R v Christopher Edvin Omar Hjerpe Date:, 2017 BCPC 41

Citation: R v Christopher Edvin Omar Hjerpe Date: 20170125 2017 BCPC 41 File No: 48658 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER EDVIN OMAR HJERPE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.M. MCKIMM Counsel for the Crown: C. Burnette Counsel for the Defendant: N. Cobb Place of Hearing: Vernon , B.C. Dates of Hearing: September 6, 7, 2016 Date of Judgment: January 25, 2017

[1] The accused is charged with two counts of possession of cocaine and heroin for the purpose of trafficking. At the conclusionof the Crown's case, application was made for a judicial stay of proceedings as a result of violations of the accused’s

section 8 and 9Charter rights. For the reasons that follow that application is granted and a judicial stay of proceedings is ordered. Facts [2] In February 2014, the police received information that a certain motor vehicle was being used to deliver drugs in the Vernonarea. The informant also provided information with respect to a certain phone number related to the drug trafficking operation. [3] On February 25, 2014, the motor vehicle was surveilled for a brief period of time. During that period of time the accused wasseen to be the only driver of the motor vehicle.

In the space of approximately 30 minutes, the police observed three individuals attend atthe motor vehicle and make what appeared to be brief transactions and leave the area. The accused was arrested at 12:25 p.m.

In asearch conducted incidental to his arrest, the motor vehicle was found to contain 2.10 g of heroin in nine separate individual packagesand 6.4 g of cocaine in various packages as well as $1,115 in cash, the accused had $773 on his person. [4] Following his arrest, the police answered a call on one of the cell phones seized from the motor vehicle and made anarrangement to meet an individual who requested narcotics. [5] At the time of his arrest, the accused asked immediately to speak to counsel.

This request occurred at 12:32 p.m. at the sceneof the arrest and at 12:37 p.m. he was transported back to the detachment. Prior to being transported back to the detachment, the officer-in-charge of the investigation ordered that the accused be subject to a strip search immediately upon his arrival at the police station. There was no evidence provided by the officers as to the necessity of conducting a strip search of the accused nor were anycircumstances provided that would make it reasonable to believe that a strip search was necessary in order to facilitate any legitimatestate purpose.

The strip search was ordered simply because the accused was arrested when a drug transaction may have been inprogress. [6] The strip search involved an investigating officer requiring the accused to lower his pants and underwear, lift up his scrotum,bend over and pull apart his bottom to reveal his rectum. The strip search occurred in what was referred to as the booking area which isan area that is under constant video surveillance. The strip search also occurred in the presence of a civilian guard who observed theentire procedure.

No inquiries were made of the accused with respect to any religious or cultural concerns with respect to this invasion ofprivacy. It is significant to note that none of the officers have made any detailed notes with respect to the circumstances of the stripsearch of the accused. [7] After the accused was afforded his right to contact counsel and spoke to counsel, a decision was made simply to hold himovernight for court the following day.

The officers were aware that court was available to do a judicial interim release hearing theafternoon of the accused arrest and most certainly were aware that a bail hearing by telephone was available 24 hours a day. [8] The officer-in-charge also testified that he understood that it was inappropriate to release the accused on recognizance issuedby an officer-in-charge under the provisions of

section 498 [1] of the Criminal Code because such a recognizance could not contain arestriction limiting or prohibiting the use or possession of cellular telephones. The officer further testified that it was his understandingthat they had 24 hours to arrange for the release of an arrested person and he had no knowledge the requirement for the release of anarrested person was that the release be done "as soon as practicable." Issues 1. Did the strip search conducted on the accused violate his rights under

section 8 of the Charter to be free from unreasonablesearch and seizure? 2. Did the deliberate decision to hold the accused in custody prior to a release hearing in excess of 24 hours violate his rightsunder

section 9 of the Charter to be free from arbitrary detention or imprisonment? 3. If the accused Charter rights were breached, is the appropriate remedy a judicial stay of proceedings? Discussion 1. The Strip Search [9] The police conducted the strip search of the accused following his warrantless arrest. On the facts of this case, I find that thestrip search was conducted simply because the officers believed that they had interrupted a drug transaction in progress. There was noother explanation or justification provided for the necessity of conducting the strip search.

For example, there was no evidence providedthat would reasonably have led the officers to believe that the accused had drugs secreted on his person nor that the accused had madeany effort to hide drugs from the officer at the time of his arrest. [10] It is well-established that for a search to withstand Charter scrutiny and be found to be reasonable within the meaning of section8 of the Charter, it must be authorized by law; the law itself must be reasonable; and the search must be conducted in a reasonablemanner. R. v.

Collins, (SCC), [1987] 1 S.C.R. 265 [11] The search in question was made as an incident to the accused’s arrest. Although the accused in his argument submits that thearrest was without reasonable and probable grounds, I do not agree. Given the observations by the officers, I'm satisfied that bothsubjectively and objectively the police had reasonable and probable grounds to arrest the accused when they did. [12] It is also clear that a search incident to arrest may include the right to conduct a strip search. However the court must analyze

whether or not the conduct of the strip search in any given case is actually incident to the arrest. This requires an assessment of thereasons articulated by the searching authorities of the necessity for a strip search to either preserve evidence or for purposes generallyrelated to officer safety. There is no evidence before this court to suggest that the officers considered either of those issues prior toordering the strip search. [13] As the Supreme Court of Canada held in R. v.

Golden 2001 SCC 83 , 2001 S.C.J. 81, 159 C.C.C. 3RD 449 (S.C.C.): [98] The fact that the police have reasonable and probable grounds to carry out an arrest does not confer upon them the automaticauthority to carry out a strip search, even where the strip search meets the definition of being "incident to a lawful arrest" as discussedabove.

Rather, additional grounds pertaining to the purpose of the strip search are required… [99] In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, suchsearches are only constitutionally valid at common-law where they are conducted as an incident to a lawful arrest for the purpose ofdiscovering weapons in the detainee's possession or evidence related to the reasons for the arrest. In addition, the police must establishreasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest.

Wherethese preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in amanner that does not infringe

section 8 of the Charter. Golden @ para 98 (emphasis added) [14] There is no evidence that the strip search in question was necessary such that it could be found to be incident to a lawfularrest. The only evidence is that there are reasonable and probable grounds to affect the arrest of the accused, there were no reasonableand probable grounds to justify the invasive strip search. [15] Nor in my view was the strip search conducted in a way which met the requirements that the search itself be conducted in areasonable manner and in a way that minimizes, as much as possible, the invasion of the accused privacy.

A helpful catalog ofconsiderations is thereafter provided by the court in Golden Supra. Considering those eleven principles, the search in question raisesserious concerns with respect to the efforts made to preserve the privacy and dignity of the accused. The search was conducted in thepresence of a civilian guard, for no articulated reason. The search was conducted in an area that was videotaped although no videotapedevidence was disclosed suggesting that the videotaping or filming of the strip search was not for the purposes of preserving evidencewith respect to the manner of the strip search.

As a result, the evidence of videotape or closed-circuit cameras enhances the violation ofthe privacy of the accused for no apparent purpose. [16] I would also note that no effort was made by the investigating officers to determine either any religious concerns of theaccused nor whether the strip search in question would raise any concerns with respect to the sexual orientation of the accused.

In myview, it is incumbent on authorities conducting invasive strip searches that they make inquiries with respect to whether or not thosesearches would be particularly offensive to the individual as a result of considerations of either culture or sexual orientation. [17] The Crown concedes in this case that there's been a violation of the accused

section 8 rights as a result of the conduct of thisstrip search. I agree with that conclusion. 2. Failure to release the accused from custody as soon as practicable [18] The accused was arrested without warrant at 12:32 p.m. and immediately asked to speak to counsel. The police movedexpeditiously to return the accused to the police station to allow him to affect his right to counsel and he arrived there approximately12:40 p.m. At 12:47 p.m., counsel was called and at 1:52 p.m. the accused’s counsel of choice called back and spoke to his client.

Thereis no evidence of any reason related to the investigation why the accused could not then have been released from custody. [19] The accused was released from custody by consent at 2:36 p.m. the following day. That release was on a recognizance in theamount of $500 with no deposit and no surety with certain conditions including a condition that he not possess any cellular telephones. [20]

Section 503 of the Criminal Code provides:

(1) A peace officer who arrests a person with or without warrant or to whom a person is delivered under subsection 494 [3] … shallcause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice to be dealt withaccording to law: (

a) where a justice is available within a period of 24 hours after the person has been arrested by, or delivered to the peace officer,the person shall be taken before a justice without unreasonable delay in any event within that period…

(2) If a peace officer or officer-in-charge is satisfied that a person described in subsection (1) should be released from custodyconditionally, the officer may, unless the person is detained in custody for an offense mentioned in

section 522 of the Criminal Code,release that person on the person’s giving a promise to appear or entering into a recognisance in accordance with paragraph 498(1) (

b) or(

c) and subsection (2.1) of the Criminal Code. [21]

Section 498 of the Criminal Code provides: [1] Subject to subsection [1.1], the person who has been arrested without warrant by a peace officer is taken into custody, or a personwho has been arrested without warrant and delivered to a peace officer under subsection for 494(3) or placed in the custody of a peaceofficer under subsection 165.3 [3] of the Customs Act is detained in custody under subsection 503 [1] for an offense described in section496 (a),(

b) or (c), or any other offenses punishable by imprisonment for five years or less and has not been taken before a justice orreleased from custody under any other provision of this part, the officer-in-charge or another peace officer shall, as soon as practicable … (

b) release the person on their giving a promise to appear;

(

c) Release the person on the persons entering into a recognizance before the officer-in-charge or another peace officer withoutsureties in an amount not exceeding $500 that the officer directs but without deposit of money or other valuable security, [22] The accused was ultimately released twenty-six hours after his arrest by consent on a $500 recognizance without deposit andwithout surety with certain conditions. There was no reason provided why he could not have been released sooner and I find that hisrelease was both in violation of the requirements of

section 503 of the Criminal Code that he be released within 24 hours, but, moreimportantly, that he be released as soon as practicable. [23] The officer-in-charge testified that in his view he was not required to release the accused until the expiry of the 24 hour periodfound in

section 503 of the Criminal Code. He saw the 24 hour period as a privilege to maintain the accused in custody. The officer wasalso not aware that he had the authority to release the accused with conditions such as condition prohibiting him from possessing cellulartelephones. Most particularly the officer was not aware that his duty was to release the accused as soon as practicable. [24] The Crown concedes that the accused rights under

section 8 of the Charter were violated. I agree. 3. Judicial Stay of Proceedings [25] The violations of the accused rights in this case were egregious. The authorities conducted a strip search with absolutely nofoundation or necessity being established. The law on the ability of authorities to conduct strip searches incidental to arrest has beenclearly articulated by the Supreme Court of Canada in R. v. Golden 2001 SCC 83 , 2001 S.C.C.83, 13 years prior to the rest inthe case at bar.

That authority and in particular the safeguards created around the exercise of that authority should be well known to allinvestigating officers.

Similarly, the manner in which the strip search was conducted does not comport with the clear instructions of theSupreme Court of Canada; it was not conducted in a manner which least offended the integrity and privacy of the accused; it wasconducted in a public area of the police station while being available for observation on closed-circuit television; it was conducted in thepresence of a civilian employee of the RCMP; and no meaningful notes or record was taken with respect to the circumstancessurrounding the conduct of the strip search.

The Supreme Court of Canada has found that strip searches are a very serious violation ofthe integrity and dignity of the citizen and has crafted comprehensive considerations to ensure that that serious invasion of privacy occursonly when absolutely necessary. The investigating authorities appear to have no understanding of these fundamental principles. [26] The violation of the accused

section 9 rights is also egregious. A citizen was held in custody for 24 hours past the time whenany meaningful purpose for such detention was necessary. The officer was not familiar with the requirement that citizens be released assoon as practicable but rather held the erroneous view that the police had the privilege of holding accused persons for 24 hours as a resultmerely of their arrest. [27] There is no question that applying the principles in R. v.

Grant 2009 SCC 32 , 2009 S.C.C. 32 that any evidence arisingduring the course of these breaches would be excluded had the discovery of the evidence followed the serious Charter breaches, thatwould have brought the prosecution to an end. In my view, the seriousness of these two breaches completely outweighs society’sinterest in adjudicating the case on its merits.

In this case, however, the evidence existed prior to the Charter breaches and there is nonexus between the breaches and the discovery of the evidence. [28] The more appropriate remedy is a judicial stay of proceedings pursuant to section 24(1) of the Charter. Such a stay must onlybe granted in the clearest cases and when no other lesser remedy will adequately address the Charter breach. In R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411 the Court writes, 75 Where there has been a violation of a right under the Charter, s. 24(1) confers upon a court of competent jurisdiction the powerto confer "such remedy as the court considers appropriate and just in the circumstances". Professor Paciocco, supra, at p. 341, hasrecommended that a stay of proceedings will only be appropriate when two criteria are fulfilled: ▪

(1) The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, orby its outcome; and ▪

(2) No other remedy is reasonably capable of removing that prejudice. [29] I adopt these guidelines, and note that they apply equally with respect to prejudice to the accused and to the integrity of thejudicial system. [30] In this case, the prejudice caused by the violation of the accused’s Charter protected rights will be unanswered if theprosecution is allowed to proceed.

Given the lack of causal or temporal nexus between the Charter breaches and the real evidencewithout a judicial stay the accused would have no meaningful remedy at all. [31] To allow the prosecution to continue would constitute an abuse of the court processes and the gross violation of thecommunity’s expectation of fair play in the workings of its justice system. Similarly, it is necessary for this court to distance itself fromthe conduct of the police in the violation of the rights of the citizen.

A stay of proceedings in this case is necessary to prevent furtherdamage to the judicial process because in my view the two articulated breaches are so serious that to continue the proceedings in light of those violations is offensive. In R. v. Regan 2002 SCC 12 , 2002 SCJ 14; 161 C.C.C.3rd 97 (S.C.C.), Mr. Justice LeBel writes; A stay of proceedings is only one remedy to an abuse of process, but the most drastic one: "that ultimate remedy", as this Court inTobiass, supra, at para. 86, called it. It is ultimate in the sense that it is final.

Charges that are stayed may never be prosecuted; analleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact. For these reasons, astay is reserved for only those cases of abuse where a very high threshold is met: "the threshold for obtaining a stay of proceedingsremains, under the Charter as under the common law doctrine of abuse of process, the 'clearest of cases'" (O'Connor, supra, at para. 68).

Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stayof proceedings will only be appropriate when two criteria are met:

(1) The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2) No other remedy is reasonably capable of removing that prejudice. [ O'Connor , at para. 75] Id @ para 53 The Court's judgment in Tobiass , at para. 91 emphasized that the first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future.

As discussed above, most cases of abuse of process will cause prejudice by rendering the trial unfair. Under s. 7 of the Charter , however, a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of the system ( O'Connor , at para. 73 ). Yet even in these cases, the important prospective nature of the stay as a remedy must still be satisfied: "[t]he mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings" ( Tobiass , at para. 91).

When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in "exceptional", "relatively very rare" cases will the past misconduct be "so egregious that the mere fact of going forward in the light of it will be offensive" ( Tobiass , at para. 91). Any likelihood of abuse which will continue to manifest itself if the proceedings continue then must be considered in relation to possible remedies less drastic than a stay.

Once it is determined that the abuse will continue to plague the judicial process, and that no remedy other than a stay can rectify the problem, a judge may exercise her or his discretion to grant a stay. Finally, however, this Court in Tobiass instructed that there may still be cases where uncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of a stay. In such cases, a third criterion is considered.

This is the stage where a traditional balancing of interests is done: "it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits". In these cases, "an egregious act of misconduct could [never] be overtaken by some passing public concern [although] ... a compelling societal interest in having a full hearing could tip the scales in favour of proceeding" ( Tobiass , at para. 92).

Regan @ para 53-57 [ 32 ] Although the offending conduct of the police is past conduct, in my view it falls within the residual discretion requiring a judicial stay because this is the clearest of cases, the offending behaviour cannot be remedied any other way, the offending behaviour call out for the court to distance itself from it and the need for the remedy greatly outweighs societies interest in having the matter decided on its merits. Conclusion [ 33 ] Given the established breaches of the accused’s rights under the Charter, this is one of the clearest of cases requiring a judicial stay of proceeding.

A Judicial Stay of Proceedings is ordered. The Honourable Judge D.M. McKimm Provincial Court of British Columbia