R. v. Randhawa Date:, 2016 BCPC 263

Citation: R. v. Randhawa Date: 20160714 2016 BCPC 263 File No: 82160 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GURINDER SINGH RANDHAWA RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J.I. SOLOMON Counsel for the Crown: T. Dotten Counsel for the Accused: J. Ray Place of Hearing: Abbotsford , B.C. Dates of Hearing: May 17, 18, June 14, 15, 2016 Date of Ruling: July 14, 2016

[ 1 ] THE COURT : This is voir dire ruling number 3. The first decision concerned standing and the second considered whether there was a s. 8 Charter breach. This decision should be read in conjunction with those earlier rulings as I do not intend to repeat all my findings of fact in this ruling. [ 2 ] The accused applies pursuant to s. 24(2) of the Charter for exclusion of evidence.

In particular, firearm, ammunition and other items seized from a locked toolbox in the garage of the dwelling house in which he resided with his mother, who was the owner of the property. [ 3 ] I previously ruled that the accused had an expectation of privacy in a locked toolbox and his s. 8 Charter rights were breached by the search of the said toolbox without warrant. [ 4 ] Recently, in the decision of R. v. Ahmed-Kadir , [2015] BCCA 346, our Court of Appeal reviewed and applied the Grant factors and excluded a loaded .357 calibre Ruger revolver.

At paragraphs 87 and 88, the court set out the framework and I adopt what the court says, and I will read into the record those paragraphs. Paragraph 87: The framework for determining whether evidence should be excluded is set out in the reasons for judgment of Chief Justice McLachlin and Madam Justice Charron in R. v. Grant , 2009 SCC 32 ... At the outset of their reasons, they explained the purpose of s. 24(2): 67. The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice.

The term "administration of justice" is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. 68. The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism.

But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. 69. Section 24(2)'s focus is not only long-term, but prospective.

The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. 70. Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

Paragraph 88 of Ahmed-Kadir states: The factors to be considered under s. 24(2) are succinctly stated at para. 71 of Grant .

In deciding whether to admit or exclude evidence, a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send a message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send a message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

Seriousness of the State Conduct [ 5 ] In finding a s. 8 Charter breach, I ruled that the warrantless search was not authorized by law, as there was no objective basis for the police acting on a public safety basis or exigent circumstance basis, as there was no imminent threat to the officers or public safety. The police officers had control of the scene and they had a lawful option available to them that including securing the scene and applying for a warrant to search.

The officers gave practically no consideration to applying for a telewarrant although it was a reasonable option in the circumstances. [ 6 ] Even after the arrest of the accused, without incident, at the basement door of the residence, the officers gave no evidence of any consideration to then obtaining a warrant to search the toolbox but went ahead and searched the toolbox again. This time, they seized some additional items, including inactive licence plates that were later linked to the accused. The officers provided no evidence as to what authority they had for the second search of the toolbox.

Crown counsel is not relying on consent to search as the authority for the initial search for the firearm or the subsequent search but argues that the second search was incidental to arrest. [ 7 ] There was no evidence given by the officers to support the argument that the second search was incident to arrest and I find that it would not be considered incidental to arrest at law.

In my view, the arrest was separate and apart from the second search of the toolbox. [ 8 ] The second search of the toolbox is consistent with the police officers acting in a manner convenient to themselves and inconsistent with the accused's s. 8 Charter rights. [ 9 ] Defence counsel also takes the position that there were no subjective or objective reasonable grounds to obtain the warrant for

the firearm. In this case, the police had information from a person that they did not meet, the mother of the accused, who, through a third party, advised that she located a pistol and drugs in a locked toolbox. The police did not attempt to speak to her directly to inquire as to the reliability of her belief; however, there were cogent indicia of reliability in this case. The mother was the owner of the house. She advised that she located a pistol in a locked toolbox and left it where she found it.

She was able to confirm the address of the house and the exact location of the item to be searched for and to express her belief as to why her son was the person responsible for the item. She also advised she wanted her son to be arrested. [ 10 ] This body of information provided the police with both subjective and objective grounds to obtain a warrant.

Although in the circumstances there is always a risk of a false report for ulterior motives and the police could have done more to try to speak directly to the complainant who was not at the scene and they could have made further inquiries of her as to why she thought the item she found was real, as opposed to a toy pistol, the question is reasonable grounds to believe and not some higher standards that might be difficult, if not impossible, to meet. [ 11 ] The scenario presented to the police here was not an active, fluid confrontation with a known criminal or unstable person.

The officers believed that the accused had a privacy interest in a locked toolbox in the dwelling house in which he resided. They conducted the search and seizure in relation to the locked toolbox as a measure that was convenient in the circumstances and not one where there was an imminent safety concern. [ 12 ] The police had the only known key to the locked toolbox.

The fact that it took two hours for the officers even to attend at the scene after the initial 9-1-1 complaint is consistent that this was a contained scene that did not pose an imminent danger to the officers or to the public in general. [ 13 ] The defence takes the position that the accused had a high expectation of privacy in the dwelling house where he resided and the focus should not be simply on his privacy interests in the toolbox. [ 14 ] The police entered the garage, which is part of the dwelling house, for the sole purpose of searching the toolbox. [ 15 ] Alternatively, the defence argues that the accused's expectation of privacy would be at least equal to that of a search of his vehicle, as it makes no difference in this case whether the firearm was found in the locked toolbox or in the locked trunk of his vehicle that was parked in the garage. [ 16 ] Since the police had the consent of the homeowner to enter the garage, the accused's expectation of privacy is less than those cases of warrantless searches of dwelling houses in the usual course where there is no consent. [ 17 ] In my view, the expectation of privacy is equivalent to those cases where a vehicle is involved; however, the court must keep in mind that the context of the search was within the parameters of a dwelling house. [ 18 ] Defence also argues that the seriousness of the breach in this case is heightened due to the lack of notes of Sgt.

Stevens. Sgt. Stevens was the acting road supervisor and attended to assist Cst. Baker in the investigation. Cst. Baker was the first officer to arrive at the scene and speak to Mr. Desi (phonetic), who is the son-in-law of the homeowner. Cst. Baker testified that when Sgt. Stevens, he took control of the situation, that he was the senior officer although they jointly arrived at a decision as to how to proceed in this case. [ 19 ] For unknown reasons, and surprisingly to himself, Sgt.

Stevens did not have any notes of his involvement in this investigation and only prepared a Report to Crown Counsel on July 14, 2015, that is, several months after the initial arrest and investigation. To my recollection, he was never asked what information he used to prepare this report and what the extent of his personal recollection of events. I earlier found that, at times, Sgt. Stevens seemed uncertain about the details of the investigation; however, the gist of his evidence generally matched the evidence of Cst.

Baker. [ 20 ] I agree with defence counsel that the lack of notes and the failure to prepare a report, putting his recollections of events to paper until eight months later is significant. The lack of notes or reports prepared in a timely way makes it very difficult or impossible for a court to evaluate the accuracy of the officer's recollections and beliefs. In my view, this is an important consideration in evaluating the issues under s. 24(2) of the Charter . [ 21 ] In R. v. Truong , [2010] BCSC 1956, Mr.

Justice Stewart stated at paragraph 5(k): I add only that the absence of a decent record makes it equally impossible for me to decide objectively whether Constable Stewart’s belief that the accused had consented was reasonable. Such a finding would be of interest when we reach the latter portion of s. 24(2) of the Charter . At paragraph 5(s), the court stated: The "sin", as I have referred to it, is a serious thing. We are 28 years into the life of the Charter .

It is reasonable for the courts to expect any officer in the position of the police in this case – after the discovering of the marihuana grow operation and the arresting of the accused – to act on the assumption that someday in the future a court may very well have to pass separate judgment on the effect of what was said and done and gesticulated that night. I emphasize that that is not a counsel of perfection. It is, in my opinion, entirely reasonable. At paragraph 5(v):

I find the seriousness of the police conduct to be significant. The rule of law demands that the police recognize the fact that they operate within a world overlaid with the provisions of the Charter and that they must, wherever possible, take reasonable steps so that on some date in the future a court may, if necessary, be in a position to apply the law to the facts of the case, and not simply to their conclusory opinion. In this case the police did nothing.

Twenty-eight years after the advent of the Charter , that is far from an insignificant transgression. [ 22 ] Defence counsel concludes with their argument that when one looks at the three Grant factors, the circumstances here favour exclusion of the evidence. [ 23 ] Crown counsel argues that the seized evidence should be admitted into evidence at the trial, as the applicant has not satisfied his onus to establish, on a balance of probabilities, that the admission of the evidence seized would bring the administration of justice into disrepute. [ 24 ] The thrust of the Crown's argument is the expectation of privacy of the accused was low in the circumstances where the police had the consent of the homeowner to be in the garage.

The mother was able to obtain the key to the locked toolbox on a set of keys that was simply carelessly left on a staircase in the residence and was easily accessible to her and that the evidence was discoverable by obtaining a warrant, as the police had reasonable grounds to obtain one. [ 25 ] Crown counsel also argues that there is an absence of egregious police conduct in this case and there should be a finding of good faith on the part of the police officers.

Crown counsel adds that the police were acting out of safety concerns and it was safety that propelled the police to act without a warrant. [ 26 ] On the issue of seriousness of the breach, Crown counsel further argues that the police did consider the privacy interests of the accused but when they weighed the various factors, in their view, the protection of the public and themselves caused them to opt for a search without a warrant. [ 27 ] Crown counsel also argues that although they are not relying on and did not rely on the mother's consent to search the toolbox to authorize a search without warrant, it is a factor that was present when the officers decided to proceed as they did without warrant. [ 28 ] I find this argument difficult to accept, as Crown counsel previously conceded that the mother's consent for the search of the toolbox was a secondary basis for the police actions.

On the evidence that I heard, I find that the police acted on their perceived view of the safety issue and not on the purported consent of the mother. [ 29 ] In my view, the officers recognized that the accused had a privacy interest in the toolbox and if not for the safety concerns that they expressed, they would have not proceeded on the basis of the purported consent of the mother. [ 30 ] Crown counsel points out that this was not a case of a suspicion or hunch without reasonable grounds and emphasized the discoverability of the evidence.

Crown counsel says that the police had to do something about the firearm; they simply could not just walk away from the situation. [ 31 ] Crown counsel further argues that a decision to proceed without warrant was made in the moment and they could not put off a decision indefinitely and this case is not one of systemic problems but is a unique set of facts.

The police were forced to weigh privacy interests versus safety concerns and made a decision that they believed was open to them through the common law power of safety searches coupled with the background circumstance of the owner's consent to take action regarding the pistol she had located. [ 32 ] At paragraph 51 of R. v.

Bains , [2014] BCCA 43, the Court of Appeal discussed discoverability in the context of s. 24(2) analysis: The concept of discoverability in a s. 24(2) analysis refers to whether the evidence under review could have been discovered by the police using lawful means that did not breach the accused’s Charter rights. Discoverability is relevant to both the seriousness of the Charter -infringing state conduct and the impact of the breach on the rights of the accused. With respect to the former, discoverability may cut both ways.

If the police deliberately ignore an alternative lawful means of obtaining the same evidence, the Charter -breaching state conduct becomes more egregious; if there was a legitimate reason for excluding that avenue, the state conduct will be viewed less severely. As to its impact on the accused, a breach will be viewed as less intrusive where the evidence could have been obtained by other lawful means, but the extent of the accused’s expectation of privacy remains an important consideration: R. v. Côté , 2011 SCC 46 , at paras. 71-73 . [ 33 ] In R. v.

Cole , at paragraph 89, the Supreme Court of Canada held: What of the fact that the officer had reasonable and probable grounds to obtain a warrant? In some circumstances, this may aggravate the seriousness of the breach ( Côté , at para. 71 ). Where a police officer could have acted constitutionally but did not, this might indicate that the officer adopted a casual attitude toward — or, still worse, deliberately flouted — the individual’s Charter rights ( Buhay , at paras. 63-64). But that is not this case: The officer, as mentioned earlier, appears to have sincerely, though erroneously, considered Mr.

Cole’s Charter interests. [ 34 ] Accordingly, in Cole , the Supreme Court of Canada found that the police officer's conduct was not egregious and ultimately the evidence was held to be admissible. [ 35 ] Accordingly, Crown counsel argues that the breach of the accused's s. 8 Charter rights was not egregious or serious and that the impact on the accused's Charter rights was limited due to his diminished expectation of privacy in the toolbox and the house in general. This is evident by the way he stored the keys, that this is his mother's house and there is no evidence of specific areas of privacy in the residence.

Furthermore, that the only key for the toolbox was left lying around the residence.

[36] Regarding the third branch of the Grant test, Crown counsel argues that this evidence is highly reliable and without it theaccused will be acquitted. Crown counsel says that this is a technical breach and all the factors, when balanced, favours admissibility ofthe evidence. [37] In this case, Mr.

Randhawa's Charter rights were breached in the following ways: 1) The officers conducted an unreasonable search of the accused's toolbox that was located in the garage of the dwelling house inwhich he resided; 2) The police purported to be acting pursuant to their common law authority to address imminent public safety concerns; however, Ifound that there was no objective basis for the police to invoke this common law authority in the circumstances herein; and, 3) I determined that the police acted out of convenience to them and not through their lawful powers. [38] I consider the breach of Mr.

Randhawa's Charter rights pursuant to s. 8 of the Charter to be free from unreasonable search andseizure to be serious for the following reasons: 1) The police acted out of convenience and not pursuant to objectively reasonable concerns about imminent harm that would invokea common law authority to conduct a safety search; 2) The police had a reasonable and available option of a telewarrant available but did not give any serious consideration to thatoption and made a deliberate decision to proceed without warrant knowing that the accused had an expectation of privacy in the area tobe searched; 3) Sgt.

Stevens failed to take notes of the information that informed the basis of his decision that appears to have been concurred inby Cst. Baker that public interest safety concerns was the option to be pursued instead of containment of the scene and a warrant. [39] Preparing a Report to Crown Counsel some eight months after the fact is not consistent with the expectations of the court afterover 30 years into the life of the Charter. I strongly endorse the words of Mr. Justice Stewart in the Truong decision cited above.

In myview, it is completely unacceptable for the senior officer at a crime scene, and who is responsible for a decision that results in awarrantless search of the property, to not reduce his evidence to writing at the earliest convenient opportunity. The earliest opportunityis certainly not eight months after the toolbox. Like Mr.

Justice Stewart, this is not a position requiring perfection but just reasonableaction some 30 years subsequent to the implementation of the Charter. [40] The secondary search of the toolbox subsequent to the arrest of the accused evidences a pattern of conduct based onconvenience and not in consideration of constitutional values. No explanation was offered by the officers as to the lawful basis of thesecondary search of the toolbox once the perceived safety concern had been eliminated. I reject Crown counsel's argument that thissearch was incidental to arrest.

The arrest and the secondary search of the toolbox were completely separate and apart and not incidentalone to the other. Impact of the Charter- Infringing Conduct [41] I do find the impact of the Charter-infringing conduct to be comparable to cases of motor vehicle searches without warrant. Although this search occurred within a dwelling house, the police did have consent to enter the garage. The search in this case was of atoolbox in the garage and not of an electronic device, such as a home computer or a filing cabinet where one would expect highly-personal information to be stored.

Accordingly, I find the impact of the Charter-infringing conduct to favour admissibility in thecircumstances of this case. Society's Interest in the Adjudication on the Merits [42] I return to the Ahmed-Kadir case and particularly paragraphs 100 and 101, which are applicable and binding on this court.

Paragraph 100: As indicated in Grant (at para. 79), "[s]ociety generally expects that a criminal allegation will be adjudicated on its merits." However, asalso stated in Grant, that expectation is but one of a number of considerations under s. 24(2): [84] It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. Indeed,Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society’s interest in itsprosecution (para. 226).

In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cutboth ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how peopleview the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus. As pointed out in [R. v.Burlingham, (SCC), [1995] 2 S.C.R. 206], the goals furthered by s. 24(2) "operate independently of the type of crimefor which the individual stands accused" (para. 51). And as Lamer J. observed in [R. v.

Collins, (SCC), [1987] 1 S.C.R.265], "[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to thatmajority" (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the meritswhere the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where thepenal stakes for the accused are high.

Paragraph 101:

In the case at bar, both the cocaine and the handgun are reliable evidence without which the Crown has no case. In addition, theoffences are serious. This is particularly so of the firearm offences given the escalation of gun-related crimes in this province in recentyears. Adding to the seriousness here is the fact the handgun was loaded.

However, sight must not be lost of the fact the focus is not the"immediate reaction" to an individual decision to admit or exclude evidence obtained in breach of the Charter, but the long-term effect ofa decision on the overall repute of our system of justice: Grant, para. 68. [43] As in the Ahmed-Kadir case, the charges herein are serious. They involve a firearm that was loaded or had the potential ofbeing loaded and due to recent gun violence that continues in this province, a court has to view the charges herein related to this firearmas serious.

Balancing Factors [44] Once again, I refer to the recent Ahmed-Kadir case out of our Court of Appeal at paragraphs 102, 104 and 111. 102: In R. v. Harrison, 2009 SCC 34 , [2009] 2 S.C.R. 494, decided at the same time as Grant, Chief Justice McLachlin said thisabout the balancing process: [36] The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a questionof whether the majority of the relevant factors favour exclusion in a particular case.

The evidence on each line of inquiry must beweighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring theadministration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump thetruth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of theadministration of justice that must be assessed. Paragraph 104: As to society's interest, I repeat what I said in R. v.

Reddy, 2010 BCCA 11, a case in which this Court, in allowing a conviction appeal,excluded two loaded handguns found in a jacket in a motor vehicle as a result of violations of ss. 8 and 9 of the Charter: [107] ...There can be no question that the public has an interest in the successful prosecution of persons who unlawfully carry loadedhandguns. The dangers that such conduct creates cannot be overstated. However, the public also expects those engaged in lawenforcement to respect the rights and freedoms we all enjoy by acting within the limits of their lawful authority.

Finally, at paragraph 111: In my view, the scales tip towards exclusion of the handgun found in Mr. Ahmed-Kadir's residence. The importance of maintainingrespect for Charter rights and ensuring that the justice system remains above reproach outweighs the collective cost of his acquittal. Toadmit the handgun in the face of the breaches that occurred here would send the message that when the charges are serious, individualrights count for little. [45] In my view, when balancing the factors herein, the scales tip towards exclusion of the evidence that includes the handgun,ammunition and the licence plates.

Accordingly, the application for exclusion evidence is granted and the evidence is not admissible onthe trial. J.I. SOLOMON Provincial Court Judge