HMTQ v. Carlson Date:, 2003 BCSC 593

Citation: HMTQ v. Carlson Date: 20030321 2003 BCSC 593 Docket: X061823 Registry: New Westminster IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Reasons for Judgment The Honourable Madam Justice Smith March 21, 2003 HER MAJESTY THE QUEEN AGAINST LINDH DALE CARLSON Counsel for Crown B. Smith Counsel for Defendant P.E. Briggs Place and Date of Hearing: Vancouver, B.C.

March 21, 2003 [ 1 ] THE COURT: Lindh Carlson is charged with one count of possession of marijuana for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , R.S.C. 1996, c. 19 . [ 2 ] This is my ruling on a voir dire regarding the admissibility of certain evidence. The defence seeks exclusion of the evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms , on the basis of alleged infringements of the accused’s rights under ss. 8 , 9 and 10(

b) of the Charter . [ 3 ] Constable Gidda, of the Royal Canadian Mounted Police, testified that she has been working for the Surrey Detachment since 1995 and that she has become familiar, through her training and experience, with the smell of marijuana in its vegetative state and with the smell of burning marijuana. [ 4 ] On December 22nd, 2000, at about 10:00 a.m., she was asked to attend at 121 and 100A Avenue in Surrey and attempt to locate a suspicious vehicle. Apparently a van with two male occupants was at that location.

One of the men had told a resident of the area that they were the Surrey RCMP “Green Team” and that they were waiting for a police dog so that they could do a “bust” across the street. When the complainant asked the two men for identification, they fled the area in the van. They were described as a Caucasian male and an Indo-Canadian male in a white van. [ 5 ] Constable Gidda took about five to ten minutes to reach the intersection. She then drove up and down streets and past the complainant’s residence as well as the address that the men in the van had been interested in, namely 12166 101A Avenue.

The complainant lived directly across the street. Constable Gidda was in uniform and in a marked police car. [ 6 ] The Constable observed several vehicles in the driveway of that residence, including an older brown van, and several people milling about the driveway, going in and out of the residence and talking in the driveway. She parked at the end of the street in a cul-de- sac. She testified that she felt that the white van she was looking for might return to that street.

She sat in the cul-de-sac for 10 to 15 minutes, finishing up some paperwork related to other files, and watching the driveway periodically. [ 7 ] Constable Gidda testified that at some point the complainant approached her vehicle, explained what he had seen and heard, and said that there was a little more activity at 12166 101A Avenue than he had seen before. She was asked if that seemed suspicious and she said, “No.” The complainant asked Constable Gidda to stay in the area for a while, which she did. [ 8 ] Two vehicles came past her onto the side street.

Then the brown van that had been parked in the driveway pulled out and headed westbound away from the residence. The Constable said that she noticed that the van had an Alberta licence plate and that there was only one screw or divot holding the licence plate, causing the licence plate to swing back and forth as the vehicle was being driven. She testified that, in her experience, it was not uncommon when a vehicle needs to be transported or there is no insurance on a vehicle that plates which do not belong to the vehicle are placed on it.

She said that that fact and that it was an Alberta licence plate were “a good red flag.” [ 9 ] Asked about the usual practice when there is a concern about vehicle insurance, Constable Gidda said that she activates emergency equipment, pulls over the vehicle, then notifies dispatch and gives them the licence plate.

[ 10 ] She said that is exactly what she did here. She followed the van, activated her emergency equipment, and required it to stop. She then notified the dispatcher of the stop and provided her with the licence plate. She approached the van to check for a valid driver’s licence and ask for registration. She was wearing a sidearm which was holstered. The male driver was alone in the van. She identified him as the accused.

She noted that a smell emanated from the vehicle window which she said was an immediate and intense smell, and said she formed the opinion that it was raw marijuana. [ 11 ] Her evidence was that, after asking the accused to get out of the vehicle, she advised him that he was under arrest for possession of marijuana and recited off the top of her head his Charter rights and warning. She said that she looked into the front of the vehicle and then, by stepping into the driver’s side, looked into the back and observed about 100 marijuana plants in pots filling the back compartment.

She said that there was no divider between the front and back of the van. [ 12 ] Constable Gidda testified that before the accused was placed in the rear of her police vehicle, he made one comment to her. She said that he stated, “I’ll come clean. The whole back is full.” She testified that she had made no promises or threats, nor asked any questions of him, and that her dealings with the accused were actually very pleasant. She testified that she had already observed the marijuana plants in the back and that she took him to be confirming that, indeed, the rear of the van was full of marijuana plants.

She then went to the rear of the van and tried the door lock, explaining that she wanted to see if the whole back was full of plants and to see if anything else, such as a weapon, was there. Unable to get the rear door open, she had Mr. Carlson assist in opening it. She then saw that the entire back of the van was full of one-and-a-half to two-foot high marijuana plants. [ 13 ] Once the accused was in her police vehicle, she said that she “chartered and warned him” from the police-issued card. Her supervisor, Corporal Yake, attended, as well as other units.

Eventually, Constable Gidda and Constable Dhaliwal entered the van and took custody of the plants. She said that there were 135 of them. A sample was taken, which was apparently subsequently confirmed to be marijuana. [ 14 ] On cross-examination, Constable Gidda testified that she did not have a printout of the electronic computerized dispatch ticket, nor did she write down in her police notebook the information she received from dispatch or from the complainant.

She agreed that when participating in investigations of possible marijuana grow houses, sometimes there is information which causes simple surveillance of the residence for a time, to see if it has blinds covering the windows and the like, and that if there are vehicles parked at the address, it is normal to run the licence plates on the police computer to see if the owners of the vehicles have drug records or if they are properly licensed. [ 15 ] With respect to her observations of the residence before she followed and stopped the accused, Constable Gidda testified on cross- examination that there were two or three smaller vehicles as well as the van at the residence.

She said that she believed that she ran the licence plates on the two vehicles that came out of the residence while she was parked in the cul-de-sac, although she did not run the licence plate on the brown van. She said that she received back information about those licence plate numbers before she stopped the van.

She denied that when the complainant came up to her car he said that he was concerned that the residence was a drug house; rather, she said, he was concerned about the white van and the people impersonating police officers. [ 16 ] Constable Gidda’s notes contained information about four vehicles’ registered owners. One note referred to a Douglas Roland Morris, with an Edmonton address, and the licence plate number of the brown van. On the next page of her notes is the Charter warning and the name of the accused.

It was put to her that the sequence in the notes showed that she had already run the licence plate of the van and received back the information about the owner before she stopped the van. She stated that she did not believe that was the way it happened. Instead, she said that she could have left a space and inserted the information later, after she had stopped the van. [ 17 ] Constable Gidda agreed that she did not give a ticket to the owner of the van, if that was Mr. Carlson, for improperly displaying the licence plate.

She agreed that she did not receive any information from the computer suggesting that this was a stolen vehicle. Constable Gidda agreed that sometimes partial information is received and it would not be unusual to follow up with a brown van if a suspicious white van had been reported.

The following occurred in cross-examination: Q So despite the fact that you got information from a concerned neighbour about people trying to be the Green Team, or in a suspicious van, despite the fact that there was this activity around, you were never suspicious that this particular van you were stopping had anything to do with a drug house? A No, I wasn’t stopping it for -- for that purpose. Q And even though you had a name and an address for the owner, which appears to be put in before you stopped the van, you weren’t sure if the van was properly licensed, correct? A That’s correct.

Later in cross-examination: Q Now, although you don’t remember whether or not the driver rolled the window down or you knocked, the window did come down and you essentially asked the driver for a licence and registration, correct? A That’s correct. Q And do you recall if he gave you those? A I don’t recall if he did or not. Q So you don’t recall if you actually were able to check to see if the driver of the van actually was connected up with the licence and

registration of the van. You never did that check? A It was quite obvious later on, but no, at that time, no, I didn’t. Like I said, I don’t recall if he actually did produce a registration. Q But it wasn’t even at that time, is what you’re telling us, that you did that check?

A Like I said, that information would have been inputted, and when it came back -- I can’t tell you when it came back, due to technical difficulties with that computer. [ 18 ] Constable Gidda agreed that she made no note of the smell at the time, and that in her Report to Crown Counsel she said that she received a waft of a smell known to her as marijuana. She agreed that Mr. Carlson was compliant with her directions and that she did not identify any unusual safety concerns in the situation.

She further agreed that even though she had the situation under control and he was being compliant, it did not occur to her to get a warrant to search the vehicle. [ 19 ] The Constable agreed that a statement by an accused is normally something that she would write in her notebook, but that she had not made any note of the statement she said that the accused had made in this case. [ 20 ] She testified that she was absolutely convinced that there was marijuana in the vehicle because of the smell and that she did not ask Mr. Carlson about the smell.

The following cross-examination occurred: Q So in this case, how could you tell that marijuana had -- had been in the vehicle for any length of time? You hadn’t observed it very long, right? You observed it for 10 minutes, correct, previous to stopping it? A Yeah, 10 to -- yeah, I -- I didn’t know at the time I stopped that there was marijuana in it. Like I said, I’m going by -- by what I smelled and saw and how I dealt with that situation. Q But you knew that it had just, at least, come from a house that you, at least, got some report that had some suspicions it was a drug house?

A It possibly could be a drug house, yes. [ 21 ] Similarly, Constable Gidda agreed that there was no note of the first “off the top of her head” Charter warning. She said that the second Charter warning was given at 10:25 a.m. She said that Mr.

Carlson declined Legal Aid or any call, and that she did not recall his response to the first warning. [ 22 ] With respect to the sequence of events following her perception of the smell of marijuana to which she had testified in chief, Constable Gidda agreed that it was different in some respects from that which she had written in her Report to Crown Counsel including that her report does not contain a reference to her first off the top of the head Charter warning: Constable Gidda requested that Carlson exit the vehicle, at which time he was placed under arrest for possession of marijuana.

Carlson immediately stated that the rear of the van was full, that he just wanted to come clean. Carlson was escorted to the rear of the police vehicle and placed in the rear seat. Constable Gidda returned to the vehicle and began to search the immediate front area, at which time Constable Gidda discovered in plain view that the rear of the van was indeed loaded with marijuana plants still in the pots and obviously being transported to an undisclosed location. [ 23 ] On re-examination, Constable Gidda testified about the information that comes back when a computer check is done of licence numbers.

She said that with a B.C. plate the registered owner, the expiry date of the plate, an address, and a driver’s licence number, as well as the year, make and model of the vehicle are provided. With an Alberta licence plate, the registered owner, as well as the expiry date of the plate are provided. She did not know whether the make and type of vehicle are. In her notebook she identified the information regarding three other vehicles, which included a name, licence plate, and make and model.

The notes also set out a name, Douglas Roland Morris, an Edmonton address, and the licence plate number of the van, but no vehicle description. Asked: If you don’t know the description of the vehicle, but all you have is a name and plate number, how do you know that that plate relates to a particular vehicle? She answered, “You don’t.” [ 24 ] Corporal Karlovcec, of the RCMP, testified as an expert regarding the methods of operation of marijuana producers. He testified that it is not unusual for producers to move plants from one place to another. He said that the value of 135 plants in the vegetative state

of growth would be worth $7,000 to $13,500 as plants; and $27,000 to $33,750 if growth was completed and the marijuana was harvested and sold by the ounce. He agreed on cross-examination that sometimes plants will be dumped if there is a fear of detection by police. [ 25 ] The accused testified on the voir dire . He said that he and a friend, Ted Wardally, had a partnership in a grow operation at 12166 101A Avenue, Surrey. He said that he received a telephone call at his residence at 8:00 a.m., on December 22, 2000 from Mr. Wardally, who said that there were two males at the place posing as drug squad members.

Mr. Carlson said he got into his brown Dodge van and went to the house, parking the van in the driveway. Three other friends were called to come and help. They loaded the van with the plants, 125 to 135 in number. [ 26 ] Mr. Carlson testified that the van is a former carpenter’s van with a clear space with shelves in the back and no windows except blacked-out windows on the swing-open back doors.

He said that there is a wooden partition between the front and back of the van, with a four-foot by two-and-a-half-foot, opening with a curtain on that opening to keep a draft from running from the unheated back to the front. He said that someone in the front cab cannot see what is in the back unless they reach behind and part the curtain. [ 27 ] Mr. Carlson testified that he owned the van, having bought it in about October 2000.

He said that it had Alberta plates, which he had put in place himself, that he knows it is illegal to have plates swinging or obstructed by dirt, and that the plates were properly affixed as far as he could tell. [ 28 ] He described being stopped by Constable Gidda. He said that she did not tell him that he was under arrest as soon as he exited the vehicle, but instead told him to get out of the car, to follow her to the rear of the van and to open it for her. He said that he had not given her permission to go into the van and initially he refused to open it for her.

He testified that she said, “You have to open this door,” and he did, and when he did so a marijuana plant fell out. [ 29 ] He testified that Constable Gidda then placed him under arrest, gave him his rights, including the right not to say anything, that anything he said might be used against him, and to instruct counsel. She escorted him to the cruiser. He denied that Constable Gidda had said that he had the right to call a lawyer for free. He was handcuffed while she was reading him his rights, he said, and he did not recall being read his rights twice.

He testified that at the time of arrest he thought he said that he did not want to speak to counsel at that time. Mr. Carlson testified that he asked Constable Gidda why she had pulled him over, and she said nothing. He denied making the statement she alleged. [ 30 ] On cross-examination, Mr. Carlson admitted to the details of the grow operation, saying this was not their first crop, but that they had been in the business of growing for a year or less. He testified that their object, when they loaded the plants in the van that day, was to move the plants somewhere else and destroy them.

He said that it took about 10 minutes of standing around in the driveway before the plan was determined, which was to dump the plants down by the Pattullo Bridge in Surrey. He said that his friends did not come with him to help unload because they did not want further involvement. [ 31 ] Ted Wardally testified that he was living at the house at 12166 101A Avenue in Surrey, at the time of this incident, and that two guys came to the door at about 8:00 a.m., on December 22nd, 2000, saying they were police officers. He said he then called his partner, Lindh Carlson.

He gave evidence about the other friends coming, the loading of the plants into the van, and that he stayed in the house when the others left. [ 32 ] Mr. Wardally testified that the van had a partition with a blanket covering the hole, such that you could not see the front from the back. He said that the blanket was there that day. He said that the discussions in the driveway were to the effect that it was necessary to get rid of the plants. He testified that he was arrested about 15 minutes after Mr. Carlson left, when the police kicked down the back door.

He said that he is not facing any charges with respect to this incident and that he does not have a criminal record. [ 33 ] On cross-examination, Mr. Wardally agreed that he is a pretty good friend of Mr. Carlson, and some inconsistencies between his statement to the police and his evidence at trial were pointed out in cross-examination. [ 34 ] The issues are as follows: 1. Was there a breach of the accused’s Charter rights under: (

a) s. 9, the right to be free from arbitrary detention; (

b) s. 8, the right to be free from unreasonable search and seizure; (

c) s. 10(b), the right to retain and instruct counsel without undue delay; and 2. If so, should evidence be excluded under s. 24(2) : (

a) the marijuana; (

b) the statement. [ 35 ] The position of the defence is that Constable Gidda did not stop the van in order to check the licence and registration, or due to a possible offence under the Motor Vehicle Act , R.S.B.C. 1996, c. 33 , but because she saw the van coming from a residence which she had been watching for suspicious activity. Relying on R. v. Simpson (1993), 1993 CanLII 3379 (ON CA) , 79 C.C.C. (3d) 482 (O.C.A.), Mr.

Briggs argued that the detention of the accused by Constable Gidda was arbitrary and constituted an infringement of s. 9 of the Charter . [ 36 ] With respect to the search, defence counsel argued that the smell of marijuana was the only ground for the arrest and subsequent search. He argued that Constable Gidda’s testimony that she saw plants in the back of the van from the front driver’s side when she

looked in was implausible and should be rejected, in light of the other evidence on the voir dire and what he argued were inconsistencies in her own evidence as to the sequence of events and why she had to look in the back of the van. [ 37 ] Mr. Briggs referred to R v. Polashek (1999), 1999 CanLII 3714 (ON CA) , 134 C.C.C. (3d) 187 (O.C.A.), as the leading authority on when the smell of marijuana may provide grounds for arrest. He argued that this was not an arrest based on reasonable and probable grounds and, therefore, this was not a valid search incident to arrest. [ 38 ] Defence counsel also submitted that there was a breach of s. 10(

b) of the Charter , in that, while Mr. Carlson was told of his right to counsel, he was not told about his right to consult a lawyer free of charge. Mr. Briggs argued that it follows that Mr. Carlson did not make a valid waiver of his right to counsel, and that the alleged statement regarding the back of the van being full of marijuana should be excluded as a result. [ 39 ] Mr. Briggs relied on R. v. Bohn (2000), 2000 BCCA 239 (CanLII) , 145 C.C.C. (3d) 320 (B.C.C.A.); and R. v.

Richardson (2001), 2001 BCCA 260 (CanLII) , 153 C.C.C. (3d) 449 (B.C.C.A.), arguing that when there are multiple breaches of the Charter , it is important to take that into account in determining the admissibility of evidence. [ 40 ] The Crown’s position is that Constable Gidda pulled Mr. Carlson over for the purpose of enforcing driving-related laws. Mr.

Smith submitted that the Constable’s evidence, that she stopped the van because of the dangling licence plate and the desire to check whether the plate corresponded with the vehicle registration, should be accepted. [ 41 ] Although I understood the Crown to refer to s. 123 of the Motor Vehicle Act , I believe that ss. 73 and 33 may be the relevant provisions authorizing a peace officer to require a driver to stop and state his or her name and address and the name and address of the motor vehicle’s owner and to produce a driver’s licence and insurance documents upon demand. [ 42 ] Thus Mr.

Smith, for the Crown, argued that the detention was lawful and there was no breach of s. 9 of the Charter . [ 43 ] Mr. Smith further argued that the arrest was lawful because Constable Gidda subjectively believed, and objectively had reasonable grounds to believe, that there was marijuana in the van and that Mr. Carlson had possession of it. The arrest being lawful, he argued, the search did not constitute an infringement of the Charter . [ 44 ] As for the alleged breach of s. 10(b), the Crown’s position was that the evidence shows that Mr.

Carlson was asked if he wanted to call a lawyer when he was given his basic rights, and he said, “Not at this time,” thus waiving the right to counsel prior to making the statement. [ 45 ] Counsel for the Crown conceded that if I rejected Constable Gidda’s evidence as to the purpose for the stop, it would follow that the detention was arbitrary, the search was unreasonable, and both the real evidence and the statement should be excluded. [ 46 ] On the evidence, I am satisfied, on a balance of probabilities, that Constable Gidda stopped the accused’s vehicle not because she observed an unsecured licence plate and wished to check the vehicle’s registration and insurance documents, but pursuant to a criminal investigation.

I reach that conclusion for the following reasons. [ 47 ] First, the Constable agreed on cross-examination that the complainant had indicated that the residence could possibly be a drug house, and her evidence regarding her initial dispatch to the location was that persons claiming to be police officers investigating drug offences had been there.

Thus, she had been observing the residence at 12166 101A Avenue as a place possibly connected to drugs. [ 48 ] Second, her notes indicate that she checked the licence plates on all of the vehicles at the house, including the van, at the same time while she was parked in the cul-de-sac. I do not accept her evidence that she checked the number on the van later, after she had stopped it, and then went back and wrote the information into a space she left in her notes.

Her testimony seemed evasive and was unconvincing in this regard. [ 49 ] Third, there was no reference in her notes to a licence plate, to insurance or to any possible Motor Vehicle Act infraction, nor was there such reference in her discussion with Mr. Carlson or in her Report to Crown Counsel. I recognize, as Crown counsel pointed out, that police officers are not uniform in their note-taking practices and that sometimes they only record what they need to as an aide-memoire. However, the fact that the notes do not confirm Constable Gidda's version of events is a factor that I take into account.

Fourth, no ticket was issued with respect to a dangling licence plate or any other Motor Vehicle Act offence. [ 50 ] It was common ground that this was a detention. In R. v. Simpson , supra , approved in R. v.

Ferris (1998), 1998 CanLII 5926 (BC CA) , 126 C.C.C. (3d) 298 (B.C.C.A.), the court stated at p. 500, per Doherty J.A.: In my opinion, where an individual is detained by the police in the course of efforts to determine whether that individual is involved in criminal activity being investigated by the police, that detention can only be justified if the detaining officer has some “articulable cause” for the detention.

Articulable cause requires a “... constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation”. ( Simpson at p. 501). A hunch cannot suffice, no matter how accurate it might prove to be. If articulable cause exists, the detention may or may not be justified, depending upon the nature and immediacy of the suspected crime. [ 51 ] Here the officer did not assert that the detention was pursuant to a criminal investigation, but instead testified that her reason for stopping Mr.

Carlson was to check the vehicle’s insurance and registration documents. The Crown did not argue that there was

articulable cause to stop the vehicle pursuant to a criminal investigation. Such an argument would have been wholly inconsistent with Constable Gidda’s testimony. [ 52 ] Therefore, having rejected her evidence, I find that the detention was unlawful. It was an arbitrary detention within the meaning of s. 9 of the Charter . It follows that the search of the van was not authorized by law and was an unreasonable search within the meaning of s. 8 of the Charter .

Given those findings, it is not necessary for me to consider whether there was a breach of s. 10(b). [ 53 ] Having found breaches of ss. 8 and 9, I must determine whether the resulting evidence obtained by Constable Gidda should be excluded under s. 24(2) of the Charter . Both the real evidence, that is, the marijuana plants, and the statement were obtained as a result of the breach of the accused’s right to be free from arbitrary arrest or detention and to be free from unreasonable search and seizure. [ 54 ] Following the analysis in R. v. Collins , 1987 CanLII 84 (SCC) , [1987] 1 S.C.R. 265, and R. v.

Stillman , 1997 CanLII 384 (SCC) , [1997] 1 S.C.R. 607, I will consider the three sets of factors relevant to the issue of whether the admission of the evidence would bring the administration of justice into disrepute. [ 55 ] The first question is whether the admission of the evidence would adversely affect the fairness of the trial. In my view, the nonconscriptive evidence, that is, the marijuana, does not give rise to trial fairness concerns, while the conscriptive evidence, the statement, does. [ 56 ] Turning to the second set of factors, I find that the breaches of ss. 8 and 9 were serious.

As Martinson J. stated in R. v. Rogers , [1998] B.C.J. No. 3288 (S.C.), at ¶ 36 : There is no general right to detain and search based on a hunch. In general, citizens of Canada are to be free to go about their business and not to be detained by the police except for lawful reasons. Here there was more than one Charter violation, and the evidence did not suggest that the violations were motivated by urgency or necessity.

The Constable’s stated reason for stopping the van was not, I have found, the real reason for her doing so, which shows bad faith. [ 57 ] As for the third set of factors, given my conclusion about bad faith on the part of the police, there is no doubt that the admission of the evidence would bring the administration of justice into disrepute. [ 58 ] In conclusion, I find that, as a result of the breach of the accused’s rights under ss. 8 and 9 of the Charter , the evidence regarding the marijuana found in the van and the statement of the accused should be excluded. [ 59 ] MR. SMITH: Thank you, My Lady.

The Crown will not be calling any further evidence. [ 60 ] THE COURT: The Crown having not called further evidence, I would then acquit the accused. [ 61 ] MR. SMITH: Thank you, My Lady. [ 62 ] MR. BRIGGS: Thank you, My Lady. [ 63 ] THE COURT: Mr. Carlson, you have been found not guilty. You are free to go. “Lynn Smith, J.” The Honourable Madam Justice Lynn Smith