R. v. Bloomfield Date:, 2011 BCPC 56

Citation: R. v. Bloomfield Date: 20110304 2011 BCPC 0056 File No: 39573 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LOUIS JAMES BLOOMFIELD REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH Counsel for the Crown: E. Lund & N. Lerfold Counsel for the Accused: J. Deuling Place of Hearing: Penticton , B.C. Dates of Hearing: October 13,14, 2010; March 3, 4, 2011 Date of Judgment: March 4, 2011 I. INTRODUCTION [ 1 ] The accused is charged with possessing cocaine for the purpose of trafficking.

This is the court’s ruling on a voir dire regarding the claim that the Charter rights of the accused under s. 7 (right to liberty and security of person), s.9 (right against arbitrary detention), s.10(a) (right on arrest to be promptly informed of the reason for arrest), s.10(b) (right to retain and instruct counsel without delay), and s. 8 (right to be secure against unreasonable search or seizure) have been breached. II. THE FACTS [ 2 ] Prior to August 2009 the accused was unknown to Penticton police.

He had a prior criminal record, including a conviction in 2007 in Kelowna for possession of a narcotic and also a conviction in 2008 for possession of a narcotic for the purpose of trafficking. In

August of 2009 he was still on probation for the trafficking conviction. These facts are only relevant to the issue of corroboration ofinformant privileged information. [3] On August 25, 2009 Corporal Myhre received source “A” information. This was a known source of known reliability, havinggiven source information at least 100 times prior, often leading to drug seizures and drug charges. Source “A” told Cpl. Myhre that hehad recent first hand knowledge and had seen the accused traffic cocaine. For informant privilege reasons, Cpl.

Myhre testified thatwhen he refers to recent knowledge, he is not prepared to say exactly how recent, but it was at a maximum within the preceding 24hours. Cpl Myhre never made any notes of what the source said, but he testifies that he recalls source “A” said: Louis Bloomfield has recently moved to Penticton and is currently trafficking in cocaine by a dial a dope business. He is in his mid tolate 20’s, skinny, has short dark hair, and lives in the bottom floor of an apartment at the Ellis complex on Hastings and Fairview inPenticton.

Source “A” did not know the dial a dope phone number or the apartment number. [4] Cpl. Myhre claims he shared this source “A” information with Cst. Livingstone and two days later Cst. Livingstone made a“report to Crown”

summary of what Cpl. Myhre told him. On August 27, 2009 Cst. Livingstone received source “B” information. Source “B” is also a known source of known reliability, having given source information 6 times prior, leading to some drug seizuresand charges. Source “B” had been a paid informant in the past. Cst. Livingstone testifies source “B” told him: Louis is around age 27, 5’9” tall, has short dark hair, is clean shaven, has tattoos on both arms, and lives in unit 106 at the EllisApartment complex at 246 Hastings Street in Penticton.

Louis is currently in possession of cocaine and is selling to customers inPenticton in a dial a dope business. He sometimes uses a mountain bike to make deliveries. [5] Later that same day of August 27, 2009 police did a police records check which revealed that Louis Bloomfield was born in 1979(age 29) and it also disclosed his two related criminal convictions and the fact that he was still on probation for the last conviction. Police records also disclosed that the accused had recently told authorities that he lived at #106 – 246 Hastings Street in Penticton. Hisphoto was printed by Cst.

Livingstone and shared with Cpl. Myhre [6] With this information in hand, Cpl. Myhre and Cst. Livingstone jointly believed they had reasonable grounds under s.495 of theCriminal Code to arrest the accused for possession of cocaine for the purpose of trafficking. At 5:15 p.m. on that same day, theyattended at the apartment complex where the accused resided, intending to arrest the accused when he next entered/left the residence. [7] At 5:25pm Cst. Livingstone, from his hidden location within the complex, saw the accused exit unit 106 alone and walk outsidethe complex. Cpl.

Myhre was outside the complex when he saw the accused coming out of the complex and into the parking lot. Cpl.Myhre, dressed in plain clothes, approached the accused from a distance and said: “Hey, Buddy, do you know what time it is?” Theaccused did not respond, perhaps because he is deaf in his right ear. Cpl. Myhre surmised that the accused was younger and faster thanhe was, so Cpl. Myhre did a hard take down of the accused, with one arm around the accused’s neck, pulling the accused to the ground. While the accused was face down on the ground, Cst. Livingstone arrived. Cpl.

Myhre denies ever placing his knee on the back of theneck of the accused, but he agrees it was a hard take down. In the process, the accused received an abrasion to his face. [8] Cst. Livingstone and Cpl. Myhre told the accused that they were police and that he was under arrest for possession of a narcoticfor the purpose of trafficking. They handcuffed the accused, who initially had three bags of cocaine in his right fist. Cst. Livingstontestified that he then chartered and warned the accused from memory, but the accused testifies he does not recall that happening. Theaccused was cooperative.

He was allowed to stand up, walk to the curb and sit down. Within five minutes Cst. Anderson arrived, and atthe instruction of Cst. Livingstone, the accused was placed into Cst. Anderson’s police vehicle. [9] Cst. Livingstone advised Cst. Anderson of the reason for the arrest, and instructed Cst. Anderson to do four things: First, re-arrest the accused for Possession of Cocaine for the Purpose of Trafficking and again Charter and warn him. Second, take the accusedback to the detachment to book him into custody. Third, strip search the accused for illegal drugs as a search incident to arrest.

Fourth,hold off on letting the accused talk to a lawyer until they could decide on whether they would be seeking a search warrant for theresidence of the accused. Cst. Anderson then chartered and warned the accused using a written card. The accused indicated he did wantto speak with a lawyer. At 5:46 p.m. the accused and Cst. Anderson arrived at the Penticton police detachment. [10] At the detachment at 5:50 p.m. the accused was asked, “Who do you want to call for a lawyer?” The accused responded, “JoeDeuling” and he also provided Mr. Deuling’s phone number. Around this same time, Cst.

Anderson had heard from Cst. Livingstonethat no search warrant for the residence of the accused would be sought. [11] At 5:55 p.m. Cst. Anderson took the accused to a private room and conducted the strip search prior to allowing the accused to callhis lawyer. Just the two men were present. The accused took off all of his clothes at the request of Cst. Anderson and each item ofclothing was searched. Cst. Anderson never touched the accused, but he asked the accused to pull up his genitals so that the officercould search for drugs.

Similarly the accused was required to bend over so that the officer could visually search the anus of theaccused. The search of the clothes and the body of the accused took a minute or two, not counting the time it took for the accused toagain get dressed. No evidence was discovered with the strip search. [12] At 5:59 p.m. the accused spoke with his lawyer by phone and that call ended at 6:13 p.m. III.

ANALYSIS [13] Regarding the accused’s Charter right at the scene not to be arbitrarily detained or unlawfully denied his right to liberty andsecurity of the person, the law is now well defined by the Supreme Court of Canada. This was not simply an investigative detention. Under s.495 of the Criminal Code, police needed reasonable grounds for believing the accused had committed, or was about to commit,an indictable offence. The Supreme Court of Canada held in R. v.

Storrey (SCC), [1990] 1 S.C.R. 241 that for anarrest to be valid on the basis of reasonable grounds, it is not sufficient for the officer to just subjectively believe that he has reasonablegrounds for the arrest. Objective grounds also need to exist. In other words, a reasonable person, standing in the shoes of the officer,would believe that reasonable grounds exist to make the arrest. The police need not establish a prima facie case, but police need more

than a mere suspicion or hunch. Once both subjective and objective grounds exist for the arrest, then that lawful arrest is not madeunlawful simply because the police intend to continue their investigation after arrest. [14] On December 7, 1989 the Supreme Court of Canada dealt with this issue in the case of Debot vs. The Queen, 52 CCC(3d) 1989. That accused was charged with possession of methamphetamine for the purpose of trafficking. Police received a tip from an informantwith known reliability that a drug transaction was going to happen at a set time and at a set location.

The informant said the accusedwould be receiving a large supply of drugs at that time. Police set up surveillance of the residence. The accused’s car came and peoplewent into the house and soon left the residence. The accused’s vehicle was stopped, and the accused was arrested for possession for thepurpose of trafficking and the search incidental to that arrest resulted in seizure of the drugs. The court, made it clear what factorsshould consider when trying to determine the reliability of an informer.

At page 215 we read: In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based ona “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by policeinvestigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test.

Rather,I concur with Martin J.A.’s view that the “totality of circumstances” must meet the standard of reasonableness. Weaknesses in one areamay, to some extent, be compensated by strengths in the other two. [15] In Debot, the trial judge had held the search was unreasonable and the accused was acquitted. On appeal, the Crown wassuccessful in establishing that reasonable grounds existed for the arrest and search incidental to arrest. [16] R. v. Garofoli (1990), (SCC), 60 CCC(3d) 161, (SCC) set out the special requirements which apply whereinformation from an informant is relied upon in obtaining a search warrant.

The law regarding reasonable grounds for obtaining a searchwarrant is also relevant to the law regarding reasonable grounds for arrest. Sopinka J. wrote: (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence ofa tip from an informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to “the totality of the circumstances.” There is no formulaic test as towhat this entails. Rather, the court must look to a variety of factors including: (

a) the degree of detail of the “tip”; (

b) the informer’s source of knowledge; (

c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. [17] At trial, for informant privilege reasons, the court rarely hears the exact details of how the informant has first hand knowledge ofthe information provided to the police. In 1990 the SCC case of R. v.

Scott (SCC), [1990] 3 S.C.R. 979, at p. 994, CoryJ. stressed the heightened importance of the rule of informant privilege in the context of drug investigations: The value of informers to police investigations has long been recognized. As long as crimes have been committed, certainly as long asthey have been prosecuted, informers have played an important role in their investigation. It may well be true that some informers actfor compensation or for self-serving purposes. Whatever their motives, the position of informers is always precarious and their role isfraught with danger.

The role of informers in drug related cases is particularly important and dangerous. Informers often provide the only means for thepolice to gain some knowledge of the workings of drug trafficking operations and networks…The investigation often will be based upona relationship of trust between the police officer and the informer, something that may take a long time to establish. The safety, indeedthe lives, not only of informers but also of the undercover police officers will depend on that relationship of trust. [18] In the case at bar, the Source “A” informant was of known reliability.

Source “A” had given source information on narcoticsmatters to police on at least 100 prior times, often leading to drug seizures and drug charges. That is a remarkably high number of timeswhere the tip was never found to be wrong. Source “A” told police that he/she had personally and recently seen the accused traffickingin cocaine (within the prior 24 hours). Source “A” provided the name of “Louis Bloomfield” as the drug dealer and told police Mr.Bloomfield lived on the bottom floor at the Ellis apartment complex in Penticton. This was compellingly credible information.

I acceptthat this is what the informant told Cpl. Myhre, notwithstanding the corporal did not make any notes. It is reliable because Cpl. Myhreimmediately passed on this information to Cst. Livingstone and two days later Cst. Livingstone reported this information in the report toCrown. It is also reliable because the facts given by the informant were not overly complicated. The recording of immediate notes nodoubt will help avoid the pitfall of constructive memory and potential diminished reliability. That being said, it is not a pre-requisite thatpolice must have a written note of all their evidence.

The notes are for the purpose of aiding memory, but in this particular case, I acceptthe evidence of Cpl. Myhre as being reliable regarding what this informant said. Yet standing alone, this tip needed corroboration beforeit could justify an arrest. [19] Corroboration came in the form of Source “B” who was also of known reliability, having given reliable source information sixtimes prior, leading to drug seizures and charges. Source “B” was thought to be sufficiently reliable that he/she had been paid in the pastfor his/her information. Source “B” provided compelling and credible first hand information.

Source “B” claimed recent personalknowledge of the accused “currently” having possession of cocaine which he is selling. Source “B” confirmed the unit number of theapartment of the accused, and added that the accused often used his mountain bike when making the drug deliveries. [20] Police then sought and obtained further corroboration in the form of learning the accused had two drug related criminalconvictions and was still currently on probation for a “possession for the purpose of trafficking” conviction. They learned the physical

description of the accused provided by the two informants matched the description recorded on police records and they learned that theaccused had recently told police that he resided at the apartment in question. [21] There were two unrelated, yet credible tips of people with first hand knowledge, and those two tips corroborated each other. Ifind that this, coupled with the further corroboration found in police records, met the Depot test of being credible, compelling andcorroborated.

In other words, I believe any reasonable person, in the shoes of the police, would reasonably believe the availableinformation was sufficient for authorizing a warrantless arrest of the accused under s.495 of the Criminal Code. I say this in spite of thefact that there was no police surveillance of any drug transaction or suspicious activity. [22] I do not find that it has been established that the hard take down of the accused at the time of the arrest was contrary to hisCharter right of security of the person. No more force was used that was reasonable in the circumstances. [23] I find no s.10(

a) Charter breach against the accused. He was forthwith informed of the reason for his arrest, and out of anabundance of caution, he was again shortly thereafter informed of the reason for the arrest. The accused had three baggies of powdercocaine in his right fist at the time he was arrested, so it is hard to imagine that he did not understand the reason for his arrest.

I canaccept that the accused, with his deaf right ear, may not have heard the police initially say that the accused was under arrest forpossession of cocaine for the purpose of trafficking, but that does not create a Charter breach, especially in circumstance where five orsix minutes later he was again told of the reason for the arrest. There simply is no air of reality to any s.10(

a) breach claim. [24] Similarly, I find no s.10(

b) Charter breach of the accused at the scene. I accept that immediately following his arrest, theaccused was told of his right to counsel. Those rights were again repeated a few minutes later when Cst. Anderson arrived. The accusedmade it clear that he wanted to talk to a lawyer.

It was not unreasonable for that call to be postponed until the accused could make aprivate call at the police detachment. [25] Having found there were reasonable grounds for arresting the accused, and having found that no unreasonable force was used atthe time of the arrest, and having found that the accused was properly told of the reason for the arrest and of his right to retain andinstruct counsel, I find that his s.7, 8 and 9, 10(

a) and 10(

b) Charter rights were not breached at the scene. [26] At first blush, it seemed problematic that Cst. Livingstone instructed Cst. Anderson to hold off on letting the accused speak witha lawyer until the police could decide on whether they would be seeking a search warrant of the residence of the accused. That wouldnot be a legitimate reason for delaying the right of the accused to speak to a lawyer. Yet from a practical point of view, this did not infact delay the call to the lawyer. Cst. Livingstone informed Cst.

Anderson within a few minutes that the police had decided againstattempting to obtain a search warrant so that reason ended up not delaying any call to counsel. I would only find a breach of the 10(b)Charter rights of the accused if the purpose of the strip search was to buy time to delay allowing the accused the opportunity of speakingwith his lawyer. This begs the question of whether there was any bona fide reason for the strip search. If there was, then it was notunreasonable to allow the strip search incident to arrest to be completed before the call to counsel was made.

That is implied in theexpression, “incident to arrest.” [27] The law dealing with strip searches is best articulated by the Supreme Court of Canada case of R. v. Golden 2001 SCC 83, [2001] 3 S.C.R. 679. That case involved an accused who was strip searched in circumstances where a plastic wrap containing10 grams of cocaine was seen protruding from between the buttocks of the accused. The original conviction was overturned by theSupreme Court. The court did not have a problem with the lawfulness of a strip search, but rather, with the manner in which the stripsearch was carried out.

The court went on to set up a number of recommendations for police when conducting strip searches : In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches areonly constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discoveringweapons in the detainee’s possession or evidence related to the reason for the arrest.

In addition, the police must establish reasonableand probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest. Where thesepreconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a mannerthat does not infringe s. 8 of the Charter... In this connection, we find the guidelines contained in the English legislation, P.A.C.E. concerning the conduct of strip searches to be inaccordance with the constitutional requirements of s. 8 of the Charter.

The following questions, which draw upon the common lawprinciples as well as the statutory requirements set out in the English legislation, provide a framework for the police in deciding how bestto conduct a strip search incident to arrest in compliance with the Charter: 1. Can the strip search be conducted at the police station and, if not, why not? 2. Will the strip search be conducted in a manner that ensures the health and safety of all involved? 3. Will the strip search be authorized by a police officer acting in a supervisory capacity? 4. Has it been ensured that the police officer(

s) carrying out the strip search are of the same gender as the individual being searched? 5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances? 6. What is the minimum of force necessary to conduct the strip search? 7. Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observethe search? 8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed atany one time?

9. Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact? 10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional? 11.

Will a proper record be kept of the reasons for and the manner in which the strip search was conducted? ...Furthermore, the factors set out above ensure that when strip searches are carried out as an incident to arrest, they are conducted in a manner that interferes with the privacy and dignity of the person being searched as little as possible.

Attention to these issues will also ensure that the proper balance is struck between the privacy interests of the person being searched and the interests of the police and of the public in preserving relevant evidence and ensuring the safety of the police officers, detained persons and the public. We conclude therefore that the common law of search incident to arrest, which permits strip searches, does not violate s. 8 of the Charter. [ 28 ] In the case at bar, the police officer conducting the search was unaware of the written police policy regarding how to properly carry out a strip search.

That policy follows the recommendations set out in the Golden case. Cst. Anderson unknowingly followed eight of those eleven recommendations, but did not follow the other three. The three recommendations not followed were: First, authorization from the supervisor officer Cpl. Myhre was never requested. It was Cst. Livingstone that directed the search, and Cst. Livingstone was not the superior officer on duty. Cpl. Myhre was never asked whether he would have authorized the strip search. Second, the policy regarding not removing all of the clothing at the same time was not followed. Cst.

Anderson had the accused remove all of his clothes and the accused was totally naked for a minute, although it was in a private location with just the two men present. Third, Cst. Anderson failed to follow the policy of providing a written report on the manner in which the strip search was carried out. That having been said, Cst. Anderson was respectful to the accused throughout the search, and he never touched the accused. [ 29 ] I find that the police did have reasonable and probable grounds for conducting the strip search.

The accused had just been caught with three baggies of powder cocaine in his fist, with $525 Canadian and $50 American currency in his wallet and a cell phone in his front pocket. Police had reasonable grounds for arresting the accused for possessing the cocaine for the purpose of trafficking. Police had good reason for believing that the accused was involved in a “dial a dope” operation. Cst. Livingstone articulated his reason for a strip search as follows: I informed Constable Anderson of the nature of the arrest. I informed him of the kinds of—the exhibits that—the articles I seized from the person of Mr.

Bloomfield. I articulated the fact that during his search the only controlled substances that I was able to locate were the ones in his hand, and that I felt that a further search for further evidence would be necessary in this case back at the detachment. The reasoning behind that is that, in my experience as a drug investigator, people that traffic drugs, especially those that, you know, have a history of it, are very secretive.

Drugs are very small items, they’re very easily hidden, both inside and underneath clothing, and in my opinion due diligence, in the interest of potential evidence—loss of potential evidence, a strip search was necessary in this case, and I advised Constable Anderson of that. [ 30 ] I find that reasonable grounds existed which made the strip search lawful. I further find that the strip search was carried out in a dignified and private manner back at the police station, notwithstanding that the strip search more properly should have not had all the clothes removed at the same time.

From a practical point of view, police in Penticton should be made aware that officers conducting such a police search ought to get the permission of their superior officer, and they ought to be reminded of the written police policy regarding how to carry out that search.

I also add by way of obiter that even if this strip search would have been conducted contrary to s. 8 of the Charter , given no evidence was seized from the search, it is not likely that other real evidence gathered several minutes earlier back at the scene would have been inadmissible under section 24(2) of the Charter, following the logic set out in the more recent Supreme Court of Canada case of Grant . IV. CONCLUSION [ 31 ] I find that there was no s. 7, 8, 9, 10(

a) or 10(

b) Charter breach of the rights of the accused. ________________________ R.R. Smith, P.C.J.