R. v. Lambert Date:, 2011 BCPC 203

Citation: R. v. Lambert Date: 20110811 2011 BCPC 0203 File No: 7722-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAWN WILLIAM LAMBERT RULING ON CHARTER VOIR DIRE OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Crown: C. Fast and J. Vlasveld (Articled Student) Counsel for the Defendant: C. Elden Place of Hearing: Vancouver, B.C. Date of Hearing: May 31 and August 5, 2011 Date of Judgment: August 11, 2011 INTRODUCTION [ 1 ] Mr. Lambert is charged with being in possession of a controlled substance, namely, cocaine on August 16, 2010.

He was arrested at Pigeon Park in the Downtown Eastside area of Vancouver, British Columbia. [ 2 ] Mr. Lambert alleges that his rights under ss. 8 and 9 of the Charter of Rights were violated. Consequently, he seeks to have the evidence obtained by the police, namely, 8.36 grams of crack cocaine which was found when Mr. Lambert was searched, excluded under s. 24 (2) of the Charter . ISSUES [ 3 ] The issues raised in this voir dire are: (

a) Was the arrest of Mr. Lambert lawful? In particular, did the arresting officer have subjective and objective grounds for arresting Mr. Lambert? (

b) Was the search of Mr. Lambert conducted incident to his arrest unreasonable? OVERVIEW

[ 4 ] On August 16, 2010, at approximately 9:30 P.M., Constable Shipper, along with his partner Constable Bodnar, was on a routine patrol. The patrol included walking to Pigeon Park which is located at the northwest corner of Carrall and Hastings Streets. As he walked toward the park he saw Mr. Lambert from 40 – 50 feet away. He had dealt with Mr. Lambert before and knew Mr. Lambert was a drug addict. Mr. Lambert was sitting against the west wall of the park with his eyes closed. Constable Shipper walked towards Mr. Lambert. When he was about 5 feet away he saw a “much used” crack pipe in Mr.

Lambert’s left hand. [ 5 ] Constable Shipper said when he saw the crack pipe in Mr. Lambert’s hand it was his belief that Mr. Lambert was in possession of a controlled substance, namely, crack cocaine. He believed there was residue in the crack pipe. Constable Shipper immediately decided to place Mr. Lambert under arrest for possession of the cocaine residue in the pipe. [ 6 ] Constable Shipper walked up to Mr. Lambert. He saw that the “much used” crack pipe in Mr. Lambert’s left hand. Constable Shipper identified himself. Mr. Lambert’s eyes were closed. Constable Shipper did not know if Mr.

Lambert was asleep or just pretending to be asleep. He told Mr. Lambert: “Wake up. You are under arrest”. Mr. Lambert’s eyes immediately opened. There was no pause or surprise. [ 7 ] Constable Shipper immediately seized the crack pipe from Mr. Lambert. Mr. Lambert stood up without incident and was very cooperative throughout the process. Constable Shipper immediately arrested Mr. Lambert and advised him of his Charter rights. He told Mr. Lambert he was under arrest for possession of the crack cocaine pipe. He gave him the official police warning. [ 8 ] Once Mr.

Lambert had been told of his Charter rights and given the police warning, Constable Shipper searched him. Constable Shipper said one of the main concerns in that area of town is that people sometimes have weapons such as razor blades and pocket knives. When Constable Shipper searched Mr. Lambert he was shocked to find further drugs on Mr. Lambert’s person. He found a pill container with one chunk of crack cocaine in Mr. Lambert’s left front pants pocket and a baggie with several chunks of crack cocaine in his right front pants pocket. Constable Shipper said, given the amount of drugs he found on Mr.

Lambert, he should be charged with possession for the purpose of trafficking. Constable Shipper told him that he was now under arrest for possession for the purpose of trafficking. He asked Mr. Lambert if he wanted to speak to a lawyer. Mr. Lambert said he did. Constable Shipper called the police wagon which arrived shortly thereafter. Mr. Lambert was taken to the Vancouver jail. [ 9 ] Constable Shipper has been a police officer since 2006. He initially spent nine months working in District 2, which includes the Downtown Eastside. He was then assigned to the Beat Enforcement Team for 3 ½ years.

The Beat Enforcement Team is dedicated to policing in the Downtown Eastside. As of August 2010 Constable Shipper had worked in the Downtown Eastside for 2 ½ years. He had conducted hundreds of drug investigations for trafficking, possession for the purpose of trafficking and possession of illicit drugs. Hundreds of the investigations he was involved in concerned crack cocaine. Therefore he was familiar with that drug as well as crack pipes and other drug paraphernalia. DETAILS ABOUT CERTAIN MATTERS Decision to arrest Mr. Lambert [ 10 ] When Constable Shipper first saw Mr.

Lambert he was approximately 40 to 50 feet away from him. Mr. Lambert was in a small alcove. Constable Shipper acknowledged it was dark but there was some lighting. The alcove had enough ambient light so he could see. He was walking up to Mr. Lambert to make sure he was okay. Constable Shipper agreed it was not unusual to see someone sitting in an alcove in the Downtown Eastside but he nevertheless believed he had a duty of care. Constable Shipper saw the crack pipe when he was about 5 feet away from Mr. Lambert. [ 11 ] Constable Shipper made the decision to arrest Mr. Lambert when he saw the crack pipe.

He immediately identified it as a “much used” crack pipe and based his grounds for arrest on that. If it had been a clean unused pipe there would have been no arrest. It was put to Constable Shipper that he did not see the residue. He said he saw the black end of the pipe which he believed contained residue. It was put to Constable Shipper that he did not actually see residue. He said he did not believe it was possible to see residue, so he did not see residue. Constable Shipper said he arrested Mr. Lambert because of the burned end of the pipe; he suspected there was residue.

Constable Shipper agreed the sole reason for arresting Mr. Lambert was because the crack pipe was burned. In cross-examination Constable Shipper was asked about some small amount of residue that was on the inside of the opaque rubber tubing that goes into the mouth. He said that was not the end he focused on. Constable Shipper seized the crack pipe from Mr. Lambert before he stood up. It took approximately one minute from the time Constable Shipper saw Mr. Lambert to the time he arrested him. He did not consider detaining Mr. Lambert because he believed a burned crack pipe provided sufficient grounds for arrest.

Significance of crack pipe [ 12 ] Constable Shipper explained why he believed the crack pipe was “much used”. He explained that crack cocaine pipes are lit at one end. Crack cocaine is put inside the pipe and is lit so that it melts. As the cocaine melts fumes are released and those fumes are inhaled. Constable Shipper said a crack pipe that has a very blackened end indicates to him that it has been lit many times. [ 13 ] Constable Shipper is familiar with crack pipes. They are a common piece of drug paraphernalia. It is common for individuals who live in the Downtown Eastside to have crack cocaine pipes.

Constable Shipper said he had never seen a crack cocaine pipe cleaned as that would defeat the whole purpose. In his experience, people use push sticks to move and smoke what is left, not to clean it. [ 14 ] Often individuals who frequent or reside in the Downtown Eastside carry crack pipes because they intend to use cocaine in the future. Constable Shipper said he could not tell from looking at a crack pipe how often it has been used or when. He could not say

whether it was used the day before or five months before. Constable Shipper said that crack cocaine melted into a pipe after use would stay in the pipe but he could not say for how long. Residue in crack pipe [ 15 ] Constable Shipper was asked why he thought there was cocaine residue in the pipe Mr. Lambert was holding. He said he has worked in the area for some time; he has walked through the area many times; he knew Mr. Lambert was an addict and he knew Pigeon Park is an area where cocaine is “dealt, possessed and smoked”. Drugs are commonly used in the area.

Constable Shipper said he believed there would be cocaine residue because, when cocaine melts into a crack pipe, remnants are left in the pipe. If residue is burned into the pipe itself, it is difficult to remove. Constable Shipper could not say if it was possible to remove residue. Constable Shipper agreed it was possible for residue that is left behind in a crack pipe to be something other than a controlled drug because crack cocaine is cut with other substances. [ 16 ] Constable Shipper said he usually sends the crack pipe for analysis when charges are requested.

In this case, the exhibits officer would be the one who submitted the crack pipe for analysis. This is standard operating procedure. He could not recall if he asked his partner, who was the exhibits officer, to have the pipe analyzed. [ 17 ] Constable Shipper was asked whether he was simply expressing his belief when he said that in his experience residue in a crack pipe is generally crack cocaine. Constable Shipper said on those occasions when he has sent pipes for analysis, he could not recall an occasion when the result came back negative.

He could not say whether some of the crack pipes he had seen did not have residue. However, in his experience, when he has seen a much used crack pipe, it has proven to have residue. Constable Shipper acknowledged it was possible there might be situations where a used crack pipe would not have residue in it. Arrests for crack pipes [ 18 ] Constable Shipper testified it is rare to request charges against someone for simple possession of a crack pipe; however, Constable Shipper has requested such charges in the past.

If he sees someone with a crack pipe, it is his practice to arrest the person and read the Charter rights. It is not rare for him “ per se ” to arrest people solely for possession of a crack pipe. He has done so a number of times in the past. [ 19 ] Constable Shipper denied he arrests persons who have a crack pipe because he believes they have more drugs. He noted, in this case, he was surprised Mr. Lambert had more drugs. Constable Shipper acknowledged that one of the reasons he arrests people for possession of crack pipes is because he wants other investigative avenues to open up.

Constable Shipper said if he thought there was no cocaine in a crack pipe he would not arrest the person who had it. Constable Shipper’s notes [ 20 ] The defence cross-examined Constable Shipper about the lack of details in his handwritten notes and/or in his occurrence report. Constable Shipper agreed there was: • no notation that he knew Mr. Lambert; • no notation that he knew Mr. Lambert was a user of crack cocaine; • no notation that he was concerned Mr. Lambert may have a weapon; • no notation that the crack pipe was much used; • no notation that there appeared to be residue; • no notation that Mr.

Lambert was arrested for possession of the residue. Concern about a dealer in the area [ 21 ] Constable Shipper acknowledged he had concerns about a dealer called Ashkan Mozafar. He said Mr. Mozafar is a predatory person who Constable Shipper had arrested for trafficking in crack cocaine. Mr. Mozafar’s modus operandi is to employ crack addicts to hold and deal drugs. On the day in question Constable Shipper saw Mr. Mozafar just before he saw Mr. Lambert. [ 22 ] Constable Shipper said his suspicions were not raised that someone in the park was “holding”. He said Mr.

Mozafar usually had someone “holding” for him in a room. He had not dealt with a situation where Mr. Mozafar had someone “holding” for him outdoors. Constable Shipper said if Mr. Mozafar was there, someone in area would have drugs. Constable Shipper could not remember whether he specifically wanted to investigate who Mr. Mozafar’s dealer was but it was possible that was on his mind. He said it was likely it was on his mind that someone in the laneway was dealing drugs for Mr. Mozafar. The laneway is across the street from Pigeon Park. The accused was in Pigeon Park not in the laneway.

POSITION OF THE PARTIES [23] Mr. Lambert submits that his arrest was unlawful and arbitrary and contrary to s. 9 of the Charter. He also submits that thesearch of his person, conducted incident to his unlawful arrest, was contrary to s. 8 of the Charter. In

summary, Mr. Lambert submitsthat while Constable Shipper subjectively believed he had crack cocaine residue in his possession, that belief was not objectivelyreasonable. Mr. Lambert says mere possession of a used crack pipe, without more, did not provide the requisite objective grounds. [24] The Crown submits that whether Constable Shipper’s belief is objectively supportable depends on an analysis of the totality ofthe circumstances. In carrying out that analysis the court must look at the circumstances from the perspective of a reasonable person inthe position of the officer.

The Crown submits that when the totality of the circumstances is considered, taking into account ConstableShipper’s experience and knowledge, it is reasonable to concluded Mr. Lambert was in possession of crack cocaine by having a muchused crack pipe in his possession. THE LAW Police power of arrest [25] A police officer’s power of arrest stems from s. 495 of the Criminal Code.

The police have the power to arrest a person if theyhave reasonable grounds to believe that the person has committed or is about to commit an indictable offence [see s. 495(1)(a)] or if theyfind a person in the process of committing a criminal offence [see s. 495(1)(b)]. Cocaine is listed as a

Schedule 1 substance under theControlled Drugs and Substances Act. Section 4(3) of that Act makes possession of a

Schedule 1 substance a hybrid offence that ispunishable either by indictment or

summary conviction. A hybrid offence is deemed to be indictable until the Crown makes its election[see s. 34(1)(a)] of the

Interpretation Act (R.S.C., 1985, c. 1-21). Accordingly, in a situation where possession of cocaine is alleged, anofficer is, ostensibly, entitled to arrest without a warrant a person who he believes has committed or is about to commit an offence or aperson whom he finds committing an offence. [26] In Regina v. Neill and Spence (22 October 2009), Court File No.181356, Vancouver Registry (Prov.

Ct.), Howard P.C.J.summarized the law relating to the power of arrest as follows: 1.1 The onus is upon the Crown to establish that a warrantless arrest, as occurred in this case, was lawful and not contrary to s. 9 ofthe Charter. This onus is met if there compliance with the requirements of s. 495(1) of the Criminal Code. 1.2 S. 495(1) of the Code authorizes a peace officer to arrest without warrant a person whom the office believes, on reasonablegrounds, has committed an indictable offence. 1.3 The arresting officer must subjectively have reasonable grounds upon which to base the arrest.

Those grounds must, inaddition, be justifiable from an objective point of view. A reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable grounds for the arrest. R. v. Storrey, (SCC), [1990] S.C.J. No. 12 (S.C.C.) at para 16; R. v. To, [1998] B.C.J. No. 1323 (B.C.C.A.) at para. 11; R. v. Juan 2007 BCCA 351 (B.C.C.A.) at paras. 18-19. 1.4 The term “reasonable grounds” has been equated with “credibility-based probability”. Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145 at p. 167; R. v. Grunwald, [1991] B.C.J. No. 235.

The police need not demonstrate anything more than this. Specifically they are not required to establish a prima facie case for convictionbefore making an arrest. Storrey (supra) at para. 17. 1.5 A warrantless arrest of an accused that is not in accord with s. 495(1)(

a) of the Code is an unlawful arrest. [27] The standard required to establish reasonable grounds has been addressed in a number of cases. In R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, the court noted that the police need not demonstrate anything more than reasonable and probablegrounds. Specifically, police are not required to establish a prima facie case for conviction before making an arrest. In R. v. Whitaker,2008 BCCA 174, the court noted that the standard of reasonable grounds is more than mere suspicion and less than a balance ofprobabilities.

Reasonable grounds exist where there is an objective basis for the belief based on compelling and credible information. [28] In R. v. Parchment, 2005 BCSC 1871, the court said in a case of a warrantless arrest the Crown has the burden to establish thesearch was reasonable on a balance of probabilities.

[29] In R. v. Simpson, (ON CA), [1993] O.J. No. 308, the court noted that a “hunch” based entirely on intuitiongained by experience cannot satisfy the requirement for objective reasonable grounds. The court further noted that such a subjectivelybased assessment can too easily mask discriminatory conduct based on such irrelevant factors as the detainee’s sex, colour, age, ethnicorigin or sexual orientation. As well, without objective criteria detentions could be based on mere speculation. Crack pipe cases [30] In this case, the Crown relies on the following cases to support its position: R. v.

Cooper (June 7, 2010), Vancouver RegistryFile No. 3505-1-P; R. v. Furness 2005 BCPC 389 , 2005 BCPC 0389, R. v. Motevaselan 2004 BCPC 592, R. v. Kalmocoff2004 BCPC 593. The defence relies on R. v. Lee 2009 BCSC 616, R. v. Spitale 2005 BCPC 586 , 2005 BCPC 0586, R. v.Motevaselan 2004 BCPC 362 and R. v. Motevaselan 2003 BCPC 533. Predictably the cases relied on by the Crown concluded thatfinding a used crack pipe, in certain circumstances, amounted to reasonable grounds, whereas the cases relied on by Mr. Lambertconcluded that finding a crack pipe, without more, was not enough to constitute reasonable grounds.

Cases relied on by Crown [31] In R. v. Motevaselan 2004 BCPC 592, the accused was found by the police in a lane behind a dumpster in the DowntownEastside. The man was standing in a position which, according to the police officer, was consistent with someone using drugs. Thisconclusion was based on the officer’s previous experience. When the officer got closer he immediately recognized the accused as aknown trafficker. As he got closer one of the officers also observed the accused concealing his hands from view. One of the officersalso noted the front pants of the man’s track suit were bulging.

When the officer asked the accused what was in his pockets he repliednothing. The officer got out of his patrol car and told the accused to put what he had in his hands on the hood of the car. At that time heobserved the accused had a used crack pipe in his left hand that had a yellowish and brown residue inside. At that point the officer toldthe accused he was under arrest for possession of a controlled substance, namely, the crack residue in the pipe.

The officer thensearched the accused. [32] The accused argued that the finding of a used crack pipe did not amount to reasonable grounds to believe the person possessing itwas in possession of an illegal controlled substance. Arnold-Bailey P.C.J., as she then was, found this argument to be without merit.

Shesaid: Used or not, the presence of a crack pipe in these circumstances, which include but are not limited to the location of the lane in the 100block East Hastings, the location of the accused behind the dumpster, which affords an added element of privacy, and the actualpossession of the crack pipe by the accused with apparent residue in it, give clearly objective and subjectively reasonable grounds toarrest the accused based on the well-known test in R. v.

Storrey, and then to properly search him incidental to arrest. [33] Judge Arnold-Bailey concluded that the actual physical possession of a crack pipe with residue, as opposed to, for example, asyringe, leads only to one rational conclusion, namely, that there exists a substantial likelihood the person possessing it is in possession ofcrack cocaine, the substance burned and consumed by the use of the crack pipe, either in terms of the residue in the pipe or a furtherquantity held on his or her person. [34] In R. v.

Kalmocoff 2004 BCPC 593, the accused was found sleeping at the English Bay bathhouse at 5:30 in the morning. Hewas roused from his sleep by the police. Various personal objects were around him and approximately one foot away from him. Amongthese objects was a crack pipe. The police considered his demeanour, he was sleepy/groggy, and the crack pipe and thought he might bein possession of a controlled substance. The police detained and searched him.

The accused argued that his rights under ss. 8 and 9 ofthe Charter were violated. [35] Smyth P.C.J. found there was nothing untoward in his demeanour and focussed on the finding of the crack pipe. In thecircumstances, he concluded it was reasonable to infer the accused had possession of the crack pipe. Judge Smyth concluded theinference to be drawn from the evidence of the police was that most of the time, or probably, or usually, if a person is found in possessionof a crack pipe that person is in possession of a drug. It was clear that neither of the officers suggested this was always so.

Judge Smythfound this evidence was sufficient to support a search and detention for the purpose of effecting the search. Accordingly he found noCharter breach. [36] In R. v. Furness 2005 BCPC 384, the police were patrolling an area in Nanaimo known for drug use. They saw the accused,who was known to them, with a woman they knew to be a “drug middler”. A police officer saw the accused walking with what appearedto be a crack pipe sticking out of the palm of his hand. The police officer believed that the accused and the woman were heading to thearea to smoke crack cocaine. The officer arrested both of them.

The officer was not able to confirm the accused was in fact holding acrack pipe until after she had arrested him. The defence argued there was an absence of grounds for a valid s. 495 arrest and asked forthe evidence to be excluded. [37] Cowling P.C.J. said he was prepared to accept the arrest as valid. The approach he took was to consider that the observation ofthe accused with what appeared to be a crack pipe sticking out of his hand would have justified the investigative detention of theaccused.

The detention would have lawfully led to the confirmation the item was a crack pipe and the necessary basis for a search whichwould have disclosed the rock of cocaine found on the accused. The judge said he found it difficult to evaluate, on an objective basis, anincident the proper value of which was more the subject of art than science. He accepted the evidence of the officers. In their place hepersonally would have been less confident to presume what the accused was about but he was not saying he considered the decision ofthe officers to be erroneous or unreasonable. [38] In R. v.

Cooper (June 7, 2010), Vancouver Registry File No. 3505-1-P, two police officers were in the lane behind the CarnegieCentre. One of the officers saw the accused seated on a ledge somewhere near a dumpster. The accused had what appeared to be a used

crack pipe at her feet. She had her fist clenched. An officer made a decision to arrest her at that point believing she was in possession of cocaine. Kitchen P.C.J. concluded the officer had a subjective basis for the arrest. The only issue was whether it was objectively reasonable to conclude the accused probably possessed cocaine. [ 39 ] The judge concluded that the general and specific location where the accused was found was significant, as was her stationary position on the ledge and the fact a crack pipe was within her immediate vicinity.

The judge said the following about the crack pipe: ..... a crack pipe has sufficient meaning to the courts. The judges must take notice that a crack pipe is used for smoking crack cocaine and is seen often in this court. Just as judges have been educated and know what a joint is and know what a bong is and know what hypodermic syringe is, a crack pipe has particular meaning and it is something designed to be used to smoke crack cocaine. Evidence of use of such an item can be seen because crack cocaine is burned within it.

So there is a burnt look when it has been used, and of course these items are seen on a routine basis by the court (at para. 8). He decided it was reasonable for the officer to conclude that the accused was likely in possession of cocaine, that she had the pipe there, and was about to use it. He found the officer was entitled to arrest her for the cocaine the officer knew would be within the pipe. The judge said she was subject to arrest, even though what might be found in the pipe turned out to be minimal amount of cocaine. Cases relied by Mr. Lambert [ 40 ] In R. v.

Motevaselan 2003 BCPC 533 , a police officer was in a car approximately 40 feet from the accused, who was standing against the wall at Pigeon Park. The accused was with a person who the police believed was an enforcer or bodyguard. The police officer also believed the accused to be a small-time dealer. This belief was based on comments by other police officers and another situation where the officer had been involved peripherally in the arrest of the accused. The officer saw the accused with a used crack pipe and purported to detain him for investigation under the Controlled Drugs and Substances Act .

The police officer believed his right to search was the same whether the accused was detained or arrested. He therefore searched the accused’s pockets and found some cash and drugs. [ 41 ] The issue in that case was whether the search was a lawful one. Godfrey P.C.J. said there was not enough evidence before the court to allow her to conclude the arrest was lawful. She said that the area, the reputation of the accused, and the presence of a used crack pipe were grounds for the officer to conduct a further investigation.

However, she stated: “Whether or not there is lawful grounds for arrest would depend on more evidence around that crack pipe and whether it had obviously some substance in it or whether it was simply an empty but used crack pipe.” [ 42 ] In R. v. Motevaselan 2004 BCPC 362 , the police saw the accused standing in an alley with a high-end bicycle. Given the location and the appearance of the accused the police went to investigate further. As the police approached the accused, they saw a “bong” attached to the bicycle.

An officer also saw some wire mesh (steel wool) poking out of the accused’s pocket which she believed was used for smoking crack cocaine. The accused also had a cell phone that was ringing constantly. Based on these observations the police told the accused he was under investigation for possession of drugs. They searched him and found a number of drugs in his pockets. [ 43 ] Godfrey P.C.J. concluded that the bong, the steel wool, and the cell phone were not sufficient objective grounds on which to base an arrest for possession of drugs.

She said those factors were sufficient grounds for the officers to investigate, which was what they were doing. However, the judge found that the search was not lawful. She said the police officer would have been entitled to pat down for weapons but that is not what he had done in this case. Accordingly, she found the search was not a lawful one. [ 44 ] In R. v. Spitale 2005 BCPC 586 , a police officer, who had dealt with the accused before, saw him sitting on the front steps of a building located two blocks away from a very high drug and prostitution area.

The accused had his back to the police car and was holding a crack pipe. When two police officers approached him, he closed his hand over the pipe and put it by his side. One of the constables told the accused he was under investigation for possession of a controlled substance and removed the pipe from the accused’s hand. The constable saw that the pipe had a black end indicating it had been used, but he did not see cocaine residue. [ 45 ] The officer asked the accused if he had any drugs on him and was told “no”.

The officer had dealt with the accused many times and had no fear for the safety of himself and his partner. The officer conducted a pat-down search of the accused. When the officer began the search, the accused removed a plastic bag, which appeared to contain crack cocaine, from inside the front of his pants. The constable placed the accused under arrest and continued his search. He found $137. The bag that the accused had removed from inside the front of his pants had 32 rocks of cocaine. [ 46 ] In that case Rounthwaite P.C.J. concluded that the law is quite straightforward: (

a) Possession of a crack pipe has repeatedly been held to provide reasonable grounds for investigative detention where it occurs in circumstances giving rise to reasonable suspicion that the individual possesses drugs; (for example, a neighbourhood known for drug use, the officer’s experience, etc.) (

b) Investigative detention must be brief; police officers must tell detainees the reason for their detention; and detainees are not obliged to answer questions. (

c) During investigative detention officers may conduct a protective pat-down search of the detainee where they believe on reasonable grounds that their safety or safety of others is at risk. However, they may not search the detainee for evidence. (

d) Only where there are reasonable grounds for arrest, viewed subjectively and objectively may officers arrest and conduct a search incidental to arrest in order to obtain evidence, to prevent escape or for safety.

[ 47 ] In that case the judge concluded there was a serious Charter breach. She acknowledged the evidence was not conscriptive so its admission would not affect trial fairness. She also noted, however, that while the search was not intrusive, and the expectation of privacy in an item held in one’s hand in a public place is reduced, the officer conducted a search for evidence without reasonable and probable grounds for arrest. She noted good faith cannot be claimed if a Charter violation is committed on the basis of a police officer’s unreasonable error or ignorance as to the scope of his or her authority.

At the end of the day, the judge concluded the evidence should be excluded because to admit evidence obtained by an officer who appeared to be ignorant of the legal boundaries of his power to search people would encourage unlawful activity by the police. [ 48 ] In R. v. Lee 2009 BCSC 616 , police officers approached a car that was parked in Stanley Park. Its engine was running and the windows were fogged up. The car had been parked for about 20 minutes. The police knocked on the windows but received no response from two sleeping occupants of the car. Eventually, Mr. Lee, who was in the driver’s seat, woke up.

He told officers everything was fine but he was asked to get out of the car. His passenger, a female, woke up shortly thereafter and got out of the passenger side of the car without being asked to do so. One of the officers discovered a recently used crack pipe on the passenger side of the car when the passenger got out. Both the accused and the passenger were arrested for possession of cocaine. When Mr. Lee was searched they found a baggie of brown drugs. Mr. Lee later volunteered there were other drugs on him.

In his underwear police officers found several baggies of cocaine and heroin with a total value of $2400.00. [ 49 ] Mr. Lee argued he was unlawfully detained when he was ordered out of the car and this violated his s. 9 right not to be arbitrarily detained. He also argued that, but for the unlawful arbitrary detention, the crack pipe might not have been found in the car and this was what led to the subsequent arrest and search. The drugs Mr. Lee had on him would never have been obtained by the police. The trial judge found there was no criminal offence being investigated when Mr. Lee was detained.

She concluded the officer did not have objectively reasonable grounds for ordering Mr. Lee out of the car. The trial judge said it was reasonable for the officer to approach the car to see if there was anything of concern, given that it had been parked with the engine running for 20 minutes. It may also have been reasonable for the officer to make an enquiry into the well-being of the occupants when she saw they were not awake. However, once Mr.

Lee woke up and said everyone was fine, the officer had no objectively reasonable basis for ordering him out of the car. [ 50 ] With respect to the crack pipe the trial judge found it was in plain view once the female passenger got out of the car. Mr. Lee argued the crack pipe would never have been in plain view but for the unlawful detention. The trial judge was not satisfied there was any connection between the female passenger getting out of the car and leaving the crack pipe in plain view.

She concluded the crack pipe was not evidence that was obtained due to any breach of the accused’s Charter rights and therefore it was admissible. The trial judge found that the basis for the arrest of Mr. Lee was the presence of the crack pipe in the car, together with the fact that the occupants of the car were unusually difficult to arouse. [ 51 ] The trial judge assumed for purposes of the decision that the crack pipe was in Mr. Lee’s possession.

However, she said that if the factors relied on by the officer were objectively reasonable grounds for suspecting a person to be in possession of drugs, then the police would have grounds to arrest and search anyone who might be in possession of drug paraphernalia and who happened to be sleeping. The trial judge found the factors relied on were not objectively reasonable grounds for arresting a person in the circumstances of the case before her. [ 52 ] The trial judge went on to say that a crack pipe does not, on its own, indicate possession of cocaine.

At most, possession of a crack pipe might indicate reasonable grounds to suspect that whoever owns the crack pipe had in the past used drugs or might want to use drugs in the future. She said some evidence, in addition to the evidence that indicates possible drug use in the past, should be required to arrest a person for being presently in possession of drugs. [ 53 ] The trial judge also noted it might be possible that on finding the crack pipe, the officer might have had a reason to investigate the possibility of possession of cocaine. However, that is not what the officer did, she immediately arrested Mr. Lee.

The trial judge concluded on the circumstances before her, that the presence of a crack pipe, at most, might have led to an investigation by the police officers. However, she found that the crack pipe, together with the fact that the occupants of the car had been sleeping, did not provide objectively reasonable grounds to believe that Mr. Lee was in possession of cocaine. The trial judge excluded the evidence of drugs found on Mr. Lee’s person pursuant to s. 24(2) of the Charter . ANALYSIS [ 54 ] Mr. Lambert conceded Constable Shipper subjectively believed that Mr. Lambert had crack cocaine in his possession.

Accordingly, the issue this court must decide is whether that belief was objectively reasonable. The essential facts on which Constable Shipper’s subjective belief was based were: • Mr. Lambert appeared to be asleep when Constable Shipper first saw him from approximately 40 to 50 feet away; • Constable Shipper approached Mr. Lambert and when he was approximately 5 feet away he saw Mr. Lambert had a much used crack pipe in his left hand; • A crack pipe that has a very blackened end indicates to Constable Shipper that it has been lit many times; • Constable Shipper made the decision to arrest Mr.

Lambert when he saw the crack pipe. He immediately identified it as a much used crack pipe and based his grounds for arrest on that observation; • He arrested Mr. Lambert because of the burned end of the crack pipe. He did so because he suspected there was residue; • He did not actually see residue in the crack pipe; • He arrested Mr. Lambert right away and gave no thought to making an investigative detention.

[55] When assessing whether the Crown has established that a police officer had reasonable and probable grounds for an arrest, it isnot necessary to establish a prima facie case for conviction. The standard of reasonable grounds is more than mere suspicion but lessthan a balance of probabilities. The cases relied on by Mr. Lambert make it clear that, in situations involving crack pipes, more isrequired to establish reasonable and probable grounds than the simple fact that a person has a used crack pipe.

In Motevaselan 2003BCPC 533, Godfrey P.C.J. made it clear that the area, reputation of the accused, and the presence of a used crack pipe were notsufficient grounds for a lawful arrest. The other Motevaselan case (2004 BCPC 362) is not helpful because it did not deal with thepolice observation of a crack pipe. [56] In Spitale, Rounthwaite P.C.J. dealt with a case involving an investigative detention and a search incident to that detention. Thefacts of the case are similar to the facts of the case at bar.

The court had no trouble concluding that being found in possession of a crackpipe in a neighbourhood known for drug trafficking gave the officer sufficient grounds for an investigative detention. However,Rounthwaite P.C.J. categorically stated those same grounds were not sufficient for arrest. Because the officer testified he did not seeresidue, she rejected the argument that he had grounds for arrest on seeing that the pipe appeared to be used.

In arriving at her decisionshe distinguished Motevaselan 2004 BCPC 592 on the basis that in that case the officer had seen residue, and Kalmocoff on the basisthat although decided shortly after R. v. Mann [2004] 3 S.C.C. 59, it did not refer to Mann and appeared to be contrary to the principlesestablished in Mann. [57] In Lee, Griffin J. dealt with a case where a crack pipe was found on the passenger side of a car. The arresting officer did not seethe crack pipe, but relied on the fact that another officer told her it was found in the car.

Griffin J. noted that the police officer made twoleaps in arresting the accused. First, that the crack pipe was in his possession and second, that this meant cocaine was in his possession. Griffin J. noted that, even assuming the crack pipe was in the accused’s possession, if the facts relied on by the police officer wereobjectively reasonable grounds for suspecting a person to be in possession of drugs, then the police would have grounds to arrest andsearch anyone who might be in possession of drug paraphernalia and who happened to have been sleeping.

She found the factors werenot objectively reasonable grounds for arresting the accused in that case. She said it was possible that on finding the crack pipe theofficer might have had reason to investigate but that is not what the officer did, rather, she immediately arrested Mr. Lee. [58] The Crown relied on a number of cases which I have considered. The Cooper case is factually closest to the case at bar. Itappears to be an oral ruling.

Further, it does not appear that Judge Godfrey’s decision in the 2003 Motevaselan case or JudgeRounthwaite’s decision in Spitale, or Madam Justice Griffin’s decision in Lee were brought to the attention of the court. [59] The 2005 Motevaselan decision of Judge Arnold-Bailey, as she then was, is distinguishable on its facts. The evidence before thecourt was that one of the officers had in fact observed a yellowish and brown residue in the used crack pipe.

She concluded the actualphysical possession of a crack pipe with residue, led only to one rational conclusion, namely, that there was a substantial likelihood thatthe person possessing it was in possession of crack cocaine. In the case at bar the officer did not testify that he saw residue in the pipe. [60] As noted in Spitale, the Kalmocoff case was decided shortly after Mann but it appears the Mann case was not put before thecourt or considered by the court. As to the Furness decision, while it contained a review of the law including Mann and other cases,Judge Cowling’s approach gives me reason to pause.

He alluded to the difficulty in evaluating the incident on an objective basis andcandidly noted that he would have been less confident to make presumptions than the officers were. However, he based his analysis onthe view that the crack pipe “would have” justified an investigative detention, which would have resulted in the discovery of the drugs. However, on the facts before him that is not what had occurred. There was no investigative detention. Mr. Furness was arrested firstand the nature of the object was only then confirmed as a crack pipe. In the circumstances, I am reluctant to follow his decision.

I preferthe analysis in Motevaselan 2003 BCPC 533, Spitale, and Lee. [61] In Mr. Lambert’s case there are additional factors that must be considered because those factors may factually distinguish thiscase from other cases decided before. Mr. Lambert was actually holding the crack pipe when he was seen by Constable Shipper. Further the crack pipe appeared to be much used. Are these additional factors sufficient to establish objectively reasonable grounds forarresting Mr. Lambert? I find they are not. Constable Shipper did not say he saw residue in the crack pipe.

He testified he saw a “muchused” crack pipe and, without determining whether there was any substance remaining in the crack pipe, he concluded there must beresidue. [62] The factors observed and relied on by Constable Shipper were clearly sufficient for an investigative detention. However,Constable Shipper had no basis for concluding there was a substance in the crack pipe when he decided to immediately arrest Mr.Lambert. As noted, he acknowledged in cross-examination that he did not actually see any residue in the crack pipe.

He alsoacknowledged he could not tell from looking at a crack pipe how often it had been used or when. He could not tell whether a pipe wasused the day before or five months before. Additionally, Constable Shipper acknowledged it was possible there might be circumstanceswhere a used crack pipe would not have residue in it.

In this case, an important evidentiary element needed to establish objectivelyreasonable grounds was missing, namely, evidence that the officer had observed, or that someone else told him, there was residue in thecrack pipe. [63] I find that Constable Shipper did not have reasonable grounds to arrest Mr. Lambert. Accordingly, Mr. Lambert’s arrest wasunlawful. I next turn to the alleged breach of s. 8. A search carried out incident to a valid arrest is lawful and permissible; R. v. Caslake, (SCC), [1998] 1 S.C.R. 51.

In this case I have concluded that the officer did not have reasonable grounds to arrest Mr.Lambert. Accordingly, the arrest was unlawful and the search incident to arrest was therefore unreasonable. Section 24(2) analysis [64] In R. v. Grant 2009 SCC 32 , 2009 S.C.C. 32 the court held that on an application to exclude evidence the trial courtmust assess and balance three factors: (

a) the seriousness of the Charter infringing conduct;

(

b) the impact of the breach on the accused’s Charter protected interests; and (

c) society’s interest in the adjudication of the case. [ 65 ] I have considered all three factors and conclude as follows: (

a) While Constable Shipper’s conduct may not have been a wilful violation of the Charter it was nevertheless serious because he exceeded the scope of his authority by arresting Mr. Lambert. I find he did not use the presence of the pipe as a pretext but he failed to properly consider the situation and arrested Mr. Lambert without objective evidence to support his subjective belief. (

b) The impact of the breach on Mr. Lambert was serious. The arrest and search had a significant impact on Mr. Lambert’s liberty and privacy interests. (

c) Society does have a valid interest in proceeding to trial on a charge of possession of 8.39 grams of crack cocaine. The drugs found on Mr. Lambert are real and reliable evidence. However, I must also consider the long term repute of the administration of justice which in this case is better protected by excluding the evidence. [ 66 ] In balancing all these factors I conclude that admission of the evidence would bring the administration of justice into disrepute. I therefore exclude the evidence of drugs found on Mr. Lambert. _________________________________ The Honourable Judge M.F. Giardini Provincial Court of British Columbia