R. v. Pocklington Date:, 2017 BCPC 418

Citation: R. v. Pocklington Date: 20171011 2017 BCPC 418 File No: 3180-2-C Registry: Pemberton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANDREW RICHARD POCKLINGTON RULING ON DEFENCE APPLICATION TO EXCLUDE EVIDENCE PURSUANT TO SECTION 24(2) OF THE CHARTER OF THE HONOURABLE JUDGE WEBB Counsel for the Crown: S. Paulson Counsel for the Defendant: J. Ladha Place of Hearing: Pemberton , B.C. Date of Hearing: October 11, 2017 Date of Judgment: October 11, 2017 [ 1 ] THE COURT: By admissions, counsel have agreed that after the accused in this matter was arrested for possession of

marihuana and still at the scene, he was searched and his vehicle was searched and the following items were found. [2] In the accused's pocket, there was $70, a $50 and a $20 bill; a black LG phone; and a set of car keys. In the accused's vehicle,again, he was the driver and sole occupant, as there was confirmation documents confirming that he was the registered owner, theyfound his wallet which included his identification; thirteen $20 bills and two $5 bills; a small baggie with some light residue; and of mostimportance a small change purse found in an ashtray.

The change purse contained ten cocaine baggies in various small amountscontaining a total of what I understand to be approximately 4.73 grams of cocaine valued at approximately $400. The black changepurse in the ashtray has been shown in a photograph that was marked by agreement as Exhibit 1 in these proceedings. [3] This is now a defence application pursuant to s. 24(2) of the Charter to exclude the evidence found by way of the searches onthe accused and of the vehicle and, of most importance, to exclude the admissibility of the evidence of the cocaine that was found.

Theapplication is based on the premise that the accused was stopped after a lawful Motor Vehicle Act stop by the police which was followedby an unlawful Criminal Code arrest. Those determinations that the initial stop was lawful and that the arrest was unlawful were madeearlier this morning. I do not propose to repeat myself. [4] The unlawful arrest occurred when the investigator, Constable Dunlap, arrested the accused based simply on a smell ofmarihuana coming from the vehicle. For reasons that I will not repeat, I found that arrest to be unreasonable and unlawful.

ConstableDunlap, believing that the arrest was lawful, then proceeded to search both the accused and his vehicle incidental to the arrest. I acceptthat Constable Dunlap did not act in bad faith. He did not know the arrest was unlawful. These searches, as indicated previously,produced much evidence and, most importantly, 4.73 grams of cocaine found in the ashtray. [5] R. v. Grant, found at 2009 SCC 32 , [2009] S.C.J.

No. 32, provides that, starting at paragraph 67, in what theydescribe as an "Overview of a Revised Approach to Section 24(2)," and it is necessary, in my view, to consider what s. 24(2) of theCharter says, and it provides as follows: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rightsor freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to ... the circumstances, theadmission of it in the proceedings would bring the administration of justice into disrepute. [6] So to tie it into this case, the evidence is the fruits of the search of the vehicle and of the accused that were obtained after anunlawful arrest and consequently as the result of an unlawful search of both the accused and the vehicle.

In discussing the s. 24(2)analysis, Grant provides as follows starting at paragraph 67: [67] The words of . . . 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term“administration of justice” is often used to indicate the processes by which those who break the law are investigated, charged and tried.

More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. [68] The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining theintegrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediatecriticism. But s. 24(2) does not focus on immediate reaction to the individual case.

Rather, it looks to whether the overall repute of thejustice system, viewed in the long term, will be adversely affected by [the] admission of the evidence. The inquiry is objective. It askswhether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that theadmission of the evidence would bring the administration of justice into disrepute. [69] Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already beendone to the administration of justice.

Section 24(2) starts from that proposition and seeks to ensure [the] evidence obtained through thatbreach does not do further damage to the repute of the justice system. [70] Finally, s. 24(2)’s focus is societal. . . . 24(2) is not aimed at punishing the police or providing compensation to the accused, butrather at systemic concerns.

The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justicesystem. [71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewedin a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court mustassess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) theseriousness of the Charter-infringing state conduct . . . (2) the impact of the breach on the Charter-protected interests of the accused . . .and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance theassessments under each of these lines of inquiry [and] to determine whether, considering all the circumstances, admission of the evidencewould bring the administration of justice into disrepute.

These concerns, while not precisely tracking the categories of considerations setout in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. [7] At paragraph 72, the court provides as follows: [72] The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence wouldbring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for theadministration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits ofthat unlawful conduct.

The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for thecourts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve publicconfidence . . . [8] In this case, the search was illegal after an unlawful arrest. Thus, the state conduct is serious even if the police officerbelieved, as I accept that I did, that his behaviour was appropriate and lawful. At paragraph 74, it says:

State conduct resulting in Charter violations varies in seriousness. At one end of the [spectre], admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence . . . At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative [impact] on the public confidence . . . [ 9 ] In my opinion, the breaches here are not trivial nor is it wilful or reckless. It is somewhere in the middle.

At paragraph 75, it says: Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach . . . [ 10 ] I pause to note here that there were no extenuating circumstances, no urgency to engage in the initial arrest, no risk of the evidence disappearing.

Rather, it was somewhat awkward circumstances in a rural location at approximately one o'clock in the morning with two unfamiliar vehicles in the same parking lot as the police officer, although neither of the vehicles engaged in any unlawful or illegal activity. [ 11 ] The next avenue of consideration is the "Impact on the Charter - Protected Interests of the Accused." The court says at paragraph 76: [The] inquiry focusses on the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused.

It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [ 12 ] The Charter right here is the s. 7 right that provides -- sorry, s. 9 that provides that: Everyone has the right not to be arbitrarily detained or imprisoned. [ 13 ] In this instance, the arrest, the imprisonment, was found to be unlawful.

Without the unlawful arrest, the unlawful search would not have occurred and no prosecution would have engaged because no drugs would have been found. So, obviously, the impact on the Charter -protected interests of the accused here are significant. [ 14 ] The third avenue of concern is society’s interest on the adjudication of the merits. I have indicated earlier in the course of counsel's submissions that drug trafficking is, obviously, a significant concern to the court and people that engage in drug trafficking should, in my view, usually end up in jail.

I have no difficulty saying that that is a reasonable view for the court to be putting forward. Drug trafficking where people are engaged in the selling of illegal drugs strictly for profit is something that has caused significant harm to this community, to other communities throughout the province, and is something that the court cannot condone. At paragraph 79 and under this heading, it says: [79] Society generally expects that a criminal allegation will be adjudicated on its merits.

Accordingly, the third line of inquiry relevant to . . . 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. [The] inquiry reflects society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law" . . .

Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence. [80] The concern for truth-seeking is only one of the considerations under . . . s. 24(2) . . . The view that reliable evidence is admissible regardless of how it was obtained . . . is inconsistent with the Charter ’s affirmation of rights.

More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence. [ 15 ] At paragraph 82 in Grant , the court says: The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on [the] merits must therefore be weighed against factors pointing to exclusion, in order to “balance the interests of truth with the integrity of the justice system” . . .

The court must ask “whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial . . . [ 16 ] At paragraph 83, it goes on to say: The importance of the evidence to the prosecution’s case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense.

The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution. [ 17 ] As indicated earlier, there is clearly a public interest and a societal community interest in holding people that engage in the selling for profit of drugs to be accountable to the law.

It is also clear, in my view, that the exclusion of the drugs in this trial, the drugs found in the truck, will effectively gut the prosecution's case and undermine the truth-seeking function. [ 18 ] At paragraph 85 and 86, the court in Grant summarizes the analysis that the court is to undertake as follows: [85] To review, the three lines of inquiry identified above — the seriousness of the Charter -infringing state conduct, the impact of the

breach on the Charter -protected interests of the accused, and the societal interest in an adjudication on the merits — reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of “all the circumstances” of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute. [86] In all cases, it is the task of the trial judge to weigh the various indications.

No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of . . . 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with [a] 24(2) application . . . in future cases. In this way, a measure of certainty is achieved.

Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. [ 19 ] In considering the comments made in Grant , I say as follows. I am alive to the fact that the cocaine found in the truck is critical to the prosecution. I am alive that it was found in a vehicle and a vehicle has a lower expectation of privacy than a person or a dwelling house. I am also aware of the fact that the police without the unlawful arrest would not have any basis to search the car and would not have found the cocaine.

I am aware the accused was driving lawfully, that he was stopped lawfully, and that there was no evidence of any Motor Vehicle Act , Criminal Code , or regulatory offence committed by the accused. I am aware that the accused simply pulled off a highway at approximately 1:00 a.m. in the morning. There was nothing else of concern. There was nothing illegal. [ 20 ] I am mindful, though nothing turns on it, that the smell of marihuana did not result in any finding of marihuana in the accused's vehicle.

I am also mindful of the fact that the smell of marihuana to the degree or description was not incorporated into the police officer's notes made contemporaneously at the scene. [ 21 ] In considering all of the above, I am satisfied that the constable did not wilfully engage in an illegal search after an unlawful arrest. He thought his actions when he was alone at 1:00 a.m. were lawful. They were not. I am mindful that, but for the illegal arrest, the vehicle search would not have occurred. [ 22 ] This case is close.

In my view, admitting the evidence after an unlawful arrest would bring the administration of justice into disrepute. Without the illegal arrest, there would be no search. There would be no drugs. There would be no case. I am satisfied that the evidence obtained in the search of the vehicle and in the search of the accused ought to be excluded and I so order. [RULING ON DEFENCE APPLICATION TO EXCLUDE EVIDENCE PURSUANT TO SECTION 24(2) OF THE CHARTER CONCLUDED]