R. v. Becker Date:, 2013 BCPC 287

Citation: R. v. Becker Date: 20131024 2013 BCPC 0287 File No: 90245-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TARAS HORST BECKER REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE POTHECARY Counsel for the Crown: J. Powrie Counsel for the Defendant: C. Elden Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: July 29 & 30, 2013 Date of Judgment: October 10, 2013 [ 1 ] Taras Becker was stopped while driving his car at about 10:10 p.m. on March 7, 2013, by Cst. Todd, a member of the

Coquitlam Detachment RCMP. Following the stop and apparently smelling vegetative marihuana in the vehicle, Cst. Todd arrested and searched Mr. Becker and his car, ultimately locating and seizing a number of items. Those items are the subjects of five charges that Mr. Becker is now facing: possession of ammunition while subject to weapons prohibition orders (which include ammunition) made December 18, 2008 and January 15, 2009; possession of marihuana of a quantity less than 30 grams; possession of cocaine; and, possession of counterfeit U.S. $50 bills.

He elected trial by Provincial Court Judge. [ 2 ] The evidence of the stop and seizures was all heard during a voir dire in which Cst. Todd and Taras Becker both testified. Mr. Becker argues that the stop and subsequent arrest and searches violated his rights protected by Sections 8, 9 and 10 of the Charter of Rights and Freedoms . In particular, he argues as follows: despite the explanation given by the police officer, the traffic stop was a ruse for another investigation and therefore constituted an arbitrary detention contrary to

Section 9; that

Section 10 was violated when he was not advised of the actual reason for his detention, as well as his right to consult legal counsel with regard to the actual reason; that he was unlawfully arrested for possession of marihuana based on smell alone, in violation of

Section 9; and that the searches that followed, all of which were warrantless, were unreasonable, including the later strip search at the Detachment, and were in violation of

Section 8. [ 3 ] Crown Counsel argues that the evidence of Cst. Todd as to the reason for the traffic stop should be accepted, that the smell of marihuana alone provides sufficient grounds for a lawful arrest, and that the subsequent searches were all reasonable in the circumstances. [ 4 ] Given that this is a ruling on a voir dire , it is useful to review the burden of proof as it relates to each of these issues. Ordinarily, the burden of proving a breach of the Charter rests with the party alleging the breach, the Defendant, on a balance of probabilities.

Exceptionally however, in the case of a search, where the search is warrantless, it is prima facie unreasonable, and the Crown must prove the search to be reasonable. If the search is incidental to arrest, the Crown must prove the arrest to be lawful. In the event of a strip search pursuant to arrest, the Crown must prove on a balance of probabilities that it was both reasonable and justified in the circumstances. The Testimony: [ 5 ] Cst.

Todd testified that on the evening of March 7, 2013, he was parked roadside near 555 Delestre Avenue, Coquitlam, writing a report, when he noticed a grey Honda Pilot approach him quickly from behind, the Pilot having just left an underground parking lot by way of a side road behind him to his right. He observed the licence plate as it passed his parked car and queried the plate on his computer to identify the registered owner. The vehicle was registered to Taras Becker who held a Class 7 licence requiring him to display an “N” on the rear of the vehicle. Cst.

Todd stated that he did not see an “N” so decided to stop the vehicle pursuant to the Motor Vehicles Act . He activated his emergency lights adding a blast of his siren. The vehicle pulled over promptly, just before North Road. [ 6 ] Cst. Todd approached the driver and sole occupant whom he recognized as Taras Becker, the registered owner, from previous dealings. He said that as he neared the driver’s window, he “was hit with the overwhelming aroma of vegetative marihuana emanating from inside the vehicle”. He immediately placed Mr.

Becker under arrest for possession of marihuana and directed him to leave his vehicle. [ 7 ] Cst. Todd described having been involved in hundreds of investigations relating to the possession of marihuana in smaller quantities up to possession for the purpose of trafficking. He had also assisted in the execution of a number of warrants for grow ops as well as having being involved in undercover drug purchases. Accordingly he was well aware of the odour of vegetative marihuana. [ 8 ] After being placed under arrest and before leaving his vehicle, Mr. Becker handed Cst.

Todd a lawyer’s business card which had printed upon it inter alia that he was not going to consent to a search and would not speak with the police. Cst. Todd told him he was not being asked for consent and he was not going to be interviewed at that time. Mr. Becker got out of his car. Cst. Todd then advised him of his Charter rights and police caution from memory. Mr. Becker indicated he understood his rights and that he wanted to speak to a lawyer. [ 9 ] Cst. Todd then conducted a pat-down search of Mr.

Becker, looking for weapons or evidence of the marihuana, and located $880 of Canadian currency and a small baggie containing 1.31 grams of marihuana in his left pants pocket. He placed Mr. Becker in the rear of his police car and searched Mr. Becker’s vehicle to try to locate more marihuana. [ 10 ] During the vehicle search, Cst. Todd located a live shotgun round loose on the floor behind the front passenger seat near the centre console. Having found the ammunition, he returned to his police car where he determined from CPIC that Mr. Becker was the subject of two weapons prohibitions orders. He arrested Mr.

Becker for breaching these orders and read him his Charter rights and police caution from his police-issued card. They returned to the Detachment after Mr. Becker made arrangements for a friend to pick up his car. [ 11 ] Once at the Detachment, Cst. Todd began the booking-in process. He could still smell a strong odour of vegetative marihuana emanating from Mr. Becker, and in looking at him, Cst. Todd observed a second distinct bulge in Mr. Becker’s crotch area. Given that he had already located some drugs and believing Mr. Becker to have a “history with drugs”, Cst.

Todd requested and received permission from his NCO to conduct a strip search of Mr. Becker. [ 12 ] Mr. Becker was taken to a windowless room used for that purpose, and was directed to remove his pants and underwear while facing Cst. Todd. He did this, and when his underpants dropped to the floor, so did a plastic bag which was found to contain 0.54 grams of cocaine and 24 U.S. $50 counterfeit bills. Cst. Todd reread his Charter rights and police caution to Mr. Becker, to include the additional offences. He was allowed to dress again, and they left the room, following which Mr.

Becker attempted to reach his lawyer. [ 13 ] In cross-examination, Cst. Todd said he had parked facing southbound on Delestre Avenue just past the side road that lead from the underground parking for the apartment towers as he had seen a vehicle parked nearby in a roundabout belonging to a person who was the subject of a curfew and who was a person of interest to several police agencies. He admitted knowing that Mr. Becker lived in one of the two towers. He described the lighting as better if one were closer to the towers, and that the area became more treed and darker as one moved away from them.

He denied being there to wait for Mr. Becker and stated that his only intention in being there was to write

up a street check for the vehicle he had seen parked in the roundabout. [ 14 ] Cst. Todd said that he could not see the actual underground parking lot from his position and only became aware of the Pilot as it rounded the corner from the direction of the lot and turned right onto Delestre Avenue behind him. He estimated having about three seconds to observe the vehicle during which time he obtained the licence plate number. He then checked it on CPIC, identifying Mr. Becker as the registered owner with a Class 7 driver’s licence which required an “N”.

His reason for checking the licence plate of the vehicle, he said, was that the vehicle had come out quickly from the side street, although it was not speeding, and that he stopped it because he did not see an “N” visible on the rear of the vehicle. He pursued the vehicle, stopping it before it reached North Road. He parked behind the Pilot then walked forward to speak to the driver, Mr. Becker, whom he recognized although his notes from that evening say that he “later identified the driver as Becker”. [ 15 ] Cst. Todd admitted to having had a number of encounters with Mr.

Becker over the previous three or four years. He agreed that two or three weeks before this incident, he had stopped Mr. Becker driving the same Pilot. He also agreed that on that occasion he told Mr. Becker that he smelled marihuana, arrested Mr. Becker and read him his rights. He then searched Mr. Becker’s vehicle and because he only located what he considered to be remnants of marihuana, he released Mr. Becker without charge. He confirmed that he looked at Mr. Becker’s driver’s licence, including confirming that his address was accurate. No mention was made of the “N” that night. [ 16 ] Cst.

Todd testified that he only investigated the presence or absence of the “N” on March 7 th sometime after arresting Mr. Becker and searching the vehicle. He said that it was on the rear window, and because of the tint of the vehicle, was not “clearly displayed” as required. He did not, however, issue a ticket for failure to display. He admitted that he only told Mr. Becker that he stopped him because of the “N” about the time of putting him in his police car. [ 17 ] Mr. Becker testified to having dealings with Cst. Todd approximately 10 times during the past three to four years. He said that Cst.

Todd would often say that he smelled marihuana and then search him and his vehicle, without grounds and without advising him of his rights, apparently in violation of the Charter . The conversations testified to by Mr. Becker that took place during these detentions suggest that Cst. Todd was trying unsuccessfully to enlist him as a confidential informant. [ 18 ] Mr. Becker confirmed that during the stop a few weeks before the March 7 th arrest, he produced his driver’s licence that contained his Delestre Avenue address to Cst. Todd who commented to him that he would be around Mr.

Becker’s address looking for him. [ 19 ] Mr. Becker testified that on March 7 th , he drove out from his underground parking lot towards Delestre Avenue, where he had to make a very wide turn to avoid Cst. Todd’s unmarked police car. He said his “N” was displayed on the bottom right corner of his rear windshield, where it was visible through the slight window tint. He said that Cst. Todd’s emergency lights came on immediately after he passed the police car, and that he stopped as soon as he reasonably could. [ 20 ] He testified that Cst.

Todd told him he smelled marihuana while still at the rear corner of the Pilot before even reaching the driver’s window, and that he was told to get out of the car. Nothing was said to him about his driver’s licence or the “N”. He felt he had no choice but to comply with Cst. Todd’s instructions. He had obtained the card regarding not consenting to being searched or to being interrogated from a friend earlier, expressly to show it to Cst. Todd as a result of his previous dealings with him.

When he got out of the car, he described being searched as a “full-on search”, not just a pat-down, including going into his pockets. He testified that he was not told why he had been arrested until after being placed in the police car, when he was told that this was a drug investigation. He testified that he was never told of his right to counsel. [ 21 ] Mr. Becker said the money that was located in his pocket came from his disability cheque. He denied knowledge of the shotgun shell, saying that he did not even know what it was. He was allowed to call a friend to get his vehicle to avoid its being towed. Mr.

Becker testified that while waiting for the friend, Cst. Todd again offered him a deal this time to drop these charges in exchange for information. However, Mr. Becker said he refused the offer as he had nothing to exchange. [ 22 ] Mr. Becker further testified that he was wearing loose-fitting track pants that night, and that nothing would have been visible beneath them. [ 23 ] Admissions were made with respect to the facts of Mr.

Becker’s prohibition orders and his knowledge of them, as well as to the identification of and prohibited nature of the shotgun round, the cocaine, the marihuana and the counterfeit bills. Submissions: [ 24 ] Counsel on behalf of Mr. Becker argues that his Charter rights were violated repeatedly by Cst. Todd on that evening. Firstly, she says that the traffic stop for failure to display an “N” was used as a pretext for an actual investigation regarding drug possession. As such, the detention that resulted therefrom was an unlawful arbitrary detention, contrary to

Section 9 of the Charter. [ 25 ] Secondly, she argues, Mr. Becker’s

Section 10(

a) and (

b) rights were violated when Cst. Todd did not tell Mr. Becker immediately upon his detention why he had been stopped and his right to consult counsel. [ 26 ] Thirdly, counsel argues that the arrest for possession of marihuana based solely on the smell of marihuana was unlawful and arbitrary, contrary to

Section 9. [ 27 ] She next argues that the search of Mr. Becker and the search of the Pilot were unlawful and unreasonable as they were both incidental to an unlawful arrest, contrary to

Section 8 of the Charter . [ 28 ] Finally, she argues that the strip search of Mr. Becker at the Detachment was unreasonable and not justified in the circumstances, both because it was incident to an unlawful arrest and because the circumstances did not warrant a strip search, again contrary to

Section 8 of the Charter .

[ 29 ] Ultimately, she argues that the cumulative effect of all these breaches must result in the evidence being excluded pursuant to Section 24(2) of the Charter . [ 30 ] In support of these arguments, she submits that Cst. Todd simply was not credible in his evidence, particularly as it relates to his reasons for stopping the Pilot and his subsequent searches. She further submits that in the event of conflicts between the evidence of Cst. Todd and Mr. Becker that I should prefer the evidence of Mr. Becker. However, even if I were to accept the evidence of Cst.

Todd, I would still necessarily find that the arrest was unlawful and the searches unreasonable. [ 31 ] Crown Counsel agrees that Cst. Todd was not entitled to pull over Mr. Becker’s vehicle to conduct a drug investigation without having reasonable grounds. However, he argues that the stop was lawful as it was pursuant to the Motor Vehicles Act . He says that to believe otherwise would be to accept that Cst. Todd waited outside Mr. Becker’s apartment with the intention of stopping him and setting in motion a drug investigation, regardless of his having grounds or not.

While he acknowledges that there clearly were previous encounters between the two, he questions Mr. Becker’s recollection of what transpired. As such, he characterizes Mr. Becker’s descriptions of his previous encounters with Cst. Todd as self-serving and unreliable. He notes as well that it is not for Mr. Becker to determine whether or not Cst.

Todd had sufficient grounds to enter into his investigation. [ 32 ] In response to Defence Counsel’s submissions that the simple smell of marihuana is insufficient to arrest someone for possession and to search them, Crown Counsel refers to several Court of Appeal decisions where it was sufficient.

In doing so, Crown acknowledges that these cases inherently are close to the line, with little to distinguish between those which consider smell alone to be reasonable and probable grounds for arrest, and those which do not. [ 33 ] With respect to the strip search, Crown Counsel points to the continuing odour of marihuana from Mr.

Becker at the Detachment, the bulge in his pants, his history of drug activity, and his having been found in possession of marihuana earlier that evening at the roadside as circumstances which properly justify its being undertaken. [ 34 ] In the event that Charter breaches are found such that the arrest was unlawful and that the smell of marihuana is decided not to provide sufficient grounds, Crown Counsel argues that, following the analysis in R. v. Grant 2009 SCC 32 , the evidence should nonetheless be admitted.

He states that the pertinent factors including the seriousness of the infraction, the impact of the breach on the accused’s interest and society’s interest in having the matter decided on its merits, must be weighed in determining admissibility. He argues that in this case the seriousness of the infraction weighs heavily in favour of inclusion of the evidence given that Cst. Todd was clearly acting in good faith and following the line of Court of Appeal authorities that say that smell alone can justify an arrest.

The impact on the interests of the accused of the roadside searches including the pat-down search and vehicle search at roadside, while real, is arguably minimal. So although this factor would favour exclusion of the evidence, the breach would not have any impact on the integrity and reliability of the evidence. Finally society’s interest in the outcome of the matter would ordinarily favour inclusion of the evidence. As such, the evidence should be found to be admissible on the trial, notwithstanding any possible breaches.

Cases: [ 35 ] Counsel referred me to the following cases which I have read and considered in reaching my decision: Crown: • R. v. Schulz 2001 BCCA 601 • R. v. Taylor 2012 BCSC 1517 ; 2013 BCCA 382 (decided Aug 29/13) • R. v. Boyd 2013 BCCA 19 • R. v. B. (B.W.) 2002 BCCA 388 Defence: • R. v. McKennon [2004] O.J. No. 5021 (S.C.) • R. v. Paul [2004] O.J. No. 4917 (S.C.) • R. v. Ashby 2013 BCCA 334 • R. v. Brownridge 2000 BCSC 795 • R. v. Do 2006 BCSC 708 • R. v. Hoang 2003 BCPC 240 • R. v. Fuller 2004 BCPC 328 • R. v. Soroka 2004 BCPC 522 • R. v. Giang & Troung (unrep. 29 Aug, 2008, BCPC Pt. Coq #74262-1) • R. v.

Ruiz 2012 BCPC 457 • R. v. Joseph 2011 BCPC 147 Analysis:

[ 36 ] In evaluating the evidence, much hinges on whether or not I accept that the events unfolded as described by Cst. Todd. I am prepared to accept that he discovered a vehicle associated to someone of interest other than Mr. Becker parked outside the apartment towers on Delestre Avenue. I am also prepared to accept that it was reasonable for him to make his report regarding this finding while parked on the street in a location from where he could conveniently monitor the underground parking lot. I do not accept that it was simply a coincidence that all of these events transpired adjacent to Mr.

Becker’s residence in one of the towers. Rather, I find that the proximity to Mr. Becker’s residence was significant in accounting for Cst. Todd’s presence. I also find that as soon as Cst. Todd saw the Honda Pilot, he knew that it was Mr. Becker’s vehicle, and he began to give chase. I believe it to be highly probable that Cst. Todd was well aware of the location of the “N” on the rear of the Pilot, and that he became aware of it during the stop some two or three weeks earlier. By his own evidence, he checked Mr. Becker’s driver’s licence on that date and confirmed his residential address.

I do not believe that he would have failed to notice that Mr. Becker’s licence required that he display an “N”. Given that he arrested Mr. Becker on that occasion and searched his vehicle, he must have looked for and seen the “N”. I find that it is probable that Cst. Todd made at least a mental note of this information to use at a later date when he could use it to apparently justify a motor vehicle stop as he did on this occasion. [ 37 ] I do not accept that Cst. Todd believed that there was no “N” displayed. In fact, I find that he knew that it was displayed from his previous dealings with Mr. Becker.

In addition, if it were actually the reason for stop on March 7 th , he would not have been able to miss seeing it on the rear window given the lights, including emergency lights, from his own vehicle shining on the Pilot. I am satisfied that this explanation was indeed a ruse generated in an effort to provide a reason for a traffic stop, knowing that there were no reasonable grounds to enter into any other sort of investigation. Simply put, I accept the argument of counsel for Mr. Becker that the stop was not a traffic stop and was not authorized in law.

As such, it was an arbitrary detention clearly in violation of Mr. Becker’s

Section 9 rights. [ 38 ] The unlawful stopping of the vehicle provided Cst. Todd with the opportunity to detect the smell of vegetative marihuana. While I am prepared to accept that there may have been some odour apparent, I do not accept that it was any different from any of the other occasions where Cst. Todd arrested and searched Mr. Becker and searched his vehicle, including as recently as a couple of weeks earlier. As Cst.

Todd acknowledged, despite the odour of marihuana apparently coming from the vehicle at that time, he was only able to find a bit of residue – not enough for charges. [ 39 ] The arrest and search of Mr. Becker and the search of his vehicle at the scene all arose directly from the unlawful stop. All searches were described as being incidental to arrest. While it is clear that the smell of marihuana coming from a vehicle can be sufficient to justify an arrest for possession of marihuana, it must be considered in the context of all of the circumstances. Here Cst. Todd testified that he placed Mr.

Becker under arrest for possession of marihuana based only on the smell emanating from the Pilot. There was nothing additional to distinguish this stop from the previous arrest and search when nothing significant was found. No other grounds were provided until he testified as to his reasons for the strip search which were described as a continuing odour of marihuana coming from Mr. Becker at the Detachment, a distinct bulge in his groin area, the fact of having seized drugs at the scene (the 1.31 grams of marihuana), and “his history with drugs”.

No details were provided to substantiate the latter point. [ 40 ] In these circumstances, having found that the arrest was unlawful, I also find that the searches at the roadside were unreasonable, being incidental to that unlawful arrest. This finding also applies to the strip search at the Detachment.

While I find that the strip search itself was conducted in a reasonable manner, I find that the search was unreasonable for the same reasons as the earlier searches. [ 41 ] Having found that the evidence was obtained as a result of a series of Charter breaches, I must now consider the impact of Section 24(2) with respect to the admissibility of the evidence on the trial. [ 42 ] The Supreme Court of Canada, in R. v. Grant , supra , outlined the analysis to be undertaken when breaches of the Charter of Rights and Freedoms have been established.

This is set out in paragraph 71 as follows: …[the] 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…, (2) the impact of the breach on the Charter -protected interests of the accused…, and (3) society’s interest in the adjudication of the case 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 determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [ 43 ] Further pertinent statements are set out in paragraphs 74 and 75 of Grant , supra , as included in paragraph 40 of my decision in R. v. Joseph , supra. It is distressing that the behaviour and circumstances that lead to the exclusion of evidence in that case in a decision dating from 2011 is markedly similar to the circumstances in this case.

This is exacerbated by the fact that the same police officer was involved in both cases. [ 44 ] Crown Counsel has argued that Cst. Todd acted in good faith during this investigation. I find that hard to accept given that he appears to have learned nothing from the previous matter two years earlier.

Conclusion: [ 45 ] After considering all of the evidence, including the facts as I have found them, I am satisfied that the drugs, money, shotgun shell and counterfeit money were seized as the result of violations of Sections 8 , 9 and 10 of the Charter . [ 46 ] I am further satisfied that these violations were very serious given their number and, particularly, given their repetition. As noted in R. v.

Grant , supra , at paragraph 75 , “Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct.” Any breach can be understood to have an impact on the accused’s Charter -protected rights, especially searches of the person and more markedly, strip searches. [ 47 ] Ultimately society has a very real interest in having matters decided on their merits. However, in cases such as this, that interest

may be outweighed by the other factors set out above such that it would be the admission of this evidence rather than its exclusion which would bring the administration of justice into disrepute. [ 48 ] Accordingly, I find that the evidence which is the subject of this voir dire was obtained in violation of the Charter and that it is not saved by an analysis pursuant to Section 24(2) . It is therefore excluded from being evidence on this trial. ______________________________ The Honourable Judge D. Pothecary Provincial Court of British Columbia