R. v. Kim, 2020 BCPC 100

Citation: R. v. Kim 2020 BCPC 286 Date: 20200513 File No: 247446-C-2 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. ALEXANDER SUNOOK KIM RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: J. Lhalungpa Counsel for the Defendant: A. Bonfield Place of Hearing: Vancouver , B.C., via teleconference Dates of Hearing: February 26, 27, 28, 2020 Date of Judgment: May 13, 2020 I.

INTRODUCTION [ 1 ] In the early morning hours of February 24, 2019, Alexander Kim (the “accused”) was driving a Hyundai sedan northbound on Granville Street in the City of Vancouver, British Columbia. [ 2 ] The Hyundai was a rental vehicle. The accused was not the registered renter of this vehicle. He testified that he borrowed the

Hyundai to move some personal belongings. He believed the registered renter of the Hyundai was his friend, Mr. Siddarth Metha [“Sid”]. [ 3 ] At approximately 2:45 AM, the accused was pulled over for speeding by members of the Vancouver Police Department (the “VPD”). Following a brief interaction with the police, the accused was detained and the Hyundai’s glovebox and centre console were searched. Suspected illicit drugs were located within the centre console. [ 4 ] The accused was arrested for possession for the purpose of trafficking. He was searched incidental to his arrest.

Further illicit drugs were located on him. [ 5 ] The accused is charged in three separate counts with possession for the purpose of trafficking in cocaine, ketamine and oxycodone, contrary to s. 5(2) of the Controlled Drugs and Substances Act (the “ CDSA ”). [ 6 ] The accused has asserted that the search of the Hyundai was contrary to s. 8 of the Canadian Charter of Rights and Freedoms (the “ Charter ”). The accused seeks a ruling that the search was in breach of his s. 8 Charter right, and that the seized drugs ought to be excluded pursuant to s. 24(2) of the Charter . II.

ISSUES [ 7 ] The issues to be determined are, (1) whether there has been a breach of the accused’s s. 8 Charter right, and, if so, (2) what is the appropriate remedy? III. ADMISSIONS [ 8 ] Admissions of Fact were filed pursuant to s. 655 of the Criminal Code of Canada (the “ Code ”). [ 9 ] The Admissions included, in part, the location, weight and analysis of the various illicit drugs seized from both the Hyundai and the accused . [ 10 ] The following admission respecting the Hyundai rental vehicle is reproduced, as it is apposite to this ruling: 4. THE VEHICLE (

a) On February 20, 2019, Dollar Thrifty Automotive Group Inc. (“Dollar”) rented the Vehicle to Siddarth Metha (“Mr. Metha”). (

b) The corresponding rental agreement required Mr. Metha return the Vehicle to Dollar on February 22, 2019. (

c) Under a

section titled “Customer Information”, the corresponding rental agreement stated “no additional drivers” and “only authorized renters may drive the car”. IV. BACKGROUND [ 11 ] In direct examination, Constable Jackman, one of the two officers attending on scene, testified that he has been a member of the VPD since November 2016. [ 12 ] On February 24, 2019, he was on patrol with his partner, Constable Morris. Constable Jackman was the driver of an unmarked police car.

Constable Morris was in the front passenger seat. [ 13 ] Constable Jackman testified that while he was driving southbound on Granville Street, near W. 33 rd Avenue, Constable Morris advised that he visually observed a car speeding northbound on Granville Street. [ 14 ] Constable Jackman made a U-turn and began to follow this vehicle, later identified as a 2017 four-door Hyundai sedan. [ 15 ] Constable Jackman observed the Hyundai make a right-hand turn east from Granville onto Nanton Street.

Constable Jackman followed and observed the Hyundai to then make a U-turn and proceed back towards Granville Street where it turned right, again travelling north on Granville Street. Constable Jackman made a U-turn and followed the Hyundai. [ 16 ] Upon positioning the police car behind the Hyundai, Constable Jackman estimated the Hyundai’s speed to be approximately 80 km/h in a 50km/h zone.

He engaged the police vehicle emergency lights, and at Granville Street and W. 14 th Avenue, the Hyundai pulled over without incident. [ 17 ] Once the vehicles had stopped, a computer search of the Hyundai licence plate was performed. It indicated that the licence plate was registered to a numbered company. Based on his experience, Constable Jackman believed the Hyundai to be a rental vehicle. [ 18 ] Constable Jackman then exited the police vehicle and proceeded to the driver’s side door of the Hyundai.

Constable Morris assumed the task of “cover” for Constable Jackman, and proceeded to the front passenger side of the Hyundai. [ 19 ] Constable Jackman testified that the accused was the sole occupant in the vehicle. Constable Jackman identified himself as a police officer, advised the accused that he had been pulled over for speeding, and then made a request to see his driver’s licence.

The accused reached for his wallet and presented Constable Jackman with his BC driver’s licence and BC ID card. [ 20 ] At that time, Constable Jackman observed that the accused’s hands were shaking severely, and that ash from a lit cigarette was falling onto the accused’s lap and the seat of the Hyundai. [ 21 ] Constable Jackman then questioned the accused about any alcohol consumption and his intended travel destination. The accused

advised that he had not had anything to drink, and that he was driving downtown to pick up a friend. [ 22 ] Constable Jackman then asked the accused if he was named in the vehicle rental agreement. The accused replied that he was not. Constable Jackman then asked who was named on the rental agreement, to which the accused gave no immediate reply. After a short period of hesitation, the accused “blurted out” the name “Sid”. After a further pause, the accused stated “Siddarth”. [ 23 ] Constable Jackman then asked the accused for a copy of the vehicle rental agreement.

The accused produced four or five papers and handed them to Constable Jackman. He could not recall where the accused retrieved these documents from. He recalled the first document was a rental agreement made out to an unrecognizable name. [ 24 ] At this point, Constable Jackman formed a subjective belief that the accused might not be in lawful possession of the vehicle. He based this belief, in part, on the accused stating that he was not named on the rental agreement.

Upon a cursory review of the rental agreement it did not contain the accused’s name, nor that of the suggested renter, “Siddarth”. [ 25 ] Constable Jackman believed that to validate insurance and permit the lawful operation of the rental vehicle, consent between the registered owner and the driver was required.

The information obtained from the accused up to this point provided no indication that he had such consent. [ 26 ] Constable Jackman considered the excessive nervousness of the accused, and his “ashing” of his cigarette butt onto the car seat, to be factors that increased his concern for the officers involved, and public safety in general, as the investigation unfolded. He was at that time still operating on the premise that this was a regulatory investigation. [ 27 ] Constable Jackman then asked the accused to step out of the Hyundai and wait on the sidewalk with Constable Morris.

He informed the accused that he was being detained to determine if he was in lawful possession of the vehicle. [ 28 ] The accused complied with these directions. [ 29 ] Constable Jackman then went to his police vehicle with the accused’s driver’s licence and the rental documents. He queried the driver’s licence, which revealed no negative police history.

He then reviewed the rental documents, admitting on examination that it was not a thorough inquiry. [ 30 ] In cross-examination, Constable Jackman agreed that one of the overlooked documents was a vehicle rental agreement which identified Siddarth Metha as the customer [Exh. F]. [ 31 ] Constable Jackman developed an increasing belief that the accused was not authorized to drive the Hyundai. His opinion was strengthened by the fact that one of the rental documents produced by the accused [Exh. B], was in the name of an unknown and unidentified individual.

There was no evidence to indicate that the accused had the consent of this person. [ 32 ] He also noticed that the date for the return of the rental vehicle was several days earlier. At this point, none of the documents provided by the accused indicated that the vehicle still had valid insurance coverage. [ 33 ] Constable Jackman testified that he believed the accused may have inadvertently provided him with an expired rental agreement. He exited the police vehicle and went over to the accused. He asked the accused if there was an additional rental agreement in the glovebox.

The accused replied that there was. [ 34 ] Constable Jackman recalled asking about the glovebox because of his belief that it was a reasonable location to store a rental agreement. [ 35 ] He was of the opinion that the accused had little interest in the Hyundai.

He based his opinion on the following observations: first, the accused was smoking in the Hyundai; second, he was depositing ashes on the seat from his cigarette; and, third, he was vague and unclear in identifying the renter of the Hyundai. [ 36 ] Constable Jackman decided to enter the Hyundai and retrieve the rental agreement for the purpose of verifying the validity of the rental contract and the insurance. [ 37 ] He opened the front passenger door of the Hyundai, entered the vehicle, and opened the glovebox.

He located the vehicle’s owner manual but no other documents. [ 38 ] He also believed that the vehicle’s centre console might contain the rental paperwork. He opened the console and saw what he believed to be illicit drugs. [ 39 ] He testified that he looked into the console for approximately three seconds and then closed it.

Constable Jackman then told Constable Morris to arrest the accused for possession for the purpose of trafficking in drugs. [ 40 ] Constable Jackman testified that he spent no more than 15 seconds in total inside the Hyundai. [ 41 ] In cross-examination Constable Jackman denied the suggestion that he did not open the glovebox but went straight to checking the interior of the centre console. [ 42 ] Following the arrest of the accused, Constable Jackman performed a further search of the Hyundai.

In a man purse located behind the front passenger seat, he discovered more illicit drugs . [ 43 ] At the conclusion of the drug investigation, Constable Jackman released the accused at the roadside on a Promise to Appear for possession for the purpose of trafficking. The accused was also served with a speeding ticket. The Hyundai was towed to a storage facility.

[ 44 ] Constable Morris has been a member of the VPD for approximately four and a half years.

He testified that while on patrol with Constable Jackman on February 24, 2019, he observed the Hyundai travelling at a high rate of speed northbound on Granville Street . [ 45 ] He recalled the Hyundai was pulled over in the area of Granville Street and 14 th Avenue. [ 46 ] Once the Hyundai was pulled over, Constable Jackman positioned himself at the front driver side and Constable Morris positioned himself at the front passenger side to act as “cover”. [ 47 ] Constable Morris testified that in his opinion this was a routine traffic stop.

There was nothing unusual about it. [ 48 ] He observed the accused open the glovebox and produce what appeared to be some documents that he handed to Constable Jackman. [ 49 ] He recalled that shortly after Constable Jackman asked the accused to exit the Hyundai. [ 50 ] The accused was compliant as he stepped out of the Hyundai and was directed to wait with Constable Morris on the nearby sidewalk. Constable Morris did not believe that there were any police officer safety concerns at that time. [ 51 ] He recalled that Constable Jackman went to the police cruiser.

After a brief period, Constable Jackman returned and engaged the accused in a conversation. He did not recall what that conversation was about. [ 52 ] Constable Morris saw Constable Jackman enter the Hyundai, and within moments he heard Constable Jackman instructing him to arrest the accused for “PPT”. [ 53 ] The accused is 21 years old.

He does not have a criminal record. [ 54 ] He testified that in February of 2019, he did not have the financial means to continue living on his own, and decided to move home with his parents. [ 55 ] He testified that on February 23, 2019, he borrowed the Hyundai from his friend Sid to move his personal belongings from his apartment back to his parents’ residence.

He testified that Sid told him that he had rented the Hyundai, and that he was welcome to use the Hyundai to move his personal belongings and to return it once finished with his move. [ 56 ] The accused met Sid while attending the British Columbia Institute of Technology approximately two years prior to the offence. They saw each other once or twice each week. [ 57 ] He testified that at approximately 1:00 AM on February 24, 2019, he was at his apartment when he received a call from Sid requesting that he pick him up at the Warehouse Restaurant on Granville Street in downtown Vancouver. [ 58 ] The accused agreed.

Using the GPS on his cell phone he confirmed the location of the restaurant, and left in the Hyundai to pick up Sid. [ 59 ] He was driving northbound on Granville Street when he noticed a car that appeared to be following him. He realized that he was driving over the speed limit and estimated that his speed ranged from approximately 65km/h, up to 75km/h or 80km/h. [ 60 ] The accused was not sure whether the car behind him was in fact following him, so he turned right onto Nanton Street to “fix his GPS”. He testified that he noticed the car followed him onto Nanton Street and that he began to feel quite worried.

He decided to make a U-turn and began travelling west, back towards Granville Street. When he saw the vehicle he believed to be following him also make a U-turn on Nanton Street, he began speeding faster. [ 61 ] The accused then made a right turn back onto Granville Street. He “started to really get worried” as the vehicle behind him also turned north onto Granville Street.

The accused said that he “sped up even more”, and momentarily lost sight of the vehicle through his rear-view mirror. [ 62 ] He next saw the emergency lights being engaged on the vehicle behind him and he immediately pulled the Hyundai over to the side of the road. [ 63 ] Once stopped, two police officers approached the vehicle, and the accused heard what he believed to be a tapping noise on the roof of the Hyundai. [ 64 ] The accused observed Constable Jackman position himself at the driver side door and Constable Morris position himself at the passenger side door. [ 65 ] He testified that Constable Jackman stated the accused was “driving weirdly” and asked if he was impaired.

The accused denied any alcohol consumption. Constable Jackman then asked for his driver’s licence. [ 66 ] The accused testified that he was smoking a cigarette and did not want “to be rude”, so he licked his fingers and “ashed” the cigarette out. He then responded by telling Constable Jackson that he was going to reach into his jacket pocket to get his identification from his wallet. [ 67 ] He produced his driver’s licence and CareCard, then retrieved what he believed to be the vehicle registration documents from the glovebox.

He handed these items to Constable Jackman. [ 68 ] He testified that Constable Jackman asked him who the registered owner of the Hyundai was. He told Constable Jackman twice that the registered owner was “Sid”, then stated his friend’s full name, “Siddarth Metha”.

[ 69 ] The accused testified that he observed Constable Jackman review the documents, and then state “that’s not what’s on the paper”. The accused recalled that he felt frustrated with Constable Jackman’s response. [ 70 ] He asked Constable Jackman if he could take a look at the paper, to which Constable Jackman replied “no”. [ 71 ] The accused testified that Constable Jackman told him that he may not be allowed to drive the Hyundai, and asked him to step out of the vehicle. He did as instructed.

Constable Jackman then told him to go stand on the sidewalk by Constable Morris. [ 72 ] He observed Constable Jackman return to the police car while he and Constable Morris waited on the sidewalk for about 4 or 5 minutes. [ 73 ] The accused testified that Constable Jackman returned from the police car and asked if there were any “other papers”. The accused replied that he would take a look, to which Constable Jackman told him “no”. Constable Jackman then entered the Hyundai through the front passenger door. [ 74 ] He testified that he had a clear view of the front interior of the Hyundai.

He saw Constable Jackman immediately open the centre console. [ 75 ] The accused testified that within 15 seconds of Constable Jackman entering the Hyundai, he was placed under arrest by Constable Morris and read his rights. [ 76 ] The accused testified that he had used the Hyundai to move his personal effects for approximately two hours on February 23, 2019.

He agreed that when he was pulled over, he had no other personal effects in the Hyundai, other than the items noted in the Admissions of Fact. [ 77 ] In cross-examination, he also agreed that prior to the traffic stop on February 24, 2019, he had never reviewed any of the documents he handed to Constable Jackman that day. [ 78 ] The accused, after reviewing the various motor vehicle documents he had handed to Constable Jackman, also agreed that none of those documents established that the Hyundai was properly rented to Sid on February 24, 2019: Transcript, February 26, 2020, p. 65, ll. 15-42. V.

POSITION OF THE PARTIES (

a) The Crown [ 79 ] The Crown submitted that Constable Jackman’s search of the Hyundai was Charter -compliant. In particular, when the accused was unable to produce any valid ownership documentation or vehicle rental agreement, Constable Jackman had every right to look for documents pertaining to the lawful operation of the Hyundai. [ 80 ] The Crown relied on of the Supreme Court of Canada (the “SCC”) decision of R. v. Belnavis, [1997] 3 S.C.R. 34 [ Belnavis ] , applied in R. v.

Burachenski , 2010 BCCA 159 , at para 13 . [ 81 ] The Crown’s further submissions are: • That the accused admitted he was speeding, and therefore the initial traffic stop was valid; • That Constable Jackman only conducted a brief and limited search of the Hyundai for the sole purpose of locating documents pertaining to the vehicle registration; • That there was no legal requirement that Constable Jackman return the documents when requested by the accused, as this would amount to the accused’s participation in the investigation; • That, in any event, prior to the traffic stop, the accused had not reviewed any of the documents he produced to Constable Jackman; • That there was nothing in the documents to establish that the accused’s possession of the Hyundai on February 24, 2019 was lawful; • That there was no credible or reliable evidence to support the proposition that the traffic stop became a dual purpose criminal investigation; • That this was not a case where police conduct amounted to a ruse; and • That even if a breach was established, the evidence should be admitted after applying the legal framework established by the SCC in R. v.

Grant , 2009 SCC 32 [ Grant ]. [ 82 ] The Crown’s submissions on the application of the Grant factors are outlined as follows: (

i) The seriousness of the Charter- infringing state conduct • The breach was not egregious and Constable Jackman acted in good faith. His sole objective was to identify whether the accused’s operation of the Hyundai was lawful. His conduct cannot be viewed as negligent or objectively unreasonable. (ii) The impact of the breach on the Charter -protected interests of the accused

• The impact of the search on the accused’s privacy interests was limited and minimal. The vehicle was a rental to which the accused had no contractual or ownership affiliation. The centre console was not a locked compartment. • The accused testified he had only borrowed the Hyundai for a short period of time for moving purposes.

The accused did not have any personal belongings in the Hyundai at the time of the search. • Constable Jackman was in the Hyundai for no more than 10 to 15 seconds, during a time when its lawful possession had not been established by the accused. (iii) Society’s interest in the adjudication of the case on its merits • The illicit drugs found in the centre console and on the accused include cocaine, a

Schedule I CDSA drug that is highly addictive. The illicit drugs constitute reliable evidence and are essential to the case of the Crown. [ 83 ] The Crown, in part, relied on the Ontario Court of Appeal (the “ONCA”) decision in R. v. Lee , 2017 ONCA 654 [ Lee ] , in support of its further submission that any privacy interest of the accused in the Hyundai was minimal. This submission is supported by the facts that the vehicle was a rental vehicle not registered to the accused, the accused had no valid consent to operate it, and the vehicle did not contain any of the accused’s personal effects. (

b) The Accused [ 84 ] The accused submits that Constable Jackman’s search of the Hyundai cannot be justified on any legal basis. [ 85 ] The accused relies largely on the SCC decision in R. v.

Mann , 2004 SCC 52 [ Mann ], at para 45 , which reads, in part: … police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. [ 86 ] The accused submits that in the circumstances of this case, Constable Jackman did not have reasonable grounds that would legally justify the investigative detention of the accused. [ 87 ] The accused’s further submissions are: • That Constable Jackman lacked the necessary subjective and objective grounds to reasonably detain the accused and conduct any subsequent search of the Hyundai; • That there were no officer safety concerns to justify the continued investigative roadside detention; • That the accused was clearly detained when he was directed to exit the Hyundai, and his Charter rights were not respected; • That Constable Jackman’s credibility was reduced when he failed to thoroughly review the vehicle documentation provided by the accused; • That Constable Jackman ought to have returned the vehicle documentation to the accused for him to review before the Hyundai was searched; • That Constable Jackman’s search of the Hyundai’s centre console solely for the purpose of locating a lawful rental agreement should be viewed with suspicion; and • That there is an absence of any credible explanation as to why Constable Jackman and Constable Morris followed the Hyundai for approximately 26 blocks prior to performing the roadside stop. [ 88 ] The accused’s submissions on the application of the Grant factors are outlined as follows: • That the conduct of the police amounted to egregious conduct, which elevated the seriousness of the Charter -infringing state conduct; and, • That the impact of the breach on the accused’s Charter -protected interests justifies the exclusion of the evidence seized following the search of the Hyundai and of the accused.

VI. RELEVANT LEGAL FRAMEWORK (

a) The Motor Vehicle Act , R.S.B.C. 1996 c. 319 [ MVA ] Framework [ 89 ] The police are entitled to enforce laws relating to the operation of a motor vehicle on public highways: R. v. Woody , 2018 BCSC 2275 , at para 34 . [ 90 ] The police may pull over a driver of a motor vehicle without grounds, provided the stop is related to traffic safety and regulation: R. v. Strilec , 2010 BCCA 198 . [ 91 ] The accused was stopped for operating a motor vehicle at a speed in excess of 50 km/h on a public highway within a municipality. Section 146(1) of the MVA provides: 146

(1) Subject to this section, a person must not drive or operate a motor vehicle on a highway in a municipality or treaty lands at a greater rate of speed than 50 km/h, and a person must not drive or operate a motor vehicle on a highway outside a municipality at a

greater rate of speed than 80 km/h. [92] Once the accused came to a safe stop, he was obliged to correctly state his name and address and the name and address of theowner of the motor vehicle. Section 73(2) of the MVA provides: 73(2) When requested by a peace officer, the driver of a motor vehicle or the person in charge of a motor vehicle on a highway must statecorrectly his or her name and address and the name and address of the owner of the motor vehicle. [93] The accused was also required to have in his possession his driver’s licence, registration and insurance documents, and producethem upon demand of Constable Jackman. Section 33(1) of the MVA provides: 33(1) Every person, except (

a) a person driving or operating a motor vehicle exempted under section 2(5) or

section 8 or 10, or (

b) a person driving or operating a motor vehicle of a fire department of a municipality, must have his or her driver's licence and driver's certificate and a motor vehicle liability insurance card or financial responsibility card,issued for the motor vehicle he or she is driving or operating, in his or her possession at all times while driving or operating that motorvehicle on a highway, and must produce the licence, certificate and card for inspection on demand of a peace officer. (

b) Charter Framework [94]

Section 8 of the Charter provides: 8. Everyone has the right to be secure against unreasonable search or seizure. [95] Section 24(2) of the Charter provides: 24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [96] The majority of the SCC in R. v.

Edwards, (SCC), [1996] 1 S.C.R. 128 [Edwards], at para 45, set out thefollowing framework for the s. 8 analysis: 45 A review of the recent decisions of this Court and those of the U.S. Supreme Court, which I find convincing and properly applicableto the situation presented in the case at bar, indicates that certain principles pertaining to the nature of the s. 8 right to be secure againstunreasonable search or seizure can be derived. In my view, they may be summarized in the following manner: 1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R. v.

Rahey, (SCC), [1987] 1 S.C.R. 588, at p. 619. 2. Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter. 3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have beenviolated. See Pugliese. 4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation ofprivacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings. 5.

A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, at p. 54,and Wong, at p. 62. 6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (

i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. See United States v. Gomez, 16 F.3d 254 (8th Cir. 1994), at p. 256. 7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determinewhether the search was conducted in a reasonable manner. [97] Constable Jackman conducted a warrantless search of the Hyundai after the accused was stopped for speeding. The search was

for the purpose of locating further documentation relevant to the lawfulness of the accused’s possession of the Hyundai.

ConstableJackman testified that he felt justified in searching the Hyundai for vehicle documentation based upon his common-law jurisdiction. [98] To determine whether a search is authorized by the common law a Court must assess: (1) whether the police conduct in issuefalls within the general scope of any duty imposed on the police by any statute or common law, and (2) whether, in all of thecircumstances, the police conduct involved a justifiable use of the powers associated with the engaged duty: R. v. Godoy, (SCC), [1999] 1 S.C.R. 311, at para 12 applying R. v. Waterfield, [1964] 1 Q.B. 164 (Eng.

C.A.) [Waterfield]. [99] In issue is the second branch of the Waterfield Test, namely, whether the search conducted by Constable Jackman was ajustifiable exercise of his police powers. [100] Here, the accused submits that he was subjected to an investigative detention that must therefore meet the requirementsestablished by the SCC in Mann, at para 45 as follows: 45 To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable groundsto suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary.

In addition,where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in aprotective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonablemanner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on thedetained individual to answer questions posed by the police.

The investigative detention and protective search power are to bedistinguished from an arrest and the incidental power to search on arrest, which do not arise in this case. (Emphasis Added) [101] Unlike in a private home, there is a reduced expectation of privacy in an automobile. The SCC has affirmed that the police arepermitted greater access to automobiles than to a private home or office. In R. v. Wise, (SCC), [1992] 1 S.C.R. 527[Wise], at p. 534, the Court explained the rationale as follows: Society … requires and expects protection from drunken drivers, speeding drivers and dangerous drivers.

A reasonable level ofsurveillance of each and every motor vehicle is readily accepted, indeed demanded, by society to obtain this protection. All this is set outto emphasize that, although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to theexpectation of privacy in one’s home or office. [102] Similarly, there is appellate authority establishing that the expectation of privacy enjoyed in a rental vehicle may differ relative tothe area of inquiry.

Unlike the interior cabin where items are ordinarily in plain view or easily accessible, there is a reasonableexpectation of privacy in a vehicle trunk that is visibly and physically secure under lock and key. The implication is that items in thetrunk of a rental car are not in plain view or easily accessible, unlike items in the interior cabin of the vehicle: Lee, at para. 80. [103] In the event of a finding that the accused’s s. 8 Charter right has been breached, then the s. 24(2) admissibility frameworkestablished by the SCC in Grant will apply. VII.

ANALYSIS AND FINDINGS [104] I find that on February 24, 2019, the police were justified in stopping the accused for operating a motor vehicle in excess of 50km/h contrary to s. 146(1) of the MVA. [105] While there may be a factual variation in testimony between Constable Jackman and Constable Morris with respect to thedirection of travel when the speeding Hyundai was first observed, such inconsistency is minor and not determinative. [106] The accused’s concern that the officers improperly followed him over many blocks prior to intervention must be superseded bythe necessity of police observation.

This is particularly relevant considering the time of day and the need to identify any potentialindications of impairment. [107] Sections 33(1) and 73(2) of the MVA required the accused to correctly provide Constable Jackman with insurance details for theHyundai, as well as the name and address of its owner. [108] None of the rental documents the accused provided to Constable Jackman revealed that on February 24, 2019, the Hyundai hadany valid registered renter. [109] While Constable Jackman admittedly failed to review the rental agreement naming Sid as the registered renter [Exh F], that rentalagreement had expired on February 22, 2019.

That rental agreement also contained a prohibitive clause indicating “No AdditionalDrivers” and that “Only Authorized Renters May Drive The Car”. Nowhere on this document does the name of the accused appear. [110] I do not find that in the course of his investigation there was any requirement that Constable Jackman permit the accused toreview the vehicle documents he provided. In any event, such intervention would have been of no value.

The accused had not reviewedany of the documents prior to the roadside stop, and so was not in a position to offer any enhanced insight. [111] I accept, as both credible and reliable, Constable Jackman’s evidence that he believed that the Hyundai required both validinsurance and the consent of the registered owner for its lawful operation. [112] I also accept as credible and reliable Constable Jackman’s evidence that he assessed the accused’s excessive nervousness (hisshaking hand and his cigarette “ashing” onto the car seat) as a factor that necessitated an increased concern for officer and public safety. [113] I find that Constable Jackman properly advised the accused that he was being detained to determine whether he was in lawfulpossession of the Hyundai.

I do not find that Constable Jackman exceeded his authority when he directed the accused to exit the Hyundaiand move over to the sidewalk by Constable Morris.

[ 114 ] I find that when Constable Jackman directed the accused to exit the Hyundai, he had reasonable grounds to believe that the accused was not in lawful possession of the vehicle. [ 115 ] The accused testified that he was driving downtown to pick up Sid, the purported registered renter of the Hyundai. This information, however, was not at any time provided to Constable Jackman.

The accused only told Constable Jackman he was going downtown to pick up a “friend”. [ 116 ] If there was any confusion with respect to the accused's operation of the Hyundai, it could have potentially been cleared up had the accused told Constable Jackman that he was on his way to pick up the registered renter, his friend Sid. Furthermore, the accused had the exact location for Sid on the GPS application on his cell phone.

It would also be a reasonable inference that he had the ability to use his cell phone to call Sid, who had phoned earlier requesting that he be picked up. [ 117 ] I find it is also relevant to consider that Constable Jackman did not detain the accused for any investigation related to a criminal activity. Rather, the accused was detained in furtherance of a regulatory inquiry. [ 118 ] I accept the evidence of Constable Jackman to be both credible and reliable in establishing that the vehicle documentation provided did not establish that the accused was in lawful possession of the Hyundai.

In furtherance of the MVA s. 33(1) and 73(2) , Constable Jackman had every right to look for documents pertaining to the ownership or registration of the Hyundai: Belnavis , at para 28. [ 119 ] I also accept the evidence of Constable Jackman to be both credible and reliable in establishing that when he entered the Hyundai, he first searched the glovebox with negative results and then subsequently searched the centre console. [ 120 ] I do not accept the evidence of the accused as reliable in his assertion that Constable Jackman entered the Hyundai and proceeded directly to conduct a search of the centre console.

He testified that he had a clear view of the interior of the Hyundai. However, I do not find it likely that he had a clear view. He testified he was 5 metres (approximately 16 feet) away from the rear passenger seats which I find is a substantial distance. It is night time. His view would have been obstructed by Constable Jackman's back. [ 121 ] I further find that, following the accused’s failure to provide valid documentation, Constable Jackman had a common-law duty to briefly detain the accused for the purpose of investigating the validity of the Hyundai’s insurance.

It cannot be in the public interest to have uninsured motorists operating motor vehicles on public roadways. [ 122 ] I find that for the purpose of investigating whether there was documentation to corroborate the accused’s possession of the Hyundai as lawful, Constable Jackman was justified at common law to search the glovebox and the centre console of the Hyundai. [ 123 ] The nature of Constable Jackman’s inquiries and the brief time period over which the search was conducted strengthen my conclusion that his search was reasonable. [ 124 ] I conclude that there has been no breach of the accused’s s. 8 Charter right. [ 125 ] Alternatively, if a breach of s. 8 of the Charter had been established, the evidence detailed in the Admissions of Fact would be admitted by operation of s. 24(2) of the Charter after applying the three-stage Grant analysis. (

i) The seriousness of the Charter -infringing state conduct [ 126 ] If there was a breach of s. 8 , I do not find the breach to be egregious. [ 127 ] Pursuant to the MVA , Constable Jackman had statutory authority for the initial roadside speeding stop. The police are required to enforce the provisions of the MVA , for the protection of society: Wise at p. 534. [ 128 ] As the investigation unfolded, Constable Jackman became concerned that the accused was not in lawful possession of the Hyundai.

I find he appropriately advised the accused that he was being detained for that purpose. [ 129 ] Constable Jackman was not investigating any particular crime. His objective in detaining the accused, and then briefly searching the glove box and the centre console, was for the purpose of locating documentation that would potentially confirm the accused’s lawful possession of the Hyundai. [ 130 ] I do not find that there is evidence to establish any bad faith by the police in their investigation of the accused.

The effect of admitting the evidence would not undermine the public confidence in the rule of law, as the search was in furtherance of a regulatory objective and temporally and invasively insignificant. [ 131 ] I find this branch of the Grant analysis favours admission of the evidence contained in the Admissions of Fact. ii) The impact of the breach on the Charter -protected interests of the accused [ 132 ] As expressed by the SCC in Edwards , at pp. 145-146, a potential s. 8 Charter violation requires two distinct inquiries. The first issue is whether or not the accused has a reasonable expectation of privacy.

Second, if he has such an expectation, was the police search conducted reasonably? [ 133 ] In this case I find the accused has little, if any, expectation of privacy in the rented Hyundai. Privacy interests generally as they relate to motor vehicles are greatly reduced: Belnavis at para 40. The accused here is not the registered owner or renter, nor was he lawfully authorized to operate the vehicle at the time of the offence, which further reduces any potential expectation of privacy he may have otherwise enjoyed: Belnavis at para 40.

As such, his privacy interest relative to the vehicle in question is low. [ 134 ] There was no documentation that there was valid and subsisting insurance in place for the Hyundai on February 24, 2019.

[ 135 ] There is no evidence of any historical use of the Hyundai by the accused: Belnavis at para 40. He testified that he had only used the vehicle for a couple of hours the day prior to move personal belongings. [ 136 ] The fob key that allowed the accused to enter and to operate the Hyundai was the sole evidence in support of his having valid possession of the vehicle, and is not determinative of whether such possession and control was lawful. [ 137 ] Overall, the investigation, including the detention of the accused and the brief search of the Hyundai, was proper in every respect.

The accused was stopped for speeding in relation to a regulatory authority.

The Hyundai was not stopped and searched arbitrarily: Belnavis at para 41. [ 138 ] Finally, I find that Constable Jackman had both the objective and subjective reasonable grounds at common law to detain the accused and perform a brief search of the Hyundai in an effort to locate documents that could potentially establish the accused’s lawful possession of the Hyundai. [ 139 ] I find this branch of the Grant analysis favours admission of the evidence contained in the Admissions of Fact. (iii) Society’s interest in the adjudication of the case on its merits [ 140 ] Society has a strong interest in the adjudication of this case on its merits.

The illicit drugs that were seized include cocaine and ketamine -- highly addictive CDSA

Schedule I drugs. [ 141 ] The drugs seized in this case constitute reliable evidence that is essential to the Crown’s case. [ 142 ] I find that this branch of the Grant analysis favours admission of the evidence contained in the Admissions of Fact. VIII. DISPOSITION [ 143 ] I conclude that the evidence contained in the Admissions of Fact is admissible. Subject to the consent of counsel, the evidence on the voir dire shall form part of the trial proper. The exhibits sequentially marked alphabetically will be sequentially marked numerically. ______________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia