R. v. Nguyen Date:, 2017 BCPC 131

Citation: R. v. Nguyen Date: 20170214 2017 BCPC 131 File No: 59278-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. PHI HUNG NGUYEN RULING ON VOIR DIRE OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: F. Lepine Counsel for the Defendant: D. Baker Place of Hearing: Richmond , B.C. Dates of Hearing: December 7 and 8, 2016 Date of Judgment: February 14, 2017

[ 1 ] Phi Hung Nguyen appears before me on a one Count Information alleging that on or about the 10 th day of July, 2015, at or near the City of Richmond, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: Cocaine, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act.

Identification is not at issue. [ 2 ] At the commencement of the trial, a voir dire was entered into and this is my ruling and decision. [ 3 ] The Court heard testimony from RCMP Officer Egri, who has been a police officer with the RCMP for approximately the past nine years, all of which were at the Richmond, British Columbia detachment. At the time of the alleged offence, he was seconded to the Quick Response Team (also known as QRT), which is comprised of 4 - 5 members, in plainclothes, responsible for investigating property offences. He had been a part of QRT for approximately 1.5 years prior to July, 2015.

The officer testified that on July 10, 2015, at approximately 7:00 p.m., he and his fellow QRT members were investigating thefts at Watermania, located in Richmond, British Columbia. He was in his unmarked police vehicle, waiting for a suspect, and was alone in his vehicle undercover, near the bins at the Minoru Ice rink location. He observed a vehicle pull into the parking lot by the security office and immediately found it an odd observation, because it was parked nowhere near any other vehicles or buildings. It was, in his estimation, approximately 100 metres from Watermania and the ice rink.

He found it peculiar, because he had been there on a number of prior occasions and it had never occurred before, and there was no one around. The vehicle was a 2000 Chevrolet Malibu bearing British Columbia licence plate 385 PWE. The officer took no notes of the licence plate and relied on his Report to Crown Counsel (RTCC). He used binoculars to observe the licence plate. He did not exit his vehicle. He ran the licence plate on both the ICBC and PRIME system, and three entries appeared on PRIME. He described those entries as having a file number, a code, a header, he clocked it, and it contained a synopsis.

PRIME will have a posting of any police officer interaction with a person and any police officer can access PRIME. He noted that two of the three entries were drug related. He testified that prior to the arrest, he scanned the drug Intel on the Malibu that was posted on PRIME, but did not read them thoroughly. He scanned both synopses by clicking on the second screen and testified that both entries were drug related. He recalled that the entries were involving drugs and that the owner’s name was “Close”.

He was unable to recall if the two drug- related entries were associated to a particular person or to a particular vehicle. The third PRIME entry was a VPD matter for a ticket and he was unable to recall if he read that entry. He acknowledged that he took no notes regarding the PRIME numbers but testified that his RTCC contained the PRIME numbers. When asked how that came about, he acknowledged that days later, when preparing the RTCC, he re-typed the licence plate and re-did the entire PRIME review and that he read the entries.

He testified that in preparing the RTCC, there was a fourth file in the PRIME system, and that he inadvertently included that fourth PRIME in his RTCC, and that this was an error on his part. However, he also erred in his RTCC, because he referred to four entries, but made no inclusion of the VPD ticket. [ 4 ] The officer acknowledged that the RTCC was written days after the arrest and that there were no notes taken at the time by him regarding licence plates, PRIME entries, or his observations prior to the arrest.

In preparing his RTCC, he recalled reading both PRIME entries noted for what he referred to as “drug intel, or something like that”, but during his testimony he was unable to recall further information and details. When pressed by Crown, the officer was asked about how he was able to know which PRIME files to include in his RTCC, and he testified that the dates were there, as well as his recollection in his memory, as it had only been a few days since the alleged offence. Again, there were no notes.

In preparing the RTCC, he did not remember the PRIME file, and therefore re-ran the licence plate to obtain the file numbers, and in re-running the licence plate, there was nothing in his notes about plates, and he had to rely upon the photographs that he took on that date and time to jog his memory of the actual licence plate numbers.

The officer was asked on Direct if old PRIME searches would be brought up, and the officer testified that he had to re-do his searches, because PRIME searches are deleted at the end of a shift, and that he “recalled” from his memory that in preparing his RTCC days later, the same files re-appeared when he typed in the plate. [ 5 ] The officer testified that he found it suspicious that the vehicle was alone, that no one exited the vehicle, and therefore using his binoculars, he checked the plate and ran the licence plate.

He radioed his fellow officers that there was a suspicious vehicle in the parking lot that had PRIME files regarding drug entries. He continued observing the Malibu. He testified that a second vehicle pulled up a few minutes later and parked one stall away from the Malibu, and recalled it being an older model Honda Accord. He was unable to recall whom he observed inside the Accord.

When pressed, the officer testified that he took notes that day commencing with the arrest, but was unable to recall if his notes included the second vehicle. [ 6 ] He observed the male driver in the Malibu exit the vehicle, enter into the passenger side of the Accord and sit in the Accord. He was unable to observe inside the Accord. He was unable to observe any movement. He was approximately ten parking stalls away from the vehicles and relied upon using his binoculars.

The passenger exited the Accord some thirty seconds later, and he observed that the person was shoulder checking to see if someone was watching, and he proceeded back into the Malibu. He was unable to give further details regarding the shoulder check. [ 7 ] The officer then ran the licence plate to the Honda Accord on PRIME and it had two files regarding drugs, but he had no time to read the entries.

He radioed his fellow team members that a second vehicle had arrived and he told them to move in for an arrest. [ 8 ] He testified that he believed that trafficking was occurring because he observed two suspicious vehicles, one occupant entered the other vehicle and then exited mere seconds later, he relied on the PRIME entries and the physical location of the vehicles was unusual, all of which he said was consistent with drug dealing and therefore he had to abandon the QRT project that he was assigned to on that date and time.

He also testified that he observed the shoulder check added to his suspicion because it was done as if he was checking to see if anyone was watching and is a sign that the person is being aware of his surroundings. The officer testified that his observations were consistent with drug dealing that he had observed before in his career as a police officer and that to him, in his words, it was “blatantly obvious”, and he had to abandon his assigned project in order to deal with the Malibu and the Accord.

However, when pressed, Crown asked the officer on Direct if his experience as a police officer played a role in his decision to arrest and the officer testified “yes and that he had “probably three or four files like this where an arrest was made for drug trafficking”, however, Crown failed to obtain further testimony including his training in drug matters, his prior involvement and role in those other files, including whether he was an undercover buyer, an undercover or uniformed observer, if he was the arresting officer, and so forth.

Crown failed to ask relevant and important questions regarding this officer’s training and prior experience, all of which were vital in providing the Court information as to his formulation of his belief that he had both the objective and subjective grounds for an arrest. This was a significant

omission on the part of Crown. [ 9 ] He maintained his focus on the Honda Accord, drove his unmarked vehicle up and allowed his fellow officers to move in. He blocked the Accord from leaving and told the driver of the Accord that he needed to talk to him. He identified himself as a police officer and told the driver of the Accord that “this is not a drug rip” and he observed the driver to be scared and muttering. He did not have his weapon drawn. He testified that the driver of the vehicle was cooperative; he turned off the vehicle and handed the keys to the vehicle to the officer.

The telephone in the vehicle to the driver of the Accord rang and the officer gave the driver consent to answer the phone if it was the driver of the Malibu. The driver of the Accord did not comment nor answer. He stepped out of the Accord and was placed in handcuffs. [ 10 ] The officer did not commence taking notes until the accused (that being the driver of the Accord) was Chartered and arrested. [ 11 ] Once the accused was handcuffed, the officer did a search incidental to arrest.

In the sweater pocket of the accused was tissue paper and inside the tissue paper were nine plastic baggies of which he described looked like crack cocaine and were in rock form. Further search of the accused in his left back pant pocket produced $910.00 in currency. The officer told his fellow officers to switch channels and call in uniform officers, and a uniform officer responded that he was en route. The accused, Mr. Nguyen, asked the officer to please be discreet because he was very embarrassed. Mr.

Nguyen was placed in the back seat of the marked police cruiser that had arrived, he was Chartered from the card, Mr. Nguyen stated that he wanted a lawyer and that he would wait to speak to the lawyer in private. [ 12 ] The officer photographed the vehicles and searched the Accord. Fellow officers told him that they had the Malibu. In his search of the Accord he observed two twenty dollar bills, two knives, a Nokia phone in the glove compartment, and a Blackberry was visible and he observed an incoming call.

There was a large flare gun in the trunk of the Accord. [ 13 ] Exhibit 1 in these proceedings are a series of photographs including the nine pieces of drugs obtained, of which two were cocaine in powder form and seven were cocaine in rock form. Two of these nine were sent to be tested and came back as crack cocaine and cocaine in powder form, which are produced Certificates in Exhibits 3 and 4. Defence counsel acknowledged for the purposes of continuity and analysis of the drugs. [ 14 ] Mr. Nguyen was transported to the Detachment, the officer waited on the scene for the Accord to be towed and Mr.

Nguyen was later released on a Promise to Appear. [ 15 ] When pressed, the officer confirmed that he ran the licence plate to the Accord on PRIME and that in forming his grounds, he did so noting that the driver of the Malibu exited the vehicle, entered the passenger side of the Accord for seconds, exited, and in doing so did a shoulder check, and he looked at the totality of the evidence. He acknowledged that PRIME was a factor to forming his grounds because both had drug intel noted on PRIME, but that PRIME was in addition to his observations.

He formed the belief that both the buyer and the seller were to be arrested and he believed the driver of the Accord to be the seller and the driver of the Malibu to be the buyer. He testified that the buyer arrives first and waits, then the seller arrives, and then the buyer enters the vehicle of the seller.

When further pressed, the officer testified that even if he did not go to the second screen within PRIME that he would still arrest, because to him the headers on PRIME were in his words, not a “neutral header” and were obviously involving drugs. [ 16 ] On Cross Examination, the officer testified that he took notes and that he was taught the importance of note taking, that those notes must be accurate and complete, that those notes must be contemporaneously done, that the notes must include his observations and facts and must be done quickly, that the notes must be accurate for court purposes and for Charge approval.

He acknowledged that his memory will fade over time. [ 17 ] On Cross he was asked what are reasonable and probable grounds for an arrest, and he testified it as being defined as if there is enough evidence for a police officer to believe that an arrest can be made, that it must be more than mere suspicion, that it must be beyond suspicion, and that it is a high threshold. [ 18 ] When pressed, he testified that his RTCC was prepared within four to five days post offence, which was his normal practice. He testified that the preparation of the RTCC was done using and relying upon his memory.

The officer was pressed and agreed that nowhere in his notes were there any notes about the licence plate of the Accord, and he testified that he relied upon the photographs that he took on that date and time on the screen, and that he relied on the information appearing on his screen that remained until he signed off in preparing his synopsis that was done before he left to go home. However, when pressed, he was unable to recall doing the synopsis.

He further acknowledged that he wrote nothing in his notes about PRIME because he wished to physically observe what was occurring and that he considered it unsafe to write notes and observe at the same time, therefore he took no notes. He made no notation in his notes of the licence plates. He made no notation in his notes about PRIME. When pressed, he guessed the time when he first observed the Malibu based on the start time in his notes and the weather. He was parked approximately ten stalls away.

When pressed on Cross, he acknowledged that it is perfectly legal for two vehicles to park and meet and that it is frequently lawful to do so.

When pressed further on Cross, the officer had to guess the time that he first observed the Malibu based on his entry that the accused was Chartered at 1925 hours. [ 19 ] When Exhibit 1, the photographs, was reviewed with the officer on Cross, he testified that Photograph 8 indicated an isolated area, however, he acknowledged that the other photographs taken at the same time showed vehicles in the area and others shown in isolation. [ 20 ] When asked about the driver of the Malibu exiting the Accord and doing a shoulder check, he was unable to recall if he observed it through his binoculars or with his eyes without the assistance of binoculars.

He noted that the Malibu driver in exiting the Accord looked around more than once. He agreed that he had formed his belief that a drug transaction had occurred even before he observed the Malibu driver exiting the Accord and doing a shoulder check, believing that he was checking for police and for no other reason. When pressed by Defence counsel, he acknowledged that there could be other explanations for the shoulder check such as something catching the person’s eye or stretching his neck, but that the officer testified that it was stretching it to come to that conclusion.

[21] The officer acknowledged that he read the licence plate of the Accord but did not write it down in his notes. [22] The first vehicle that he observed, that being the Malibu, had three PRIME entries, two of which were drug related. However,when the RTCC was reviewed with the officer during Cross Examination, he acknowledged that he erred and noted that there were threedrug entries on PRIME and that the file numbers listed with headings but that there was nothing in his notes. [23] He was unable to recall how many occupants were in the vehicles, testifying that he was focussed on the licence plates.

He wasunable to recall the contents on PRIME for the Malibu, testifying that he “skimmed” them and that he did not read the entries on PRIMEfor the Accord. [24] When pressed on Cross about the computer, he testified that an officer must sign on and off and that the screen is deleted whenyou sign off. [25] The three PRIME entries were reviewed with the officer who noted one Vancouver file in 2015 noting “intel drugs”, aRichmond file noting “vehicle drugs” and a 2012 file for “impaired vehicle drugs”, testifying that he merely skimmed them and did notread them.

He acknowledged that a fourth PRIME entry was added four days after this alleged offence. When pressed, the officer wasunable to recall details on the PRIME entries. He testified that for the 2015 Vancouver file was “intel drugs”, that it involved a brokentail light, that the owner was the passenger of the vehicle, that a search did not produce any drugs or weapons, that the officer on that filesmelled fresh pot, and he agreed that the file header said “intel” and testified that it added to his grounds of a user-buyer transactionoccurring before him.

He further testified that he read the 2015 Richmond PRIME entry after the arrest, that he did not look at itbeforehand, and that he incorrectly added it to his RTCC. When asked whether the observations on PRIME can be weak, he testified thatyou must consider the scale and weigh each entry, such as the smell of pot, and the varying degree of information contained in each file.

Defence counsel pressed the officer further on Cross asking him whether the PRIME headings were indicative of the actualcircumstances of the Report and the officer testified that the headings are “usually what the file -- I don’t know how else to describe it --summary of what happened” and upon further questioning by Defence, Defence asked the officer about the 2014 Dial a Dope file for theAccord which had a faint odour of pot inside the vehicle, no grounds for a search, no evidence of driver impairment and nothingcontained in the Report about a Dial a Dope and the officer could only weakly respond that “intel” had been vetted out, however, he wasnot the investigating officer of such and no specifics were furnished. [26] On Cross, the officer acknowledged that he took no notes because he was focussed on both vehicles, and that no notes weretaken until the time of the arrest.

He acknowledged that there were two PRIME entries for the Accord, but that he did not read theentries and could only recall one header on Cross as being “intel drugs”. The officer testified that it was more important for him toobserve than to pay attention to the computer screen, that the headings are merely a

summary. [27] He testified that he possibly recalled the time that he identified himself as a police officer as being 7:10 p.m. [28] Defence counsel respectfully submits that the officer did not possess both the objective and subjective grounds to affect anarrest on the evidence before the Court. Defence respectfully submits that Crown has not met the test and burden that the search wasauthorized by law as a search incidental to arrest and that the officer did not have the reasonable and probable grounds for an arrest underSection 495(1) of the Criminal Code of Canada and therefore there was an arbitrary arrest under

Section 9 of the Charter. Defencecounsel seeks to convince the Court that as the arrest was neither authorized nor lawful, then the search is also not permissible, norlawful. [29] Crown counsel respectfully submits that the existence of lack thereof of police notes is not Constitutionally protected, however,the absence of sufficient notes can lead to questions of reliability, that the onus rests on Defence to prove a

Section 9 Charter breach onthe balance of probabilities, and if successful, only then does the onus reverse to the Crown on a balance of probabilities to prove that thesubsequent warrantless search is otherwise authorized by law. Crown further states that officer experience assists the Crown insatisfying both the objective and subjective grounds for an arrest under Section 495(1) of the Criminal Code of Canada, but the absenceof experience is not to be held against the Crown. Crown counsel relies upon R. v.

Collins, (SCC), [1987] 1 SCR 265. [30] What are reasonable and probable grounds and its definition has been extensively canvassed and defined within jurisprudence. In R. v. MacCannell, 2014 BCCA 254 , [2014] B.C.J.

No. 2069, the British Columbia Court of Appeal, at para. 44, rejected theargument that the reasonable and probable grounds must require that officer “to have considered other potential innocent inferences orexcuses from which he could have drawn an inference other than that [the accused] was committing an offence.” At para. 45, the Courtof Appeal held: This standard does not require an officer to satisfy him or herself that there is evidence of proof beyond a reasonable doubt or even aprima facie case.

All that the officer must have is an objectively reasonable basis for believing the suspect is presently in possession ofmarihuana, without necessarily ruling out potentially innocent inferences, defences or lawful excuses. That reasonable standard is less than what is required for conviction and is less than the civil standard of proof. In Mugesera v.

Canada(Minister of Citizenship & Immigration), 2005 SCC 40 at para. 114, the Supreme Court of Canada succinctly articulated the standard: The “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civilmatters of proof on the balance of probabilities. At para. 23 in R. v.

McKinnon, 2013 BCSC 2295, Madam Justice Fisher described it as “one of ‘reasonable probability’, which is lowerthan the criminal standard of proof beyond a reasonable doubt and the civil standard of proof on the balance of probabilities, but higherthan mere suspicion” and in R. v.

Chehil, 2013 SCC 49 at para. 27, the Supreme Court of Canada compared the difference between‘reasonable grounds to suspect’ and ‘reasonable grounds to arrest’ as follows: While reasonable grounds to suspect and reasonable and probable grounds to arrest are similar in that they both must be grounded inobjective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than the probability of crime. Asa result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding

reasonable and probable standard. Of course, all such aforementioned decisions build upon R. v. Storrey, (SCC), [1990] 1 SCR 241, wherein Mr. JusticeCory stated: The Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base thearrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in theposition of the officer must be able to conclude that there were indeed reasonable and probable grounds to the arrest. When assessing the objective reasonableness of the grounds for arrest, it is important to consider the experience of the officer. In R. v.Rajaratnam,

(2006) ABCA 333 at para. 25, the Court summarized officer experience as follows: A judge is entitled to consider a police officer’s training and experience in determining objective reasonableness…What may appear tobe innocent objects to the general public may have a very different meaning to an officer experienced in drug operations. Further, in R. v. Luong, 2010 BCCA 158 at para. 19, Madam Justice Bennett stated: Being ‘placed in the position of the officer’ does not just mean making the same observations as the officer, as to many lay people suchobservations would be meaningless.

Included in the assessment of whether the grounds for arrest are reasonable are the officer’sexperience, training and knowledge.

She further articulated at para. 24: The assessment of whether objective grounds exist undertaken by a trial judge is conducted by first looking at the observations of theofficer (which the trial judge has found as facts) through the lens of someone who has the same experience, training, knowledge, andskills as the officer who is making the observations, and then deciding if a reasonable person with the same lens would come to the sameconclusion as the police officer…It is the arresting officer’s lens which is key to the assessment of reasonable grounds.

In McKinnon, supra, at para. 29, the British Columbia Supreme Court stated: The assessment of a police officer’s grounds for arrest must be based on the ‘totality of circumstances’ or the factual matrix that existedat the time the decision to arrest was made. Whether other information that may have been available had the police conducted furtherinvestigations might have strengthened or weakened those grounds is not relevant: R v. Jir, 2010 BCCA 497 at paras. 28-29. [31] Defence counsel put to the officer alternative possibilities regarding the driver exiting the Accord and conducting shoulderchecks, and in R. v.

Ashby, 2013 BCCA 334, the Court stated: “Notwithstanding that each of those factors standing along can beconsistent with non-criminal activity, their combined effect, when viewed through the lens of a police officer’s experience, cannot beignored.” [32] Madam Justice Mackenzie in R. v. Wilson, 2012 BCCA 517 at para. 21 stated: “This Court has consistently held that anarresting officer’s personal experience is relevant to whether the officer’s subjective belief in grounds to arrest is objectively justified.” It is here that Crown counsel erred in its questioning of the officer.

While Constable Egri states that, to him, it was, in his words,“blatantly obvious”, that a drug transaction was occurring, Crown counsel provided extremely limited context and information as to theofficer’s experience in which he formulated such a belief.

All that this Court has is that he has been a police officer with the RCMP forapproximately nine years, all based at the Richmond, BC detachment and that he had been involved in his career in “3 or 4” similaroffences, however, again, what his engagement, involvement and experience is was not canvassed, and that prior training or experienceis relevant as set out in Wilson, supra, as to “whether the officer’s subjective belief in grounds to arrest is objectively justified” (Para.21).

In considering the threshold level of experience, if any, of the Court to properly rely upon when assessing the reasonable andprobable grounds objectively, in Ashby, supra, similar to the matter before me, there was an absence of specifics as to the officer’sexperience and training and only had vague generalizations, however, in Ashby, supra, the Court held that the strong odour of marihuanaemanating from within the vehicle was sufficient to warrant arrest, and thus can be distinguished. In R. v.

Usher, 2011 BCCA 271,Madam justice Neilson at para. 35 ruled that the officer had reasonable grounds for the arrest noting “the trial judge provided nospecifics as to how [the officer’s] lack of experience undermined his observation, or how a more experienced officer would have imbuedthose observations with a higher level of reliability.” In Chehil, supra, at para. 47, the Supreme Court of Canada stated: Evidence as to the specific nature and extent of such experience and training is required so that the court may make an objectiveassessment of the probative link between the constellation of factors relied on by the police and criminality.

The more general theconstellation relied on by the police, the more there will be a need for specific evidence regarding police experience and training. To theextent that the specific evidence of the investigating officer’s experience and training supports the link the Crown asks the court to draw,the more compelling that link will be. Finally, in R. v.

Messina, 2013 BCCA 499, our British Columbia Court of Appeal, at para. 24 summarizes: Experience factor requires that an officer’s reasons for arrest be assessed from the vantage point of a prudent, reasonable and cautiouspolice officer, similarly experienced as the arresting officer, rather than an untrained civilian. [33] I have carefully considered Constable Egri’s testimony. He has been a police officer for eight years, all with the Richmond, BCdetachment of the RCMP. At the time of the matter, he was seconded to the QRT and not in the drug section.

His testimony wasextremely limited in terms of his knowledge of drug transactions and he testified that he had been involved in “three or four files likethis”. I do not know “what like this” means. Crown failed to expand and ask further questions. I have no idea when he was involved inthose other files. I have no knowledge of his involvement in each of those files, for example, if he was an undercover buyer, a scribe, auniformed arresting officer, and so forth, and therefore I am extremely limited in terms of the work experience in drug trafficking.

Histestimony as to how he could identify a drug buyer and drug purchaser was limited to him testifying “from my history with the police”and nothing further was asked of him to expand upon that. There was no information provided as to any educational and professional

training. His testimony in terms of experience and training to formulate his reasonable and probable grounds was extremely broad in terms of sweeping generalizations and broad statements in terms of generalizations. I am not convinced that the totality of the evidence presented by the officer demonstrates a level of skill, knowledge and awareness of drug trafficking situations and the behaviours of the parties involved in such situations to go beyond the experiences of a lay person.

While there may be no absolute minimum threshold of experience that a court requires to establish that an officer has the requisite experience necessary to form reasonable and probable grounds, in this particular instance, I find that Crown did not illicit the very basic of information to the Court in which to even determine what his experience is at all. The testimony was extremely weak and in very broad-brushed terms that could almost apply to any police officer engaged in any process. In R. v.

Gill, [2015] BCJ No. 360 , and particularly para. 48, the British Columbia Supreme Court stated: I think the danger to be avoided is that that officer will simply assert that certain behaviour is consistent with drug trafficking, without being able to ground that assertion in objective experience or to link in a transparent way that was observed to that experience, in a way that the court can assess. The Court further stated at para. 48 when accepting the evidence: These were, in my view, more than generic characteristics. They seem to me to describe quite a distinctive type of transaction.

I do not consider myself to be in the position of deferring to a bald assertion by him of what was happening here. By criteria that he was able to explain and justify fully, he had more than a suspicion before him. He had observed what, when set against those distinctive characteristics, was the completion of a drug deal.

However, what distinguishes the admitting of the evidence in Gill , supra , was that the testimony afforded the Court far more detail in terms of observations, including money in a hand, and more background experience provided to the Court about the officer. [ 34 ] I am unable to concur that there were sufficient grounds to be objectively reasonable. There is little information about the nature, scope, type, and historical involvement of this officer and his experience in other drug related files.

His testimony regarding accessing PRIME was concerning and that he relied far too heavily on merely skimming the entries and relying upon headers that by his own admission were not always accurate. One entry, for example, related to a vehicle and not the person. The officer’s testimony regarding shoulder checks, also known as “heat checks”, was void of detail that could have and should have been asked of him by Crown counsel.

There was no shoulder check by the driver exiting the Malibu, there was no shoulder check upon entering the Accord, there was a shoulder check exiting the Accord to return to the Malibu but no information for how long the shoulder or heat check was, in what direction or directions. In addition, by his own admission, the officer largely relied upon the use of his binoculars and when pressed from time to time was even unable to recall if some observations were with his sole vision or reliant upon binoculars. He was unable to observe how many persons were in each vehicle.

He did not observe any hand to hand transaction. He did not observe any change of items. He did not testify that he observed the person exit the Malibu carrying something in his hand or putting something on his person. I am not convinced in my view, the observations made of the actions of the accused, when considered having regard to the nominal information provided to the Court regarding the officer’s experience involved, objectively supports the officer’s belief in the existence of reasonable grounds. [ 35 ] I am troubled by the complete absence of notes by the officer prior to the accused being arrested.

He acknowledged on strong Cross Examination that he knew the importance of taking notes, the importance that the Court places on note taking, the importance and necessity for note taking; however, he failed to do any of that. He was unable to recall because he took no notes even when he first observed the vehicles and had to guesstimate based on his later note of the time that he arrested and Chartered the accused. He did not write down any licence plates and solely relied on photographs that he took at the scene at the time to later refresh his memory when he prepared his RTCC.

He did not write down any of the PRIME file numbers. He prepared his RTCC not on notes, but from his memory days later. He acknowledged that memory fades. He testified that he only “skimmed” PRIME because he was focussed on the vehicles, but he relied on some of the inaccurate headers in PRIME for formulating his reasonable and probable grounds. However, for an officer who testified that he merely “skimmed” PRIME because he wished to observe what was occurring, he was also unable to recall significant points of reference because he failed to take any notes prior to the arrest of the accused.

The officer largely based his testimony on relying upon the RTCC. In R. v. Fliss , 2002 SCC 16 , in writing for the majority, Mr. Justice Binnie stated at para. 45: There is also no doubt that the officer was entitled to refresh his memory by any means that would rekindle his recollection, whether or not the stimulus itself constituted admissible evidence. This is because it is his recollection, not the stimulus, which becomes evidence.

The stimulus may be hearsay, it may itself be largely inaccurate, it may be nothing more than the sight of someone who had been present or hearing some music that had played in the background. Memory can be refreshed using material in any form. The difficulty in the matter before me is that the officer acknowledged through his training the importance of note taking, the importance of accurate note taking, the importance of taking contemporaneous note taking, however, he failed to take any notes until the time of the arrest.

He failed to write down licence plates, physical descriptors of the persons observed, he failed to write down PRIME numbers, he failed to write down times. There was a complete omission. Notes only commenced at the time of the arrest. Thereafter, days later the RTCC was prepared, not relying on notes taken days before, but on his memory. He acknowledged that memory fades. Even at the time of his testimony, there were significant gaps and he had to rely on the RTCC, which again, was prepared from memory. I am not satisfied that the past recollection was recorded in a reliable manner.

I am not convinced that it was sufficiently fresh and vivid to be probably accurate at the time of preparing the RTCC, as it was largely based on his memory in the preparation. He acknowledged to errors in the RTCC. This is very basic entry level police officer training. Note taking is paramount. It is of utmost importance when one’s rights and liberties are impacted. Relying upon memory in the preparation of a report to seek out criminal charges against an individual is not an acceptable standard in our community to be expected of police officers.

I am not convinced that the officer can indeed assert that the RTCC and his record at that time accurately represented his knowledge and recollection at the time. He had to re-trace his memory and re-enter the PRIME entries. He had no notes at the time to refresh his memory. In the decision of R. v. Pickunyk , 2012 ABPC 318 , Judge Allen thoroughly reviewed the law of an officer relying on documentation to refresh memory and at para. 39 stated: Notes or notations must be made at a time when they are sufficiently fresh and vivid to be accurate.

If the alterations are not made at a time when the officer would have had a fresh and vivid [memory] then the alterations would affect the admissibility of the document. If

the notes or report on alteration was made at a time when the memory of the witness was sufficiently fresh or vivid those notes would be admissible. In interpreting how fresh the notes must be the rationale for this requirement must be kept in mind. There was nothing in the officer’s notes that would have been sufficiently fresh and vivid in the preparation of the RTCC and by his own admission he had to re-access PRIME and was unable to recall the licence plates or even times.

He largely relied on memory in the preparation of the RTCC, and thereafter in the voir dire , he had to rely on the RTCC, which I am not convinced was accurate. In endeavouring to rationalize his absence of notes in key areas such as licence plates, he testified, “It’s kind of unsafe to just all of a sudden whip out your notebook and jot down information I could obtain later.” That is not how an officer is trained or how an officer should conduct an investigation. His training has taught him otherwise. He was parked in an unmarked vehicle and stationary.

There was no “sudden whipping out of a notebook” that would have jeopardized any observations. Police officers are trained and have an obligation to prepare accurate and detailed notes as soon as is practically possible to do so. This officer never prepared any notes up until the arrest, and thus there is a complete absence of notes regarding any of his key vital observations that would have formed his reasonable and probable grounds for arrest. An absence of notes goes to the very heart of a witness’ credibility.

Notetaking aids in refreshing one’s memory at a later date and is an aid to credibility of that witness. Relying days later on a few photographs to re-run licence plates through PRIME is not sufficient and is not a reasonable standard of care that a police officer should impart in the course of his or her duties. Even with the assistance of the photographs, the officer was unable to recall the licence plates and had to refer to those in the preparation of the RTCC. [ 36 ] I then turn my mind to the Supreme Court of Canada decision of R. v.

Grant , 2009 SCC 32 and largely the analysis undertaken for Section 24(2) if the breach can be saved and the evidence deemed admissible. In considering such, the Court must consider the seriousness of the Charter -infringed state conduct, the impact of the Charter protected interests upon the accused and society’s interests as a whole in the adjudication of this matter on the merits. In considering all of the foregoing, the Court must then make a determination if on the balance; the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute.

At para. 74 in the Grant , supra , decision, the Court held: State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law.

At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. [ 37 ] I am not prepared to allow the admission of the evidence under the voir dire . Simply put, there was nothing that precluded this officer while sitting parked in an unmarked cruiser from taking notes regarding his observations, including physical descriptors, licence plates and something as very basic as the time that this was unfolding.

In para. 108 of the Grant , supra , decision the court very clearly stated: Admission of evidence obtained by deliberate and egregious police conduct that disregards the rights of the accused may lead the public to conclude that the court implicitly condones such conduct, undermining respect for the administration of justice. To allow this would undermine the administration of justice. This goes to the credibility of the officer. Privacy of the individual is a key consideration and the accused is entitled to a reasonable expectation of privacy.

The search was a deliberate disregard for the Charter rights of the accused. There was nothing to preclude the officer from taking notes of his observations and there is little in the way of evidence as to his prior experience in which to formulate his belief that a drug transaction was occurring. I am aware that society has an interest in the adjudication of this matter on the merits, but the Charter infringement cannot be saved under Section 24(2). I am satisfied that there were both

Section 8 and 9 Charter breaches. The principles as set out in the Charter are well-entrenched and an officer must turn his or her mind to critically reviewing their belief in grounds for arrest. This did not occur. [ 38 ] These are my Reasons. The Honourable Judge K. Arthur-Leung Provincial Court of British Columbia