R. v. Ellis Date:, 2011 BCPC 429

Citation: R. v. Ellis Date: 20111208 2011 BCPC 0429 File No: 9019-1 Registry: Golden IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RYAN CAMERON DAVID ELLIS RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G. SHEARD Crown Counsel: T.G. Colgur Defence Counsel: S.J. Tessmer Place of Hearing: Golden, B.C. Date of Judgment: December 8, 2011 [ 1 ] THE COURT : Ryan Cameron David Ellis (“Mr. Ellis”) is charged with possession of marihuana for the purpose of trafficking and trafficking marihuana on May 14, 2010, at Donald, British Columbia. Mr.

Ellis alleges that his rights under ss. 8, 9 and 10 of the Charter relating to search and seizure, arbitrary detention, and right to counsel have been infringed, and that marihuana seized from the vehicle he was driving ought to be excluded from evidence. [ 2 ] These are my reasons for decision on a voir dire on the alleged breaches of Mr. Ellis’s rights under the Charter . There are five issues on the voir dire. They are as follows: (

a) were statements made by Mr. Ellis admissible in the voir dire; (

b) was the detention arbitrary. That is s. 9; (

c) was the search of the vehicle unreasonable. That is s. 8; (

d) was there a breach of Mr. Ellis’s right to counsel, s. 10(b), and; (

e) if there was a breach of any of Mr. Ellis’s rights under the Charter , what remedy, if any, is appropriate, s. 24(2).

[3] Constable Pettit was the only witness called on the voir dire, and he was called by the Crown. I turn now to a brief overview ofthe evidence. [4] On May 14, 2010, operating alone, Corporal Pettit set up a road check-stop 23 kilometres west of Golden, on Highway number 1,to check vehicles for mechanical fitness and drivers’ impairment, or possible impairment, driver's licences and seat belts. Stopping Mr.Ellis at 8:17 p.m., the corporal noted that there was no problem with his sobriety and he was wearing his seat belt, but he was unable toproduce a driver's licence. Obtaining a passport from Mr.

Ellis, the officer conducted a computer search in his police vehicle regardingMr. Ellis, learning that his driver's licence was invalid and that he was a “vehicle impound candidate”. A copy of the computer query thecorporal made was entered as Item E on the voir dire. [5] Corporal Pettit then returned to Mr. Ellis, in his vehicle, and told him of the information he had obtained, that his vehicle wouldbe impounded and that he would conduct an inventory of the vehicle contents, whereupon Mr.

Ellis said, “There are duffel bags in therethat I am not taking responsibility for.” [6] The corporal then stated that he formed reasonable grounds to arrest for possession of a drug, and he did so, reading theappropriate Charter and legal aid explanations to Mr. Ellis. While Mr. Ellis used his cellphone in the police vehicle, apparently to callcounsel, the corporal searched Mr. Ellis’s vehicle, stating that he did so as being incidental to this arrest. [7] In the rear hatch of the Jeep Cherokee driven by Mr. Ellis the corporal located four duffel bags containing 111 half pound bags ofmarihuana.

That is a total of 55 and one half pounds of marihuana. The corporal then re-arrested Mr. Ellis for possession for thepurposes of trafficking and advised him again of the Charter and legal aid. The officer had the vehicle towed and Mr. Ellis was taken tothe Golden detachment, where he was released that same evening between 10:30 and 11 p.m. on a recognizance. [8] During the investigation at the roadside the corporal located a WestJet ticket stub, or boarding pass, inside of Mr. Ellis’spassport, indicating that he had flown earlier that day from Edmonton to Kelowna, and the corporal determined that the vehicle Mr.

Elliswas driving was a rental vehicle, having been rented to another person. The corporal conducted an inventory of the vehicle two dayslater, a copy of which was marked Item I for identification on the voir dire, wherein the only contents the corporal noted was a foldedcardboard box. (

A) Were Statements Made by Mr. Ellis Admissible in the Voir Dire? [9] While the Crown elicited evidence from Corporal Pettit of statements made by Mr. Ellis, the Crown did not seek a voir direregarding voluntariness. Prior to the voir dire commencing, the court raised the issue of voluntariness and the Crown indicated that, atleast in the trial proper, the Crown was not seeking to introduce statements of Mr.

Ellis in evidence. [10] Although the defence did not object to this evidence being elicited in the voir dire, nor did the defence waive the requirement of avoir dire on the issue of voluntariness and the defence did not admit voluntariness. While the Crown did ask the police officer in the voirdire whether there had been any threats, promises, or inducements made to Mr. Ellis prior to Mr.

Ellis making his utterances, and theCrown received a negative response from the police officer in his evidence in this regard, in cross-examination the officer acknowledgedthat he had only given evidence about certain conversations between he and Mr. Ellis. [11] In the case of R. v.

Nguyen, [2006] BCJ 2048 BCCA, also a case involving a Charter voir dire where the Crown asked the policewitness whether the accused had been threatened or offered any promises or inducements, but without entering a voir dire onvoluntariness, the court found statements of the two accused there to be inadmissible in that Charter voir dire. Notwithstanding thefailure of the Crown and the defence to raise the issue of voluntariness at that point in the evidence, I, too, failed to address the issue andto have declared a voir dire, as I ought to have done.

However, I note that neither counsel seek a declaration of mistrial and I will not doso. [12] Following R. v. Nguyen, as I am of course bound to do, I find that the Crown has not proven the utterances or statements of Mr.Ellis voluntary. Accordingly, the statements made by Mr. Ellis are inadmissible in evidence in this voir dire and will not be consideredby me in respect of the Charter issues raised. (

B) Was There an Arbitrary Detention [13] Random check-stops, such as the one that occurred here, prima facie violate a person’s right to be free from arbitrary detentionpursuant to s. 9 of the Charter; however, traffic check-stops have long been declared justifiable pursuant to s. 1 of the Charter. See R. v.Hufsky (1988), (SCC), 1 SCR 621; R. v. Ladouceur (1990), (SCC), 1 SCR 1257, and; R. v. Mellenthin(1992), (SCC), 3 SCR 615. There was no Charter infraction as a result of the initial stop of Mr. Ellis’s vehicle. [14] As the initial detention of Mr.

Ellis was lawful, the fact that the purpose of the police inquiry turned into an investigation of acriminal offence did not, in and of itself, transform the detention into one that was arbitrary. The police officer said that for a couple ofreasons, which he did not elaborate upon, and based upon an inadmissible statement of Mr. Ellis, he formed reasonable grounds to arrestMr. Ellis for possession of a drug. [15] If the onus were on the Crown to prove that there was no Charter breach in this regard, I would have found that the Crown hadfallen short on this thin evidence.

However, the onus is on the defence to establish a Charter breach on a balance of probabilities. Here,where the police officer did articulate some reason for the continuing detention, I find that the defence has failed to establish that thecontinuing detention was arbitrary. (

C) Was the Search Unreasonable, s. 8 [16] Section 495(1)(

a) and (

b) provide as follows: A peace officer may arrest without warrant

(

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commitan indictable offence; (

b) a person whom he finds committing a criminal offence . . . [17] Regarding the meaning of reasonable grounds, I note the following. For an arrest to be valid on the basis of reasonable andprobable grounds, it is not sufficient for the police officer to subjectively believe that he has reasonable and probable grounds to make anarrest. Rather, it must also be shown that a reasonable person, standing in the shoes of the officer, would have believed that reasonableand probable grounds existed to make the arrest; however, the police officer need not go further and establish a prima facie case. See R.v.

Storrey, [1991] SCR 241. [18] In cross-examination the corporal indicated that in addition to a statement made by the accused, which has not been admitted inevidence, his reasonable grounds for arrest were, “coupled with a couple of other items of interest,” and, “with other things that hadoccurred, that there was something unlawful in there”.

The officer did not articulate what those other things were. [19] The Crown argues that the evidence that the accused had flown from Edmonton to Kelowna earlier that day, and that he was in arental vehicle rented by a third party, are further evidence in support of the reasonableness of the arrest, but the officer did not say thatthose things factored in his formulation of such grounds, and without evidence that such things are consistent with an offence beingcommitted, or an indictable offence having been or about to be committed, I cannot find that the evidence supports a finding thatobjectively there were reasonable grounds to believe that Mr.

Ellis had committed an indictable offence, was about to commit anindictable offence, or was committing a criminal offence. Accordingly, I find that the arrest of Mr. Ellis was not lawful. [20] Assertions of an unlawful search are somewhat unique in respect of onus in Charter cases. Where there is a warrantless search,as was the case here, the onus shifts to the Crown to prove that there was authority for such a search, that the authority for such a searchwas reasonable, and that the search itself was conducted in a reasonable manner. In R. v.

Webster, [2008] BCCA 458, I note that thefollowing was said at paragraph 49: It is well established that the police have a common law power to search a vehicle incidental to arrest. [See] R. v. Caslake, 1998 . . . (SCC), 1 S.C.R. 51 . . . [21] The arrest of Mr. Ellis was not lawful, and so there was no authority to search incidental to arrest.

I am not persuaded that therewas authority to search for the purpose of conducting an inventory under the Motor Vehicle Act, and, even if there was, the results ofsuch a search offend against s. 8 of the Charter if the fruits of such a search are tendered in evidence in a criminal trial. See R. v. Nolet(2010), 2010 SCC 24 , 1 SCR 851 at paragraph 53. [22] In all of the circumstances I find that the Crown has failed to establish authority for this warrantless search and the accused hasestablished that there was a breach of his rights under s. 8 of the Charter. (

D) Was There a Breach of the Right to Counsel [23] Corporal Pettit gave evidence that when this investigation changed from a motor vehicle inquiry to a criminal investigation heread the appropriate Charter and legal aid explanation and gave Mr. Ellis privacy in the police vehicle with his cellphone to call counsel,which he believed Mr. Ellis did do. [24] Furthermore, after locating marihuana the corporal re-arrested Mr.

Ellis for possession for the purpose of trafficking and, “readthe Charter and legal aid again.” Corporal Pettit was not challenged in respect of that evidence. [25] On the evidence before me, I find that the accused has failed to establish a breach of his right to counsel under s. 10(

b) of theCharter. (

E) Remedy Application of s. 24(2) of the Charter [26] Having found a breach of Mr. Ellis’s right under s. 8 of the Charter to be free from unreasonable search and seizure, faced withan application to exclude evidence under s. 24(2) of the Charter, I must assess and balance the effect of admitting the evidence onsociety’s confidence in the justice system, having regard to: (1) the seriousness of the Charter infringing state conduct. Admission may send the message that the justice system condones seriousstate misconduct; (2) the impact of the breach of the Charter-protected interests of the accused.

Admission may send the message that individual rightscount for little, and; (3) society’s interest in the adjudication of the case on its merits. See R. v. Grant (2009), 2009 SCC 32 , 2 SCR 353 atparagraph 71. [27] After making these inquiries, which encapsulate consideration of all the circumstances of the case, I must then determinewhether, on balance, the admission of this evidence will bring the administration of justice into disrepute. Again, R. v. Grant, paragraph85. (

A) Seriousness of the Charter Infringing State Conduct [28] I find that the officer did not act in bad faith in the sense of consciously seeking to search without authority. Indeed, I find thecorporal did subjectively believe he had authority to search. [29] In support of the exclusion of evidence, the defence relies on the decision of Chief Justice McLachlin in R. v. Harrison (2009),

2009 SCC 34 , 245 CCC (3d) 86. At paragraphs 22 to 27 the chief justice considered the seriousness of the Charter infringingstate conduct, noting that the trial judge in that case found the police officer’s conduct brazen, flagrant and very serious, and also foundthat the police officer’s testimony there had been misleading. Given those findings, the chief justice found the police conduct wasserious and not likely to be condoned. [30] In R. v. Harrison, Chief Justice McLachlin also referred to Mr. Justice Doherty’s decision in R. v.

Kitaitchik (2002), (ON CA), 166 CCC (3d) 14, where he said: Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard forCharter rights . . . [31] In the case at bar I do not find any brazen or flagrant disregard by the police officer for the Charter rights of Mr. Ellis. Rather, Icharacterize the police conduct in this case as hasty and careless. (

B) Impact of the Charter-protected Interests of the Accused [32] In R. v. Harrison, at paragraphs 28 to 32, Chief Justice McLachlin noted, in considering this factor, that there is a reducedexpectation of privacy in vehicles, and that, had the search not turned up incriminating evidence, the detention would have been brief.

Nevertheless, where the police officer had no grounds to stop the accused in the first place, the unconstitutional detention and searchwas therefore a significant, although not egregious intrusion on Harrison’s Charter-protected rights. [33] In the case at bar, where the initial stop and detention was not unconstitutional, the intrusion on Mr. Ellis’s rights wasnevertheless significant, though less significant than in Harrison and similarly not egregious. (

C) Society’s Interests in an Adjudication on the Merits [34] The comments of Chief Justice McLachlin in R. v. Harrison, at paragraphs 33 and 34, apply equally to the facts at bar, and so Ireproduce them here: At this stage, the court considers factors such as the reliability of the evidence and its importance to the Crown’s case. The evidence of the drugs obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtuallyconclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking functionof the trial.

While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, whilethe public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has avital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. With that caveat inmind, the third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public’sinterest in having the case adjudicated on its merits. (

D) Balancing the Factors [35] The police officer’s conduct in searching this vehicle without authority was hasty and careless. While that is not conduct thiscourt wants to condone, nor is it misconduct of a major degree that the court has an elevated concern for or need to dissociate itself from. The Charter infringement of searching the vehicle that Mr. Ellis was driving had a serious, although not egregious, impact on theCharter-protected interests of Mr. Ellis. To some extent at least these factors favour exclusion. On the other hand, just as Chief JusticeMcLachlin stated at paragraph 35 of R. v.

Harrison: . . . the drugs seized constitute highly reliable evidence tendered on a very serious charge, albeit not one of the most serious known to ourcriminal law. This factor weighs in favour of admission. [36] She went on at paragraph thirty-six: The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question ofwhether the majority of the relevant factors favour exclusion in a particular case.

The evidence on each line of inquiry must be weighedin the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration ofjustice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of thecriminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must beassessed. [37] In the case at bar, the officer did not act in brazen disregard for Mr.

Ellis’s rights, the breach was not egregious in view of thereduced expectation of privacy in respect of a vehicle and there was nothing demeaning about the search, and the drugs seized constitutehighly reliable evidence tendered on a very serious charge. Balancing these factors, having regard to all of the circumstances, I do notfind that admitting the evidence obtained in this search would bring the administration of justice into disrepute and it will therefore beadmitted. (RULING CONCLUDED)