R. v. Malhi, 2018 BCPC 143

Citation: R. v. Malhi 2018 BCPC 143 Date: 20180611 File No: 86926-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SUKHJIT MALHI REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: J. M. LeDressay Counsel for the Defendant: S. R. Chamberlain, Q. C. Place of Hearing: Abbotsford , B.C. Date of Hearing: June 11, 2018 Date of Judgment: June 11, 2018 Introduction [ 1 ] The Accused Sukhjit Malhi is charged with three counts of possession of controlled substances for the purposes of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act . A voir dire has been held to determine the issue of the validity of

the arrest of the Accused and whether any of the items seized during that arrest should be admitted into evidence. The admissibility ofsuch evidence will most likely depend on whether or not the arrest was a valid one or not. [2] Specifically at issue in this case is whether or not reasonable grounds existed at the time of the arrest to support the belief thatthe Accused had committed or was about to commit an indictable offence. The Crown and Defence have differing opinions on thisquestion.

The Crown urges me to find that sufficient reasonable grounds existed for the Accused’s arrest, while the Defence says that nosuch grounds existed. The Defence argues that all that was present here was suspicion, speculation, or a hunch, none of which amounts toreasonable grounds to justify an arrest. As Mr. Chamberlain puts it, “opinions are worth nothing without facts”. Applicable Law [3] I will first review the law as I understand it concerning what are reasonable grounds for arrest. Under the Canadian Charter ofRights and Freedoms,

Section 8 of the Charter gives everyone a constitutional protection against “unreasonable search and seizure” andSection 9 protects all of us from arbitrary detention. The Supreme Court of Canada has held that a search made without a warrant ispresumed to be unreasonable under

section 8 of the Charter unless the Crown proves, on a balance of probabilities, that the warrantlesssearch was authorized by law and conducted in a reasonable manner. R. v. Collins (SCC), [1987] 1 S.C.R. 265. [4] The Supreme Court has also ruled that a search conducted incidental to arrest is authorized by law, and therefore reasonable,provided that the arrest is lawful. The Crown bears the onus of proving that the underlying arrest was lawful. R. v. Caslake (SCC), [1998] 1 S.C.R. 51; R. v. Stillman (SCC), [1997] 1 S.C.R. 607; R. v.

Fearon 2014 SCC 77 , 2014S.C.C. 77. [5] The onus placed on the Crown is met if the Crown proves that the officer had reasonable grounds to believe the accusedcommitted or was in the process of committing an indictable offence. This requirement comes from s. 495 of the Criminal Code. [6] In deciding what constitutes “reasonable grounds”, two conditions must exist. Firstly, an arresting officer must subjectivelyhave reasonable grounds to believe the accused committed or was in the process of committing an indictable offence.

In the case beforeme, I am satisfied that Constable Philip Toews of the Abbotsford Police Department, the officer who directed that the arrest of theAccused take place, did form that subjective belief, and no one has suggested otherwise. It is the existence of the second condition that isin dispute in this case. [7] The second condition requires that those grounds must be justifiable from an objective point of view. This calls for somemental gymnastics in deciding this question.

The question is not whether I personally believe those grounds were reasonable, or do Ithink that an average member of the public would think this was reasonable. It does not mean would a majority of those polled by aprofessional pollster conclude that Constable Toews’ grounds for arrest were reasonable. The test is more nuanced than that. TheSupreme Court of Canada, in R. v. Storrey, (SCC), [1990] S.C.J.

No. 12, has said that I must decide if a reasonableperson with the same experience, training, knowledge, and skills as the officer making the observations would to conclude that therewere indeed reasonable grounds for the arrest.

In other words, would a reasonable person with Constable Toews’ experience look at allof the circumstances and say “it’s reasonable to conclude that the Accused has committed or is committing an indictable offence”? [8] The word “reasonable” can mean different things to different people, and case law from court whose decisions are binding onme have offered some helpful guidance on what that word should mean to me. The “reasonable grounds” standard has been described as“a credibly based probability,” or “reasonable probability.” It requires more than mere suspicion.

But it is something less than the civilstandard of proof on a balance of probabilities or a prima facie case. Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R.145; R. v. Debot (SCC), [1989] 2 S.C.R. 1140; R. v. McCannell 2014 BCCA 254. [9] Deciding the question of whether or not reasonable grounds for the belief exist involves a consideration of the “totality of thecircumstances”: R. v. Jir, 2010 BCCA 497; R. v. Bracchi 2005 BCCA 461.

If each individual factor taken by itself is insufficient forform reasonable grounds for arrest, I must still consider whether all of these factors taken together and decide on the reasonableness ofthe conclusion that the Accused was arrestable. [10] If it is found that a warrantless arrest of an accused was not based on reasonable grounds, then this is an unlawful arrest and itmay result in a violation of that accused’s right to be free from arbitrary detention contrary to

section 9 of the Charter. A searchconducted pursuant to an unlawful arrest is an unreasonable search within the meaning of

section 8 of the Charter. R. v. Grant 2009 SCC32 , [2009] 2 S.C.R. 353.

Summary of Evidence [11] In this case The Accused was arrested at a strip mall located on the west side of Abbotsford on the morning February 6, 2018.Prior to his arrest he was not seen in possession of anything that resembled drugs. He was not seen giving anyone anything thatresembled drugs. He was seen getting into the front passenger seat of another person’s vehicle, motioning another person to come over.That person got into the back seat of the vehicle and shortly after that she left, appearing to put something in her purse.

On that factpattern alone it is unlikely that any reasonable person would conclude that an indictable offence had probably taken place. But ConstableToews testified that his grounds for belief were not just based on what he saw in the parking lot in that brief period. [12] The law requires that I must decide if a reasonable person with the same experience, training, knowledge, and skills asConstable Toews, seeing what he saw and knowing what he knew, would conclude that there were indeed reasonable grounds to arrestthe Accused.

At that point in time Constable Toews had been a police officer for just over nine years. He spent his first four and a halfyears as a patrol officer and in July of 2013 he was assigned to the Drug Enforcement Unit. Since that time he has been involved in theinvestigation of drug offences and he has participated in targeting, surveillance and arresting drug traffickers. He has been trained as anundercover officer and in that capacity he has purchased drugs on 28 occasions, and has served as a cover officer during drug purchasesby other undercover officers on about 14 occasions.

His experience has made him familiar with a method of drug sales known as “dial-a-dope”, a sales method in which a prospective buyer of drugs places a phone order for drugs and goes to meet the seller at a discreetlocation. Constable Toews testified that in his experience such transactions do not take place in plain sight, and it is usual for the buyer to

get inside a vehicle in order to hide the physical transfer of the drugs from the sight of any onlookers. [ 13 ] In the summer of 2017, Constable Toews was part of a team that had arrested this Accused in connection with another allegation of drug trafficking.

That arrest was subsequently determined to have been an unlawful arrest, although that ruling had not been handed down at the time of the arrest that is the subject of this voir dire. [ 14 ] Sometime in January of this year, Abbotsford police received information from two confidential informants which inspired the investigation that led to the arrest of this Accused. Both sources had what is often described as a “reliable pedigree” as an informant. One informant gave information to Constable Toews, while the other gave information to another officer.

One informant said that a male was selling drugs using a vehicle with a specific license plate, and that the male had a partner in the enterprise who drove a silver vehicle. Police learned that license plate in question was registered in the name of a family member of the Accused. [ 15 ] The second informant said that the Accused was selling drugs and was working with a second male and gave a name for that individual.

It was later determined that the second male lived across the street from the Accused. [ 16 ] For two days officers from the Drug Enforcement Unit set up surveillance on the street where the Accused and the second individual lived. On the second day, February 6, 2018, police officers observed a male leave the home of the second individual and get into the driver’s seat of a silver Honda Acura. Police followed the vehicle and observed it to make two brief stops at residences in the area.

The vehicle then drove to a strip mall on the west side of Abbotsford. [ 17 ] Constable Toews set up surveillance at the strip mall and kept the silver Acura under observation. Approximately 35 minutes later, the Accused arrived at the mall, driving a blue Honda Civic with the same license plate that the informant had provided. [ 18 ] Constable Toews had also observed a young woman at the mall acting in a manner that made him suspect that she was there to buy drugs.

It is difficult to articulate reasons for this conclusion, aside from the fact that she was driving a vehicle in need of repair, she had gone to a nearby ATM to get some cash, and she had what Constable Toews called “the look”. [ 19 ] When the Accused arrived at the mall, he left his vehicle and went directly to the silver Acura. As the Accused was walking over to the vehicle, he was seen looking around in every direction, and Constable Toews believed that this was in order to see if anyone was watching him.

Apparently this type of behaviour is so prevalent among drug traffickers that police officers have terms for it. They call it “crowing”, meaning that it mimics the head movement of a crow. They also call it “head on a swivel.” [ 20 ] When the Accused arrived at the Acura he opened the passenger door and made a hand motion as if he was gesturing for the female to come over. She did walk over to the vehicle and the Accused got in the front seat while the young woman got into the back seat of the vehicle. Both closed their car doors.

The young woman remained in the vehicle for less than a minute before leaving and appearing to be putting something into her purse. She walked to her vehicle and drove off. [ 21 ] It was at this point that Constable Toews authorized the arrest of the Accused. He testified that he had reasonable grounds to believe that the offence of trafficking in a controlled substance had just taken place and that the Accused was a party to that offence. He listed his reasons for this conclusions as follows:

(1) The actions of the female in going to the ATM, going to the car when called over, and departing the mall immediately after getting out of the car led him to conclude that she was at the mall for only one purpose and that was to buy drugs;

(2) The actions of the Accused in looking to see if anyone was watching him was consistent with the actions of someone involved as a participant in a dial-a-dope operation;

(3) The Accused arrived at the mall and went directly to a silver vehicle as was described by the confidential informant as being used for a dial-a-dope operation;

(4) The Accused arrived driving a vehicle with a license plate as described by a confidential informant as being used in a dial-a-dope operation;

(5) The length of time and manner of interaction between the female and the two males in the vehicle was consistent with how dial- a-dope transactions take place, based on Constable Toews’ experience. [ 22 ] In cross-examination, Constable Toews acknowledged that the informant had not named the Accused specifically as a drug trafficker. He also acknowledged that he did not observe a hand-to-hand transaction.

It was also clear from cross-examination that there was nothing concrete that suggested in advance that the female was at the mall to purchase drugs, and Constable Toews once more reiterated that his suspicion of this was based on “the look”. Generally speaking, in cross-examination, Constable Toews did not give direct answers to simple questions concerning facts that were not in dispute. I do not wish to imply that Constable Toews was anything other than credible.

I would simply observe that this manner of answering questions by a police officer can be problematic, as it can sometimes lead the trier of fact to question the objectivity of a witness. For future reference, it may be better to simply concede facts which are clearly so, and leave the matter of argument as to what can be taken from those facts to Crown Counsel. Analysis [ 23 ] It is on this evidence that I must now decide if Constable Toews had reasonable grounds to arrest the Accused on February 6, 2018. In deciding this question, some things are clear.

Firstly, Constable Toews had the honest subjective belief that the Accused had just committed the indictable offence of trafficking at the time the decision to arrest was made. [ 24 ] It is correct to say that it was not clear beyond a reasonable doubt that trafficking in a controlled substance had taken place inside the grey Acura prior to the arrest. It is also clear that there was at least a strong suspicion that this had taken place. The chasm between those two extremes is a wide one. The question to be determined is whether or not a reasonable person with Constable Toews’

experience would look at all of the circumstances and say “it’s reasonable to conclude that the Accused has committed or was committing an indictable offence.” [ 25 ] Placing myself in the shoes of Constable Toews, imagining myself to be an officer with his experience, knowledge and training, seeing what he saw on that day and knowing what he knew, I find that I would reasonably conclude that such an offence had in fact taken place. What is present here is something more than just the heavy hand of the state coming down on some individuals who are just talking in a car.

Constable Toews possessed information from two reliable sources that dial-a-dope sales were taking place out of the two vehicles he is now observing. He observed persons implicated by those informants acting in a manner consistent with behaviour that he had observed for years by those who buy and sell controlled substances in dial-a-dope operations. [ 26 ] There are no doubt other innocent alternative explanations for: (

a) Why the grey Acura, identified as a vehicle involved in drug trafficking, would stop at this location; (

b) Why the Accused would drive the other vehicle identified by the confidential informants to the same location; (

c) Why the Accused would immediately proceed to the grey Acura; (

d) Why a young woman would come to the mall to go to the ATM, then get beckoned into the grey Acura, remain their briefly, exit the vehicle putting something in her purse and then immediately depart the mall; and (

e) Why all of those things would happen at the same time that the confidential informants have reported the activities of the vehicles are being involved in a dial-a-dope scheme. [ 27 ] There may even be other innocent explanations for why all of these things would happen simultaneously. But when it comes to considering what the most probable reason for all of this taking place is, it would be reasonable for someone in the position of Constable Toews to believe that it was because a drug transaction had just taken place. Conclusion [ 28 ] For the foregoing reasons, I am satisfied that Constable Toews had the requisite grounds under

section 495 of the Criminal Code for the arrest of the Accused and I find that arrest to have been a valid one. Dated at the City of Abbotsford, in the Province of British Columbia, this 11 th day of June, 2018. ______________________________________ (The Honourable Judge K. D. Skilnick)