have a reasonable expectation of privacy in items alleged to be his and seized by police - is correct, I would have expected a clear statement to that effect by an appellate court. Russell could have been such a case. There was no such statement.

I know of no such statement, nor was I referred to one. RULING [ 38 ] Mr. Desrochers has standing. _________________________ The Honourable Judge J. Guild Provincial Court of British Columbia [5] Spencer ; R. v. Jones , 2017 SCC 60 , at para 14