R. v. Kwak Date:, 2013 BCPC 274

Citation: R. v. Kwak Date: 20130624 2013 BCPC 0274 File No: 76560-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. COREY JASON KWAK RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown: S. Gill Counsel for the Accused: R. Dhanu Place of Hearing: Abbotsford , B.C. Dates of Hearing: May 13 and 14, 2013 Date of Ruling: June 24, 2013

[ 1 ] THE COURT : This is my ruling on a voir dire held in proceedings 76560, R. v. Corey Jason Kwak . I - INTRODUCTION : [ 2 ] Mr. Kwak, together with a co-accused, has been charged under a three count Information with unlawfully possessing cocaine, heroin and marihuana for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . The matter proceeded by Indictment. [ 3 ] On August 17th, 2011, Mr. Kwak was a passenger in a motor vehicle being driven by the co-accused, Ms. Henning, in Mission, British Columbia. [ 4 ] RCMP Officer Cst.

Desjarlais saw the two accused in the vehicle behind his stationary police vehicle and he recognized them because he had dealt with them in the past. Cst. Desjarlais conducted a vehicle stop because there was a failure to signal and he recalled that Ms. Henning was a new driver and she was not displaying the "N". Cst. Desjarlais then checked the temporary driver's permit on the rear of the vehicle on approach to the vehicle. [ 5 ] Cst. Desjarlais smelled a quite strong odour of vegetative, i.e., unburnt or raw marihuana, coming from the passenger side of the vehicle, as that window was open. Cst.

Desjarlais directed the driver and the accused out of the vehicle and arrested both of them for possession of a controlled substance, being marihuana, having formed the belief of the offence, based on the smell of a vegetative marihuana coming from the car. Both persons were verbally informed of their Charter rights. [ 6 ] Cst. Harnett conducted a search of the vehicle incidental to arrest. Cst. Harnett located items, including score sheets, cash, dried marihuana, a scale, a crack pipe and several cell phones in the vehicle. Cst.

Harnett heard various cell phones ringing and ultimately determined that hard drugs were being requested. The driver and Mr. Kwak were arrested for possession for the purpose of trafficking and were given full Charter warnings. [ 7 ] Following the second arrest, the driver and Mr. Kwak were transported to cells while Cst. Harnett continued to search the vehicle. She answered three cell phone calls wherein requests were made for hard drugs. There were also many text messages requesting hard drugs. Because Cst.

Harnett did not find any hard drugs, she believed hard drugs could have been crotched by the two accused so she obtained authorization for both Ms. Henning and Mr. Kwak to be strip-searched at the RCMP detachment. Cst. Harnett does ultimately locate hard drugs in the vehicle, including crack and powder cocaine and heroin/codeine. It is not entirely clear if a strip search is completed prior to the location of the hard drugs. [ 8 ] At the outset of the trial, defence counsel applied to exclude the evidence seized by the police on the basis of three Charter violations and I ordered a voir dire.

II - ISSUES : [ 9 ] The following three issues arise in this voir dire: 1. Did the police have reasonable grounds for the arrest of Mr. Kwak for the offence of being in possession of marihuana? The focus here is whether the odour of vegetative marihuana was sufficient grounds for a valid arrest. If the arrest of Mr. Kwak was not lawful, his s. 9 Charter right not to be arbitrarily detained is violated and one must still decide whether to admit or exclude the physical evidence of the search using s. 24(2) of the Charter. 2. Was it an unreasonable search incident to the arrest for Cst.

Harnett to answer the cell phones contained in the vehicle? Again, if this is a s. 8 Charter breach, one must still determine admissibility of the evidence under s. 24(2). 3. Was the strip search unjustified and, if so, should the physical evidence obtained in this matter be excluded? 1. Grounds for the arrest for possession . [ 10 ] In the case at bar, Cst. Desjarlais is the arresting officer and he has nine years of experience with the RCMP. He has been involved in over 100 drug investigations, the majority of which concern dial-a-dope operations.

He is the officer who recognized the two occupants of the suspect vehicle and he conducts what is, in my view, a legitimate traffic stop. Cst. Desjarlais observed two infractions, a failure to signal and a non-display of the "N", although he later observed a temporary driver's permit. [ 11 ] Cst. Desjarlais smells vegetative marihuana and his experience allows him to easily recognize that smell. The smell is coming from the suspect vehicle and the front passenger window was unrolled. It is his evidence that there is no way the two occupants could be unaware of the smell. Cst. Desjarlais has the driver and Mr.

Kwak exit the vehicle and arrests them both for possession of marihuana. In cross-examination, Cst. Desjarlais said that he assumed both the driver and Mr. Kwak had knowledge of the vegetative marihuana based on the obvious smell; however, Cst. Desjarlais admitted he did not know who had the marihuana or where it was exactly located. [ 12 ] Defence counsel asserts that the smell of marihuana alone is insufficient for the arrest of Mr. Kwak as a passenger in a vehicle. The offence of possession requires not only knowledge but also control.

It would be a serious problem to contend that the smell of vegetative marihuana alone means that any passenger in a vehicle is arrestable. Further, defence counsel submits Cst. Desjarlais did not subjectively have reasonable grounds upon which to base the arrest nor were there objective grounds. Subjectively, the defence maintains Cst. Desjarlais misunderstood the law in that he assumed that knowledge of the marihuana was sufficient without any evidence of control.

Objectively, it cannot be said which occupant had marihuana on them and further investigation was required. [ 13 ] Conversely, the Federal Crown insists that there were reasonable grounds for the original arrest for possession. The smell of marihuana is sufficient for the arrest of Mr. Kwak. The test for reasonable grounds is not the same as making out a prima facie case and

the standard is less than balance of probabilities. In a nutshell, the Crown submits that the smell of vegetative marihuana is a reasonableground for the offence of possession even when the accused is a passenger. [14] Many of the applicable principles can be found in the case of R. v. Russell, [2009] B.C.J. No. 2902. At paragraph 38, that casecites the

summary by Judge Howard in the R. v. Burgis case, [2009] B.C.P.C. 74, which states: The legal principles relevant to these issues can be summarized as follows:

Section 8 of the Charter provides all citizens with a constitutional guarantee against an "unreasonable search and seizure". 2. A warrantless search, as occurred in the present case, is prima facie unreasonable under s. 8 of the Charter, unless the crownestablishes, on a balance of probabilities, that the search was authorized by a reasonable law and conducted in a reasonable manner. 3. A search conducted incidental to arrest is authorized by law so long as the arrest itself is lawful. 4. Section 495(1) of the Criminal Code authorizes a peace officer to arrest without warrant (

a) a person whom the officer, on reasonable grounds, believes has committed an indictable offence; or (

b) a person whom the officer finds apparently committing a criminal offence. 5. If a warrantless arrest of an accused is not in accord with s. 495(1) (

a) or (

b) of the Code, then the arrest may be found to becontrary to s. 9 of the Charter, which

section protects all citizens from arbitrary detention or imprisonment. Warrantless Arrest under Section 495(1) (

a) of the Code In R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 (S.C.C.), the Supreme Court of Canada set out what is required to meet thestandard of 'reasonable and probable grounds' under S. 495(1)(

a) of the Code. At pp. 250-251, para. 16: 16. In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds onwhich to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonableperson placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for thearrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically they arenot required to establish a prima facie case for conviction before making the arrest. [15] The court in R. v. Russell goes on to say that the case stands or falls on the question of whether the odour of fresh marihuanacoming from the accused's vehicle was sufficient to support a finding that there were reasonable grounds for the officer's belief that theaccused had committed the offence of unlawful possession of marihuana.

At paragraph 44 of the case, the Court states that itt is difficultto reconcile the cases, but the weight of appellate authority in this Province supports the possibility of such a finding. The Courtconcludes that an officer's observation, through his sense of smell, is sufficient in the circumstances of that case to satisfy both sections495(1) (

a) and (

b) of the Code. The case of R. v. Burgis, cited above, and the case of R. v. Taylor, [2012] B.C.J. No. 846, come to asimilar result. [16] In R. v. Acosta, [2013] B.C.J. No. 465, some further noteworthy comments are made. That case confirms that the smell of aprohibited drug alone, particularly marihuana in its unburnt or vegetative form, when combined with reliable experience in detecting thenature and source of that smell, has been found to constitute sufficient grounds to uphold such arrest (see paragraph 40). At paragraph41, Mr. Justice Greyell also says as follows: I also adopt the reasoning of Mr.

Justice Doherty in R. v. Golub, (1997), (ON CA), 117 C.C.C. (3d) 193 at para. 18that the test for finding reasonable grounds for arrest is not as exacting as it might be in other situations where reasonable grounds arerequired: …The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often,the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury theofficer can afford.

The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justicefaced with an application for a search warrant. [17] Defence counsel is careful to point out that all the cases above involve an accused who is a driver and not a passenger, or, in anyevent, the special considerations of an accused passenger are not considered. Defence counsel relies on several cases for certain legalprinciples. For example, in R. v.

Nguyen, [2012] B.C.J. No. 429, it is made clear at paragraph 17 that the police are not entitled to arrestfirst and then determine whether the person arrested is connected to the offence under investigation. Any unlawful arrest is a serioustrespass by the state of a citizen's liberty and persons have a rightful expectation of liberty and privacy. [18] Most importantly, defence counsel relies on the case of R. v. Yoo, [2011] B.C.J. No. 1443 and that is a case where the accused

is a passenger. The fact pattern is similar to the one here. Like the case at bar, the officer in Yoo believed all the occupants had knowledge of the marihuana but he did not know who had control (see paragraph 15). Like the case at bar, the issue at the heart of the Yoo case is whether the odour of raw marihuana smelled by the arresting officer was sufficient to give rise to a valid arrest.

Also like the case at bar, the officer had no basis to conclude that the accused had control of the vehicle as he was not the driver and he was not the owner of the vehicle. [ 19 ] In Yoo , Judge Giardini found at paragraph 37 that there was no reasonable basis to conclude the accused passenger had marihuana in his possession. Even if marihuana had been found in the car, at the time of arrest the officer had no basis to conclude the accused had control of the vehicle or its contents.

If the officer had no basis for concluding that the accused had personal possession of marihuana or that he had control of the vehicle or its contents, there is no basis to conclude the accused was committing an offence. Judge Giardini concluded that the arrest was not lawful and the search of him incident to arrest was not lawful. [ 20 ] The case of Yoo is very close to the fact pattern here but there are some distinguishing factors: 1. Cst. Desjarlais in the case at bar knew both of the accused, the driver and Mr. Kwak.

This was not explored in detail but it seems clear the officer thought the two worked in tandem. 2. In the case at bar, Mr. Kwak is the only passenger in the vehicle; in Yoo , there were several passengers including the accused. 3. The real evidence discovered in the Yoo case was discovered on the accused's person; the real evidence in the case at bar was found in the vehicle both on the driver's side and the passenger's side. 4. In the Yoo case, two plastic bags of marihuana were found beside Mr.

Yoo's jacket pocket weighing about 28 grams; in the present case, much more evidence is found indicating a dial-a-dope operation. This evidence includes score sheets, cash, dried marihuana, cocaine and heroin. [ 21 ] None of the above distinguishing factors are of great significance in my analysis of the grounds to arrest Mr. Kwak for possession of marihuana. The evidence about Cst. Desjarlais' familiarity with the driver and Mr. Kwak was vague and undetailed. No details were given to assist me in determining whether Mr. Kwak was in control of any marihuana.

The fact that there were more passengers in the Yoo case also does not really assist in addressing the lawfulness of Mr. Kwak's arrest. The last two distinguishing factors are more germane to a s. 24(2) analysis than the lawfulness of arrest. [ 22 ] Based on the Yoo analysis, I find that the arrest of Mr. Kwak for possession of marihuana was not lawful. Cst. Desjarlais had reasonable grounds to conclude that Mr. Kwak had knowledge of the marihuana based on the fairly strong odour coming from the vehicle; however, he had no reasonable grounds to conclude that Mr.

Kwak had control of the marihuana or indeed control of the vehicle and its contents. Cst. Desjarlais could have placed Mr. Kwak under investigative detention and carried out further investigations, but he unlawfully arrested Mr. Kwak instead. [ 23 ] If the arrest of Mr. Kwak was not lawful, it is not proper to conduct a search incidental to arrest. The question remains whether the real evidence found in the vehicle should be admitted or excluded under s. 24(2) of the Charter. The s. 24(2) analysis is dealt with at the end of my ruling. 2.

Answering cell phones as part of the search incidental to arrest . [ 24 ] In the case at bar, Cst. Harnett conducts a search of the suspect vehicle incidental to the initial arrest of both the driver and Mr. Kwak for possession of marihuana. During that search, the officer first locates score sheets, cash, a sunglasses case containing 8.7 grams of marihuana bud and several cell phones. Cst. Harnett subsequently located a crack pipe, more cash, a lockbox with more marihuana bud (41.2 grams), a scale and other items. Various cell phones are constantly ringing and Cst.

Harnett forms the belief that the two accused are involved in drug trafficking. Cst. Harnett may have answered one call prior to the arrest of Mr. Kwak and the driver for possession for the purpose of trafficking. [ 25 ] The driver and Mr. Kwak are arrested for possession for the purpose of trafficking at 2:21 p.m. on August 17th, 2011, and they were again given a proper Charter warning. The two accused were transported to cells. In the meantime, Cst. Harnett is continuing to search the suspect vehicle and she answers three cell phone calls in which requests are made for hard drugs. These calls are as follows: 1.

At 2:33 p.m., a female called and the officer had trouble hearing so the caller called back and requested "one and one" and a meet was arranged. 2. At 2:49 p.m., a second call was received requesting "three hard" (i.e. crack cocaine). 3. At 2:52 p.m., a third call was received requesting "$60 worth". [ 26 ] Also, numerous text messages are received on cell phones in the vehicle, as shown at pages 11 to 21 of Exhibit B. I intend to just read some of those in from the legend. Page 11: 1.

Text message received by cell phone (604) 226-0042: Ya come to my house throw me some clonaz 4 me I’m not makin nothing if you can. 2. Text message received by cell phone (604) 226-0042: Buddy, this is Kevin. Comon, cuff me a half a green. only six days 'til payday. I will buy an oz for sure another day too, tex me. Page 12:

1. Text message received by cell phone (604) 226-0042: Ck. I got a couple of people i can front to who pay back. I won't screw you for sure plus you know where it live. (Commentary: text message was received from the same telephone number as on page 11, photo 2.) Page 13: 1. Text message received by cell phone (604) 226-0499: U got weed 2. Text message received by cell phone (604) 226-0499: I need u to start looking for adivan harder for me. I'll pay 15 per (unknown) plus an extra $5 for u for getting it. Page 14: 1. Text message received by cell phone (604) 226-0499: 7d 31 hard 8 soft 1pp. 2.

Text message received by cell phone (604) 226-0499: wtf is going on I need dope. Page 16: 2. Text message received by cell phone (604) 226-8888: I need a G soft. Page 17: 1. Text message received by cell phone (604) 226-8888: Do you have d and hard 2. Text message received by cell phone (604) 226-8888: Ok so it's Nate on miller off of best and I need one hard, how long? Page 18: 1. Text message received by cell phone (604) 226-8888: Need two 20's. When u want me to be there? 2. Text message received by cell phone (604) 226-8888: It was a pleasure bowie. Is that yur real name? My real name is carmen lol.

Page 19: 1. Text message received by cell phone (604) 226-8888: Hey, Troy here. do you have hard and Down today? and it's my payday tomorrow, Can I 2. Text message received by cell phone (604) 226-8888: Are you out of D. Randy. Page 20: 1. Text message received by cell phone (604) 226-8888: 01/02: I bought a pk of D off of the new guy on Monday and the colour was dark yellow and it yellow and it worked. I bought a pk of D tonite, very pale yellow did work. Doesn't. [ 27 ] Cst. Harnett does not find any hard drugs in the suspect vehicle until a black photo gear bag is located at 3:11 p.m. Prior to that time, Cst.

Harnett believes the two accused may have crotched drugs so she calls for authorization of a strip search. The photo gear bag contains 8.2 grams of crack cocaine in baggies, 5.6 grams of powder cocaine in lotto paper flaps and 1.5 grams of heroin in paper flaps. The cell phones, the sunglasses containing marihuana, the crack pipe were on the passenger side of the vehicle and the lockbox containing marihuana was under the passenger seat. [ 28 ] Defence counsel submits there are several concerns with Cst. Harnett's search of the cell phones incidental to arrest. First, Mr.

Kwak and the driver were arrested initially for possession yet the only reason to search cell phones would be in relation to a trafficking offence. As well, defence counsel harkens back to the fact that the initial arrest of Mr. Kwak for possession was unlawful. [ 29 ] The Federal Crown asserts that, in general terms, cell phone call evidence is admissible as circumstantial evidence of knowledge of even of the presence of drugs. Further, most of Cst.

Harnett's answering of cell phones took place after the second arrest for possession for the purpose of trafficking. [ 30 ] At the outset, I must say that I am satisfied that in British Columbia the common law power of search incidental to arrest can include the search of the contents of cell phones or similar devices. I rely on a recent case of Mr. Justice Blok in R. v. Dhillon , [2013] B.C.J. No. 1007 . Such searches can include reviews of call history and text messages on cell phones and the answering of cell phones (see paragraph 57 of the case). [ 31 ] The more vexing issue here concerns the fact that Cst.

Harnett was carrying out a search that could be viewed as broader than necessary for an arrest for simple possession. The case of R. v. Adams , [2006] B.C.J. No. 80 makes it clear that a search must truly be incidental to arrest. It should be noted, however, that in the Adams case there was a warrant for the arrest of the accused for a break and enter matter. The search for drugs there was entirely unrelated to the reasons for arrest. [ 32 ] In the case at bar, there are two important factors. First, I do accept Federal Crown's assertion that almost all the searching of the cell phones occurred after Mr.

Kwak's second arrest for possession for the purpose of trafficking. A search of cell phones is truly incidental to a possession for the purpose of trafficking arrest. [ 33 ] Secondly, it is clear that an officer is permitted to search a vehicle as a search incidental to arrest even for simple possession. Cst. Harnett comes across score sheets, cash, cell phones and other evidence indicative of a dial-a-dope operation. It would be nonsensical for a police office to disregard evidence found in the vehicle simply because it was not precisely within the ambit of the offence charged.

There is a logical nexus between the offence of possession and the offence of possession for the purpose of trafficking and the evidence of one sometimes leads to the evidence of the other. [ 34 ] The case of R. v. Acosta , cited above, is an example of this occurrence. The occupants of the vehicle are arrested for possession of a controlled substance based on the smell of vegetative marihuana.

When the police conduct a search of the vehicle incidental to arrest, some wads of cash and bags of suspected cocaine were located and the driver is ultimately arrested for possession for the purpose of trafficking. [ 35 ] Much the same happened in the case at bar except that I have found that Mr. Kwak's initial arrest as a passenger to be unlawful, as discussed above. I will deal with that important difference in my s. 24(2) analysis. [ 36 ] In my view, but for the initial unlawful arrest of Mr. Kwak, the search of the cell phone calls and texts is not a violation of Mr. Kwak's s. 8 Charter rights.

Based on the Dhillon case, the review of call history and text messages and the answering of cell phones is a reasonable search incidental to the arrest for possession for the purpose of trafficking. In the case at bar, Cst. Harnett's answering of the three specific cell phone calls was clearly after the arrest for possession for the purpose of trafficking and the same can be said of the search for text messages.

I appreciate that the original arrest was for possession but arrests and searches incidental to arrests are fluid situations and police may come across evidence in a possession arrest which more directly relates to a trafficking offence. 3. The strip search . [ 37 ] As outlined above, Cst. Harnett conducted a search of the suspect vehicle, both incidental to an arrest for possession, which I did find to be unlawful in relation to Mr. Kwak, and incidental to a subsequent arrest for possession for the purpose of trafficking. During the search, Cst.

Harnett becomes aware of requests being made for hard drugs, as set out in the cell phone call and text messaging evidence. [ 38 ] Cst. Harnett did not initially find any hard drugs in the vehicle. It was not until about 3:11 p.m. that she located hard drugs in a black photo gear bag wedged between the driver's seat and the middle console. Because Cst. Harnett was aware of requests for hard drugs and she was not initially finding hard drugs, she became concerned that Mr. Kwak or the driver may have crotched hard drugs on their person. [ 39 ] Cst. Day had transported Mr.

Kwak and the co-accused back to police cells. Cst. Harnett acquired authorization from her supervisor to have the two accused strip searched and she passed these instructions on to Cst. Day. Cst. Teixeira, a male officer, actually carried out the strip search of Mr. Kwak in police cells and no issue was made of the manner in which the strip search was conducted. The search took less than ten minutes and nothing was found on Mr. Kwak. Cst. Day conducted a strip search of the female driver, Ms. Henning. [ 40 ] The strip search of Mr.

Kwak was conducted sometime between 2:49 p.m. when he arrived in cells and some ten minutes later. Cst. Harnett ultimately finds hard drugs in the vehicle at about 3:11 p.m. but it is unclear if the strip search is completed prior to the discovery of the hard drugs. [ 41 ] Defence counsel maintains that the strip search of Mr. Kwak was unnecessary because police officers are aware that drugs dealers commonly do run out of drugs so a lack of hard drugs in a vehicle does not necessarily mean that the accused was crotching hard drugs. Moreover, once the black photo gear bag was found, Cst.

Harnett should have called off the strip search and she did not do so. Defence counsel, in fact, suggests that the ultimate discovery of hard drugs in the vehicle proves that the strip search was premature. As well, defence counsel harkens back to the basic premise that the original arrest of Mr.

Kwak for possession was unlawful and no police officer made inquiries as to which person in the vehicle was either in possession of or trafficking drugs. [ 42 ] The Federal Crown submits that there was a reasonable basis for the strip search because there were phone and text requests for hard drugs and none were found in the vehicle. The Crown also asserts that the strip search likely was conducted before the hard drugs were found in the vehicle and, in any event, the police officer likely had a basis for conducting a strip search even if hard drugs were

already known to be in the vehicle. [43] The case of R. v. Golden, 2001 SCC 83 , [2001] S.C.J. No. 81 reaffirms at paragraph 83 that strip searches are asignificant invasion of privacy. In order for a strip search to be justified as an incident to arrest, the arrest must first be lawful and it mustbe related to the purpose of the arrest.

The reasonableness of a search for evidence is governed by the need to preserve evidence and toprevent its disposal by the arrestee. [44] In my view, a strip search in connection to the arrest for possession for the purpose of trafficking is reasonable where there isclear evidence of cell phone and text requests for hard drugs and hard drugs are not readily discovered in the vehicle. Even if hard drugsare found in a vehicle search, a strip search may be justified in certain circumstances where there is a concern about crotching.

In thecase at bar, however, I accept that no hard drugs were found in the vehicle at the time when the strip search was first ordered. Insummary, but for the problem with the initial arrest of Mr. Kwak, I do not find that the strip search of Mr. Kwak was in breach of hisCharter rights. It was a justified search in connection with the arrest for trafficking and the strip search was conducted in a propermanner. III - SECTION 24(2) ANALYSIS: [45] Given that I found the initial arrest of Mr.

Kwak for possession to be unlawful and in violation of his Charter right under s. 9 tobe protected from arbitrary detention, any search incidental to that arrest would not be proper. The question remains whether the realevidence found in the vehicle as a result of that search should be admitted or excluded under s. 24(2) of the Charter.

Section 24(2) of theCharter 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, theadmission of it in the proceedings would bring the administration of justice into disrepute. [46] The Supreme Court of Canada in R. v.

Grant, [2009] S.C.C. 32, requires a court to assess and balance the effect of admitting theevidence on society's confidence in the justice system, having regard to the three issues discussed below: 1. Seriousness of the conduct: [47] As stated in R. v. Grant, the more serious or deliberate the police conduct, the greater the need of the court to disassociate itselffrom the fruits of the unlawful conduct. One must examine if the police were acting in good faith, as opposed to acting in a wilfullyblind or negligent manner. Here, Cst. Desjarlais violated Mr.

Kwak's s. 8 and 9 Charter rights by not having reasonable grounds to arrestMr. Kwak for possession of marihuana. He had reasonable grounds to conclude Mr. Kwak had knowledge of the marihuana but helacked reasonable grounds to conclude Mr. Kwak had control of the marihuana. [48] In my view, the violation by Cst. Desjarlais was inadvertent and not done in bad faith. The original detention for the traffic stopwas justified. Also, Mr. Kwak was read his Charter rights during the initial arrest for possession. Cst. Desjarlais had the subjectivebelief that his arrest of Mr. Kwak for possession of marihuana was lawful.

Although he erred in not focusing on the control element ofthe offence, these circumstances are difficult for a police officer because much of the case law does suggest that the smell of rawmarihuana is sufficient for an arrest for possession. The distinction between the driver and a passenger is often not clearly delineated inthe cases. Although I have found the grounds for arrest to be insufficient, Cst. Desjarlais' conduct was certainly not egregious or evenoverly careless; he simply missed consideration of a ground for arrest in a situation that was changing quickly.

I also found that both Cst.Desjarlais and Cst. Harnett testified in a forthright and honest manner. [49] As well, I already discussed that, unlike the Yoo case, the real evidence found by the police in this matter was found in thesuspect vehicle and not on Mr. Kwak's person. The co-accused driver was also being arrested at the same time and it is possible that herarrest was lawful and the resulting search of the vehicle was entirely incidental to her arrest. The Acosta case above points out theproblems officers face in deciding to arrest in volatile and rapidly changing situations. [50] In the case of R. v.

Lauriente, [2010] B.C.J. No. 242, it is said that s. 24(2) does not require a causal link between the Charterinfringement and the discovery of evidence. All evidence gathered following the violation of a Charter right should be considered aswithin the scope of s. 24(2). I accept that all the real evidence of hard drugs was discovered after Cst. Desjarlais made an unlawful arrestbut I also bear in mind the above circumstances were Cst. Desjarlais was working in a quickly changing scenario involving two accusedand I am of the view he acted with integrity notwithstanding the erroneous grounds for arrest of Mr.

Kwak. [51] I have already determined that the cell phone search and strip search would not be in violation of Mr. Kwak's Charter rightswere it not for the initial wrongful arrest for possession. Therefore, these events do not, in my view, significantly add to the seriousnessof the breach. I hasten to add that the strip search was conducted in a proper manner and no evidence flowed from that search. 2. Impact of the Charter-protected interests of the accused: [52] Here, the inquiry is to determine the extent to which the Charter-protected rights of the accused have been infringed.

The moreserious the intrusion, the greater the risk the admission of the evidence would bring the administration of justice into disrepute. I pointout that Mr. Kwak enjoyed an expectation of privacy in the car but not to the same extent as his home (see paragraph 64 of the Russellcase). Furthermore, he was a passenger and not the owner of the vehicle. Again, Mr.

Kwak did receive the proper Charter warnings,both for the initial arrest for possession and the later arrest for possession for the purpose of trafficking. [53] The search of the suspect vehicle incidental to the unlawful arrest for possession did not significantly affect Mr. Kwak's privacyinterests because, as explained above, he was a passenger in a vehicle which was not owned by him and which was in a public area. [54] Defence counsel emphasizes that the initial unlawful arrest of Mr. Kwak did lead to a search of cell phones and a strip search ofMr. Kwak.

The Lauriente case cited above discusses the need to look at the cumulative impact of Charter breaches. However, in the

case at bar, I did not find the search of cell phones or the strip search to be a breach in relation to the later arrest for trafficking and, as discussed above, I have found the breach concerning the unlawful arrest for possession to be a less serious, inadvertent breach. 3. Society's interests in the adjudication on the merits : [ 55 ] This third issue is whether the truth-seeking process is better served by the inclusion or exclusion of the evidence. One of the matters to consider is whether the Charter breach itself undermines the reliability of the evidence.

Here, we are dealing with reliable physical evidence suggestive of a dial-a-dope operation. The physical evidence must not take on disproportionate significance but I note that unlike the Yoo case, there is considerably more evidence here than simply marihuana found on an accused person. In the case at bar, the evidence includes score sheets, cash, dried marihuana, cocaine, heroin, a scale and other indicia of a dial-a-dope operation. [ 56 ] Dial-a-dope operations are a serious concern.

They allow illegal drugs to be easily sold to vulnerable persons in suburban neighbourhoods. [ 57 ] Also, regarding trial fairness, it remains open for Mr. Kwak to argue in this case that any of the real evidence located by the police has not been proven beyond a reasonable doubt to be in his possession. [ 58 ] I have considered the harmful effect of arresting Mr. Kwak when there are less than reasonable grounds to do so.

However, when I weigh that against the benefit of including the physical evidence in this case, I find that the admission of such evidence would not bring the administration of justice into disrepute. Taking into account Cst. Desjarlais' error concerning the reasonable grounds to arrest Mr. Kwak for possession, the public would still have a strong interest in seeing a determination of the trial on the merits. [ 59 ] In conclusion, notwithstanding my finding that the initial arrest of Mr.

Kwak for possession was without reasonable grounds, I would admit the real evidence and related testimony presented in the voir dire, including Exhibits A and B, pursuant to s. 24(2) of the Charter. _______________________ G.J Brown Provincial Court Judge