R. v. Cooper Date:, 2016 BCPC 259

Citation: R. v. Cooper Date: 20160719 2016 BCPC 259 File No: 36798-1 Registry: Ganges IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JEREMY RYAN COOPER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. CUTLER Counsel for the Crown: S. Simpson Counsel for the Defendant: B. Hickford Place of Hearing: Ganges , B.C. Date of Hearing: May 9, 2016 Date of Judgment: July 19, 2016

[ 1 ] The accused is before the court charged with one count of possession of steroids for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. [ 2 ] The steroids were found by the police in the trunk of a vehicle while conducting a search of the vehicle subsequent to it being involved in an accident. The vehicle was owned by the accused who was on the ground injured beside the vehicle and being attended to while the search was being conducted. [ 3 ] The accused challenges the admissibility of the steroids as evidence in this prosecution.

He submits his right to be secure against unreasonable search or seizure as guaranteed by s. 8 of the Charter was violated when the police searched his vehicle. [ 4 ] The court entered into a voir dire to hear evidence relating to the search. After hearing the evidence, the matter was adjourned to allow counsel to submit written argument for my consideration of the issues. Having reviewed the evidence, counsels’ submissions, and the applicable case law, I am now providing my reasons on the lawfulness of the search and the admissibility of the steroids found in the vehicle.

The Search [ 5 ] In the late afternoon, at approximately 5 o’clock, on August 13, 2014, Constable Casey of the RCMP attended at a motor vehicle accident. He observed a severely damaged vehicle positioned half in the ditch and half partially on the roadway. He also saw an individual on the ground being attended to by two civilians. After a preliminary investigation, the officer determined that the individual on the ground had been pulled out of the vehicle and was the registered owner of the vehicle.

The officer performed a search of the area and could not locate anyone else who may have been involved in the accident. The officer also attempted to speak to the accused while he was being attended to and concluded that the accused was dazed from the accident. [ 6 ] The officer determined that due to the position and condition of the vehicle, and the condition of the accused, the officer should have the vehicle towed to a safe location.

The officer also determined that he should search the vehicle for the purpose of conducting an inventory of its contents and for any evidence explaining the cause of the accident. [ 7 ] The officer commenced the search by looking in the front passenger side of the vehicle where he found nothing of significance. He then searched the back seat where he located a cooler that he opened and found to be empty. He then proceeded to the trunk and opened it with the keys from the vehicle.

In the trunk he located a number of items including a gym bag and hundreds of vials containing liquid that were in plain view upon opening the trunk. Constable Casey seized the vials numbering almost 500 as he believed they were an illicit substance. Constable Casey did not search the vehicle further upon seizing the vials in the trunk and he had the vehicle towed to an impound lot. [ 8 ] Constable Casey subsequently had some of the vials randomly selected so they could be analysed. The results of the tests concluded the vials contained steroids.

The Issues [ 9 ] The Charter challenge to the admissibility of the seized vials raises two central issues for the Court’s consideration in this voir dire : 1) whether the officer had the lawful authority to search the vehicle; and 2) whether the officer acted properly in conducting the search. Authority for the Search [ 10 ] The first issue to be resolved is whether the officer had the lawful authority to search the vehicle. The Crown advances the position that the officer lawfully searched the vehicle pursuant to s. 188(1) (

d) of the Motor Vehicle Act of British Columbia. That

section provides in part the following: “If a vehicle is standing or parked (

d) in a position that causes it to interfere with the normal flow of traffic on the highway, a peace officer may (

g) move the vehicle or take the vehicle into his or her custody and cause it to be taken to and stored in a safe and otherwise suitable place.” [ 11 ] The provision does not explicitly provide the authority to conduct an inventory search of the vehicle when a peace officer exercises the power to take the vehicle into his/her custody and causes it to be taken to and stored in a safe place.

I am satisfied however, that the jurisprudence establishes that where authority is granted to the police to take possession of a vehicle and store it in a safe place, it is implicit in the legislation that the police have the duty and responsibility when exercising that authority to ensure the safety of the vehicle and its contents and conduct an inventory search to that end. [ 12 ] The law in British Columbia accords with other jurisdictions and recognizes that with the responsibility to take control and possession of a vehicle there is a duty imposed on the police to safeguard the vehicle and its contents.

When the police are authorized to take possession of a vehicle, they are, in order to properly fulfil their lawful duty and responsibility to secure the property, entitled to conduct an inventory of the vehicle’s contents. The police must be able to take reasonable steps to meet their duty to safeguard the property, including entering the vehicle and itemizing any property of apparent value therein. ( R. v. Caron , 2011 BCCA 56 , and R. v. Strilec , 2010 BCCA 198 ).

[13] This rationale was accepted by our Court of Appeal in R. v. Strilec, supra, wherein Madam Justice Ryan, speaking for theCourt, wrote: In my view the authority to impound provided by s. 104.1 of the Motor Vehicle Act carries with it the duty and responsibility to take careof the vehicle and its contents, and to do that the police must be able to conduct an inventory of the vehicle’s contents. (para. 62) [14] Counsel for the accused submits that the reasons in R. v.

Strilec are distinguishable as the provision under review in that case,section 104.1 of the Motor Vehicle Act, provides the officer with the authority to “cause the motor vehicle to be taken to and impoundedat a place directed by the peace officer”. Counsel for the accused argues that s. 104.1 of the Motor Vehicle Act addresses situationswhere a peace officer believes that the driver has been involved in unlawful activity and as a consequence impounds the vehicle.

Heargues that the statutory schemes and jurisprudence across Canada permitting inventory searches address situations where the driver issuspected of engaging in illegal activity (i.e. driving offences or transporting contraband) and the vehicle is being impounded pursuant to,or as a result of, the investigation. [15] Counsel argues that the power of a police officer to conduct an inventory search should not extend to situations, such as the oneat bar, where the driver of the vehicle is not suspected of any wrongdoing and the police are taking control of the vehicle simply to assistin managing ongoing traffic circulation.

He argues that the accused in this case was not suspected of having been involved in anyunlawful activity and the authorizing statutory provision should not be construed as permitting an inventory search, but only the abilityfor the officer to take the vehicle into his custody and store it in a safe place. [16] After reviewing the various legislative schemes in Canada, and the dicta contained in the applicable jurisprudence, I am unableto agree with this proposition.

In my review of the law it is clear that the rationale for permitting an officer to conduct an inventorysearch of the vehicle taken into police custody pursuant to statutory authority is not founded on the nature of the matter being attended toor investigated by the officer.

The rationales are manifold including: serving the interests of any person who has an interest in theproperty and who looks to the police to safeguard the property while it is in police custody; public safety concerns of contraband beingheld in police controlled or authorized storage facilities; and permitting police to engage in protective measures against potential civilliability for loss of or damage to property in a vehicle which has been taken into police possession. (R. v. Wint, (2009) 2009 ONCA 52, 93 O.R. 514 (Ont.C.A.), R. v. Nicolosi (1998) (ON CA), 127 C.C.C. (3d) 176 (Ont.C.A.), and R. v.

Ellis,2013 ONSC 1494).

All three of these rationales were operative in this case once the officer decided the vehicle needed to be towed to asafe and suitable location. [17] I pause here to note that prominent in the officer’s mind when conducting the inventory search of the accused’s vehicle wasprotecting the property and avoiding any potential civil liability as he was concerned the driver might later claim that valuable propertyin the vehicle at the time of the accident had gone missing. [18] Accordingly, the fact the accused in this case was not suspected by the officer of having been involved in any unlawful activitydoes not restrict the officer’s authority to conduct an inventory search of a vehicle that the officer was lawfully entitled to take possessionof pursuant to the operative statutory provision. [19] In the result, I find that the officer had the statutory authority pursuant to s. 188(1)(

d) of the Motor Vehicle Act to conduct aninventory search of the accused’s vehicle. Propriety of the Search [20] As there is no challenge to the enabling statutory provision, the Court must now determine whether the authorized search wasconducted in a reasonable manner. It is trite that any search must be executed in a reasonable manner and the reasonableness of thepolice conduct will be judged against the totality of the circumstances revealed in each case. The Court must guard against abuses ofpolice authority to search, including authority created pursuant to statutory schemes.

Police officers must not be allowed to takepossession of and search a vehicle as a result of a contrived reason employed as a means to conduct a search of the vehicle. The Courtmust assess all the evidence to determine the bona fides of the officer’s actions. [21] The objective evidence in this case supports the officer’s decision to take the vehicle into his custody. There is no doubt basedon the evidence before the Court that the vehicle’s location after the accident was interfering with the normal flow of traffic on thehighway.

It was in a precarious position with the driver’s side in the ditch and the passenger side still partially on the road interferingwith the normal flow of traffic on the highway. The vehicle presented a clear and obvious hazard to traffic that would reasonably beexpected to be proceeding along that roadway. The vehicle was not drivable due to the damage from the accident. The vehicle needed tobe removed.

The accused was not in any physical condition to take charge of the vehicle, nor was there anyone in the vicinity who hecould entrust with that responsibility. [22] The officer assessed the situation and recognized the risk of the vehicle’s position on the road and the need to have it towed soit no longer constituted an obstruction or danger to traffic on the road. He testified that as a result of his observations he determined heshould exercise his authority under s. 188(1)(

d) of the Motor Vehicle Act and take custody of the vehicle.

The circumstances in this caseamply illustrate the wisdom of the statutory provision granting a police officer the authority to take a vehicle into his or her custody andcause it to be stored in a safe place when the vehicle is interfering with the normal flow of traffic. [23] As indicated earlier in these reasons, the jurisprudence interpreting statutory schemes permitting an officer to take control orpossession of a motor vehicle recognizes a concurrent duty on the officer to conduct an inventory search of the vehicle. [24] The officer testified that he believed it was necessary to conduct a search to ensure that any items of value in the vehicle wereidentified and properly secured in order to protect the owner of the property and to guard against a possible civil claim being brought bythe owner against the police agency for loss of property. [25] The officer candidly testified that while conducting the inventory search he was also looking to see if there was any evidencethat might explain the cause of the accident.

In cross-examination he denied that the purpose of the search was to locate contraband. I

accept his evidence. [26] The law is clear that there is nothing improper with a search having dual or multiple purposes. So long as one of the purposesfor the search is proper and the search does not go beyond the proper scope of that lawful search, the police are free to carry out thesearch. The police are not required when carrying out a lawful search to ignore other legitimate aspects of their general duties andpowers when so engaged (R. v. Annett, (1984) (SCC), 17 CCC (3d) 332 (Ont.C.A.) and R. v. Sewell 2003 SKCA 52). [27] In R. v.

Wint, supra, the Ontario Court of Appeal accepted the principle that when conducting an inventory search the fact theofficer may have another reason for conducting the search (looking for a gun) does not render the search unlawful. [28] Accordingly, if the true purpose of the search in this case was pursuant to s. 188(1)(

d) of the Motor Vehicle Act as the officerindicates, then any other purpose does not taint the search provided the officer remained within the proper scope of the inventory search. [29] I found the officer’s evidence regarding what he found upon attending at the scene and how he proceeded through theinvestigation forthright and credible. In hindsight, he may have perhaps done some things differently in conducting the investigation andthe search. However, it must be recognized that the officer was engaged in a somewhat chaotic situation in which he was trying to makesome sense of a significant motor vehicle accident, ensure public safety, and protect the interests of the owner(

s) of the vehicle and itscontents. [30] According to the officer, shortly after attending at the scene of the accident, he believed it was appropriate to exercise hisauthority under s. 188(1)(

d) of the Motor Vehicle Act, and in so doing he recognized the need to conduct an inventory search of thevehicle for any valuable contents. According to the Crown, the officer would have been derelict in his duties had he not taken steps tomove the vehicle and conduct a search of same. I agree. [31] Counsel for the accused submits the officer’s claim that he conducted an inventory search pursuant to s. 188 of the MotorVehicle Act was an attempt to mask the officer’s real purpose.

The thrust of the accused’s argument in this case is that the officer’sprimary and hidden intention was to search for contraband and the inventory search was simply a facade to allow him access to theaccused’s vehicle. A lawful aim cannot be used as a pretext or subterfuge to perpetuate an unlawful aim (R. v. Nolet, 2010 SCC 24, and2009 SKCA 8). [32] Although the officer denied his purpose was to search the vehicle for contraband, counsel for the accused asserts the officer’sactions in conducting the search belie his stated purpose.

Counsel submits that the officer’s real purpose for the search was to look forevidence of criminality. This, if found, would render the search unreasonable (R. v. Law, 2002 SCC 10, and R. v. Annett, supra).

In thisregard counsel relies primarily on the officer’s evidence that while conducting the inventory search he did not search the accused’swallet, he did not search the glove compartment or under the seats when searching the interior of the vehicle, and he ceased the searchupon locating the vials in the trunk. [33] While it may be that a complete and thorough inventory search would have resulted in the officer searching the wallet, theglove compartment and the remainder of the vehicle before or after locating the steroids, I am not satisfied that the officer’s failure to doso in this investigation reveals that the officer’s claim of conducting an inventory search was merely a ruse to allow the officer to gainaccess to the vehicle. [34] The officer indicated that during the initial stages of the investigation he located the accused’s wallet in the vehicle in anattempt to confirm the identity of the injured person.

He did not conduct a search of the wallet. He located identification informationconfirming the identity of the injured person. While there was a large amount of money visible in the wallet, the officer did not remove,nor count, the money. He eventually handed the wallet to a paramedic as the officer was not going to be retaining the wallet.

He did notsearch the contents of the wallet. [35] I am unable to accept counsel for the accused’s position that the officer’s actions with respect to the wallet reveal the officer’strue intentions were not to conduct an inventory search but to search for evidence of criminality. [36] The purpose of the inventory search is to allow the officer an opportunity to identify and record property which the police areretaining control of as a result of taking control of the vehicle.

Once the police decide to take control of a vehicle, the driver or owner isnot immediately foreclosed from taking possession of property contained in the vehicle which he or she wishes to retain. It is reasonablethat a driver or owner will be given an opportunity to retain items in the vehicle at the time of the impoundment assuming that in doingso they do not interfere in the execution of the officer’s duties. The objective of most if not all vehicle impoundment legislation, and s.188(1)(

d) of the Motor Vehicle Act is no exception, is to remove the vehicle from public roadways. The objective is not to impound thecontents of the vehicle. [37] With this in mind, it was quite reasonable for the officer to allow the wallet to remain with the accused so he had access to itscontents while continuing with his activities that day, including attending at the hospital for medical attention. I do not believe theofficer was required to conduct an inventory of the contents of the wallet. The officer was not retaining the wallet.

I do not believe itwould be wise or appropriate to expect the officer to perform a complete search of an individual’s wallet in such cases. [38] Moreover, and more importantly for the purposes of resolving the issue before the Court and assessing the officer’s trueintentions, if the officer’s intention was to search for evidence of criminality it would seem that the wallet, particularly as it contained awad of money, would represent a fertile repository of potentially incriminating evidence, including contraband such as narcotics orexcessive amounts of money, as well as other indicia of illicit activity such as ‘score sheets’.

Accordingly, it strikes me that if theofficer’s true intention was to search for evidence of criminality, he would not have passed up the opportunity to search this fertilerepository of potentially incriminating evidence. Conversely, had the officer rifled through the accused’s wallet at this stage of theinvestigation, I suspect such conduct would have raised numerous criticisms and objections.

I do not see anything inappropriate orrevealing in the officer’s decision not to retain or search the wallet. [39] While it is odd that the officer did not look in the glove compartment or under the vehicle seats during the inventory search, I do

not construe that as undermining the officer’s claim that he was conducting an inventory search. If the officer’s true intent, as suggested by counsel for the accused, was to conduct a search to locate evidence of criminality, a search of the glove compartment would have been an obvious place to search.

I see the failure to look into the glove compartment and under the seats as an oversight on the part of the officer and not providing any insight into the officer’s true intentions for conducting the search. [ 40 ] With respect to the officer’s termination of the search upon locating the vials in the trunk, I am satisfied based on the officer’s evidence that upon discovering the vials he became focused on this suspected contraband. He had not come across vials of this nature in the past. He suspected they were illicit drugs and his attention became focused on this unusual substance contained in medical vials.

He then spoke to his partner as well as other first responders at the scene to determine what might be the contents of the vials. The officer commenced a criminal investigation. He seized the vials and removed them from the vehicle placing them in his police cruiser.

The fact the officer never completed a thorough search of the vehicle would appear to be a result of the initial inventory search being pre-empted by a criminal investigation upon finding the suspected contraband. [ 41 ] In short, while the officer’s inventory search of the vehicle could have been more thorough both before and after locating the steroids, I do not construe his actions as revealing that the officer’s true intent to search the vehicle was to discover evidence of criminality. [ 42 ] In conclusion, I find the officer’s conduct was lawful and reasonable in the circumstances, and consistent with the intent and purpose of s. 188 of the Motor Vehicle Act .

The vehicle had been involved in a motor vehicle accident and could not be driven. The driver/owner of the vehicle was in no condition to take charge of the vehicle and there was no one else in the vicinity, family member or friend of the driver, who could be entrusted to look after the vehicle. The officer wisely decided that the vehicle needed to be towed and he had to take control of the vehicle. This required an inventory search be performed. The officer conducted a lawful search and in so doing discovered the steroids. There was no violation of s. 8 of the Charter .

Section 24(2) Charter Analysis [ 43 ] Despite my finding that the accused’s Charter rights were not violated in this investigation, I believe it appropriate to indicate that had I found a s. 8 Charter violation had occurred, I would have nonetheless admitted the impugned evidence pursuant to s. 24(2) of the Charter . [ 44 ] After reviewing the jurisprudence addressing s. 24(2), the submissions of counsel, and all the circumstances of this investigation, I must conclude that admitting the evidence in this prosecution would not bring the administration of justice into disrepute. [ 45 ] The Supreme Court of Canada in R. v.

Grant , 2009 SCC 32 , identified three areas of inquiry for the Court’s focus in performing the analysis pursuant to section 24(2) of the Charter . These are:

i) the seriousness of the conduct infringing the rights; ii) the impact on the Charter protected interests of the accused; and iii) society’s interest in an adjudication of the charges on the merits. The overarching approach requires that the Court consider the totality of the circumstances with a view to maintaining the long-term integrity of the justice system and the public's confidence in same. [ 46 ] It is important to note at the outset of this analysis that there is no doubt that it is the alleged breaches of the accused’s Charter rights which allowed the officer to discover the steroids which are now the subject of the criminal charges for which the accused is being prosecuted.

i) seriousness of the conduct infringing the right [ 47 ] The Supreme Court of Canada in R. v Harrison , 2009 SCC 34 , set out the applicable considerations for the Court when assessing the seriousness of the Charter violation: At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. Did it involve misconduct from which the court should be concerned to dissociate itself?

This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter compliant.

On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern. (para 22) [ 48 ] In reviewing the conduct of the officer in this investigation, and assuming he had no lawful authority to conduct a search of the accused’s vehicle and/or conducted the search improperly, I am satisfied that he honestly believed he was acting lawfully pursuant to his authority under s. 188 of the Motor Vehicle Act .

While the thrust of counsel for the accused’s argument was that the officer was involved in subterfuge, I have rejected that assertion for the reasons indicated. I am unable to attribute any bad faith to the officer. He believed he had the lawful authority to conduct an inventory search and proceeded on that basis. If there was a breach I do not believe it was intentional but based on a misunderstanding of his lawful authority.

If there was a Charter breach it was not a result of any serious police misconduct. ii) impact on the Charter protected interests of the accused [ 49 ] The more serious the impact is on the rights of the accused, the more likely it is the impugned evidence will be excluded ( R. v. Harrison , supra ). I do not see the alleged breach as having a significant impact on the rights of the accused. Any expectation of privacy in the vehicle in this case was limited. [ 50 ] The jurisprudence recognizes that an individual’s expectation of privacy is reduced in the context of a motor vehicle on a public roadway.

The expectation may be even further reduced in the context of a vehicle which is seriously damaged, not operable, and is in a hazardous position on the roadway while neither the owner nor driver, nor an agent on their behalf, is able to take charge or control of the vehicle. iii) society’s interest in an adjudication on the merits

[ 51 ] The jurisprudence indicates that the Court should consider the seriousness of the offence and the public's desire for the matter to be heard on its merits, As well, the Supreme Court of Canada has indicated that the Court’s assessment of this third area of the analysis should include factors such as the reliability of the evidence and its importance to the Crown's case. [ 52 ] There can be no doubt that the evidence of the steroids discovered in the trunk is highly reliable and is critical evidence to the Crown's case.

There is also no doubt that the possession of steroids for the purpose of trafficking is a serious charge, particularly given the almost 500 vials located. The public has a heightened interest in having the Court conduct a trial and perform its truth seeking function in order that there be a determination of the prosecution on the merits.

In this regard, the s. 24(2) Charter analysis would favour admission of the evidence to permit a proper adjudication of the allegations. [ 53 ] After considering the three areas of inquiry established by the jurisprudence, I have concluded that the admission of the evidence would not bring the administration of justice into disrepute.

Due to the serious nature of the allegations against the accused, the impugned police transgression being of a minor degree and impacting a privacy interest at the lower end of the scale, it is in the public interest that the illicit drugs found in the trunk of the vehicle be admitted at the trial as the evidence is critical to the Crown's case and the Court's ability to conduct the trial to determine the merits of these serious allegations.

Conclusion [ 54 ] In the result, after conducting a full and careful analysis of the investigation and the officer’s conduct in the context of same, I am unable to conclude that the officer acted improperly or that the search constituted a breach of the accused’s s. 8 Charter rights. Even had I found the officer had breached the accused’s s. 8 Charter rights, I would nonetheless admit the evidence pursuant to s. 24(2) of the Charter . Accordingly, the vials located in the trunk by the officer are admissible evidence in this prosecution. ___________________________________ The Honourable Judge R. Cutler