R. v. Cornwell

2017 BCSC 1340 R. v. Cornwell IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Cornwell, 2017 BCSC 1340 Date: 20170425 Docket:38984 Registry: Courtenay Regina v. Thomas Adam Cornwell Before: The Honourable Mr. Justice Jenkins Oral Reasons for Judgment on Voir Dire Counsel for Federal Crown: M. Down Counsel for Accused: D.J. Marion Place and Date of Trial/Hearing: Courtenay, B.C. April 19, 20, 24 and 25 2017 Place and Date of Judgment: Courtenay, B.C. April 25, 2017 [1] THE COURT: These are my reasons on the voir dire, under s. 9 of the Charter of Rights and Freedoms dealing with the legality of the arrest of Mr. Cornwell. I reserve the right, as usual, to edit and clarify these reasons should they be published, but the result will not change as a result of any such clarification or any editing. [2] Mr. Cornwell stands before me charged with possession for the purpose of trafficking in cocaine, under s. 5(2) of the Controlled Drugs and Substances Act. [3] Early in this trial a voir dire was declared to determine whether the police had reasonable and probable grounds to arrest Mr. Cornwell without warrant on January 8, 2016, or whether there was a breach of s. 9 of the Charter of Rights and Freedoms. [4] Under s. 495(1)(b) of the Criminal Code, an arrest without warrant is authorized if a peace officer has reasonable grounds to believe a person has committed an indictable offence. [5] In the 1990 decision of R. v. Storrey, [1990] 1 S.C.R. 241 the Supreme Court of Canada set out a two part test to establish reasonable grounds for arrest without a warrant, which was referenced in R. v. Messina, [2013] B.C.J. No. 2521, a decision of the Court of Appeal, where at para. 20 the court stated: The first step requires the arresting officer to have a subjective, personal belief that there are reasonable grounds for the arrest. The second part requires objective justification for the officer's subjective belief. In assessing objective justification, the consideration is whether a reasonable person, "standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest" [from] Storrey. The test requires reasonable probability or reasonable belief and not proof beyond a reasonable doubt: R. v. Debot. [6] Also in Messina, at para. 22, the court referred to the decision of MacKenzie J (as she then was) in R. v. To (1998), 109 B.C.A.C. 242 in which MacKenzie J. in turn referred to the decision of Justice Thackray in R. v. Feeney, [1997] 2 S.C.R. 13: After reviewing Storrey, R. v. Feeney. . . . . . and cases from other jurisdictions. . . Justice Thackray said: The test set forth is to establish that "a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest." This does not mean that the beliefs of police officers are not necessarily objective. However, ...that their conclusions might be perceived to have a bias or prejudice they must be subjected to a test of whether a reasonable person standing in the officers' shoes would have come to the same conclusion. In applying the Storrey test the knowledge of the police officers is not to be ignored. As said in R. v. Rajaratnam: . . .a judge is entitled to consider a police officer's training and experience in determining objective reasonableness. . . .What may appear to be innocent objects to the general public may have a very different meaning to an officer experienced in drug operations: And then in Messina the court also stated, referencing R. v. Ashby, 2013 BCCA 334 where Justice Frankel stated: However, notwithstanding that each of those factors. . . . . .alone can be consistent with non-criminal activity, their combined effect, when viewed through the lens of a police officer's experience, cannot be ignored. As Madam Justice MacKenzie stated in R. v. Wilson. . . . . .[the] Court has consistently held that an arresting officer's personal experience is relevant to whether the officer's subjective belief in grounds to arrest is objectively justified". Apposite is the following succinct statement by Madam Justice Moen in [an Alberta case of] R. v. Kluczny, [A]n officer experienced in drug operations can see a series of what might appear to a layperson to be innocent objects and take a very different meaning from them than the layperson might. [7] There is no disagreement in this case that the arresting officer, Cst. McBride, in his evidence in the voir dire testified as to his subjective conclusion and belief that he had reasonable grounds to arrest Mr. Cornwell on January 8, 2016, and that it is only the second part of the test, i.e. the objective portion of the test that is to be analyzed in this case. Referring back to Storrey; a reasonable person placed in the position of, in this case Cst. McBride, must be able to conclude on a balance of probabilities there were indeed reasonable and probable grounds for the arrest. [8] Also in R. v. Luong, 2010 BCCA 158 Bennett, J.A., for the Court of Appeal stated: The assessment of whether objective grounds exist undertaken by a trial judge is conducted by first looking at the observations of the officer (which the trial judge has found as facts) through the lens of someone who has the same experience, training, knowledge and skills as the officer who is making the observations, and then deciding if a reasonable person with the same lens would come to the same conclusion as the police officer. The evidence of Constable McBride [9] Constable McBride was the only witness in this voir dire, a seven year veteran of the RCMP, based in Courtenay up to May of 2016. While in Courtenay he had been assigned to general duties, but also to the Courtenay Drug Section, during which time he had investigated many drug trafficking cases involving many kinds of illegal drugs, including cocaine. Prior to his involvement in this matter, he had arrested many persons on drug charges, had posed as both a trafficker and buyer of illegal drugs, and on many occasions, at least 25 occasions, arranging purchases or sales through the phone and otherwise. He had learned how traffickers and their clients tend to meet in secluded or less well known locations, and that a common location for illegal drug trafficking in Courtenay was the old train station, which has long been closed as a train station. [10] Constable McBride was also experienced in dial-a-dope operations where the parties arrange to meet and pay cash for product, that the trafficker will often be mobile in a vehicle, and that dial-a-dope was the main method of drug trafficking in Courtenay, and usually involved cellphone communications between the traffickers and customers to arrange their meetings and transactions. Constable McBride had observed drug transactions in many hours of surveillance and had observed many hand-to-hand transactions by traffickers and their clients in secluded locations. [11] Prior to his arrest on January 8, 2016, Cst. McBride was very familiar with Mr. Cornwell, having been involved in two previous arrests of Mr. Cornwell, including as late as 2015, where on one occasion Mr. Cornwell broke his cellphone or damaged it, and placed it on his truck when being arrested. The arrest on that occasion had resulted in five grams of crack cocaine being seized from Mr. Cornwell's truck. I summarize by stating that Cst. McBride knew Mr. Cornwell as someone who had been engaged in the drug trafficking world in Courtenay. [12] Regarding the circumstances leading up to the arrest on January 8, 2016, I find the following facts proven on the voir dire. On January 8, 2016, Cst. McBride was working in the drug section in plain clothes in an unmarked police van. He was patrolling, or looking for possible drug transactions in the area of the old train station in Courtenay. He was on Cumberland Road eastbound when he looked over his shoulder and saw a large person in black pacing outside the west side of the train station and holding a cellphone. That person caught Cst. McBride's attention when he was approximately a hundred feet away from the person in black. Constable McBride then travelled on McPhee Avenue, which ran perpendicular to Cumberland, travelling approximately 500 meters and turned around, wanting to see the male in black, when a silver car pulled into the empty parking lot adjacent to the train station and drove to the southwest corner of the station. The person in black was by then standing at that corner of the station. The silver car was parked at an angle, with the nose of the silver vehicle pointed at the station. [13] Constable McBride noticed the passenger door of the silver vehicle open, and the passenger exit. The passenger walked "with purpose" towards the person in black, and was seen to be within approximately five feet of the person in black when Cst, McBride's view was blocked. When asked what he meant by "with purpose," Cst. McBride stated that he walked directly towards the person in black. [14] When Cst. McBride turned his vehicle around, he next noticed the passenger return to the silver car, and the large male walking away towards the north. He testified the time between when the passenger door opened and the passenger returned to the vehicle and Cst. McBride had lost sight was approximately one minute, and that later in his evidence he had said that that time was approximately 30 seconds. [15] Constable McBride did not see the two men make contact in any way. He did not see any hand-to-hand transaction or exchange. He also did not notice any other random persons in the area. [16] Next, Cst. McBride passed nearby the silver vehicle, which he had determined was a Chrysler, and as he passed it he noticed a familiar sticker or decal on which were the words "Granny Go-Go." That sticker was familiar to him as he associated that vehicle to drugs, in that he had previously arrested a woman named Amber McKenzie, when she was a passenger in a vehicle with the same sticker. He also recalled the vehicle was that of Daniel Westaby, who had previously chauffeured Ms. McKenzie. He understood as well that they had previously lived together. Constable McBride added that he had previously surveilled Mr. Westaby's residence, and seized garbage from his house, which included crack pipes and torn baggies, which resulted in him associating Mr. Westaby with drugs. [17] Constable McBride also testified that it is common for drug traffickers to not only be mobile, but also that the trafficker would usually not be alone, that there would be a driver and another that would be using a cellphone, and having two persons also provided some security for those carrying out drug transactions. [18] Constable McBride got on the police radio and called Cst. McMillan, who was also in the Drug Section and working in a vehicle in the same area, and told Cst. McMillian that he believed, based on his experience, including the 80 seizures of drugs, that he had seen a drug transaction. He added that from his knowledge of drug transactions commonly taking place near the abandoned train station, seeing two people meet briefly, one of whom had been on a phone and then leave, led him to believe a transaction had taken place. [19] He followed the Chrysler and determined, in light of all he had seen, after noticing the sticker or decal saying "Granny Go-Go" on the vehicle he associated with the drug trade, and based on his experience, that he had reasonable grounds to make an arrest. At that point, although Cst. McBride knew Mr. Cornwell, he did not realize Mr. Cornwell was the passenger in the vehicle. [20] Constable McBride followed the Chrysler to 1490A 15 Street, in Courtenay. As he approached that address, his view of the residence and driveway would have been blocked in part by a high fence, approximately five feet high, as I recall. Constable McBride then saw the Chrysler parked in the gravel driveway, pulled in the driveway a couple of minutes behind the Chrysler and turned on his police lights. He noticed Daniel Westaby had exited the driver's door of the Chrysler and was reaching the front door of a house and the passenger had just exited the passenger seat of the Chrysler, turned around, and Cst. McBride recognized the passenger as Mr. Cornwell. The constable added that when Mr. Cornwell looked at him, Mr. Cornwell's eyes bulged out when he saw me. At that point, Cst. McBride yelled out, "Adam, you are under arrest." [21] He also testified he thought Mr. Cornwell threw something on the ground under the gravel driveway, near the passenger door, and had been kicking the gravel near the passenger door as Cst. McBride was telling him he was arrested. [22] Mr. Cornwell then ran away towards the tall wooden fence, with Cst. McBride in pursuit, Cst. McMillan had arrived in his police vehicle, and Mr. Cornwell jumped on to the wooden fence, eventually to be pulled down and subdued by the officers. [23] In a search incidental to arrest, the officers found on Mr. Cornwell's person, a bag of 29 grams of cocaine in his pocket, a black flip cellphone, a $20 bill, and a black sunglass case, inside of which was a bronze crack pipe. [24] Later Cst. McBride searched the gravel driveway near where he thought he saw something thrown by Mr. Cornwell, after Mr. Cornwell had seen Cst. McBride, however, his search revealed nothing at first. After the Chrysler had been towed away from the driveway, Cst. McBride noticed a plastic bag on the gravel which appeared to contain crack cocaine. [25] Previously in these reasons I referred to the two‑part test to determine the reasonableness of an arrest, both subjectively and objectively. That Cst. McBride had developed a reasonable subjective conclusion was not questioned, and the real issue before the court is whether a reasonable person, standing in the shoes of Cst. McBride, would have believed that reasonable and probable grounds existed for the arrest. It is significant that the imaginary reasonable person must consider the experience of the arresting officer in the investigation of drug cases. [26] The burden on the Crown to satisfy the court as to the objective reasonable grounds for an arrest was discussed by the Court of Appeal in R. v. Jir, [2010] B.C.J. No. 2171 at paragraph 27: As has been stated many times, the "reasonable grounds" standard is not only less than that required for conviction, but is also less than the civil standard of proof. Then there is reference to the words of Madam Justice Wilson in R. v. Debot, [1989] 2 S.C.R. 1140 and I will not read all of that. With reference to a decision of Mugasera v. Canada where it is stated that: . . .the "reasonable grounds to believe" standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities. [27] In Jir the court confirmed that a reasonable grounds determination involves a consideration of the totality of the circumstances, weakness in one area may be compensated for by strengths in other areas, a reference to Debot. [28] Also at paragraph 29 in Jir, the court found that the determination must involve circumstances that existed, not what may have existed. The court concluded that other information, had it been available, that may have strengthened or weakened those grounds is not a relevant consideration. The Jir reference was referred to and applied in Gill by Mr. Justice Schultes at para. 33. [29] With these considerations in mind, were Cst. McBride's grounds for arrest objectively reasonable considering the totality of the circumstances? The Crown submits that the following factors considered by Cst. McBride support a conclusion that his decision to arrest was objectively reasonable in the circumstances: a) Constable McBride's experience as a drug investigator, including his many hours of surveillance overall, his involvement in over 20 hand-to-hand transactions as undercover buyer or dealer, approximately 80 seizures, his experience investigating dial-a-dope operations arranged by phone, with meetings of short duration, often with the dealer arriving by car, two persons usually in a car, all over a period of over six years in Courtenay. b) The significance of the location of his observations near the train station, where he had previously met traffickers and was aware from others of their knowledge of the site being a common location for trafficking. I reference the Charlton case. c) The observations of the large person in black, pacing with a cellphone in an area where there were no other persons observed. d) The period of time between the passenger exiting the Chrysler, approaching the person in black "with purpose" and returning back to the Chrysler while the person in black left in another direction. e) The observation of the "Granny Go-Go" decal in a window of the Chrysler, which Constable McBride recalled from the incident with Mr. Westaby and Amber McKenzie in 2015, and his recall of connections to Ms. McKenzie as a drug dealer, and surveillance of Mr. Westaby finding evidence of drug use in his garbage. f) Upon seeing Mr. Cornwell exiting the Chrysler and knowing of his involvement in the drug scene in Courtenay, considering his personal knowledge of persons in the drug trade often continuing in trafficking as a business, and having seen Mr. Cromwell, yelling out, "Adam, you are under arrest." On this point I make reference to the words of Schultes in R. v. Gill, [2015] B.C.J. No. 360: The objective strength of the officer's grounds can include observations made after they have formed their subjective belief, but before the arrest was actually carried out: [a reference to] R. v. Clayton. [30] By the time Cst. McBride had formed his subjective belief that a drug transaction had taken place, he was not aware that the passenger in the Chrysler was Mr. Cornwell. Seeing Mr. Cornwell by the Chrysler reinforced his opinion that a drug transaction had taken place, knowing personally Mr. Cornwell's past involvement in trafficking. The arrest in this case occurred when Cst. McBride stated, "Adam, you are under arrest," and by that time he obviously knew the passenger he had seen quickly approach the person in black and return to the Chrysler was Mr. Cornwell. A reference to the Suberu decision, quoted in a 2014 decision of this court, "Reputation is an important factor for consideration in these matters." [31] The defence has emphasized in this case that Cst. McBride did not see a transaction take place, which is correct. I am referred to many cases in which an officer who made the decision to arrest either observed a transaction, such as in Gill, which is obviously preferred evidence. However, an officer may not always be able to observe a transaction. [32] In response the Crown referred to R. v. Charlton, [1992] B.C.J. No. 1405, the B.C. Court of Appeal, pages 16 and 17: Even in circumstances where police do not have specific information that an accused is in possession of narcotics, they are entitled to "put two and two together" and conclude that the accused is in possession of narcotics. Thus, where an unknown accused makes a "furtive visit . . . of the fleeting sort which is to be expected when drug trafficking is going on" to a residence being surveilled by police pursuant to an informant's advice that cocaine was being sold out of the premises, the conclusion that the accused is in possession of cocaine would meet both tests enunciated in Storrey. [33] Also in R. v. Gayle, [2015] B.C.J. No. 2749, the accused referred to nine facts which he submitted supported an unlawful and arbitrary arrest, which included the following three factors: 7. None of the police officers saw any exchange between the occupants of the white vehicle, and they observed no cell phone use, no furtive looks or "heat checks", and nothing in their hands prior to arrest; 8. This was a single incident occurrence and there had been no pattern of short stop meetings by either the accused or the driver of the white car. The absence of such a pattern of activity is significant because it has been a factor in other drug investigations conducted by Constable Lingley and others, as well as a factor supporting objectively reasonable grounds for arrest in cases such as R. v. Messina and R. v. Lo. 9. Logically, a single stop may have any number of innocent explanations, whereas two or more, particularly in a short period of time, increasingly lead to the only reasonable inference being quick exchanges of some kind, the most likely or probable being the sale of drugs. Here however ‑‑ [In the words of Justice Kent in Galye] ‑‑ Here however, we have a single stop incident only. In these and in other factors, the accused submits that there could only be a mere suspicion of a transaction. Justice Kent concluded at para. 53: However, while individually no one of the factors identified in para. 46 above ‑‑ [which were factors that he referred to as part of the totality of evidence approach] ‑‑ would likely be sufficient by itself to objectively justify the arrest of the accused in this case, a practical, non-technical and common sense assessment of their cumulative effect at the time the arrest decision was made is sufficient to meet the requisite standard of reasonable probability. While this case may be close to the line, in my opinion, an assessment of the totality of the circumstances at the relevant time, particularly when viewed through the lens of a reasonable person with the same experience and training of Corporal Gargus, leads to the conclusion that the arrest was made on grounds that were reasonable on both a subjective and objective basis. Justice Kent also did point out in para. 17 of his reasons that there was no evidence of an actual exchange inside the vehicle. [34] Defence has also referred the court to decisions in R. v. Brown, 2014 B.C.J. 2248 which relied in part on hearsay evidence and not personal observations or experience of the arresting officer. In the Alberta Court of Appeal decision of R. v. Basanez, [2017] A.J. No. 179 which refers to possible innocent explanations for conduct which could be suspicious, however that approach has been rejected by our courts in Jir, and previously by the Supreme Court of Canada in R. v. Pope, [2015] B.C.J. No. 2789. Defence has also referred to Pope, which involved two suspected exchanges, in which Justice Gray stated at para. 89: In my view, the cases in which the court has concluded that there were reasonable and probable grounds for an arrest are cases in which there were more facts to ground an arrest than existed here. [35] Overall in considering the burden of proof as being less than a reasonable probability, and the totality of the evidence of Cst. McBride regarding his grounds for arrest, which I have discussed above, I find that the reasonable person placed in the circumstances of an experienced drug enforcement officer, such as Cst. McBride, would conclude that there were reasonable grounds for the arrest, especially after Cst. McBride recognized Mr. Cornwell as the person who had been the passenger in the Chrysler. The decision made by Cst. McBride to arrest was based upon his considerable experience and knowledge of the drug trade, common sense, and personal experiences and knowledge, as opposed to inferences and hearsay evidence provided by others where the totality of evidence exceeds a balance of probabilities may be questionable. However, there is ample evidence upon which the court can find a credible, reasonably based support for an objective determination of reasonableness. "Jenkins J."