R. v. Tran, 2017 BCPC 465

Citation: R. v. Tran 2017 BCPC 465 Date: 20170526 File No: 82455-3-C Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. QUOC TUAN TRAN REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE D. GAFFAR Counsel for the Crown: J. Michael Le Dressay Counsel for the Defendant: Jayse Reveley Place of Hearing: Abbotsford , B.C. Dates of Hearing: July 25, 26, August 4, 2016; May 19, 2017 Date of Judgment: May 26, 2017

A Corrigendum was released by the Court on May 26, 2017. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] Mr. Tran is charged with three counts of Possession for the Purposes of Trafficking (marijuana in substantive and derivative forms) contrary to s. 5(2) Controlled Drugs and Substances Act . The police discovered fresh, green marijuana plants in the vehicle being driven by Mr. Tran. A voir dire was declared at the outset of the trial to determine if the marijuana evidence is admissible at trial. [ 2 ] On 16 September, 2016, I found that Mr. Tran was unlawfully arrested contrary to s. 495(1) (

b) of the Criminal Code of Canada (the “ Code ”) and, consequently, his vehicle was unlawfully searched incident to arrest, contrary to the common law and s. 8 of the Charter of Rights and Freedoms (the ” Charter ”); he was arbitrarily detained after his arrest, contrary to s. 9 of the Charter ; and his right to counsel was breached, contrary to s. 10(

b) of the Charter. [ 3 ] The parties are now at the second stage of the voir dire , when I must determine if the marijuana evidence should be admitted as evidence at trial. I must apply the principles of s. 24(2) of the Charter and the analytical framework required by the Supreme Court of Canada in the decision of R. v. Grant , 2009 SCC 32 .

No further evidence was called at this stage of the voir dire . [ 4 ] I am required to determine whether, on the balance, the admission of the marijuana evidence would bring the administration of justice into disrepute in the overall, prospective and long term: Charter , s. 24(2); Grant at paras. 68-69 . After considering all the circumstances, I must assess and balance the effect of admitting the evidence on society’s confidence in the justice system: R. v. Fan , 2017 BCCA 99 at para. 66 . I will examine and weigh three lines of inquiry: a. The seriousness of the police conduct leading to the breaches; b.

The impact of the breaches on Mr. Tran’s Charter -protected interests; and c. Society’s interest in adjudication on the merits of the case. [ 5 ] In conducting my assessment, I have considered the evidence called at the first stage of this voir dire, the submissions of counsel at the second stage of this voir dire , and the case law. PREVIOUS BREACH FINDINGS [ 6 ] I begin my analysis by briefly canvassing my previous factual findings that lead to the breach findings. [ 7 ] The police arrested Mr. Tran within seconds of the officer’s arrival at the vehicle stop. The officer immediately arrested Mr. Tran.

The officer then immediately directed Mr. Tran to open the trunk so the officer could search it.

The officer identified no immediate security concerns, exigent circumstances, nor concerns about the preservation of evidence. [ 8 ] The officer’s experience with fresh marijuana and detecting its odour was on the lower end of the spectrum, based on his lack of training with regards to marijuana odour detection, particularly fresh marijuana; his insufficiently specified experience dealing with fresh marijuana; and his inability to provide any meaningful description of its odour. [ 9 ] Consequently, the officer’s subjective beliefs that he had reasonable grounds to arrest Mr.

Tran fell markedly short of reasonable grounds when assessed objectively. [ 10 ] The officer conscripted Mr. Tran in the discovery of evidence without informing him that he had the right to speak to counsel, after which he could make an informed choice whether to assist the police in its search. Mr. Tran did not consent to the search of his trunk. There were no exigent circumstances that required a quick search. [ 11 ] The officer did not sufficiently facilitate Mr. Tran’s access to counsel by failing to ensure that Mr. Tran was actually able to contact a lawyer. It was apparent that Mr.

Tran’s first language was not English. In these circumstances, the officer should have inquired whether Mr. Tran required the number for free legal advice or required assistance contacting a lawyer. He should have confirmed that Mr. Tran actually spoke to a lawyer, given these circumstances. [ 12 ] The officer breached his duty to refrain from taking investigative steps to elicit evidence from or asking questions of Mr. Tran before his right to counsel was provided and/or after he told the officer he wanted to speak to a lawyer.

ANALYSIS – GENERALLY [ 13 ] Before I turn to the three lines of inquiry, I make the following legal observations. My focus is on the broad impact of the admission of the evidence on the overall, future, and long-term public confidence in and repute of the administration of justice: Grant , para. 68-69 . My focus is not on punishing the police or compensating Mr. Tran: Grant , para. 70 . My starting position is that damage has already been done to the administration of justice by the breaches that occurred in this case: Grant , para. 69 .

My legally mandated task is to ensure that evidence obtained as a consequence of those breaches does not further damage the repute of the justice system: Grant , para. 69 . [ 14 ] I must objectively assess the three lines of inquiry from the perspective of a reasonable person informed of all the relevant circumstances and values underlying the Charter : Grant , paras. 68, 85 . ANALYSIS & APPLICATION – THE SERIOUSNESS OF THE BREACHES

[15] The first line of inquiry (the seriousness of the breaches) requires me to focus on the police conduct in this case. There arenumerous factors that I must consider, which are articulated in Grant, paras. 72-75. More recently, Dickson, J.A., in R. v. Fan, 2017BCCA 99, discussed the s. 24(2) Charter test and cited several Supreme Court of Canada and BC Court of Appeal decisions at paras. 69-78: R. v. Caron, 2011 BCCA 56 at para. 39, citing R. v. Jacoy, (SCC), [1988] 2 S.C.R. 548 at 559; R. v. Washington,2007 BCCA 540 at para. 78; Caron at paras. 33, 38, 41; R. v. Spence, 2011 BCCA 280 at para. 51; and R. v.

Trieu, 2010 BCCA 540 atpara. 93. I have applied the various factors, below. I note that the Crown and Defence mainly focused on this line of inquiry. [16] What is the gravity of the offending state conduct? The officer’s conduct was rooted in his desire to quickly arrest and searchthe vehicle. The unlawful arrest was an exercise of significant power by the officer.

He appeared to treat the arrest as a technicality andshortcut to searching the trunk. [17] However, I find the unlawful arrest to be at the middle to lower end of the scale, because I was satisfied that the officer possessedthe necessary subjective belief, which was honestly held. I previously found that the arrest was unlawful, because I was unable toconclude that it was objectively reasonable. [18] This entire incident, from the initial vehicle stop until Mr. Tran was released from custody at the roadside, lasted between 35-40minutes.

He was not handcuffed but he spent most of this time locked in the rear of the police vehicle. The speed with which the officeracted, and his decision to release Mr. Tran from the roadside (rather than having Mr. Tran transported to the detachment) minimized thetime Mr. Tran was detained. I find that the arbitrary detention falls on the lower end of the spectrum of gravity. [19] By allowing Mr. Tran to use his cell phone to notionally contact a lawyer in the privacy of the police vehicle, the officer did seekto comply with some of the Charter requirements. However, the officer’s failure to ask Mr.

Tran if he required the telephone number forlegal aid or some other assistance to contact a lawyer is important. [20] The officer also seriously breached his duty to refrain from taking investigative steps to elicit evidence from or asking questionsof Mr. Tran before his right to counsel was provided and/or after he told the officer that he wanted to speak to a lawyer. On the otherhand, I have found that the officer conscripted Mr. Tran to open the trunk. In the Crown’s view, the officer’s direction to Mr.

Tran was“to simply push a button.” This focuses on the simplicity of the act, rather than the impact and significance of the act from a Charterinformed perspective. The public has vested the police with the authority to direct the actions of and question members of the public. It isimportant that this authority be exercised in a constitutional manner. [21] The officer’s contradictions in his report and testimony about whether he asked Mr. Tran questions exacerbate the seriousness ofthis breach. This s. 10(

b) breach (both aspects) fall on the more serious or higher end of the scale. [22] Without the s. 10(

b) breach, I would have found overall breaches to be on the lower to mid-point of the spectrum. However the s.10(

b) breach moves the spectrum into a higher level of gravity. [23] Were there extenuating circumstances, such as the need to preserve the evidence or an urgent need for police action? There was no need to preserve evidence or an urgent need for police action.

The Defence submits that there were no extenuatingcircumstances that prevented the officer from adhering to the law of arrest and the Charter. [24] However, I am cognizant that any investigation conducted in the middle of the night on the roadside of the Trans-CanadaHighway (a major highway) is inherently dangerous, notwithstanding the officer’s safety precautions. [25] Was the police conduct committed in good faith? My decision about good or bad faith is not a factual finding per se; it is alegal characterization of the facts. I must assess the relative good or bad faith involved in the breaches.

This is also one of the mostimportant factors. Good faith requires that an officer has an honest and reasonably held belief. If the officer’s belief is honest but notreasonably held, it cannot be characterized as good faith. If an officer knows or should know that his or her acts are unlawful, there is nogood faith. If the officer acts in a knowingly or intentionally wrong manner, the officer has demonstrated bad faith. A finding of bad faithtends to support exclusion of the evidence. [26] I found that the officer’s belief was honest but not objectively reasonable.

The public expects officers to know the constitutionallimits of their authority. Thus, I cannot say that he acted in good faith. His efforts to comply with the Charter, although inadequate,prevent me from finding any bad faith. In general, this factor is neutral. [27] Did the police conduct include any of the following, which tends to support the exclusion of the evidence: a. Ignorance of Charter standards? b. Wilful blindness or negligence (although the absence of such conduct does not equal good faith)? c.

Wilful and flagrant disregard of Charter requirements, requiring the court to dissociate itself from such conduct? d. Deliberate conduct that violated established Charter standards? e. A pattern of breaches or multiple breaches, which exacerbate the seriousness of the original breaches due to their cumulative effect? (Such a pattern supports exclusion but will not necessarily result in exclusion of the evidence, depending on the facts.

I must considerthe nature and quality of each breach individually and cumulatively.) [28] The Crown characterizes the officer’s conduct as “errors in judgment.” Citing Frankel, J.A. in R. v. Whitaker, the Crownsuggests that this description applies: “In other words, although the police were guilty of errors in judgment, they did not intentionallyviolate the rights of those persons whom they encountered on the Whitaker property. This lessens the seriousness of the breaches andmilitates in favour of admission.” [Whitaker, 2008 BCCA 174 at para. 72, citing R. v. Strachan, (SCC), [1988] 2 S.C.R.980 at 1007, 1008.]

[ 29 ] I agree with Crown that such a roadside investigation is fluid and dynamic, where the officer was responding to his observations quickly. The Crown adds that such officers do not have the time to analyse the minutiae of their decisions in the same post facto manner as counsel and the court during a voir dire. The Crown adds that officers in those situations are not perfect, so the court should not expect perfect compliance with the Charter . Consequently, the Crown seeks some flexibility and understanding of this dynamic situation when I assess the officer’s conduct.

The Crown points out that this was not a planned execution of a search warrant, where senior officers are required to fully consider the situation in advance so that Charter requirements are met. [ 30 ] The Defence argues that such an approach would lower Charter standards for roadside stops. This officer is expected to fully exercise his authority of arrest and search in the future, on roadways. Therefore, using the phrase in R. v. Stanton , [2010] B.C.J.

No. 753 (B.C.C.A.) at para. 63 , the Defence submits that this is not “a ‘one-off’, and unlikely to be replicated.” The Defence submits that the fact that this officer will need to correctly apply the law of arrest and the Charter in the future requires that such Charter standards are not relaxed. [ 31 ] In the Defence view, there cannot be a different standard for traffic officers relative to any other officers or the roadway. He submits that such an approach treads dangerous water and erodes Charter rights.

Notwithstanding the fluid and dynamic nature of roadside stops, important Charter rights apply that the courts have taken very seriously. He argues that the courts cannot be seen as endorsing police actions that do not meet the Charter . The Defence argues that the following baseline applies: the public interest requires that the police conduct efficient and thorough investigations but also uphold Charter rights. [ 32 ] Does the public demand perfection? It may appear so to police officers under scrutiny. The public may take a different view.

The public has a clear interest in the police conducting thorough and professional investigations that respect the constitutional rights of all members of the public, regardless of the varying skills of different but trained officers. The courts appear to have taken the same view, while providing for exceptions in urgent or exigent circumstances. Smith, D., J.A. in R. v.

Dhillon , 2012 BCCA 254 articulated this concept: “In order to survive Charter scrutiny, police powers must be exercised in a manner that balances the rights (including privacy rights) of individuals” (para. 64), albeit in a slightly different context which still applies to my overall assessment. [ 33 ] The conduct of the officer described above demonstrates that he either did not properly know or he ignored some aspects of the law and Charter . I cannot characterize his conduct as wilfully blind or negligent, a flagrant disregard of Charter requirements or deliberate conduct.

Rather, I describe his conduct as inattentive and inadequate - with one exception: the s. 10(

b) breach. This breach contained two main elements:

a) failing to refrain from eliciting evidence and/or asking questions prior to informing Mr. Tran about and implementing the s. 10(

b) rights; and,

b) failing to assist Mr. Tran in accessing counsel. The Crown characterizes this conduct as careless. I do not agree. It transcends carelessness; the s. 10(

b) breach was more purposeful. [ 34 ] I do not find that the officer acted with “a conscious determination to take advantage of the accused”: Strachan para. 50 . However, he did demonstrate a somewhat cavalier approach to Charter compliance, despite the fluid and dynamic situation of all vehicle stops. He did not demonstrate “an isolated error in judgment”, as that term has been used by the Supreme Court of Canada: Strachan , para. 50 . His conduct involved a series of errors in judgment and shortcuts which add up to a pattern of breaches that started within 15 seconds of his arrival on scene and ended with a serious s. 10(

b) breach. [ 35 ] The series of breaches constitute a pattern of disregard for Mr. Tran’s Charter rights. I am mindful of the observation made by the Supreme Court of Canada in Grant at para. 75 : It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge.

In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter -infringing conduct was part of a pattern of abuse tends to support exclusion. [ 36 ] Where does the conduct fall on the spectrum of seriousness? The Crown submits that the real element of the breach findings was the officer’s inability to articulate and his unsatisfactory evidence in court, which reduces the seriousness of his conduct. The Crown cited, R. v. S.B. , [2010] O.J. No. 3949 (O.C.J.) involving the decision to arrest for robbery.

The court concluded that the officer’s arrest decision “fell just short” of what was reasonable and was premature. The court described the unlawful arrest and the officer’s subjective belief as “rational, although mistaken” and that he arrived at his decision after “careful consideration of the facts known to him….” That court ruled the evidence admissible. I am unable to conclude that the officer in this case made his decision to arrest after a careful consideration of the facts known to him.

This places the police conduct here at a lower standard than the conduct in S.B. for the purpose of my assessment. [ 37 ] The ability of the courts to review police conduct for constitutional compliance is imperative and obligatory to ensure public confidence in both the police and the justice system. The seriousness of the officer’s conduct transcends a lack of articulation and less than satisfactory evidence in court.

The officer’s conduct involved a series of breaches. [ 38 ] The officer engaged in shortcuts when exercising a very significant power of arrest, search, investigation, and the provision of the s. 10(

b) Charter right. While he may not have wilfully sought to take advantage of Mr. Tran, the inadequacy of his Charter compliance still places his conduct at the higher level (but not extreme) level of seriousness. This characterization tips in favour of exclusion. ANALYSIS & APPLICATION – IMPACT OF THE BREACH [ 39 ] The second line of inquiry (the impact of the breaches on Mr. Tran’s Charter -protected interests) requires that I focus on Mr. Tran’s constitutional rights. I must determine how seriously Mr. Tran’s Charter rights were impacted by the breaches.

I must evaluate the following factors articulated in Grant , paras. 76-78 . [ 40 ] To what extent or degree did the breaches undermine Mr. Tran’s Charter rights ? Given my findings above regarding the unlawful arrest, search, and arbitrary detention, I find that these rights were either minimally or only moderately undermined. The breach concerning the right to access counsel and the police duty to hold off eliciting evidence in these circumstances was undermined much

more significantly. [41] Where do these breaches fall on the spectrum of potential violations, which may range from fleeting and technical toprofoundly intrusive? The unlawful arrest of Mr. Tran was physically intrusive but short-lived. The search of the trunk was notphysically intrusive but engaged Mr. Tran’s reduced privacy rights in his vehicle. The violation of Mr. Tran’s right to counsel and theduty to hold off eliciting evidence were significant. Cumulatively, and with this latter breach, the pendulum swings towards the higherend of the spectrum of potential violations. [42] Does Mr.

Tran have a strong, reduced, or little privacy interest in these circumstances? It is common ground that Mr.Tran’s right to privacy existed but was reduced while driving his motor vehicle. [43] The B.C. Court of Appeal in Dhillon compared a dog sniff search (as it occurred in R. v. Kang-Brown, 2008 SCC 18, regarding atravel bag at a bus station) with a vehicle search.

Smith, D., J.A. made the following comment: “In the case of a vehicle search, thenature of the privacy interest affected is much higher, both because the search is more invasive and because the scope of information thatcould be obtained through the search is much broader” (para. 66). [44] In her s. 24(2) analysis of the second line of inquiry, Smith, D., J.A. stated, “The state’s non-compliance on Mr. Dhillon’sCharter-protected interests was also, in my view, significant.

Even a search of a motor vehicle, where there is a reduced expectation ofprivacy, cannot be justified where there are no reasonable grounds or valid consent for the use of that police power” (para. 77). I notethat Dhillon involved the unlawful roadside search of a vehicle trunk in much more volatile circumstances than those in Mr. Tran’s case. [45] In support, Smith, D., J.A. at para. 77 cited R. v.

Harrison, 2009 SCC 34 at para. 31: “...being stopped and subjected to a searchby the police without justification impacts on the motorist's rightful expectation of liberty and privacy in a way that is much more thantrivial.” I note that the use of a motor vehicle still engages the constitutional expectation of liberty. [46] Again, the cumulative natures of the breaches augment their impact on Mr. Tran’s Charter-protected interests. This impactfavours exclusion.

ANALYSIS & APPLICATION – SOCIETY’S INTEREST IN ADJUDICATION ON MERITS [47] The third line of inquiry (society’s interest in adjudication on the merits of the case) requires that I focus on the public interest.Again, I have considered several factors in assessing the negative impact on the repute of the administration of justice if I admit theevidence and/or if I fail to admit the evidence: Grant, paras. 79-84. [48] Is the truth-seeking function of the criminal trial process better served by the admission of the evidence or by itsexclusion?

Given that the officer discovered five bags of marijuana stems, leaves, and buds, the exclusion of the evidence in this casegreatly diminishes the truth-seeking function of the criminal trial process. [49] Is the evidence reliable? I must consider if the breaches undermine the reliability of the evidence.

I cannot adopt a view thatreliable evidence is admissible regardless of how it was obtained; such a view is inconsistent with the rights affirmed in the Charter.However, it is still an important factor for consideration because the public interest in truth-finding remains. [50] There is a temporal nexus between the breaches and the discovery of the marijuana. It was discovered during and as a result ofthe first set of breaches (unlawful arrest, unlawful search incident to arrest, and unlawful elicitation of evidence in violation of s. 10(b)rights). The remaining s. 10(

b) violation occurred while the officer’s vehicle search was ongoing, at the same location. [51] However, the existence of the marijuana in this case stands independent of all Charter breaches. This mitigates the impact of theseriousness and impact of the breaches. The quantity is moderate, relative to what may be found in marijuana grow operations. Thisfactor favours admission. [52] Will the case proceed to trial if the evidence is excluded? This question is corollary to the reliability question but notdeterminative in this inquiry.

Here, it appears that the case will not proceed to trial if the evidence is excluded. This factor favoursadmission. [53] What is the relative seriousness of this case? Case seriousness maybe a valid factor but only results in a short-term negativeimpact on the repute of the justice system. The Charter objectives in s. 24(2) are independent from the type of offence charged. It isclear that this factor is not determinative. [54] It is difficult to assess the relative seriousness of this case.

The Crown’s position seems to be that the five bags of marijuanaweighing approx. 31.2 kg (or 68-69 lbs., according to the officer) makes this a sufficiently serious case that exclusion would bring thejustice system into disrepute. [55] I am cautious about the relative seriousness of the marijuana evidence. The bags contained leaves, stems and buds. Theircombined weight may be less important than the number of individual plants suitable for stripping, harvesting or growing, about which Ihave no evidence on this voir dire. No value has been attributed to the contents of the bags.

The officer did not empty the bags to see ifthere was anything else in the bags that impacted their weight, such as dirt, before he weighed and later destroyed them. However, thisfactor may still favour admission. [56] Overall, this line of inquiry generally favours the admissibility of this type of evidence. CONCLUSION(S) [57] In making my conclusion, I am guided by comments made in R. v. Burlingham (1995), (SCC), 97 C.C.C. (3d)385 (S.C.C.) at pg. 408:

[W]e should never lose sight of the fact that even a person accused of the most heinous crime...is entitled to the full protection of theCharter. Short-cutting or short circuiting those rights affect not only the accused, but also the entire reputation of the criminal justicesystem. [58] In R. v. Lauriente, 2010 BCCA 72 at para. 29, Prowse, J.A. cited with approval the following passage from R. v. Golub (1997), (ON CA), 117 C.C.C. (3d) 193 (Ont.

C.A.) at para. 60: Respect for the rule of law and the long-term viability of the justice system suffers where the police engage in ‘shortcuts’ or fail torespect the constitutional rights of those they encounter in the course of the exercise of their duties.

The long-term harm to the justicesystem is not worth the short-term gain made by the admission of the evidence which was obtained in a manner which ignores the rule oflaw. [59] On the balance and in all of the circumstances, I find that the admission of the evidence would bring the administration of justiceinto disrepute in the overall, prospective and long term. [60] Accordingly, the evidence obtained during the search of the vehicle is not admitted at trial. ______________________________ The Honourable Judge D.

Gaffar Provincial Court of British Columbia CORRIGENDUM – Released May 26, 2017 [1] This corrigendum to my Reasons for Judgment issued May 26, 2017, is to clarify and correct paragraphs [37] and [43] of thosereasons. Paragraphs [37] and [43] should read as follows: [37] The ability of the courts to review police conduct for constitutional compliance is imperative and obligatory to ensure publicconfidence in both the police and the justice system. The seriousness of the officer’s conduct transcends a lack of articulation and lessthan satisfactory evidence in court.

The officer’s conduct involved a series of breaches. [43] The B.C. Court of Appeal in Dhillon compared a dog sniff search (as it occurred in R. v. Kang-Brown, 2008 SCC 18, regarding atravel bag at a bus station) with a vehicle search. Smith, D., J.A. made the following comment: “In the case of a vehicle search, thenature of the privacy interest affected is much higher, both because the search is more invasive and because the scope of information thatcould be obtained through the search is much broader” (para. 66). ______________________________ The Honourable Judge D. Gaffar Provincial Court of British Columbia