R. v. Frederickson, 2018 BCPC 296

Citation: R. v. Frederickson 2018 BCPC 296 Date: 20181126 File Nos: 46164-5-C, 45154-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICKY ALAN FREDERICKSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MALFAIR Counsel for the Crown: Angela Murray Counsel for the Defendant: Jason LeBlond Place of Hearing: Prince George , B.C. Dates of Hearing: May 8, June 25, September 12, October 15, 16, 22, 23, 24 & 25 2018 Date of Judgment: November 26, 2018 Introduction [ 1 ] This is an application by Mr.

Frederickson to exclude evidence seized by police at the time of his arrest pursuant to s. 24(2) of Charter of Rights and Freedoms. Mr. Frederickson asserts he was arbitrarily arrested in breach of his rights under s. 9 of the Charter , and that the search of a vehicle and cell phone in his possession incidental to arrest was conducted in a manner which breached his rights

under s. 8 of the Charter to be free from unreasonable search and seizure. [ 2 ] Mr. Frederickson is mid-trial on Informations 46164-5-C and 45154-1 which allege, collectively, 15 counts of drug trafficking and firearms related offences. While all charges arise from the same incident, charges under s. 117.01 of the Criminal Code have been laid on a separate Information (45154-1) as they inherently communicate the fact of Mr. Frederickson having been previously convicted of criminal offences. Notwithstanding, Mr.

Frederickson has opted to have the two files tried together at the same time as they relate to a single investigation and event. Facts [ 3 ] The evidence pertaining to the circumstances of Mr. Frederickson’s arrest and the impugned searches was adduced in a voir dire . This evidence was mainly comprised of the observations and actions of police officers in the two days preceding Mr. Frederickson’s arrest.

These R.C.M.P. officers all belong to a specialized unit known as the Prince George “Street Crew”, whose mandate is to target prolific offenders, drug trafficking and related property crime occurring throughout the city. [ 4 ] The Crown called four witnesses in the voir dire relating to the arrest and incidental search of Mr. Frederickson: Cst. Ryan Underhill, Cst. Marc Cloutier, Cpl. Phil Charron and Cst. James De la Torre. [ 5 ] Cst.

Ryan Underhill was the primary investigator on the file, tasked with the responsibility of directing the file and determining if there were reasonable and probable grounds for arrest. On May 26, 2017, Cst. Underhill and Cpl. Charron received confidential informant information that “Ricky” was selling drugs in Prince George. Cpl. Charron believed “Ricky” to be Ricky Frederickson because Cpl. Charron had personal dealings with Mr. Frederickson in the past. [ 6 ] Cst. Underhill testified that police database searches and driver’s license queries disclosed Mr.

Frederickson’s address to be 423B Gillette Street in Prince George, B.C. Cst. Underhill also consulted a booking or “CABS’ photo to familiarize himself with Mr. Frederickson’s appearance. Cpl. Charron was already familiar with Mr. Frederickson from prior dealings. [ 7 ] On May 31, 2017, at around 4:46 p.m. a police briefing was held among some members of the Street Crew. A decision was made to conduct surveillance of Mr. Frederickson’s activities in order to identify his patterns and associates. Surveillance began on May 31, 2017, which was conducted by Cst. Underhill, Cpl. Charron, Cst. De LaTorre, Cpl.

Daines and Sgt. Chamberlain. Cst. Cloutier was in Cst. Underhill’s vehicle and acted as a scribe, meaning he was responsible for taking notes of all of the officer’s observations. [ 8 ] Cst. Cloutier rode in a vehicle with Cst. Underhill and scribed notes of observations made by other members of the surveillance team as these were reported to Cst. Cloutier over the radio. Cst.

Underhill confirmed the surveillance team shared information among its members and that observations were reported in real time over a radio channel which could be heard by the entire team. [ 9 ] 423B Gillette Street is the basement unit of a residence. There are external stairs down to the basement unit and stairs to the upper floor unit. Police conducted surveillance on May 31 and June 1, 2017.

Police observed the following on May 31, 2017: • Police started watching the house at 423B Gillette St. at 6:00 p.m., however, due to their positions they could not distinguish whether people coming and going from the residence were attending the upstairs unit or the downstairs unit. Officers changed positions after an hour to improve their line of sight to the basement unit. • At 7:07 p.m. Mr. Frederickson was observed leaving the residence in a GMC Yukon with an unknown female passenger. • At 7:11 p.m., Mr. Frederickson was observed driving to the London Drugs store where he parked in the parking lot.

His female passenger got out and went into the store. Andrew Setter, a known heavy drug user and heroin addict, got into Mr. Frederickson’s vehicle for two minutes then left. This interaction was observed by Cst. Underhill, Cst. Cloutier and Cpl. Charron. • At 7:37 p.m., Cst. Underhill saw Mr. Frederickson go into the basement suite at 423B Gillette then come out and drive off two minutes later. • At around 7:40 p.m., Mr. Frederickson went to an apartment building at 3806 5 th Avenue. Police saw Mr. Frederickson go inside the building for around 30 minutes and return to his vehicle.

An unknown female came up to the driver’s window of his vehicle for a short period of time, left for a few seconds, then returned for a short meeting before Mr. Frederickson left. This address, and its occupants, were not familiar to police. This stop and Mr. Frederickson’s brief interaction with the female was observed by Cpl. Charron and reported to Cst. Underhill. • At 8:38 p.m . Mr. Frederickson went to an apartment at 2505 Oak Street, parked, approached a basement window, knocked, and was let inside the apartment. The police knew the apartment to be occupied by Robert or “Rocky” Heron. Cst.

Cloutier performed police database PRIME checks and told Cst. Underhill that Mr. Heron had been the subject of investigations relating to drug trafficking. Mr. Frederickson stayed for around 16 minutes then left. This stop was observed by Cpl. Charron and reported to Cst. Underhill. Cpl. Charron testified he also knew Rocky Heron lived at that residence and knew him to be a drug trafficker from prior investigations. • At 10:00 p.m. Mr. Frederickson stopped at the Husky gas station on Central Ave. He went inside the store then returned to his vehicle.

An unknown female approached the driver’s side window and left after a few minutes. This stop and Mr. Frederickson’s brief interaction with the female was reported to Cst. Underhill by another member of the surveillance team. • At 11:00 p.m., Mr., Frederickson was observed going into the Black Donkey Café, speaking with various individuals for 10-15 minutes then leaving. This stop was observed by Cpl. Charron and reported to Cst. Underhill. Cst. Underhill knew that Café had a history of being associated to drug trafficking. Another officer had previously told Cst.

Underhill he was investigating the owner for trafficking marijuana from that café. Cpl. Charron also testified that Anna Thibadeau, a known drug trafficker, worked in that café and the police had information she was trafficking drugs out of that location. Cst. Underhill believed the short interactions with persons inside the Café related to drug trafficking transactions.

• At around 11:20 p.m., Mr. Frederickson was seen parking his car near the City Centre Inn. His female passenger got out and went to room 122. This was observed by other surveillance team members and reported to Cst. Underhill. Cst. Cloutier learned from the hotel guest registry that the person renting room 122 was William Starchuk. Cst. Cloutier conducted police PRIME system checks which reported William Starchuk was involved in drug trafficking. Cst. Cloutier relayed this information to Cst. Underhill. • At around midnight, Mr. Frederickson went to 2633 Norwood St. where he stayed for around 20 minutes.

This stop was observed by Cpl. Charron and reported to Cst. Underhill. Cst. Underhill knew that address to be the residence of Anna Thibadeau and was familiar with Ms. Thibadeau through prior discussions with other officers and earlier reviews of her police PRIME files. Cst. Cloutier also performed PRIME checks and advised Cst. Underhill that Anna Thibadeau had been the subject of previous investigations for drug trafficking. Cpl. Charron testified that he had previously executed a search warrant at her residence which resulted in Ms.

Thibadeau being convicted of possession for the purpose of trafficking. [ 10 ] Police ceased surveillance at around half past midnight. Cpl. Charron testified that throughout the period of surveillance Mr. Frederickson was observed carrying a dark bag or satchel. He saw Mr. Frederickson with the same satchel on June 1, 2017. [ 11 ] Cst. Underhill explained that “short meets” can be as a short as a couple of minutes, but can be longer depending on the nature of the transaction. If the meeting involves the sale of drugs between drug traffickers for resale purposes, a meeting could last 20-30 minutes. It was Cst.

Underhill’s view that 20 minutes is a short duration to be visiting someone’s residence. Where the occupant of the residence is a known drug trafficker, it was Cst. Underhill’s belief that a 20 minute visit was consistent with the conduct of a large drug sale. [ 12 ] Cst. Underhill testified that by the end of surveillance on May 31, 2017, he believed he had reasonable and probable grounds to arrest Mr. Frederickson for trafficking, but wanted “further grounds” by conducting a “pick” from Mr. Frederickson’s residence which would produce drugs. [ 13 ] On the evening of June 1, 2017, police resumed surveillance.

Cst. Underhill, Cpl. Charron, Cst. Connell, Cst. Cloutier and Sgt. Chamberlain were part of the surveillance team. According to Cst. Underhill, the goal was to take enforcement action that day if the opportunity presented itself. Specifically, if there was a “pick”, or a short duration transaction following which the presence of drugs was confirmed, police would arrest Mr. Frederickson. [ 14 ] Police started surveillance at 5:04 p.m. at 423B Gillette Street. At 5:30 p.m. It appeared to Cpl. Charron that Mr. Frederickson was moving. There were people other than Mr.

Frederickson carrying things and furniture out of 423B Gillette and loading them on to a pick-up. Police followed that pickup to a residence at 802 Johnson Street where they saw items being unloaded and taken into that residence. Police were under the impression Mr. Frederickson was moving from the 423B Gillette Street residence to the residence on Johnson Street. [ 15 ] At 7:47 p.m., Cpl. Charron reported to Cst. Underhill that he saw Mr. Frederickson arrive in the Yukon and go into 423B Gillette. [ 16 ] At 8:00 p.m. Cpl. Charron observed seeing a white Ford pickup parking at the residence.

A female got out of the truck and ran inside 423B Gillette, leaving her passenger door open. Three to four minutes later the female came back out and the truck left. This was reported to Cst. Underhill who was parked nearby. Cpl. Charron testified that Cst. Cloutier ran the plate and confirmed the Ford truck to belong to another drug user with a record for trafficking, Rocky Purich. Cpl. Charron reported his observations over the radio and his view that this would be a good “pick” to stop. [ 17 ] Cst. Underhill believed the female had gone into the residence for a short stop drug purchase so he, Cst.

Cloutier and Sgt. Chamberlain followed the vehicle from 423B Gillette and pulled it over at the Pine Centre Mall nearby after around a 5-10 minute drive. The female passenger, Pamela Creek, was searched by Cst. Cloutier and found to have needles and a flap of heroin in a sunglasses case in her purse. This was reported to Cst. Underhill. [ 18 ] Cst. Underhill consulted with Sgt. Chamberlain and testified he believed he had reasonable and probable grounds to arrest Mr. Frederickson for possession for the purpose of trafficking. Cst. Underhill based his decision on the results of this “pick” and the fact that Mr.

Frederickson was observed conducting short duration stops the day before, he met individuals at the Black Donkey where Cst. Underhill believed he was trafficking drugs, and that Mr. Frederickson was meeting with known “drug people.” [ 19 ] Cpl. Charron followed Mr. Frederickson, who was still driving the Yukon, to a residence at 1904 Maple Street. At 8:09 p.m., Mr. Frederickson went into the Maple Street residence where he remained for two hours. During that time police started preparing warrants to search the 423B and 802 Johnson Street addresses. [ 20 ] Cst. Underhill directed Cpl. Charron to arrest Mr.

Frederickson following the results of the “pick.” According to Cpl. Charron, Mr. Frederickson’s’ vehicle was parked close to the residence and police did not want him to get into his vehicle because they were concerned he may attempt to flee. Once Mr. Frederickson exited the residence police ran up to him and told him he was under arrest as he was opening the door of the Yukon. He was arrested by Cpl. Charron, and chartered and warned by Cst. De LaTorre at 10:37 p.m. [ 21 ] Cpl. Charron could not clearly remember whether Mr.

Frederickson had the dark satchel on his person when he came out of the residence, however, he did confirm the satchel was situated on the driver’s seat of the Yukon when Cpl. Charron seized it. Cpl. Charron testified that he was not 100% sure if the vehicle was unlocked when he searched it, but did recall he found the keys for the vehicle on the driver’s seat. Cpl. Charron was not sure if Mr. Frederickson had put them there or if Cst. De La Torre had placed the keys there after arresting Mr. Frederickson. [ 22 ] Cst. De La Torre testified that he was conducting surveillance on Mr.

Frederickson at the 1904 Maple Street address when he heard about the “pick” and reasonable and probable grounds to arrest. He received a “take down” or arrest instruction from the team commander, Sgt. Chamberlain, and he went to assist in the arrest. When he arrived Mr. Frederickson was already in the process of being arrested by other RCMP members. He assumed responsibility for chartering and warning Mr. Frederickson. He searched Mr.

Frederickson’s person incidental to arrest and found a folding knife and cell phone which he handed to Cpl. Charron. [23] Cpl. Charron seized keys on a lanyard and the satchel from the driver’s seat of the Yukon. He testified that because police sawMr. Frederickson carrying that satchel with him throughout the period of surveillance, he believed the satchel may have drugs or otherdrug trafficking related paraphernalia in it. The keys seized by Cpl.

Charron were subsequently used to gain entry to 802 Johnson Streetand to unlock a metal box found at that residence which contained large quantities of drugs. [24] In the satchel Cpl. Charron found a wallet containing Mr. Frederickson’s identification and driver’s license along with $1,495 incash, $220 in counterfeit bills and 1.44 grams of fentanyl laced heroin.

In the body of the satchel he found stacks of cash primarily in$20 bill denominations totaling $10,390, as well as a scale, packaging materials, five bags of methamphetamine approximating oneounce each (around 28 grams per “ounce”); two roughly “ounce” bags of crack cocaine, and an “ounce” bag of fentanyl laced heroin. [25] Upon receiving the cell phone from Cst. De La Torre, Cpl. Charron saw on the unlocked phone display there were 15 missedcalls. He pressed a button to access the text messaging application and read the first string of texts, which Cpl. Charron believed wererequests to purchase drugs. Cpl.

Charron took notes of what he observed on the phone and did not search it any further. [26] Cpl. Charron testified it was getting dark so he arranged for the vehicle to be towed back to the detachment so the search couldbe completed in better light. Cst. De La Torre confirmed it was decided to tow the vehicle to the detachment due to the lightingconditions. Both Cpl. Charron and Cst. De La Torre testified they believed they had the authority to search the vehicle without warrantas a continuation of the earlier vehicle search incidental to arrest.

The search was conducted in the secure bay of the RCMP detachmentaround 65 minutes after Mr. Frederickson’s arrest at Maple Street. In the car police found a deconstructed taser, knives, a baton, and alease agreement for 802 Johnson Street. [27] Cpl. Charron testified he believed he had the authority to search the cell phone, satchel and vehicle without warrants as searchesincidental to arrest. Issues 1. Did police have reasonable and probable grounds to arrest Mr. Frederickson? 2. Was the warrantless search of the GMC Yukon unreasonable? 3. Was the warrantless search of Mr.

Frederickson’s cell phone unreasonable? Issue #1: Did police have reasonable and probable grounds to arrest Mr. Frederickson? [28] Mr. Frederickson asserts the police did not have reasonable and probable grounds to arrest him, as such, his arrest wasconducted in violation of his s. 9 Charter right to be free of arbitrary detention. Since the legality of the search of the Yukon, satchel,and cell phone were derived from the legality of the arrest, if the arrest is found to be invalid, the search will be also. As Cory J. statedin R. v.

Stillman, (SCC), [1997] 1 S.C.R. 607, at para. 27, "No search, no matter how reasonable, may be upheld underthis common law power [of search incident to arrest] where the arrest which gave rise to it was arbitrary or otherwise unlawful." [29] Cst. Underhill formed the grounds for arrest and directed Cpl. Charron to make the arrest. Cpl. Charron and Cst. De La Torrewere entitled to rely on the grounds formed by Cst. Underhill in effecting the arrest (R. v.

Debot, (SCC), [1989] 2 S.C.R.1140). [30] Pursuant to s. 495(1) of the Criminal Code, a peace officer may arrest without warrant a person who the officer believes, onreasonable grounds, has committed or is about to commit an indictable offence. Police need not establish more than reasonable andprobable grounds for arrest (R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 at par. 15). [31] Cst. Underhill testified as to his subjective belief that he had reasonable and probable grounds to arrest Mr. Frederickson.

Theissue is whether that subjective belief was objectively reasonable. [32] “Reasonable grounds to believe” requires something more than “mere suspicion”; it is a standard of “reasonable probability,”which is a standard less than the civil standard of proof of on a balance of probabilities (Mugesara v. Canada, 2005 SCC 40 at par. 114). Reasonable grounds is a standard of credible based probability that envisions a practical, non-technical common sense probability as tothe existence of the facts and inferences asserted at the time the arrest decision was made (R. v.

Galye, 2015 BCSC 1950 at par. 38; R. v.Sanchez, (ON SC), 20 O.R. (3d) 468 (ONCJ) at par. 31). [33] In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him or her and is entitled to disregard only information which he or shehas good reason to believe is unreliable. The law does not expect the same level of inquiry of a police officer deciding whether to makean arrest that it demands of a justice faced with an application for a search warrant (R. v.

Golub (1997), (ON CA), 117C.C.C. (3d) 193 (ONCA) at paras. 18 and 21). [34] The arresting officer must subjectively believe he or she has reasonable and probable grounds to arrest the accused, and thatbelief must be objectively reasonable. A reasonable person placed in the position of the officer must be able to conclude that there wereindeed reasonable and probable grounds for the arrest (Storrey at par. 17). [35] Being "placed in the position of the officer" does not just mean making the same observations as the officer.

Included in theassessment of whether the grounds for arrest are reasonable is the officer's experience, training and knowledge (R. v. Loung 2010 BCCA58 at par. 18). The assessment of whether objective grounds exist undertaken by a trial judge is conducted by first looking at theobservations of the officer through the lens of someone who has the same experience, training, knowledge and skills as the officer whois making the observations, and then deciding if a reasonable person with the same lens would come to the same conclusion as the police

officer ( Loung at par. 24 ). [ 36 ] In R. v. Mackenzie , 2013 SCC 50 , Moldaver, J. said with respect to “reasonable suspicion” to sniff search at par. 62: Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. That is their job. They do it every day. And because of that, "a fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police" ( Yeh , [ 2009] S.J. No. 582 at para. 53 ).

Sights, sounds, movement, body language, patterns of behaviour, and the like are part of an officer's stock in trade and courts should consider this when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold. [ 37 ] Justice Moldaver’s comments were held to be equally applicable to the objective analysis of the “reasonable grounds” standard in R. v. Wu , 2015 ONCA 667 at par. 52 . [ 38 ] That being said, the expertise and experience of a police officer can never be an excuse for arbitrary arrest, even if a subsequent search uncovers evidence of a crime ( Galye at par. 38 ).

Hunches and intuition grounded in an officer’s experience will not suffice, nor is deference necessarily owed to a police officer’s view of the circumstances because of his or her training or experience in the field ( R. v. Chehil, 2013 SCC 49 at par. 47 ). [ 39 ] In this case, the officers conducting surveillance were part of the “street crew” tasked with targeting property and drug crimes. Cst. Underhill had been an RCMP member for 10 years before spending one year on the street crew, and had been involved in around 100 drug investigations. Cpl.

Charron is also a ten year officer who had been on the street crew for five years. Cpl. Charron has been involved in over 100 drug investigations, he has been qualified as a drug expert and has been involved in numerous undercover operations where he witnessed dozens of drug transactions first hand. He has been involved with many confidential informants and has had intimate dealings with drug traffickers and the criminal subculture of drugs. Confidential Informant Tip [ 40 ] Mr. Frederickson first challenges the quality of the confidential informant tip. He points out that Cst.

Underhill described the tip as identifying “Ricky Frederickson” to be a person selling drugs, while Cpl. Charron recalled the informant only using the first name “Ricky.” No information was led in this the voir dire about the reliability of the tip or the confidential informant, and I have not relied on that evidence in assessing the objective reasonableness of Cst. Underhill’s grounds for arrest. In reciting his reasons for arrest, Cst. Underhill did not say he relied on the confidential informant tip. Recency of Police checks [ 41 ] Mr.

Frederickson complains there was no evidence adduced by the Crown as to the recency of any police checks concerning Mr. Frederickson and his association to the Gillette Street address. I understand his submission to be that police therefore did not have reasonable and probable grounds to believe Mr. Frederickson lived at that address. [ 42 ] Cst. Underhill testified that on May 26, 2017, he commenced an investigation into Mr. Frederickson for drug trafficking. He conducted a search on the police records system, PRIME, and learned Mr. Frederickson had an address of 423B Gillette Street. Cst.

Underhill also conducted a Driver’s License query which confirmed Ricky Frederickson’s residence to be 423B Gillette Street. [ 43 ] I find the driver’s license and PRIME checks were done at the commencement of the investigation, being May 26, 2017, and were therefore recent. I do not find the evidence supports Mr. Frederickson’s argument on this point. I am satisfied the police had reasonable and probable grounds to believe Ricky Frederickson lived at 423B Gillette Street at the time of his arrest based on the police queries and their own observations of Mr. Frederickson’s attendance at that residence.

Potential Involvement of Third Parties [ 44 ] Mr. Frederickson argues the police did not have reasonable and probable grounds to believe he was the person trafficking drugs from the Gillette Street residence or the GMC Yukon, in part, because they did not investigate the possibility of third parties having access to that location and vehicle. [ 45 ] Cst. Underhill did not conduct police searches to determine if any other persons were associated to the 423B Gillette Street address or if the upstairs tenants had any history of drug trafficking. Mr.

Frederickson argues police should have taken more steps to identify whether other persons lived in at 423B Gillette Street and to identify the unknown female who was riding with Mr. Frederickson on May 31, 2017, to determine if she had a history of drug trafficking. [ 46 ] This type of argument was addressed by Mr. Justice Schultes in R. v. Gill , 2015 BCSC 310 . In that case, he did not follow the Alberta Court of Appeal decision of R . v. N.O. , 2009 ABCA 75 , in which that Court faulted the police officer for not taking additional investigative steps before arresting the accused.

Justice Schultes says at par. 33: However, the criticism of an officer's failure to take additional investigative steps runs contrary to the decision of our Court of Appeal in R. v. Jir , 2010 BCCA 497 at para. 27 , and so I could not give effect to it, even if I found it to be applicable here.

The proper focus is on the objective reasonableness of what this officer did, based on what he knew at the time, not on what other steps he could have taken to acquire additional grounds. [ 47 ] Determining whether the arresting officer’s grounds were objectively reasonable involves an assessment of the factual matrix that existed at the time the arrest was made. Whether other information might have strengthened or weakened those grounds is not a relevant consideration ( Galye , at par. 38 ). There are some factors that occur in some cases and not in others.

There can be an absence of factors in some cases and not in others. It is the totality of the evidence that is there which must be considered, not the totality of what is not present ( R. v. Lo , 2015 BCSC 1159 at par. 89 ).

[48] I do not find Cst. Underhill’s reasonable and probable grounds for arrest were undermined by his failure to identify the potentialinvolvement or the criminal history, if any, of other occupants of the Gillette Street residence and the unknown female passenger in theYukon. In these circumstances, where Mr. Frederickson was seen being the driver of the vehicle and being the sole person to enter thesuspect stop locations other than the hotel, the police were acting reasonably in relying on the information and observations they didhave without the need for further investigation of third parties. Even if Mr.

Frederickson was aiding, abetting, or acting as a co-principalin trafficking drugs in a joint enterprise with others, that would not make him any less arrestable for his own culpability in that jointenterprise. [49] Mr. Frederickson argues that police surveillance could not distinguish between persons attending the basement unit at 423BGillette Street and the upstairs unit which was occupied by other tenants. The evidence is that officers initially could not make thatdistinction, and therefore moved positions after around an hour so they could more precisely identify which unit people were coming inand out of.

In articulating his grounds for arrest, Cst. Underhill did not rely on any observations of persons coming and going from theresidence in the first hour of May 31, 2017, when police could not identify which unit was being accessed. I am satisfied that whereofficers subsequently reported observing persons coming to and from 423B Gillette exclusively, they were in a position to observe thatspecific unit being accessed. Innocent Explanation for Conduct Observed [50] Mr.

Frederickson raises various concerns about the “meets’ observed by police which formed part of the grounds for the arrest,he argues: • the alleged meeting between Mr. Setter and Mr. Frederickson on May 31 at 7:11 p.m. is of diminished importance becausethere was a third party, the unknown female in the car, and police could not see what was happening inside the vehicle. Mr.Frederickson suggests the “meet” could have been between the female and Mr. Setter, not Mr. Frederickson and Mr. Setter, and that Mr.Frederickson was just a driver. However, Cst.

Cloutier testified the female may have been in the London Drugs store at the time of thistransaction, as he had seen her get out and go inside and Mr. Setter get into the front passenger seat of the Yukon; • the police did not actually see Anna Thibadeau at her residence on May 31 when Mr. Frederickson went there, and couldnot say who Mr. Frederickson met or who else was in the residence that day. He could have been meeting someone else.

He also arguesthat 20 minutes is not a “short meet” in the context of a drug transaction; • no hand-to-hand drug transactions were observed at the Black Donkey Café and police did not observe who Mr.Frederickson spoke to there; • the attendance at the City Centre Inn is equivocal. Little is observed of Mr. Frederickson’s movements, rather, a femalewas seen going into the Yukon and then to room 122 which was rented to William Starchuk, a person associated to the drug trade. Mr.Frederickson says that given it is the unknown female, not Mr.

Frederickson, who was seen attending the hotel room, this observationcould not form part of the officer’s grounds relating to Mr. Frederickson; • Mr. Frederickson’s alleged attendance at the apartment building at 3806 5th Avenue was not significant because thataddress had no known association to the drug trade and the meeting was not “short,” as it lasted around a half-hour; • Mr. Frederickson’s attendance at the Husky gas station on May 31, 2017, was not probative of any illicit activity, as policecould not say if Mr. Frederickson was there to get gas or items from the store.

Police only observed a female come up to the driver’sside for a short chat and officers did not see any hand to hand transactions; • with respect to the drugs found on Ms. Creek, police cannot say when those drugs were acquired, as they could havealready been in Ms. Creek’s purse prior to her attendance at 423B Gillette; and • there may have been other persons in the Gillette Street residence at the time of Ms. Creek’s attendance there, as evidencedby the presence of the “movers.” To the extent police believed Ms. Creek obtained the heroin from 423B Gillette Street, police could notbe certain it was Mr.

Frederickson, as opposed to someone else, who sold it to her. [51] Mr. Frederickson addresses each observation made by the police individually and offers alternative innocent explanations forMr. Frederickson’s conduct at each moment. However, this is not the proper analysis. As the Court of Appeal explained in Loung atpar. 17: Counsel for Mr.

Luong went through each of the observations of the police and pointed out other inferences which could be drawn fromthose observations - for example, he was delivering something other than drugs, he was lost when he was driving around theneighbourhood streets, he had a legitimate reason for renting a car and for using a cellular telephone while driving. This is not themanner in which this evidence is to be assessed or analyzed. The cumulative effect of the evidence is taken into account whendetermining whether there are reasonable grounds to arrest someone. The evidence is not assessed on a piece meal basis.

See R. v.Storrey, (SCC), [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316 at para. 17, R. v. Tran, 2007 BCCA 491, 247 B.C.A.C. 109 atpara. 17. [52] Mr. Justice Kent expressed this cumulative analysis principle in Galye at par. 53: However, while individually no one of the factors identified in para. 46 above would likely be sufficient by itself to objectively justifythe arrest of the accused in this case, a practical, non-technical and common sense assessment of their cumulative effect at the time thearrest decision was made is sufficient to meet the requisite standard of reasonable probability.

While this case may be close to the line,in my opinion, an assessment of the totality of the circumstances at the relevant time, particularly when viewed through the lens of areasonable person with the same experience and training of Corporal Gargus, leads to the conclusion that the arrest was made on groundsthat were reasonable on both a subjective and objective basis.

[ 53 ] Mr. Justice Schultes said in R. v. Gill at par. 49 : In this regard, it does not detract from the link he made between dial-a-dope transactions as he had previously observed them, and the incident unfolding before him, that a purchase of something lawful could also possibly have been occurring. Innocent alternatives only undermine grounds for arrest when the inference the officer drew that an offence was taking place was not reasonable. The officers do not have to rule out other explanations, if there is an objective basis for what they did infer concerning criminal activity [ 54 ] In this case all of Cst.

Underhill’s observations and information must be viewed in its totality when determining whether there were objectively reasonable and probable grounds to arrest Mr. Frederickson. Those observations must be viewed through the lens of the experience and training of the police officers who made them. In this case, Cst. Underhill and Cpl. Charron were experienced police officers having each conducted over 100 drug investigations.

They were sufficiently knowledgeable of the local drug trade to immediately recognize locations and persons associated to that drug trade during surveillance. [ 55 ] I find the police had objectively reasonable grounds to believe Mr. Frederickson was trafficking drugs, specifically: • the police had compelling grounds to believe Mr. Frederickson lived at 423B Gillette Street based on his Driver’s license query and PRIME records which identified that to be his address; • over a period of around five hours, Mr.

Frederickson was observed driving around and making seven stops, all of which were under 30 minutes in length. Many of these stops were at places associated to known drug traffickers or involved meetings with known drug users, including: • Mr. Frederickson met with Andrew Setter, a known heavy drug user, in his vehicle for two minutes; • Mr. Frederickson went to an apartment building on 5 th Ave for around a half hour. When he returned to his vehicle, a female came out to his driver’s window for a short period of time, left for a few seconds, then returned briefly to his window before Mr. Frederickson left.

The meeting with that female was a short stop meeting; • Mr. Frederickson went to the residence of a known or suspected drug trafficker, Rocky Heron, for 16 minutes; • Mr. Frederickson went to the Husky Gas Station and interacted with a female through his driver’s side window for a few minutes; • Mr. Frederickson went to a Café which was under investigation for drug trafficking for 10-15 minutes; • Shortly afterwards Mr.

Frederickson’s vehicle was seen parked at the City Centre Inn where a female was observed going from his vehicle to a hotel room rented to William Starchuk, a known or suspected drug trafficker; and • Mr. Frederickson was then seen going to the residence of Anna Thibadeau, a known drug trafficker whose residence had previously been searched by police, where he stayed for 20 minutes. • Mr. Frederickson’s stops and meetings were short in duration. With respect to the “longer” stops at Mr. Heron’s and Ms. Thibadeau’s residence and the Black Donkey, I accept Cst.

Underhill’s evidence that in his experience meetings can be longer where they are between drug traffickers as larger volumes of drugs may be changing hands; • even if the female passenger observed during surveillance was trafficking drugs, in all of the circumstances police would have had reasonable and probable grounds to believe Mr. Frederickson, her driver, was aiding this female or trafficking drugs with her, in which case he would still be arrestable as a party or co-principal to that offence; • during the period of surveillance and when he made these stops, Mr.

Frederickson was seen carrying around a satchel. A carrying receptacle is an aid for trafficking drugs, as such an undertaking often involves the use of scales, packaging materials, drugs, and cash which must be moved about covertly; and • on the second day of surveillance Mr. Frederickson was observed going into 423B Gillette shortly before Pamela Creek arrived. Ms. Creek “ran” into the residence, leaving her passenger door open, and returned to her vehicle in 3-4 minutes. This was a very short attendance for a visit to a residence. A search of her purse shortly afterwards produced needles and a flap of heroin.

In short, Ms. Creek briefly went into 423B Gillette when Mr. Frederickson was known to be home, and immediately after her attendance there police found drugs on her person. [ 56 ] In Loung police set up surveillance of a trailer park which had reported an increase of drug and property offences. During surveillance the police became interested in the accused upon observing him arrive in a rented SUV and attending a residence for two minutes.

Police followed the accused and observed him to make three more short stops at three different residences, at one stop a person came out of a residence and sat in the accused’s vehicle for 30-45 seconds, then left. The accused then drove in a random manner which police believed to be a “heat check” (checking for police surveillance) while talking on a cell phone. After the “heat check” police followed the accused to another location where he was arrested and his vehicle was searched. A police search of the vehicle produced large quantities of drugs and cash.

The Court held the trial judge’s conclusion that it was objectively “highly probable” that the accused was a dial-a-dope drug dealer based on the police’s observations was “amply” supported by the evidence. [ 57 ] In R. v. Tran , 2007 BCCA 491 , the Court of Appeal agreed that the arresting officer had objectively reasonable grounds to believe the accused was trafficking drugs based on his observation of a single interaction in which police did not observe anything change hands.

Police were conducting surveillance of a known drug addict who was reported to be committing property crimes, which police believed were for the purpose of obtaining money to support his drug habit. Police saw this addicted individual try to break into a house, and minutes later, get into the accused’s car for 15 seconds, crouch down, and then leave. Police stopped the car, arrested the accused driver for drug trafficking and conducted a search which yielded drugs and cash. The Court agreed the police’s knowledge of

the purchaser’s drug addiction and criminal activities supported their reasonable grounds to believe he had purchased drugs from the accused. The Court re-affirmed the need to evaluate observations relied on by police in their totality, saying at par. 17: As the trial judge pointed out, however, Mr. McConville's habits and conduct led to the inference that it was "highly probable" that "the purpose of what occurred in the lane ... [was] the acquisition of drugs from the driver".

The inference drawn by the trial judge was correctly based on a consideration of the "totality of the circumstances", not on each item of evidence separately. This is a case where a number of suspicious circumstances, viewed cumulatively, in their totality, led to the conclusion that there were reasonably objective grounds for the arrest. [ 58 ] In R. v.

Messina , 2013 BCCA 499 , the Court of Appeal found the arresting officers had reasonable and probable grounds to arrest the accused in circumstances where the officers, who were part of a similar crime reduction unit targeting drug traffickers, observed the accused make four stops in a one hour period in which four different people sat in the accused’s vehicle for under a minute. Two of these individuals were described as having the appearance of drug users. No hand to hand transactions were observed, but police believed these interactions were consistent with a dial-a-dope operation.

The accused was arrested and 0.5 grams of crack cocaine was located. On appeal, the Court overturned the trial judge’s finding that the officers lacked reasonable and probable grounds, saying (at paras. 24 and 26): 24 These authorities leave no doubt that Constable Hakonson's

interpretation of Mr. Messina's actions must be considered in light of his experience and training as a police officer and a CRU officer.

This is what the Crown refers to as the "experience factor", which requires that an officer's reasons for arrest be assessed from the vantage point of a prudent, reasonable and cautious police officer, similarly experienced as the arresting officer, rather than an untrained civilian. *** 26 Both Constable Hakonson and Corporal Tupper have specialized skill and training that the trial judge failed to take into account when deciding whether there were objectively valid grounds for arresting Mr. Messina. These were experienced officers who had been involved in numerous drug investigations.

Their observations, considered in their totality, were sufficient to support objectively reasonable grounds that Mr. Messina was engaged in drug dealing. They did not have to rule out all other possible innocent explanations for Mr. Messina's conduct or each event. They were entitled to use their training and experience to conclude from the totality of their observations that Mr. Messina was trafficking in drugs from his car. [ 59 ] While Mr. Frederickson’s stops were longer than Mr. Messina’s, and police were unable to observe actual meetings that took place inside the three residences Mr.

Frederickson attended, it cannot be ignored that in the course of five hours Mr. Frederickson repeatedly went to a place or met a person associated to drug use or drug trafficking, in addition to conducting three very short meets (with Andrew Setter, a female at the apartment building and a female at the gas station). The next evening a woman who ran into his house for a few minutes had heroin on her person when stopped 5 minutes later. Viewed through the experienced lens of the officers on the “street crew”, this rises above mere coincidence.

This is not a case where police were basing their grounds on their observations of a single “suspicious” transaction, such as in R. v. Brown , 2014 BCSC 1665 or R. v. N.O. . [ 60 ] While every individual observation made by the police potentially lends itself to an innocent explanation, when viewed in their totality through the lens of these experienced drug investigators, these observations reasonably supported the officer’s belief that Mr. Frederickson was trafficking drugs. I find that Mr. Frederickson was lawfully arrested and that his s. 9 rights were not violated.

His application for Charter relief on the basis of an arbitrary arrest or detention is dismissed. Issue #2: Was The Warrantless Search Of The GMC Yukon Unreasonable? [ 61 ] The burden is on Mr. Frederickson to establish on a balance of probabilities that a violation of his Charter rights, occurred, however, as the search of the vehicle and cell phone were conducted without a warrant, the burden is on the Crown to show the search was justified.

To the extent the Crown purports to justify these searches as being done incidental to arrest, the burden is on the Crown to establish that justification. [ 62 ] Warrantless searches are presumptively unreasonable. Searches properly conducted as an incident of a lawful arrest are an exception to that presumption. The power to conduct a warrantless search as an incident of an arrest is well established as common law ( G olub at par. 26 ). [ 63 ] The Yukon was searched in two stages. When Mr. Frederickson was arrested Cpl.

Charron retrieved the black satchel and a set of vehicle, residence, and lock keys on a lanyard from the driver’s seat of the Yukon. The vehicle was then towed back to the RCMP detachment for further search where there were better lighting conditions. In that further search Cst. De La Torre and Cpl. Charron found a lease agreement for 802 Johnson Street, which was in the rear pocket of the front passenger seat. Mr. Frederickson was arrested at 10:37 p.m. and the vehicle was searched at the detachment at 11:42 p.m., a little over an hour later. [ 64 ] Mr.

Frederickson asserts that the warrantless search of the Yukon was not justified as a search incidental to arrest. Mr. Frederickson argues that the fact he was approaching the vehicle at the time of his arrest did not bring the vehicle sufficiently within his immediate surroundings to be considered a location searchable incidental to arrest. He argues there was no exigency in conducting that warrantless search. There was no suggestion that obtaining a warrant was impracticable or that evidence would be lost or destroyed while police waited for a warrant.

There was no concern the vehicle or its contents posed an immediate safety threat. He further argues that once the vehicle was towed and searched again an hour after the arrest, the temporal proximity was severed such that the second search could no longer be characterized as being truly incidental to arrest. [ 65 ] Mr. Frederickson points out that the registered owner of the Yukon was a Mr.

Neil Jaswal, but did not advance any formal argument or adduce any authorities about the police power to search a vehicle in these circumstances in the absence of the consent of or notice to the registered owner. [ 66 ] In this case, the Crown is relying on the common law power of search incident to arrest to provide the legal authority for the

search. Search incident to arrest is an exception to the ordinary requirements for a reasonable search in that it requires neither a warrantnor independent reasonable and probable grounds. Rather, the right to search arises from the fact of the arrest (R. v. Caslake, (SCC), [1998] 1 S.C.R. 51 at par. 13). [67] The three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidencefrom destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee's trial.

Therestriction that the search must be "truly incidental" to the arrest means that the police must be attempting to achieve some valid purposeconnected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. The police musthave one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer's belief that thispurpose will be served by the search must be a reasonable one.

If the justification for the search is to find evidence, there must be somereasonable prospect of securing evidence of the offence for which the accused is being arrested (Caslake at paras. 19 and 22). Purpose of the Search [68] Police must have one of the purposes for a valid search to arrest in mind when the search is conducted which is objectivelyreasonable. This is not a standard of reasonable and probable grounds, the only requirement is that there be some reasonable basis fordoing what the officer did, there must be a “valid objective” served by the search (Caslake at par. 20). [69] Cpl.

Charron testified he searched the vehicle incidental to arrest because Mr. Frederickson had been seen driving this vehicle,Cpl. Charron arrested Mr. Frederickson by the vehicle, Mr. Frederickson had opened the door to the vehicle, and Cpl. Charron believedhe was about to get into the vehicle. Based on what he observed during surveillance Cpl. Charron believed Mr. Frederickson was usingthe vehicle as a means of trafficking drugs and therefore he expected to find evidence of drug trafficking inside, such as drugs, scales orpackaging. Cpl.

Charron explained that in his experience traffickers who use vehicles to traffic drugs usually have drug related items intheir vehicle as opposed to traffickers who exclusively sell drugs from their residence. [70] Cst. De La Torre testified he also searched the Yukon under the authority to search incidental to arrest. He believed that asearch of the vehicle would yield evidence of drug trafficking, such as drugs, score sheets, and ancillary devices related to drugtrafficking activities. Cst. De La Torre held that belief because Mr.

Frederickson had access to that vehicle during the period ofsurveillance. [71] Cpl. Charron testified that he searched the satchel located in the vehicle as Mr. Frederickson had that satchel on him during theperiod of surveillance, Cpl. Charron believed that Mr. Frederickson was storing drugs in the satchel or it was related to his conduct ofdrug transactions, and he believed there may be evidence of drugs and drug trafficking, like packaging and scales, inside the satchel. [72] Mr.

Frederickson argues there was no need to search the vehicle without a warrant – it did not pose a safety threat and there wasno concern evidence would be lost pending a warrant. However, the common law authority to search incidental to arrest does not invokean exigency requirement. The police can search for the purpose of discovering evidence to be used against the accused, in addition topurposes relating to preserving evidence or public safety. The search derives its authority from the lawful arrest and no independentjustification for the search is required (Golub at par. 31). [73] Defence has provided R. v.

Mann, 2004 SCC 52, R. v. Reddy, 2010 BCCA 11, R. v. Ulm, 2015 BCSC 1979, R. v. Dhillon 2012BCCA 254 and R. v. Patrick, 2015, BCSC 2362 which address the scope of search incidental to an investigative detention. I do not findthose authorities especially helpful in this case as the stated reason for the search - to discover evidence - is a permissible purpose for asearch incidental to arrest which is not permissible in a search incidental to investigative detention. [74] Mr. Frederickson also relies on R. v. Harrison, 2009 SCC 34.

In that case the trial judge had excluded evidence of drugsobtained from the accused’s vehicle pursuant to a search incidental to arrest. The accused had been arrested for driving while suspendedand the trial judge found the search of the vehicle was not truly incidental to arrest, presumably because there was no reasonableprospect that searching the vehicle would produce any evidence of the offence for which the accused had been arrested, namely, drivingwhile suspended. That is not the case here, where Mr. Frederickson was arrested for drug trafficking in circumstances where policereasonably believed Mr.

Frederickson was drug trafficking from that vehicle. [75] Mr. Frederickson was observed driving that vehicle over two days’ of surveillance. He used that vehicle to conduct multipletrips and stops which police reasonably believed were related to drug trafficking. Mr. Frederickson was seen driving that same vehiclewithin hours of his arrest. In all of the circumstances, there was more than a reasonable prospect that a search of that vehicle wouldsecure evidence of drug trafficking, the offence for which Mr. Frederickson was arrested.

I find the search of the vehicle was for thevalid law enforcement objective of discovering evidence. Location of the Search [76] Mr. Frederickson argues that, whether or not the police had a valid objective in searching the vehicle, the vehicle itself was notsufficiently physically proximate to Mr. Frederickson at the time of his arrest to bring it within a location police could legitimatelysearch incidental to arrest. [77] The power to search upon arrest extends to the immediate surroundings at the place of arrest (Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158 at par. 52).

Automobiles are legitimately the objects of search incident to arrest, as they attract noheightened expectation of privacy that would justify an exemption from the usual common law principles (Caslake at par. 15).

The rightto search a car incident to arrest and the scope of that search will depend on a number of factors, including the basis for the arrest, thelocation of the motor vehicle in relation to the place of the arrest, and other relevant circumstances (Caslake at par. 23). [78] In order for a search to be truly incidental to arrest, the police must have had some reason related to the arrest for conducting thesearch at the time the search was carried out, and that reason must be objectively reasonable.

Delay and distance do not automaticallypreclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inferencemay be rebutted by a proper explanation (Caslake at par. 25).

[ 79 ] Mr. Frederickson argues there is no evidence police were watching the vehicle itself while Mr. Frederickson was in the Maple Street residence, as such, they could not be certain no one else had accessed the vehicle. In my view, the common law power to search a vehicle incidental to arrest does not require the police be satisfied the arrestee had exclusive access to it immediately prior to the search. Indeed, vehicles are routinely searched incidental to arrest in circumstances where multiple occupants were found in the vehicle at the time of arrest. [ 80 ] With respect to Mr.

Frederickson’s argument that the vehicle was outside the physical scope of area which could be searched incidental to arrest, I find the facts do not support the contention that Mr. Frederickson was merely walking towards his vehicle at the time of arrest. [ 81 ] Cpl. Charron testified that at the moment of arrest Mr. Frederickson had already opened the door to the Yukon and Cst. Charron believed he was about to get into the vehicle. He recalled that Mr. Frederickson was opening the vehicle door when he intercepted and arrested him. It was suggested to Cpl. Charron in cross-examination that he arrested Mr.

Frederickson before he got to the vehicle because police wanted to ensure Mr. Frederickson was not able to flee, however, Cpl. Charron was firm in his recollection that Mr. Frederickson had opened the door before Cpl. Charron arrested him. Cpl. Charron acknowledged he could not 100% remember if Mr. Frederickson had the satchel on him and had placed it in on the driver’s seat prior to his arrest, but he did recall Mr. Frederickson opening the door. [ 82 ] According to Cst. De La Torre, other members were already in the process of arresting Mr.

Frederickson when he arrived because he had been parked further down the street. Cst. De La Torre recalled Mr. Frederickson was arrested as he was getting into the vehicle and that the vehicle door was already open when Cst. De La Torre arrived. In cross examination he confirmed the vehicle door was not opened by a police officer. [ 83 ] I accept the evidence of both Cst. Charron and Cst. De La Torre that at the time Mr. Frederickson was arrested, he was getting into his vehicle and had opened the door to that vehicle. [ 84 ] In my view, given police had observed Mr.

Frederickson driving that vehicle over two days’ of surveillance, he was the last person seen driving it, and he was getting into it at the time he was arrested, the Yukon was within his immediate surroundings at the time of his arrest and Mr. Frederickson was sufficiently connected to that place to justify a search of it incidental to arrest. Delay in the Search [ 85 ] Mr.

Frederickson further argues that once the vehicle was towed to the detachment and an hour had passed, enough time and distance had passed such that the search of the vehicle could no longer be properly characterized as being conducted incidental to arrest and police should have obtained a warrant prior to conducting that second search. [ 86 ] Cpl. Charron and Cst.

De La Torre testified that the vehicle was towed due to the poor lighting conditions at the arrest scene, they wanted to conduct the search in better light, and they believed the search in the secure bay was a continuation of the earlier search of the vehicle incidental to arrest. [ 87 ] In Caslake , the Supreme Court stated “the Court should be reluctant to set a strict limit on the amount of time that can elapse between the time of search and the time of arrest” (at par. 16).

In Caslake , the accused was arrested in his car which was the same car earlier observed near the place where a large bag of marijuana had been found. The Court held that had police searched the accused’s car “even hours later, for the purpose of finding evidence which could be used at the appellant's trial on the charge of possessing marijuana for purpose of trafficking, this would have been well within the scope of the search incident to arrest power, as there was clearly sufficient circumstantial evidence to justify a search of the vehicle” (par. 26). [ 88 ] More recently in R. v.

Nolet , 2010 SCC 24 , the Supreme Court found that a police search of a trailer two hours after the arrest of the tractor-trailer driver for possession of proceeds of crime was a valid search incidental to arrest. The delay in searching the trailer was due to the vehicle being impounded in the RCMP yard in the middle of the night. The Court found that given the accused were under arrest for possession of the proceeds of crime, it was clearly "incidental" to this arrest to search the vehicle in which the cash was found for evidence of the criminal activity to which the money related.

The Court further held that the lapse of two hours between the roadside arrest and the search of the trailer did not undermine the close causal and spatial connection between the arrest and the search. The important consideration was the link between the location and purpose of the search and the grounds for the arrest ( Nolet , at par. 49 ). [ 89 ] As the Court stated in Caslake , delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference.

However, that inference may be rebutted by a proper explanation ( Caslake at par. 25 ). [ 90 ] I find the police provided a proper explanation for delaying the search of the vehicle. They started the search of the Yukon at the scene where Mr. Frederickson was arrested, they found it was dark, and they towed the vehicle to a secure bay in the detachment where there was better lighting to complete the search. The search was delayed by around one hour. In my view, this movement of the vehicle and delay of the search did not undermine the close causal and spatial connection between the arrest and the search.

Conclusion [ 91 ] I find the warrantless search of the Yukon was justified as lawful search incidental to arrest, and as such, was not conducted in a manner which violated Mr. Frederickson’s s. 8 Charter rights. His application to exclude evidence of the products of the search of the Yukon is dismissed. Issue #3: Was The Warrantless Search Of The Cell Phone Unreasonable? [ 92 ] The search of a cell phone incidental to arrest still requires that the search be truly incidental to arrest and is carried out for a valid law enforcement purpose, such as public safety or discovering or preserving evidence.

The Crown bears the burden of establishing

that the search incident to arrest was lawful. [ 93 ] The search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other "places.” The search of a cell phone has the potential to be a much more significant invasion of privacy than the typical search incident to arrest. Accordingly, the general common law framework for searches incident to arrest is modified in the case of cell phone searches incident to arrest ( R. v. Fearon, 2014 SCC 77 at par. 51 ).

The police power to search a cell phone incidental to arrest is circumscribed by the following criteria: 1. The arrest must be lawful; 2. The search must be truly incidental to the arrest in that the police must have a reason based on a valid law enforcement purpose to conduct the search, and that reason must be objectively reasonable. The valid law enforcement purposes in this context are:

a) protecting the police, the accused, or the public;

b) preserving evidence; or

c) discovering evidence. 3. The nature and extent of the search of the cell phone must be truly incidental to the arrest for the particular offence. Generally speaking, only searches of recently sent or received texts and call logs will be permitted. Law enforcement objectives served by such searches will generally be most compelling in the investigation of particular kinds of offences, which includes drug trafficking (paras. 76 and 79); 4.

The discovery of evidence will only be a valid law enforcement objective when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. It also means, in practice, that the police will have to be prepared to explain why it was not practical in all the circumstances of the investigation to postpone the search until they could obtain a warrant. 5. Officers must make detailed notes of what they have examined on the cell phone.

The record should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. [ 94 ] Cpl. Charron testified that the cell phone was seized by Cst. De La Torre pursuant to his personal search of Mr. Frederickson upon his arrest, and then handed to Cpl. Charron. Upon receiving that phone from Cst. De La Torre he saw there were 15 missed calls on the display “without searching” the phone. The phone was not locked. Cpl. Charron then pressed a button on the phone to “get into” it, and viewed text messages on the phone. Cpl.

Charron searched the phone 10-13 minutes after Mr. Frederickson’s arrest. [ 95 ] Cpl. Charron took notes of what he did and saw with respect to the phone. The first string of texts he reviewed was from someone named “josh” asking to grab “hb30 rock and $100 total.” Cpl. Charron believed “hb” to refer to “half ball”, and “30 rock” to refer to crack cocaine. Cpl. Charron did not search the phone any further and turned it over to the primary investigator. [ 96 ] Cst. Charron testified he searched the phone because when it was handed to him he immediately saw there were 15 missed calls on the display.

The phone was not locked. Cst. Charron explained that based on the observations made during surveillance which he believed to be drug deals, the results of the “pick”, the confidential informant information, having found a large quantity of drugs upon arrest, and seeing 15 missed calls on the display, he believed the messages on the phone would provide evidence of drug trafficking. When asked in cross examination about whether he thought he needed a warrant to search the phone, Cpl.

Charron repeated the facts which supported his belief there would be evidence of trafficking in the phone. [ 97 ] I am satisfied that Cpl. Charron had a valid law enforcement objective in searching the cell phone, namely, the discovery of evidence.

Given the nature of the investigation – drug trafficking - and the number of stops and meetings observed by police during the period of surveillance, there was an objectively reasonable basis to believe that the recent call and text history of the phone may produce evidence of drug trafficking. [ 98 ] However, as set out in Fearon , police may conduct a warrantless search of an arrestee’s cell phone only if it is necessary for safety, to preserve evidence (such as disabling a password so the phone does not “lock” pending warrant), or to discover evidence in circumstances where the investigation will be hampered if the phone is not searched immediately.

In this case, Cpl. Charron’s sole express purpose for searching the phone was to discover evidence of drug trafficking. He did not articulate any circumstances which required that search be conducted immediately and without warrant. The Crown argues that the phone was unlocked and the potential for the phone to lock created the urgency in accessing the text messages, however, Cpl. Charron never attested to any such concern or sense of urgency. He did not suggest the evidence was at risk of being deleted or rendered inaccessible if he did not read the messages right away.

He just believed there would be evidence on the phone, so he searched it. There is no evidence Cpl. Charron reasonably believed the investigation would be “significantly hampered,” or the evidence lost, if the phone was not searched immediately without warrant. [ 99 ] As such, I find the search of Mr. Frederickson’s cell phone incidental to his arrest was conducted in a manner which violated his rights under s. 8 of the Charter . [ 100 ] The manner in which the Crown led evidence of Cpl. Charron’s note taking in connection with the search of the cell phone was unusual.

Rather than adducing hia notes as evidence in the voir dire , Cpl. Charron testified that he took notes, then read his notes viva voce into the record. It was not established that his evidence represented the entirety of his notes, or that he was not supplementing his notes with oral testimony from his own recollection. Mr. Frederickson argues that the Crown failed to discharge its onus to justify the warrantless search of the cell phone, in part, because it did not adduce Cpl. Charron’s actual notes into evidence as contemplated in Fearon . The Crown argues that Cpl.

Charron’s viva voce testimony satisfies this requirement. Neither the Crown nor Defence provided any authorities one way or another about the manner in which this evidence may be adduced. Given I have found the search was

conducted in breach of Mr. Frederickson’s s. 8 rights, I need not make a finding with respect to this issue. [ 101 ] Having found no breach of Mr. Frederickson’s Charter rights with respect to his arrest and the search of the vehicle, I need not consider whether that evidence ought to be excluded pursuant to s. 24(2) of the Charter. Having found Mr. Frederickson’s rights were breached with respect to search the cell phone, I will invite submissions on whether the cell phone or some or all of its contents ought to be excluded pursuant to s. 24(2) of the Charter . ____________________________ The Honourable Judge C. Malfair