R. v. Karaim, 2019 BCPC 286

Citation: R. v. Karaim 2019 BCPC 286 Date: 20191204 File No: 40174-1 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALINA KARAIM REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: J. Farenholtz Counsel for the Defendant: B. Movassaghi Place of Hearing: Courtenay , B.C. Dates of Hearing: November 22, 2019 Date of Judgment: December 4, 2019 The Issue [ 1 ] Ms.

Karaim is charged with several offences, the one pertinent to the present issue being possession of illicit drugs for the purpose of trafficking. [ 2 ] In a decision which I rendered on November 19, 2019, I concluded that a search conducted by Sergeant Chubey of the RCMP was not authorized either as a search incidental to arrest or by virtue of the “plain view doctrine”: R v. Karaim 2019 BCPC 275 ; [2019] BCJ No. 2257 . During that search, Sergeant Chubey found quantities of methamphetamine, MDMA, heroin and fentanyl in certain bags and parcels alleged to belong to Ms. Karaim.

The present question is whether evidence of the finding of the drugs is admissible in

support of the allegation that Ms. Karaim was in possession of drugs for the purpose of trafficking. The Facts [3] A

summary of the facts is found in my earlier decision, cited above. [4] Two points are of particular significance, and so bear repetition. 1. The sequence of events in issue was initiated by a telephone call to the RCMP from a Mr. LaFond, who complained that Ms.Karaim had assaulted him with a baton and damaged his vehicle with the same instrument. He told the police dispatcher that Ms.Karaim was a drug dealer, and that he had been driving her on her rounds earlier that day. 2. Sergeant Chubey found the bags in the rear of a taxi. There were three occupants of the taxi, Ms. Karaim, Mr.

Sherwin (forwhom there was an unexecuted warrant of arrest) and the taxi driver (who is not suspected of any complicity in any crime). [5] In my earlier decision, I pointed out that Sergeant Chubey had not explained how he knew the crystalline substance which hefound under the baton to be methamphetamine. When the hearing resumed, Mr. Farenholtz asked him about that. His responseconsisted of several sentences, which may be fairly summarized as “I know methamphetamine when I see it.” [6] It is not proven, at this stage of the trial, that the bags in which the drugs were found belonged to Ms.

Karaim, although somedocuments personal to Ms. Karaim were found in the bags. It is to be noted that Ms. Karaim has no standing to complain of the searchunless the bags were hers. However, even if the bags were hers, it does not necessarily follow that the drugs were hers also. Governing Principles [7] The leading authority is R v. Grant 2009 SCC 32 , [2009] 2 SCR 353, which was summarized by Justice Frankel in Rv. Reddy 2010 BCCA 11; [2010] BCJ No. 49; 251 CCC (3d) 151 @ paragraphs 91 – 94, as follows: 91. The Grant factors are succinctly stated at paragraph 71 of that decision.

In deciding whether to admit or exclude evidence, a courtmust now assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious statemisconduct); (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rightscount for little); and (3) society's interest in the adjudication of the case on its merits. See also: Harrison at para. 2 92.

With respect to the first factor -- seriousness of the breach -- the greater the level of state misconduct, the greater will be the need ofthe courts to disassociate themselves from that conduct. Wilful or reckless disregard for Charter rights will, therefore, tend to supportexclusion: paras. 71-74. Further, as the Chief Justice and Charron J. noted (at para. 75): "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.

However,ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with goodfaith: [citations omitted]. 93. As for the second factor -- impact of the breach on the accused -- it was observed that "[t]he impact of a Charter breach may rangefrom fleeting and technical to profoundly intrusive". The more serious the impact is on the rights of the accused, the more likely it willbe that exclusion is warranted: paras. 76, 77. 94.

The last factor -- society's interest in a decision on the merits -- involves the question of "whether the truth seeking function of thecriminal trial process would be better served by admission of the evidence, or by its exclusion": para. 79. The reliability of the evidenceis an important consideration, as is the importance of the evidence to the truth-seeking function of the trial.

Although "seriousness of theoffence" remains a consideration, it has far less importance than under the Collins/Stillman framework, because s. 24(2) focuses on thelong-term implication for the repute of the administration of justice, and not the public's short-term desire for a conviction: para. 84. [8] At paragraphs 79 – 84 of Grant, Chief Justice McLachlin and Justice Charron said (citations omitted) 79. Society generally expects that a criminal allegation will be adjudicated on its merits.

Accordingly, the third line of inquiry relevant tothe s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of theevidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are broughtto trial and dealt with according to the law" ….

Thus the Court suggested in Collins that a judge on a s. 24(2) application should considernot only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing toadmit the evidence. 80. The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence isadmissible regardless of how it was obtained … is inconsistent with the Charter's affirmation of rights.

More specifically, it isinconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of theevidence. 81. This said, public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidenceis an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the

reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neitherthe accused's interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidencemay undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing theadministration of justice into disrepute …. 83. The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry.

LikeDeschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence ofquestionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case againstthe accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration ofjustice where the remedy effectively guts the prosecution. 84. It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue.

Indeed,Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society's interest in itsprosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cutboth ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how peopleview the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus.

As pointed out inBurlingham, the goals furthered by s. 24(2) "operate independently of the type of crime for which the individual stands accused" (para.51). And as Lamer J. observed in Collins, "[t]he Charter is designed to protect the accused from the majority, so the enforcement of theCharter must not be left to that majority" (p. 282). The short-term public clamour for a conviction in a particular case must not deafen thes. 24(2) judge to the longer-term repute of the administration of justice.

Moreover, while the public has a heightened interest in seeing adetermination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is abovereproach, particularly where the penal stakes for the accused are high. [9] In R v. Janzen 2019 BCSC 256, Justice Fitzpatrick said @ paragraph 105: The court must weigh and balance all three factors to determine whether, on the whole and having regard to all the circumstances,admitting the evidence would bring the administration of justice into long-term disrepute.

The enquiry is objective, taken from theperspective of a reasonable person informed of all relevant circumstances and the values underlying the Charter: Grant @ paras 67 – 70and 85 – 86. Application of the Principles [10] In this case, Sergeant Chubey carried out a warrantless search of luggage which the Crown alleges to belong to Ms. Karaim. Citizens have a high expectation of privacy in relation to their personal belongings. The search in this case was a material infringementof Ms. Karaim’s privacy. [11] Two factors serve to mitigate the seriousness of the infringement in this case: 1.

The bag in which the baton and vial of methamphetamine were found was open. The baton was visible to Sergeant Chubeybefore he touched the bag or any of its contents. The vial of methamphetamine became visible as soon as he removed the baton. Acitizen has a lesser privacy interest in the contents of an open bag than one which is closed. 2. I am satisfied that Sergeant Chubey sincerely believed that he had a right to search the bag incident to arrest. That was not anunreasonable belief.

In the course of considering my previous decision in this case, it was necessary for me to form an opinion about theboundaries of the power to search incident to arrest. That was not an easy task. There are many authorities which hold that the searchmust be “… truly incidental to the arrest …”, but I found none which contain a clear and concise definition of that phrase. After a carefulconsideration of R v. Fearon 2014 SCC 77 , [2014] 3 SCR 621, I formed the opinion that:

a) A search may be found to be “… truly incidental to the arrest …” if and only if it is necessary to carry out such a search at thetime of the arrest to achieve some law enforcement objective which might be materially impaired or impeded by the delay attendantupon an application for a search warrant: Fearon @ paragraphs 22, 48.

As Justice Cromwell said @ paragraph 80: The discovery of evidence, in the context of a cell phone search incident to arrest, will only be a valid law enforcement objective whenthe investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. Only inthose types of situations does the law enforcement objective in relation to the discovery of evidence clearly outweigh the potentiallysignificant intrusion on privacy.

b) When tendering evidence of the results of such a search, the Crown carries the onus of proving such an imperative. … the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence,discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probablegrounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out,and that reason must be objectively reasonable … R v.

Caslake (SCC), [1998] 1 SCR 51 @ paragraph 25 I do not think that one should expect police officers to dissect the jurisprudence to the extent necessary to reach such a conclusion.Rather, I think it the duty of the courts to provide clear guidance to police officers. I conclude that Sergeant Chubey acted in good faith. [12] The impact of the search upon Ms. Karaim’s rights is serious. Evidence of finding the drugs would not necessarily be sufficientto convict Ms. Karaim of possession for the purpose of trafficking, but it is likely to form a significant part of the Crown case.

Mr.Movassaghi points out the possibility that the drugs belonged to Mr. Sherwin, who was seated with the bags in the rear seat of the taxiimmediately before the search. Mr. Movassaghi has not said whether Mr. Sherwin will be called to give evidence. Similarly, exclusionof the evidence of finding the drugs will not necessarily result in Ms. Karaim’s acquittal. Mr. Lafond might be able to give evidence

sufficient to support a conviction. Mr. Farenholtz has not said whether Mr. Lafond will be called. [ 13 ] Illicit use of methamphetamine and opiates is a pressing social issue. There is a strong societal interest in the successful prosecution of drug dealers, but that is the beginning of the enquiry rather than the end. [ 14 ] The final step in the analysis is to conduct the balancing exercise described in Janzen : paragraph 9 , above.

In the end, I think that the deciding factor is that stated in Grant @ paragraph 84 : … while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. The ultimate question is whether a thoughtful, well-informed citizen would be more disturbed by the exclusion of reliable and material evidence or by the apparent lack of effective sanction if evidence obtained by an illegal search is admitted.

This is a case in which reasonable minds might differ on that question. [ 15 ] It is clear from the evidence and submissions in this case that there exists a prevalent view that a lawful arrest, without more, is sufficient to entitle a police officer to search the belongings of the person arrested. I believe that view to be incorrect. I think that, in this case, the correction of that error is more important than the adjudication of the case on its merits. I conclude that evidence of the finding of the drugs is not admissible. December 4, 2019 ___________________________ T. Gouge, PCJ