R. v. Chahine, 2020 BCPC 294

Citation: R. v. Chahine 2020 BCPC 294 Date: 20201030 File Nos: 91997-1 91997-2 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. LYON SAM CHAHINE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE A. TAM Counsel for the Crown: M. Chiu Counsel for the Defendant: M. Beckett Place of Hearing: Kelowna , B.C. Dates of Hearing: October 28 & 29, 2020 Date of Judgment: October 30, 2020

Overview [ 1 ] Mr. Chahine has been charged with two counts of possession of a controlled substance for the purposes of trafficking contrary to s.5(2) of the Controlled Drugs and Substances Act . This is Mr. Chahine’s application to exclude evidence pursuant to s. 24(2) of the Charter . Upon Mr. Chahine’s arrest on May 9, 2019, he was advised of the reason for his arrest as well as his right to retain and instruct counsel. He immediately indicated that he wished to speak to a lawyer, specifically legal aid. He was then brought to the police detachment where he was strip-searched.

This was done before he had an opportunity to speak to a lawyer. Mr. Beckett, on behalf of Mr. Chahine says that this was a breach of Mr. Chahine’s s. 10(

b) rights. As a result, the drugs found in the course of the strip search ought to be excluded. Background Facts [ 2 ] Between May 7 - 9, 2019, the Drug

Section of the Kelowna RCMP were engaged in an investigation, targeting an operation commonly referred to as a dial-a-doper. The police came to believe that an individual by the name of Elliott was a frequent buyer of narcotics. The police associated Elliot with a particular address. Surveillance was set up at this address on May 7, 2019. On that day, they saw a grey Durango arrive at the driveway of this residence whereupon Mr.

Elliott entered the vehicle for approximately a minute, and then exited. [ 3 ] This attracted the police attention as this pattern was consistent with the driver of the Durango engaging in drug trafficking. As a result, surveillance was conducted on the Durango. On May 7, the Durango was observed in approximately 20 interactions which were suspected to be drug transactions in that the suspected buyer would enter the vehicle for a brief period of time and then exit. On May 8, 2019, surveillance was attempted on the Durango but nothing of significance was observed. On May 9, 2019, Cst.

Celli, one of the main investigator in this matter, concluded that Mr. Chahine (the driver of the Durango) was arrestable for the offence of trafficking in a controlled substance. Surveillance started on the Durango at approximately 9:00 a.m. on May 9, 2019. Cst. Celli decided to continue with the surveillance before effecting an arrest just to ensure that the driver of the Durango was still engaged in the offence on that day. Cst. Celli observed one further brief interaction similar to the 20 or so observed in the two days prior. Cst. Celli and fellow officers then followed the Durango to a gas station. When Mr.

Chahine went inside the store, one of the officers, Cst. Joyce followed him and arrested him. When Cst. Joyce and Mr. Chahine came out of the store, Cst. Lukash took over the custody of Mr. Chahine. She advised him the reason for his arrest and advised him of his right to retain and instruct counsel. Mr. Chahine indicated that he wished to speak with Legal Aid. [ 4 ] Mr. Chahine’s custody was then transferred to Cst. Celli. Together, they travelled in a marked police vehicle back to the Kelowna detachment. Once there, Cst. Celli engaged in a strip search of Mr. Chahine. The reasons Cst.

Celli did so were as follows: 1. Because of the observations he and fellow officers made the two days prior, Cst. Celli believed Mr. Chahine to be a drug trafficker; 2. The arrest was effected in the morning. In Cst. Celli’s approximately 15 years experience as a police officer, most of which investigating offences related to drugs, he believed that Mr. Chahine was in possession of drugs since it is more practical for drug traffickers to start the day with a cache of drugs in order to avoid having to go back multiple times to where they are stored. 3. Upon Mr. Chahine’s arrest, Mr.

Chahine’s cell phone kept on ringing, which was consistent with him being a drug trafficker. 4. Upon his arrest, no narcotics were found after a cursory search of Mr. Chahine’s person. 5. The fellow officers who stayed at the scene and searched the Durango indicated that no controlled substances were found in the vehicle. 6. The door to the Durgango was left unlocked when Mr. Chahine went inside the store at the gas station, indicating that drugs were unlikely to be left unsecured in the vehicle. [ 5 ] For all those reasons, Cst. Celli believed that Mr.

Chahine was secreting the drugs on his person – a practice not unfamiliar to the experienced officer. Consistent with RCMP policy, he asked for authorization from his supervisor, Cpl. Carroll, to conduct a strip search. Cpl. Carroll authorized the search, after reviewing the RCMP policy as to how these are to be conducted with Cst. Celli. During the search, Mr. Chahine was asked to remove his underwear. When he did this, Cst. Celli asked Mr. Chahine to spread his legs, whereupon a bag of drugs fell to the ground. It is this bag of drugs that is the subject of this s. 24(2) application.

After the drugs were found, Mr. Chahine was then afforded an opportunity to contact a lawyer. A call to legal aid was placed, a message left, and eventually, Mr. Chahine was able to connect with a lawyer from legal aid. As stated earlier, Mr. Beckett says that the evidence ought to be excluded because he says that Mr. Chahine should have been afforded that opportunity before the strip search. On this application, neither the appropriateness of the strip search, nor the manner in which it was carried out, is in issue. Additionally, the lawfulness of Mr. Chahine’s arrest is also not contested.

The sole issue is whether there had been a breach of Mr. Chahine’s s. 10(

b) rights in the circumstances. If so, Mr. Chahine says that the subsequent strip search of his person amounted to an unreasonable search or seizure, resulting in a breach of his s. 8 Charter rights. [ 6 ] Because the timing of the various events are important to this application, below is a timeline of the salient facts: 9:30 a.m. – Mr. Chahine was arrested at the convenience store associated to a gas station; 9:40 a.m. – a marked police car arrived to transport Mr. Chahine to the Kelowna RCMP detachment 9:47 a.m. – Mr. Chahine en route to the detachment Just after 10:00 a.m. – Mr. Chahine arrives at detachment

10:10 a.m. - Cst. Celli speaks with Cpl. Carroll to seek authorization to conduct a strip search 10:11-10:15 a.m. - strip search of Mr. Chahine 10:21 a.m. – call placed to legal aid, the line was busy 10:29 a.m. – another message left for legal aid 10:52 a.m. – another call placed to legal aid 10:54 a.m. – Mr. Chahine was on the phone with legal aid and received legal advice Was there a breach of Mr. Chahine’s s.10(

b) rights? [7]

Section 10(

b) of the Charter guarantees that Mr. Chahine has the right to retain and instruct counsel without delay and to beinformed of that right. However, “without delay” does not mean immediately in the absolute sense. Constitutional compliance isinformed by the surrounding circumstances. In R. v. Patrick, 2017 BCCA 57, the Court said this at para.112: [112] In R. v. Suberu, 2009 SCC 33 at paras. 2, 42, the court held that the police have a duty to inform a detainee of his right to retainand instruct counsel, and a duty to facilitate that right immediately upon detention.

The immediacy of this obligation is, however, subjectto concerns for officer or public safety. A police officer’s implementation duties are “necessarily limited in urgent or dangerouscircumstances”: Taylor at para. 31, citing R. v. Bartle, (SCC), [1994] 3 S.C.R. 173. In Ashby, this Court noted that, “theexigencies of the arrest situation can excuse immediate compliance with s. 10(b)”. The burden rests with the Crown to show that delay infacilitating a request to obtain legal advice on detention was reasonable in the circumstances.

Whether the delay was reasonable is afactual inquiry: Taylor at para. 24. [8] On the evidence before me, I have concluded that the Crown has shown why a brief delay in allowing Mr. Chahine in calling alawyer was reasonable in the circumstances. Mr. Chahine was arrested at 9:30 a.m. He arrived at the detachment at just after 10:00 a.m.At 10:10 a.m., Cst. Celli sought, and was granted, authorization to conduct a strip search. The search was completed by 10:15. The callwas placed to legal aid on Mr. Chahine’s behalf at 10:21.

There were, therefore, 51 minutes between his arrest and when the first call tocounsel was placed. That is not an inordinate period of time in the context of this investigation. [9] However, the analysis should be a principled one and should not result in an over/under exercise. With respect to why Cst. Cellidecided to conduct the strip search prior to allowing Mr. Chahine to call a lawyer, he said that, by that point, he suspected that Mr.Chahine had secreted drugs on his person. His primary focus was to get the drugs before Mr. Chahine had an opportunity to eitherdestroy, or worse, ingest the evidence.

It is now common knowledge that this country is in the midst of an opioid crisis. Street drugs alltoo frequently contain fentanyl or other substances that are extremely potent and therefore dangerous. Mr. Chahine consuming anyamount of the substance could cause an immediate medical emergency. [10] Allowing Mr. Chahine to talk to a lawyer at the detachment would mean placing him in the “phone room”. To properly affordhim the right to consult with a lawyer, the police, quite properly, would leave him alone in the room to allow him privacy. This roomwould then be locked.

There is a window through which one could look into this room, and there is a surveillance camera that wouldallow one to monitor inside. However, the evidence is that the camera provides a blurred image and does not clearly depict all that isgoing on within. [11] In my view, monitoring Mr. Chahine either through the window on the door, or through the surveillance monitor are notadequate measures to address the concerns that the officer had. If Mr. Chahine decided to ingest the drugs that he had on his person, bythe time the police opened the locked door to get to him, it would almost certainly be too late.

The damage will almost certainly be doneby that point. In other words, Cst. Celli had a legitimate reason for delaying the implementation of Mr. Chahine’s right to counsel for abrief period of time. I also find that Cst. Celli acted diligently and in a timely manner throughout this investigation. As soon as Mr.Chahine arrived at the detachment, Cst. Celli sought authorization to conduct a strip search. The search was concluded within 4 minutes.Thereafter, a phone call to legal aid was placed in a very timely fashion. The delay in this case was reasonable given the concerns thatfaced the officer. Mr.

Beckett argued that the police could have offered Mr. Chahine an opportunity to contact counsel at the scene of his arrest. Either atthe gas station or from within the marked police vehicle where Mr. Chahine was placed. And since Mr. Chahine’s own cell phones wereseized as evidence, the officers could have allowed him to use theirs. However, Cst. Lukash’s concern was that privacy could not beafforded given that they were in a public place. I find that to be a legitimate reason in this case.

In any event, no authority was drawn tomy attention whereby the failure of a police officer in affording the detainee an opportunity to contact counsel at the scene of the arrestwould result in a breach of his/her s. 10(

b) rights. In fact, the Supreme Court of Canada said this in R. v. Taylor, 2014 SCC 50, at para.27: [27] The majority in the Court of Appeal was of the view that in light of Cst. MacGillivray’s acknowledgement that he could haveprovided his own cell phone, the “‘mistake’ in failing to provide it” gave rise to a breach of s. 10(b). The Crown takes issue with thisfinding, and I agree that in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to adetained individual. [12] In the result, the fact that Mr. Chahine was not given a chance to call a lawyer at the scene does not, in this case, amount to a s.10(

b) breach. [13] Mr. Beckett also challenged the claim that this was an urgent situation which justified the officer to conduct the strip search priorto allowing him to call a lawyer. If it had truly been an urgent situation, the officers would have conducted a strip search at the scene,rather than waiting to do it back at the detachment.

[ 14 ] In my view, there are two difficulties with this argument. Firstly, in R. v. Golden , 2001 SCC 83 , the Supreme Court of Canada spelled out a number of criteria for the police to follow if a strip search were to be constitutionally compliant. The very first criterion listed at para. 101 is that the search should be done at the police station, absent exigent circumstances. And in those cases, the police need to justify why the search could not be safely done at the detachment.

This is because that strip searches conducted in the field represent a much greater invasion of privacy and pose a greater threat to the detainee’s bodily integrity. I agree with Mr. Chiu that, had Cst. Celli conducted a strip search in the field in this case, that would have been Mr. Chahine’s complaint on this voir dire . One must also keep in mind that Mr. Chahine was arrested at a gas station at 9:30 in the morning. The environment simply does not allow for a strip search to be conducted safely and at the same time respecting Mr.

Chahine’s privacy and bodily integrity in the way Golden mandates. [ 15 ] The second difficulty with Mr. Chahine’s position is that, the decision to conduct a strip search was actually not made until closer to the time Mr. Chahine was back at the detachment. When Cst. Celli accompanied Mr. Chahine to the police station, his fellow officers stayed behind to conduct a search of the Durango. They advised Cst. Celli by phone that no drugs were found within. It was only after Cst. Celli learned this that he decided to conduct a strip search since, by process of elimination, the drugs are most likely on Mr.

Chahine’s body. By this point, Mr. Chahine was already at the detachment, or at least en route. Cst. Celli testified that, had a quantity of drugs been found in the vehicle, that would have affected his decision as to whether to conduct a strip search. Consequently, the fact that a strip search was not conducted at the scene does not diminish the officer’s claim that this was an urgent situation which justified a brief delay in allowing Mr. Chahine to consult with legal counsel. [ 16 ] For the above reasons, I find that the Crown has justified why the delay was reasonable. I find that there was no breach of Mr.

Chahine’s s. 10(

b) rights. In the result, the strip search did not constitute an unreasonable search or seizure in violation of Mr. Chahine’s s. 8 rights. Other Cases [ 17 ] Three other cases were drawn to my attention that bear some resemblance to the case at bar. In Rezaei , 2017 BCSC 1639 , one of the accused (Ms. Eremenko) was strip searched prior to being given an opportunity to contact a lawyer due to security and safety concerns. Mr. Justice Jenkins approved of the police conduct in that case and did not find a s. 10(

b) breach. At para. 43, the court said: …Upon return to the Coquitlam detachment, it was necessary to carry out the strip search without allowing Ms. Eremenko to leave supervision as it may have been possible for her to dispose of the drugs supposed to be on her person. As such, Ms. Eremenko was not able to place a call in private until after the strip search was concluded. At that time, she was given access to Legal Aid. At no time did the police attempt to elicit evidence from Ms. Eremenko beyond what she had hidden in her person. I do not find her s. 10(

b) rights to have been infringed upon given the officers’ belief that Ms. Eremenko needed to undergo a strip search. [ 18 ] In Rezaei , the accused was not able to contact counsel until over 3 hours after her arrest. [ 19 ] In R. v. Johal , 2015 BCCA 246 , our Court of Appeal similarly approved of the police decision to delay allowing a detainee to contact counsel before a strip search is conducted so that he did not have an opportunity to discard any drugs he had on his person. See para. 7. [ 20 ] In R. v. Adams , 2019 BCPC 360 , my brother Judge Sicotte did find a s.10(

b) breach where the police did not allow the accused a chance to call a lawyer before a strip search. However, I find Adams to be distinguishable because on the evidence presented in that case, there was no pressing concern about Mr. Adams discarding or ingesting the evidence. At para. 62, Judge Sicotte wrote, citing the two cases mentioned above: [62] In R. v. Johal , 2015 BCCA 246 , at para. 7 , there was evidence that the police conducted the strip search prior to a call to counsel to prevent the accused from discarding any drugs while in the private phone room. [63] In R. v.

Rezaei , 2017 BCSC 1639 , at para. 43 , the officer justified delaying the call to counsel until after the strip search on the basis that they wanted to prevent the detainee from destroying any drugs on her person. [64] There is no such evidence before me. It may be that the phone room at the Langley Detachment allows observation of the detainee whilst speaking to counsel. It may be that the police had no concern about Mr. Adams destroying any drugs that may be on his person. [65] In any case, I have no evidence of any justification by the police for postponing the call to counsel until after the strip search.

In fact, the opposite is true. Cst. Shaikh testified that he did make such an offer to Mr. Adams but Mr. Adams declined to make such a call. [Emphasis added.] [ 21 ] Unlike in Adams , both Cst. Celli and Cpl. Carroll explained in detail their concerns with respect to the destruction or ingestion of the evidence. Accordingly, I find that the jurisprudence supports my earlier conclusion that, in circumstances similar to the case at bar, the police are justified in delaying the accused’s opportunity to consult with counsel until after the strip search is conducted. Consequently, there is no s. 10(

b) breach in this case.

Summary and conclusion [ 22 ] Once Cst. Celli concluded that there was likely drugs secreted on Mr. Chahine’s person, he had a legitimate concern about Mr. Chahine destroying or ingesting the evidence. For that reason, it was reasonable for him to allow Mr. Chahine to call a lawyer only after a strip search was conducted. The strip search was otherwise in compliance with the constitutional requirements set out in Golden . There was no s. 10(

b) or s. 8 breach in this case. There is, therefore, no need to embark upon a s. 24(2) analysis. For the foregoing reasons, Mr. Chahine’s application is dismissed.

_______________________ The Honourable A. Tam Provincial Court Judge