R. v. Fasogiannis Date:, 2014 BCPC 106

Citation: R. v. Fasogiannis Date: 20140528 2014 BCPC 0106 File No: 90750-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALEXANDER DEMETRIOS FASOGIANNIS RULING ON VOIR DIRE OF THE HONOURABLE JUDGE BULLER BENNETT Counsel for the Crown: A. Whitlam Counsel for the Accused: J. Dunne Place of Hearing: Port Coquitlam , B.C.

Dates of Hearing: May 13 th & 14 th , 2014 Date of Judgment: May 28, 2014 [ 1 ] THE COURT : This is a ruling on a voir dire . [ 2 ] Mr. Fasogiannis asserts that his rights under ss. 8 and 9 of the Charter of Rights and Freedoms were breached by the police on April 3rd, 2013 when he was arrested. As a result, he seeks exclusion of evidence seized by police pursuant to that arrest.

However, I note for the record that counsel has asked that they not give submissions on exclusion until after they have heard this ruling. [ 3 ] The evidence on the voir dire is as follows. [ 4 ] Much turns, or all turns, really on the evidence of Constable Parsons who arrested Mr. Fasogiannis. As of April 2013, Constable Parsons had been a member of the RCMP for about six years. When he arrested Mr. Fasogiannis, Constable Parsons had about two and a-half years' experience on the Coquitlam Detachment Drug Suppression Team.

His work involved investigations of Controlled Drugs and Substances Act ("CDSA") offences, chronic offenders, as well as what he described as "hot spots" for Criminal Code and CDSA offences. [ 5 ] Constable Parsons had completed over 300 drug investigations at all levels of drug activity including some undercover work. His experience included over 200 dial-a-dope investigations. Constable Parsons had worked in all capacities in these investigations from being the primary investigator to working on investigations and back up.

Further, as part of his training, he had watched videos of undercover drug deals with senior drug members and he had also spent one day in the downtown eastside observing drug transactions. [ 6 ] This is an overview of what occurred on April 3rd, 2013. [ 7 ] Constable Parsons was on duty, in uniform, in an unmarked police car. He was the passenger in the car and Constable Todd was the driver. At about 10:55 p.m., they were driving westbound on Prairie Avenue in Port Coquitlam.

Constable Parsons saw a red Hyundai Accent car parked facing east on the south side of the 2100-block of Prairie Avenue. [ 8 ] Constable Parsons immediately recognized Mr. Fasogiannis as the driver he was curious about what Mr. Fasogiannis was doing at the time. [ 9 ] As far as Constable Parsons was concerned, Mr. Fasogiannis was a known drug trafficker. This was based on an investigation that occurred on March 23rd, 2012 when Constable Parsons conducted a drug trafficking investigation involving Mr. Fasogiannis. He arrested and searched Mr.

Fasogiannis on that date however there were no drugs located and no charges. [ 10 ] At other times, Constable Parsons had seen Mr. Fasogiannis conduct hand-to-hand drug deals in front of his own house more than 12 times. [ 11 ] Further, Constable Parsons had stopped Mr. Fasogiannis about five or six other times although he could not remember if he arrested and searched Mr. Fasogiannis and his vehicle each time. There were no charges and no PRIME database entries. PRIME is a police computer database used to record details of individuals, charges laid, charges forwarded, things of that nature. [ 12 ] Mr.

Fasogiannis did testify on the voir dire and he said that when he was stopped by Constable Parsons he was always arrested and both himself and his vehicle were searched. No drugs were found. [ 13 ] After becoming curious about what Mr. Fasogiannis was doing, Constable Todd did a U-turn. At the same time, Constable Parsons saw an older, Caucasian woman dressed in a bathrobe and without shoes, enter the passenger side of the Hyundai. The Hyundai left, going around the block. Constable Todd followed the Hyundai.

While doing so, Constable Parsons queried the licence plate on the vehicle and it came back registered to a company by the name of WTH Rentals. [ 14 ] According to Constable Parsons, drug dealers are known to use rental vehicles to conduct their deals. Mr. Fasogiannis had used rental vehicles before when he conducted the drug transactions in front of Constable Parsons' house. Constable Parsons knew this because he checked the licence plates of the vehicles that Mr.

Fasogiannis was in when he did the drug deals in front of his house. [ 15 ] Constable Parsons and Constable Todd followed the Hyundai and using the police car's speedometer, determined that the Hyundai was travelling over the posted speed limit. This of course is an offence under the Motor Vehicle Act , so Constable Todd activated the emergency lights and siren. [ 16 ] Mr. Fasogiannis stopped his vehicle just beyond the stop line at a stop sign.

According to both police officers, but especially Constable Todd, this was a further offence under the Motor Vehicle Act . [ 17 ] Although the vehicle was stopped pursuant to the Motor Vehicle Act , this was what is often called a "dual purpose stop" because Constable Parsons believed that there was a possible drug transaction going on in the car. [ 18 ] When the vehicle stopped, Constable Parsons saw Mr. Fasogiannis put his right arm up to his face. Constable Parsons believed that Mr. Fasogiannis was swallowing drugs as he had allegedly done on March 23rd, 2012.

As a result of all of these observations, Constable Parsons then believed that Mr. Fasogiannis was in possession of drugs. [ 19 ] Constable Parsons immediately removed Mr. Fasogiannis from the Hyundai and arrested him for possession of a narcotic.

After searching the vehicle pursuant to that arrest, Constable Parsons arrested Mr. Fasogiannis for possession for the purpose of trafficking. [ 20 ] Constable Todd dealt with the unknown female passenger. She was released at the scene, and allowed to walk home without shoes, at night. [ 21 ] Constable Parsons described his grounds for arrest as follows. Based on the totality of the following factors, he believed he had the grounds to arrest: 1. Mr. Fasogiannis was a known drug trafficker; 2. drug traffickers use rental vehicles; 3. Mr. Fasogiannis was driving a rental vehicle that evening; 4. Mr.

Fasogiannis was known to use rental vehicles when he sold drugs; 5. The observations followed the typical pattern of a customer getting into the car, then the drug transaction taking place while the car is moving and then the passenger is dropped off; 6. The car was speeding; 7. And finally, Constable Parsons said he saw Mr. Fasogiannis swallow something, and that Mr. Fasogiannis had a history of swallowing drugs. [ 22 ] On cross-examination and further evidence, Constable Parsons amplified his grounds as follows. [ 23 ] First, turning to his ground that Mr.

Fasogiannis was a known drug trafficker, Constable Parsons said in his testimony that his home had a balcony overlooking the vehicle in question. He saw what he believed to be hand-to-hand drug transactions in a car that sometimes was a rental vehicle. On all occasions, Mr. Fasogiannis was the driver. Constable Parsons said he observed this more than a dozen times when he was off duty. [ 24 ] He also testified that he recorded the licence plate numbers of the vehicles on each occasion in his own cell phone and then advised his team members of the licence plate numbers.

He also checked the licence plate numbers and found some were rental vehicles. Later, once he had advised his team members and done licence plate checks, he deleted the licence plate numbers from his cell phone. [ 25 ] He made no notes of his observations; there were no dates of these observations; there were no notes in the PRIME computer database about these observations and licence plate checks that at least I am aware of. He did not advise other RCMP members as and when the deals were occurring because as he said the deal would be over by the time they arrived.

The first time his observations and actions were disclosed was in his testimony in court. [ 26 ] I noted that in cross-examination Constable Parsons seemed less certain about his observations. He stated in cross-examination that he “suspected” it was a hand-to-hand drug deal that occurred in front of his house. Constable Parsons agreed that the observations of the hand-to-hand actions in the car in front of his house were as consistent with being the buyer as much as being the seller. Constable Parsons did not explain why he specifically believed that Mr.

Fasogiannis was the seller and not the buyer. [ 27 ] Constable Parsons did state that he had stopped Mr. Fasogiannis in the past other than or in addition to the March 23rd, 2012 date but there were no charges. He could not remember specifically whether he searched Mr. Fasogiannis each time, and again there were no notes and no entries in PRIME. [ 28 ] Mr. Fasogiannis testified that each time he was stopped by the police he was arrested and searched, his vehicle was searched, and no drugs were found. [ 29 ] Constable Parsons did testify that Mr.

Fasogiannis did not have a criminal record and that there were no prior drug charges. [ 30 ] Constable Parsons did know at the time of the arrest that Mr. Fasogiannis had been previously stopped by the Port Moody Police. He was found to be in possession of a small amount of cocaine. That cocaine was disposed of at the scene and noted that there were no charges. [ 31 ] Mr. Fasogiannis is an admitted cocaine user but Constable Parsons seemed to be the only one who was not sure whether Mr. Fasogiannis was indeed a user. [ 32 ] Mr.

Fasogiannis was driving a rental car on April 3, 2013, but at the time of this stop the police did not know whether Mr. Fasogiannis had rented the car or whether somebody else had. [ 33 ] I do accept Constable Parsons' evidence that drug traffickers do drive rental vehicles for the purpose of carrying out transactions and to also avoid having their vehicles impounded. However, Constable Parsons did admit that non-drug traffickers also drive rental vehicles. [ 34 ] Constable Parsons testified that Mr. Fasogiannis was known to drive rental vehicles when selling drugs or trafficking in drugs,

but when he was stopped in the year prior, he was driving his own vehicle. Again, there are no notes or entries in PRIME or no other hard evidence in my view to corroborateConstable Parsons' belief that Mr. Fasogiannis was driving rental vehicles in the past for the purpose of trafficking in drugs. [35] I accept Constable Parsons' testimony that it is a typical scenario that the trafficker will pick up a passenger, in other words, acustomer, and drive to keep the car in motion during a hand-to-hand transaction, in order to avoid detection by the police.

However, inthis case, the police had no knowledge of the female, whatsoever. [36] I accept also Constable Parsons' evidence that drug traffickers will often just drive around the block in order to carry out thedrug transaction, but in this case the vehicle that Mr. Fasogiannis was driving was stopped before, as the police officers described, hecompleted the square. [37] Mr.

Fasogiannis gave an explanation for what he was doing, that in my view is just as believable as the typical transaction ormethod of trafficking as described by the police officers. [38] Constable Parsons described one of his grounds for the arrest was that the vehicle was speeding. In my view, it probably wasspeeding, but Constable Parsons was not able to provide a suitable answer as to why speeding would be an indication of being inpossession of drugs. Why would a drug trafficker want to attract the attention of police by speeding?

In other words, this ground isprobative of nothing about drug trafficking in my view. [39] Constable Parsons said that he saw Mr. Fasogiannis swallow drugs. Then later on in his testimony he resiled from that positionsomewhat and said he believed that he saw Mr. Fasogiannis swallow drugs. However, Constable Parsons agreed that he saw Mr. Fasogiannis' hand go to his face from behind,at least one car length distance behind, and in very limited lighting. He said, in fact, that he only saw Mr. Fasogiannis' arm go towardsMr. Fasogiannis' face. Therefore, Constable Parsons could not have seen any actual swallowing.

He conceded that he could not seeMr. Fasogiannis' hand and what, if anything, Mr. Fasogiannis had in his hand. Constable Parsons did not see Mr. Fasogiannis drinkanything. This “swallowing” was a mere suspicion only, in my view. [40] Because of the belief that Mr. Fasogiannis had swallowed drugs, Constable Parsons said that he offered Mr. Fasogiannismedical attention but there was no note anywhere of this offer. One would think that in order to avoid a liability issue, there would be aclear note made of such an offer. [41] Constable Parsons said that Mr.

Fasogiannis had swallowed drugs on the previous March, 2012, investigation. Mr. Fasogiannisdenied doing so. [42] Mr. Fasogiannis said that he reached towards the back of the passenger seat as he turned around to look at the police car behindhim and that Constable Parsons was mistaken. [43] I note that in this case there was no observation of any hand-to-hand transaction. There were no drugs or paraphernalia in plainview in the vehicle. There was no smell of any drugs. There was no obvious dropping of drugs on the ground or being thrown out of thewindow. [44] Turning now to my analysis. [45]

Section 9 of the Charter states that: 9. Everyone has the right not to be arbitrarily detained or imprisoned. [46] Counsel have referred to several cases and I will read the citations into the record. I have read all of the cases and consideredthem in my decision. [47] Crown has provided R. v. Schmidt, 2001 BCCA 3; R. v. Ghorvai, (ON CA), [1999] O.J. No. 3241; R. v.Debot, ]1999] 2 S.C.R. 1140; R. v. Wilson, 2012 BCCA 517; R. v. Juan, 2007 BCCA 351; R. v. Parchment, 2005 BCSC 1871; R. v.Parchment, 2007 BCCA 326; R. v. Luong, 2010 BCCA 158; R. v. Perjalian, 2011 BCCA 323; R. v. Tran, 2007 BCCA 491; R. v.

Wan,2008 BCSC 268. [48] Defence has provided R. v. Chong, [2013] B.C.J. No. 1070 a decision of my colleague, Judge Woods. Defence counsel alsoprovided R. v. Joseph, [2011] B.C.J. No. 1232 a decision of my colleague, Judge Pothecary, and R. v. Becker, [2013] B.C.J. No. 2329also a decision of my colleague, Judge Pothecary. I have also been referred to the seminal case of R. v. Storrey, (SCC),[1990] 1 S.C.R. 241. [49] There are basic principles of law that apply. [50] Mr. Fasogiannis, of course, must prove breaches of his rights under the Charter on a balance of probabilities. [51] Defence counsel says that Mr.

Fasogiannis was arbitrarily detained and unlawfully searched. Crown maintains that this was alawful arrest and lawful search under the Charter. [52] Of course, this was an arrest without a warrant so the arrest is presumed to be unreasonable. The Crown, however, can rebut

that presumption by proving on a balance of probabilities that the requisite grounds did exist to arrest pursuant to s. 495 of the Criminal Code . [ 53 ] This analysis requires both a subjective analysis and objective analysis. [ 54 ] I do accept that there were grounds to stop the vehicle under the Motor Vehicle Act . The real issue is whether there were grounds to arrest. [ 55 ] Constable Parsons believed that he had the requisite grounds to arrest without a warrant so the subjective part of the test is met. [ 56 ] Turning now to the objective test. [ 57 ] From that perspective, was Mr.

Fasogiannis a known drug trafficker? Of course, the analysis on an objective basis requires the trier to stand in the place of a reasonable person standing in the place of the experienced police officer. So, objectively did Constable Parsons have the grounds to believe that Mr. Fasogiannis was a known drug trafficker? My answer to this question is no. [ 58 ] At best, Mr. Fasogiannis was a suspected drug trafficker for the following reasons. [ 59 ] About six times prior, Mr. Fasogiannis was pulled over in the vehicle that he was driving. There was no timeframe for those occurrences.

So, it is impossible to tell whether this is fresh information. One time there was a stop in March of 2012, but that was a year earlier and in my view not current information. Even if it was current information there was no charge at that time. [ 60 ] Constable Parsons could not remember if he arrested and then searched Mr. Fasogiannis and his vehicle each time. This cuts both ways. If he cannot remember, then these cannot be part of his grounds. If he does remember, one has to wonder why there were no charges laid and no PRIME reports.

Either way, this is difficult evidence to accept as being part of Constable Parsons' grounds. [ 61 ] I do not accept Constable Parsons' observations from his home as those observations, in my view, were untrustworthy for these reasons: the first time these observations were ever disclosed was in court; this part of his evidence was very important to the Crown's case; he resiled from his initial position from being certain that these were hand-to-hand drug transactions to being suspected hand-to- hand transactions; and again, I do not know the timeframe of these observations and the number of times.

It is difficult to ascertain whether this was fresh or dated information. The observations are especially untrustworthy as they were not recorded anywhere. [ 62 ] The Hyundai vehicle that Mr. Fasogiannis was driving was a rental vehicle but the police did not know whether he rented it. When he was stopped a year prior, he was driving his mother's car. In my view, the evidence does not establish that Mr. Fasogiannis had a pattern of renting vehicles for the purpose of trafficking drugs or driving that particular rental vehicle. [ 63 ] The police officers had no knowledge of the woman who got into the car with Mr.

Fasogiannis. Again, this does not support the belief that there was going to be a drug transaction occurring in the car. In my view, speeding is not indicative of anything to do with drug trafficking. [ 64 ] I have to conclude on the evidence that Constable Parsons could not have seen Mr. Fasogiannis swallow anything. [ 65 ] I am well aware that the Crown need not establish a prima facie case but rather reasonable and probable grounds to believe.

However, from an objective perspective, being a reasonable person standing in the place of an experienced police officer, the evidence barely establishes a suspicion that Mr. Fasogiannis was in possession of drugs and falls well short of the requisite reasonable and probable grounds to arrest Mr. Fasogiannis without warrant. [ 66 ] Therefore, I do find that the arrest was unlawful, entirely arbitrary, and contrary to s. 9 of the Charter . It follows then that any items seized pursuant to the unlawful arrest were done so contrary to s. 8 of the Charter . (ORAL REASONS FOR JUDGMENT CONCLUDED)