R. v. Abarca, 2019 BCPC 290

Citation: R. v. Abarca 2019 BCPC 290 Date: 20191204 File No: 247020-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. LUIS ABARCA RULING ON APPLICATION to EXCLUDE EVIDENCE PURSUANT TO SECTION 24(2) OF THE CHARTER OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: C. Coulson Counsel for the Defendant: S. Janicki and J. Davidson Place of Hearing: Vancouver , B.C. Date of Hearing: October 24, 2019 Date of Judgment: December 4, 2019 INTRODUCTION [ 1 ] This is an application by Mr. Abarca to exclude evidence pursuant to s. 24 (2) of the Charter . For the following reasons the application is granted.

BACKGROUND [ 2 ] In an earlier decision this court found that the police violated Mr. Abarca’s rights pursuant to ss. 9, 10 (b), and 8 of the Charter . A fulsome description of the evidence related to these breaches is contained in R. v. Abarca, 2019 BCPC 232 . The facts related to the breaches are as follows.

Section 9 – Arbitrary detention [ 3 ] While driving through a parkade, Constable Cheng saw a vehicle stopped in a parking stall with the brake lights on. He queried the vehicle’s licence plate and he was informed that the vehicle was registered to a person that did not have a driver’s licence. [ 4 ] Constable Cheng positioned his police car behind the vehicle, activated his emergency lights and approached the driver’s side. Reclined in the driver’s seat was Mr. Abarca. It was obvious to Constable Cheng that Mr. Abarca was not the registered owner. [ 5 ] Constable Cheng asked Mr. Abarca for his driver’s licence.

Of note is, Constable Cheng erroneously believed that the Motor Vehicle Act required Mr. Abarca to produce a driver’s licence. Given that Mr. Abarca was not driving or operating a motor vehicle, this court concluded that Mr. Abarca was not required to produce a driver’s licence and held that the interaction amounted to an arbitrary detention contrary to s. 9 of the Charter. [ 6 ] Ultimately, Mr. Abarca did not produce a driver’s licence and this resulted in Constable Cheng arresting him for obstruction. As there was no statutory obligation requiring Mr.

Abarca to produce a driver’s licence this court held that the arrest was arbitrary and contrary to s. 9 of the Charter.

Section 10 (b) – Failure to provide immediate access to counsel [ 7 ] When Mr. Abarca was arrested he was read his rights pursuant to ss. 10 (

a) and (

b) of the Charter and when asked if he wanted to speak to a lawyer, he indicated that he did. Despite this, two hours and forty minutes elapsed before Mr. Abarca’s request to speak with a lawyer was facilitated. Given the delay and the lack of justification, this court held that Mr. Abarca’s s. 10 (

b) right to counsel was violated.

Section 8 – Unreasonable search [ 8 ] Upon his arrest, Mr. Abarca was searched by Constable Cheng. This search was incidental to the arrest, however, given that the arrest violated Mr. Abarca’s s. 9 rights the Crown could not rely on the (improper) arrest to justify the search of Mr. Abarca’s person, accordingly, the search violated Mr. Abarca’s s. 8 rights. [ 9 ] After searching Mr. Abarca, Constable Cheng searched the vehicle. This search was conducted incidental to Mr. Abarca’s arrest. Given the arrest violated Mr.

Abarca’s rights, the Crown could not rely on the arrest to justify searching the vehicle, therefore, the search of the vehicle was unreasonable and in violation of Mr. Abarca’s s. 8 rights. THE LEGAL PRINCIPLES A. The Charter [ 10 ]

Section 24 of Charter reads: 24

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 11 ] In R. v. Grant, 2009 SCC 32 , the Supreme Court of Canada revised the approach to be taken in determining whether evidence obtained in breach of a Charter right should be excluded.

In doing so, the court brought clarity to s. 24 (2) and the phrase, “bringing the administration of justice into disrepute”. McLachlin C.J. (as she then was) and Charron J., noted at paragraphs 67-70: 67 The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term “administration of justice” is often used to indicate the processes by which those who break the law are investigated, charged and tried.

More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. 68 The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case.

Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. 69 Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice.

Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. 70 Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[ 12 ] Then, a t paragraph 71, the court set out the approach that must be taken when faced with an application to exclude evidence pursuant to s. 24 (2): 71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. … [ 13 ] The above principles were summarized in R. v. Reddy, 2010 BCCA 11 , and at paragraphs 91-94 Mr.

Justice Frankel stated : 91 In deciding whether to admit or exclude evidence, a court must now assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct); (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little); and (3) society’s interest in the adjudication of the case on its merits.

See also: Harrison at para. 2 92 With respect to the first factor—seriousness of the breach—the greater the level of state misconduct, the greater will be the need of the courts to disassociate themselves from that conduct. Wilful or reckless disregard for Charter rights will, therefore, tend to support exclusion: paras. 71-74. Further, as the Chief Justice and Charron J. noted (at para. 75): “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.

However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: [citations omitted]. 93 As for the second factor—impact of the breach on the accused—it was observed that “[t]he impact of a Charter breach may range from fleeting and technical to profoundly intrusive”.

The more serious the impact is on the rights of the accused, the more likely it will be that exclusion is warranted: paras. 76, 77. 94 The last factor—society’s interest in a decision on the merits—involves the question of “whether the truth seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”: para. 79. The reliability of the evidence is an important consideration, as is the importance of the evidence to the truth-seeking function of the trial.

Although “seriousness of the offence” remains a consideration, it has far less importance than under the Collins / Stillman framework, because s. 24(2) focuses on the long-term implication for the repute of the administration of justice, and not the public’s short-term desire for a conviction: para. 84. [ 14 ] As such, in determining if the admission of the evidence would bring the administration of justice into disrepute this court must consider the following factors; the seriousness of the state conduct, the impact that the breaches had on Mr.

Abarca’s Charter protected interests and society’s interest in the case being determined on the merits. ANALYSIS The seriousness of the state conduct [ 15 ] The Crown argues the seriousness of the conduct in relation to the detention and the arrest was at the low end of the scale. In this regard, the Crown argues that Constable Cheng was not acting in bad faith, that he was not motivated by malice, and that, his error was inadvertent and simply fuelled by a misunderstanding over the term “operating a motor vehicle” as contained in the Motor Vehicle Act .

In support, the Crown points to the novel analysis that the court engaged in for the purpose of determining if Mr. Abarca was operating a motor vehicle and therefore required to produce a driver’s licence. [ 16 ] Counsel for Mr. Abarca argues the conduct in this case was serious. In support, they point to the number of breaches, the absence of good faith and the failure by Constable Cheng to consider if Mr. Abarca was in fact operating a motor vehicle at the relevant time. [ 17 ] In considering the matter, I find that the conduct that resulted in Mr. Abarca’s Charter rights being breached to be serious.

Although, I accept that the consideration of whether Mr. Abarca was required to produce a driver’s licence was somewhat novel, I observe that Constable Cheng failed to give any consideration to whether Mr. Abarca was required to produce a driver’s licence. Rather, he proceeded to assume that Mr. Abarca’s occupancy in the driver’s seat required him to produce a driver’s licence. Simply, there is no evidence indicating that Constable Cheng turned his mind to whether Mr. Abarca was driving or operating a motor vehicle.

Instead the evidence shows he simply relied on the statue without considering if the circumstances he faced applied to the relevant section. [ 18 ] I arrive at the above accepting that police officers are not expected to have detailed knowledge of the law. However, I observe the court’s comments in Grant where at paragraph 133 the court stated:

133 While police are not expected to engage in judicial reflection on conflicting precedents, they are rightly expected to know that the law is. [ 19 ] Recently, in Kosoian v.

Société de transport de Montréal , 2019 SCC 59 , the Supreme Court of Canada considered a civil case related to a wrongful arrest observed at paragraph 55: 55 Police officers are obliged to have an adequate knowledge and understanding of criminal and penal law, of the offences they are called upon to prevent and repress and of the rights and freedoms protected by the Charters . [ 20 ] In my view, Constable Cheng simply failed to apply a consideration of the circumstances and how they applied to the Motor Vehicle Act . [ 21 ] A contributing factor to my finding that the breaches were serious was the apathy displayed regarding giving Mr.

Abarca timely access to counsel. In this regard, he asked to speak to a lawyer, and yet no efforts were undertaken to give his request priority, rather, the evidence leads me to conclude that Mr. Abarca was only given access to counsel when it was convenient for the officers; two hours and forty minutes after Mr. Abarca’s request. Given the importance of accessing counsel, the well-known requirement that an accused person must be given immediate access to counsel and the displayed apathy to these principles, I cannot find that the police acted in good faith. The impact of the breaches on Mr.

Abarca [ 22 ] The Crown acknowledges the violation in relation to giving Mr. Abarca access to counsel is problematic, however, they point out that the police did not try and question Mr. Abarca, hence, the delay in him accessing counsel did not undermine the purpose of this right. [ 23 ] As for the search of the vehicle, the Crown points to the lessened expectation of privacy and highlights that the drugs were observed in plain view, hence, the vehicle would have been searched once the drugs were observed.

Essentially, they argue the discovery of the items found in the vehicle was inevitable. [ 24 ] Counsel for Mr. Abarca argues the breaches had a significant impact on Mr. Abarca. In this regard, counsel points to the length of time in which Mr. Abarca was held before he was permitted to speak with a lawyer, that the arrest and detention significantly restricted his liberty and finally that the police conduct breached his privacy. In response to the suggestion that Mr. Abarca had a lowered expectation of privacy in the vehicle, counsel relies on paragraphs 30- 31 of R. v.

Harrison, 2009 SCC 34 : 30 The majority of the Court of Appeal emphasized the relatively brief duration of the detention and the appellant’s low expectation of privacy in the SUV, and concluded that the effect of the breach on the appellant was relatively minor. It is true that motorists have a lower expectation of privacy in their vehicles than they do in their homes. As participants in a highly regulated activity, they know that they may be stopped for reasons pertaining to highway safety — as in a drinking-and-driving roadblock, for instance.

Had it not turned up incriminating evidence, the detention would have been brief. In these respects, the intrusion on liberty and privacy represented by the detention is less severe than it would be in the case of a pedestrian. ... 31 This said, being stopped and subjected to a search by the police without justification impacts on the motorist’s rightful expectation of liberty and privacy in a way that is much more than trivial.

As Iacobucci J. observed in Mann , the relatively non-intrusive nature of the detention and search “must be weighed against the absence of any reasonable basis for justification” (para. 56 (emphasis in original)). A person in the appellant’s position has every expectation of being left alone — subject, as already noted, to valid highway traffic stops. [ 25 ] Counsel points out that Mr. Abarca was detained, arrested, that he and the vehicle he was in possession of were all searched without justification. [ 26 ] Considering the above, I find that the cumulative impact of the breaches had a significant impact on Mr.

Abarca’s Charter protected interests. His liberty was taken from him for more than a few minutes, his privacy was impacted when he and the vehicle were searched and finally he was denied his right to immediately access counsel. As for the suggestion that the drugs would have been discoverable, it is my view that the Charter offending conduct, namely, the detention and the arrest, significantly contributed to the drugs coming into plain view. Hence, the drugs would not have been discoverable but for the offending conduct.

Society’s interest in adjudicating the case on the merits [ 27 ] The Crown argues that society has a strong interest in the case being determined based on the evidence that was seized. Specifically, the evidence that was seized was real and therefore reliable. Further, that the exclusion of the evidence will result in the Crown being unable to prove the serious charges against Mr. Abarca. [ 28 ] Counsel for Mr. Abarca points out that the seriousness of the charge can cut both ways.

Simply, the more serious the charge the more important that the state actions are Charter compliant and on the other hand society has an interest in serious charges being prosecuted. [ 29 ] In my view, society always has an interest in having a case being decided on the merits. However, a free and democratic society necessitates that cases are determined based on evidence that is not tainted by breaching the fundamental principles related to a free and democratic society.

As such, and considering the breaches in issue I conclude that in the context of the instant matter the interest in having the case decided on the merits weakens. CONCLUSION [ 30 ] Balancing the above considerations, I conclude that the long-term integrity and public confidence in the administration of justice mandates the exclusion of all of the evidence that was seized from Mr. Abarca. Accordingly, the application is granted.

____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia