R. v. Vanderveen, 2023 BCPC 76

Citation: R. v. Vanderveen 2023 BCPC 76 Date: 20230120 File No: 260846-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. REECE TERENCE VANDERVEEN RULING ON VOIR DIRE OF THE HONOURABLE JUDGE GORDON Counsel for the Crown: T.J. Cook Counsel for the Defendant: B. Anderson Place of Hearing: Vancouver , B.C. Date of Hearing: September 6 & 7; October 6 & 7, 2022 & January 20, 2023 Date of Judgment: January 20, 2023

[ 1 ] THE COURT : Reece Vanderveen comes before the Court charged with offences of Possession of Methamphetamine for the Purpose of Trafficking and Possession of Fentanyl; both offences alleged to have been committed in Vancouver on October 7, 2020. The trial commenced before me on September 6, 2022. [ 2 ] Counsel for Mr. Vanderveen had filed a Notice of Application seeking to have the evidence seized from him by members of the Vancouver Police Department excluded from evidence on the basis of alleged violations of his rights pursuant to ss. 8 and 9 of the Canadian Charter of Rights and Freedoms .

Additionally, it is argued that the Crown, in seeking a warrant for Mr. Vanderveen's arrest as the form of process, violated his s. 7 protections. As a result of the application, the trial commenced by way of voir dire . The viva voce evidence of the arresting officers was tendered, as well as a Statement of Agreed Fact. [ 3 ] The first witness called by the Crown was Constable Bryan Watson of the Vancouver Police Department.

He was a patrol officer at the time of the allegations and had subsequently been transferred to or promoted to hate crimes investigations. [ 4 ] While working in the Downtown Eastside of Vancouver, he had arrested a number of people for alleged violations of the Controlled Drugs and Substances Act . [ 5 ] Constable Watson testified that he is a drug recognition expert. However, no attempt was made to qualify him as such. [ 6 ] The officer observed an electric scooter parked on a sidewalk on Campbell Street. The scooter did not have pedals, which means it could not also be operated as a bicycle.

The scooter's lights were on. Mr. Vanderveen was sitting on the scooter. The officer believed that because the scooter had no pedals that it was required to be licenced. The officer saw Mr. Vanderveen seated near where a woman known to the officers as a drug user had been standing. The officer had on earlier occasions stopped such scooters and issued Motor Vehicle Act violation tickets to the riders. [ 7 ] The officer never observed the scooter move at all. He never checked if it was operable. He had no idea how long the scooter had been there. He had no idea how long Mr. Vanderveen had been sitting on it.

He could not say that the scooter had not been pushed to where he saw it. The officer acknowledged that he arrested Mr. Vanderveen because he inferred that Mr. Vanderveen had been driving, but that he did not see him doing so. [ 8 ] Once the officer was out of the police cruiser and approached Mr. Vanderveen, he observed that there was a key in the scooter's ignition. He told Mr. Vanderveen that he was investigating a licence and registration check. [ 9 ] The officer testified that he asked Mr. Vanderveen for his driver's licence and that Mr. Vanderveen moved his hands quickly and licked his lips.

The officer decided, therefore, that Mr. Vanderveen was on a stimulant. [ 10 ] Quite frankly, without any evidence suggesting that Mr. Vanderveen was doing anything other than reaching for his driver's licence as requested, the officer's conclusion cannot be seen as anything other than a ruse on the part of the officer. [ 11 ] The officer then immediately handcuffed Mr. Vanderveen. What Mr. Vanderveen had, in fact, done was to reach into his bag and produce his wallet for the officer. [ 12 ] The officer also purported to have a weapons concern, but again, there is absolutely nothing to suggest that Mr.

Vanderveen did anything other than attempt to comply with the officer's direction and provide his driver's licence to the officer. Mr. Vanderveen had been reaching into a man-bag. [ 13 ] After he was handcuffed, the officer asked if he had any weapons and Mr. Vanderveen said that he had a Batman knife in his pocket. The officer searched the pocket with a flashlight. The officer apparently told Mr. Vanderveen that he was arrested for Driving Without Insurance. [ 14 ] In the end result, no Motor Vehicle Act tickets were issued to Mr. Vanderveen. [ 15 ] In the pocket where Mr.

Vanderveen had said the knife would be found, the officer located a glass tube which he believed was used to smoke crack cocaine. He also found traces of what he said was a white crumbly substance which he felt might have been crack cocaine residue. The officer asked Mr. Vanderveen if it was crack, and Mr. Vanderveen said that it was. [ 16 ] In addition to the man-bag on the front of his body, Mr. Vanderveen was wearing a fanny-pack. He was handcuffed. [ 17 ] Notwithstanding the handcuffs, Constable Watson decided to search the fanny pack for officer safety reasons.

He located a baggie that contained smaller baggies that he believed to be methamphetamine. He then arrested Mr. Vanderveen for possession of methamphetamine for the purpose of trafficking. [ 18 ] According to the officer, when Mr. Vanderveen was asked if he was selling dope, he said that he was not and volunteered a cellular telephone to the officer and offered to unlock it, all apparently without any suggestion from the officer. The officer decided to look at “top level things”; whatever that means. He chose to look at text messages that Mr. Vanderveen had sent and received.

The officer found a text conversation that he believed related to the sale of methamphetamine. The officer took photographs of the text messages. [ 19 ] The officer was aware that, without Mr. Vanderveen's consent, he was unable to search the telephone at the roadside. [ 20 ] Mr. Vanderveen was released from police custody at the scene without any form of process. [ 21 ] The officer acknowledged that he views the entire Downtown Eastside as an area known for drug use. When the officer approached Mr. Vanderveen, the woman who was known to the officer and her friend "scattered away," to use the officer's words. The

officer then immediately decided that there must be a drug concern. He was aware, however, that his suspicions did not give him grounds to detain Mr. Vanderveen for a drug investigation. Notwithstanding that the Vancouver Police Department's written policy directs that, in certain circumstances, individuals the police suspect of violating the Motor Vehicle Act should be ticketed and not arrested, Constable Watson does not believe that the policy impacts his authority to arrest. [ 22 ] The officer was easily able to unclip the fanny-pack from Mr. Vanderveen's belt while Mr. Vanderveen was handcuffed.

Clearly, once it was unclipped, Mr. Vanderveen had no access to it, yet the officer nonetheless chose to search the fanny-pack purportedly for weapons because Mr.

Vanderveen had not yet been arrested for possession for the purpose of trafficking. [ 23 ] The officer acknowledged that, as soon as he saw the cellular telephone, he had an investigative interest in it because he believed it could be used to assist in trafficking. [ 24 ] Even though the officer purported in his evidence to have looked at text messages from the day in question only, it is obvious that he searched further because he took photographs of text messages from earlier days. [ 25 ] The officer also claimed that while Mr.

Vanderveen said he was not selling drugs, that he also said that he had recently gotten back into it. The officer refused to acknowledge that the two comments are inconsistent with one another. [ 26 ] Notwithstanding the patent inconsistency, the officer continued to claim that Mr. Vanderveen voluntarily moved his handcuffed thumb on his own to unlock his cellular telephone and have the officer search through it. Of course, the officer never advised Mr. Vanderveen that he did not have to unlock his telephone for the officer. [ 27 ] Mr.

Vanderveen was released unconditionally without any form of process from the scene. The officer, in his reports, made no reference to his belief or otherwise as to whether Mr. Vanderveen would attend court. [ 28 ] Constable Watson was partnered with and mentoring Constable Macadam that day. Constable Macadam testified that he believed that once the two officers were out of the cruiser car and approaching Mr. Vanderveen, that Mr. Vanderveen was putting his hands in his pockets. Fearing that Mr. Vanderveen might have a weapon, the officer immediately took hold of Mr.

Vanderveen's arms. [ 29 ] The officer knew that on occasions some stops and searches result in police reports being submitted for charge approval.

As a result, he recalled discussing the text messages Constable Watson searched for with Constable Watson. [ 30 ] It is apparent from his testimony that not all of the drugs located and seized by him and his mentor had on earlier occasions formed the basis of reports submitted to the Public Prosecution Service of Canada for prosecution. [ 31 ] The officer processed the exhibits seized and found 39 small baggies, each containing small amounts of crystal methamphetamine. [ 32 ] While the officer testified that when he first saw Mr. Vanderveen that Mr.

Vanderveen was moving the scooter, he reported both in his notes and his initial typed report that the scooter was stationary. I note that he did not testify how it was moving, but I had the impression that it was sitting and walking, and if I may, ala Fred Flintstone. Specifically, the officer did not testify that it was being powered or moved electronically. [ 33 ] Constable Macadam observed what he believed to be a somber look on Mr. Vanderveen's face. He did not observe other facial motions or lip-licking. [ 34 ] Notwithstanding that Mr.

Vanderveen was arrested for a Motor Vehicle Act offence of driving without insurance, Constable Macadam immediately contemplated that they would search Mr. Vanderveen as they did. That was the reason he asked Mr. Vanderveen if he had any sharp items in his pockets. [ 35 ] It is completely unclear to me why an arrest for a stationary motor vehicle offence would require a search of the alleged offender. [ 36 ] Constable Macadam had no specific concern that Mr. Vanderveen might have a weapon.

It was a question he asked of everyone he arrested in the Downtown Eastside of Vancouver. [ 37 ] For the most part, Constable Macadam's evidence was uncontroversial. [ 38 ] Constable Watson's, on the other hand, was not. He is a very smart officer conversant with the tragic nature of the Downtown Eastside. He has intimately familiarized himself with things to look for so he might lawfully stop, detain, or arrest someone he suspects might be in possession of drugs. In this case, he saw Mr. Vanderveen speaking with someone the officer knew to be a drug user.

He observed an electric scooter without pedals on a sidewalk and knew that some Courts had concluded that that kind of scooter was a motorized vehicle. He believed that gave him grounds to arrest Mr. Vanderveen. [ 39 ] During the course of his evidence when inconsistencies in his evidence were pointed out to him, he would initially hold fast, but then quickly realize that that position required an explanation. He would then proffer an explanation.

The explanation itself would often also be inconsistent, meaning that often his version of what occurred that day was quite fluid. [ 40 ] By way of example, he maintained that Mr. Vanderveen denied that he trafficked and then immediately voluntarily, while handcuffed behind his back, offered to unlock his telephone with a thumb that he could not see on a cellular telephone that he could not see to unlock the telephone so that the officer could search it for evidence of his innocence. His version then ever so fluidly changed to Mr.

Vanderveen making an admission of guilt prior to still volunteering to unlock his phone while handcuffed. [ 41 ] I note that it would have been physically impossible for Mr. Vanderveen to unlock the phone without the officer moving his

thumb to the exact right spot on the telephone. [ 42 ] It is very difficult to accept Constable Watson's evidence. [ 43 ] In addition to his challenges under s. 8 and 9 of the Charter , Mr. Vanderveen brings one under s. 7. He had been released at the scene unconditionally without any form of process compelling his appearance in court. In their reports, neither officer addressed any issue as to whether there was a concern that Mr. Vanderveen, if charged, would not appear in court. Yet the Crown, when it approved charges, sought a warrant for Mr.

Vanderveen's arrest rather than requesting a summons to compel his appearance. The warrant requested was an endorsed warrant, meaning that he could be released from custody once arrested and would not necessarily have to be brought before a judicial officer. [ 44 ] The justice of the peace before whom the Information was sworn was told that that was the process being sought but was not told why. [ 45 ] Mr. Vanderveen does not have a criminal record. [ 46 ] The Information was sworn on April 30, 2021. [ 47 ] Constable Watson attended the residence Mr.

Vanderveen had provided to the officer, which was, in fact, his residence, and arrested Mr. Vanderveen on May 2, 2021. He was arrested at 3:35 p.m. and taken to the Vancouver jail at 4:55 p.m. It is unclear to me why the drive took one hour and 20 minutes. The police released him from custody on an undertaking to appear at 8:39 p.m. Mr. Vanderveen, therefore, spent slightly more than five hours in police custody as an individual without a criminal record having been arrested on the strength of a warrant directing that he could be released from custody once arrested.

The undertaking had conditions including that Mr. Vanderveen not attend the Downtown Eastside of Vancouver. [ 48 ] Defence counsel argued that the arrest for driving without insurance violated Mr. Vanderveen's s. 9 right not to be arbitrarily detained.

Section 79 of the Motor Vehicle Act permits the arrest of someone found driving a motor vehicle. He argues that the legislation directs that the officer must find someone driving and not someone he or she believes has driven. The reasonable and probable grounds in the

section relate to whether the officer believes the vehicle is insured and not whether the person has been driving. He pointed out that sitting on a scooter parked on a sidewalk is not driving. He pointed out that in various sections of the Motor Vehicle Act there are driving offences, separate offences in relation to being stopped or parked on a sidewalk, the obvious conclusion being that the use of the word "driving" in the Statute takes its ordinary meaning. [ 49 ] The Motor Vehicle Act also discusses care and control of a vehicle in relation to the 24-hour prohibition sections.

He argued that, in that case, the Legislature recognizes that driving is a present activity and not something that a police officer feels had occurred.

Section 79 of the Motor Vehicle Act does not permit the arrest of someone in the care and control of an uninsured vehicle. [ 50 ] Defence counsel pointed out that both the British Columbia Supreme Court and the Court of Appeal have concluded that the act of driving requires both movement and control over the motor vehicle. [ 51 ] Constable Macadam did testify that he saw the vehicle move. He had not noted that either in his notes or in the reports he prepared initially to be forwarded to the Public Prosecution Service of Canada for charge approval. He testified that he had formed no grounds to arrest Mr.

Vanderveen. [ 52 ] I do not believe that Constable Macadam set out to deceive the Court. It is more likely that in the two years between the incident and his testimony that he came to believe that he saw some movement, notwithstanding that he made no note of it nor believed that he had any grounds to arrest Mr. Vanderveen. [ 53 ] Defence counsel argued that the scooter was first seen parked on a sidewalk. [ 54 ] Constable Watson assumed that it had been driven there and assumed that it had been driven by Mr. Vanderveen.

Additionally, he never checked if the scooter was operable. [ 55 ] He argued, as well, that as Mr. Vanderveen was not seen driving, arresting him was therefore unlawful, and was therefore in breach of his right to be free from arbitrary detention. Anything that came after that was evidence discovered subsequent to and because of the arbitrary detention. [ 56 ] Mr. Vanderveen argued, as well, that the searches violated his rights to be free from unreasonable search and seizure. The searches were warrantless and warrantless searches are prima facie unreasonable.

Section 8 exists to prevent unreasonable searches from occurring. A warrantless search will be found to be reasonable if it is both authorized by law and carried out in a reasonable manner. [ 57 ] Mr. Vanderveen, at the demand of Constable Watson, was trying to locate his driver's licence by pulling out his wallet. Constable Watson decided that notwithstanding that Mr. Vanderveen was complying with the police demand that he might be looking for a weapon and the officer therefore arrested and handcuffed him. [ 58 ] Constable Macadam, on the other hand, testified that he had handcuffed Mr.

Vanderveen immediately upon getting out of the police car before Mr. Vanderveen could do anything to obtain his identification for the officers. [ 59 ] Defence counsel argued that because there was no authority to arrest Mr. Vanderveen because there was no evidence of his having committed a Motor Vehicle Act violation that, therefore, there ought never to have been a safety search. [ 60 ] In any event, he argued that in R. v. MacDonald , [2014] SCC 3, that a vague concern for safety does not permit a search for weapons. There would have to be an imminent threat to the police.

If there is a belief of an imminent threat, then the search must be only so far as necessary. The officers' subjective belief of imminent threat must be objectively reasonable. Defence counsel pointed out

that the phrase, "officer safety," cannot become a meaningless incantation used to justify warrantless searches. He argued that none of the minimal observations used by Constable Watson to justify the weapon search amount to an objectively reasonable concern for officer safety. [ 61 ] I concur, particularly because Mr. Vanderveen went to reach his hand into his bag at the demand of Constable Watson to produce identification. The demand by the officer and then its use as justification for a warrantless search provides Constable Watson with the ability to both have his cake and eat it, too.

On any standard, his created grounds for belief fall short of being evidence to suggest he had a genuine concern for his safety. [ 62 ] Defence counsel pointed out, as well, that Mr. Vanderveen was not aggressive, threatening, or assaultive. [ 63 ] He argued that Constable Watson searched the bag where Mr. Vanderveen's hand had been before asking Mr. Vanderveen if he had any sharps. The search belies a genuine concern for officer safety. [ 64 ] Mr. Vanderveen had both the man-bag and a fanny-pack. He was handcuffed behind his back. The officer removed the fanny- pack from his person.

Having done so, there were zero grounds to search the fanny-pack for weapons. [ 65 ] Defence counsel argued that the safety search in this case was not authorized by law. He argued that the arrest was unlawful, and the search exceeded the scope of any genuine concern for officer safety. [ 66 ] With respect to the search of the telephone, defence counsel reminded the Court that the consent that Constable Watson claimed that he received was allegedly a waiver of Mr. Vanderveen's Constitutional right to be free from unreasonable search and seizure. A waiver must be both voluntary and fully informed.

The Crown must prove that the consent was voluntary, that Mr. Vanderveen was aware in advance of what the scope of the police conduct would be, that Mr. Vanderveen knew that he could refuse the search, and that he was aware of the potential consequences of the search. [ 67 ] Defence counsel argued, as well, that even on Constable Watson's evidence, the telephone was unlocked under highly oppressive circumstances. He was under the complete control of the officers and had seen, without any request for permission to do so, the officers search all of his belongings. Constable Watson elected not to advise Mr.

Vanderveen of his right to refuse. [ 68 ] The Supreme Court of Canada in R. v. Fearon , [2014] SCC 77, discussed when a police officer may search a cellular telephone incidental to a lawful arrest. At this point in time, cellular telephones carry virtually all of our significant personal data. The search of the cellular telephone may therefore be a huge invasion of privacy.

Defence counsel argued, therefore, that the very reason Courts require authorization for searches, specifically a prospective protection of privacy, is very much in keeping with the desire to protect the significant privacy interests in all of our cellular telephones. [ 69 ] He argued that a search of a cellular telephone as an incident to arrest can be carried out only when the investigation will be significantly hampered. The police must explain why the search could not have waited until such time as they have justified before an impartial judicial officer that they have reasonable grounds to conduct a search.

He argued that Constable Watson's vague evidence about being unable to unlock a cellular telephone does not amount to the evidence required to prove that an investigation will be stymied. [ 70 ] Defence counsel argued, as well, that Constable Watson failed to properly document his search as required by Fearon . He made no notes of what applications other than text messages that he searched. He did not know how long he searched the telephone for.

Additionally, defence counsel argued that Constable Watson wanted the Court to believe that he looked at the text messages from the day in question only until it was pointed out to him on cross-examination that he had gone much further and had photographed text messages from earlier days. [ 71 ] With respect to the s. 7 argument, defence counsel pointed out that Mr. Vanderveen was released at the scene without any form of process under either the Motor Vehicle Act or the Controlled Drugs and Substances Act . The officer made note of Mr. Vanderveen's residential address. Constable Watson had no concerns about Mr.

Vanderveen that required him to release Mr. Vanderveen conditionally on a form of process. The practice of the court liaison officer who swore the Information in this case is to let the justice of the peace know what form of process the Crown is requesting. Other than being told of the Crown request, the justice of the peace in this case was given no evidentiary basis for the Crown to believe that an endorsed warrant was required rather than a summons. Mr. Vanderveen spent approximately five hours in police custody when he was arrested on May 2, 2021. [ 72 ] Defence counsel argued that in R. v.

Vixaysongkham [2007] BCSC 183, that a similar fact pattern was found to be in violation of s. 7. The Crown gave no reason to the justice of the peace for its belief that a warrant was required. Defence counsel argued that, in such circumstances, the warrant was invalidly issued. The justice of the peace elected to be a rubberstamp and not a judicial officer weighing the appropriate process. [ 73 ] I do question why Constable Watson felt the need after executing the warrant to hold Mr.

Vanderveen in custody for five hours rather than giving him the undertaking at his home. [ 74 ] Crown counsel argued that none of the arrest of Mr. Vanderveen, the searches of his bags and his pocket, the search of his cellular telephone, and the request for a warrant for his arrest amounted to a breach of any of his Constitutional rights. [ 75 ] He argued that Mr. Vanderveen was appropriately stopped for a Motor Vehicle Act violation. [ 76 ] I note that he was not stopped by the police. He had been immobile seated on a scooter when the police first espied him.

He was nonetheless detained and in short order arrested. [ 77 ] Crown counsel argued that there was no violation of s. 9 of the Charter because Mr. Vanderveen was lawfully detained under the Motor Vehicle Act . He was then arrested for driving without insurance. He argued it was appropriate for Constable Watson, having observed Mr. Vanderveen sitting on a scooter parked on the sidewalk, to infer that Mr. Vanderveen had driven it there. He argued that

the scooter was turned on and was, therefore, in driving mode. He argued that the objective of the Motor Vehicle Act is to preventindividuals from operating uninsured vehicles and that it is appropriate to accept Constable Watson's belief that Mr. Vanderveen musthave driven it to where it was stopped.

In such case, therefore, he argued that the court cannot find a s. 9 violation. [78] With respect to the s. 8 argument, Crown counsel argued that if I conclude that the arrest was lawful, that the searches of Mr.Vanderveen's man-bag, his pocket, and his fanny-pack were all lawful searches incidental to his arrest for driving without insurance. [79] I cannot agree. If one can be arrested for a driving violation while immobile, he should be issued violation tickets and sent onhis way. [80] Crown counsel did acknowledge that a search incidental to a lawful arrest must relate to what the individual was arrested for.

Heargued that the searches in this case were justified in the interest of public safety. He argued that Constable Watson was justified in theconcern he testified he developed when he observed Mr. Vanderveen going to get his wallet. He argued, as well, that ConstableMacadam had a concern because he immediately handcuffed Mr. Vanderveen following their getting out of the police car because hesaw Mr. Vanderveen trying to put his hand in his pocket. [81] The contradictory evidence is problematic in the case for the Crown because both cannot be true.

If he were already handcuffed,he could not have tried to reach into his bag to get his wallet. If he was handcuffed immediately, there was simply no evidence to justifya public safety concern. [82] Crown counsel argued that the safety search was incidental to the lawful arrest of Mr. Vanderveen for driving without insurance. He argued that once Constable Watson asked Mr. Vanderveen if he had any weapons and Mr. Vanderveen said there was a knife in hispocket, which was found exactly where Mr.

Vanderveen said it would be, that the officer had genuine reason to search both Mr.Vanderveen's person and the rest of his property for additional weapons. [83] With respect to the search of the cellular telephone, Crown counsel argued that it was a consensual search, but if not, it wasincidental to the lawful arrest. He argued that it is a question of fact for me to determine whether Mr. Vanderveen gave his consent tothe search of his telephone, and he was aware of the consequences of such search. He argued that, as Mr.

Vanderveen had been told hewas under arrest for possession for the purpose of trafficking, he must have been aware of the consequences of a police officer searchinghis telephone. [84] He argued that the search of the telephone was a lawful search incidental to the arrest of Mr. Vanderveen to preserve anyevidence of trafficking on the cellular telephone, even though Constable Watson acknowledged that he knew that he could have sought asearch warrant for the telephone.

He argued that I can conclude that all the officer did was search the telephone for evidence oftrafficking and nothing else. [85] Notwithstanding that Constable Watson claimed to have looked at text messages from the day in question, but that thephotographs he took of text messages belie his claim, Crown counsel argued that the photographs he took of the text messages aresufficient for the documentation of the search required by the Supreme Court of Canada. [86] With respect to the s. 7 argument, Crown counsel argued that there is insufficient evidence before this Court with respect to whatwas before the Justice of the Peace before he or she decided to issue the endorsed warrant for Mr.

Vanderveen's arrest. Beyond herregular practice, the court liaison officer did not recall the specifics of swearing the Information in question and a request for a warrant. Crown counsel argues because of the presumption of regularity, this Court must assume that the court liaison officer was provided withsufficient details upon which to request and justify the issuance of a warrant rather than a summons. [87] The Crown relies on R. v.

Orr, a 2018 decision of the British Columbia Supreme Court. [88] Crown counsel acknowledged that there was nothing in his file which suggested grounds upon which a warrant was justified. Particularly, there was no primary ground concerns referenced. [89] In a case before this court, R. v.

Mykell [2021] BCPC 252, my brother Judge Sutherland, ruled that a mandatory weaponscondition was not enough in and of itself to justify a request for and the issuance of a warrant. [90] Crown counsel argued that the nature of the allegation itself was sufficient to heighten the justice of the peace's concerns andtherefore justified the issuance of the warrant. [91] In effect, the Crown, while relying on the presumption of regularity, is asking the Court to assume there were facts before theJustice of the Peace that are not in his file or before this Court that justified the issue of the warrant.

While there is a presumption ofregularity, all presumptions are, of course, rebuttable. [92] In R. v. Orr, the British Columbia Court of Appeal decision [2021] BCCA 42, the Court ruled that the trial Judge was entitled toconclude that the Justice of the Peace acted judiciously. [93] Crown counsel argued that possession for the purpose of trafficking is a serious offence and conditions may be warranted toprotect the public. In this case, once arrested, Mr.

Vanderveen was released by the police on a promise to appear with conditions. [94] Counsel provided the following authorities for the court's consideration: R. v. Mykell, 2021 BCPC 252; R. v. Johnstone, 2020BCSC 316; R. v. A.R., 2021 BCSC 1539; Fearon v. R. 2014 SCC 77 , [2014] 3 S.C.R. 621; R. v. Goddard, 2019 BCCA 164;Jackson v. R., 2021 SKQB 87; R. v. Minnes, 2021 BCPC 319; R. v. Vixaysongkham, 2007 BCSC 183; R. v. Ferris, a decision of theBritish Columbia Court of Appeal, dated June 15, 1998; R. v. Wojtkiw, 2021 BCSC 194; R. v. Ghadban, 2021 BCCA 69; R. v. Emery,2019 BCSC 702; R. v.

Erickson, 2003 BCCA 693; R. v. Glendinning, 2019 BCCA 365; R. v. Majedi, 2009 BCCA 276; R. v. Orr, 2018BCSC 1626; and R. v. Orr, 2021 BCCA 42.

[ 95 ] The first issue that must be determined is whether there was a basis to arrest Mr. Vanderveen in the first place. The police observed Mr. Vanderveen sitting on a motor vehicle that was parked on a sidewalk while he was talking to someone Constable Watson knew and believed to be a sex trade worker. The vehicle was stationary. The officers did not know how it came to be where it was. The officers did not know at that point in time if it was operable, yet Constable Watson decided to arrest Mr. Vanderveen for the Motor Vehicle Act offence of driving without insurance. [ 96 ]

Section 79 of the Motor Vehicle Act grounds the basis to make an arrest for driving without insurance. The officer must find the individual "driving a motor vehicle." At different points in the Motor Vehicle Act , the Legislature uses the terms "driving," "care and control," and "operating," meaning it intended the words to have differing imports. [ 97 ] In R. v. Johnstone , the police officer had seen the accused get out of the driver's side of the vehicle but did not see him driving.

The Court concluded at paragraph 32 that because there was no observable movement of the vehicle that the accused did not meet the definition of "driver" and could not, therefore, be detained. [ 98 ] In this case, Constable Watson decided to arrest Mr. Vanderveen when Constable Watson was still inside the police cruiser. He had not seen Mr. Vanderveen operate the scooter. He did not know if the scooter was operable. There was no basis in that circumstance to justify the decision to arrest. It was an arrest made without statutory justification. It was an arbitrary arrest.

It was an arrest made in violation of the protections afforded to Mr. Vanderveen pursuant to s. 9 of the Charter . [ 99 ] All of the searches conducted were warrantless and were conducted following upon an arbitrary unconstitutional arrest. [ 100 ] The officers had differing reasons and differing times in their time with Mr. Vanderveen to explain why and when he was handcuffed. According to Constable Macadam, as soon as the officers got out of the police cruiser, he saw Mr. Vanderveen move his arm and decided immediately to handcuff him. According to Constable Watson, he asked Mr.

Vanderveen to show his identification to the officer. Constable Watson did not like the way in which Mr. Vanderveen moved his arm into his man-bag and decided to handcuff him at that point in time. [ 101 ] Constable Watson claimed at that point in time that he decided to search for weapons for a variety of reasons that cannot be justified. First, Mr. Vanderveen was arrested for a Motor Vehicle Act offence. He could have been issued a ticket and both he and the officers would have been on their way. Once he was handcuffed, there was absolutely no reason to search for a weapon. [ 102 ] In R. v.

A.R . , the Court relying on the Supreme Court of Canada in R. v. MacDonald , [2014] SCC 3, the pat-down search is constrained by objectively verifiable necessity, (at paragraph 63). It must be done to eliminate an imminent threat. Mr. Vanderveen was handcuffed and under the complete control of the police. He had been arrested for a Motor Vehicle Act offence while he was stationary on a scooter. He posed no imminent threat to the officers at that point in time. [ 103 ] The officers asked Mr. Vanderveen while he was handcuffed if he had any sharp objects. He said that he had a knife in his pocket.

As he was handcuffed, it was not possible for him to reach that knife. [ 104 ] Mr. Vanderveen had two bags: a man-bag that was on the front of his body and a fanny-pack that was on his back. Constable Watson searched the man-bag and then decided to search the fanny-pack. To do so, he removed Mr. Vanderveen's fanny-pack from around his waist. If the officer was truly concerned about the possibility of weapons and Mr.

Vanderveen somehow accessing a weapon while handcuffed, unsnapping it from his waist eliminated any suggestion of a threat and therefore gave the officer no basis upon which to search the fanny-pack for a weapon. Constable Watson had searched the man-bag before asking Mr. Vanderveen if Mr. Vanderveen was in possession of any sharp objects. [ 105 ] There was no basis upon which to ground the warrantless search of the fanny-pack. Mr. Vanderveen was handcuffed. It had been removed from his body. He could not access it. He could not, therefore, have produced any weapon from it.

He and it did not pose any form of threat to the officers. All that could have happened, because of the alleged Motor Vehicle Act offence, was the issuance of a ticket and sending him on his way. There were no objective facts calling for a warrantless search of the fanny-pack. [ 106 ] With respect to the search of the telephone, I do not believe Constable Watson that Mr. Vanderveen volunteered his consent. Before getting there, however, Mr. Vanderveen did not know that he could refuse. He did not know the jeopardy he could potentially face. He did not know any rights he allegedly waived.

Any waiver on his part was a completely uninformed waiver. [ 107 ] Constable Watson claims that Mr. Vanderveen offered his phone and, while handcuffed, offered to let the officer direct Mr. Vanderveen's thumb to the exact right spot of his cellular telephone which would permit the officer to access the data on the telephone and search it. This aspect of Constable Watson's evidence was the most fluid part of his evidence. It changed from Mr. Vanderveen denying that he was a trafficker and offering his cellular telephone as proof to then apologizing for being a trafficker and offering his phone.

The two explanations are completely inconsistent with one another. Additionally, both explanations stretch all credulity. The offer in either circumstance belies common sense and our understanding of human nature. No telephone had been referenced in any of the initial conversations between Mr. Vanderveen and the officer. [ 108 ] I do not believe that Mr. Vanderveen offered his phone. [ 109 ] I do believe that he was compelled to place his thumb on the phone and unlock it for the officers. [ 110 ] In Fearon , the Supreme Court of Canada noted all of the personal data individuals store on their cellular telephones.

Since that decision, yet more personal data is stored, specifically medical data and vaccination records. The Court described (at paragraph 76) that a search of a cellular telephone must be tailored and limited to the purpose for which it is conducted. Generally, a warrantless search of a cellular telephone purportedly incident to a lawful arrest will be justified when public safety is put at risk (paragraph 79).

The search must be justified only when the investigation would be stymied without the search (paragraph 80). [ 111 ] Constable Watson gave vague evidence of his belief that, in some circumstances, cellular telephone data can be erased. Short of

his vague reference, there was no evidence before the Court to suggest there was a genuine concern. Constable Watson testified that hewas aware that he could have applied for a search warrant for the telephone if he had the grounds for it. The search power must be used with great circumspection.

It also means, in practice, that the police will have to be prepared to explainwhy it was not practical (and I emphasize that this does not mean impossible), in all the circumstances of the investigation, to postponethe search until they could obtain a warrant (at paragraph 80). [112] The warrantless search of a cellular telephone must first be based upon a lawful arrest for it to be justified (paragraph 83). In thiscase, the Motor Vehicle Act did not justify the arrest as the officers did not observe Mr.

Vanderveen driving a vehicle. [113] If the arrest was lawful, the warrantless search for a telephone may be justified to protect the police, accused, or the public, topreserve evidence or to discover evidence, and prevent the investigation being stymied. None of those necessities exist in the evidencebefore this Court. [114] Constable Watson wanted the Court to believe he searched only text messages from the day in question. The photographs of thetext messages that he took prove the falsehood to that evidence.

Again, having been caught in his inconsistent evidence, his evidencebecame fluid in his attempt to justify his actions. What it did, however, was to demonstrate that he did not have the necessary basis toproceed to search the telephone without a search warrant. [115] Once an Information is sworn, the issue of what form of process is necessary is what the issuing justice of the peace mustconsider under s. 507 of the Criminal Code.

The justice of the peace shall issue a summons unless the informant gives the justice of thepeace reasonable grounds to believe it is necessary in the public interest to issue a warrant for the accused's arrest. [116] In this case, Mr. Vanderveen was released at the scene unconditionally. Constable Watson believed that the charge approvalprocess had become a slow process. As such, if he gave Mr. Vanderveen an appearance notice or a promise to appear, no charges wouldbe approved in advance of the first appearance date.

Neither he nor Constable Macadam gave any reason in their reports to suggest therewas any primary or secondary ground concerns in relation to Mr. Vanderveen should he be charged with any offences. The court liaisonofficer who swore the information has no memory of this specific case.

She has no memory of whether the Crown, in directing her toseek a warrant, had given her any reason for doing so. [117] The combined effect of applicable Charter and Criminal Code provisions establishes a norm of pretrial release from custody atthe earliest opportunity and on the least serious forms of release that are reasonable, R. v. Zora, 2020 SCC 14 , [2020] S.C.J. No.14, and R. v. Antic, [2017] S.C.C. 27. The issuance of a summons is the default process envisioned by s. 507 of the Criminal Code.

Thatconforms to the decisions of the Supreme Court of Canada that release and release without unnecessary conditions are required byCanadian law. [118] It appears more likely than not that the court liaison officer who swore the Information did not have the kind of informationrespecting Mr. Vanderveen to put forward to the justice of the peace to request a warrant. Were that my only concern, I would have nodoubt that Mr. Vanderveen's s. 7 rights were violated.

They were violated in the Crown seeking a warrant rather than a summons, butthat does not end the issue. [119] I do believe the Crown, in requesting a warrant without giving the Justice of the Peace reason to do so, violated Mr. Vanderveen'ss. 7 rights. However, I cannot conclude that the Justice of the Peace did not act judicially in accordance with what was required of him orher pursuant to s. 507 of the Criminal Code. He or she would have been told the allegations are alleged to have occurred in theDowntown Eastside of Vancouver.

He or she, obviously, knew of the weapons condition required if an individual is released fromcustody on a form of judicial interim release other than a summons. He or she, of course, would no doubt have been aware of the drugstore reputation of the Downtown Eastside. I cannot conclude, therefore, that he or she, knowing those circumstances, did not decide ontheir own that an endorsed warrant was in the public interest. [120] In the result, it is clear that the police did not have the factual grounds to arrest Mr. Vanderveen and that his detention and arrestwere unlawful and arbitrary. Once Mr.

Vanderveen was handcuffed and going to be released from the scene by a Motor Vehicle Actticket or a warning and no ticket, there was no basis to ask him about sharps or to search his man-bag. That search and the search of hisfanny-pack was warrantless. They were groundless. They were fishing expeditions. [121] I do not believe that Mr. Vanderveen invited Constable Watson to search his cellular telephone. I do not believe Mr. Vanderveenunderstood or was even told what impact waiving his right to consent would do.

There was not a valid waiver of his right. [122] Constable Watson absolutely, in respect of all three searches, violated Mr. Vanderveen's right to be free from unreasonable searchand seizure and to expect prior judicial authorization for he or his property to be searched. (RULING CONCLUDED)