R. v. Lacroix, 2019 BCPC 7

Citation: R. v. Lacroix 2019 BCPC 7 Date: 20190124 File No: 247132 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. KIANA SHERA LACROIX RULING ON VOIR DIRE OF THE HONOURABLE JUDGE N.N. PHILLIPS Counsel for the Crown: J. Lhalungpa Counsel for the Defendant: D. Fai Place of Hearing: Vancouver , B.C.

Dates of Hearing: January 16 and 17, 2019 Date of Judgment: January 24, 2019 [ 1 ] Kiana Lacroix is charged that on December 4, 2017, in Vancouver, BC, she did unlawfully possess a controlled substance, cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA ). At the start of this case, the court declared a voir dire to hear the evidence of three police officers who investigated Ms. Lacroix.

The accused asks this court to determine whether her arrest on December 4 th was unreasonable; whether the searches that followed her arrest were thus unlawful; and to find both her ss. 8 and 9 rights under the Canadian Charter of Rights and Freedoms were breached by the police in this case. If the court rules in Ms. Lacroix’s favour on the ss. 8 and 9 arguments, she asks the court to exclude the evidence seized under s. 24(2) of the

Charter . [ 2 ] Constable Wu testified she was on duty in a police car on the 900 block of Beach Avenue when she saw a parked black 2015 Chevrolet Cruze. She noted there were three occupants in the car and the driver was a black male in his thirties, who had a medium build and Afro hair with braids. Cst. Wu said she ran the license plate of the car on her computer via CPIC and learned it was stolen. In her evidence in chief, Cst. Wu said she did not learn anything else about the car at this time. [ 3 ] Cst. Wu said her partner, Cst. Lail, parked their police car directly in front of the suspect vehicle.

The officer said she made a radio broadcast for assistance from other police units and then both officers got out and approached the vehicle. Cst. Wu said as she did so, she noted the driver was no longer in the driver’s seat and that there was a female in the rear driver’s seat and a male in the front passenger seat. [ 4 ] Cst. Wu said as she was approaching the car, she saw the male she recognized to be the driver exiting the building located at 907 Beach Avenue and walk toward them. She said this observation was made within seconds of them approaching the parked vehicle. Cst.

Wu said she walked up to the male and escorted him to the south sidewalk where she placed him in handcuffs and told him he was under arrest for possession of stolen property over $5000 relating to the stolen vehicle. [ 5 ] Cst. Wu said her grounds for the arrest of the driver were that she had learned the car was stolen and the male had knowledge of it and was possibly the one who stole it. She said she formed her belief that the male driver was arrestable as soon as she learned the vehicle was stolen. [ 6 ] Cst. Wu said Cst. Ramirez and Cst.

Fildes arrived on the scene at 10:57 pm and they dealt with the other two occupants of the car while she stayed with the driver. She told the court she was about two feet away from the suspect vehicle at this time. She recalled Cst. Ramirez dealt with the female occupant in the back seat, and he then cleared the rest of the vehicle to make sure there were no other occupants in it. She recalled when Officer Ramirez got to the trunk of the vehicle, he noted there was marihuana inside and he told everyone they were under arrest for possession of a controlled substance. Cst.

Wu said this is when she arrested the accused for possession of a controlled substance, relying on Officer Ramirez for the grounds to arrest. She said that arrest occurred at 11:10 pm. [ 7 ] Cst. Wu told the court she searched Ms. Lacroix subsequent to her arrest and located $385 cash in a wallet found on her person. She also noted that Ms. Lacroix provided her with her driver’s license and that she confirmed the name, address, and date of birth provided. Cst. Wu identified Ms. Lacroix in the courtroom as the person she dealt with that night. [ 8 ] Cst. Wu said later, after Cst.

Ramirez conducted a further search of the car and said he found a brick of cocaine, she re-arrested Ms. Lacroix for possession for the purpose of trafficking based on what Cst. Ramirez had said. She agreed in cross-examination that she had not initially Chartered and warned Ms. Lacroix, but believed Cst. Ramirez had done so. She clarified that it was after she had Chartered and warned the accused that she searched her and confirmed her identity.

She said this was the first time the accused said to her that the car was not stolen and that until this point in time, she had not heard any of the three suspects claim it was not stolen. [ 9 ] In cross-examination, Cst. Wu agreed she had prepared the police report and done so in chronological fashion. She agreed she had written that when she queried the license plate on the vehicle, the information she got back included that the vehicle had been taken without consent, rather than stolen; provided the name of the suspect; and identified Kiana Lacroix as the registered owner.

However, she said at the time this information was relayed, she was focused on the vehicle itself and did not read the information about the car other than its status as stolen. Even though she was paying attention to the car, Cst. Wu agreed she had not seen the driver get out of the car and go inside the nearby building. [ 10 ] Cst. Wu said she became aware Ms. Lacroix was the registered owner of the car minutes after she had Chartered and warned her. When asked in cross-examination whether everyone inside the vehicle immediately protested that the car was not stolen when the police approached, Cst.

Wu testified she did not hear them say that and she did not immediately deal with them. She said she did not recall whether either of the passengers had protested at the scene that the car was not stolen. Cst. Wu said she did not recall if the driver had told her that it was not a stolen vehicle. She added that the police would have still had to conduct an investigation as to why the car was listed as stolen on CPIC. [ 11 ] In cross-examination, Cst.

Wu reiterated that her grounds to arrest the driver were that CPIC indicated the car was stolen, he had care and control of the vehicle, and had knowledge it was stolen. She did not explain how she determined the driver knew the car was stolen. She agreed that she did not note any damage to the ignition, nor any evidence it had been broken into, and she did not recall whether the keys were in the car or whether it was running. When asked whether she would have had grounds to arrest the female in the rear seat of the car, Cst.

Wu stated the female would have had knowledge that the vehicle was stolen from being inside it. She agreed that the grounds for her arrest of Ms. Lacroix under the CDSA had come from Officer Ramirez. [ 12 ] Constable Ramirez told the court that at 10:56 pm, he and his partner were dispatched to assist Officers Wu and Lail regarding a call of a stolen vehicle on Beach Avenue involving multiple occupants. He told the court he saw a female sitting in the rear of the vehicle on the driver’s side when he first approached the car. He recalled that she was smoking a cigarette and was sitting in a normal position.

He said there was a purse on her right side, leaning against her thigh area. [ 13 ] Cst. Ramirez said the police realized everyone had to be removed from the vehicle, not only for officer safety, but also because they were investigating a stolen car. He said he asked the accused to get out of the car and told her they were investigating a stolen car and arrested her for possession of stolen property. He said he removed her and took her to the sidewalk.

The officer told the court that before the woman got out, she reached with her right hand and moved the purse over to the passenger side of the rear seat, about an arm’s length away. [ 14 ] Officer Ramirez said his grounds for the arrest of Ms. Lacroix were that it was a stolen car and that he did not know then whether she had stolen it or the other occupants of the car had. He said in his experience, it is not uncommon for people in vehicles to switch places, and just because a person is in the back seat does not mean they have not stolen the vehicle.

He said he believed someone had stolen the car because it had to get there somehow and it was on the police database as stolen. He said he was not sure if it was the

driver, the woman, or the front seat passenger who had stolen the car. [ 15 ] Cst. Ramirez said after Ms. Lacroix’s arrest, he grabbed the car keys or fob and opened the trunk of the vehicle. He did not say where or from whom the keys were obtained. Cst. Ramirez said he checked the trunk of the car because in his experience it was not uncommon for stolen cars to be used for kidnapping, and he searches larger compartments in vehicles to ensure no one, victim or suspect, is inside. He said he opened the trunk at 11:00 pm and did so pursuant to common law authority.

He recalled the trunk was quite messy inside, but there was a bag visible as soon as he opened it, in plain view. He said the clear plastic Ziploc bag contained what appeared to be marihuana bud. [ 16 ] Cst. Ramirez told the court he realized then that most likely more drugs would be found inside the car and the matter thus turned into a drug investigation.

He said he walked over and informed all three occupants that they were also under arrest for possession of a controlled substance and made sure they knew their Charter rights and their right to counsel, which he relayed to them in plain language and without reference to his police card. He said he did not know who the marihuana belonged to and, based upon his experience and training, he Chartered and warned everyone until it was proven otherwise. [ 17 ] Cst. Ramirez said he then searched the rest of the car, including a woman’s purse.

He found a clear Ziploc bag in the middle of the purse, which contained a white substance he recognized to be cocaine. Officer Ramirez said he also found a wallet-sized holder, a cell phone, and some papers inside the purse. The contents of the purse and the bag of marihuana from the trunk were laid out on the hood of his police cruiser and photographed by another officer while at the scene. Cst. Ramirez identified the items depicted in the photo as those he had obtained when he searched the vehicle. With respect to a TD Bank document, the officer said it looked similar to what he had seized.

He did not recall the name of the officer he turned the exhibits over to. His report provided the badge number of the officer he gave the exhibits to, but he agreed it was possible he had made an error in recording the badge number. [ 18 ] In cross-examination, Cst. Ramirez agreed he had not made any notes in his notebook, but said the investigation wrapped up fast enough to enable him to write things down on his laptop within about a half hour of finishing the investigation. He said he had written “…I had no information as to which of the three may have stolen the vehicle and that Ms.

Lacroix was under arrest until proven otherwise”. [ 19 ] When asked whether the accused immediately told him that she was the registered owner of the car, Cst. Ramirez said he remembered someone telling him that, but he was not sure if it was another officer who had done so. When asked whether Ms. Lacroix had shown him her driver’s license right away, he said he did not recall. He agreed it was possible that Ms. Lacroix could have told him she was the vehicle owner and shown him her identification.

He conceded in cross-examination that if a person told him they were the registered owner of a vehicle he was conducting a theft/possession investigation into, that he should follow-up on that information but did not in this case. Cst. Ramirez added that just because a person tells the police they are the vehicle owner does not prove that it is so and the police would still have to investigate. He said he had reasonable grounds to believe everyone in the car was part of a crime and that the police records showed it was a stolen car. [ 20 ] Cst. Ramirez agreed he told Ms.

Lacroix that she was under arrest until the investigation proved otherwise. He stated in cross- examination that he had not told her about her s. 10 Charter rights when he first arrested her because concerns for officer safety took precedence and because the scene was a dynamic one. Cst. Ramirez agreed that there were at least four officers present at the time. [ 21 ] In cross-examination, Cst. Ramirez said that when he first approached the vehicle, there were three persons inside including someone in the driver’s seat. Cst.

Ramirez was asked where he got the key fob from to search the vehicle and he said he did not remember, but then said it was from inside the car. [ 22 ] Cst. Ramirez was asked what made him believe Ms. Lacroix was in possession of the drugs he located. He said he did not know who they belonged to and the fact she was the registered owner was not a factor in how he dealt with the marihuana. He agreed he had only told Ms. Lacroix once that she was under arrest for drug possession and said he could not recall telling Cst.

Wu to arrest her for possession for the purpose of trafficking and that was not in his police statement. [ 23 ] In cross-examination, Cst. Ramirez was asked about his common law authority to search the trunk of the car and he said it was about the safety of the public and looking for someone possibly hiding or being held in the trunk. He agreed the search was not conducted as being incidental to arrest of the three occupants of the car, but was done for public protection and to look for other persons. He also agreed he was quick to search the trunk after he got to the scene. [ 24 ] Cst.

Lail told the court at 10:55 pm on December 4, 2017, he was driving a marked police car with his partner, Cst. Wu, in the passenger seat. He said he noted a 4-door sedan idling in the 900 block of Beach Avenue and said based on the time of day and the absence of foot and vehicle traffic, he slowed down because it seemed out of place. As he drove by, he said Cst. Wu was on the computer and the car came back as stolen and he pulled over. He had noted there were three persons inside the car, a driver and two passengers. [ 25 ] Cst. Lail said he and his partner got out of their cruiser and approached the vehicle.

As he did so, he noted the driver’s seat was empty. He said he asked the two occupants for their names and identification. He said the female in the rear seat appeared nervous and was quiet, and the male passenger in the front seemed very relaxed, and he was slunk backwards talking to the officer quite casually and unconcerned. He agreed one of the passengers had said the driver had just gone inside to get something. [ 26 ] Cst. Lail noted the female had a purse on her right side and her ID in her hand. He said the purse was easily within the reach of the woman’s right hand.

He said he informed the two passengers that they were being investigated for a stolen vehicle and that Ms. Lacroix handed him her ID, identified herself, and told him she was the registered owner of the car. Officer Lail said he did not verify her claim to be the owner at this point due to his concerns that a vehicle which had been reported stolen in Vernon was found idling in a quiet Vancouver block late at night. He added he was also suspicious because the car had three people in it, but now only two were inside. Cst. Lail said he then radioed for additional officers to attend. [ 27 ] Cst.

Lail said after more officers arrived, he left the two occupants of the car and went back to his cruiser to check the identities

of all three persons. He said by this point, the driver had returned and Cst. Wu had arrested him. Cst. Lail told the court that based on theinformation he collected, after checking, he was content that the accused was the registered owner of the car. He said he made thisdetermination at 11:01 pm. He said he got out of his cruiser then and was intending to tell the other officers on scene about thisconclusion when he was told by Cst. Ramirez that a substantial amount of drugs had been found inside the car. [28] Cst.

Lail told the court he had a number of concerns about the vehicle that led him to check on the identity of the three personsinvolved before telling his colleagues that one occupant was claiming to be the owner. The concerns he identified were the time of night,the vehicle was reported stolen, and that the driver had disappeared between when they first saw the car and the time he had backed uphis cruiser and pulled in front of it. He said the overly relaxed demeanour of the male and the overly nervous demeanour of the womanalso made him associate the vehicle with drug trafficking.

He testified that he knows from his training that persons involved in drugdealing have access to weapons and do not want to get caught by the police or charged. In cross-examination, he agreed he had not madeany note that Ms. Lacroix was nervous. [29] Cst. Lail said at about 11:30 pm he started collecting and seizing items at the scene including: a purse and contents; the bag ofmarihuana; a white substance shaped like a brick believed to be cocaine; numerous cell phones; and cash.

The white substance, whichweighed 253.76 grams, was sent for analysis and determined to be cocaine. [30] In cross-examination, officer Lail agreed he had a radio with him when he dealt with the accused at her car and that he couldhave used it to confirm she was the owner. However, he said this would not have addressed his safety concerns given that the driver haddisappeared. Cst. Lail acknowledged that had he confirmed over his radio that the car was not stolen, there would have been insufficientgrounds for continued detention or arrest.

He agreed there was no vehicle infraction noted except for the stolen vehicle complaint. However, when asked if the police would have then just released the three persons, Cst. Lail said there would have been a differentinvestigation regarding the idling of the car and referred to a City of Vancouver bylaw prohibiting the idling of vehicles. When askedwhether it is suspicious for a person to leave their car idling while they run across the street to get something from their home, Cst. Lailsaid it is suspicious when the person disappears when the police drive by. Applicable Law [31]

Section 9 of the Charter guarantees that “[e]veryone has the right not to be arbitrarily detained or imprisoned”.

Section 8provides that “[E]veryone has the right to be secure against unreasonable search or seizure”. A warrantless search is presumptivelyunreasonable and contrary to s. 8. Where there is no warrant, the Crown must establish, on a balance of probabilities, that the search isauthorized by law, that the law itself is reasonable, and the manner in which the search is carried out is reasonable. [32]

Section 495 of the Criminal Code authorizes the police to arrest a person without a warrant if they have reasonable grounds tobelieve the person is about to commit an indictable offence or they find the person committing a criminal offence. As noted by JusticeSchultes in R. v. Gill, 2015 BCSC 310 (at paras 23, 25 & 27): [23] Reasonable grounds for an arrest have two required components. The officer must believe that he or she has the required groundsto make an arrest and those grounds must be objectively justifiable. The classic reference for that principle is the decision of theSupreme Court of Canada in R. v.

Storrey, (SCC), [1990] 1 SCR 241, at pp. 250-51… [25] The officer's particular knowledge may be considered in assessing the objective component of reasonable grounds in thefollowing way (see R. v.

Luong, 2010 BCCA 158, at para. 24): The assessment of whether objective grounds exist undertaken by a trial judge is conducted by first looking at the observations of theofficer...through the lens of someone who has the same experience, training, knowledge and skills as the officer who is making theobservations, and then deciding if a reasonable person with the same lens would come to the same conclusion as the police officer… [27] However, taking into account the officer's special knowledge is not the same as deferring the entire objective assessment ofgrounds to the officer's intuition.

That would make the objective assessment meaningless: R. v. Payette, 2010 BCCA 392. [33] Schultes, J. also noted (at para 33): [33] However, the criticism of an officer's failure to take additional investigative steps runs contrary to the decision of our Court ofAppeal in R. v. Jir, 2010 BCCA 497 at para. 27, and so I could not give effect to it, even if I found it to be applicable here. The properfocus is on the objective reasonableness of what this officer did, based on what he knew at the time, not on what other steps he couldhave taken to acquire additional grounds. [34] In R. v.

Bilouzenko, 2009 BCPC 93, Judge Woods considered a case with some factual similarity to the case at bar. He observed(at para 20): [20] A key issue in this case is whether, at some point along the relevant time continuum, the initially lawful and justifiable detentionof the driver and passengers of the Subject Vehicle - most particularly, Ms. Bilouzenko - became an unlawful detention. As Iacobucci J.stated in Mann, investigative detentions are ordinarily of brief duration and cannot permissibly evolve into a de facto arrest: paras. 22and 35. (See, also, R. v.

Greaves, 2004 BCCA 484 , [2004] BCJ No. 1953 (C.A.) at para. 37.) If the investigative detention didbecome unlawful by being pursued after the investigation had refuted Cst. Gosal's suspicions that the Subject Vehicle was stolen, then itis also critically important to know whether the questioning of Ms. Bilouzenko and the events that came in its wake fell on the lawful orunlawful side of the timeline of the police's investigative detention of her… Analysis [35] Counsel were in agreement that the police had grounds to detain Ms. Lacroix.

The focus here is with the lawfulness of her arrestand the subsequent searches of her vehicle and the purse.

[ 36 ] There were discrepancies in the testimony of the three officers, particularly on the question of when the police first became aware that Ms. Lacroix may have been the registered owner of the vehicle and that the car was not stolen. If the police had this knowledge prior to searching the trunk, there would have been no basis for Ms. Lacroix’s on-going arrest and the legal basis for the warrantless search of the trunk would not have existed.

If the police willfully ignored information that the registered owner of the car was present, those same concerns would apply. [ 37 ] The point in time when the police came to know, or should have known, the vehicle owner was present at the scene and that the car was not stolen is key to this assessment. In order to answer this question, I will highlight some of the testimony I find significant. • The evidence of Officers Wu and Lail about why their attention was drawn to the vehicle in question as they drove along Beach Avenue is a bit concerning. Cst.

Wu noted the driver was a black male with an Afro and braids. Cst. Lail said there were three persons inside the car and, given the hour and the level of traffic in the area, based upon his training and experience, he thought they should check out the car. • Cst. Wu said she queried the license plate and learned on CPIC that the car was stolen. When Cst. Wu ran the plate, the information she got back referred to the car having been taken without the owner’s consent, rather than being stolen, and she received the name of the suspect and that the registered owner was Kiana Lacroix. • Cst.

Wu said by the time her partner backed-up and parked their police car and she got out, the driver was no longer present. However, she said within seconds he was back and that she immediately approached him and arrested him for possession of stolen property. • When asked in cross-examination whether everyone immediately protested that the car was not stolen when the police arrived, Cst. Wu testified she did not hear them saying that. She said she did not recall whether either of the passengers had protested at the scene that the car was not stolen. Cst.

Wu said she did not recall if the driver had said to her that it was not a stolen vehicle. • When asked whether Ms. Lacroix immediately told him that she was the registered owner of the car, Cst. Ramirez said he remembered someone telling him that, but he was not sure if it was another officer who had done so. He agreed he had told Ms. Lacroix that she was under arrest until the investigation proved otherwise. • Cst. Wu said she arrested and Chartered the accused for possession of a controlled substance, relying on Officer Ramirez for the grounds for that arrest. She said that arrest occurred at 11:10 pm. Cst.

Ramirez said he could not recall telling Officer Wu to arrest Ms. Lacroix for possession for the purpose of trafficking and this was not set out in his police statement. • According to Cst. Wu’s evidence, the CDSA arrest of the accused occurred about nine minutes after Cst. Lail confirmed Ms. Lacroix was the vehicle owner. This suggests the marihuana was located sometime later than Cst. Lail and Cst. Ramirez testified. The evidence of the Crown in the voir dire as to who arrested Ms. Lacroix and when, in relation to the discovery of the marihuana and the cocaine, was unclear. • Cst. Lail testified Ms.

Lacroix handed him her identification and identified herself and told him she was the registered owner of the car, but he did not verify her claim at this point. He said after more officers arrived, he left the two occupants of the car and returned to his cruiser to check the identities of all three persons. • Cst. Lail said after checking the identification provided by the suspects in his police car a number of minutes later, he was content that the accused was the registered owner of the car. By this time, he said Cst.

Ramirez had already carried out his search of the trunk and located the marihuana. [ 38 ] None of the three officers apparently had helpful field book notes on the issue of the registered owner of the vehicle and when they learned the owner was present. The fact that their notes do not offer assistance to the court in determining this important matter ought not to work a prejudice to Ms. Lacroix. [ 39 ] Cst. Wu testified that she prepared her report chronologically and detailed what information she was given over CPIC.

She told the court she did not pay attention to all of the information provided, including the name of the registered owner, that the matter related to the taking of a vehicle without consent rather than theft, and the name of the suspect. She testified that she did not think the occupants of the car had protested that the car was not stolen. [ 40 ] I find it highly improbable that the owner of a car who had been pulled over by the police and quickly arrested because the car was allegedly stolen, would not have immediately and repeatedly said that was not true and why. I reject Cst.

Wu’s evidence in terms of what she learned from CPIC or what she heard when she arrested the driver and was near the vehicle. [ 41 ] Officer Lail repeatedly said he was unable to deal with the prospect that the registered owner was present due to officer and public safety concerns, relating to a significant degree with the driver being unaccounted for. However, his partner, Cst. Wu, said the driver returned within seconds of them approaching the car and that police back-up arrived around the same time. Cst.

Ramirez said all three suspects were present when he and his partner arrived moments after they were dispatched, at 10:55 or 10:56 pm. [ 42 ] Cst. Lail gave careful and responsive answers in his evidence in chief. This was in contrast to his evidence in cross-examination where he frequently answered that he did not know or could not recall. For example, when asked whether his partner had told him she had already learned the name of the registered owner on CPIC when the investigation got under way, he said he did not recall. [ 43 ] I reject Cst.

Lail’s evidence that the driver’s whereabouts remained outstanding other than for a few seconds after he exited his police car. I find Cst. Lail exaggerated how long the driver was missing to give credence to his safety concerns and to leave the court with the impression that he did not have the ability to promptly sort out the ownership of the vehicle. This must have been intended to give the impression that the safety search of the trunk of the “stolen” car occurred before the vehicle registration issue was resolved.

I find he misled the court as to the “dynamic” nature of the scene to try to justify the conduct of the police in searching the trunk.

[ 44 ] Cst. Lail’s explanation for not using his radio to quickly follow-up on the prospect the car was not stolen and the owner was present suffers from the same mischaracterization of the scene as unsafe and unknown. There were no exigent circumstances justifying the police search of the trunk before Cst. Lail completed his brief inquiries on the identification of the three occupants and clarified that the vehicle was not stolen. The suggestion that the police coincidentally confirmed the car was not stolen only a minute after Cst.

Ramirez located the marihuana in the trunk is too convenient and not capable of belief. [ 45 ] I am mindful of the need for trial judges to be cautious not to second guess the police about attending to safety concerns. However, Cst. Lail’s professed concerns were markedly diminished by the fact the driver was not unaccounted for and because Ms. Lacroix told him she was the vehicle owner.

Trial courts should not criticize the police for failing to pursue other avenues of investigation (see Gill supra ), but I do not think such restraint appropriate when the failure relates to exculpatory information pointing to the lack of criminality. [ 46 ] I find Cst. Lail’s evidence did not accord with the preponderance of the other evidence and he tried to re-cast the event to show the police had grounds to continue the arrest of Ms. Lacroix and to search her vehicle when they did not.

This is not a case of misunderstanding or inattention to detail, but rather of misleading the court, and I give it no weight in this case. The lack of candour with the court by a police officer is to be condemned in the strongest of terms. [ 47 ] None of the Crown witnesses were able to explain how Cst. Ramirez came to be in possession of the keys. The fact that keys were readily available is another factor consistent with the three persons being in lawful possession of the vehicle.

The presence of the keys and the absence of any physical evidence of the vehicle having been stolen should have given the police further reason to hold off searching the trunk until they could determine whether they were dealing with a stolen car or not. [ 48 ] If I had found the officers in this case to generally have been credible and reliable witnesses, I would have been more inclined to accept Cst. Wu’s evidence that she did not read the entire CPIC entry and was not aware of the name of the registered owner of the car.

However, in the context of the serious concerns I have already expressed about her partner, Cst. Lail, I am not prepared to come to that conclusion. I find she likely read the entire short CPIC entry she received about the car as she and her partner contemplated what to do. That the driver had enough time to leave the suspect vehicle between when the officers first observed it and when they parked in front of it, is consistent with Cst. Wu having had time to read the CPIC. I find it likely that the police decided to stop the occupants of the car, because they were suspicious about them as much as the vehicle.

The CPIC details and Ms. Lacroix’s status as owner were ignored so that the police could search the car under the guise of an investigation into stolen property. However, their suspicions did not provide the grounds to arrest and hold Ms. Lacroix. [ 49 ] My findings are not intended to suggest that the police were required to immediately stop their investigation simply because the three persons denied the car was stolen and I agree that they needed to make further inquiries.

However, having removed and secured all three occupants, the police should have held off searching the vehicle until those inquiries were made, assuming they could be conducted within a reasonable timeframe. The police did not promptly conduct the most basic of inquiries into the matter which lay at the heart of their investigation.

I find the police turned a blind eye to what they knew or should have known about the accused’s ownership in order to create a scenario in which they could continue to investigate an allegedly stolen vehicle, including conducting a safety search of it. [ 50 ] This case bears some factual similarity to what was before the court in R. v. Dombrosky ( 2018 BCPC 302 and 2018 BCPC 303 ). I find that Cst. Wu chose to ignore additional relevant and pertinent information on the initial CPIC entry that should have caused her and the other officers to make further inquiries before arresting Ms. Lacroix. Cst.

Lail then chose to do nothing when Ms. Lacroix told him moments later that she owned the car. I find the police chose to ignore the likelihood that Ms. Lacroix was the owner of the car and the car was not stolen to give them time to follow-up on their suspicions. This undermines the legitimacy of what they stated to be their subjective belief for her arrest and takes away the reasonable grounds to make an arrest. There were no grounds for Ms. Lacroix’s arrest and the searches based on that arrest were conducted unlawfully.

Section 24(2) [ 51 ] Having concluded the arrest and subsequent searches were unlawful, I turn to consider whether the evidence seized as a result should be excluded under s. 24(2) of the Charter . That subsection states: 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 circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 52 ] In R. v.

Grant, 2009 SCR 53, the Supreme Court of Canada set out what trial courts must consider in applications of this nature. Section 24(2) is aimed at maintaining the good repute of the administration of justice. As stated in Grant , s. 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” (at para 70). As stated by Fish, J. in R. v.

Morelli , 2010 SCC 8 (at para 102 ), “[t]he repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct.” [ 53 ] In assessing the admissibility of evidence in accordance with s. 24(2), trial judges are to look at the seriousness of the Charter - infringing state conduct; the impact of the breach on the Charter -protected interests of the accused; and society’s interest in the adjudication of the case on its merits. [ 54 ] In terms of the first criterion, the conduct of the state is placed on a continuum from wilful misconduct to blameless conduct ( R. v.

Plengchanh , 2011 BCSC 484 , at para 45 ). Where Charter breaches reflect indifference or disregard of individual rights by the state, courts should disassociate themselves from such conduct in order to protect the repute of the administration of justice. [ 55 ] I have found that the police in this case had reason to think that they may not have been dealing with a stolen car almost immediately, but deliberately delayed doing anything with that information. Cst.

Lail attempted to leave the court with the impression that the situation that night was dynamic with pressing concerns which meant Charter rights were pushed back. Inquiries into possible lawful explanations for what he had before him were deferred. I find the police were immediately suspicious of the car and its

occupants, for reasons they were not candid about at trial, and that they pressed ahead hoping to get evidence to support those suspicions even when other information pointed in a different direction. The conduct of the police in this case amounts to bad faith and the serious state-infringing conduct should not be condoned by the court. [ 56 ] Counsel for the Crown submitted that even if Cst. Ramirez did not have grounds to arrest Ms. Lacroix, the police would still have been in a position to conduct a lawful search of the trunk based on the arrest of the driver.

I am unable to agree, because the reason the arrest of Ms. Lacroix was improper was that the police ignored the exculpatory evidence they had that the car might not have been stolen. That same information would have tainted the arrest of the driver, and thus I find the discoverability principle of no assistance to the Crown in this case. [ 57 ] Regarding the second criterion, although there is a low expectation of privacy in a motor vehicle, Ms. Lacroix’s privacy interest was impacted when her car was searched. While there were grounds to detain Ms. Lacroix initially, she was arrested and held after she told Cst.

Lail she was the vehicle owner and after the CPIC information Cst. Wu possessed supported that claim. Investigative detentions are meant to be brief in nature and the arrest of Ms. Lacroix went beyond that. [ 58 ] The scourge of drugs on the citizens of Vancouver is notorious and the public interest in prosecuting those found to be in possession of drugs is significant. However, the attempt by the police in this case to paint a misleading picture for the court must be strongly condemned.

The public is entitled to expect the police will provide truthful and reliable evidence to the court, and in this case they failed to do so. I find the repute of the administration of justice would be diminished in the future if the fruits of this investigation were admitted at trial. In accordance with the application of all three of the Grant criteria, I find this court must order the evidence seized be excluded. ______________________________ The Honourable Judge N.N. Phillips Provincial Court of British Columbia