R. v. Lambrecht Date:, 2013 BCPC 119

Citation: R. v. Lambrecht Date: 20130509 2013 BCPC 0119 File No: 46463 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSHUA DAVID LAMBRECHT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MCKIMM Counsel for the Crown: Richard Barton Counsel for the Defendant: Cory Armour Place of Hearing: Vernon , B.C. Dates of Hearing: October 30, 2012; January 3 and April 2, 2013 Date of Judgment: May 9, 2013

[ 1 ] The issue that arises in this case is whether or not a subterfuge used by the investigating police constitutes an abuse of process and as a result, the proceedings against the accused ought to be brought to an end. For the reasons that follow, I do not believe that the techniques employed by the investigating officers do constitute an abuse of process and as a result, the accused’s application that the prosecution be the subject of a judicial stay of proceedings is dismissed.

FACTS [ 2 ] In the summer of 2011, the Vernon RCMP came to believe that Henry Carl Joseph Chouinard was a substantial street level drug dealer in the City of Vernon, B.C. Following an investigation, they obtained and executed a search warrant on Mr. Chouinard’s residence. After a thorough search of the residence, no drugs were discovered. As Mr. Chouinard was being escorted from the residence, he told the investigating officers they would not find drugs in the residence, except for “perhaps a little marijuana”. [ 3 ] During the search of Mr.

Chouinard's bedroom, Constable Simpson noted a cell phone, which rang approximately 15 times during the brief period of the search. He picked up the cell phone and began to review the text messages that were both received by and sent from Mr. Chouinard earlier that day. His quick review of the text messages combined with his belief that Mr. Chouinard was a substantial dealer of cocaine, led him quickly to surmise that Mr. Chouinard had run out of drugs to sell earlier in the day and was in the process of arranging for a delivery of more drugs. The supplier of Mr.

Chouinard’s drugs appeared to be an individual identified in the cell phone only as “Bro”. [ 4 ] As with any sales based enterprise, drug dealers supply small quantities of narcotics to consumers. It is common practice within the drug trade that the dealers of narcotics keep a certain supply of narcotics for sale in their possession. When they run out of narcotics, they make contact to persons further up the supply chain and arrange for a delivery of more narcotics for sale, in the vernacular this is referred to as a "reload".

The "reloader" delivers a previously arranged supply of narcotics to the street-level dealer. The allegation in this case is that Mr. Chouinard was a street-level dealer and that the accused was his “reloader”. [ 5 ] A portion of the text dialogue under the name of “Bro” in Mr. Chouinard’s cell phone reads as follows: February 16 th : B – u almost done with that other half big guy? – 3:34 PM Wednesday, February 16. H – i will look n call you – 3:38 PM Wednesday, February 16. B – KK let me no and ill come no rush – 3:39 PM Wednesday, February 16. H – ok – 3:39 PM Wednesday, February 16.

H – how long before you are here – 4:09 PM Wednesday, February 16. B – im on my way – 4:10 PM Wednesday, February 16. The next text entries began on February 24, the day of the search of Mr. Chouinard's residence: H – i ran out this morning fast when are u going to be around soon i hope – 10:23 Thursday, February 24. H – anything bro – 1:17 p.m. Thursday, February 24. B – just runnin alittle late haha sorry guess roads were shit… – 1:18 PM, Thursday, February 24 H – Eta bro April – 1:20 PM Thursday, February 24. H – what's going on bro – 2:08 PM Thursday, February 24.

H – tell me someing – 2:36 PM Thursday, February 24. B – he just got here I”m comin shortly just gotta do them up – 2:36 PM Thursday, February 24. H – I will tell them hour – 2:38 PM Thursday, February 24. B – yeah thats about right – 2:39 PM Thursday, February 24

[6] At this point, Constable Simpson seized Mr. Chouinard’s cell phone. He read the above and reasonably surmised that theconversation was a dialogue between Mr. Chouinard and his reloader arranging for a delivery of more narcotics. This was consistentboth with the failure to find any narcotics, their belief that Mr. Chouinard was a very busy street-level drug dealer and the practiceknown to the police of making use of reloaders to supply street-level drug dealers described above. [7] Since none of the investigators knew who the reloader was, a decision was made to try to lure the reloader to Mr.

Chouinard’sresidence. From this point on Constable Simpson began to play the role of Mr. Chouinard to further investigate the identity of thereloader. B –u there? im in town – 4:51 PM Thursday, February 24 H (Cst.

Simpson) – can't talk where u want to meet – 4:53 PM Thursday, February 24 B – Oo alright meet me at a and W at bottom of hill – 4:54 PM Thursday, February 24 [8] At this point in the investigation neither Constable Simpson nor any other members of the investigative team were aware ofwhat “Bro” looked like, so attending at the local A&W would obviously prove ineffective in the effort to affect the arrest of thereloader. The decision was made to try to lure "Bro" to Mr. Chouinard's residence where he might be captured.

Constable Simpson sentthe following messages in that attempt: H- can u come by my place – 4:56 PM Thursday, February 24 H – you coming – 5:02 PM Thursday, February 24 B – yes – 5:02 PM Thursday, February 24 B – why cant u come meet? – 5:10 PM Thursday, February 24 H – flat tire – 5:10 PM Thursday, February 24 [9] Shortly thereafter, a truck driven by the accused is observed driving slowly up the street in front of Mr. Chouinard's residence. The vehicle comes to a stop some distance up the street, the accused exits his vehicle and walks toward Mr. Chouinard's front door.

Before knocking on the door, however, the accused returns to his vehicle and begins to use his cell phone. At the same time, thefollowing messages are received on Mr. Chouinard’s cell phone: B – how was that in front of your house? – 5:12 PM Thursday, February 24. H – A buddy – 5:13 PM Thursday, February 24 [10] Within two minutes of this conversation taking place, the vehicle driven by the accused was stopped and a substantial quantityof drugs was found within. As a result, the accused is charged with possession of narcotics for the purpose of trafficking.

There is noissue that the accused was both in possession of the narcotics and that they were possessed for the purpose of trafficking. ISSUE [11] The defence takes the position that the continuing prosecution of this offence is an abuse of the court’s process. The defenceargues that once Constable Simpson began to send communications to Mr. Lambrecht, the Reloader, he was personating Mr. Chouinard. He submits that this personation was a violation of

section 403 of the Criminal Code. Finally, he submits that this personationconstituted illegal police conduct and dirty trickery to such degree that the only fair result would be for the court to bring the prosecutionto an end. ANALYSIS [12] There is no question that the court maintains a residual discretion to stay proceedings if the continuation of those proceedingsconstitute an abuse of the court processes. In R. v.

Jewett (SCC), [1985] 2 S.C.R. 128 Chief Justice Dickson describedthat the residual discretion in a trial judge is one which is invoked where compelling the accused to stand trial violated the fundamentalprinciples which underlie justice and fair play and decency, and to prevent the abuse of the court processes through oppressive or

vexatious proceedings. [13] The classic example of an abuse of process is the defence of entrapment. Here, the defence does not advance an argument thatthis case involves entrapment, rather, he urges on the court that this is one of those rare cases where the resort of the police to criminalactivity in order to catch the Reloader offends in a serious way our concepts of fundamental fairness. [14] I do not agree that the actions of the police in the case at bar constitute a criminal offence.

Section 403 of the Criminal Codeprovides as follows: [1] everyone commits an offence who fraudulently impersonate another person, living or dead,… [c] with intent to cause disadvantage to the person being personated or another person… [15] The question arises as to whether or not luring an individual who is already committing a criminal offence into a trap by whichhe may be captured for that offence constitutes causing a disadvantage as is intended in the section.

At the time that Constable Simpsonbegan to communicate with the accused, the accused was intending to commit the offence of trafficking by delivering narcotics to Mr.Chouinard. He did so at the risk of being detected and arrested and prosecuted. Enhancing his risk of being detected and arrested andprosecuted is a socially laudable objective. It is not an anti-social outcome that the criminal law is designed to prevent or discourage. [16] In my view, the police did not engage in criminal conduct by pretending to be Mr. Chouinard for the purpose of catching hisreloader.

However, if I am mistaken in that, I would still not exercise my discretion to stay these proceedings as an abuse of process.Whether or not the conduct of the police violates the Criminal Code is only the first step in the analysis. To be successful, the courtmust also find that the techniques resorted to by the police were such that they shocked the community. R. v. Collins, (SCC), [1987] 1 S.C.R. 265 In that decision, Mr.

Justice Lamer also concluded that, “the threshold (for entering a stay as a result of anabuse of process) is very high – higher than ‘that to be attained to bring the administration of justice into disrepute in the context of aviolation of the Charter’." R. vs. Grandinetti 2003 ABCA 307 , 2003 A.B.C.A. 307. [17] Our Court of Appeal adopted a similar analysis when it endorsed the well-known practice of Mr. Big operations in the decisionof R. vs. Roberts (BC CA), [1997] B.C.J. 765. Similarly, in the decision of R. vs.

Jageshur (ONCA), [2002] 169 C.C.C. (3d) 225, the Ontario Court of Appeal went further when dealing with police “criminal” behavior and wrote: The ultimate question is not legality, but whether the police conduct was sufficiently egregious so as to shock the conscience of thecommunity and demand that the court not lend its process to a prosecution flowing from such conduct. This inquiry demands not only aqualitative assessment of the nature of the misconduct, but also a consideration of the societal interest served by allowing the prosecutionto proceed despite the police misconduct. Citing R. vs.

O’Connor [1995] 4.S.C.R. 411 [18] In my view, society’s interest in seeing this prosecution proceed completely overwhelms the relatively innocuous trickeryemployed by the police during the course of this investigation. I cannot possibly find that a well-informed member of the communitywould be shocked by the police conduct. Indeed, I am more inclined to the view that a reasonable, well-informed member of the publicwould be more likely to endorse it. R. v.

Roberts (1997) (BC CA), B.C.J. 765 @ para. 15. [19] In the result, the application for a stay of proceedings as a result of an abuse of the court process is dismissed. ___________________________ The Honourable Judge McKimm