R. v. Tsang Date:, 2014 BCPC 81

Citation: R. v. Tsang Date: 20140214 2014 BCPC 0081 217489-3-C Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHI LING ADRIAN TSANG RULING ON SECTION 24(2) EXCLUSION APPLICATION M. GIARDINI

S. Paulson J. Myers Vancouver, B.C. February 14, 2014 Date of Judgment: February 14, 2014 [1] THE COURT: Let me begin by reiterating what s. 24(2) of the Charter provides.

Section 24(2) of the Charter reads as follows: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rightsor freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances,the admission of it in the proceedings would bring the administration of justice into disrepute. [2] In the Yoon case, already referred to in my ruling this morning, Madam Justice Arnold-Bailey addressed the two steps to follow inmaking a determination under s. 24(2). She noted that Mr.

Justice Doherty in the case of R. v. Plaha (2004), (ONCA), 24 C.R. (6th) 360 (Ont.C.A.), said there are two issues to determine under s. 24(2). [3] The first is a threshold question of nexus. If the threshold question of nexus is satisfied, then the court turns to evaluating whetherthe admission of the impugned evidence would bring the administration of justice into disrepute.

As I understand it, this means thethreshold requirement is dealt with first and then the Grant factors are considered. [4] The threshold requirement was characterized by Madam Justice Arnold-Bailey as follows (in that case, she was dealing with astatement that was made by the accused): The threshold requirement is a determination of whether the impugned evidence ... has been "obtained in a manner that infringed" a rightunder the Charter. [5] Therefore, that is the first question I must answer in this case.

This, of course, requires me to consider the arguments made by theCrown and the defence regarding the search conducted after the finding of the pill bottle. [6] In Plaha, Mr. Justice Doherty said a "causal connection" is not required. The court must review the entire course of events todetermine whether the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. Theconnection between the breach and the obtaining of the evidence may be temporal, contextual, causal, or a combination of the three.

Theconnection must be more than tenuous. [7] In order to deal with that threshold question I need to again briefly examine the facts again. First, it is clear that both Constable Peckand Constable Robinson saw an object "leaving" the car via the passenger-side window.

Constable Robinson could not identify what theobject was other than it was an object, whereas Constable Peck, who was a passenger in the police car, gave very specific and detailedreasons as to what she saw and what she thought the object was. [8] Constable Peck said what she saw looked like a white bottle being thrown from the passenger side of the vehicle. My recollection ofher evidence is that she thought, because of the force with which it exited, that it had come from the driver's side. She could not saydefinitively what it was, but it was something white that looked like the size of a pill bottle.

What she saw appeared to be a whitecontainer that had weight to it. It did not appear to be paper, gum, or a cigarette. [9] Constable Robinson said he saw an object come out of the passenger-side window as the Hyundai was driving east. He could not saywhat came out, but he too formed an opinion as a result of seeing that object.

He said once he saw the item come out of the window, hebelieved someone did not want to be stopped by the police or someone was trying to get an item out of the vehicle before it was stoppedby the police. [10] Constable Peck said that on seeing the white container being thrown out of the vehicle, she thought it was drugs. She relied on herprevious personal experience as a police officer and also what she had learned from other police colleagues about illegal items beingthrown from vehicles. [11] In cross-examination, she was asked questions about the container.

She said it was a clear container, the lid was white, the label waswhite, and the pills inside it were white. She said that explained why she saw the object as a white container. She also said when she firstsaw it being thrown, she could not see the pills. She saw it land on the street. [12] Constable Peck said the item went up in the air and dropped by the side of the vehicle, "I did not see where it landed." She said itwas not possible that it was dropped from the car. She saw it going with a trajectory out of the window. What I infer from that languageis that she saw it coming out with some force.

It was not merely dropped, but that it was thrown. She also said she had never seensomething fly out of a window off of the dashboard of a vehicle.

[ 13 ] Constable Peck said when the item was thrown out of the window, she believed it was drugs. She also said, in cross-examination, that when she saw the item being thrown, things came together. The two men seen by the door of the car now made sense.

She said something to the effect, (I cannot recall her exact words and I have not captured it in my notes), that seeing the two men at the door was not conclusive, she did not link it to drugs, but tying everything together, once she saw the item, gave her a different view. [ 14 ] Constable Peck also said she did not necessarily think the driver of the vehicle was selling drugs, but she believed he was in possession and was trying to get rid of the drugs. She was asked whether it was possible that he was buying and she said "yes", that was a possibility. She was pressed about what she had seen.

She acknowledged it was dark that night, but the area was well lit. She was emphatic it was a white container, although she could not say if it was a pill bottle or not. She also said she did not see any other people or cars at that location at that time of night. [ 15 ] With respect to what happened when she placed Mr. Tsang into handcuffs, she said she did not search Mr. Tsang at the time. She turned him over to Constable Robinson. She said she did not search the passenger. She did not recall if she had done a pat-down search of the passenger, but it was typically something she did.

She did not search the vehicle at all at this point. [ 16 ] Constable Peck said after she left Mr. Tsang and the passenger with Constable Robinson, she ran back to Willow Street and 15th Avenue. She saw a pill bottle. It was a clear prescription bottle with a white lid. It was sitting on the southeast corner on the roadway about one to one and a half feet from the curb. The pill bottle had in it approximately 15 pills. Outside, there was a prescription label that said "Oxycodone." The patient's name had been ripped off. The pills were white. They had the letters "TEC" stamped on them.

She had seen pills with TEC stamped on them before. [ 17 ] Constable Peck said she did not need to search for the bottle as it was on the street -- I am calling the item a bottle. It was on the street in the location which she had seen it come out, meaning coming out of the window. After she found the pills, she told Constable Robinson that both the passenger and the driver were arrestable. She believed she did that on the police radio because she was about a block away. [ 18 ] Constable Peck then returned to the location where the police car and the suspect vehicle were stopped.

Constable Robinson gave the accused his Charter rights and she gave the passenger her Charter rights. After that, she searched the passenger. She found no drugs or drug paraphernalia on her. [ 19 ] Constable Peck also searched the Hyundai. On the driver's side she found two spitballs wrapped in plastic sitting on the driver-side seat. They were sitting right on top of the seat like they had been dropped there. There was also a cellphone on the driver's seat.

There was a small M&M plastic container which was open and lying on the driver-side floor just where the feet would have been if someone was sitting in the seat. It was not under the seat. There were no M&Ms on the floor. [ 20 ] She said she found cellphones. I might have misheard, but I thought there were four cellphones altogether, but Constable Peck said she found three cellphones on top of the console area where the gearshift was and they were sitting where the gears were. [ 21 ] The accused was searched by Constable Robinson and a large amount of Canadian currency was found on him.

We have Constable Robinson's evidence as to the amount of money found on him. [ 22 ] In cross-examination, Constable Peck was asked some questions about her previous experience in drug investigations. She said she had seen Oxycodone before. Part of the reason she was suspicious about the accused was that if the pill bottle was his, his name would not be torn off. She also said she had never seen anyone buying drugs in a full container. [ 23 ] Constable Peck acknowledged she did not know what the letters "TEC" stood for, however, she had not seen non-Oxycodone medications with TEC on them.

Personally she had found Oxycodone on a suspect two other times. However, she has heard from fellow officers that patients' names are often ripped off medication containers. She also said she either had been told or was aware that some people buy a pill, but not a full container. [ 24 ] Constable Peck was asked some questions about where she found the container. She said she found the container on the street. She did not see anything else in the area, just the container.

It was a white container, and it looked like the container she had seen earlier. [ 25 ] Constable Peck was asked if Constable Robinson had found currency on the driver. She said "yes". After she returned with the container, the driver, Mr. Tsang, had been searched after he had been arrested. His circumstances had changed from detention to arrest.

Once she opened the container and saw the Oxycodone, she advised that both parties were arrestable for a drug offence. [ 26 ] With those facts in mind, I will consider the threshold question of whether the impugned evidence in this case was obtained in a manner that infringed a right under the Charter . Let me deal first with the bottle of Oxycodone that was found by Constable Peck at Willow Street and 15th Avenue. I accept the Crown's argument and analysis with respect to the bottle of Oxycodone.

The accused has no standing and has asserted no standing over that bottle. [ 27 ] The bottle was seen by both Constable Peck and Constable Robinson to be thrown out of the passenger window. When Constable Peck asked Mr. Tsang to get out of the car, she explained to him why he was being detained. It had to do with her suspicion that there were drugs in the container she had seen thrown out of the vehicle. She was going to find the container and then she would see where the investigation went from there. [ 28 ] There is no question that, notwithstanding the de facto arrest and the breach of Mr. Tsang's 10(

b) rights, the bottle of Oxycodone was otherwise discoverable. [ 29 ] I will next turn to the remainder of the evidence as outlined by the Crown, that is, the $1,605 found on Mr. Tsang, the cellphones, (whether there were three or four, I do not think much turns on the actual number), the two spitballs found on the driver's seat, the M&M container with nothing in it, and the identification. I will leave the identification for the moment.

[ 30 ] In order to determine whether the finding of those items, the search for those items, was lawful, I have to consider whether Constable Peck had reasonable and probable grounds on which to base an arrest because the evidence is clear that, irrespective of my finding that there was a de facto arrest when Mr. Tsang was put in handcuffs, he was arrested again after the Oxycodone was found. [ 31 ] As to reasonable and probable grounds, it is clear an officer must have subjective reasonable and probable grounds and those grounds must be justifiable from an objective point of view.

The test has sometimes been articulated by saying that one ought to consider whether a reasonable person placed in the position of the officer would conclude that there were indeed reasonable and probable grounds for arrest. [ 32 ] In coming to a conclusion on this point, I have to consider all of the evidence which starts from the initial observations of the grey Hyundai and ends with the arrest of Mr. Tsang. It is clear that Constable Robinson and Constable Peck had different views as to what the basis for stopping the vehicle was. I have addressed that in my earlier ruling.

It is also clear from the evidence that Constable Peck began thinking or thought that a drug offence might have been committed when she saw the container that was apparently thrown out of the passenger side of the car. She retrieved the item and found a pill container that had the label removed. It had 15 pills in it with "TEC" on them. She believed them to be Oxycodone. I cannot now recall if in her testimony she referred to the label.

Whether she did or did not, she had a reasonable basis for concluding they might be drugs. [ 33 ] There is also the rest of Constable Peck's evidence, which I have just recited, about what led to her suspicion that these might be illicit drugs, namely, the fact that if someone is carrying medication that belongs to them it is unlikely they will pull off the label, also that Oxycodone is not sold in full bottles and so on. [ 34 ] Considering all of the evidence before me and, in particular, the information considered by Constable Peck, I am satisfied that once she found and examined the bottle of pills by the side of the road she not only had a subjective reasonable and probable grounds, but those grounds were justifiable from an objective point of view.

On that basis, she placed Mr. Tsang under arrest. [ 35 ] It was only after Mr. Tsang was lawfully arrested and given his Charter rights, that the vehicle he was driving was searched and he was also searched. In the circumstances, I am satisfied that the remainder of the evidence, including his identification evidence, on which I will say more in a moment, was not obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter . [ 36 ] In particular, I am satisfied that the fact I found Mr. Tsang was placed in de facto arrest and his s. 10(

b) rights were breached does not lead me to find the evidence was obtained in a manner that infringed or denied his Charter rights. I do not accept the defence's argument that, but for the two breaches I have found, the police would have lost the opportunity to conduct an investigation. [ 37 ] Furthermore, with respect to identification, that identification was obtained after he was arrested and, as I have said, I find there were reasonable and probable grounds for his arrest.

Therefore confirming his identification, including his name, getting his driver's licence, finding out as a result of the events that took place and identifying him that he had a tattoo, does not render the identification evidence obtained in a manner that infringed or denied his Charter rights. However, in the event that I am wrong in my conclusion on the threshold question, I will review the Grant factors. [ 38 ] First I consider the seriousness of the breach. Considering the evidence I heard in the voir dire, I am satisfied the seriousness of the two breaches, which are the de facto arrest and the s. 10(

b) breach, lies at the lower end of the scale. The de facto arrest and the failure to advise Mr. Tsang of his right to counsel lasted a brief period. As indicated, I did not have any evidence on which to find an approximate or even exact time that he was held in handcuffs. I found it was longer than two minutes. [ 39 ] Constable Peck said approximately two minutes had passed. I did not accept that time estimate. I found that was an overly optimistic estimate of the amount of time. I considered it was more than that.

In any event, I do not view the length of time within which the breach occurred as being a long period of time, unlike some of the other cases I have read where the breach was 10 minutes, 15 minutes, 45 minutes in duration. [ 40 ] On the seriousness factor, I do not find that the Officer Peck, and it is Officer Peck I am focusing on, acted in bad faith. However, neither do I find that she acted in good faith. I was particularly troubled by the fact she said her practice is not to give detainees their Charter rights, in particular, right to counsel.

She explained why they were being detained, but she did not give right to counsel. She is officer of some eight and a half years' experience. She ought to know better than that. The case law is replete with references to the fact that the Charter has been the law of Canada for a long time and officers who enforce the law are expected to know it. [ 41 ] Second, I turn to the impact of the breach on the accused's rights. I agree and accept the Crown's characterization of this factor.

The evidence (the pill container) found at the roadside was otherwise discoverable and led to reasonable and probable grounds for arrest. I found that there was a de facto arrest and a breach of Mr. Tsang's 10(

b) rights. However, I also found there was a lawful basis for a motor vehicle stop and for an initial period of investigative detention. The Crown is correct in saying that I found the manner in which the investigative detention was carried out was inappropriate. For those reasons and others that I am not going to articulate in these reasons given the time, I find the impact of the breach on Mr. Tsang is also at the low end of the scale. [ 42 ] Third, I turn to society's interest in proceeding with a decision on the merits.

Whether or not the Crown's theory that this was a dial- a-dope operation is borne out is yet to be determined, but possession for the purpose of trafficking, which is what Mr. Tsang has been charged with, is a serious offence. One does not have to be in the justice system and one does not have to be a judge to know what a scourge drugs are in our community. This has been noted by other judges in other cases including the Court of Appeal.

It is a serious matter and it is clear that the exclusion of evidence requested by the defence would be the end of the Crown's case. [ 43 ] At the end of the day, Grant and cases which apply it make it clear that a decision applying the Grant factors is not one that can be made with mathematical precision. The judge making the assessment must balance the various factors. I have done that and, on balance, I conclude that inclusion of the evidence, (if the earlier analysis I set out above is incorrect) would not bring the administration of justice into disrepute.

Therefore, if I am wrong in my determination in respect of the threshold requirement, I would not exclude the evidence, but would include it. That is the end of my ruling.

[RULING ON EXCLUSION OF EVIDENCE CONCLUDED]