R. v. Lahtinen Date:, 2011 BCPC 490

Citation: R. v. Lahtinen Date: 20110530 2011 BCPC 0490 File No: 81306-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Raymond LAHTINEN RULING ON VOIR DIRE OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: Kevin Groves Counsel for the Defendant: Paul Janzen Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: March 22 nd and 25 th , 2011 Date of Judgment: May 30, 2011 A corrigendum was released by the Court on June 2, 2011. The corrections have been made to the text and the Corrigendum is appended

to this document. [1] The discrete question to be resolved in this Voir Dire is whether Cpl. Baly possessed reasonable grounds to pull over Mr.Lahtinen’s vehicle and immediately arrest him for Possession for the Purpose of Trafficking. [2] To answer this narrow question consideration must necessarily be given to the broader issue as to when the state can rightlyinterfere with the freedom of individual citizens to do as they please. Background [3] The facts in this case are relatively straightforward and not largely disputed.

On November 4th, 2008 at around 1413 hours Cpl.Baly decided to attend the 7-11 convenience store in the 21400 block of Lougheed Highway in Maple Ridge. He was there to observepeople doing business in that area as he believed this to be an area where “dial-a-dope” drug traffickers would often meet customers. [4] While there he observed a brown pickup truck park in one spot and then move to another spot. Because the driver did not exithis vehicle Cpl. Baly formed the opinion that this person was there to do a drug transaction. He observed a male (there is no dispute thatthis was Mr.

Lahtinen) approach the pickup’s driver side window on foot. Mr. Lahtinen was there for 30 seconds and departed on foot.Cpl. Baly lost view of him and the pickup truck remained. Two minutes later Mr. Lahtinen returned to the truck. He was at the windowfor twenty seconds and then walked away. The pickup then left the area. [5] Cpl. Baly testified that Mr. Lahtinen’s back was to him during this time but that he did not see any kind of transaction betweenthe two men.

He did not see anything in the hands of either man nor did he see any effort on the part of either man to be clandestine or tocover up their activities. [6] Despite this, Cpl. Baly believed this interaction to be a drug transaction. He testified that he felt that he had sufficient grounds(although he conceded they were not strong grounds) to arrest at this time. However, he decided to follow Mr. Lahtinen and make somemore observations. [7] He asked Cst. Sprott to assist and followed Mr. Lahtinen’s vehicle as it proceeded to an address on 122nd Avenue. Mr.Lahtinen exited his vehicle and entered a residence.

He exited a few minutes later and returned to his vehicle. Again, Cpl. Baly thoughtthis visit to a residence was consistent with a dial-a-dope operation. There were no packages or items being carried by Mr. Lahtinen atthis time. [8] Surveillance continued. Mr. Lahtinen was seen talking on a cellphone. He continued eastbound on Dewdney Trunk Road andthen made a loop and started travelling westbound on Dewdney Trunk Road. Cpl. Baly opined that Mr.

Lahtinen must have received acell phone call for another drug transaction and had to change direction to go to meet a customer. [9] The vehicle was then followed to the rear parking lot of a restaurant. There was a male standing there. The male entered thepassenger side of the vehicle and the vehicle travelled about a half block down the road where the male got out and ran to an apartmentbuilding. Again, this encounter was believed by Cpl. Baly to be a drug transaction. Again, there were no observations of any hand to handtransaction or other suspicious behaviour. [10] Cpl. Baly then gave the word that Mr.

Lahtinen’s vehicle was to be pulled over and the driver arrested for Possession for thePurpose of Trafficking (it was now 1436 hours). [11] A search of the vehicle was conducted pursuant to the arrest and a small quantity of crack cocaine was seized along with somemoney retrieved from Mr. Lahtinen. Analysis [12] The Defence seeks to establish a breach of Mr. Lahtinen’s Charter rights under Sections 8 and 9 and submits that the evidenceseized should be excluded pursuant to Section 24(2). [13] The Crown, relying heavily on R. v. Luong, 2010 BCCA 158 , [2010] B.C.J.

No. 918 (B.C.C.A.), submits that thearrest was lawful as it was based upon reasonable grounds and that therefore there was no breach of Mr. Lahtinen’s rights. They furthersubmit that, even if there was, the evidence should be admitted. [14] In R. v. Luong (above) the accused was appealing his conviction for possessing cocaine for the purposes of trafficking.

Heargued that the judge had made an error in finding that there existed reasonable and probable grounds to arrest him. [15] The police in that case were surveilling a trailer park that had been the subject of a sharp increase of reported drug traffickingand property offences. The police made the following relevant observations: 1) Mr. Luong, driving a rented SUV, attended a residence in the trailer park and left after two minutes; 2) He then drove to an apartment building and went inside.

He returned about two minutes later; 3) He next went to a residence where he parked in front and was seen leaving 45 seconds later; 4) He then went to another house where a woman came out and sat in the passenger seat. She remained there for 30-45 seconds and

then returned to the residence; 5) He then was observed driving randomly through quiet neighbourhood streets. The officer, relying upon his experience andknowledge, was of the view that this was a “heat check” process commonly used by dial-a-dopers to see if the police are following.During this he was seen talking on his cell phone; 6) He was then arrested a short time later. [16] The only issue in that case was the lawfulness of the arrest. The Court of Appeal found at paragraphs 13 and 14: 13 Only two witnesses were called by the Crown on the voir dire, Constable Faulkner and Constable Gormick. Mr.

Luong did not callany evidence. The findings of the trial judge regarding their observations are set out above. In short, Mr.

Luong was seen driving a rentalvehicle; he was seen to go to four residences for anywhere from half a minute to a couple of minutes at each location, including onewhich was known for criminal activity; he was observed driving around performing what the police believed to be a "heat check" andtalking on his cell phone while driving. 14 Constable Faulkner testified that in his experience drug dealers commonly use rental vehicles to hide their identity and to avoidforfeiture of their own vehicles, use cell phones to make their deals, conduct transactions in a variety of places, and finish very quicklyand at times perform "heat checks". [17] The Supreme Court of Canada in R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241 set out a test as to what constitutedreasonable grounds for an arrest.

The arresting officer must have a subjective belief of reasonable grounds and these grounds must bejustifiable from an objective point of view. [18] Paragraph 14 of Storrey (above) explains why it is so important to be vigilant with respect to the powers of a police officer tointerfere with the liberty of a citizen: 14 Section 450(1) (now 495(1)) makes it clear that the police were required to have reasonable and probable grounds that the appellanthad committed the offence of aggravated assault before they could arrest him.

Without such an important protection, even the mostdemocratic society could all too easily fall prey to the abuses and excesses of a police state. In order to safeguard the liberty of citizens,the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that theyhave reasonable and probable grounds to believe that the person to be arrested has committed the offence.

In the case of an arrest madewithout a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probablegrounds upon which they base the arrest. (emphasis added) [19] Much has been made recently about the proper assessment of an officer’s reasonable and probable grounds from this objectivestandpoint.

The question being, what is the line between the subjective belief of an arresting officer that grounds exist and the existenceof objective grounds if the assessment of objective grounds is based largely upon the officer’s view of what the accused’s actions meantto him given his “experience, training and knowledge”. [20] The Court in Luong (above) explained the issue like this at paragraphs 18 and 19: 18 The cases both before and after the Charter have long established that the Criminal Code requires both that the officer subjectivelybelieve that he or she has reasonable grounds for the arrest and that the grounds are justified from an objective point of view.

This meansthat "a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probablegrounds for the arrest": Storrey, supra at p. 324. 19 Being "placed in the position of the officer" does not just mean making the same observations as the officer, as to many lay peoplesuch observations would be meaningless. Included in the assessment of whether the grounds for arrest are reasonable is the officer'sexperience, training and knowledge: R. v. Juan, 2007 BCCA 351 at para. 27, R. v. To, (1998), 109 B.C.A.C. 242 at para. 11, and R. v.Tran, supra. [21] Mr.

Luong also argued that if the experience of an officer was to be relied upon, it must be tendered as proper expert evidencepursuant to

Section 657.3 of the Criminal Code. The Court did not agree with that submission and concluded at par. 24: 24 The assessment of whether objective grounds exist undertaken by a trial judge is conducted by first looking at the observations ofthe officer (which the trial judge has found as facts) through the lens of someone who has the same experience, training, knowledge andskills as the officer who is making the observations, and then deciding if a reasonable person with the same lens would come to thesame conclusion as the police officer. This, in my view, is what the Court was referring to in Kang-Brown, supra.

There is no need tocall an independent expert to testify. Such evidence would not be admissible as it is irrelevant. It is the arresting officer's lens which iskey to the assessment of reasonable grounds. (my emphasis). [22] The Court in Luong then found that the trial judge’s conclusion that there were reasonable and probable grounds for an arrestwas “amply supported”. They pointed to the use of the rental car, the four stops, the random driving that was characterized as a “heatcheck” and the use of a cell phone in coming to that conclusion.

[23] The case law is clear that the “reasonable person” to be used in assessing whether the arrest is justifiable from an objectivebasis is a person presumed to have the knowledge, training, skills and experience of the officer making the observations and not simplythat of a lay person. (See R. v. Juan, 2007 BCCA 351 , [2007] B.C.J. No. 1402 (B.C.C.A.); R. v. Wan, 2008 BCSC 268, [2008] B.C.J. No. 370 (B.C.S.C.); R. v. To, [1998] B.C.J. No. 1323 (B.C.C.A.); R. v. Luong (above) and R. v. Jir, 2010BCCA 497 , [2010] B.C.J.

No 2171 (B.C.C.A.) among others). [24] However, while the assessment of grounds must be made through the arresting officer’s lens (to use the language in R. v.Luong (above)) there still must be a meaningful process for judicial scrutiny of the sufficiency relating to the grounds for arrest. Thecourt is required to determine whether the subjective belief of a police officer is objectively reasonable and that task cannot be properlyaccomplished by simply deferring to the opinion of a knowledgeable and experienced police officer.

The danger, of course, is that theobjective and subjective components become conflated. [25] The court discussed the objective component of the “Storrey” test in R. v. Juan (above) at par. 17: 17 That leaves for consideration the objective part of the test. Black's Law Dictionary (8th ed.) defines "objective" as: 1. Of, relating to, or based on externally verifiable phenomenon, as opposed to an individual's perceptions, feelings, or intentions ... 2. Without bias or prejudice; disinterested ...

In Storrey, Cory J. suggested that the person to make that objective assessment is to be: (1) "a reasonable person, standing in the shoes of the police officer"; and (2) "a reasonable person placed in the position of the officer." [26] What must be remembered however, is that a “reasonable person, standing in the shoes of a police officer” does not mean apolice officer who holds a jaundiced and overly negative view of the panoply of behaviours that humans engage in on a day to day basis.It cannot mean an officer whose observations of everyday actions are made through such a jaded lens that otherwise benign activity isprecipitously characterized as criminal. [27] In this case: 1) At no time during this surveillance were there any transactions observed; 2) There were no movements with hands that were even consistent with a drug transaction; 3) There were no furtive glances or “heat checks” of any of the persons observed in this case that might be consistent with someonewho is concerned with being apprehended for being engaged in an illicit activity; 4) There is no evidence that any of the vehicles involved were rented or known to the police (in fact, the police did not check the licenseplate of the accused’s vehicle at any time prior to his arrest); 5) Neither the apartment entered by the accused nor the restaurant where he met with a male were known to the police; 6) There is no evidence that any of the persons involved in allegedly illicit activity were known to the police; 7) The accused’s movements as he drove around were not characterized by the lead investigator as constituting a “heat check” as wasthe situation in other cases; [28] In assessing whether there existed, on an objective basis, the grounds to arrest the accused in this case I am not unmindful ofthe debate surrounding whether the reasonableness standard is the same for obtaining a search warrant as it is for justifying an arrest.The issue was raised in R. v.

Golub, (ON CA), [1997] O.J. No. 3097 (Ont. C.A.), at paragraph 7. There the policewere investigating a report that the accused had a gun and was suicidal. On the arrest of the accused outside his apartment, without awarrant, and without the gun, they determined that the apartment should be searched to possibly locate the gun. In concluding that thissearch incident to arrest was reasonable, Justice David Doherty had this to say about the split second decisions officers are required tomake in exigent circumstances: 18 Mr. Harris' reliance on the search warrant cases is misplaced.

Both a justice and an arresting officer must assess the reasonableness ofthe information available to them before acting. It does not follow, however, that information which would not meet the reasonablenessstandard on an application for a search warrant will also fail to meet that standard in the context of an arrest. In determining whether thereasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. Thedynamics at play in an arrest situation are very different than those which operate on an application for a search warrant.

Often, theofficer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officercan afford. The officer must make his or her decision based on available in-formation which is often less than exact or complete. The lawdoes not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with anapplication for a search warrant. [29] In this case, Cpl. Baly commenced observing the accused at the 7-11 and surveilled him for some period of time over a

significant distance prior to arresting him. This is not a situation like the one contemplated in Golub (above). [30] The accused’s actions and movements on the date in question are not ones that would “baffle a layman”. People are free tomove about and meet other people, deliver raffle tickets, collect hockey pool picks or money, or just plain visit with other people. In mymind, and using the lens of a reasonable police officer with the knowledge and experience of Cpl.

Baly, there was nothing in the actionsand movements of the accused that could possibly permit a conclusion that there existed reasonable grounds that a criminal offence wastaking place or had taken place. [31] Is an officer entitled to summarily arrest a person they see using a coat hanger to gain access to a vehicle without some kind offurther inquiry? There needed to be something more here that would substantiate a belief that a criminal offence was taking place or hadoccurred. [32] This was clearly a breach of

Section 9 in that the pullover and arrest of the accused was without any proper justification. Inaddition, the subsequent search of his person and vehicle was not lawful and therefore unreasonable. This constitutes a breach of Section8 of the Charter. Section 24(2) [33] The exclusion or admission of evidence following a breach(es) of the Charter is now controlled by the analysis mandated byparagraph [71] of R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32. 71 ...

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidenceon society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission maysend the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interestsof the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of thecase on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determinewhether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

Theseconcerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2)determination as enunciated in Collins and subsequent jurisprudence. [34] With respect to the first factor -- seriousness of the breach -- the greater the level of state misconduct, the greater will be theneed of the courts to disassociate themselves from that conduct.

Wilful or reckless disregard for Charter rights will, therefore, tend tosupport exclusion (paras. 71-74). [35] The police in this case should have known that their observations were insufficient to warrant interference with the liberty ofMr. Lahtinen. Arrests based on suspicions or intuitive hunches are the kind of conduct that courts need to dissociate themselves from. [36] As the Supreme Court of Canada observed in R. v. Kokesch, (SCC), [1990] S.C.J.

No. 117 at par. 46: 46 Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspectalone, not charge ahead and obtain evidence illegally and unconstitutionally. Where they take this latter course, the Charter violation isplainly more serious than it would be otherwise, not less.

Any other conclusion leads to an indirect but substantial erosion of the Hunterstandards: the Crown would happily concede s. 8 violations if they could routinely achieve admission under s. 24(2) with the claim thatthe police did not obtain a warrant because they did not have reasonable and probable grounds. The irony of this result is self-evident.

Itshould not be forgotten that ex post facto justification of searches by their results is precisely what the Hunter standards were designed toprevent: see Hunter, supra, per Dickson J. (as he then was), at p. 160; and Greffe, supra, per Lamer J., at pp. 790 and 798 [37] With respect to the second factor, one of the interests protected here is the right to be free from unreasonable search or seizure.Without the breach in this case it is clear that the evidence would never have been obtained.

While the majority in Grant havedetermined that discoverability should no longer be determinative of admissibility (par. 122) they were clear that the discoverabilitydoctrine is useful in assessing the actual impact of the breach on the Charter protected interests of the accused. [38] With respect to the third factor, the majority in Grant said the following when discussing whether exclusion of evidence due toa Charter breach extracts too great a toll on the truth-seeking process at par. 80: 80 The concern for truth-seeking is only one of the considerations under a s. 24(2) application.

The view that reliable evidence isadmissible regardless of how it was obtained (see R. v. Wray, (SCC), [1971] S.C.R. 272) is inconsistent with theCharter's affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into allthe circumstances, not just the reliability of the evidence. [39] Police are granted considerable power to interfere with the liberty of citizens. However, that power must be exercised in aCharter-compliant fashion.

The long-term repute of the justice system would surely be negatively affected if the courts were to condonethe actions of the police in this case. Without the standards for police interference being scrupulously observed there is a very real dangerthat prejudices and biases will determine whether an individual will have their liberty interfered with. That cannot be allowed to happenin a free and democratic society. [40] In all the circumstances and considering the applicable law, the administration of justice would be brought into disrepute if thenarcotics seized in this case were to be admitted into evidence.

RULING - EVIDENCE EXCLUDED

________________________________ The Honourable Judge D. St. Pierre List of Cases Provided by Defence R. v. Peacock 2008 BCPC 214 R. v . Sandoval-Calderon 2005 BCPC 425 R. v. Cheng 2009 BCPC 327 R. v. Fugman 2008 BCPC 70 , 2008 BCPC 0070 R. v. Reddy 2010 BCCA 11 List of Cases Provided by the Crown R. v. Juan 2007 BCCA 351 R. v. Wan 2008 BCSC 268 R. v. To [1998] B.C.J. No. 1323 (BCCA) R. v. Luong 2010 BCCA 158 R. v. Caslake (SCC), [1998] 1 S.C.R. 51 R. v. Grant 2009 SCC 32 R. v. Harrison 2009 SCC 34 R. v.

Wiley (SCC), [1993] 3 S.C.R. 263 CORRIGENDUM – released June 2, 2011 This Corrigendum relates to a Ruling on a Voir Dire filed May 30th, 2011 in this proceeding. Correction to paragraph number 2: “The answer to this narrow question” should be replaced with “To answer this narrow question” Correction to paragraph 39: “charter-compliant” should be replaced with “Charter-compliant” This 2nd day of June, 2011