R. v. Fraser, 2023 BCPC 141

Citation: R. v. Fraser 2023 BCPC 141 Date: 20230615 File No: 255143-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. KELSEY TYLER FRASER RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G.M. RIDEOUT Counsel for the Crown: K. Kuefler Counsel for the Defendant: C. Johnson, K.C. Place of Hearing: Vancouver , B.C. Date of Hearing: November 29, 30, 2022 and March 13, 2023 Date of Ruling: June 15, 2023

Table of Contents I. INTRODUCTION .. 2 II. ISSUE .. 2 III. BACKGROUND .. 3 IV. ADMISSIONS .. 7 V. POSITION OF THE PARTIES .. 8 a. The Accused . 8 b. The Crown .. 9 VI. LEGAL FRAMEWORK .. 12 VII. ANALYSIS AND FINDINGS .. 13 VIII. CONCLUSION .. 17 I.

INTRODUCTION [ 1 ] Kelsey Fraser (the “accused”) is charged that on October 25, 2019, at Vancouver, British Columbia, he had in his possession cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (the “ CDSA ”). [ 2 ] The Burnaby Division of the RCMP conducted the investigation into the activities of the accused over the course of the evening of October 25, 2019. [ 3 ] The nature of the police investigation was in the context of a dial-a-dope operation during the course of which surveillance was conducted of the accused driving a Chevrolet Malibu and meeting several individuals. [ 4 ] At no time during this police investigation did any of the police members observe any hand-to-hand transactions involving either drugs and/or money. [ 5 ] None of the individuals who interacted with the accused were arrested to determine if they had anything on their person indicating they were involved in drug trafficking. [ 6 ] Following the accused’s interactions with a third individual, the squad leader, Sergeant Randy Mortensen (the “Sergeant”), believed there were sufficient grounds to arrest the accused, without a warrant, for trafficking. [ 7 ] The accused was stopped in Vancouver in the Chevrolet Malibu.

He was arrested. The vehicle was searched and drugs were located in the vehicle. [ 8 ] The accused has asserted that he was arbitrarily detained and then unreasonably searched in breach of ss. 9 and 8 of the Canadian Charter of Rights and Freedoms (the “ Charter ”). II. ISSUE [ 9 ] Has the Crown established that the Sergeant had the requisite reasonable and probable grounds to justify the arrest of the accused without a warrant? III. BACKGROUND

[ 10 ] In his direct examination the Sergeant testified he has been a member of the RCMP for twenty-five years and as of 2016, was the squad leader for the Burnaby RCMP drug section. [ 11 ] He has been involved in upwards of 175 drug investigations in various capacities. [ 12 ] At the time of this investigation 90% of the Burnaby RCMP drug investigations related to dial-a-dope scenarios. [ 13 ] He described a dial-a-dope transaction as a “quick transaction” involving the drug user getting into a car with the dealer or putting their hands through an open window of the vehicle and a “quick exchange” of money and drugs with the dealer taking place. [ 14 ] The Sergeant testified that in a dial-a-dope investigation police members would conduct surveillance using unmarked police vehicles.

If there are observations of a potential drug transaction that information would be shared by radio with other team members. [ 15 ] Observations would be logged into a computer by a police member appointed as “scribe”. At the conclusion of the investigation the scribe would complete a surveillance log of the various observations made by team members. [ 16 ] On October 25, 2019, a briefing meeting of the drug squad took place at the detachment. It was decided to set up surveillance at 6:45 p.m. in the Metrotown area near the Patterson SkyTrain station.

This location is a “red zone” known to attract drug trafficking activities. [ 17 ] He testified that at approximately 8:40 p.m. a Chevrolet Malibu was observed in the Metrotown area. This vehicle was a vehicle of interest as it had been observed previously being involved in “suspicious activity”. [ 18 ] On the prior occasion a small dog was observed to be in the vehicle. A small dog was also observed to be in this vehicle on October 25.

A team member believed it was the same driver due to the fact there was a small dog in the vehicle. [ 19 ] There was no identification of the driver of the vehicle observed on the prior occasion.

There was no evidence a registered owner was identified or whether any information was downloaded to PRIME to support this belief. [ 20 ] The Sergeant conceded little turned on the earlier surveillance of this vehicle, but he wanted to re-establish surveillance of this vehicle because he “believed it to be suspicious”: Transcript, November 29, 2022, p. 16, ll. 29-38. [ 21 ] The Sergeant was asked to describe how he formed reasonable and probable grounds to arrest an individual involved in a drug trafficking dial-a-dope scenario. [ 22 ] He testified, as “a very general rule”, his team would “… try to see three -- three decent meets, drug transactions or short-duration meets , what we believe to be -- are drug transactions.

We feel -- we feel after we’ve seen three with -- with some other -- you know, a driving history or sometimes there’s history on the car , we feel that that was the grounds for -- reasonable and probable grounds for arrest … it could be less if -- if some of the observations are really good …” (emphasis added): ibid. at p. 18, ll. 37-47, and p. 19, ll. 1-4. [ 23 ] Initially the accused was observed going into a building near Metrotown.

He was not observed meeting anybody. [ 24 ] A short time later he left the building and drove to a townhouse just off Marine Drive in South Burnaby near the boundary with Vancouver. At this location the accused was observed interacting with a male in a garage or carport. No suspicious activity was observed. [ 25 ] After a few minutes the accused left and a short distance later he pulled over to the side of the road. He was observed reaching down into his lap “doing something”.

The Sergeant described this activity as “possibly” involving counting of money or text messaging following a drug transaction. [ 26 ] He described this activity as “a little bit suspicious”. [ 27 ] The accused was then observed driving slowly through an alleyway near Burke Street and Boundary Road in Burnaby when he met up with an unknown male. Constable David Su, who was on foot, saw the unknown male put both his hands through the driver’s side window of the accused’s vehicle.

He was 10 feet away when he observed this interaction and overheard a conversation along the lines of, “… you’re having a busy night; is there a smoke I can bum?”: ibid. at p. 50, ll. 37-45. [ 28 ] The interaction lasted approximately ten seconds.

Constable Su did not see anything being exchanged. [ 29 ] Based upon Constable Su’s observations of the accused with this unknown male in the alleyway, the Sergeant opined that he was “fairly confident” that this observation was “fairly telling of a drug transaction”: ibid. at p. 23, ll. 1-17. [ 30 ] The accused was next observed driving northbound along Boundary Road and passing through intersection with Lougheed Highway when he pulled over to the east-side of the highway alongside an unknown female who was on the sidewalk.

The unknown female was observed putting her hands into the passenger side window for a few seconds and then walking away. [ 31 ] The Sergeant described this observation as “almost a textbook” description of a dial-a-dope transaction. [ 32 ] Following his interaction with the unknown female, the accused pulled away from the side of the road and made a U-turn on Boundary Road and proceeded southbound. [ 33 ] At this point the Sergeant was satisfied that there were reasonable and probable grounds to arrest the accused and directed his team to follow the accused and, when it was safe to do so, to block his vehicle and then to conduct a warrantless arrest of the accused. [ 34 ] The accused drove into the East Vancouver area travelling along various streets.

The Sergeant felt the accused might “ possibly ”

be trying to evade the police because of the way he was driving (emphasis added). [ 35 ] The Sergeant was asked what factors he took into account in reaching his reasonable and probable grounds.

He conceded the first contact between the accused and the male in the garage or carport was out of the ordinary for a dial-a-dope transaction but the other interactions with the unknown male in the laneway and the unknown female along Lougheed Highway were “extremely telling”. [ 36 ] While of limited significance, he also factored into his grounds his observation of the accused looking into his lap after he left the Marine Drive area of South Burnaby where he had met up with the male at a garage or carport. [ 37 ] He testified that eventually they were able to block the accused’s vehicle and when they went to the side of his vehicle the accused was observed “wildly” drinking water from a water bottle.

The car door was locked and the Sergeant was pounding on the window telling the accused he was under arrest. [ 38 ] The accused finished drinking his water and complied with police directions. [ 39 ] The Sergeant testified, in his experience, the only reason the accused would be drinking the water was to swallow drugs.

In his opinion the accused must have known they were police officers from the flashing emergency lights on their police vehicles and that the police officers were wearing reflective vests with “Police” inscribed on the vests. [ 40 ] A small amount of illicit drugs were located in the accused’s vehicle. The Sergeant believed that it was likely the accused swallowed some of the drugs at the scene of his takedown. [ 41 ] The accused was taken to the hospital as the Sergeant was concerned he had swallowed some drugs. He declined medical attention.

He was released on a Promise to Appear. [ 42 ] In cross-examination the Sergeant agreed with the suggestion that none of the police officers participating in the investigation of the accused on October 25, 2019, observed the accused or the unknown male or the unknown female exchanging any money or drugs. [ 43 ] He agreed it would have been “helpful” to the investigation if the unknown male or the unknown female were found to be in possession of any drugs or had information to support the belief the accused was trafficking in drugs. [ 44 ] He agreed the investigation into the activities of the accused would have been “absolutely” assisted if they had the mobile telephone number being used by the accused. [ 45 ] He agreed that when the accused stopped his car, after leaving the Marine Drive area of South Burnaby, and was looking into his lap that observation was also consistent with someone looking at their phone.

IV.

ADMISSIONS [ 46 ] Admissions of Fact were filed in the voir dire : Exhibit A. [ 47 ] The Admissions of Fact can be summarized as follows: • That the identification of the accused, date and jurisdiction is admitted; • That the Sergeant directed police members to arrest the accused at 9:43 p.m. on October 25, 2019; • That the Sergeant and Constable Mitchell believed the accused was swallowing suspected drugs; • That the accused was the driver and sole occupant of the Chevrolet Malibu; • That the accused was not the registered owner of the Chevrolet Malibu; • That the Sergeant saw a cellular phone fall from the accused’s lap as he exited the Chevrolet Malibu; • That the phone was seized by Constable Gill who answered fourteen incoming calls identified at para. 6; • That the phone continued to ring every couple of minutes with the callers asking how long it would be; • That the phone SIM card was removed at 10:40 p.m. and taken to the Burnaby RCMP detachment; • That the accused was searched incidental to arrest and nothing of consequence was located on his person; • That the Chevrolet Malibu was searched by Constable Su; • That on the driver’s seat in plain view there was a small baggie of crack cocaine weighing 0.19 grams including packaging, four small empty baggies, a small, empty, clear container and fifty-five Canadian dollars comprised of two $20.00 bills, a $10.00 bill and a $5.00 bill; • That a water bottle was located in the driver’s area containing a clear liquid; • That under the driver’s seat a baggie of crack cocaine was found weighing 0.36 grams including packaging; • That in the centre console, a clear Pepsi bottle containing a dark liquid and $70.80 in coins and paper currency were

located; • That the accused declined any medical treatment at the hospital; • That the accused was subjected to a strip search at the Burnaby RCMP detachment with negative results; and • The nature, continuity, integrity all exhibits, photographs and Certificates of Analysis are admitted. V. POSITION OF THE PARTIES a.

The Accused [ 48 ] The accused submits the test for reasonable and probable grounds to justify his arrest were not met in this case. [ 49 ] In particular, he submits that objectively a reasonable person standing in the shoes of the police would not have believed that grounds existed to make the arrest: R. v. Sandoval-Calderon , 2005 BCPC 425 at para. 26 . [ 50 ] He submits evidence led in this case is lacking in compelling details.

His submissions can be summarized as follows: • That his interaction with another man at a townhouse just off Marine Drive in Burnaby would not establish any sufficient subjective or objective grounds; • That his interactions with an unknown male in an alleyway off of Burke Street in Burnaby observed by Constable Su would not establish any objective grounds that any trafficking was taking place; • That his interactions with an unknown female on the side of Boundary Road near the intersection with Lougheed Highway in Burnaby were lacking in any detail that any trafficking was taking place; • That in his interactions with the unknown male and the unknown female no hand-to-hand transactions were observed; • That neither the unknown male nor the unknown female were detained to investigate if they were in possession of illicit drugs; • That this is a case not involving multiple hand-to-hand transactions; • That even in cases involving multiple hand-to-hand transactions a lack of sufficient quality and detail may not be enough to establish sufficient objective reasonable and probable grounds for an arrest: R. v.

Oyston , 2019 BCSC 264 at para. 86 ; • That the Sergeant’s observations of the accused swallowing water from a water bottle after he was stopped in East Vancouver could have a variety of explanations not involving drug possession; and • That there was no evidence the activities of the accused as observed by the police took place in an area known for drug trafficking. b.

The Crown [ 51 ] The Crown submitted Sergeant Mortensen had the requisite subjective and objective grounds to justify the arrest of the accused. [ 52 ] The Crown’s submissions on the Sergeant’s subjective and objective grounds are summarized as follows: • That the Sergeant believed the vehicle the accused was driving on October 25, 2019, with a small dog was the same vehicle with a small dog that was briefly surveilled on a prior occasion near Metrotown involved in suspicious activity; • That while the interaction of the accused with the male in the Marine Drive area of Burnaby was not significant it was sufficient to justify why the Sergeant wanted to “maintain surveillance”; • That after that interaction the accused was observed pulling over to the side of the road and looking down into his lap for a brief duration which the Sergeant believed was consistent with a potential dial-a-dope scenario; • That Constable Su advised the Sergeant he observed the accused meeting up with an unknown male in a back alley near Burke Street in Burnaby and the unknown male was observed to lean into one of the windows and state words to the effect, “you’re having a busy night; is there a smoke I can bum?”; • That this interaction was “telling” to the Sergeant as the unknown male’s hands and arms had gone through the open window and the conversation would suggest he was impatient over the delay but was comfortable enough with the accused to ask him for a cigarette, suggesting a prior relationship; • That the Sergeant’s observations of the interaction of the accused with the unknown female at Boundary Road near Lougheed Highway when she reached into the open window of the accused’s vehicle with her arms was a “textbook” observation consistent with a dial-a-dope scenario; • That the Sergeant’s experience in dealing with illegal drug trafficking activities and the observations made by the Sergeant

and the information related to him by Constable Su justified his subjective and objective grounds to direct his team to arrest the accused; • That the Sergeant’s observations of the accused’s driving through the East Vancouver area before he was finally blockedin was, in the experience of the Sergeant, indicative of an individual exercising “heat checks”; • That once the accused’s vehicle was blocked the Sergeant approached the vehicle wearing police issued gear when heobserved the accused gulping down water from a water bottle while the Sergeant was pounding on the window and directing the accusedto unlock the vehicle as he was under arrest; and • That it was the belief of the Sergeant, from his experience in dealing with illegal drug trafficking activities, that theaccused was swallowing drugs while he was gulping down the water as a method to conceal the drugs. [53] The Crown submits that in relation to the arrest powers of a police officer under s. 495(1) of the Criminal Code of Canada,R.S.C., 1985, c.

C-46 (the “Code”), to conduct a warrantless arrest the police officer must subjectively have the personal beliefreasonable grounds existed for the arrest and objectively a reasonable person, standing in the shoes of the police officer, would believethat reasonable and probable grounds existed to make the arrest: R. v.

Messina, 2013 BCCA 499 at para. 20. [54] Crown’s further submissions in relation to the applicable law can be summarized as follows: • That the objective assessment is based on the totality of the circumstances known to the Sergeant from his perspective,taking into account his training, experience and knowledge; • That the standard of reasonable and probable grounds requires something more than a mere suspicion but something lessthan a balance of probabilities; • That police will often be called upon in dynamic situations to make quick decisions based upon reasonable or crediblybased probabilities envisioning a practical, non-technical and common-sense probability as to the existence of the facts and inferencesasserted: R. v.

Glendinning, 2019 BCCA 365 at para. 31; • That a court must assess objectively the reasonableness of a police officer’s belief and not a layperson’s view of what anexperienced police officer would deduce in the totality of the circumstances: Messina at para. 28; and • That police officers are not required to rule out other explanations for their observations, including innocent alternatives, ifthere is an objective basis to infer criminal activity: R. v.

Gill, 2015 BCSC 310 at para. 49 (“Gill”). [55] The Crown submits the totality of the circumstances surrounding the arrest of the accused, taking into account the training,experience and knowledge of the Sergeant, establish the existence of the requisite subjective and objective grounds to justify thewarrantless arrest of the accused for the indictable offence of drug trafficking. VI. LEGAL FRAMEWORK [56] An arrest without warrant by a peace officer is codified in s. 495(1)(

a) of the Code and reads as follows: 495

(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commitan indictable offence [57] The Supreme Court of Canada in R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 at 250, established the grounds anarresting police officer must subjectively and objectively believe prior to conducting a warrantless arrest: In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. Onthe other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically they are not requiredto establish a prima facie case for conviction before making the arrest. [58] The grounds to conduct a warrantless arrest may be established if the arresting police officer has a “reasonable belief” in theirsubjective and objective grounds: R. v. Debot, (SCC), [1989] 2 S.C.R. 1140 at para. 1166. [59] The accused has asserted that his s. 9 and s. 8 Charter rights were breached at the time of his arrest and subsequent searchincidental to his arrest for the reasons outlined in this ruling. [60] The onus is upon the accused to establish the breaches on a balance of probabilities.

VII. ANALYSIS AND FINDINGS [61] Following a briefing on October 25, 2019, the Sergeant directed his team to conduct surveillance of the Metrotown area near thePatterson SkyTrain station known to be an area involving drug trafficking. [62] Coincidentally, as the police got into their position, the Sergeant observed the accused in a Chevrolet Malibu with a small dog.The Sergeant testified that on an earlier occasion the same vehicle with a small dog was involved in “suspicious activity” near the

Metrotown area. [ 63 ] Based upon this previous suspicious activity, the Sergeant decided his team would commence surveillance of the accused. [ 64 ] The accused was surveilled leaving a building in the Metrotown area and driving south to a location near Marine Drive and Boundary Road where he was observed meeting a male. No suspicious activity was observed. [ 65 ] A short time later the accused drove away and pulled over at the side of the road and was observed looking down into his lap.

In his experience the Sergeant believed it was possible he could be counting money or text messaging consistent with drug trafficking. He described the accused’s actions as a “little bit suspicious”. [ 66 ] At no time was the accused ever observed by the police using a cellular device to make a call or text message. [ 67 ] The accused then drove to Burke Street in Burnaby and entered a laneway where he met an unknown male.

Constable Su was on foot in the laneway and observed the unknown male put both his hands through the open window of the driver’s side of the Malibu and overheard a brief conversation along the lines of, “… you’re having a busy night; is there a smoke I can bum?” [ 68 ] The Sergeant testified this interaction and conversation between the accused and the unknown male in the laneway was very “telling” of a drug transaction as, in his experience, the unknown male was impatient over a delay in the delivery of the drugs and the fact he was asking for a cigarette would suggest a familiarity between the parties. [ 69 ] Other than placing his hands into the driver’s side window of the Malibu the unknown male never physically entered into the Malibu.

The total interaction was no more than ten seconds in duration. [ 70 ] I find the Sergeant’s belief the conversation overheard by Constable Su was “telling” as an indication the unknown male was expressing impatience was relevant to his grounds. However, I give little weight to his belief there was a familiarity established between the parties when the unknown male asked the accused for a cigarette. [ 71 ] I find panhandling a stranger for a cigarette is not an uncommon or unique life experience in Metro Vancouver. [ 72 ] I find there is no evidence to suggest the unknown male was a known drug addict.

Constable Su did not see any hand-to-hand transaction. Other than place his hands through the driver’s side window at no time did the unknown male enter into the vehicle. [ 73 ] The unknown male was never arrested after his interaction with the accused to investigate if he was found to be in possession of any drugs.

Had the unknown male been arrested and a search incidental to arrest discovered drugs, that would have elevated the grounds for the warrantless arrest of the accused: Gill at paras. 30 and 32. [ 74 ] I find there is no evidence to suggest this interaction took place in a “red zone” where drug trafficking is common: R. v. Glendinning , 2018 BCSC 1575 at para. 56 (e). [ 75 ] The accused was then surveilled meeting the unknown female at Boundary Road near the intersection with Lougheed Highway.

The unknown female was observed to briefly put her hands into the vehicle from the passenger side and within seconds was observed walking away. [ 76 ] It was at that juncture, based upon the totality of his observations, the Sergeant ordered his team to conduct a warrantless arrest of the accused for trafficking. [ 77 ] I find there is no evidence to suggest at the time the accused interacted with the unknown female that she was a known drug addict. Other than placing her hands to the passenger side window at no time did she in fact enter into the vehicle. The interaction was of a brief duration.

No hand-to-hand transaction was observed. [ 78 ] The unknown female was never arrested after her interaction with the accused to investigate if she was found to be in possession of any drugs, that would have elevated the grounds for a warrantless arrest of the accused: Gill , ibid . [ 79 ] I find there is no evidence to suggest this interaction took place in a “red zone” where drug trafficking is common: Glendinning , ibid . [ 80 ] The Sergeant testified the accused drove into the area of East Vancouver and from his observations of the accused he might “possibly” have been trying to evade the police through what he described to be “heat checks”. [ 81 ] I find the Sergeant’s observations of the accused’s driving actions in East Vancouver may have been indicative of the accused trying to evade the police, but even the Sergeant testified his observations were merely a “possibility” of evasive conduct. [ 82 ] The Sergeant testified after the accused was boxed in he was observed “wildly” drinking water from a water bottle.

The accused was not immediately responsive to police directions to exit the vehicle. [ 83 ] He testified it would have been clear to the accused he was under the control of the police as they were wearing gear indicating “Police” and their unmarked cars were displaying emergency lights. [ 84 ] The Sergeant and Constable Mitchell believed the accused was drinking water to swallow drugs: Admissions at para. 3. [ 85 ] In both his direct examination and cross-examination the Sergeant testified he did not actually see the accused place anything in his mouth other than the water from the water bottle. [ 86 ] I find the observations of the accused in his locked vehicle swallowing water from a water bottle at the time he was boxed in by

the readily identifiable police is a significant objective ground the accused could be swallowing drugs. [ 87 ] However, I am required to look at the totality of the circumstances known to the Sergeant at the time of the arrest of the accused from the perspective of a reasonable person with comparable knowledge, training and experience as the Sergeant, as being capable of supporting the belief that grounds for a warrantless arrest existed. [ 88 ] In assessing objective justification for a warrantless arrest it is not necessary to follow a checklist approach and the absence of common indicia in dial-a-dope scenarios are to be considered neutral: R. v.

Ghani , 2022 BCPC 172 at para. 17 . [ 89 ] I give significant weight to the evidence of the Sergeant in his testimony in direct examination concerning his “general rule” in establishing reasonable and probable grounds to conduct a warrantless arrest, reproduced at para. 22 of this Ruling. [ 90 ] While the Sergeant was not bound to apply his “general rule” in drug trafficking investigations, in his investigation of the accused there were only two “short-duration meets” with the unknown male and the unknown female.

No hand-to-hand transactions were observed. [ 91 ] While Constable Su was 10 feet away when he overheard the conversation between the accused and the unknown male in the laneway, in part of which the unknown male asked the accused for a cigarette, there was no evidence of any response from the accused or whether or not any cigarette exchange took place. [ 92 ] The interactions observed between the accused and the unknown male and the unknown female did not take place in any “red zone” that was the original target of the police investigation on October 25, 2019. [ 93 ] There was little history on the car the accused was driving other than on a previous occasion this vehicle was suspected to be involved in some “suspicious activity”.

The identity of the driver on that occasion was unknown other than this vehicle, if it was the very same vehicle observed on the prior occasion, was not registered to the accused: Admissions at para. 5. [ 94 ] The Sergeant’s general rule of “three decent meets” was not a hard and fast rule if there were other observations that were “really good”. [ 95 ] Considering the totality of the evidence in this case I do not find the Sergeant’s grounds to conduct a warrantless arrest of the accused were based on observations that could be described as “really good”, except for the observation of the accused drinking from the water bottle at the time he was stopped in East Vancouver. [ 96 ] While the Sergeant believed, from his experience and training, the accused was involved in a dial-a-dope scenario that belief is not determinative in establishing reasonably objective grounds to justify a warrantless arrest of an individual. [ 97 ] I find in this case the Sergeant’s subjective belief was justified but his objective belief was based upon a hunch-based intuition gained by experience that falls short of establishing reasonably objective grounds to justify a warrantless arrest of the accused or to justify a warrantless search of the motor vehicle he was operating.

VIII. CONCLUSION [ 98 ] I find the warrantless arrest of the accused and the subsequent warrantless search of the motor vehicle he was operating were in breach of his s. 8 and s. 9 Charter rights. _____________________________ The Honourable Judge G.M. Rideout Provincial Court of British Columbia