R. v. Choi, 2019 BCPC 212

Citation: R. v. Choi 2019 BCPC 212 Date: 20190423 File No: 50863-1 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SUNG WHAN CHOI and DAWN BOBBIE LARSON RULING ON APPLICATION OF THE HONOURABLE JUDGE J. GUILD Counsel for the Crown: M. Canzer Counsel for the Accused Choi: J. van der Walle Counsel for the Accused Larson: N. Jacob Place of Hearing: Vernon , B.C. Dates of Hearing: December 20, 21, 2018 and March 6, 2019 Date of Judgment: April 23, 2019 A Corrigendum was released by the Court on September 19, 2019. The corrections have been made to the text and the

Corrigendum is appended to this document. Introduction [ 1 ] Sung Hwan Choi and Dawn Bobbie Larson are charged on information 50863 – 1 with three counts of possessing a controlled substance for the purpose of trafficking on October 27, 2017. The accused allege several violations of their rights under the Canadian Charter of Rights and Freedoms ( Charter ) . They submit that the police did not have reasonable and probable grounds to arrest them. Mr Choi argues that the police strip searched him at the police station and that they violated his

section 10(

b) Charter rights by asking him questions about whether he had anything on him during the course of a pat-down search at the scene of arrest. If any Charter violations are found, the accused will seek exclusion of evidence including drugs seized and a voluntary statement made by Mr. Choi at the police detachment. Submissions have not been made regarding exclusion of evidence. This decision, in a voire dire , is limited to determining whether there were any Charter violations as alleged.

I Reasonable and Probable Grounds to Arrest and Arbitrary Detention [ 2 ] The accused acknowledge that the police suspected they were involved in drug trafficking but argue that the police did not have reasonable and probable grounds to arrest them. The relevant Charter provisions read as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. [ 3 ] The goal of s. 8 is to protect people from state action that invades their privacy without sufficient cause and unreasonable state acts where there is cause.

There is a balance required between their interest in being left alone and the public interest in investigating crime. The state’s interests prevail when credibly-based probability replaces suspicion [1] . [ 4 ] R easonable grounds to suspect and reasonable and probable grounds to believe must be grounded in objective facts. Reasonable suspicion is a reasonable possibility, whereas reasonable grounds to believe requires a reasonable probability of crime. That is less than a prima facie case. Police must take all factors into account in arriving at their conclusions.

That means they must consider equivocal and exculpatory information in determining whether or not the requisite legal standard has been met, but that does not mean that they must exclude every other possibility before acting. [ 5 ] A police officer must subjectively believe the requisite grounds exist. The objective reasonableness of that belief is assessed from the perspective of a reasonable, prudent and cautious person, with the knowledge and experience of the police officer. An arrest will be valid where that person would have believed that reasonable and probable grounds existed to make the arrest.

Where a police officer arrests someone based on another officer’s instructions, the instructing officer’s perspective governs. In deciding whether the police infringed a person’s Charter rights, they must be judged on what they did, not what they could have done. The Crown has the onus of proving that an arrest was lawful. [ 6 ] The dividing line between reasonable grounds to suspect and reasonable grounds can sometimes be a difficult one to draw. I must also be cautious in assessing grounds given the advantage of hindsight. However, that does not mean I must defer to police assessment at the time.

To do so would be to render judicial oversight meaningless. [ 7 ]

Section 9 of the Charter protects citizens from arbitrary detention. An unlawful arrest does not mean there was an arbitrary detention. Arbitrary means that it was capricious. The individual has the burden of proving that he or she was arbitrarily detained. Reasonable grounds in this context has the same standard as s. 8. [ 8 ] The relevant part of the Criminal Code states: 495.

(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence. [ 9 ] If I have not specifically mentioned a fact or point of law, it does not mean I have not considered all of the facts, applicable law and submissions. Facts Investigation Background [ 10 ] In the late summer of 2017 police were investigating people they believed were in the upper echelon of a drug-supply chain for street-level drug traffickers in Vernon.

The street-level traffickers were what have been termed dial-a-dope drug sellers, which police identified as the most prominent means of drug trafficking in Vernon. Dial-a-dope selling was described as usually involving a vehicle being used to deliver drugs to people who had requested them through cell phone or text messaging. The actual drug sales involve very brief interactions between people in the vehicle and the buyer/drug user.

Attempts are made to hide the actual transaction from view, often accomplished by the drug transaction occurring in the vehicle, at other times around or behind buildings or between parked vehicles. [ 11 ] In dial-a-dope selling the buyer/user telephones or text messages a particular telephone number they know is associated with buying drugs and places their order. A drug runner, who is at the lowest level of the drug-supply chain, delivers the drugs to the buyer, usually by car. The buyer will wait for the drug runner to arrive at an agreed upon location.

The drug runners have shifts or schedules so that the business can operate 24 hours a day, seven days a week. Usually there are two people in the car: a driver; and a passenger who answers the phone and does the drug dealing. Sometimes there is only one person so the driver does all of those things. The drug runners

may use their own cars, but a car may be used by different drug runners and be registered in someone else’s name. That registered owner may be actively involved, or just supply their name as the registered owner. [ 12 ] Above the drug-runner position is a “loader” whose job is to supply the drug runners, often many times a day. The loader may also control where the main supply or “stash” is located. Above the loader is another supplier who replenishes the stash every few days and/or supplies the loader. The actual people who are drug runners can change readily.

Others at lower levels such as the loader can also change, or the role may be fulfilled by more than one person because it is a business that runs continuously, which requires different people to fulfil the roles at different times. [ 13 ] The police investigation included surveillance of a Ms. Mitchell (Mitchell) from the end of August to the end of October 2017. Police believed she was a loader in the supply chain for a particular dial-a-dope telephone number. Police determined that Mitchell had different cars registered in her name and those cars were used to sell illicit drugs.

Police also had good reason to believe that Mitchell would travel to a location near Gatzke Road close to Oyama that was in the open but in a relatively secluded area, making it difficult for police to conduct surveillance. Police used a remote camera and video system to make observations of that area to prevent their operations being detected.

The police observed Mitchell go to that area and they believed she was supplied with drugs from another vehicle from the lower mainland or Kelowna and then she would provide what she had received to drug runners. [ 14 ] In September, police had seen Mitchell meet with a male named Saskiw. He was in a Saturn Ion and was arrested in possession of drugs that were packaged for street-level sales shortly after that meeting.

Police believed that he had just received the drugs from Mitchell but had not sold any yet, in part because other people in that car said they just started their shift that evening and had to meet with Mitchell before they started the shift, and in part because of the street-level packaging of fentanyl and cocaine. Mitchell was the registered owner of the Saturn Ion. This is consistent with dial-a-dope drug selling with Mitchell as the loader. [ 15 ] That month police also saw Mitchell interact regularly with a woman, later identified as the accused Larson. Police did not know her identity at the time.

Police surveillance of Larson and Mitchell at the end of September and beginning of October included observations of Mitchell driving a blue Honda Civic and having a couple of interactions consistent with dial-a-dope drug selling on one day. The next day police observed Mitchell driving her Saturn Ion, meeting up with Larson in the Civic at what police identified as a well-known location for drug selling, both cars driving to a residential area and stopping, Larson meeting with Mitchell at the Ion and then the cars going their separate ways.

The Honda Civic, with Larson and another male trading roles as driver, then made four separate stops consistent with dial-a-dope drug trafficking before police stopped their surveillance. Police also observed Larson driving Mitchell around Vernon in another car that police later thought was associated to Larson. [ 16 ] Police had also obtained tracking warrants for cell phone numbers related to the individuals they were investigating, including Mitchell.

Through the cell-phone tracking police came to believe that the telephone number associated to the investigation had been stationary for quite some time although drug sales appeared to be continuing. Police believed that was because although one telephone number was used as the drug sales number, that number was call forwarded to the phone numbers of drug runners as needed. Police concluded that the cell phone that had the number for the dial-a-dope line was therefore in one location and not moving.

That cell phone was tracked to 883 Academy Way near UBC in Kelowna, which police came to believe could be a stash house. Police investigation also revealed that a black Chevy Malibu was associated to the person police believed to be at the top of the group, whose nickname was Gerry, and another male named Chow. That car with those people had been stopped in Abbotsford on the weekend of September 30 to October 1, 2017. On October 3, the Malibu was seen at 883 Academy Way.

On October 6, 8 and 10, Mitchell’s cell phone was tracked to the Gatzke Road meeting spot and she also appeared to go there on October 17. [ 17 ] On October 20, police observations led them to believe Mitchell, driving her Saturn Ion, was supplied drugs from the Chevy Malibu at the meeting spot near Gatzke Road, after which Mitchell drove into Vernon and the Malibu went on to the Coquihalla Highway. Later on, police observed a Dodge SX, also registered to Mitchell, travel to different parts of Vernon over a three-hour period and engage in activity consistent with several street level dial-a-dope drug sales.

One of those included observations of the Dodge pulling into a cul-de-sac by 43 Street and 15 Avenue in Vernon. Because it was a short dead-end street, police surveillance was difficult. After it left the cul-de-sac the car continued to be operated in a manner consistent with dial-a-dope selling. Police estimated they observed seven drug transactions. After the last transaction, police arrested the person who they thought had just bought drugs from that car. Police found what they believed was cocaine and the person told police the phone number he had called to buy those drugs.

It was the phone number associated with the drug-trafficking group police were investigating. The tracker showed the phone number’s location was at 883 Academy Way, supporting the theory the phone was call forwarded.

I find that arrest, seizure and information corroborates police beliefs regarding the existence of the drug-trafficking operation and that Mitchell was involved in some way, including that at least two cars registered in her name were used to sell drugs. [ 18 ] On October 24 police conducted surveillance and saw the Malibu being driven by an Asian male linked to 883 Academy Way, later determined to be Chow, drive to just outside of Vernon near the intersection of Commonage and Bailey Roads. Police saw the Malibu meet with the Dodge SX at that intersection.

Later on that day the SX was stopped by general duty police officers who found a quantity of drugs and money as well as a cell phone, suggestive of the drugs being possessed for the purpose of trafficking. The two people arrested were David Nguyen and the accused Choi. A police officer identified Nguyen as the person driving the Dodge SX on October 20. After the arrest, the tracker for Mitchell’s phone indicated it was near Gatzke Road. The video camera showed what appeared to be a meeting between two cars, consistent with her Saturn Ion and the Malibu at that meeting spot.

On October 25 police saw a Hyundai Sonata registered to David Nguyen at a residence on Woodsdale Road that had been identified previously as linked to the drug-trafficking group being investigated. On October 26 the Malibu and the Sonata were parked next to each other outside 883 Academy Way. [ 19 ] On October 26, Cpl. Pollock met with the other investigators involved including Cst. Fradette. Cpl. Pollock testified that as a result of that meeting, his view and that of the other police officers [2] was that they had sufficient grounds to arrest the people involved.

He testified he had reasonable grounds to believe that Chow was in charge of the residence on Academy Way and another residence on Woodsdale Road, either of which were stash houses; that Chow would supply Mitchell and she in turn, as the loader, would supply the drug runners. The drug runners would be arrestable once they received what police believed to be a re-supply, but to avoid those higher up in the drug-trafficking group being alarmed and to allow police time to obtain search warrants for the Academy Way and Woodsdale

Road residences, the police plan was to follow the drug trail. They would surveil the Malibu from Academy Way, watch the drug transfer to the loader at the Gatzke or Commonage Road meeting spot, watch the loader supply the drug runners and then arrest the drug runners after observing “a couple of drug deals” [3] . That plan is what led to these charges. In addition, Cpl. Pollock testified that police thought they had not yet proven their theory that what they had observed was in fact a drug-supply chain. October 27 Investigation Cpl. Pollock [ 20 ] Cpl.

Pollock has been an RCMP officer for 15 years and the supervisor of the Vernon drug unit since April 2014. He testified that the drug unit’s focus has been primarily on dial-a-dope drug-trafficking groups. At the time of his testimony in December 2018 he estimated he had been involved in 40-to-50 such investigations and about 20 at the time of this investigation. He had also been involved in three undercover projects where police posed as a drug user, purchasing drugs 50-to-60 times in total. Cpl.

Pollock testified that there were certain spots in Vernon that were well known to police for drugs sales, irrespective of who was selling. Those included the Civic Apartments, the Blue Moon Esso, Jim’s pizza, Sewage Plant Park, the Tamarack Apartments and the cul-de-sac near 15 Avenue and 43 Street. He testified that police had seen “several drug dealing cars that we were watching doing other drug deals go into that cul-de-sac and come back out you know a minute later.” [4] On October 27, the police observed the Sonata leave 883 Academy Way.

Police thought they saw it on Highway 97 travelling north near Bailey Road and shortly after going south where it was followed to a used car dealership in Kelowna. Police officers saw a number of Asian males in the dealership lot, including David Nguyen. Police also saw a car belonging to Capri Insurance nose-to-nose with a Ford Focus. Police believed that somebody was insuring the Ford they had just bought. Police saw the Ford Focus leave with a female driver and an Asian male passenger. They did not follow it. Police followed the Sonata which left shortly after, at about 11:23 a.m.

It went and parked at the meeting spot near Gatzke Road. The video camera then showed the Malibu park at that same pull-out and people from the two cars met. It looked like a male from the Malibu gave something to one of the people in the Sonata. The Malibu then went back towards Kelowna and the Sonata went north towards Vernon, then turned onto Bailey Road. [ 21 ] Cpl. Pollock believed that the driver of the Malibu had provided drugs to the people in the Sonata. Cpl. Pollock saw the Sonata pull over at the Commonage and Bailey Road intersection meeting spot and park.

Other police then relayed over police radio what they observed. Cpl. Pollock listened to what they were saying. He heard there was a meeting between the two vehicles. They were in close proximity to each other and both passenger doors were open. Based on what he saw and heard Cpl. Pollock believed that the people in the Sonata were delivering the drugs they had just received from the Malibu to the drug runners in the Ford Focus. It would make no difference to Cpl. Pollock’s belief who the people were in the Focus.

His belief was that their role was clear and, to follow the plan, the Ford’s occupants would be arrested for possession for the purpose of trafficking illicit drugs after police observed what they thought were street-level drug transactions. Police followed the Ford and the Sonata because they both drove north on Commonage Road towards Vernon. The Ford turned onto Okanagan Avenue while the Sonata went straight ahead. Police followed the Ford. [ 22 ] Cpl.

Pollock testified police followed the Ford Focus and observed “a couple of drug deals and then he made the arrest.” [5] He testified that the Ford Focus went to the cul-de-sac near 15 Avenue and 43 Street. He could only see the back taillight. Cpl. Pollock understood from other police officers that there were two people in the Ford. Their identities were unknown. Another officer on the surveillance team saw somebody in the back seat when the car was in the cul-de-sac, although when the car left two minutes later that person was not in the back seat and there were only two people in the car. Cpl.

Pollock believed there had been a drug sale because of the area known for dial-a-dope drug sales, the short duration in the cul-de-sac, and the fact that somebody was briefly in the back of the car. [ 23 ] The Ford then went to the Tamarack Apartments where it went around the back of the building and came back shortly after. Police did not see what transpired behind the building. Cpl.

Pollock testified he would have to assume what had happened and because it was difficult to observe what was going on without being detected, he did not think he had actually ever seen what occurred when he had watched other cars dealing drugs go behind the building. [ 24 ] After that the Ford went to a gravel area near Linear Park. Cst. Fradette made the actual observations but relayed over the radio that he believed a stereotypical drug deal had occurred. Somebody had gone to the Ford, got in the back then got back out shortly after. Cpl.

Pollock thought the person had come from Linear Park and returned back the same way. The park was known as an area where police had seen the occasional drug deal and that it was a “hotspot” for drug users. He also testified that drug trafficking was very common in the whole square area of about five blocks around the Upper Room Mission, which included the area in question. [6] [ 25 ] At that point police had a very quick discussion about what to do and Cpl. Pollock testified he and others felt that what they expected to happen with their plan had in fact occurred. The last incident in plain sight appeared to Cpl.

Pollock to be the perfect opportunity to arrest the occupants of the Ford so as not to alert any others higher up in the organization. He testified as to the grounds he had for the arrest of the Ford’s occupants. They included what has been set out above, that police had seen Gerry at the Academy Way residence and Chow meet with Mitchell and David Nguyen. In

summary, the police believed that Chow had delivered drugs to Nguyen in the Sonata, who then delivered the drugs to the Ford Focus occupants, who then sold to drug buyers in a manner consistent with dial-a- dope drug sales. Police followed the Ford Focus where it stopped at the Blue Moon Esso. Cpl. Pollock and Cst. Fradette pulled in and surrounded the Ford in their police vehicles. Cpl. Pollock activated his emergency lights in his unmarked police car and went to the driver’s door where he arrested the driver, the accused Larson, for possession of a controlled substance for the purpose of trafficking. Cpl.

Pollock testified that Cst. Fradette went to the passenger side and arrested the passenger and as that was occurring, he saw that the passenger seemed to be manipulating something around his pocket or pants, which he pointed out to Cst. Fradette. The passenger was the accused Choi. [ 26 ] In cross-examination Cpl. Pollock agreed that he was the supervisor that day and it was his call to make the arrest. He agreed that he had not put in his notes or report to Crown counsel anything about the “hot spots” in Vernon for drug trafficking.

He clarified that although the accused’s names were used in various police documents, they were not known as the occupants of the Ford until they were arrested. Police had used their names, once known, as a way of identifying the people they were referring to in their notes. He was clear

that the identity of the people in the Ford was irrelevant to the grounds for arrest. His decision to arrest was based on the two-month investigation, the plan police had formulated and the fact that what the police expected, occurred. He agreed he had never heard of Choi’s name until information was received after the arrest on October 24. He confirmed his understanding that there were only two occupants in the Ford after it left the Commonage Road meeting spot.

He testified that the surveillance report from October 27 indicated only that there was a driver and a passenger, although it did not explicitly say that the person seen in the car in the cul-de-sac was not in the Ford when it left the cul-de-sac. The officer relied on the observations of other police officers for that knowledge. He agreed it was possible that a person might be picked up from one location, driven to another location and dropped off.

He agreed there were no real details of the person who got in the car during the last transaction that might have indicated the person had received something, or in fact interacted with the driver or passenger of the Ford. He agreed that Choi was not seen using a cell phone before his arrest on October 27. Cpl. Pollock agreed that without the two-month investigation, if the police had only seen what they had seen after the meeting at the Commonage Road meeting spot, he would not have thought there were reasonable and probable grounds to arrest the Ford’s occupants.

He said police try to see more than three suspected drug deals before making an arrest and he volunteered that no drug deal was seen at Tamarack Apartments. Cpl. Pollock agreed that the observations of Nguyen at the Commonage Road meeting spot were consistent with him selling drugs to drug users, although given the history of the police investigation, it did not seem that way. [ 27 ] In cross-examination by counsel for Larson, Cpl. Pollock agreed that there were more significant hotspots for drug trafficking in Vernon apart from the ones he had listed.

He testified that he and other police officers had seen drug deals in the cul-de-sac quite a few times and believed a known drug user lived there. He provided the name of that user. He agreed that in his evidence in chief he incorrectly identified the registered owner of the Buick in which he testified Larson was seen driving Mitchell. He also agreed that police thought a different person had been driving the Malibu throughout the whole investigation; in other words, the police had misidentified an individual where the two people looked quite similar. [ 28 ] Cpl.

Pollock also added that with respect to the Commonage Road meeting on October 27, some other facts previously mentioned made it unlikely that the interaction was a street-level drug deal. Cpl. Fradette [ 29 ] Cpl. Fradette had been an RCMP officer for some 14 years, including a year-and-a-half with the drug unit and four years in the serious crime unit. He had also spent a year-and-a-half on a street crime unit in the Yukon where the focus was drug and prolific- offender investigations.

He had participated in street to mid-level drug investigations in a number of different roles and estimated he had been involved in a hundred dial-a-dope street-level investigations by the time of this investigation. His explanation of the hallmarks of a dial-a-dope drug transaction were virtually identical to those given by Cpl. Pollock. He had become the lead investigator with respect to the larger police investigation targeting the people higher up in the drug trafficking organization. His evidence regarding the overall investigation is similar to Cpl. Pollock’s.

He testified that he had beliefs similar to Cpl. Pollock’s regarding the meaning of the observations and investigation, namely that there was a drug-trafficking organization involving the people and locations identified by Cpl. Pollock in his testimony.

He also testified that he and the other police officers involved in the investigation had various meetings where they would discuss whether or not the police considered they had reasonable and probable grounds to arrest people and apply for search warrants. [ 30 ] He provided additional details regarding October 27 including that there were five people in the Sonata when it was travelling from Vernon towards Kelowna. He confirmed he did not know who the occupants of the Ford Focus were, although he was able to see that the driver was a female and the passenger was a male.

He thought the male could be the accused Choi. He testified he had believed that the individuals involved in the drug-trafficking group just purchased the Ford Focus and were going to use it for drug trafficking. He was able to see that there was only one person in the Malibu when he watched it pull into the Gatzke Road meeting spot. He described in greater detail the meeting there. He saw the Malibu driver reach into his vehicle through the open driver’s door and appear to hand something to the driver of the Sonata.

He believed that the Malibu driver had just given drugs to the Sonata occupants based on the police investigation up to that point. [ 31 ] He provided more details about his observations of the meeting between the Sonata and the Ford. He testified he could see that the passenger doors of both cars were open and the passengers were leaning out and interacting in some way. After following the Focus it was his belief there were two people in it.

He provided details of observations made of the Dodge SX on October 20 when it had engaged in seven dial-a-dope drug transactions, including in the cul-de-sac. [ 32 ] With respect to the Linear Park incident, he testified that the Ford stopped in the middle of a parking area, he saw a male run from the area of a taxi stand on the northeast corner across the intersection and get into the rear passenger side of the car. The male was in the Ford for 15-to-20 seconds, got out and then ran back in the direction from which he had come.

At that point there were two people in the front of the Ford and he could not see anybody else in it. He could not see anything going on inside the car and he relayed his observations to the other police officers. He testified that his belief was that the occupants of the Ford had sold drugs to that male based on the totality of the investigation up to that point, including the interactions between the Malibu, the Sonata and the Ford. His beliefs were the same as Cpl.

Pollock’s [ 33 ] With respect to the Tamarack Apartments, he had no doubt in his mind that it was a drug deal because all that police had observed was consistent with his knowledge and experience as an investigator of dial-a-dope drug trafficking.

He testified briefly about the police plan, confirmed that the police involved in the investigation communicated briefly, discussed the plan to tell the Ford’s occupants they had just been seen selling drugs and that there was a group decision to arrest the Ford’s occupants after the Linear Park observations. [ 34 ] He testified he drove his unmarked police car towards the driver’s side of the Ford, turned on the emergency equipment and then the siren briefly. He went to the passenger side of the Ford and saw Choi in the front passenger seat. He could not recall if the door was open or if he had opened it.

He told Choi that he was under arrest and then saw on the car seat a little package between Choi’s legs that the officer believed were drugs. Cpl. Fradette then asked Choi to get out of the car and handcuffed him. Another officer began searching Choi incident to arrest while Cpl. Fradette provided him with his Charter rights and the police caution.

[ 35 ] In cross-examination he agreed he did not see anyone pass anything when the Focus and Sonata met. He confirmed he was not the police officer making observations of the cul-de-sac. He confirmed that the male did not come from Linear Park. Cst. Catton [ 36 ] Cst. Catton had been a member of the RCMP for over nine years in various sections. He was one of the officers involved in the overall larger investigation, although most of his time was devoted to a separate murder investigation. His evidence focused on his observations on October 27.

His evidence regarding the cul-de-sac was that he had seen only two people in the Ford before it got to the cul-de-sac, the driver and a front-seat passenger. He did not follow it into the cul-de-sac but drove past the entrance and at that point he saw there was a third person leaning towards the front two occupants. He testified he did not see the third person get into the car or leave it. He parked his police car nearby. Within a minute the Ford passed him and he could see that there was only the female driver and male front passenger who were ultimately arrested.

He testified he could clearly see that there was no rear passenger. He was aware of the general police plan but was not told what vehicles or targets would be involved. He testified that in his view, after all of the observations had been made on October 27 and from what he had heard over the police radio, that the police plan had been achieved. He agreed in discussion with Cpl. Pollock and Cpl. Fradette that police should execute the plan to arrest the occupants of the Ford.

Analysis and Conclusions [ 37 ] Although I do not specifically refer to all of the submissions and case law provided, I have reviewed and considered them in my analysis. Mr. Choi’s submissions centre on October 27, and more particularly, on what was not seen. I agree that there were many things typical of dial-a-dope selling that the police did not observe. On October 27, the only things that police saw were that Mr. Choi was a passenger in the Ford Focus when it was acquired from the dealership, after which there was a gap in police surveillance.

He was then observed to be the passenger, having some interaction with the Sonata at the Bailey and Commonage Roads pull-out; he continued to be the front-seat passenger throughout the rest of the police observations. Although there are situations where, in law, a passenger can be in control of a vehicle, there is no direct evidence that Mr. Choi was in control of the Ford Focus. [ 38 ] Cpl. Pollock testified he would not have had reasonable and probable grounds to arrest the occupants of the Ford based solely on the events of October 27.

Even if he had grounds subjectively, there would not have been objectively reasonable grounds for such a belief. Mr. Choi may have been along for a ride with a friend, Ms. Larson, as she did some errands. He may have also just been an acquaintance of at least one of the people in the Sonata. What was seen on October 27, if observed by a passer-by, had the appearance of lawful activity, but when viewed with the experience and training of Cpl. Pollock in the context of a two-month drug investigation, it lost some of that innocence. [ 39 ] Cpl.

Pollock made no direct observations regarding the third person in the backseat of the Focus, but relied on the observations of other officers. Cst. Catton had a clear view of the car. Before the car entered the cul-de-sac he saw only two people in it, the driver and the front-seat passenger. Shortly after, he saw the Ford parked in the cul-de-sac and a third person in the backseat of the car leaning forward towards the front occupants. Within a minute or so, when it left the cul-de-sac, he saw only the original two people in the front of the car. He was not cross-examined on that evidence.

The information was credible. It was reasonable for Cpl. Pollock to rely on Cst. Catton’s observations as relayed over the police radio. The fact that the third person was not observed to enter or leave is immaterial. Clearly he or she did, in a short period of time, which is consistent with a dial-a-dope purchaser. [ 40 ] Cpl. Pollock testified there were a number of known spots for drug trafficking in Vernon. His knowledge of these sites was questioned in cross-examination and submissions because, for the most part, none of them were in his notes or report to Crown counsel. Cst. Catton and Cpl.

Fradette also testified that the cul-de-sac and the Tamarack Apartments were known by police as areas of drug trafficking and testified how they came by that knowledge, including a belief that a drug user lived in that cul-de-sac. Those officers were not cross-examined on that knowledge or belief, suggesting that evidence was not in issue. Cpl. Fradette was in the investigative unit led by Cpl. Pollock. The evidence showed that the officers shared information regularly; that is in part how they investigated drug trafficking. I conclude that Cpl.

Pollock had the same information as he testified to, despite not having written it down. [ 41 ] All of the police witnesses testified that the cul-de-sac was a place police believed was known for drug sales, which was a factor in each of them concluding that the Ford was likely engaged in selling drugs when it went into that cul-de-sac. There is no requirement that police write down every fact relied on in coming to a conclusion. A failure to do so invites scrutiny, but it is not axiomatic that the testimony is disbelieved. I accept it was part of Cpl.

Pollock’s reasons for coming to that conclusion, just as it was for the other officers. Given what had been discovered through the entire two-month police investigation, in all of the circumstances, what occurred in the cul-de-sac probably was a drug sale. That does not mean that it could not have been innocent, but excluding such possibilities is not required. [ 42 ] Cpl. Pollock’s evidence was that the whole five-block area around Linear Park was a known area for drug sales. That included the location where the Ford stopped again for a brief interaction with a male.

The male ran across the street each way suggesting he was in a hurry. He was not dressed for running as recreation. So why did he get into the car for 15-20 seconds instead of standing at the window to talk? That makes no sense. Although police did not see many things consistent with dial-a-dope drug sales, they did see a number of them. The most plausible explanation fits a desire to have the interaction hidden from public.

It fits a drug transaction. [ 43 ] Questions arise when analysing other meetings: why the Gatzke Road spot if they were meeting for a lawful purpose rather than a gas station or the side of the road? Because the Sonata went to the Commonage meeting spot and waited briefly for the Ford after which they met, the meeting was likely pre-arranged. Why would the Ford go into Vernon, then go back and meet at the Bailey and Commonage spot, then both cars travel back into town? Why would they not meet in town rather than go to a meeting spot where they could monitor if police were observing them?

Although it is possible that there was a change in plans, in the context of the entire investigation it is probable that those meetings were for exactly what police thought – drug trafficking. [ 44 ] Police also testified how dial-a-dope street-level sales occur. There are usually two people involved, the driver and the passenger, each with a role. Although the driver could perform all the tasks, that is not the usual method. The situation here was not the same as a person found at a marihuana grow operation, as argued. There was uncontroverted evidence as to the usual paradigm for dial-a-

dope drug trafficking; and evidence of the Ford passenger, an Asian male, interacting with the Sonata passenger directly after a package was delivered to the Sonata in an unusual location by the same car that had come from what was consistent with a “stash house”. Historically, that general scenario had resulted in the occupants of the receiving car selling drugs in a dial-a-dope style. All of that was cogent circumstantial evidence supporting a reasonable belief that, irrespective of who they were, both the driver and the passenger of the Ford were engaged in dial-a-dope trafficking.

As noted at the outset, the uncontested evidence is that the dial-a dope roles are “fluid” - different people can fulfil the role of drug runner and loader. Although the loader was not Mitchell, police identified the male as David Nguyen, who had been identified in the larger investigation as associated with the group. Given the nature of the drug business and the evidence, it is immaterial that the loader was not Mitchell. [ 45 ] Cpl. Pollock excluded the Tamarack Apartments incident as a factor, although on all of the evidence in my view he could have relied on it to some degree.

The fact that he did not shows restraint in the use of information to support a belief. I have also considered that he wanted to make sure there was a trail demonstrating a supply of drugs; that he wanted to confirm that what was transferred from the Malibu to the Sonata and likely transferred to the Ford was drugs and that the proposed police actions were discussed and planned amongst the officers. Cpl. Pollock did not have a jaded eye that precipitously assumed benign activity was a drug transaction. He drew conclusions based on his training and experience.

He testified he wanted to test his hypothesis that what police had been observing was a dial-a-dope drug-supply chain. He proceeded to do so. That is prudent. In the context of the entire police investigation I am satisfied that Cpl. Pollock objectively and subjectively had reasonable and probable grounds to arrest both occupants of the Ford when he decided to do so and that the accused were not arbitrarily detained. II. Strip Search Facts [ 46 ] Mr. Choi was searched incidental to his arrest at the scene by Cst. Catton. Cpl. Pollock searched Mr. Choi as part of the booking-in process at the detachment.

That process involves getting personal information from prisoners, searching them and giving them access to counsel. Mr. Choi was searched in the booking area of the detachment. Cpl. Pollock testified that the goal is to ensure that people who are put into police cells have no means of harming themselves and no access to consuming further drugs. He testified about his usual practice, which he followed on this occasion. That practice included having the person take off their clothes and shoes until there is one layer of clothing and no jewellery. He testified he has the prisoner do that to minimize contact.

If there is a belt, it is removed. If there is a string in the prisoner’s pants they are given options including pulling it out, having it cut, or being given another set of pants to wear so that their clothing is not damaged. The search usually occurs in the booking room where their personal and medical information is entered into a computer. Police also screen for alertness and other behavioural issues that might be of concern. Cpl.

Pollock testified it is a policy to search everybody coming into cells for contraband, weapons, or anything else that could be used to harm themselves and that it was common for people to try to bring drugs into cells and try to use or dispose of them. [ 47 ] The booking room is monitored by a camera that records what goes on in that room. A copy of the video recording was played in court and entered as an exhibit on the voire dire . In the booking room a female guard was on duty and stood at the computer behind the desk. The guard was entering Mr.

Choi’s personal information into the computer throughout the entire search. The computer was on a desk that appeared to be about eight-feet long and about waist height. The computer was hidden from view from the camera by what appears to be a wooden structure. The camera was near the ceiling looking at the desk at an angle that also included the area where Mr. Choi was searched. From my review of the video, the guard’s view of the search was blocked by the computer, the wooden structure and Cpl. Pollock, who was in between the desk and Mr. Choi during the search. [ 48 ] Cpl. Pollock first removed Mr.

Choi’s handcuffs. Consistent with his practice, Cpl. Pollock had Choi remove extra clothing such as shoes and a jacket. Cpl. Pollock minimized the amount of physical contact. Mr. Choi was wearing pants with a drawstring in them, so the drawstring had to be removed or cut. Cpl. Pollock offered some other pants to wear so that his clothes would not be damaged, but Mr. Choi chose to have the drawstrings cut. No issue is taken with that aspect of the search. [ 49 ] Mr. Choi was then directed to stand facing the wall where the camera was, but still in view of it, and to put his hands on the wall. Cpl.

Pollock does that in part to ensure that people do not lose their balance. Mr. Choi’s back was facing the guard and Cpl. Pollock. Cpl. Pollock, using gloved hands, lifted up Mr. Choi’s shirt to about mid-chest area and searched it. He did so to see if there was anything in the shirt including at the top of the collar. He testified it was a standard search and lifting the shirt allowed him to feel if there was any weight in it, presumably to see if there was anything hidden. When Mr. Choi’s shirt was lifted up, a small part of the waistband of his underwear was visible above the waistband of his pants. Cpl.

Pollock then checked the elastic waistband area of Mr. Choi’s pants. He testified he did so because the waistband is a common place to hide things, that it is easily accessible and because it is a point of tension where a person could put something between their body and the elastic of the pants or belt if one was used. He testified, and it is clear on the video, that he pulled the waistband out while conducting that search. He testified he did that because needles are a very common thing and he did not like sticking his hands anywhere he could not see, for his own safety.

He was wearing rubber gloves as opposed to other more protective gloves. Cpl. Pollock did not perceive that as a strip search. [ 50 ] The video clearly shows that more than the waistband of Mr. Choi’s underwear became visible, although it is not clear that all of his underwear was exposed or visible to the officer. The officer testified that he could see the top of Mr. Choi’s underwear going all the way around and did not have a good look at the underwear. Cpl. Pollock then checked the waistband all around Mr. Choi’s waist, after which he let the pant waistband go, returning the pants to a normal position. Cpl.

Pollock proceeded to feel all down each of Mr. Choi’s legs and inspected the pant pockets. That was the end of the search. The entire booking-room process took about six minutes. At approximately 2:48 into the video Mr. Choi was directed to stand against the wall. At 2:51 his shirt was lifted up. At 2:58 the waistband search started. It finished 10 seconds later. The rest of the search took about 15 more seconds. The physical search took about 35 seconds in total. [ 51 ] Cpl. Pollock did not have any reason to believe that Mr.

Choi had secreted drugs and stated he did not have grounds to believe any drugs were hidden in his crotch or underwear. Cpl. Pollock did not seek approval from a supervisor, nor make any notes of the reason for the search or the steps taken, although the video clearly shows what was done better than any testimony could. The video would have been broadcast to a room with several screen monitors in the police detachment and would have been visible to any civilian

guards or police officers in that room. There was no evidence that any other person saw the video or was in the room. The female guard in the booking room did not look at the monitor or at Mr. Choi during any part of the search. Cpl. Pollock testified it was the kind of search he would regularly do for anyone going into cells; that it was his obligation to check the waistband and that he did not want to stick his fingers where he could not see in case he was poked by a needle.

For that reason he holds back the waistband slightly as he performs a search to look where his fingers are going as he runs his fingers along the waistband. Cpl. Pollock testified he considered it a search incident to arrest. [ 52 ] He was aware of the decision of the Supreme Court of Canada decision of R. v. Golden [7] , but did not think it applied to the search he conducted. He testified he had read the National and North Okanagan RCMP Policy regarding strip searches and confirmed that the National Policy defined a strip search as defined in Golden .

After defence counsel pointed out that a strip search included any exposure or rearrangement of undergarments, Cpl. Pollock acknowledged that what he had done could be interpreted as a strip search, although he did not understand it or intend it to be that. He testified he was aware there were a number of further steps required if he was going to conduct a strip search. He agreed he was visually inspecting the waistline and appeared to realize and acknowledge that it might meet the definition of a strip search.

Analysis and Conclusions [ 53 ] At paragraph 47 of Golden , a strip search was defined as … the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments. [Emphasis added] [ 54 ] Later in that paragraph, a strip search was compared to other searches: This definition distinguishes strip searches from less intrusive “frisk” or “pat-down” searches, which do not involve the removal of clothing , and from more intrusive body cavity searches, which involve a physical inspection of the detainee’s genital or anal regions. [Emphasis added] [ 55 ] The latter reference to removal of clothing may mean that what occurred in this case was closer to a pat-down search than a strip search, but as there was no argument on that point, I will not rely on it.

I accept that a strip search includes the re-arrangement of clothing to allow a visual inspection of underwear and does not require that clothing be removed. A lawful strip search can only be done incident to a lawful arrest for the purpose of discovering weapons or evidence related to the arrest and police must establish reasonable and probable grounds justifying the strip search itself. This was a search incident to a lawful arrest. I find that this was a strip search. [ 56 ] I find that Cpl. Pollock purposefully inspected the entire waistline including the waistline of Mr.

Choi’s underwear in his search because the purpose of the search was to find anything that might be concealed. A belt or elastic waist of pants created “tension”, as he described it. He felt he had to inspect that as a place where items might be hidden. The waistband of underwear also creates “tension”. Visually inspecting the underwear fulfils the purpose of the search and is consistent with inspecting the waistband of pants. I am sure that is why he testified that his intention was to visually inspect the waistline and that it did not look like there was anything in the underwear. [8] III.

Questions During Pat-down Search on Arrest Facts [ 57 ] Counsel agree that Mr. Choi was given his Charter rights by Cpl. Fradette after his arrest and asked to speak to a lawyer. He was then searched incident to arrest by Cst. Catton. Mr. Choi argues that a question asked by Cst. Catton during the pat-down search was a failure to hold off asking potentially incriminating questions and therefore a violation of his s. 10(

b) Charter right. [ 58 ] Cst. Catton testified that he was told by Cpl. Fradette to take custody of Mr. Choi and that he had been arrested and provided his Charter rights. There is no indication that Cst. Catton was told that Mr. Choi had asked to speak to a lawyer and Cst. Catton did not make any inquiries. He did not think that Mr. Choi had accessed counsel if he had exercised that right. Cst. Catton then confirmed with Mr. Choi that he knew that he was under arrest and what his Charter rights were. He testified Mr. Choi only acknowledged he understood and that he would have made a note if Mr.

Choi had said he wanted to speak to a lawyer. [ 59 ] Cst. Catton testified he asked while searching Mr. Choi if he had any weapons or anything sharp on him. He does not recall if Mr. Choi said anything in response. He testified he asked that question for safety reasons because he did not want to be accidentally stabbed or injure Mr. Choi if he pushed too hard during his search. He did not think that Mr. Choi was trying to mislead him and did not think he had any such objects, though that did not change any safety concerns the officer had because in his experience people sometimes forgot.

In cross-examination he agreed that in his statement he had written down that Mr. Choi had answered “no” after being asked if he had anything sharp. That question, however, is not in issue. [ 60 ] As he began the pat-down search, he felt a bulge in Mr. Choi’s left jacket pocket. He thought it was drugs and it felt like other drug packages. He asked Mr. Choi what it was. Mr. Choi said words to the effect of “more stuff”. Cst. Catton thought he meant drugs. He found illicit drugs when he looked in the pocket.

He testified he asked what it was because he could be wrong and it might be something that would harm him or Mr. Choi. Cst. Catton agreed that the bulge was soft as opposed to being hard like a weapon, that Mr. Choi was in handcuffs at the time and that he was aware of his duty to hold off asking questions. That was not explored further and I infer that what he meant by his answer was that he was aware of the law, but because he did not get an answer when confirming Mr. Choi understood his rights, in his mind, Mr. Choi had not exercised his right to counsel.

Analysis and Conclusions [61] Mr. Choi argues that the question was open-ended and in the circumstances did not relate to officer safety. I do not understandthe argument to be that if the question was more specific, for example, “is that something sharp or a weapon you forgot about”, that itwould be equally impermissible. Rather, there was a failure to hold off questioning Mr. Choi because it was a general question wherethere were no specific safety concerns and the officer thought that the bulge was drugs.

That meant the only real anticipated answer wasan incriminating one. [62] The Crown argues there was no evidence to suggest the officer asked the question in order to elicit an incriminating response;rather the evidence is that the question was asked because of a concern it might not be drugs. In other words, Cst. Catton was trying to minimize the risk of possible harm to himself or Mr. Choi. The Crown relies on R. v. Ashby[9], for the proposition that the police do nothave to remain silent but can ask questions during a search.

While it is true that the Court stated it is inevitable that there will be someconversation between a police officer and a detainee before the person has had an opportunity to speak with a lawyer, the Court alsostated that similar open-ended questions in that case may have resulted in a technical violation of the Charter. A technical violation isstill a violation. [63] Mr. Choi was in state custody. He was legally compelled to comply with the directions of the police. He was cooperative. InCst. Catton’s view he was upset and glum because he was in custody.

It might be expected that he would not want to repeat things topolice. There was nothing to suggest he did not understand his rights initially, though I appreciate that Cst. Catton was trying to ensureMr. Choi was fully informed of his Charter rights. More to the point is that the police officers were careless in not communicating witheach other clearly that Mr. Choi had asserted his right to speak to a lawyer. Had Cst.

Catton known that, he may have been more diligentabout respecting his obligation to hold off asking potentially incriminating questions. [64] The Crown does not argue he did not have that obligation. Clearly, he did. That has been the law since the Supreme Court of Canada decisions in R. v. Prosper[10], if not R. v. Ross[11].

Section 10 (

b) of the Charter helps protect an accused’s rights regarding self-incrimination. That is the reason for the police obligation to refrain from trying to elicit inculpatory evidence from a detainee until theyhave had a reasonable opportunity to get legal advice about how to exercise that right and whether or not they should speak with police. [65] The real issue is whether the question asked was a question that could lead to a potentially incriminating response. I say “could”because the focus is on refraining – it is the risk of wrongful self-incrimination that must be protected.

Police may not have the intent ordesire to violate a person’s Charter rights and yet still violate them. “Would” focusses on police intent. “Could” focusses on theobligation and whether a question might infringe the person’s rights. [66] In the circumstances of this case I have no doubt it was a Charter violation. Cst. Catton expected an inculpatory response. Therewas no evidence to suggest that he even had a suspicion the bulge was a weapon.

Although I do not ignore considerations of police safetyand the risks police take every day, those risks have to be evaluated on a case-by-case basis based on the information at hand. There willalways be safety concerns for police. Despite that, police must respect the rights of people they deal with, especially those in theircustody. Mr. Choi’s s.10 (

b) Charter rights were violated by Cst. Catton asking him about the bulge in his jacket pocket. _________________________ The Honourable Judge J. Guild Provincial Court of British Columbia [1] Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145 at p. 167 [2] I recognize their views are hearsay [3] Transcript December 20, 2018 p. 45 lines 17-24 [4] Transcript December 20, 2018 at p. 5 [5] Transcript December 20, 2018 p. 45 lines 22 -24 [6] Transcript December 20, 2018 p. 48 lines 44 - 45 [7] [2001] 3 SCR 679, 2001 SCC 83 [8] Transcript December 21, 2018. p. 33 [9] 2013 BCCA 334 [10] (SCC), [1994] 3 SCR 236 [11] (SCC), [1989] 1 S.C.R. 3 CORRIGENDUM - Released September 19, 2019

On the Ruling on Application dated April 23, 2019, the following change has been made: [1] The Style of Proceedings should read: File No: 50863-1. _________________________ The Honourable Judge J. Guild Provincial Court of British Columbia