R. v. Chan Date:, 2017 BCPC 108

Citation: R. v. Chan Date: 20170324 2017 BCPC 108 File No: 95289 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PAK WUN JASON CHAN RULING ON VOIR DIRE OF THE HONOURABLE JUDGE McQUILLAN Counsel for the Crown: F. Malik Counsel for the Defendant: A. Picard Place of Hearing: Port Coquitlam , B.C. Date of Hearing: December 14, 2016 Date of Judgment: March 24, 2017

[ 1 ] Pak Wun Jason Chan is charged with possession of marijuana, MDMA and cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act . Mr. Chan alleges breaches of sections 8 , 9 and 10 of the Charter of Rights in relation to his detention and arrest. A voir dire was held on those alleged Charter breaches on December 14, 2016. This is my ruling on the voir dire. Background Facts [ 2 ] Two police officers as well as Mr.

Chan testified on this voir dire. [ 3 ] RCMP Constable Queen testified that on August 8, 2015 he was conducting traffic enforcement duties in Maple Ridge at the intersection of 121 st Avenue and 216 th Street. This was a 4 way stop intersection a block and a half away from a High School. Constable Queen was in a marked police vehicle and was in full uniform at the time. He had parked his vehicle approximately 150-200 feet from the intersection such that he had a view of all 4 stop signs in the intersection.

He stated that he observed a black Mercedes vehicle proceeding north on 216 th Street go past the stop sign without first stopping. He states that it was not travelling at a high rate of speed but that it did fail to come to a complete stop. Constable Queen then turned on his lights and pulled over the Mercedes about a block away. [ 4 ] Upon pulling the Mercedes over he parked behind, got out and approached the driver’s side of the Mercedes. The driver provided his driver’s license to Constable Queen which indicated that he was the accused, Mr. Chan. Constable Queen explained to Mr.

Chan why he had pulled him over. He states that Mr. Chan was argumentative and did not agree that he had driven through the stop sign. Constable Queen then returned to his police vehicle and wrote up the ticket. He also ran the license plate for the Mercedes through the police and motor vehicle databases. He then returned to Mr. Chan’s vehicle and gave him the ticket. He states that upon returning to give him the ticket, Mr. Chan appeared unusually talkative. After giving him the ticket they continued to converse. During that continued conversation Constable Queen moved his head closer to Mr.

Chan, into the car window and at that point observed a faint odour of marijuana inside the vehicle which he had not previously noticed. No such odour was observed outside the vehicle. [ 5 ] Constable Queen then told Mr. Chan that he was under arrest for possession of marijuana and asked him to get out of the vehicle. He did not provide Mr. Chan with a Charter warning at that time. He stated in cross-examination that in most cases, if he only has a suspicion he does not provide a full Charter warning.

However, he also stated that when he detected the faint smell of marijuana in the vehicle he felt that he did have grounds for the arrest. He felt that the smell indicated that marijuana was possibly in the vehicle or on Mr. Chan’s person. He did not agree that his failure to provide Mr. Chan with a Charter warning immediately upon this initial arrest was a slip up on his part. [ 6 ] Constable Queen then conducted a search of Mr. Chan’s person but found nothing. A back up officer, Constable Cheung, then arrived. Constable Queen then proceeded to search the inside of the vehicle.

A black duffel bag was discovered in the rear seat of the vehicle. He opened the duffle bag and found a large Ziploc bag filled with marijuana inside the duffle bag. At that point, Constable Queen stopped his search of the vehicle and re-arrested Mr. Chan for possession of marijuana and told him that there could be further charges. He then continued the search and found two scales and a Ziploc bag containing smaller bags with white powder in them in the duffle bag. He also found a supplement container with Tupperware inside it with a bag inside it containing grey gel pack pills. He then re-arrested Mr.

Chan for possession for the purposes of trafficking. At that point he provided Mr. Chan with his Charter warnings. [ 7 ] Constable Queen estimates that there was a time lapse of approximately 10-15 minutes from the time of what he calls the “verbal arrest” to the time that he provided Mr. Chan with his Charter warning at 5:37 p.m. (according to his notes). He states that it was then less than a minute after he was rearrested for PPT when he provided the second Charter warning at 5:43 p.m. He states that following both warnings, Mr. Chan indicated that he did not want to contact a lawyer. He states that Mr.

Chan was cooperative throughout this process. There were no exigent circumstances or officer safety concerns apparent to Constable Queen at any time during this process. [ 8 ] Constable Cheung testified that she attended the scene as a backup following a report that there was a possible drug investigation at a traffic stop. When she arrived, she observed Mr. Chan exiting his vehicle through the driver’s side and then open the trunk. He identified himself to her as Jason Chan and then sat on the curb. She states that Constable Queen then found the duffel bag in the vehicle and then arrested Mr. Chan.

He was then placed in the police vehicle. Constable Cheung assisted with the search of the vehicle but found nothing further of note. She states that she can’t recall if she smelled marijuana at or in the vehicle, although she states that she did not make a written note of such a smell and that she normally takes thorough notes. [ 9 ] Constable Queen is a nine year member of the RCMP. He is currently with the Prolific Offenders Suppression Team. At the time of this alleged offence he was working in the traffic enforcement unit which he had been doing for approximately 1.5 months.

Prior to that he had worked in drug enforcement although he has no formal training regarding drugs. He states that he was involved in 4-5 marijuana grow op investigations as well as general duty investigations involving drugs. His experience with marijuana, and specifically detecting the odour of marijuana comes from his general duty work, grow op investigations and traffic stops where he has detected the odour. He states that he is able to distinguish between the odour of burnt marijuana and vegetative marijuana and that he was certain that he had smelled vegetative marijuana in Mr.

Chan’s car on August 8, 2015. [ 10 ] Mr. Chan testified. He stated that on August 8, 2015 he was travelling north on 216 th Street. He stated that when he arrived at the intersection with 121 st Avenue he came to a complete stop at the stop sign, looked both ways, and then proceeded through the intersection before being pulled over by Constable Queen. He states that he goes through that intersection 3-4 times per week and is very familiar with it. He acknowledges that he disagreed with Constable Queen that he had run through the stop sign and told him so.

He stated that he “obeys every rule” when it comes to traffic rules. [ 11 ] After pulling him over, Constable Queen then went to his police vehicle and returned 2-3 minutes later with the ticket. Mr. Chan then stated again that he should not be ticketed and asked that he be given a warning instead. Constable Queen would not oblige

and Mr. Chan then signed the ticket. However, they continued talking for another 2-3 minutes with Mr. Chan continuing to maintainthat he did not deserve the ticket. Mr. Chan indicates that Constable Queen then moved his head closer to his into his car window andthen said, “I smell marijuana. Get out of the car.” After he got out of the car, Constable Queen advised him that he was under arrest forthe possession of marijuana and was then placed in handcuffs. Mr.

Chan stated that he is familiar with the smell of marijuana because hesmokes it 3-4 times per week, primarily for medicinal use, and that there was no smell of marijuana in his vehicle on that date, althoughhe acknowledges that marijuana was found in the vehicle. Breach of

Section 9 [12] The first Charter breach alleged by Mr. Chan is that his

section 9 right to not be arbitrarily detained or imprisoned wasbreached when he was improperly pulled over at the intersection.

Section 9 states: 9. Everyone has the right not to be arbitrarily detained or imprisoned. [13] Mr. Chan states that he did not fail to stop at the stop sign and as such there was no valid reason for pulling him over and thusdetaining him. He states that his testimony on this issue should be preferred over that of Constable Queen and that his evidence wasclear and unshaken and that he recalled clearly the events of that day. He states that Constable Queen was less certain about whathappened that day and that his evidence was therefore unreliable and should not be preferred over that of Mr.

Chan. [14] I agree that if there had been no reason to pull Mr. Chan over, that would or at least could constitute a breach of his s. 9 Charterrights. However, Mr. Chan bears the burden in establishing a Charter breach on a balance of probabilities and I did not find theevidence of Constable Queen to be in any way unreliable on this point. He was very clear about the circumstances of his placement atthe intersection and his observation of Mr. Chan rolling through the stop sign.

Although Constable Queen acknowledged that there is anexpectation for officers to write 10 to 15 tickets each day, I accept his evidence that he did not invent an observation of this roll throughin order to meet any quota. At the time of this incident making these observations and ticketing accordingly was Constable Queen’s joband nothing in the evidence persuades me that he has made up this evidence or that his evidence is unreliable on this point. I find it morelikely that Mr. Chan is mistaken in his assertion that he did not stop at the stop sign, notwithstanding his assertion that he “follows all therules”.

As such, I do not find that there was a breach of s. 9 in relation to the initial detention of Mr. Chan when he was pulled over. Breach of

Section 8: Unreasonable Search [15] The second Charter breach alleged by Mr. Chan is that the act of Constable Queen putting his head inside the window of thevehicle after he had issued the traffic ticket constitutes a search, which in turn is a breach of his right to be secure against unreasonablesearch or seizure under s.

Section 8 states as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. [16] Mr. Chan states that once he was given the traffic ticket, that transaction was at an end and at that point Constable Queen hadno reason to then put his head into the window of Mr. Chan’s vehicle. He states that the act of putting his head into the window of thevehicle was a search. As there had been no arrest at that point, it was not a search incident to arrest. He points out that a warrantlesssearch is presumptively unreasonable. [17] The evidence was that after being handed the ticket, Mr.

Chan continued the discussion with Constable Queen, arguing that hedid not deserve the ticket. Constable Queen participated in this continued discussion but I am satisfied that it was Mr. Chan who wascontinuing to pursue the matter, rather than Constable Queen. Constable Queen did not recall how far away his head was from Mr. Chanduring this exchange although he stated that he put his head closer to Mr. Chan during this discussion. Mr. Chan stated that his head wasat first about 12 inches away from Constable Queen and then moved to about 5”-6” away when Constable Queen moved his head insidethe window frame.

It was at that point that Constable Queen stated that he detected a faint odour of marijuana and then directed Mr.Chan to get out of the vehicle. While the Crown states that Constable Queen detected the smell of marijuana outside of the vehicle andthen moved his head to within the vehicle, with respect, I do not believe that to have been his evidence. Rather his evidence was that hedid not smell marijuana outside the vehicle but only smelled it upon moving his head into the vehicle. As noted earlier, Mr.

Chan, notsurprisingly, testified that the inside of the vehicle did not smell like marijuana. [18] No authority was provided for the proposition that the act of Constable Queen moving his head within the window frame of thevehicle constitutes a search. Indeed in the circumstances of a police officer entering the interior space of a vehicle by putting his arm andhead into a vehicle in order to serve a traffic violation summons, it will be lawful: R. v. Guevera 2008 ABQB 53.

However, I do acceptthat in some situations this could constitute a search and I must look to the totality of the circumstances and the rationale of ConstableQueen as to why he found it necessary to protrude inside the vehicle. [19] The courts have held that while there is a diminished expectation of privacy in a motor vehicle as compared to a home or office,there is nonetheless some level of such an expectation: R v. Wise (SCC), [1992] 1 SCR 527 at para 7. [20] In the circumstances of this case, I do believe that what occurred did constitute a search.

The evidence was that the postticketing conversation between Mr. Chan and Constable Queen was initiated or at least driven by Mr. Chan in expressing hisdissatisfaction with having been issued a ticket. While there was nothing improper in Constable Queen continuing to participate in thatdiscussion, in my view, his moving his head within the window frame was not a necessary part of that conversation, even though he maynot have intended that as a search. At that point, he was not even suspicious of anything untoward.

The evidence did not disclose anyparticular purpose in moving his head inside the vehicle and, without some purpose connected to the reasons for the vehicle being pulledover, this would constitute a search. I do not believe his lack of intention to conduct a search undermines the fact that a search did in factoccur. [21] As such, I find that there was a breach of Mr. Chan’s s. 8 rights. Breach of s. 9: Legality of Arrest

[ 22 ] The third breach alleged by Mr. Chan was that the arrest of Mr. Chan at the time of his detecting the faint smell of marijuana was illegal, as there were insufficient grounds for the arrest. As such, it is argued, that this was a breach of s. 9 of the Charter of rights. [ 23 ]

Section 495 of the Criminal Code provides that 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 commit an indictable offence; or (

b) a person whom he finds committing a criminal offence… [ 24 ] No argument was advanced as to what subsection this arrest was made under. [ 25 ] The existence of reasonable and probable grounds for an arrest is both subjective and objective. The officer must have subjective grounds to believe the person has committed an offence, and the belief must be objectively reasonable. The subjective portion of the test is the officer’s own belief. Mr. Chan argues that the Crown has not met either prong of this test.

He says that the subjective part of the test is not met because Constable Queen was himself equivocal about his grounds for arrest. He testified in direct examination that he felt that he had reasonable grounds to make the initial arrest for possession of marijuana. However, in cross examination he stated that he merely had a suspicion that Mr. Chan was in possession of marijuana. [ 26 ] The Crown suggests that I should not approach the language used by Constable Queen in such a technical manner and that he clearly indicated that he was 100% certain that he smelled marijuana in the car.

That therefore formed the basis of his subjective belief of reasonable and probable grounds for the arrest, regardless of his statement in cross examination that he merely had a “suspicion” that Mr. Chan had marijuana in his possession. [ 27 ] Constable Queen is an experienced officer and I am satisfied that he did detect a faint odour of marijuana. However, he is also presumed to know the difference between suspicion and reasonable and probable grounds.

When cross-examined about why he did not provide a Charter warning at the time of the initial arrest, he indicated that in most cases if he only has a suspicion he does not give the full Charter warning. That appears to have been the case here and as such supports the view that he felt that he only had a suspicion. That goes beyond taking a technical approach to the language he used in his testimony and reflects what his subjective views were at the time. In essence he did not provide a Charter warning immediately as he felt that he was at the suspicion stage only.

Suspicion falls below the threshold of a subjective belief of reasonable and probable grounds required for a warrantless arrest. [ 28 ] The facts of this case are similar to those in R. v. Hoang 2003 BCPC 240 . In that case, a police officer had pulled over a vehicle driven by someone whom he had known from previous dealings.

He stated that his reason for pulling over the vehicle was not as a result of any motor vehicle infractions but rather to check the driver’s licence and registration and to ensure that the driver was abiding by any conditions he might have as a result of the officer’s previous dealings with him. The officer questioned Mr. Hoang about whether he had been in trouble with the law before and during this questioning was able to smell an odour of vegetative marijuana emanating from the vehicle. He then asked Hoang to get out of the vehicle whereupon he detained him for a drug investigation and searched him.

He did not formally arrest him at that time but stated that he believed that he had reasonable and probable grounds to do so, based on the smell that emanated from the vehicle. [ 29 ] The officer said that Hoang appeared nervous and his hands were visibly shaking during this interaction. The officer noted a button on the trunk which he pressed. The trunk popped open and there were two large bags in the trunk. The smell of vegetative marijuana emanated from the trunk. He then arrested Hoang for possession of marijuana for the purposes of trafficking.

A warrant to search the vehicle was obtained and the plastic bags in the trunk were found to contain 25 pounds of marijuana. [ 30 ] The court concluded at paragraphs 47-52: [47] I am also satisfied that when Hoang was asked to get out of his vehicle and stand near the rear, the officer did not have reasonable and probable grounds to arrest him. He had grounds for suspicion only. The officer's only stated basis for detention was the smell. The smell was not described as a strong smell, or a pungent smell.

The officer made no attempt to look in the passenger compartment of the vehicle for anything in plain view which might explain the smell. [48] Officer Romailler is very experienced. He knows the importance of note taking. I cannot be satisfied on balance of probability that he advised Hoang of his rights at the time of detention, because he made no note of doing so, and he has no recollection of what Hoang's responses were. I cannot be satisfied Hoang was chartered and warned at this time.

Yet the officer conducted a brief search of Hoang's person. [49] I am satisfied that the reason the officer did not arrest Hoang at this point is that he did not believe he had sufficient grounds. The officer did not get sufficient grounds until he looked in the trunk.

Romailler only arrested Hoang once he had opened the trunk and discovered what he believed to be large quantities of marijuana. [50] Even looking at the evidence objectively and including the discovery of $590 and a cell phone on Hoang and coupling that with the admission of smoking marihuana at Metrotown and the trembling hands (none of which the officer stated he based his grounds on), I conclude there are still only grounds for suspicion given the minimal evidence of smell.

I note in any event that the additional evidence; money, cell phone and Hoang's admission and trembling hands only arose after Hoang was unlawfully detained, the requirements under the Motor Vehicle Act being fulfilled. [51] In the Polashek case the officer did not make his arrest solely on the basis of odour, there were other factors. In Polashek the court discussed at the top of page 4 the difficulty with the evidence of smell: ...The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer.

By their nature, smells are transitory and thus largely incapable of objective verification. A smell will often leave no trace.

[52] In

summary, I am satisfied that once Hoang provided his driver's licence and registration his continued detention was not lawful. This continued unlawful detention allowed the officer to note the odour of vegetative marijuana. However, this by itself could only produce a suspicion on the part of the officer. The arrest not being supportable on the evidence prior to the trunk being opened means the search of the vehicle was also unlawful. [ 31 ] I do not mean to suggest that Constable Queen was continuing to detain Mr. Chan after he issued the traffic ticket.

However, Constable Queen clearly had only a suspicion at the time of the detention and purported arrest of Mr. Chan, not reasonable and probable grounds. [ 32 ] I acknowledge that in some circumstances the odour of marijuana alone may be sufficient to ground a credible belief that the offence of possession of marijuana is being committed. That was the conclusion of the BCCA in R. v MacCannell 2014 BCCA 254 . In that case, the court concluded that the question of whether evidence of odour only would support an arrest was not a question of law but rather was one that turned on the factual matrix in each case.

Odour alone may be sufficient to support an arrest. Quoting with approval from R. v. Taylor 2013 BCCA 382 (at para 16 ): As I have said above, Mr. Taylor wants this court to make it a proposition of law that the odour of marihuana alone can never be sufficient to found a lawful arrest and search. I do not consider that to be a proposition of law and I do not see how the argument could succeed.

In a particular case, if the dominant fact supporting the arrest is the odour of marihuana (as it usually will be), the question would be whether the evidence in its entirety was sufficient to support the conclusion that the arresting police officer acted objectively. Each case must be decided on its particular constellation of facts and circumstances, not on a general binding appellate judicial statement as to what evidence is or is not sufficient in all cases. [ 33 ] However, that relates to the second stage of the assessment of the arrest; being whether it was objectively reasonable.

It is difficult to see how I can address that second stage when the first subjective stage has not been met. I further note that in McCannell there was an overpowering smell of marijuana. In the present case there was a faint smell of marijuana. Nor can it be said that there was a “strong smell of marijuana emanating from the vehicle” which founded objectively reasonable grounds in R. v. Acosta 2014 BCCA 218 .

In the present case the smell was faint, and could not be said to have been “emanating from the vehicle” but in fact was contained within the vehicle. [ 34 ] In any event, even if I were permitted to analyze the factual matrix under the second stage of the assessment, being whether there are objectively reasonable and probable grounds for the arrest, I am not satisfied that the facts support such a finding. I must look at the totality of the circumstances to determine the reasonableness. In this case there was only the faint smell of marijuana alone, with no other supportive indicia.

As such, there were not objectively reasonable grounds for the arrest. The circumstances are similar to those in R. v. Do 2006 BCSC 708 where the court stated at para 73-74: [73] On all of this evidence, I find that the odour of marihuana emanating from the vehicle was faint, as described by Constable Sielsky. I find further that the constellation of circumstances known to the officers before the first search of the vehicle by Constable Sielsky was not sufficient to constitute reasonable grounds to arrest any of the accused.

I find that the officers had, at most, a suspicion that evidence of an offence might be found in the vehicle when Constable Sielsky began his search. This finding is supported by the fact that the evidence of Constable Sielsky, the arresting officer, was that he did not make an arrest until after he had commenced his search and after he had discovered the evidence he sought to justify the arrest.

Rather than seeking evidence to use against the person or persons he had arrested, Constable Sielsky first searched for evidence, without warrant, then arrested for the offence only after he had found what he was looking for. [74] I have not lost sight of the evidence of both officers that, before any search of he [sic] vehicle began, each independently believed the accused was or had committed a crime. Constable Sielsky said it was trafficking in a controlled substance, Constable Dadwal said it was possession of a controlled substance.

I find that in the mind of neither officer did that belief rise above the level of a suspicion, based on the undeniable fact that neither purported to act on their belief by way of effecting an arrest. There was therefore neither subjective nor objective grounds for arrest before the search began. [ 35 ] In essence, Constable Queen did a partial arrest based on his suspicion and then began his search of the vehicle. Since the arrest was not justifiable based on suspicion only, as in R. v. Do , the ensuing search was not incident to arrest.

As such, I find that there has been a breach of s. 9 in relation to the original arrest. Furthermore, there was a breach of s. 8 as the search was illegal, based as it was on an illegal arrest. Alleged Breach of s. 10(b): Delay in advising of Right to Counsel [ 36 ] The fourth Charter breach alleged is that Constable Queen failed to advise Mr. Chan of his Charter rights immediately upon his arrest and as such there was a breach of s. 10(

b) of the Charter .

Section 10(

b) states: 10. Everyone has the right on arrest or detention … (

b) to retain and instruct counsel without delay and to be informed of that right; … [ 37 ] Constable Queen acknowledges that he did not provide Mr. Chan with his Charter warning following the initial arrest and prior to him commencing a search of the vehicle. The first time that he provided him with this warning was following the second arrest after he had found the Ziploc bag of marijuana in the vehicle. There were no exigent circumstances pointed to that justified a delay.

The Crown acknowledges that there was a delay but states that the delay was not excessive and was less than 30 minutes and likely far less than that. Constable Queen testified that there was a time lapse of 10-15 minutes from the time of his initial arrest until he provided the

Charter warning. [ 38 ]

Section 10 requires that the caution be provided “without delay”. That means immediately. The immediacy of the obligation is subject only to concerns about officer or public safety or reasonable limitations prescribed by law: R. v. Suberu 2009 SCC. [ 39 ] In the circumstances of this case, the delay was not undue, although it is difficult to say that it was “immediately”. The fact that the caution was provided only after the initial search of the vehicle following the initial arrest, and after the marijuana had been found, is a concern. I find that such a delay, without some justification, does constitute a breach of Mr. Chan’s rights under s. 10(

b) of the Charter . As such, I find that there was a breach of his s. 10(

b) right. [ 40 ] In

summary, I find that there have been breaches of s. 8 , 9 and 10(

b) of the Charter in this case.