R. v. Mosterd, 2021 BCPC 271

Citation: R. v. Mosterd 2021 BCPC 271 Date: 20211029 File Nos: 90092-1, 90092-3A, 90092-5 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAKOB IVAR MOSTERD ORAL RULING RE

SECTION 8 CHARTER APPLICATION OF THE HONOURABLE JUDGE G. BROWN Federal Crown Counsel S. Gill Counsel for the Accused: P. Derksen Place of Hearing: Abbotsford , B.C. Date of Hearing: October 29, 2021 Date of Judgment: October 29, 2021 [ 1 ] THE COURT : This is my ruling on the Charter issue in the case of R. v. Mosterd . INTRODUCTION

[ 2 ] Jakob Mosterd is charged with possessing heroin/fentanyl, fentanyl, cocaine and methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . The allegations arose on July 24, 2019, in Abbotsford and the matter proceeded by indictment. [ 3 ] All the evidence I have heard thus far has been in a Charter voir dire. The Crown alleges that illicit drugs were found in Mr. Mosterd's man bag during a safety search incident to an investigative detention for a break and enter.

More drugs were discovered later in a search incidental to arrest. [ 4 ] The defence submits that the police violated s. 8 of the Charter by conducting a safety search of Mr. Mosterd that went well beyond a simple pat-down. The defence seeks to exclude the evidence seized during the detention and later arrest of Mr. Mosterd under s. 24(2) of the Charter . [ 5 ] Although the onus is ordinarily on the defence to establish a Charter breach on a balance of probabilities, the onus shifts to the Crown when a warrantless search occurs.

The police have a limited power to detain for investigative purposes and to search for safety purposes, but the Crown must establish reasonable grounds to suspect a protective search is necessary to ensure safety. It is the Crown's burden to demonstrate on a balance of probabilities that a warrantless search was authorized by law and carried out in a reasonable manner. [ 6 ] Within the voir dire , the Crown adduced some statements from the accused only to explain the actions of the police officers. There is little issue with the grounds to detain Mr.

Mosterd, so the main issue in this voir dire is whether the police conducted a safety search of him in a manner compliant with the Charter . [ 7 ] As stated in R. v. Mann , 2004 SCC 52 , I must consider "the delicate balance that must be struck in adequately protecting individual liberties and properly recognizing legitimate police functions". BACKGROUND Sergeant Murray [ 8 ] Sergeant Kevin Murray is a very experienced police officer with the Abbotsford Police Department. He was on duty on July 24, 2019, in uniform and in a marked police vehicle. Sergeant Murray learned that one Mr.

Walker made a report at 12:30 p.m. of a male climbing through the rear window of a house located at 2211 Emerson Street, Abbotsford, BC. This same male was seen opening the front door for a second male who entered the residence. Mr. Walker further reported that the two males left the residence and proceeded southbound on Emerson Street. [ 9 ] Mr. Walker described the first male as Caucasian, heavy-set with a shaved head and a grey hoody. The Crown's theory is that that person was Mike Lopeke. The second male was described as Caucasian but slimmer with a blue plaid shirt, black backpack and black hat.

The Crown's theory is that that person was the accused, Jakob Mosterd. [ 10 ] Sergeant Murray thought the report could relate to a break and enter and he was close to the location. He was the first officer on the scene a few minutes after 12:30 p.m. He proceeded along Emerson Street to Bevan Avenue and saw no one. [ 11 ] Sergeant Murray then proceeded east on Bevan Avenue past Gladwin Road near a new apartment tower. Sergeant Murray saw two people travelling east on the sidewalk. These two people matched the description provided by Mr. Walker.

One male was heavy-set in a grey hoody and the other male was slimmer in a blue shirt. [ 12 ] Sergeant Murray drove by the two men in his police vehicle, rolled down the passenger window and said, "Hey, guys," in a non- aggressive manner. Sergeant Murray recognized the man in the grey hoody to be Mike Lopeke. He knew Mr. Lopeke in his days as a school liaison officer. Once Sgt. Murray said, "It's Kevin," Mr. Lopeke burst into a grin and told the male in the blue plaid shirt that he knew Sgt.

Murray as a liaison officer. [ 13 ] Sergeant Murray believed these two individuals were in the Emerson Street residence but did not know if there had been a legitimate break and enter or not. For Sgt. Murray, there were three possibilities: (1) these two men were the homeowners and were breaking into their own home (locked out); (2) these two men were in an abandoned home; or (3) these two men were involved in a break and enter offence. [ 14 ] Sergeant Murray was by himself in the police vehicle. Mr. Lopeke was now a big man. Mr.

Lopeke was known to get in trouble with the law but had not been violent with police. Because it was a two-on-one situation, Sgt. Murray thought it best not to get out of the police vehicle and engage in an investigative detention. He was concerned about officer safety and possible flight risk. Sergeant Murray believed it was better to ensure the men did not go anywhere and evidence was preserved. Sergeant Murray simply stayed in his vehicle and had a chat with Mr. Lopeke, who came up to his window. The other male stayed back and said nothing. [ 15 ] Sergeant Murray did tell Mr.

Lopeke about the break and enter on Emerson Street and that both men matched the description provided. Sergeant Murray asked Mr. Lopeke if he knew anything, and Mr. Lopeke said he did not know about the break and enter and that they came from the hospital and were going to a friend's house. [ 16 ] As soon as Mr. Lopeke said he came from the hospital, Sgt. Murray believed he was lying. If the men had come from an abandoned house, typically they would be quick to say so. Sergeant Murray also knew they were not the homeowners of the Emerson Street house.

Sergeant Murray continued with friendly, collegial dialogue but his suspicion to detain had really been elevated to reasonable grounds to believe a break and enter offence had been committed. Sergeant Murray's initial interaction with the men lasted two to five minutes. [ 17 ] Constable Springman arrived at the scene and both men were detained for the break and enter investigation. Sgt. Murray informed Cst. Springman that the men should be detained, but he believed he had grounds to arrest at that point given Mr. Lopeke's

comment about coming from the hospital. [ 18 ] Sgt. Murray told both men they were detained for break and enter but no Charter warning was given at that point. Sgt. Murray testified that this was a dynamic situation and he was not about to pull out his Charter card until officer safety was ensured. Sgt. Murray conducted a pat-down search of Mr. Lopeke, and Cst. Springman conducted a pat-down search of the person later identified as the accused, Mr.

Mosterd. [ 19 ] Sergeant Murray explained that a pat-down search was required because both men matched the description of the persons suspected in a break and enter through a window. The suspects could have tools which could cause harm. Both men also had their hands in their pockets during the initial interaction. [ 20 ] When Sgt. Murray conducted a safety search of Mr. Lopeke, Mr. Lopeke was not placed in handcuffs. Sergeant Murray felt the outside of Mr. Lopeke's pockets to assess if there were any items inside. Sergeant Murray knew from the case law that he was not allowed to search for soft items.

He also did a pat-down search of Mr. Lopeke's waist and he had Mr. Lopeke raise his sweatshirt. Mr. Lopeke did not have a fanny pack. Sergeant Murray found no weapons or tools on Mr. Lopeke. [ 21 ] While Sgt. Murray was with Mr. Lopeke, Cst. Springman found a sizeable amount of drugs on Mr. Mosterd. Sergeant Murray advised Cst. Springman to arrest Mr. Mosterd for possession for the purpose of trafficking. [ 22 ] Constables Cartmell and Weaver showed up at the scene and confirmed that the house on Emerson was abandoned. Accordingly, Sgt. Murray said that Mr.

Lopeke was free to leave and the investigative detention ceased. [ 23 ] Constable Springman did arrest Mr. Mosterd for possession for the purpose of trafficking and placed him in the back of a police car. Sergeant Murray took photographs of Mr. Lopeke (with his permission) and Mr. Mosterd. [ 24 ] Sergeant Murray explained that it was not practical to conduct a full search of Mr. Mosterd roadside; it was more practical to conduct a fulsome search in private at the police station. Sergeant Murray also testified it was not practical for Mr.

Mosterd to access counsel in the police vehicle, as handcuffs would have to be removed. [ 25 ] Sergeant Murray read Mr. Mosterd his Charter rights from a Charter card at 12:55 p.m. Mr. Mosterd was arrested for both possession for the purpose of trafficking and possession of a weapon for a dangerous purpose because a replica handgun was located. [ 26 ] After being given his Charter warning, Mr. Mosterd requested to call his lawyer, Mr. Derksen. During the arrest and Charter warning, Mr. Mosterd said nothing. He had earlier indicated his name was Jack Nelson. Mr.

Mosterd was respectful and quiet and he displayed no anger. [ 27 ] Using Google Maps, Sgt. Murray estimated the distance from 2211 Emerson Street to the place of arrest to be 300 metres. [ 28 ] Sergeant Murray assigned Cst. Cartmell as the exhibits officer, and Cst. Springman took Mr. Mosterd to Abbotsford Police cells. [ 29 ] Sergeant Murray reiterated that his grounds for detaining Mr. Lopeke and Mr. Mosterd for break and enter included the following: 1. The two men matched the descriptions provided in the report, i.e. a grey hoody on one and a blue plaid shirt on the other; 2.

The two men were in close proximity to the alleged break and enter; and 3. Mr. Lopeke's comment about coming from the hospital made no sense. [ 30 ] In cross-examination, Sgt. Murray agreed he was not told that either suspect had tools. He knew one of the suspects had a backpack. In his interactions with Mr. Lopeke, Sgt. Murray saw some nervousness on Mr. Lopeke's part. He noticed Mr. Mosterd wearing a backpack. [ 31 ] In cross, Sgt. Murray said that while there was no policy to conduct pat-down searches for break and enters, he did such searches routinely for safety.

Sergeant Murray clarified that the pat-down searches were not searches incidental to arrest. [ 32 ] Also in cross, Sgt. Murray testified that individuals can appear friendly until they are not. Complacency can be an enemy to officer safety. Constable Springman [ 33 ] Constable Rachel Springman had been a member of the Abbotsford Police Department for six years, with four years of experience at the time the allegations arose on July 24, 2019. [ 34 ] On that day, she was on patrol in a uniform using a police vehicle with subdued markings. Around 12:30 p.m., Cst.

Springman saw two males walking on Emerson Street and she knew one of them to be Mr. Lopeke. She queried her database to see if he had any outstanding warrants. [ 35 ] At 12:32 p.m., Cst. Springman received a dispatch regarding a possible break and enter of a house on Emerson Street. The report stated that a male had climbed through a window and then opened a door for another male. The caller was unsure if the home was vacant. [ 36 ] The two men seen by Cst. Springman matched the descriptions provided in the dispatch.

One male was five-foot nine inches tall wearing a black hat, plaid shirt and a backpack; the other male was five-foot five inches tall with a shaved head and wearing a grey hoody.

[ 37 ] Upon realizing the two men she just saw matched these descriptions, Cst. Springman went back. She also received a radio call from Sgt. Murray that he located two males east on Bevan Avenue. Constable Springman arrived at Bevan Avenue where Sgt. Murray was located with the two males. She recognized the two males to be Mr. Lopeke and the accused, Mr. Mosterd. [ 38 ] Sergeant Murray said both men were detained for a break and enter investigation. [ 39 ] Sergeant Murray walked towards Mr. Lopeke while Cst. Springman walked towards Mr. Mosterd. From the moment Cst.

Springman saw the two men, they appeared fidgety with hands in their pockets. They did not make eye contact. Once Sgt. Murray advised the men that they were detained for a break and enter, safety searches were conducted. [ 40 ] As Cst. Springman approached Mr. Mosterd, she saw a man bag over Mr. Mosterd's shoulder and he was holding the bag tightly in front of his body. In cross-examination, Cst. Springman clarified that the two men removed their hands from their pockets upon request. [ 41 ] Constable Springman conducted a safety search of Mr. Mosterd.

She considered the type of search to be a less intrusive one to determine if a detainee has any weapons. Constable Springman was also aware of the criminal history of Mr. Mosterd and Mr. Lopeke. [ 42 ] About one year prior to the safety search, Cst. Springman had an unfortunate experience where she was assaulted while arresting a man with a man bag. She had arrested this male for outstanding warrants and she placed him in handcuffs. Because the man bag had to be removed, she removed his handcuffs. As she was doing this, the male punched her in the head.

A knife was located in the man bag. [ 43 ] This prior incident was still in Cst. Springman's mind as she approached Mr. Mosterd, who had a man bag held tightly to his body. She told him he was detained and, in carrying out the safety search, she opened the main zipper of the man bag to ensure there were no weapons which could harm herself or Sgt. Murray. The bag was a black canvas bag with one main pouch on top. [ 44 ] As soon as Cst. Springman opened the man bag, she saw a large bag of what she suspected to be crystal meth. Constable Springman asked Mr.

Mosterd to remove his man bag and backpack, as she continued her safety search. Mr. Mosterd complied. The safety search took a couple of minutes. [ 45 ] Constable Springman located the suspected drugs at 12:47 p.m. and Mr. Mosterd was placed under arrest for possession at 12:50 p.m. During the safety search, Cst. Springman did not handcuff Mr. Mosterd, but he was handcuffed when arrested for the possession offence. [ 46 ] Constable Springman then walked Mr. Mosterd to her police vehicle and performed a search incidental to arrest. Constable Springman located some money in Mr. Mosterd's left front pants' pocket.

In the man bag, she located pills in a pill bottle, the bag of suspected meth previously mentioned and two other bags. In the backpack, Cst. Springman located a loaded pellet gun, three iPhones and a black Samsung cell phone. [ 47 ] The items located by Cst. Springman were given to Cst. Cartmell, who processed them as exhibits. The transfer of exhibits to Cst. Cartmell occurred at 1:03 p.m. [ 48 ] Sergeant Murray provided the Charter warning to Mr. Mosterd. Constable Springman transported Mr. Mosterd to Abbotsford Police cells. Once Mr.

Mosterd was taken to the cell area, a more thorough search was conducted of Mr. Mosterd. Another clear baggie containing about 20 individual packages of possible fentanyl was located in Mr. Mosterd's pocket of his plaid shirt. This search in cells was, of course, incidental to arrest and occurred at 1:22 p.m. [ 49 ] A message was left for Mr. Mosterd's counsel at 1:26 p.m. Constable Springman described Mr. Mosterd as five-foot 10 inches tall with a slim build, blondish hair and a full beard. He was wearing a black hat, plaid shirt and blue runners. Constable Springman confirmed Mr.

Mosterd's identity and she had previously dealt with him. [ 50 ] In cross-examination, Cst. Springman confirmed that she did not initially request Mr. Mosterd to remove his handbag. Based on the past incident, Cst. Springman felt such a request could be unsafe. In her mind, Cst. Springman believed it was better to open the bag than to remove it. [ 51 ] During cross, Cst. Springman said a safety search was necessary in this case where they were investigating a break and enter, and the males possibly had tools which could become weapons.

The males were also behaving in a nervous manner and they had a criminal history. Police officer safety searches are not conducted every time there is a break and enter investigation. [ 52 ] In cross, Cst. Springman agreed Mr. Mosterd was compliant and he did not turn his body away from her. Constable Cartmell [ 53 ] At about 12:30 p.m. on July 24, 2019, Csts. Cartmell and Weaver were dispatched to the possible break and enter scene at 2211 Emerson Street, Abbotsford.

A second-storey window was open and someone indicated that the residence was a Steve Simpson rooming home, a place where disadvantaged people could stay. Much later, Cst. Cartmell returned to the Emerson residence and learned that there had been a cheque for Mr. Mosterd there. [ 54 ] Between 12:45 and 12:50 p.m., Cst. Cartmell arrived at Bevan Avenue where Mr. Mosterd was arrested. Cst. Cartmell was asked to process the exhibits and she seized the exhibits from Cst. Springman at 1:03 p.m. At 1:32 p.m., Cst. Cartmell seized additional items from Cst. Springman which were found on Mr.

Mosterd. [ 55 ] The exhibits seized included drugs which were analysed by Health Canada. A bag of 7.3 grams of crystal meth was found in the main zipper of the black man bag. In Mr. Mosterd's breast pocket, there were five baggies of cocaine weighing 2.5 grams, a baggie of heroin/fentanyl, purple baggies of fentanyl weighing 5.26 grams and 15 bags of crack cocaine weighing 6.93 grams. A bag of Xanax was

found in the main zipper of the black man bag, as was a rock of hash, weighing 28.05 grams. In the pill bottle found in the black bag, there was a Xanax pill, eight Elza pills, 48 P 25 pills, nine acetaminophen pills, 11 Trazodone pills and 22 Clonazepam pills. [ 56 ] A functioning scale was located in the back pocket of the black man bag. [ 57 ] The Airsoft revolver was in the front pocket of the backpack, loaded with Airsoft rounds. [ 58 ] The Samsung and three iPhones were in the backpack. [ 59 ] Canadian cash in the sum of $475 was found in Mr.

Mosterd's front pocket. [ 60 ] The total weights of the drugs were as follows: 7.3 grams of crystal meth; 5.26 grams of fentanyl; .58 grams of heroin/fentanyl; and 9.52 grams of cocaine. Did Cst. Springman have the necessary grounds to conduct a protective safety search of Mr. Mosterd which included his man bag? [ 61 ] It must be remembered that a safety search is a warrantless search which intrudes on individual liberties. The Supreme Court of Canada in Mann recognized a limited common-law power to detain individuals for investigative purposes.

The detention must be reasonably necessary on an objective view of the totality of the circumstances informing the police officer's suspicion to detain. A police officer must have an objectively reasonable suspicion that an individual is connected to a particular crime and that such detention is necessary and, in certain situations, a protective safety search is also necessary. [ 62 ] Mann held that the general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat- down search incident to an investigative detention (para. 40).

The officer's decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be based on a vague or non-existent concern for safety nor can the search be premised on hunches or mere intuition. Fishing expeditions are not allowed. [ 63 ] There is some debate whether the subsequent case of R. v. MacDonald , 2014 SCC 3 , [2014] 1 S.C.R. 37 , changed the legal threshold for lawful police safety searches. I rely on our Court of Appeal in R. v.

Webber , 2019 BCCA 208 , which ruled that the traditional test still applies: the powers of investigative detention and search incident thereto are lawful when the police have reasonable grounds to suspect it is necessary to ensure safety. These safety searches need not be confined to the person. Of course, in Mann , an investigative detention and protective pat-down search were warranted but a body search was not. [ 64 ] I have considered the recent case of R. v. A.R. , 2021 BCSC 1539 . That case holds that to conduct a safety search there ought to be reasonable grounds to believe that the threat is "imminent".

With respect, I note that the requirement of an imminent threat was not mentioned at all by our Court of Appeal in the fairly recent case of Webber . As well, the imminent threat requirement often appears in cases like MacDonald where there is a stand-alone search as opposed to an investigative detention. [ 65 ] In any event, the A.R. case ruled that there is no requirement that the threat be immediate. The imminent threat or harm must be more than a vague and general concern for safety. [ 66 ] In R. v.

Crocker , 2009 BCCA 388 , Justice Smith commented at paragraph 71, that: …Courts should be reluctant to second guess an officer’s testimony as to his or her honest belief in the need for a protective safety search where he or she can articulate reasonably clear and focused reasons that inform their risk assessment. This is particularly so where the objective grounds for the search closely mirror those factors that informed the officer’s subjective belief. [ 67 ] As was described in R. v.

Patrick , 2017 BCCA 57 , at paragraph 70 : ... the issue is not whether the detainees manifested behaviour giving rise to reasonable safety-based concerns, but whether [the police officer's] subjective perception of the risk to officer safety was reasonable in all the circumstances. The Patrick case also holds, at paragraph 94, that the power to search incident to lawful investigative detention is not necessarily restricted to a pat-down search. [ 68 ] In R. v.

Sheck , 2015 BCCA 471 , the court noted that the scope of safety searches has modestly expanded from pat-downs to include searches of fanny packs in certain situations. Again, there must be reasonable suspicion to believe safety is at risk. [ 69 ] In the case here regarding Mr. Mosterd, there is no question he was being detained for a break and enter investigation as soon as he was advised of that fact. [ 70 ] In my view, there is also no question that Sgt. Murray had reasonable grounds to suspect Mr. Mosterd and Mr. Lopeke could be involved in the break and enter on Emerson Street.

There was a recent report of a possible break and enter on Emerson Street. These two men were found nearby and they each matched the descriptions of the persons seen at the possible break and enter. Sgt. Murray was also aware of Mr. Lopeke's criminal history. [ 71 ] The only issue here is whether Cst. Springman had reasonable grounds to suspect a safety search of Mr. Mosterd was required and whether that search should reasonably include his man bag. [ 72 ] Defence counsel submits that while the detention of Mr. Mosterd may have been justified, it was a Charter violation to physically search Mr. Mosterd's man bag.

At best, the officer safety search should have been confined to a simple pat-down. Defence counsel points out that Mr. Mosterd did take his hands out of his pocket when requested and he was compliant. Mr. Mosterd did not display the concerning behaviour seen in some case law. He was not making a stuffing motion as in Webber , and he was not turning away as in R. v. Thibodeau , 2007 BCCA 489 .

[ 73 ] I would note, however, the words of Sgt. Murray, "Individuals can appear friendly until they are not." Mr. Mosterd had a criminal history known to Cst. Springman and he was behaving in a nervous or fidgety manner. [ 74 ] I agree with the Crown that this was an evolving and dynamic detention happening over a brief period. Sergeant Murray had safety concerns. He was first dealing with two men and Mr. Lopeke was of some size. He knew both men matched the description of the men involved in the potential break and enter. He was familiar with Mr. Lopeke's criminal history. [ 75 ] More to the point, Cst.

Springman had safety concerns. She recognized Mr. Lopeke and Mr. Mosterd and knew of their criminal history. Sergeant Murray indicated that both men were to be detained for the break and enter investigation, and the men may possess break-in tools that could become weapons. Mr. Mosterd appeared nervous and had his hands in his pockets initially. [ 76 ] Even more to the point, Cst. Springman saw Mr. Mosterd holding the man bag tightly to his body. She knew from prior experience that attempting to remove the man bag may leave her open to an assault. She started with a pat-down and then unzipped the man bag.

I am satisfied she was simply looking for an accessible weapon. Instead, she saw a bag of meth. [ 77 ] I am satisfied that on a balance of probabilities, Cst. Springman's subjective perceptions of safety risk were objectively reasonable. The reasons she gave for briefly searching the man bag were clear and focused. Mr. Mosterd could have had break-in tools or even other weapons. I have seen a photograph of the man bag and it appears to be of thicker material than clothing, certainly thicker than Mr.

Mosterd's shirt, where a simple pat-down was all that was required to search for weapons. [ 78 ] Even if I were to apply the requirement of imminent threat, as laid out in A.R. , I find that Cst. Springman had subjective grounds to believe that the threat was imminent based on reasonable inferences drawn from the known facts of the situation. Again, Cst. Springman knew of the possibility Mr. Mosterd had break-in tools, he had a criminal record, he was behaving nervously and he held the man bag tight to his chest. [ 79 ] I am reluctant to second-guess Cst.

Springman and I find that her brief search of the man bag for weapons was not a fishing expedition; it was reasonably connected to the safety search. [ 80 ] Based on the above reasoning, I find that the safety search of the man bag did not breach s. 8 of the Charter . No evidence will be excluded on that basis.

I, therefore, do not have to engage in a s. 24(2) analysis. [ 81 ] Decisions will have to be made about what evidence from the voir dire should properly be introduced into the trial proper, as I heard evidence that normally would not be admissible at trial. [ 82 ] I thank counsel for their able and focused submissions. [ 83 ] I will order a transcript of this decision with the right to edit. (RULING RE

SECTION 8 CHARTER APPLICATION CONCLUDED)