R. v. Roberts, 2023 BCPC 118

Citation: R. v. Roberts 2023 BCPC 118 Date: 20230105 File Nos: 91107-3-C; 91107-6- A Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REX v. CODY RYAN ROBERTS ORAL RULING ON VOIR DIRE #1 OF THE HONOURABLE JUDGE A. TAM Counsel for the Crown: J.M. Le Dressay Counsel for the Defendant: D.B. Johnson Place of Hearing: Kelowna , B.C. Dates of Hearing: January 3 & 4, 2023 Date of Judgment: January 5, 2023 Introduction

Introduction [ 1 ] THE COURT: Mr. Roberts has been charged with a number of drug offences and firearm offences. He applies pursuant to s. 24(2) of the Charter for the exclusion of all of the evidence found on his person and a vehicle he was driving on May 2, 2019. In very short

summary, he says that he was arbitrarily detained when Corporal Carroll pulled his vehicle over; the search of his person and his vehicle were unreasonable; that he was not informed of the true reason for his detention; and that he did not have an opportunity to exercise his right to retain and instruct counsel in accordance with the jeopardy he faced. All of these constitute a violation of ss. 8, 9, 10(

a) and (

b) of the Charter . Relevant Facts [ 2 ] On May 2, 2019, the Kelowna Drug Unit was doing static surveillance at a parking lot between a casino and the Rona store. They were doing surveillance unrelated to the matter at bar. Shortly after 4:00 p.m. in the afternoon, Sergeant Diachok observed Mr. Roberts engage in a brief duration meet and a hand-to-hand transaction with a driver of another vehicle. After the exchange, Mr. Roberts left the parking lot on Springfield Road. Mr. Roberts and his vehicle were previously unknown to the Kelowna Drug Unit.

Sergeant Diachok relayed this information to other members of the team. [ 3 ] Corporal Carroll then came onto the scene to commence surveillance on Mr. Roberts' lime green Charger. By luck, Mr. Roberts turned onto Springfield Road immediately in front of Corporal Carroll. After a short distance of travel, Corporal Carroll noted that Mr. Roberts was travelling at 65 kilometres an hour where the posted speed limit was 50 kilometres an hour. Corporal Carroll decided to effect a traffic stop with a view of issuing a traffic ticket as well as identifying who the driver was.

This latter step would likely be helpful to the Kelowna Drug Unit in their investigations in light of Sergeant Diachok's suspicion that Mr. Roberts had just been involved in a drug transaction. [ 4 ] Mr. Roberts pulled his vehicle over without incident. However, upon Corporal Carroll approaching him to ask him for his driver's licence, Mr. Roberts was acting abnormally nervous. His hands were shaking and he exhibited what the officer described as the “thousand-yard stare”. Mr.

Roberts also spent quite a bit of a time with his left hand between the driver's seat and the driver's door and his right hand underneath the seat. At one point, he handed his entire wallet to Corporal Carroll rather than just his driver's licence. Mr. Roberts' right hand continued to fumble around under the seat. During this time, Mr. Roberts' hands were not visible to Corporal Carroll by virtue of where the two were situated. [ 5 ] Corporal Carroll eventually instructed Mr. Roberts to exit the vehicle. At the time, Mr. Roberts had one hand in the pocket of his hoodie. Corporal Carroll asked Mr.

Roberts to remove his hand from the pocket and also asked why he was so nervous. At that time, Mr. Roberts stated that, "I am in trouble" and produced a small bag of cocaine from the pocket of his hoodie. Consequently, Corporal Carroll arrested Mr. Roberts for possession of a controlled substance. [ 6 ] Other officers then came on scene to assist with the investigation. Constable Joyce executed a search of the green Charger which revealed a substantial amount of drugs, cash, and prohibited weapons, including a loaded .45 calibre handgun. During the time he was under arrest, Mr.

Roberts made comments to the officer along the lines of intending to run away so that the officer would shoot him in the back and that he was a dead man, referring to himself. Upon finding the additional evidence in the vehicle, Mr. Roberts was re- arrested for possession for purpose of trafficking as well as firearm offences. He was transported to the Kelowna police detachment. Findings of Fact [ 7 ] The above is a

summary of the court's findings of fact based on the assessment of the totality of the evidence. There is a discrepancy between Mr. Roberts' recollection and that of the police officers, in particular, Corporal Carroll. Where the two versions conflict, I prefer that of Corporal Carroll and the other police officers. This is because I find Mr. Roberts' recollection unreliable, especially during the time of his dealings with the police. Corporal Carroll described Mr. Roberts as being unusually nervous to the point where his hands were visibly shaking. By his own admission, Mr.

Roberts said that he was overwhelmed by the situation. [ 8 ] I agree with Mr. Le Dressay's assessment that Mr. Roberts was overcome with the gravity of his predicament. He was aware of the drugs, money, and firearm found in the vehicle. All of this may well result in a significant period of incarceration. This is also entirely consistent with the comment that Mr. Roberts himself said he made along the lines of wanting the police to shoot him in the back. Consequently, as a result of the distress Mr.

Roberts was experiencing, I find him not to be in as good a position as Corporal Carroll to recall the events accurately. [ 9 ] In addition, there is also one area which causes the court significant concerns with respect to Mr. Roberts' credibility. His explanation as to how the $241 came to be in a cigarette package that was found in his car stretches credulity. He said that his friend handed him $90 in the parking lot in Rona for a debt not related to drugs. He immediately put an additional $151 in that same package before leaving the parking lot. There was other money found in the vehicle and Mr.

Roberts also had his wallet. He offered no reason as to why he did this. His entire explanation as to meeting his friend to collect a debt is not entirely compelling. It appeared that he was simply inventing things as he went along. The court simply cannot rely on what Mr. Roberts had to say. [ 10 ] For clarity of these reasons, my assessment of this body of evidence goes only to Mr. Roberts' emotional state and his credibility. I make no inference whatsoever as to whether Mr. Roberts is or is not guilty of the alleged offences. Moreover, I reject the proposition that just because Mr.

Roberts is in jeopardy of a significant penalty in light of the charges, he is therefore less credible and has a motive to lie. Such an inference runs afoul of the presumption of innocence and would render every accused person less credible at every trial. There is no basis in law to come to that conclusion. [ 11 ] With all that said, I conclude in this case that I accept Corporal Carroll's and the other officers' version of events and I make findings of fact as I have summarized above. Issues to be Determined [ 12 ] The questions the court needs to answer are as follows:

1. Was stopping Mr. Roberts' vehicle a violation of his s. 9 right not to be arbitrarily detained? 2. Was asking Mr. Roberts to step out of the vehicle a s. 8 violation? and 3. Was the search of the vehicle a violation of Mr. Roberts' s. 8 right? 1. Was the Vehicle Stop an Arbitrary Detention? [ 13 ] On behalf of Mr. Roberts, Mr. Johnson submits that the vehicle stop was simply a ruse. The police had no intention to issue a ticket and, in fact, did not issue a ticket.

He says that, notwithstanding the posted speed limit of 50 kilometres an hour, the average speed on that stretch of roadway can be between 60 to 70 kilometres an hour. Mr. Roberts was simply "going with the flow" and, as such, the police were really only interested in advancing their drug investigation. For that reason, this was an arbitrary traffic stop which violated Mr. Roberts' s. 9 right. [ 14 ] Firstly, I agree with Mr. Johnson that, at that stage in the investigation, the police did not have grounds to arrest Mr. Roberts for drug offences.

All Sergeant Diachok saw was a brief encounter between the two people unknown to him. He saw what he thought was a drug transaction, but he did not see what was handed from one person to the other. He came to a suspicion based on his substantial experience as a police officer conducting these types of investigations.

However shrewd his hunch, the evidence did not objectively justify an arrest. [ 15 ] But having reviewed the jurisprudence submitted by counsel, I am satisfied that the lawfulness of a traffic stop, at the very most, is based on whether the facts known to the officer supports a conclusion that an infraction had occurred. I say "at the very most" because even random stops to check for road safety and licencing requirements have been held to pass constitutional muster. It matters not whether the officer had an ulterior motive even where that ulterior motive was the predominate reason for the stop.

As Justice Riley explained in R. v. Woody , 2018 BCSC 2275 , at paragraph 45 , referencing R. v. Kaddoura , 2009 BCCA 113 , and R. v. Nolet , 2010 SCC 24 : [45] Having made these observations and having identified these Motor Vehicle Act enforcement concerns, the fact that Cst. Coyne had additional, developing suspicions about possible criminal activity did not undermine the basis for the stop or render the stop invalid.

As explained in Kaddoura at para. 23 , “where a police officer has a lawful and reasonable basis for stopping a vehicle, the presence of additional reasons to effect a stop does not transform it into an arbitrary detention”. See also Maddill at para. 32; R. v. Grunwald , 2010 BCCA 288 at para. 22 . [46] I acknowledge Cst. Coyne’s testimony that he had multiple or competing concerns in his mind, and that by the time he pulled the car over, his “predominant” interest or motivation had to do with suspected dial-a-dope activity.

However, as explained in Nolet at para. 41 , the “predominant purpose” analysis is not helpful in the context of a traffic stop in which the police may have concurrent Motor Vehicle Act concerns and concerns about criminal activity; the question is not “determining which purpose is predominant or subordinate”, so long as there is a “continuing regulatory purpose on which to ground the exercise of the regulatory power”. [ 16 ] In the case at bar, I accept Corporal Carroll's evidence that he carefully paced Mr. Roberts' vehicle to determine that he was speeding at 65 kilometres an hour where the speed limit was 50.

Mr. Roberts testified and conceded that he was travelling at approximately 60 kilometres an hour. Accordingly, Corporal Carroll had lawful authority to effect a vehicle stop pursuant to the Motor Vehicle Act and, as the court observed in Kaddoura , supra , at paragraph 13 : The accused’s constitutional right is a right not to be arbitrarily detained. A roadside stop of a vehicle with a defective taillight is not an arbitrary detention.

The accused did not have a Charter right not to be identified by the police – in requesting his driver’s licence and recording the details of it, the police acted under statutory authority and committed no unlawful act. [ 17 ] Likewise, stopping a vehicle that is speeding is not an arbitrary detention. [ 18 ] Mr. Johnson takes the position that the lawfulness of this vehicle stop was undermined by the fact that the average rate of traffic is between 60 to 70 kilometres an hour on this stretch of roadway.

He says that because the police do not ordinarily enforce the speed limit in this area, they have lost the authority to do so. I am not prepared to adopt this novel concept. There is no authority placed before me in support of it. In my view, the legal basis for stopping a vehicle at the very most is the belief that an infraction had been committed. Whether other drivers also speed is completely irrelevant. [ 19 ] Mr. Johnson did rely on R. v. Lauriente , 2008 BCSC 187 , and R. v.

Terezakis , 2005 BCSC 1052 , for the proposition that a motor vehicle stop that is, in essence, a ruse to advance another criminal investigation would be a breach of s. 9. However, there is one important distinguishing feature in Lauriente in that the court was not satisfied that a Motor Vehicle Act infraction had in fact occurred. At paragraph 39, the court said: Here, certainly, the lawful purpose of detention of an individual for speeding is at the very least on shaky ground. The evidence of speeding in the mind of the constable who stopped Mr. Lauriente was not sufficiently solid to support issuing a ticket.

Thus, the most reasonable inference is that the only real purpose for stopping Mr. Lauriente was to obtain evidence to further the investigation of a marihuana grow operation. [ 20 ] That is not the case here. Corporal Carroll had solid ground to believe that Mr. Roberts was speeding, which fact was admitted by Mr. Roberts himself. And with respect to Terezakis decided in 2005 in the Supreme Court of British Columbia, the B.C. Court of Appeal suggested that it should not be followed at paragraph 15 of Kaddoura . [ 21 ] Finally, the fact that Corporal Carroll did not end up issuing a ticket is of no moment.

The situation was dynamic and evolving. Corporal Carroll was not expecting Mr. Roberts to be arrested for simple possession, let alone possession for the purpose of trafficking and firearm offences. Given the greater jeopardy Mr. Roberts was facing toward the end of the encounter, it was entirely within the officer's discretion not to issue a speeding ticket. Indeed, one could well describe it as an overkill should Corporal Carroll issue a ticket

on top of the allegations that were already in the offing. [ 22 ] In conclusion on this point, Corporal Carroll acted within his authority to effect a traffic stop. He had good reason to believe Mr. Roberts was speeding which, in fact, he was. The fact that Corporal Carroll also wanted to identify who the driver of the Charger was does not negative the lawfulness of the stop. Whether other drivers also speed on the stretch of roadway is irrelevant. The stop was not arbitrary and was not a breach of Mr. Roberts' s. 9 right. 2. Was Asking Mr.

Roberts to Step Out of the Vehicle a s. 8 Violation? [ 23 ] A search within the meaning of s. 8 is any state intrusion of the reasonable expectation of privacy, but this is not an "all or nothing" concept. An expectation may sit on the continuum of little to great and any state invasion would result in a search, see R. v. MacDonald , 2014 SCC 3 , and R. v. Jarvis , 2019 SCC 10 . In my view, asking a driver to step out of his or her vehicle does amount to a search.

There is objectively some reasonable expectation of privacy within the confines of one's vehicle and even if this expectation is reduced, especially when one is on a public roadway, it exists somewhere on the continuum. Accordingly, asking Mr. Roberts to step out of the vehicle constituted a search. [ 24 ] Having so found, it was nevertheless justified and not a violation of s. 8. Under the circumstances, Corporal Carroll had legitimate safety concerns. Mr. Roberts appeared to him to be very nervous to the point where his hands were visibly shaking. Mr.

Roberts spent an inordinate amount of time searching for something both under the seat and in the space between the seat and the door. During this time, his hands were not visible to Corporal Carroll. [ 25 ] I agree with Mr. Johnson that it was unlikely that Mr. Roberts' chest was actually touching his thighs based on the placement of the steering wheel and Mr. Roberts' stature. However, even on Mr.

Roberts' evidence, he was looking for his wallet and registration under his seat and the driver's door and did not disagree with Corporal Carroll's recollection that his own hands were in those areas for a period of time. Add to this the fact that Corporal Carroll had a suspicion that Mr. Roberts may be a drug trafficker, some of whom have been known to be armed, violent, and unpredictable with the police in the past. Corporal Carroll had very good reason to ask Mr.

Roberts to step out of his vehicle away from the environment where he could potentially reach for weapons and, more importantly, so that Corporal Carroll could see Mr. Roberts' hands. [ 26 ] It follows, then, that when Mr. Roberts exited the vehicle, Corporal Carroll was justified in asking him to take his hand out of his hoodie pocket. In R. v. Mann , 2004 SCC 52 , Justice Iacobucci endorsed a power to search incidental to investigation detention.

At paragraph 38, he said: 38 I rely upon the Waterfield test discussed above to recognize that a power of search incidental to investigative detention does exist at common law. Under the first prong of the Waterfield test, the interference clearly falls within the general scope of a duty imposed by statute or recognized at common law.

The duty at issue here is the protection of life and property, which was also at issue in Dedman , supra , at p. 32. 39 To continue in the Waterfield analysis, the conduct giving rise to the interference must involve a justified use of a police power associated with a general duty to search in relation to the protection of life and property. Put differently, the search must be reasonably necessary.

The relevant considerations here include the duty being performed, the extent to which some interference with individual liberty is necessary in the performance of that duty, the importance of the performance of the duty to the public good, the nature of the liberty being interfered with, and the nature and extent of the interference: Dedman , supra , at pp. 35-36. 40 The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention.

Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances: see S. Coughlan, “Search Based on Articulable Cause: Proceed with Caution or Full Stop?” … The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances.

It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition. [ 27 ] As I alluded to above, there was a legitimate concern for officer safety. This was not, as Mr. Johnson phrased it, a "panacea" to conduct a search on Mr. Roberts. I also find that Corporal Carroll's response and demands to be reasonable and measured. All he had asked of Mr. Roberts was for him to exit the vehicle and to remove his hand from his pocket. He did not, for example, conduct a search of Mr. Roberts' pocket himself. But it was at that time that Mr.

Roberts volunteered that he had cocaine on him and that he was in trouble. [ 28 ] Under the totality of the circumstances, Corporal Carroll's conduct did not go beyond what was permitted or reasonably necessary. There was no violation of s. 8. 3. Was the Search of the Vehicle a Violation of Mr. Roberts'

Section 8 Right? [ 29 ] The applicant contends that the search of the vehicle was done prior to Mr. Roberts being arrested for simple possession of a controlled substance. I do not find this contention compelling. Constable Joyce was the officer who conducted the search of the vehicle. He arrived on scene at approximately 4:30 p.m. and, when he arrived, he said that Corporal Carroll had shown him a bag of cocaine and advised him that Mr. Roberts had been arrested. [ 30 ] Constable Joyce was cross-examined thoroughly on this point and it was put to him directly that the search of the vehicle was prior to Mr.

Roberts' arrest. Constable Joyce's evidence stood up to that challenge and I accept it to be so. It also dovetails with the other officers' evidence in terms of the sequence of events and their respective roles in the evolving investigation. For that reason, I find as a fact that the search of the vehicle happened after Mr. Roberts was arrested for simple possession. [ 31 ] Accordingly, the police were entitled to search the vehicle incidental to that arrest. I see no s. 8 breach here.

Conclusion and

Summary [ 32 ] Although the Kelowna Drug Unit was very much motivated to identify the driver of the green Charger which they suspected as being associated to drug trafficking activity, Corporal Carroll's stopping of Mr. Roberts' vehicle was not arbitrary. Corporal Carroll had good reason to believe Mr. Roberts was speeding which Mr. Roberts admitted. Once stopped, Corporal Carroll had legitimate reasons to be concerned for officer safety based on Mr. Roberts' presentation and his continually searching for something under this seat and near the car door. Corporal Carroll was justified in asking Mr.

Roberts to step out of his vehicle and show his hands. Mr. Roberts volunteered at that point that he was in possession of cocaine which resulted in him being arrested for same. The search of the vehicle was incidental to that arrest. [ 33 ] As I understand it, the arguments regarding s. 10(

a) and (

b) were predicated upon a finding that the traffic stop was unlawful. Having found the contrary, I see no foundation to those arguments. Accordingly, there was no violation of any of Mr. Roberts' constitutional rights in this investigation and his application is hereby dismissed. (Ruling Concluded)