R. v. Probe, 2023 BCPC 186

Citation: R. v. Probe 2023 BCPC 186 Date: 20230718 File No: 72298 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VINCENT JOSEPH PROBE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: A. Murray Counsel for the Defendant: J. LeBlond Place of Hearing: Prince George , B.C. Dates of Hearing: May 24, 25, 26, 2022 Date of Judgment: July 18, 2022

A Corrigendum was released by the Court on August 14, 2023. The correction has been made to the text and the Corrigendum isappended to this document. [1] In Information 72298-1, Vincent Joseph Probe (“Vincent Probe”) is charged with two counts of possession of a controlledsubstance, namely methamphetamine and cocaine, for the purposes of trafficking contrary to Section 5(2) of the Controlled Drugs andSubstances Act (“CDSA”). The offences are alleged to have occurred on August 9, 2018, in the City of Prince George, BC. The policearrested Vincent Probe on August 9, 2018, without a warrant.

In warrantless searches conducted incidental to his arrest, the police seizedinculpatory evidence found on Vincent Probe’s person and in his vehicle. [2] To justify a warrantless search, the Crown must establish on the balance of probabilities that: (

a) the search was authorized bylaw; (

b) the law is reasonable; and (

c) the search was carried out in a reasonable manner: R. v. Collins (SCC), para. 23.The common law authorizes the police to conduct a warrantless search incident to arrest provided: (

a) the arrest is lawful; (

b) the searchis conducted incident to the lawful arrest; (

c) the manner in which the search is carried out is reasonable: R. v. Stillman,(SCC). The power to search incident to arrest is extraordinary in that it permits reasonable searches when the police have neither awarrant nor reasonable and probable grounds: R. v. Fearon, 2014 SCC 77, at para. 45. [3] Vincent Probe says his arrest on August 9, 2018 was unlawful and thus, a violation of his rights under s. 9 of the Charter ofRights and Freedoms. As such, the search of his person and vehicle incident to arrest was also unlawful and contrary to s. 8 of theCharter: R. v.

Caslake, (SCC), para. 13, citing Stillman, at para. 27. The Charter-protected interests relative to ss. 9 and8 of the Charter are the right not to be unreasonably detained, the expectation of privacy, and the right to be free from an unreasonablesearch and seizure. Vincent Probe submits that as a result of these Charter breaches, the evidence the police seized on August 9, 2018,ought to be excluded pursuant to s. 24(2) of the Charter of Rights and Freedoms. Issues [4] The salient issues before the court are: a. Was Vincent Probe unlawfully arrested on August 9, 2018? If so, b.

Should all or some of the evidence seized incident to arrest be excluded from the Crown’s evidence? [5] Counsel agreed to bifurcate this Charter voir dire. If I determine the arrest was unlawful, then the Crown and the defence willmake submissions under s. 24(2) of the Charter on the admissibility of the evidence the police seized incident to arrest on August 9,2018. These are my reasons and ruling on the lawfulness of Vincent Probe’s August 9, 2018 arrest. Evidence in the Voir Dire and Burden of Proof [6] Ordinarily, as the Charter claimant, Vincent Probe bears the onus of proving his arrest was unlawful.

However, he has alsobrought a s. 8 Charter challenge to the warrantless searches conducted incident to his arrest. As warrantless searches are presumptivelyunreasonable, the Crown bears the onus of demonstrating on a balance of probabilities the search was reasonable: R. v. Tim, 2022 SCC12 , at para. 45. In order to rebut the presumption of unreasonableness, the Crown must show that the arrest was lawful. If theCrown succeeds in discharging this burden, then the items seized from Vincent Probe are generally admissible at trial.

If the Crown failsto prove the arrest was lawful, the burden shifts to Vincent Probe to show, under s. 24(2) of the Charter, the evidence ought to beexcluded on the basis that its admission at trial would bring the administration of justice into disrepute. [7] On the Charter voir dire, the Crown called four police officers to testify and tendered into evidence 16 exhibits. The Crown alsotendered one exhibit on the trial proper which was admitted as evidence in the voir dire.

The exhibits include: Exhibit 1 on the trial proper: Insurance Corporation of British Columbia Owner’s Certificate of Insurance and Vehicle Licence showingthat between March 25, 2018 and September 24, 2018, Vincent Joseph Probe was the registered owner of a yellow 2004 ChevroletCavalier two door coupe bearing BC licence plate FW0 24F (the “Cavalier”); Exhibit VD1-1: $110.25 in Canadian currency seized from the front left pocket of Vincent Probe’s cargo-type shorts on August 9, 2018; Exhibit VD1-2: A red lighter and grey folding seized from the front left pocket of Vincent Probe’s shorts on August 9, 2018; Exhibit VD1-3: $1,465 in Canadian currency found inside a ziplock bag and seized from the front pocket of Vincent Probe’s shorts onAugust 9, 2018; Exhibit VD1-4: Small ring bags seized from the front right pocket of Vincent Probe’s shorts on August 9, 2018; Exhibit VD1-5: A prepaid VISA card seized from the rear left pocket of Vincent Probe’s shorts on August 9, 2018, together with onemorphine tablet broken in half; Exhibit VD1-6: Certificate of Analyst No. 18 15305 issued by Health Canada on September 28, 2018, with respect to a 2.12 gramsample the RCMP took from the 16.33 grams of methamphetamine found in a green ziplock bag seized from the driver’s seat of theCavalier on August 9, 2018; Exhibit VD1-7: Certificate of Analyst No. 18 15306 issued by Health Canada on September 28, 2018, with respect to 0.25 grams of rockcocaine seized from the pocket of Vincent Probe’s shorts on August 9, 2018;

Exhibit VD1-8: $120 in Canadian currency seized from the pocket of Vincent Probe’s shorts on August 9, 2018; Exhibit VD1-9: A black Triton digital scale seized from the front driver’s seat of the Cavalier on August 9, 2018; Exhibit VD1-10: Certificate of Analyst No. 18 15307 issued by Health Canada on September 28, 2018, with respect to 2.5 grams of rockcocaine found on the black digital scale and seized from the Cavalier on August 9, 2018; Exhibit VD1-11: Certificate of Analyst No. 18 15308 issued by Health Canada on September 28, 2018, with respect to 2.41 grams ofcocaine found in a green ziplock bag and seized from the front driver’s seat of the Cavalier on August 9, 2018; Exhibit VD1-12: A black and grey LG cellphone and black phone case seized from the Cavalier on August 9, 2018; Exhibit VD1-13: A small black LG flip-phone found inside a NEXT cigarette package seized from the Cavalier on August 9, 2018; Exhibit VD1-14: A black Toughbuilt folder containing seven documents, including: (

a) an ICBC Owner’s Certificate of Insurance andVehicle Licence for a brown Ford Taurus (the “Taurus”) in the name of Saya Louise Weselowski; (

b) a rent receipt to William TrentStarchuk from Park Village Apartments dated May 28, 2018, for “142 June Rent” in the amount of $875 cash; (

c) a small papernotebook containing various mathematical calculations that the RCMP characterize as a scoresheet; Exhibit VD1-15: RCMP Major Case Flowchart with respect to items seized incident to Vincent Probe’s arrest on August 9, 2018; Exhibit VD1-16: A booklet of photographs taken of the items seized incident to Vincent Probe’s arrest on August 9, 2018. Street Crew [8] At the time of the offences the Prince George Detachment of the Royal Canadian Mounted Police (“RCMP”) included a teamreferred to as the “Street Crew”.

This team was responsible for investigating prolific offenders in relation to drug trafficking and propertycrimes within the City of Prince George. [9] In the investigation giving rise to the charges on Information 72298-1, the Street Crew engaged in a surveillance operationinvolving multiple police officers at multiple locations working covertly over a continuum of time. Constable Chamberlain explained thatsurveillance is generally conducted undercover and may be static or mobile.

Officers drive unmarked police vehicles or civilian vehicles.They record their observations directly in police notebooks or indirectly with the assistance of a scribe. Throughout the course of theirinvestigation of this matter, the Street Crew communicated by radio on a covert police channel (the “police channel”) which they alonecould monitor and access. The participating officers communicated their respective observations orally over this police channel. Adesignated scribe recorded these observations in a surveillance log.

At the end of the shift, or within 24 hours, or as soon as practical,each participating member of the surveillance team reviews the surveillance log for accuracy. The officer who communicatedobservations initials the relevant entry to indicate they had reviewed it and it was accurate. This proofed log becomes a “SurveillanceReport” available to participating officers who testify at trial. [10] In this voir dire, the Crown witnesses used the Surveillance Reports as an aide memoire to revive their memory of the events towhich they were testifying, as described in R. v.

Fliss, 2002 SCC 16 , paras. 8, 45, 63, and R. v. Lo, 2015 BCSC 1159 ,paras. 52-55, 57, 60. Although she did not specifically seek to enter any of the Surveillance Reports as past recollection recorded, theCrown Counsel did lay much of the foundation for doing so. Specifically, the Crown elicited evidence: (

a) the testifying officer’sobservations had been recorded in a reliable way; (

b) when recorded, the observations were sufficiently fresh and vivid to be probablyaccurate; (

c) while testifying, the officer asserted the record accurately represented their knowledge and recollection at the time; and (d)the original record is still available. [11] Four of those members participating in surveillance of Vincent Probe testified before me on May 24 and 25, 2022, as Crownwitnesses in the Charter voir dire. All were longstanding members of the RCMP experienced in investigating drug activity. Specifically: a. Constable Ryan Underhill (“Constable Underhill”) is a 15-year veteran of the RCMP, who is currently stationed at Prince Georgeand is assigned to the Street Crew.

He has been assigned to that unit for five years. Constable Underhill has been involved in at least 200drug investigations. He was part of the surveillance team investigating the matters before the court. He was also involved in the August9, 2018 arrest and searches incident to the arrest; b. Staff Sargent Chad Chamberlain (“Sargent Chamberlain”) is a 22-year veteran of the RCMP, now in charge of “D” watch of thegeneral duty division in Prince George. Before this current posting, Sargent Chamberlain was the commander-in-charge of the StreetCrew for five and one-half years.

He has conducted no less than 1,000 drug investigations, half of which were investigations into drugtrafficking. In the investigation before the court, Sargent Chamberlain was a member of the surveillance team, an arresting officer andexhibit custodian; c. Constable Braden Chamberlain (“Constable Chamberlain”), is a 15-year veteran of the RCMP. He is currently assigned to the generalduty division in Prince George. He was attached to the Street Crew from September 2015 to March 2022. He has participated inthousands of drug investigations over the course of his career.

At various times he has been the primary investigator, file coordinator,exhibit custodian, a member of the surveillance team, the arresting officer and expert witness. Constable Chamberlain was a participatingmember of the surveillance team investigating Vincent Probe for drug trafficking and the person who directed the arrests; and d. Constable Jared Sweeney (“Constable Sweeney”) is a 12½-year veteran of the RCMP. He is stationed at Prince George, NorthDistrict, and has been assigned to the emergency response team for the past seven years.

Constable Sweeney was also a member of thePrince George Street Crew from 2016 to the beginning of 2020. He was a member of the surveillance team engaged in the investigationof the matters before the court and one of the arresting officers. Circumstances of the Investigation

[ 12 ] In July 2018, the RCMP received a complaint from a civilian with the surname of Holden (the “Complainant”). The Complainant claimed to observe suspicious activity associated with Unit 142 at the apartment complex at 4024 First Avenue (the “Complex”), located at the corner of First Avenue and Ospika Boulevard in Prince George, BC. The Complainant reported having observed a number of people coming and going from the balcony of Unit 142 (the “Balcony”) and engaging in “suspicious” transactions. At the time, Unit 142 was occupied by William Starchuk.

The Balcony was on the second floor of the Complex facing First Avenue and very visible from where the Street Crew were conducting their surveillance. [ 13 ] What began as an investigation of William Starchuk morphed into an investigation of Vincent Probe. The Street Crew conducted surveillance in 2018 on July 26 and 27, August 1 and 9. Constable Chamberlain was on duty and a participating member of the surveillance team on all four days. Although he did not personally observe all the events and interactions recorded in the Surveillance Reports, he was monitoring the police channel.

In doing so, Constable Chamberlain became aware of the observations of all other officers communicated over the radio. Constable Underhill believed that Constable Chamberlain was the lead investigator in this matter. Constable Chamberlain believed that Constable Underhill was the lead investigator. Ultimately, on August 9, 2018, it was Constable Chamberlain who directed the Street Crew to arrest Vincent Probe for possession of a controlled substance for the purpose of trafficking.

Hence, the Crown seeks to establish that the totality of the circumstances known to Constable Chamberlain at the time provided him with reasonable grounds to direct the arrest. I have set out below the information Constable Chamberlain knew at the time of directing the arrest. All locations cited are within the downtown area of the City of Prince George, BC. July 26, 2018 [ 14 ] On July 26, 2018, the Street Crew was investigating William Starchuk for suspected drug trafficking. On that date, Constable Underhill and Constable Sweeney were monitoring the Balcony from outside the Complex.

At approximately 9:30 p.m., Constable Underhill and Constable Sweeney observed a yellow Chevrolet Cavalier (the “Cavalier”) parked roadside in front of the Complex. A male and female exited the Cavalier. The officers did not recognize either of these individuals. Constable Underhill ran a check on the licence plate on his police computer (BC licence plate number FW0 24F) and learned the Cavalier was registered to Vincent Probe at an address in Kamloops, BC.

It was not until the time of the arrest on August 9, 2018, the officers positively identified the male associated with the Cavalier as Vincent Probe and the female as his girlfriend, Alita Grass. During the investigation leading up to their arrest, neither Vincent Probe nor Alita Grass was known to the Prince George police. At trial, all the testifying officers identified Vincent Probe in court as the person they had personally observed during the course of their surveillance in 2018. [ 15 ] Constable Underhill and Constable Sweeney observed Saya Weselowski come out onto Balcony.

Saya Weselowski was known to the officers from previous investigations into drug trafficking when she resided on Spruce Street. The officers observed Vincent Probe and Alita Grass walk up to the Balcony. Saya Weselowski handed a key to Vincent Probe, which he used to access the Complex. Vincent Probe and Alita Grass went inside the Complex, where they remained for a little over an hour.

At 10:24 p.m., Vincent Probe and Alita Grass returned to the Cavalier and drove away. [ 16 ] At 10:28 p.m., Constable Chamberlain observed the Cavalier parked on Ruggles Street, behind the 7-Eleven store at the corner of Fifth Avenue and Ospika Boulevard. This is only five or six blocks from the Complex. A man associated with a white pickup outfitted with a heady rack approached the driver’s side of the Cavalier and returned to his pickup. Constable Chamberlain did not observe any hand-to-hand transaction during this short-duration meet. [ 17 ] The Cavalier returned to the Complex at about 10:30 p.m.

Vincent Probe and Alita Grass stepped out of the vehicle, smoked a cigarette, then used a key to re-enter the Complex. [ 18 ] The Street Crew’s Surveillance Report indicates that at 10:45 p.m., Constable Farwell observed the Cavalier parked at Noble Spirits Liquor Store (“Noble Spirits”) at the corner of First Avenue and Tabor Boulevard. This is near the Complex. Constable Farwell was a member of the Street Crew at the relevant time and did not testify in the voir dire . Constable Farwell’s recorded observations indicate the Cavalier’s male driver went into Noble Spirits and purchased a bottle of liquor.

When he came out of the store at 10:47 p.m., the male driver met with “another First Nations male” in the parking lot. The male driver dug into his right front pocket. Constable Farwell did not observe any hand-to-hand transaction. It is noteworthy the surveillance entry recording this event does not specifically identify Vincent Probe as the male driving the Cavalier. July 27, 2018 [ 19 ] At 4:33 p.m., Constable Sweeney observed the Cavalier parked on Ruggles Street behind the 7-Eleven store on Ospika Boulevard and Fifth Avenue.

A female approached the passenger side of the Cavalier at 4:34 p.m. and departed within a minute. The Cavalier headed west on Fifth Avenue. At the time, Constable Sweeney was unable to identify the driver of the Cavalier. He had never observed the driver in Prince George prior to this investigation. He was unable to say whether there were any passengers in the Cavalier. Constable Sweeney did not observe any items exchanged between any occupant of the Cavalier and the female who approached it. [ 20 ] On July 27, 2018, various members of the Street Crew encountered Vincent Probe again.

On this date, William Starchuk was still the primary focus of the Street Crew’s investigation. [ 21 ] On July 27, 2018, at 4:50 p.m., Constable Underhill and Constable Chamberlain observed Vincent Probe in a brown Ford Taurus (the “Taurus”) departing from 2505 15 th Avenue, Prince George, BC. Saya Weselowski, who was driving, was the registered owner of the Taurus. Vincent Probe occupied the front passenger seat and Alita Grass was sitting in the rear seat. Constable Chamberlain testified that he and Constable Underhill followed the Taurus because it was associated with the targeted address.

More specifically, the Taurus had been at the Complex and its driver, Saya Weselowski, had been observed on the Balcony. [ 22 ] Constable Chamberlain and Constable Underhill followed the Taurus eastbound from the back alley of 2505 15 th Avenue to Queensway and 17 th Avenue. The Taurus turned right off 17 th Avenue and pulled into the alleyway behind the 7-Eleven store located on the corner of 17 th Avenue and Queensway. A male present in the alley approached the Taurus and then waved it on by. The male had a BMX bicycle and was wearing camo shorts, a ball cap and a T-shirt.

Constable Underhill recognized the male as Matthew Hunt, an

individual often involved with the possession of drugs. It appeared to Constable Chamberlain and Constable Underhill that Matthew Hunt observed their unmarked police vehicle and recognized one or both of them as undercover officers. The officers suspected the encounter between Matthew Hunt and the Taurus was an intended drug transaction. When he noticed the officers, Matthew Hunt waved the Taurus on and it proceeded down the alley. [ 23 ] Constable Chamberlain testified that he became aware of what happened next through monitoring the police radio.

He referenced Constable Delatorre’s recorded observations from the July 27, 2018 Surveillance Report. At 1737 or 5:37 p.m., Constable Delatorre, also a member of the Street Crew, observed the Taurus parked roadside at 20 th Avenue and Ingledew Street near Lheidli T'enneh Park (formerly Fort George Park) . At 5:40 p.m., Constable Emon, another Street Crew member, observed Saya Weselowski, an unknown male later identified as Vincent Probe, and an unknown female later identified as Alita Grass, sitting at a bench at the Lheidli T'enneh Park.

At 5:44 p.m., a male later identified as Matthew Hunt approached the unknown female and left a minute later. Constable Emon reported the “male driver” handed something to Matthew Hunt. Three minutes later, all four individuals were sitting at the park table. At 6:05 p.m., Constable Delatorre observed those individuals leaving the park. One of the officers photographed the individuals leaving the park. Constable Chamberlain identified the individuals in the photograph as Saya Weselowski, Vincent Probe, Alita Grass and Matthew Hunt.

The photographs are pages 48 and 49 of Exhibit 16. [ 24 ] Constable Chamberlain believed the aborted drug transaction originally planned for the alley behind the 7-Eleven off Queensway and 17 th Avenue was effected at the park. [ 25 ] At approximately 6:50 p.m. on July 27, 2018, Constable Chamberlain and Constable Underhill observed the Taurus pull over roadside by a residence near Alward Street and 15 th Avenue, close to the Prince George Detox Centre and the University Hospital of Northern British Columbia . Saya Weselowski was driving the Taurus; Vincent Probe and Alita Grass were passengers.

A man dressed in black approached the Taurus and got into the rear driver’s side. The Taurus departed the residence and proceeded up to 10 th Avenue, turned right on Laurier Street and then right onto Winnipeg Street. Ultimately, the Taurus turned into Value Village, which is near the intersection of 17 th Avenue and Spruce Street. Constable Underhill followed the Taurus, but Constable Chamberlain did not. Constable Underhill estimates the man in black was in the Taurus for two to three minutes.

He got out of the vehicle at Value Village and departed on foot; the Taurus drove away. [ 26 ] Although he did not personally follow the Taurus, Constable Chamberlain was aware of Constable Underhill’s communicated observations on the police radio. The Taurus took a non-direct route from Alward Street and 15 th Avenue, where the male in black got into the Taurus and rode to Value Village, where he got out of the Taurus. By “non-direct route”, Constable Chamberlain means the Taurus’ driver made repeated right turns as a form of counter-surveillance in order to determine if they were being followed.

Constable Chamberlain believed that this incident was another short-duration meet. [ 27 ] On July 27, 2018, at 7:07 p.m., Constable Underhill observed the Taurus pulled over roadside near a school at the intersection of Rainbow Drive and Liard Drive. At 7:09 p.m., the Taurus began travelling eastbound on Rainbow Drive. At 7:12 p.m., the Taurus nosed in at the front door of an apartment building at the intersection of Rainbow Drive and Union Street. The Taurus’ hood was popped open. Vincent Probe got out of the vehicle and stood on the sidewalk in front of the building.

An unknown male wearing a blue shirt and beige shorts came out of the apartment building. At 7:13 p.m., the man in the blue shirt and beige shorts went back inside the building and the Taurus departed. Constable Underhill could not observe Vincent Probe’s interactions with this male because they were partly obscured by the Taurus’ raised hood. Thirty seconds later, the Taurus left. Constable Underhill could not say if Saya Weselowski and Alita Grass were also in the Taurus at the time of the short meet.

August 1, 2018 [ 28 ] Constable Chamberlain was a participating member of the surveillance team on August 1, 2018. On that day his focus was on Mr. Starchuk, who left the Complex in an angry demeanour, carrying a bat. Meanwhile, Sargent Chamberlain was conducting surveillance on the Cavalier. The August 1, 2018 Surveillance Report indicates that at 4:39, Sargent Chamberlain observed the Cavalier at 910 Victoria Street. A female appeared to be meeting with the male driver of the Cavalier, which was parked. Constable Chamberlain testified this encounter did not stand out as a drug transaction.

August 9, 2018 [ 29 ] On August 9, 2018, Constable Underhill and Sargent Chamberlain were participating members of the surveillance team investigating Vincent Probe and the Cavalier. At 4:25 p.m., Sargent Chamberlain observed Vincent Probe driving his Cavalier on the 1100 block of Freeman Street in Prince George, BC. Sargent Chamberlain saw the Cavalier stop behind a red Dodge Caravan (the “Caravan”) that was parked on the side of the street. The Cavalier came to a stop behind the Caravan. The occupant got out of the Caravan and walked to the driver’s window of the Cavalier.

After a brief interaction with Vincent Probe at the driver’s window, the occupant of the Caravan returned to his vehicle and left, as did the Cavalier. Sargent Chamberlain did not witness Vincent Probe and the male from the Caravan exchange any items. [ 30 ] At 4:50 p.m., Staff Sargent Chamberlain observed Vincent Probe and Alita Grass in the Cavalier drive into the parking lot of First Litre Pub, located at the corner of Strathcona Avenue and Tamarack Street. Vincent Probe was driving and Alita Grass occupied the passenger seat. The Cavalier parked in the middle of the parking lot.

An unknown male exited the pub and approached the Cavalier on the passenger side. Sargent Chamberlain observed Alita Grass hand something to the male, who then returned to the entrance of First Litre Pub. At that point, Constable Chamberlain directed the Street Crew to arrest the male for possession of a controlled substance and Vincent Probe and Alita Grass for drug trafficking. Constable Chamberlain testified that at the time he directed the arrest, he was aware of the Cavalier making three short stops, albeit none of which he observed.

When he learned of the third short stop at First Litre Pub, Constable Chamberlain directed the arrest. Although aware that Vincent Probe had no previous criminal activity which constituted a threat towards the police, Constable Chamberlain determined an arrest was reasonable. This was the seventh indicator of a drug transaction the Street Crew had observed involving Vincent Probe. Based on the types of transactions, the short meets and his experience in surveillance and drug investigations, Constable Chamberlain says he had reasonable grounds for Vincent Probe’s arrest and directed

his team members to do so. [31] I pause to note the Crown led evidence of only two short-duration meets on August 9, 2018, not three as Constable Chamberlaintestified. I understand there is no Surveillance Report for August 9, 2018, by which the officers could refresh their memory of the eventsof that day. It is not clear why that is the case. Constable Chamberlain thought it may be due to personnel shortages. [32] Constable Underhill engaged his emergency equipment and arrested the male who approached the Cavalier. The male wasidentified as Shane Patrick.

Constable Underhill searched Shane Patrick incident to arrest, but did not locate any drugs or a significantamount of cash on his person. [33] Sargent Chamberlain arrested Vincent Probe pursuant to Constable Chamberlain’s directive. Sargent Chamberlain searchedVincent Probe and the Cavalier incident to arrest. The officer located large sums of cash, some drugs and drug paraphernalia on VincentProbe’s person. Sargent Chamberlain and Constable Underhill found drugs, drug paraphernalia, cell phones and identity documents inthe Cavalier.

Sargent Chamberlain seized these items and recorded them on the RCMP Major Exhibit Flowchart marked as Exhibit 15 inthe voir dire. The seized items were entered into evidence in the Charter voir dire as Exhibits VD1-1 to VD1-16. Basis for Arrest – General Principles [34] Section 495(1) (

a) of the Criminal Code permits a police officer to arrest without warrant any person who “has committed anindictable offence or who, on reasonable grounds, [the officer] believes has committed or is about to commit an indictable offence”. Inthis case, Crown bears the burden of proving that the police had grounds to arrest the accused. In R. v. Storrey, (SCC),a two-part test was formulated that must be met in order to ensure that a warrantless arrest and warrantless search incidental to awarrantless arrest is not arbitrary. [35] Recently, in R. v.

Tim, 2022 SCC 12 (“Tim”), Jamal J. for the majority restated that test at para. 24 (citations omitted): [24] The applicable framework for a warrantless arrest was set out in R. v. Storrey . . . A warrantless arrest requires both subjective andobjective grounds. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds mustbe justifiable from an objective viewpoint.

The objective assessment is based on the totality of the circumstances known to the officer atthe time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparableknowledge, training, and experience as the arresting officer. The police are not required to have a prima facie case for conviction beforemaking the arrest . . . [36] The cases raising issues of warrantless arrest and warrantless searches are legion. The Crown has provided the court with thefollowing authorities: (

a) R. v. Lo, 2015 BCSC 1159 (“Lo”); (

b) R. v. Messina, 2013 BCCA 499 (“Messina”); (

c) R. v. Stalker, 2010BCPC 133 (“Stalker”); (

d) R. v. Wan, 2008 BCSC 268, (”Wan”); (

e) R. v. Lieu, 2007 BCCA 113 (“Lieu”); (

f) R. v. To, (BCCA) (“To”); (

g) R. v. Thompson, 2018 BCSC 619 (“Thompson”); and (

h) R. v. Caslake, (SCC) (“Caslake”). [37] The defence has provided the court with the following authorities: (

a) R. v. Sohi, 2018 BCSC 2145 (“Sohi”); (

b) R. v. Barnes,2018 BCPC 99 (“Barnes”); (

c) R. v. St. Germaine, 2017 BCPC 34 (“St. Germaine”); (

d) R. v. Pope, 2015 BCSC 2391 (“Pope”); (

e) R. v.Devloo, 2015 ABQB 345 (“Devloo”); (

f) R. v. Fraser, 2013 BCPC 59 (“Fraser”); (

g) R. v. Pino, 2016 ONCA 389 (“Pino”); and (

h) R. v.Quach, 2014 ABPC 8 (“Quach”). [38] The Crown and defence case law cite the governing appellant authorities on the law of warrantless arrest and warrantlesssearches. From these and other cases, I have gleaned the following principles governing the “reasonable grounds to believe standard” inthe context of a warrantless arrest in a drug-trafficking investigation: a. The current language in the Criminal Code, “reasonable grounds”, has the same meaning as the former “reasonable and probablegrounds”.

It signifies the point at which credibly-based probability replaces suspicion: R v Loewen, 2011 SCC 21, at para. 5; R. v.Glendinning, 2019 BCCA 365 (“Glendinning”), para. 2; R v Santos, 2022 SKCA 50 (“Santos”), para. 29; b. The test for establishing reasonable grounds is not onerous: R. v. Usher, 2011 BCCA 271 (“Usher”), para. 31; R vNahnybida, 2018 SKCA 72 ; c. The standard of reasonable grounds to believe does not constitute prima facie evidence of guilt; in other words, it does not requireproof beyond a reasonable doubt: Messina, para. 20; R v Debot, (SCC) (“Debot”), at 1166; d.

Reasonable grounds to believe is a higher standard than reasonable suspicion, but lower than the civil standard of proof on a balanceof probabilities: Debot; R. v. Jir, 2010 BCCA 497 (“Jir”); and Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC40 (“Mugesera”); Glendinning, para. 3. Reasonable suspicion engages the possibility of crime; reasonable grounds to believe engagesthe probability of crime: R v Chehil, 2013 SCC 49 (“Chehil”), para. 27; e.

An arrest based on a mistake of law is unlawful even if the mistake is made in good faith: “The concept of ‘reasonable and probablegrounds’ for arrest relates to the facts . . .”: Tim, para. 36; f. The court assesses whether there were objective grounds by looking at the officer’s observations through the “lens of someone”with the same experience, training, particular knowledge and skills as the officer, and determining if a reasonable person could concludethe same: R. v. Luong, 2010 BCCA 158 (“Luong”), para. 2; Messina, paras. 19-29; g.

Since the relevant point of view is that of a reasonable person “standing in the shoes of the police officer”, that “reasonable person”is presumed to have the knowledge and experience of the arresting officer. The court assesses the arresting officer’s reasons for arrestfrom the “vantage point of a prudent, reasonable and cautious police officer, similarly experienced as the arresting officer, rather than anuntrained civilian”. Specifically in this case, it means an officer with specialized skills and training in investigating drug trafficking:Messina, paras. 22-28;

h. Although the objective reasonableness requirement must be viewed in the light of the arresting officer’s background and experience,deference to an officer’s intuition must not be such as to render the objective element of the inquiry meaningless: R. v. Payette, 2010BCCA 392 (“Payette”); para. 25; Chehil, para. 47; R. v.

MacKenzie, 2013 SCC 50 (“MacKenzie”), para. 64; Sohi, para. 27; Pope, para.59; i. “A ‘reasonable person, standing in the shoes of a police officer’ does not mean a police officer who holds a jaundiced and overlynegative view of the panoply of behaviours that humans engage in on a day to day basis. It cannot mean an officer whose observations ofeveryday actions are made through such a jaded lens that otherwise benign activity is precipitously characterized as criminal”: R. v.Lahtinen, 2011 BCPC 490, Pope, para. 60; j.

An arresting officer must consider all incriminating and exonerating information which the circumstances reasonably permit, butmay disregard information which the officer has reason to believe may be unreliable: R v Shinkewski, 2012 SKCA 63 (“Shinkewski”),para. 13(c), citing Storrey; k. The arresting officer is not required to rule out potential innocent explanations before it may be said he or she had reasonable groundsfor the arrest: MacCannell, 2014 BCCA 254, paras. 44-46; Jir, para. 27; l.

That the police could have done more to investigate the case is irrelevant because the assessment of “objective basis” must be basedon matters known to police at the time the arrest decision was made: The focus should be on the “objective reasonableness of what thisofficer did, based on what he knew at the time, not on what other steps he could have taken to acquire additional grounds”: R. v.Gill, 2015 BCSC 310, at para. 33; Jir, paras. 28 and 29; R. v Bissat, 2018 BCSC 1964 (“Bissat”), para. 25; m. The focus is not on what the officer did not see: Glendinning, 2019 BCCA 365, para. 36, citing Gill; n.

The approach to the question of reasonable grounds must be flexible and grounded in common sense and practical everydayexperience: R. v. Lotfy, 2017 BCCA 418, leave to appeal ref’d, [2018] S.C.C.A. No. 14 (“Lotfy”), para. 35. “The appropriate standard ofreasonable or credibly-based probability envisions a practical, non-technical and common-sense probability as to the existence of thefacts and inferences asserted.”: R. v. Sanchez, (ONSC), cited in Jir, para. 27; R. v. Orr, 2021 BCCA 42 (“Orr”), para. 77. o.

The arresting officer is entitled to act upon another officer’s instructions or advice provided the instructing officer held the requisitegrounds for arrest: Lieu, para. 4, citing Debot at paras. 49- 50; R. v. Le, 2006 BCCA 463 (“Le”), para. 25; Barnes, para. 50, citing R. v.Shokar, 2006 BCSC 770; p. “Policing is a team sport. When a squad of police officers engage in any activity, such as an arrest or search, the knowledge of theentire group is relevant.”: R v Ha, 2018 ABCA 233 (“Ha”), paras. 25-27, 77.

Where officers are acting as a team, it is not necessary thatthe arresting officer personally know each and every fact necessary to establish reasonable grounds; the collective knowledge of theentire group is relevant: R v Chapman, 2020 SKCA 11 ; Lieu, paras. 8-12; R. v. Tran, 2007 BCCA 491; q. Reasonable grounds to believe is a qualitative, not quantitative, exercise.

There is no checklist with a certain number of indicia thatmust be met before reasonable grounds to believe will be established, and no single identifiable factor that marks the point at whichreasonable suspicion crosses the threshold to become reasonable grounds to believe: Chapman; Santos, para. 29; R v Duong, 2018 SKCA25 , paras. 35-37; R. v. Nair, 2019 BCPC 287 (“Nair”) para. 47; also see Lo, where Justice Gropper (as she then was),upon considering R. v. Readhead, 2008 BCCA 193, states in part: [89] There are some factors that occur in some cases and not in others.

There can be an absence of factors in some cases and not inothers. It is the totality of the evidence that is there which must be considered, not the totality of what is not present . . . Also see: Glendinning, 2018 BCSC 1575 , at para. 59, and Frederickson, 2018 BCPC 296 (“Frederickson”), para. 47; r. The more closely what the police observe comes to demonstrating an actual purchase and sale of drugs, then the less repetitiveconduct by the suspect will be required to meet the requirement of objective reasonableness.”: Gill, para. 45; s.

The standard of reasonableness must be met in the “totality of the circumstances” the arresting officer cumulatively, and not in apiecemeal fashion: Jir, at para. 28 , Debot, at 1168; Usher, para. 38. t. “The objective strength of the [police] grounds can include [information or knowledge] made after they have formed their subjectivebelief, but before the arrest was actually carried out”: Gill, at para. 24, citing R. v.

Clayton, 2007 SCC 32, at para. 48 [Emphasis added.]; u. “A belief does not need to be correct in order to be reasonable; reasonable grounds can be based on an officer’s belief that certainfacts exist, even if that belief turns out to be mistaken: . . .

Furthermore, the inference drawn by the officer need not be the only inferencethat may be drawn from the available information, or even the most compelling one, as long as it is a reasonable inference to have drawn.The presence of other plausible, innocent explanations for police-observed behaviour does not automatically negate reasonable groundsto believe . . . ”: Chapman, at para. 59; Ha, at para. 34; R. v Emery, 2019 BCSC 702 , para. 82; In Gill, Justice Schultes states: [49] . . .

Innocent alternatives only undermine grounds for arrest when the inference the officer drew that an offence was taking placewas not reasonable. The officers do not have to rule out other explanations, if there is an objective basis for what they did inferconcerning criminal activity. v. Evidence which arose or came to light post-arrest is not relevant in determining whether the police officer had reasonable grounds forhis belief at the time he formed the belief.

An otherwise lawful arrest is not invalidated by the ex post facto discovery of deficiencies ordefects in the information relied upon by police at the time of the arrest: Flintroy, at para. 9, citing R. v. Shinkewski, para. 19; w. When assessing whether there were reasonable grounds, the court must be careful to not apply the same level of scrutiny that one

might expect within the context of assessing a warrant. "Often, the officer's decision to arrest must be made quickly in volatile andrapidly changing situations. . . . The law does not expect the same kind of inquiry of a police officer . . . that it demands of a justice facedwith an application for a search warrant." R. v. Golub, (ON CA), at para. 18, leave to appeal ref'd, [1997] S.C.C.A.No. 571. [39] In this case, the factors Cst. Chamberlain relied on to support his belief that Vincent Probe was arrestable for possession of acontrolled substance for the purpose of trafficking include: a.

Vincent Probe’s repeated coming and going at the Complex (at 4024 First Avenue) which was under surveillance for drug activity; b. Vincent Probe’s attendance at the Balcony on July 26, 2018, which was rented to William Starchuk, who was under investigation fordrug trafficking; c. Vincent Probe’s association with Saya Weselowski, who was known to the police for drug trafficking; d. Vincent Probe had been in or operating a vehicle observed making seven short meets on July 26, 27 and August 9, 2018. [40] In Santos, Kalmakoff J.A. states in part: [36] . . .

It is correct in law to say that the factors upon which the officer relies must be examined in their totality, and accurate to say thatthe mere existence of a potentially innocent explanation for a constellation of factors does not negate the existence of reasonablegrounds. Notwithstanding that, courts must be careful not to allow the fact that an officer has certain experience and training to functionas a thread that automatically sews a patchwork of exclusively innocuous circumstances into a quilt of reasonable grounds to believe aperson has committed an offence.

Here, the words of Professors Steve Coughlan and Glen Luther, in Detention and Arrest, 2d ed(Toronto: Irwin Law, 2017) at 96 and 99, and cited in Chapman at para. 69, are pertinent: . . . [if] carried too far, incorporating the experience of the particular officer into the objective test amounts to effectively eliminating theobjective test, leaving only the subjective test in place.

If all an officer’s claimed experience is to be relevant, then the objective testbecomes very close to “would a person who believes what this officer believes believe what this officer believes”, which will alwaystrivially be proven. [Emphasis in original.] [41] In this case the defence argues that Constable Chamberlain viewed the events they observed involving Vincent Probe throughthe lens of criminality – something which the courts in Lahtinen and Pope cautioned against.

The defence argues the assessment of a“reasonable person, standing in the shoes of a police officer” does not mean a police officer who holds an overly jaded, jaundiced, ornegative view of everyday activity. As an example, the defence points to the evidence adduced in the voir dire that Vincent Probe andSaya Weselowski were siblings. Constable Underhill testified that Saya Weselowski told him Vincent Probe was her brotherapproximately eight months after the investigation had completed.

Constable Chamberlain became aware that Saya Weselowski wasVincent Probe’s sister but cannot say when that occurred. [42] The defence submits that the fact that Saya Weselowski and Vincent Probe were siblings is an innocent explanation as to whythey were observed spending time together during the course of the Street Crew’s investigation. I am far from persuaded, however, thatthe officers were aware of Vincent Probe’s familial ties to Saya Weselowski at the material time. Vincent Probe’s identity was onlyfirmly established when he produced his BC driver’s licence upon his arrest.

In any event, Saya Weselowski and Vincent Probe’s siblingrelationship does not explain the short-duration meets which animated this investigation. As the trial judge assessing the existence ofreasonable grounds, my concern is “only with the circumstances known to the officers”: R. v. Wong, 2011 BCCA 13, at para. 19 (leaveto appeal denied [2011] S.C.C.A. No. 90). [43] The defence submits Constable Chamberlain failed to assess the evidence before him from the “vantage point of a prudent,reasonable and cautious police officer, similarly experienced as the arresting officer”.

Specifically, Constable Chamberlain did not fairlyconsider the exonerating information along with the incriminating information. [44] The incriminating information included: a. Vincent Probe’s association with Saya Weselowski, a person known to the police as involved in the drug trade. Specifically,Constable Underhill dealt with Saya Weselowski personally in a drug trafficking investigation in Prince George; b. Vincent Probe’s repeated presence at the Complex which was under surveillance as part of an investigation of William Starchuk forsuspected drug trafficking; c.

Vincent Probe engaging in short-duration meets from his Cavalier; d. Vincent Probe and Saya Weselowski’s engagement with Matthew Hunt on July 27, 2018 on the alleyway off 17th Avenue and atLheidli T’enneh Park. Matthew Hunt is known to the police as someone involved in drug activity; e. Upon noticing the undercover officers, Matthew Hunt waving the Taurus on in the alleyway behind the 7-Eleven on 17th Avenue; f. The Street Crew (Constable Emon and Constable Delatorre) observed an exchange between Matthew Hunt and the occupants of theTaurus at Lheidli T’enneh Park.

Specifically, they observed Vincent Probe hand something to Matthew Hunt; g. The Street Crew observed Vincent Probe dig his hand into his right front pocket upon meeting a First Nations male in the parking lotof Noble Spirits;

h. Saya Weselowski taking an indirect route from 15 th and Alward to Value Village; and i. There was a total of seven short-duration meets over the course of four days, which Constable Chamberlain considered as evidence of drug activity. [ 45 ] The “exonerating” information means all exculpatory, neutral and equivocal factors, including: a. Vincent Probe was unknown to the police as someone involved in drug activity, or any criminal activity; b. Vincent Probe was driving his own vehicle, registered in his name, and not a rental vehicle; c.

The Cavalier was not known to the police prior to July 26, 2018, when Constable Underhill and Constable Sweeney first observed it at the Complex; d. Vincent Probe’s girlfriend, Alita Grass, was also unknown to the police as someone involved in drug activity, or any criminal activity; e. Most of the individuals the officers observed interacting with persons in the Cavalier or Taurus were unknown to the police, with the exception of Saya Weselowski and Matthew Hunt; f.

The only apparent hand-to-hand transactions observed by the Street Crew was that between Vincent Probe and Matthew Hunt at Lheidli T’enneh Park; and g. The only suggestion of persons involved in this case displaying furtive glances or heat checks was Saya Weselowski taking an indirect route from 15 th and Alward to Value Village, and Matthew Hunt waving on the Taurus in the alleyway behind 7-Eleven on 17 th Avenue.

Authorities [ 46 ] The defence relies on a number of cases involving dial-a-dope operations in which the court found the evidence insufficient to establish objectively reasonable grounds for a search or arrest. These included Sohi, Barnes, St. Germaine , Pope , Lahtinen, Fraser and Quach. In these cases the court considered the potentially inculpatory factors in the light of the arresting officer’s experience and training, and concluded the evidence as a whole did not reveal a sufficiently strong connection between the suspect and the offence of possession of a controlled substance for the purpose of trafficking.

The court concluded officers were acting on a hunch or suspicion but not on a credibly-based probability that a crime had been committed. [ 47 ] The appellate authorities are clear: an assessment of whether an officer objectively had reasonable grounds to believe does not involve a scorecard with the list of all the usual indicia of the offence and the court checking off which ones are present and which are absent. “There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed”: Usher at para. 38 , citing R. v.

Bush , 2010 ONCA 554 . [ 48 ] Justice Gropper’s decision in Lo is apropos of this analytic approach. In Lo , the police observed the accused making five brief meets in his vehicle over a period of 45 to 50 minutes. Three of these meets occurred in areas frequented by drug users and two were not. Mr. Lo had no prior criminal involvement and was unknown to the police; the persons with whom he met were unknown to the police. The police had no confidential informant. The surveillance team did not observe any hand-to-hand transactions of money for drugs; they did not observe Mr.

Lo using a cell phone; they did not observe any furtive glances or “heat checks” consistent with someone who is concerned with being apprehended for being engaged in an illicit activity. Mr. Lo was not driving a rental car. In assessing reasonable grounds for arrest, Justice Gropper rejected the “checklist” approach adopted in Lahtinen . The court held the absence of certain indicia of drug trafficking does not undermine a finding of reasonable grounds based on the presence of certain other indicia.

Justice Gropper found the totality of evidence before her sufficient to support the subjective and objective view that there were reasonable grounds to arrest. [ 49 ] I find it the fact that Vincent Probe was unknown to the police and not the original target of the Street Crew’s investigation diminishes the risk of confirmation bias. Vincent Probe was not a suspect the officers immediately thought guilty of drug trafficking. It was only after two or three days of surveillance that the Street Crew shifted the focus of their investigation from William Starchuk to Vincent Probe.

Moreover, the fact he discounted the activity which occurred on August 1, 2018 as drug-related, indicates Constable Chamberlain was not viewing, at all, events involving Vincent Probe through a lens of criminality. Disposition [ 50 ] I find that Constable Chamberlain had a subjective belief that Vincent Probe was in possession of controlled substances for trafficking.

I also find there was an objectively reasonable basis for that belief. [ 51 ] The totality of the circumstances known to Constable Chamberlain at the time he directed Vincent Probe’s arrest included all observable, discernible, inculpatory, exculpatory, neutral and equivocal factors as described above. In my view, the observations the Street Crew made of Vincent Probe and the people with whom he interacted, combined with Constable Chamberlain’s knowledge and experience with drug-trafficking investigations generally, provided a credibly-based probability of possession and trafficking.

Although the police did not actually observe Vincent Probe in physical possession of illicit drugs, transporting them, or distributing them, Constable Chamberlain was entitled to inform the inferences he drew about Vincent Probe’s conduct with reference to the other information in his possession. For the purpose of properly drawing inferences, it is inconsequential that the information may support more than one inference or an exonerating inference.

Moreover, reasonable grounds must be based on the cumulative effect of the information known to the arresting officer without hindsight. [ 52 ] In conclusion, I am satisfied that the Crown has established that Vincent Probe was lawfully arrested. I am further satisfied that

Vincent Probe was subjected to a reasonable search incident to arrest. I find no violation of either s. 9 or s. 8 of the Charter . In view of my findings on ss. 9 and 8 of the Charter , there is no need to engage in a section 24(2) analysis. _____________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia CORRIGENDUM – released August 14, 2023 In the Ruling on Voir Dire dated July 18, 2022, the following changes have been made to correct the sequential alpha listing of authorities in paragraph 37: [1] Paragraph 37 should read: [37] The defence has provided the court with the following authorities: (

a) R. v. Sohi , 2018 BCSC 2145 (“ Sohi ”); (

b) R. v. Barnes , 2018 BCPC 99 (“ Barnes ”); (

c) R. v. St. Germaine , 2017 BCPC 34 (“ St. Germaine ”); (

d) R. v. Pope , 2015 BCSC 2391 (“ Pope ”); (

e) R. v. Devloo , 2015 ABQB 345 (“ Devloo ”); (

f) R. v. Fraser , 2013 BCPC 59 (“ Fraser ”); (

g) R. v. Pino , 2016 ONCA 389 (“ Pino”) ; and (

h) R. v. Quach , 2014 ABPC 8 (“ Quach ”). _____________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia