R. v. Simon Date:, 2016 BCPC 260

Citation: R. v. Simon Date: 20160620 2016 BCPC 260 File No: 36981-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANTHONY SIMON RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J. P. MACCARTHY Counsel for the Crown: T. McFadgen Counsel for the Defendant: R. Drury Place of Hearing: Duncan , B.C. Date of Hearing: June 20, 2016 Date of Judgment: June 20, 2016

Introduction [ 1 ] THE COURT: Anthony Simon is before this court charged with an offence on Information 36981 that on or about the 16th of July, 2015, he did unlawfully possess a controlled substance, namely, marihuana, in an amount not greater than 30 grams. That is contrary to s. 4(1) of the Controlled Drugs and Substances Act. Matters have been conducted by way of a voir dire to this stage. [ 2 ] Crown called its sole witness, being Corporal Lougheed. The evidence provided by Corporal Lougheed deals with the marihuana which was seized by her when she was performing a curfew check on Mr. Simon at his residence.

The accused has applied for exclusion of this evidence under s. 24 of the Charter of Rights on the grounds that Mr. Simon's s. 8 rights were violated in the obtaining of this evidence and that its admission in this trial would bring administration of justice into disrepute. [ 3 ] There is no issue that the arrest of Mr. Simon was a lawful arrest. It is common ground that the search that was conducted of the residence occupied by Mr. Simon at the time of that arrest was a warrantless search. Hence, the Crown must demonstrate that the warrantless search was reasonable in the circumstances.

Circumstances [ 4 ] Based on the evidence provided by Corporal Lougheed in the voir dire, she is an 18-year veteran of the Royal Canadian Mounted Police. She is attached to the Duncan/North Cowichan detachment of the RCMP. On July 16, 2015, she was dispatched for the purposes of conducting a curfew check on Mr. Simon. Mr. Simon had been released on a recognizance of bail in connection with unrelated charges. That recognizance of bail contained conditions which provided for a curfew for Mr.

Simon which commenced at 10:00 p.m. each day. [ 5 ] Corporal Lougheed travelled approximately 10 minutes from the RCMP detachment to an area outside of the main population centre of Duncan/North Cowichan and to an area on Drinkwater Road. The area was described as being rural in nature and surrounded by various industrial sites. [ 6 ] Corporal Lougheed testified that she drove down a driveway into an area with which she was unfamiliar. The features of this rural property included bushes on the right and left and, when she arrived at the area where she understood Mr.

Simon resided, she observed a large shed building and a recreational vehicle some 25 feet in length. The recreational vehicle appeared to be, as I understand it, the residential accommodation for Mr. Simon. Corporal Lougheed was aware of that based on information that she had been previously provided before attending at this location. [ 7 ] She noted that as she approached the recreational vehicle, the door was open and Mr. Simon leaned out and acknowledged her presence. Mr.

Simon apparently had been the subject matter of several previous curfew checks and, according to the observation made by Corporal Lougheed, did not appear to be surprised at her presence. [ 8 ] It was as she was approaching towards Mr. Simon, Corporal Lougheed identified the smell of vegetative marihuana. She believed that at that time that Mr. Simon was bound by various conditions in his recognizance.

Part of those conditions would prohibit him from the possession of any controlled drugs and substances as set out in s. 2 of the Controlled Drugs and Substances Act. [ 9 ] Based on her detection of the smell of vegetative marihuana, she informed Mr. Simon that she was arresting him. She placed her arm on him and guided him down from the doorsill of the recreational vehicle and brought him down to the ground level, at which point, she handcuffed him with his hands behind his back. According to her evidence, she then took necessary steps in order to ensure her own safety.

That included climbing up and peering in briefly through the open entrance of the recreational vehicle. [ 10 ] From her vantage point leaning into the recreational vehicle, she was able to observe three items on the kitchen table approximately six to 10 feet away from her. One of those items was a sealing jar which contained what she believed to be marihuana in a vegetative form. She also was able to observe two glass bongs which she described as being devices used to smoke marihuana. She could smell the odour of burned marihuana on the bongs.

Based on both her observation of the items on the table and the smell of both the vegetative marihuana and the burned marihuana, she concluded that what she was viewing was, in fact, marihuana. [ 11 ] Corporal Lougheed has had extensive experience in drug investigations. During a period of her service with the RCMP, she was part of a drug enforcement squad in the Okanagan area. She testified that she has had hundreds of cases involving seizures and dealing with people in possession of marihuana. As a result of her observations, she seized the jar of marihuana.

She did not seize the two bongs and left those in the recreational vehicle. [ 12 ] She then escorted Mr. Simon back to the police vehicle and placed him in the police vehicle. At that point, she had performed a formal Charter warning and police warning of Mr. Simon and she further explained to him that he was being arrested and detained for both the possession of a controlled substance and for the breach of his bail conditions. She took Mr.

Simon to the local detachment of the RCMP arriving there at approximately 10:32 PM. [ 13 ] In examination in chief and on cross-examination, Corporal Lougheed provided information concerning the steps that she had taken and the reasons that she had taken them in order to peer into the recreational vehicle and also why she had not felt it necessary to obtain a search warrant before entering into the recreational vehicle (the “RV”). The explanation that was provided by Corporal Lougheed was to the effect that the steps that she took were in order to ensure officer safety and were consistent with her training.

She made a specific comment that RCMP training is based on an assumption that if there is one person present, there may be a second person present and that if there is one weapon present, there is a possibility of a second weapon present. [ 14 ] There were no weapons detected or found on Mr. Simon. He was described as being cooperative throughout and compliant with the directions given by Corporal Lougheed.

[15] The further evidence given by Corporal Lougheed was to the effect that the safety inspection of the RV was necessary becauseshe would be walking Mr. Simon back to her police vehicle and would be vulnerable if there were any person behind her with a weapon. Specifically she would not be able to observe that individual and she would have been subject to a possible surprise encounter with suchan individual. [16] In her evidence, Corporal Lougheed made it clear that she did not conduct a further search of the RV other than to lean in andpeer.

She was able to observe most of the living area from the vantage point near the entrance to the RV and from there the area close athand which led to the observation of and the seizure of the jar of marihuana. She did not search any other portion of the RV, but leftimmediately thereafter. [17] She did indicate that when she had placed Mr. Simon into the police car, as I understand it, she conducted a brief walk-aroundof the recreational vehicle.

She said that at the time that she had made the decision to conduct a safety search that she had not drawn anyconclusions as to the possibility of an outdoor grow-op being carried on. She did indicate that the smell of vegetative was very strong,using the terms, "The smell was really strong and not proportionate” to what she was able to observe in the trailer. [18] In her evidence, Corporal Lougheed did indicate that the jar of marihuana and the bongs were sitting in plain view.

So far asCorporal Lougheed did determine there were no other persons present in or about the recreational vehicle or in the shed area surroundingor adjacent to the recreational vehicle. Position of Defence on the Application [19] Defence argues that there was no basis for the warrantless search that was conducted by Corporal Lougheed. It is the furtherposition of defence that given the fact that it was obvious to Corporal Lougheed that the recreational vehicle was the residence of theaccused, Mr. Simon, that there was a high expectation of privacy.

Accordingly, it is defence's position that Crown must justify thewarrantless search. In that regard, defence takes the position that the means by which Crown seeks to justify the warrantless searchsimply are not able of supporting the reasonableness of that search. [20] In anticipation of Crown’s argument, defence says that to argue that the search was incidental to arrest is in violation of theconcept of a reasonable search because the search conduct overreached what was necessary or should have occurred in thesecircumstances.

The evidence which defence relies upon is the fact that the police officer had already managed to secure the detention ofthe accused and had handcuffed him. [21] There was no reason for the police officer to believe either subjectively or objectively that there was anybody else inside therecreational vehicle. Hence, there was no requirement to conduct any observations inside the recreational vehicle.

Defence submits thata more appropriate step would simply be to move away from the recreational vehicle and escort the accused to the police vehicle andthen depart. [22] The argument further made by defence is that the plain view doctrine being relied upon by the Crown does not protect thepolice from engaging in any illegal searches. In this case, the argument is made that the officer did not articulate any safety concernsother than relying upon her training.

In other words, what defence suggests is that simple RCMP policy to ensure officer safety bymaking observations goes beyond what would have been necessary in these circumstances in order for the officer to assure herself of hersafety and safe circumstances and to allay any safety concerns. [23] Hence, defence says that the search was unreasonable and that the mere fact that the marihuana was observed in plain view doesnot save the exclusion of this evidence as a result of the violation of the s. 8 rights of the accused. Position of the Crown on the Application [24] In submissions, Crown says in

summary that the search that was conducted in this particular matter is saved both by thereasonableness of the warrantless search, on one hand, and secondly, on the basis of the plain view doctrine. In Crown's submission, it isimportant that for the search to be reasonable, and for the officer conducting that search to have a valid subjective and a valid objectivebasis for the warrantless search.

In this regard, Crown says that the search was incidental to the arrest and, accordingly, was, by virtue ofwhat took place at that time, and in those circumstances, reasonable. [25] In support of the general position advanced by Crown, reliance is placed on the Supreme Court of Canada decision in R. v.Caslake, (SCC; [1998] 1 S.C.R. 51. In the Caslake decision, Chief Justice Lamer writing for the majority laid out anumber of tests that must be followed when dealing with search and seizure.

Starting at paragraph 12 of that decision, the Chief Justicenoted that in order to be reasonable, searches and seizures must be authorized by law. [26] The Supreme Court established that there are three ways on which a search can fail to meet the requirement noting, first of all,the state authority conducting the search must be able to point to a specific statute or common law rule that authorizes the search.

If theycannot do so, then the search cannot be said to be authorized by law. [27] The second way in which the search can fail is if the search is not carried out in accordance with procedural and substantiverequirements that the law provides; in that regard, a failure to meet any procedural or substantive requirement will result in a searchwhich has not been authorized by law. [28] The third point made by the Supreme Court is that the scope of a search is limited to the area and to those items for which thelaw has granted the authority to search.

The Supreme Court is clear that to the extent that a search exceeds those limits, it is thereforenot authorized by law. [29] As noted above, in the case before me, Crown, is relying on the common law power of search incident to arrest to provide thelegal authority for the search. At paragraph 13 of the Caslake decision, the court deals with that principle and, specifically, the ChiefJustice makes mention and refers to the case of R. v. Cloutier, a previous decision of the Supreme Court of Canada, cited as Cloutier v.

Langlois, (SCC), [1990] 1 S.C.R. 158. [30] That decision for a unanimous court, written by Madam Justice L’Heureux-Dubé, indicates that it is an exception to theordinary requirements for a reasonable search when a search is being conducted incident to arrest. Therefore, the reasonable search mustarise from the fact that there is an arrest and that the arrest is a legal arrest and it is justifiable because the arrest itself requiresreasonable and probable grounds under s. 494 of the Code or under an arrest warrant under s. 495.

However, since the legality of asearch is derived from the legality of the arrest, if the arrest is found later to be invalid, then the search will also be held to be invalid. [31] The Chief Justice goes on at paragraph 14 of Caslake to indicate that the Cloutier case recognized the potential breadth of thepolice power of search incident to arrest and noted as follows, and I quote: In Cloutier, L’Heureux-Dubé J. also recognized the potential breadth of this police power.

She held that the court must balance thestate’s interests in law enforcement and the protection of the police against the arrested person’s interest in privacy in order to determinewhether a search was a reasonable and justifiable use of the police power. She then set out three important limits on the power to searchincident to arrest (at p. 186): 1. This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that thelaw can be effectively and safely applied without a search, the police may see fit not to conduct a search.

They must be in a position toassess the circumstances of each case so as to determine whether a search meets the underlying objectives. 2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be athreat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused.

Thepurpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for exampleif the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions. 3. The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint shouldbe proportionate to the objectives sought and the other circumstances of the situation.

If all three of these conditions are met, and the arrest itself is lawful, the search will be “authorized by law” for the purposes of s. 8 ofthe Charter. In the case at bar there is no allegation that the arrest was unlawful or that the search was abusive. Rather, the problem inthis case is that the objective and scope of the search exceeded its permissible limits. [32] It is those same conditions that Crown says apply in this case.

Crown says that the key factor that this court must decide iswhether or not the second limits, namely that the search must be for a valid objective in pursuit of the ends of criminal justice and such asthe discovery of an object that may be a threat to the safety of the police, the accused, or the public, or that may facilitate escape or act asevidence against the accused is what, in fact, what we are dealing with in this case. [33] Specifically, it is the safety of the police officer who was involved in the arrest of Mr.

Simon which should, in Crown's views,trump the privacy concerns and permit the search to be conducted incident to arrest and to permit the police officer to make observationsby leaning into the recreational vehicle which the accused was occupying and where he was arrested either at the very top of the stairs orat the doorway leading into the recreational vehicle. [34] At paragraph 19 of the Caslake, again referring to the Cloutier decision, Chief Justice Lamer says as follows, and I quote: 19 As L’Heureux-Dubé stated in Cloutier, the three main purposes of search incident to arrest are ensuring the safety of the policeand public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can beused at the arrestee’s trial.

The restriction that the search must be “truly incidental” to the arrest means that the police must beattempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police werelooking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposesfor a valid search incident to arrest in mind when the search is conducted.

Further, the officer’s belief that this purpose will be served bythe search must be a reasonable one. 20 To be clear, this is not a standard of reasonable and probable grounds, the normal threshold that must be surpassed before asearch can be conducted. Here, the only requirement is that there be some reasonable basis for doing what the police officer did. [35] In this case, Crown says that the steps taken by the police officer were both objectively and subjectively reasonable and that thesearch that was conducted was only for the purposes of assuring officer safety.

Hence, the search that was conducted incident to arrestwas reasonable in these circumstances. [36] Crown then goes on to say that if the search was reasonable, in the circumstances, that the plain view doctrine then becomesoperative. In that regard, Crown makes reference to the decision of R. v. Gibson, 2003 BCSC 1572. At paragraph 18 of that decision,Mr. Justice Halfyard provides the following

summary which I find very useful: I next consider the plain view doctrine. This rule of law permits the police to seize evidence that is in plain view if certain conditions areproved. As I read the authorities, the elements that are essential to the application of this doctrine are the following. (This is myparaphrasing.) First, that the police officer had lawful, prior justification for his or her intrusion into or presence at the place where theevidence was found.

Second, that the police officer discovered the evidence inadvertently while in the course of exercising a lawfulpolice power or performing a lawful police duty. Third, that the evidence was in plain view in the sense that it was detected through theunaided use of the police officer's senses.

Fourth, that it must have been immediately apparent to the police officer that the evidence wasprobably connected with criminal activity. [37] With respect to that test, Crown submits that the first requirement has been met, that the purpose for Corporal Lougheed beingat the accused's residence was for the purposes of conducting a lawful curfew check.

[ 38 ] With respect to the second aspect of the plain view doctrine, Crown says that Corporal Lougheed was in the process of arresting the accused based on the smell of vegetative marihuana and thereafter was performing the safety check when she inadvertently observed the marihuana jar and the bongs sitting on the table in the kitchen. According to Crown's submission, this is not a case where, Corporal Lougheed, overreached by conducting a search by pulling through or rummaging through closets or drawers.

She was able to make the observation immediately by leaning in through an open door and viewing the items on the table, namely, the marihuana and the bongs. [ 39 ] The third element of the plain view doctrine is satisfied, says Crown, by the fact that the items in question were only six to 10 feet away from the door entrance, the view of the police officer was not obstructed by anything, and that based on her 18 years of experience and a significant number of events dealing with marihuana enforcement, she was able to draw on that background and her "abundance of familiarity" in order to make a determination that the items in question were, in fact, marihuana.

She was able to do this with the unaided use of her senses. [ 40 ] With respect to the fourth essential element of the plain view doctrine, Crown says that the fact that the marihuana is still at this point a controlled substance makes it clear that there was the possibility apparent to the police officer that this marihuana was probably connected with a criminal activity.

In addition to that, the mere fact that the accused was bound by terms and conditions which prohibited him from the possession of that controlled substance again supports the notion that there was evidence that it was connected with some level of criminal activity. [ 41 ] Hence, Crown says that the search that was conducted was reasonable in all of the circumstances and properly incidental to arrest and, secondly, that the fact that the items were in plain view permits the seizure of those items to occur. Analysis [ 42 ] In this case, the accused is the person alleging a violation of his Charter rights.

I accept that defence does bear the burden of proving that violation. I also accept the proposition that because a warrantless search is prima facie unreasonable, and that once a warrantless search has been demonstrated then the Crown then bears the burden of showing that the search was on the balance of probabilities reasonable; [ see Caslake at paragraph 11] . [ 43 ] Caslake also stands for the proposition set out in paragraph 15 of that decision that the scope of a search incident to arrest can refer to many different aspects of the search. It can, for example, refer to items seized during the search.

It also can refer to the place to be searched. [ 44 ] In this case before me, I am of the view that the search was conducted in a reasonable fashion and it was based on a search incident to arrest within a reasonable scope. I am of the view that what was observed by the police officer was in plain view and that the search that was conducted was for the express and specific purposes of assuring officer safety. [ 45 ] The Supreme Court of Canada in R. v.

Caslake says at paragraph 17 that all of the limits on search incident to arrest are derived from the justification for the common law power itself, namely searches which derive their legal authority from the fact of the arrest must be truly incidental to that arrest. Caslake also makes it very clear in that paragraph that the authority for the search does not arise as a result of a reduced expectation of privacy of the arrested individual.

Rather, as noted above, it does arise out of a need for the law enforcement authorities to gain control of things or information and that, in so doing, that outweighs the individual's interest in privacy. At the end of paragraph 17 of Caslake, various reports of the Law Reform Commission of Canada are cited, as well as Working Papers on police powers of search in law enforcement. The Supreme Court concludes with and states the proposition simply as: “the search is only justifiable if the purpose of the search is related to the purpose of the arrest”.

Conclusion [ 46 ] In this case, I am of the view that it was a justifiable search because its purpose was related to the purpose of the arrest, all as submitted by Crown. Further I am satisfied that the test as set out in Gibson with respect to the plain view doctrine has been met for the reasons cited by Crown. Accordingly, I am of the view that the application of defence to exclude the evidence is to be dismissed. [RULING ON VOIR DIRE #1 CONCLUDED]