R. v. Arthur

2013 BCSC 770 R. v. Arthur IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Arthur, 2013 BCSC 770 Date: 20130425 Docket: 25928 Registry: Vancouver Regina v. Robert Charles Arthur Before: The Honourable Madam Justice Maisonville Oral Ruling on Voir Dire #2 Counsel for the Crown: B.K. Girn Counsel for the Accused: N.L. Cobb Place and Date of Trial/Hearing: Vancouver, B.C. April 25, 2013 Place and Date of Judgment: Vancouver, B.C. April 25, 2013 I. INTRODUCTION [1] Robert Charles Arthur is charged with possession of proceeds of crime and possession of cocaine for the purpose of trafficking based on evidence obtained in two separate arrests in April and May of 2009. He applies to exclude that evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms because of alleged breaches of s. 8, 9, and 10 in connection with those two arrests. [2] This decision will be limited to whether the Charter was breached. If a breach is determined, exclusion of evidence under 24(2) will be addressed in a subsequent decision. II. THE BACKGROUND FACTS [3] Mr. Arthur was involved in three RCMP investigations. In 2006 and 2007, he came to the attention of the RCMP as part of an investigation termed Project E‑Poem. Mr. Arthur came to police attention on the basis of two pieces of information that suggested an individual with the initials R.A. living at the penthouse of the Stanley apartment building in Surrey, B.C., was involved in cocaine trafficking. No charges were laid against him in connection with that project. [4] In 2008 and 2009, he was the subject of a second investigation called Project E-Pentatonic. Mr. Arthur was arrested in connection to that investigation on April 9, 2009. That led to the first charge against him for the possession of proceeds of crime. [5] Finally, on May 4, 2009, he arrived at an apartment which was the subject of a third unrelated investigation called Project E-Pistology. He was arrested that day and the second charge for possession of cocaine for the purpose of trafficking arose from those events. III. Project E-Pentatonic: A. The Facts [6] Project E-Pentatonic was initiated by the Surrey RCMP drug section in November 2008. It began on the basis of a Crime Stoppers tip which indicated Mr. Arthur was involved in drug trafficking including cross-border transactions with another individual. Mr. Arthur was initially the only target of the investigation. Corporal Don Powell was the lead investigator. I pause to note that the facts that I am relating are the facts as I have accepted and found them from the witnesses who testified and whose credibility I accept, except where I indicate otherwise. [7] As part of Project E-Pentatonic, Surrey RCMP conducted approximately 32 days of surveillance on Mr. Arthur between January and April 2009. For five days, including the day on which Mr. Arthur was first arrested, particularly suspicious events occurred, in Corporal Powell's opinion. January 21, 2009 [8] On January 21, 2009, the surveillance team observed Mr. Arthur's vehicle drive in tandem with a pickup truck to a parking lot. An unknown male was observed removing two boxes from the truck bed and giving them to Mr. Arthur. Based on his experience in police investigation, Corporal Powell believed this conduct was consistent with a drug transaction. January 27, 2009 [9] On January 27, 2009, Mr. Arthur was observed in his vehicle pulling into a parking lot. Another vehicle pulled up. Mr. Arthur and the second vehicle left. The second vehicle followed Mr. Arthur to the parking lot at Mr. Arthur's residence. Mr. Arthur and the other driver had a short meeting and Mr. Arthur was observed walking into the building carrying a weighted plastic bag. Corporal Powell felt this was suspicious, in part, because it did not make sense to drive from one parking lot to another and meet for such a short duration for an innocent purpose. He felt this was also consistent with some drug activity. Though he conceded that he did not see an exchange of the bag between the vehicles, that he still felt it was suspicious. He did not yet feel he had grounds, however, to arrest Mr. Arthur. [10] Shortly afterwards, Constable Stephane Lafontaine observed Mr. Arthur leaving his apartment with an unknown male who appeared to be hiding something the approximate size of a shoebox under his jacket. Corporal Powell felt this was another small part in a pattern of suspicious meetings and occurrences. January 29, 2009 [11] On January 29, Mr. Arthur drove to the same parking lot at which he was observed meeting someone on January 21. His car was approached by a man carrying a file folder and they briefly spoke. No exchange was witnessed by police. Corporal Powell felt this could have been an innocent meeting, but in the context in the investigation, this was another event in a line of short meetings consistent with suspicious activity. [12] Later on January 29, Mr. Arthur was observed entering a residence in Langley. He was inside for 30 minutes and left the premises with a plastic Ziploc bag with unknown contents. Corporal Powell testified that he had observed countless times when money or drugs were stored in Ziploc bags. He, nevertheless, conceded that this event was less suspicious than others. He did not place a lot of value on that meeting. April 2, 2009 [13] On April 1, Mr. Arthur was observed picking up an unknown male later identified as Jason Smith, who will be referred as Mr. Smith from here onwards for the ease of reading. They drove to a residence in Burnaby. Mr. Arthur left the residence pulling a suitcase. Mr. Smith and an unknown woman left at the same time and drove to another location in Vancouver. Mr. Arthur exited without the woman or the suitcase. The investigative team did not see the suitcase transferred to anyone else. Corporal Powell recognized this could have been an innocent activity. [14] Later that day, RCMP officers witnessed Mr. Arthur meet with a person later identified to be Malakais Swales, a person whom Corporal Powell knew was charged with possession of multiple kilograms of cocaine and weapons. Corporal Powell did not have firsthand knowledge of Mr. Swales' exact involvement, if any, in drug trafficking, but he felt this was relevant to the investigation because it showed Mr. Arthur meeting with an individual he believed was involved in drug trafficking, including cocaine trafficking at higher levels. [15] After the meeting with Mr. Swales, Mr. Arthur and Mr. Smith drove to an Earls Restaurant in Surrey. Mr. Smith was then observed leaving the parking lot driving Mr. Arthur's vehicle. The car and Mr. Smith were located by police at an apartment building a few blocks away where Mr. Arthur had previously been observed picking up a man. Next, a silver or gray Honda was observed leaving the lot where Mr. Arthur's vehicle was taken. Shortly thereafter, a small Honda was observed arriving at the same Earls from which Mr. Smith had departed. Mr. Smith briefly went into the Earls, but was not seen interacting with Mr. Arthur. Corporal Powell believes surveillance had Mr. Arthur inside the restaurant at the time, though he conceded that no officer was inside the restaurant nor was there a note that an officer walked by the window to check to see if he was in the seat. [16] Mr. Smith left the Earls and retrieved an orange gift bag from the trunk of the silver Honda. He walked to a pickup truck and left without the bag after a brief conversation. Corporal Powell believed this was a drug transaction. He testified that Surrey drug traffickers used gift bags to transfer drugs or currency. He was also suspicious about the brief duration of the meeting. [17] Corporal Powell ordered officers to follow the pickup truck and to arrest the driver. On the arrest, the police found approximately $15,000 and the gift bag which contained a one-kilogram brick of cocaine. That arrest was the subject matter of R. v. Smith and Suhr, October 17, 2012, Surrey Police File 176239-1. [18] Corporal Powell felt this was a significant day of surveillance as it linked Mr. Arthur to a seizure of drugs. At the very least, to Corporal Powell, this showed Mr. Arthur was associated with an active kilogram-level cocaine trafficker in Mr. Smith. At this point, nonetheless, Corporal Powell felt he did not have grounds to arrest Mr. Arthur. April 9, 2009 [19] Mr. Arthur was arrested based on the events of April 9, 2009, in the preceding investigation. On that day, he travelled with an unknown male, later identified to be James Druska, to an Earls Restaurant in Burnaby. There, Mr. Arthur was again observed meeting Malakais Swales. [20] Mr. Arthur and Mr. Druska then departed from that location and the surveillance team lost Mr. Arthur's vehicle for a period of time. [21] The vehicle was relocated in front of an apartment building in Vancouver. Mr. Arthur was observed exiting the apartment at 4:49 p.m. by Corporal Lafontaine. Mr. Arthur was carrying a purple and white bag that appeared to be heavy. He loaded it into his Porsche vehicle. [22] By this time, Corporal Powell believed on the basis of cumulative investigative efforts and his considerable experience with the RCMP that Mr. Arthur had been involved in a drug transaction in that building and the bag contained either drugs or currency. He advised the other officers that if the bag was given to another person, he would call for the arrest of Mr. Arthur and anyone else associated with the transaction. [23] Mr. Arthur's car was followed to a parking lot outside a liquor store in Vancouver. The vehicle arrived at 4:53 p.m. Mr. Arthur was observed removing the bag from his vehicle and handing it to an unknown South Asian male, later identified to be Farhad Walji. [24] Corporal Powell blocked Mr. Arthur's vehicle with his unmarked police vehicle, exited, and approached the individuals with his gun drawn. He yelled, "Police. You're under arrest. Get on the ground." Both Mr. Arthur and Mr. Walji were compliant and went to the ground. Each was handcuffed. They were arrested at 5:00 p.m. for possession for the purpose of trafficking. Corporal Powell did not read either of the arrested men their s. 10 Charter rights. The circumstances were dynamic as the parking lot was crowded with pedestrian and vehicle traffic, according to Constable Lafontaine. [25] The investigating officers opened the bag that was passed to Mr. Walji and discovered what was later determined to be $202,685 in Canadian currency inside. Corporal Lafontaine then rearrested them for the possession for the purpose of - of the proceeds of crime at 5:10 p.m. At that point, Constable Lafontaine advised Mr. Arthur of his Charter rights. Mr. Arthur indicated that he would like to speak with counsel. [26] Because currency rather than drugs were found, Corporal Powell requested the assistance of the Burnaby RCMP so as not to reveal to Mr. Arthur he was being investigated by the Surrey drug unit. He asked Sergeant Scott Rintoul to transport the men to Burnaby at 5:03 p.m. Corporal Powell recalls advising a female Burnaby RCMP officer that the men were not to be allowed to call counsel immediately or be interviewed upon arrival at the Burnaby detachment. He testified that he did so because he did not want to lose potential evidence if Mr. Arthur was given an opportunity to exercise his right to counsel and he needed to discuss with his superiors whether to apply for a search warrant for Mr. Arthur's residence. Sergeant Rintoul did not discuss with any of the Surrey RCMP members whether Mr. Arthur and the other arrested individuals needed to be given their Charter rights or access to counsel. [27] Sergeant Rintoul transported the men to the Burnaby detachment in his unmarked car arriving at 6:02 p.m. At 7:15 p.m., Constable Lively attended the cell in which Mr. Arthur was being held in order to give him his Charter rights. In response to a query whether he would like to contact a lawyer, he said, "I don't even know what's going on. I don't know if I need one yet," according to Officer Lively. [28] At the request of Corporal Powell, Sergeant Rintoul and Constable Lee conducted interviews of Mr. Arthur. Prior to removing him from his cell, Sergeant Rintoul reviewed the prisoner's report and noted that Mr. Arthur had been provided with access to counsel, but that he had declined to exercise that right. Sergeant Rintoul testified as follows in cross-examination: Q. And so when you find out at some point after 1950 that Constable Lively, at the request of Surrey, officially arrested, chartered, and warned the three males, you [didn't] even get a time. There's no time in your notes, sir. A Oh, it wasn't relevant to me for my notes at the time. It was done. It's certainly relevant for Surrey. Q. Well, did you speak to Constable Lively to see if she had even gotten the message? A Well, no, because I knew she did, because when we went to interview Mr. Arthur, I knew [that] he had refused to talk to a lawyer. I knew that. Q. That's - that's later. That's 2100 hours plus you start with Mr. Walji; right? A Yes. Q. It's 2105, not 2100 - A Well, I - I knew - Q. - when you escort Mr. Arthur. A - I knew before 21 - before Mr. - we took Mr. Arthur into the interview room, I knew he'd refused a lawyer. [29] Sergeant Rintoul had Mr. Arthur removed from his cell at 9:00 p.m. The interview ended at 9:22 p.m. [30] At 11:00 p.m., Mr. Arthur was released with his possessions. B. The Issues [31] With regard to the April 9, 2009, arrest, only the following two questions involving ss. 9 and 10(b) of the Charter are at issue: 1. Did the RCMP have reasonable and probable grounds to arrest Mr. Arthur on April 9, 2009? 2. Did the RCMP breach Mr. Arthur's s. 10(b) right to counsel? Specifically, was he promptly informed of his right to counsel, and was he given a reasonable opportunity to exercise that right? C. Analysis 1. Did the RCMP have reasonable and probable grounds to arrest Mr. Arthur on April 9, 2009? [32] Counsel for Mr. Arthur alleges that the RCMP did not have grounds to arrest him on April 9, 2009. He suggests that the grounds alleged by Crown amount to nothing more than a suspicion that Mr. Arthur was engaged in drug trafficking. It follows, in his submission, that Mr. Arthur's s. 9 Charter rights were breached by his unlawful arrest. I respectfully disagree. [33] The Crown argues that the cumulative effect of surveillance, tips, and Corporal Powell's considerable experience as a police officer undertaking drug investigations establishes the reasonable and probable grounds on which Mr. Arthur was arrested. [34] Section 9 of the Charter reads: Everyone has the right not to be arbitrarily detained or imprisoned. [35] A police officer has the authority to arrest a person without warrant under s. 495 of the Criminal Code. Section 495(1)(a) states: 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 [36] The leading case on the interpretation of arrest is R. v. Storrey, [1990] 1 S.C.R. 241. Justice Cory, for the unanimous court, held: [17] In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest. [37] The Supreme Court in Storrey makes clear that a court is to evaluate the cumulative effects of the evidence accumulated when determining the grounds for the arrest, at page 251 of Storrey. This was echoed by the British Columbia Court of Appeal in R. v. Luong, 2010 BCCA 158: [17] ... The cumulative effect of the evidence is taken into account when determining whether there are reasonable grounds to arrest someone. The evidence is not assessed on a piece meal basis. [38] The reasonable and probable grounds standard is not as onerous as even the civil "balance of probabilities" standard of proof. Our Court of Appeal in R. v. Jir, 2010 BCCA 497, affirmed this statement of the law at para. 27: [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. Madam Justice Wilson put it this way in [Debot] at 1166: The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly. I agree with Martin J.A. that the appropriate standard is one of "reasonable probability" rather than "proof beyond a reasonable doubt" or "prima facie case". The phrase "reasonable belief" also approximates the requisite standard. [39] The courts should be aware that a police officer's determination to arrest an individual is made in dynamic circumstances. Along those lines, the Ontario Court of Appeal cautioned against equating the evaluation of reasonable and probable grounds with grounds for a search warrant in R. v. Golub (1997), 34 O.R. (3d) 743, at 750. The Court of Appeal held: The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. [40] The totality of the circumstances in this case shows that Corporal Powell had reasonable and probable grounds to arrest Mr. Arthur. Viewed against the factual matrix of the investigation and Corporal Powell's experience as an officer, I accept that Mr. Arthur's actions on April 9, 2009, convinced Corporal Powell he had the reasonable grounds to arrest Mr. Arthur for his involvement in drug trafficking. I would also accept that a reasonable person placed in Corporal Powell's circumstances would believe that there are reasonable grounds for arrest for the offence involving drug trafficking. [41] The RCMP initiated Project E-Pentatonic on the basis of a tip which said that Mr. Arthur was still involved in drug trafficking with a man named Jason Slade. This tip came after the tips on which Project E-Poem was based which indicated someone with Mr. Arthur's initials who lived in the place ascertained to be Mr. Arthur's apartment was involved in cocaine trafficking. [42] Defence counsel, citing the decision in R. v. Debot, [1989] 2 S.C.R. 1140, notes that these informant tips cannot be taken at face value. Rather, the Court must consider inter alia whether the information is compelling, from a credible source, or corroborated by the police investigation. These three tips, viewed cumulatively, are compelling in their specificity and were confirmed by the police investigation in light of Corporal Powell's experience. They clearly point towards the beginning of a reasonable belief that Mr. Arthur was involved in drug trafficking. I find it of little consequence that Jason Slade was not observed with Mr. Arthur as that is a subsidiary piece of information that has no bearing on Mr. Arthur's potential criminal activity. [43] Corporal Powell puts significant weight on the surveillance of Mr. Arthur prior to and the day of the arrest. While any one of the events observed by the RCMP in the surveillance of Mr. Arthur could have been innocent activity, they cumulatively suggest a pattern of suspicious criminal activity. When Mr. Arthur engaged in a pattern of behaviour in which he, in his vehicle, met people in another vehicle on the street or in a parking lot and drove to different parking lots to exchange something, based on Corporal Powell's experience, these meetings were consistent with drug transactions. Mr. Arthur met twice with Mr. Swales who, though not convicted of a drug offence, Corporal Powell knew was involved with possession of large quantities of cocaine and weapons. He was in the car with Mr. Smith for an entire day right before Mr. Smith left in Mr. Arthur's vehicle to engage in a major drug transaction outside the restaurant to which Mr. Arthur departed Mr. Smith's company. Defence counsel concedes that this event may have raised a genuine suspicion that Mr. Arthur was involved in drug trafficking. On top of these observations, no one on the surveillance team in 32 days between January and April observed Mr. Arthur attend a location for legitimate employment purposes. This cumulative evidence was still insufficient on its own as grounds to arrest Mr. Arthur, in Corporal Powell's evaluation. [44] It was only after the events of April 9, 2009, that Corporal Powell felt he had grounds to arrest Mr. Arthur. On that day, Mr. Arthur was again observed picking up an apparently weighted bag which Corporal Powell, based on his police experience, believed to contain either drugs or a large quantity of money from drug transactions. Mr. Arthur then drove directly to another parking lot at which he gave that bag to a man within 10 minutes of picking it up. This was the third parking lot transaction in which Mr. Arthur had participated and the fourth to which the police believed he was connected, including Mr. Smith's transfer of the gift bag of cocaine on April 1. Corporal Powell found this to be "entirely consistent with a drug transaction for a mid to high level trafficker to be involved in." I accept Corporal Powell's evidence that this transaction was part of a pattern of suspicious transactions in parking lots that were consistent with mid to high-level drug trafficking activity. The cumulative effect of it on the investigative information as a whole established reasonable and probable grounds to arrest Mr. Arthur, even though that is not what he was ultimately arrested for. [45] Defence counsel argues that Corporal Powell was not balanced and objective in his evaluation of the grounds for arrest, in part, because he was not found to be fully credible in Smith and Suhr, supra. I found Corporal Powell to be a credible and reliable witness in these proceedings. This hearing was based, in part, on different evidence than that in Smith and Suhr and, thus, different conclusions may be drawn. I also note that in both my and Corporal Powell's evaluation, the events of April 9, which were not before the Court in Smith and Suhr, were significant in establishing a pattern of transactions in which Mr. Arthur was involved. [46] In summary, I accept that based on Corporal Powell's evidence, the events of April 9 solidified the cumulative events and formed the basis of reasonable and probable grounds to arrest Mr. Arthur. He was thus lawfully arrested and his s. 9 Charter rights were not breached. 2. Did the RCMP breach Mr. Arthur's s. 10(b) right to counsel? [47] Mr. Arthur argues that the RCMP breached two aspects of his Charter 10(b) right to counsel by failing to inform him of his right to retain counsel without delay and failing to give him reasonable access to counsel. I agree that his 10(b) rights were breached, but only for the latter ground by failing to give him reasonable access to counsel. [48] Section 10(b) of the Charter 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 [49] First, Mr. Arthur argues that the RCMP failed to fulfill the "informational duty" when they did not inform him of his right to counsel without delay. [50] The British Columbia Court of Appeal in R. v. Montgomery, 2009 BCCA 41, explained the meaning of 10(b) in these circumstances: [33] If an arrested person indicates that he or she wishes to exercise the right to counsel, the police have the duties, except in urgent or dangerous circumstances, to provide the person with a reasonable opportunity to exercise the right, and to refrain from eliciting evidence from the person until he or she has had a reasonable opportunity to retain and instruct counsel: see R. v. Manninen, [1987] 1 S.C.R. 1233, 34 C.C.C. (3d) 385, and R. v. Bartle, [1994] 3 S.C.R. 173, 92 C.C.C. (3d) 289. [51] What constitutes a reasonable opportunity will vary between cases. Thus, in R. v. Camacho, 2011 BCSC 175 affirmed at 2013 BCCA 68, the Court held: [42] ... What amounts to "without delay" within the meaning of s. 10(b) will vary depending on the circumstances of the case. Here there is no reason why the police could not have explained Mr. Camacho's right to counsel to him as soon as he was detained. [52] Mr. Arthur submits that this case is analogous to Camacho which concerned the execution of a search warrant on a home. Mr. Camacho was detained and there was a total of 11 to 14 minutes of unexplained delay between Mr. Camacho's detention and when he was informed of his right to counsel. The court found this was a breach of 10(b). [53] The circumstances of Mr. Arthur's case were very different from Mr. Camacho's. In this case, there was a 10-minute delay between Mr. Arthur's detention and the moment he was informed of his right to counsel. Mr. Arthur was not in a secured house that was being searched like Mr. Camacho. He was in a busy parking lot at a busy time. I find in the circumstance that the 10-minute delay does not breach his right to be informed of his right to counsel. [54] Second, Mr. Arthur argues that the RCMP breached his s. 10(b) rights by failing to provide him with a reasonable opportunity to exercise his right to counsel. [55] In this case, Mr. Arthur requested to speak with counsel at 5:10 p.m. when he was informed of his right to do so. Rather than make efforts to facilitate his right to access, the RCMP deliberately delayed his access to counsel for over two hours until Constable Lively attended his cell to read him his Charter rights at 7:14 p.m. I accept, from that point, Mr. Arthur waived his right to counsel by saying, "I don't even know what's going on. I don't know if I need a lawyer yet." However, for the two hours before that, the RCMP, on Corporal Powell's instruction, deliberately delayed Mr. Arthur's access to counsel. From approximately 6:02 to 7:14, they were delaying that Charter-mandated access while Mr. Arthur was in a cell at the Burnaby detachment. [56] Corporal Powell was not entitled to suspend Mr. Arthur's immediate right to speak with counsel for fear of losing evidence. At least from the point he was in the Burnaby detachment, the police could have ensured that Mr. Arthur was speaking only to his counsel. There was no risk that he would inform any of Mr. Arthur's associates to destroy evidence. [57] I note this is not a determination that Corporal Powell was not credible in his testimony. Rather, it is concluding that his reasons provided to the court did not establish a valid basis to delay access to counsel. [58] I find that the RCMP did not provide Mr. Arthur with a reasonable opportunity to access counsel and that, by failing to do so, they breached his s. 10(b) rights. [59] Mr. Arthur's choice to waive his s. 10(b) rights at 7:14 p.m. had no impact on the deliberate delay of his right to access counsel. He was clear at 5:10 p.m. that he would like to contact his lawyer and, from that point to his subsequent waiver, the police were obligated to make reasonable efforts to facilitate that access. [60] The Crown cited R. v. Radjenovic, 2011 BCSC 1839, to suggest that a long delay can be warranted in some circumstances. In that case, Butler J. held that the accused's 10(b) rights were not breached when the police did not give him access to counsel at the site of the arrest. He accepted that approximately 3.5 hour delay in access to counsel was acceptable under the circumstances and noted that the situation was "exceptional" at para. 53. In that case, the accused was arrested on a busy street in a car which contained 127 handguns. He possibly had a firearm on his person. After his arrest, the police needed to coordinate the arrest of other likely armed targets. There was a risk that evidence at the scene of the arrest would be lost due to a lot of public interest surrounding the events. [61] That case is distinguishable from the present case. Butler J. noted that the circumstances in that case were exceptional. There was no evidence that Mr. Arthur was violent and police did not need to coordinate any other arrests. Also, unlike the case before Butler J., there was no risk that Mr. Arthur would use the phone call for an improper purpose once he was at the Burnaby detachment with the safeguards available through the use of a private room to speak with counsel from the detachment. [62] In summary, I am satisfied that the RCMP effected Mr. Arthur's arrest based on reasonable grounds, but did not facilitate his immediate and reasonable access to counsel. The RCMP did not breach Mr. Arthur's Charter right against unlawful arrest. I find, however, a breach of Mr. Arthur's 10(b) right to counsel in these circumstances. IV. PROJECT E-PISTOLOGY A. The Facts [63] Project E-Pistology was administered by the Combined Forces Special Enforcement Unit, hereinafter referred to as CFSEU, a unit composed of RCMP and a number of municipal forces. The investigation targeted individuals who were allegedly involved in a conspiracy to import cocaine from the United States including a man named Christopher Mehan. Corporal Anita Furlan was a file coordinator of the investigation from June 2008 to June 2009. [64] Mr. Arthur was not known or targeted in that investigation prior to his arrest on May 4, 2009. [65] On Monday, May 4, 2009, Corporal Furlan was one of the only people in the CFSEU office. That morning, she reviewed the newly intercepted communications from the targets' email accounts. After reading Christopher Mehan's emails from the evening of May 3, she concluded that Mr. Mehan received a shipment of approximately 50 kilograms of what she believed to be cocaine. Mr. Mehan was contacting individuals to meet him to inspect or purchase the product. [66] In particular, Corporal Furlan reviewed an email chain between Mr. Mehan and someone using the email address "bigdaddykane@prosperitas.cc". It appeared that the person using the email would visit Mr. Mehan around 1:00 p.m. the next day to take a look at the cocaine. The buyer was interested in purchasing "10 to 20 units" which, based on her experience, she took to mean 10 to 20 kilograms of cocaine. Corporal Furlan determined that CFSEU should establish surveillance on Mr. Mehan's residence that day in anticipation of this meeting and others. [67] At 11:00 a.m. that day, Corporal Furlan held a briefing meeting for the investigative team which included, among others, Detective Michael Campbell. She gave the team a summary of the information she had obtained regarding the belief that Mr. Mehan had received a large quantity of cocaine the previous day and numerous people would be entering the building to pick up the cocaine. She also informed them about the specific email chain between "bigdaddykane" and Mr. Mehan. [68] She informed the team that Burnaby RCMP general duty members would conduct a traffic stop of a previously unknown target if they determined a drug transaction took place and money or cocaine was to be taken out of the residence. Detective Campbell was the point person with the general duty members. She said she appointed him because: [W]hen you have a mobile target or somebody getting into a vehicle and leaving ... it's very fluid and it happens quickly and if there was indeed drugs that had gone into a vehicle, then we wanted to ensure there was continuity. [69] She also briefed the Burnaby general duty members, advising them of the information concerning the expected drug transaction. Any arrest would be based in part on Corporal Furlan's knowledge which was communicated at the 11:00 a.m. meeting. Constable Cassidy's testimony that Officer Furlan advised them to stop an unknown male for possession for the purpose of trafficking and to search the vehicle and that Corporal Furlan did not tell her and Constable Saran anything about the unknown male to be arrested is in difference to the evidence of Corporal Furlan. In this regard, I prefer the evidence of Officer Furlan who had a far more detailed recollection of the events surrounding the matter. [70] After the meeting, Corporal Furlan became aware that the 1:00 p.m. meeting would not occur as scheduled. Emails between Mr. Mehan and "bigdaddykane" indicated that the meeting time would be delayed. At some point during the surveillance, one of the surveillance members may have been "burned" or identified by Mr. Mehan, as well. This cast some doubt on the prospects of the meet occurring at all. [71] An email sent was at 2:10 p.m. from "bigdaddykane" to Mr. Mehan and was intercepted by the investigation team. It said, "Three minutes away". There was no email from Mr. Mehan in response. [72] Corporal Furlan was advised that the investigation team had investigated a 2:25 p.m. telephone call from a man to Mr. Mehan's phone. Corporal Furlan recalls that the unknown man said, "Don't you have your thing" and asked if "he should go into the undy". She interpreted from this call that the user of "bigdaddykane@prosperitas.cc" had arrived at Mr. Mehan's apartment and called because Mr. Mehan did not respond to the email saying, "Three minutes away" using his BlackBerry. She interpreted that "go into the undy" referred to the underground parking lot at Mr. Mehan's building. This confirmed to her that "bigdaddykane" was at Mr. Mehan's building. She discussed this information with the Burnaby members and then Detective Campbell at around 2:37 p.m. [73] There were no subsequent emails from "bigdaddykane" to Mr. Mehan. [74] After she spoke with Burnaby members, Corporal Furlan became aware that a vehicle had tried and failed to get into the underground parking lot earlier. It waited a minute, then pulled out and parked in front of the building. A male was identified getting out and entering the building with a "man purse." [75] When the officers looked back, the times of the intercepted 2:18 p.m. email and the 2:25 phone conversation correlated exactly to the time when the vehicle attempted to get into the underground parking lot, reversed, and parked outside. The vehicle was a Jeep Cherokee with license plate "MDT 332." Corporal Furlan and Detective Campbell, in communications with each other, decided that that vehicle and individual would be the focus of the investigation. [76] When Corporal Furlan ran the plates in the police system at about 3:30 p.m., she found the registered owner was a person named Robert Arthur who had been involved in a cash seizure a month earlier. She did not see a picture of the registered owner. She was not personally familiar with Robert Arthur. [77] Other people arrived over approximately the next 90 minutes including mention of two known associates of Mr. Mehan. At 4:02 p.m., Corporal Furlan was advised by Detective Campbell via BlackBerry PIN message that the driver of the Jeep Cherokee came out with a box. Corporal Furlan did not believe she directed Detective Campbell to make an arrest on that information, but she was clear that Detective Campbell knew that if he believed a drug transaction had occurred and the subject went in empty-handed and left with a box, he was to direct the Burnaby RCMP to effect a stop. In Corporal Furlan's view, that was the last element of the offence that needed to take place to solidify the grounds for arrest in conjunction with the information she had already gathered. [78] Constables Saran and Cassidy were the uniformed Burnaby RCMP officers who completed the stop of the vehicle. They were advised by Detective Campbell to effect the stop of the vehicle in question. At 4:10, the officers initiated the stop solely for the purpose of arresting the unidentified driver of the vehicle. There was no traffic violation. The vehicle stopped immediately when the police lights and siren were activated, according to Officer Saran. [79] At 4:10 p.m., Detective Campbell advised Corporal Furlan that the vehicle had been stopped. [80] At 4:14 p.m., Constable Saran took Mr. Arthur to the back of the vehicle and informed him he was under arrest for possession for the purpose of trafficking. At that point, he gave Mr. Arthur his Charter rights from memory. [81] Constable Cassidy secured a "man purse" which was across Mr. Arthur's body before handcuffing him. She then searched the vehicle and discovered a large box in the trunk which contained what she believed to be ten vacuum-packed bricks of cocaine. [82] At 4:25 p.m., Constable Saran read Mr. Arthur his Charter rights, this time verbatim from a police-issued card. At this point, Mr. Arthur informed Constable Saran that he wanted to call a lawyer. [83] Though Mr. Arthur requested it, Constable Saran did not give Mr. Arthur the opportunity to make a phone call to a lawyer at the scene of the arrest. He was not read the police supplemental Charter warning which is normally given to people who request to speak to counsel. [84] Constable Saran indicated that it was not practical to provide Mr. Arthur access to counsel at the scene for a number of reasons. He said he did not have a cellphone with him that he could allow Mr. Arthur to use; he could not give Mr. Arthur privacy because he could not let him make a phone call alone in the back of the police car without an officer in the vehicle due to the risk that he might try to fight or run when the officer tried to re-secure him; and, further, that the detachment was nearby. [85] Neither of the officers tried to elicit any information from Mr. Arthur before he exercised his right to counsel. [86] At 4:36 p.m., Constable Cassidy advised Corporal Furlan that the driver was the registered owner and they had located a box that contained what appeared to be a large quantity of cocaine. [87] A tow truck arrived at the scene at 4:43 p.m. to pick up Mr. Arthur's vehicle. [88] The officers then drove Mr. Arthur to the Burnaby detachment arriving at 4:53 p.m. [89] Upon arrival at the detachment, Constable Cassidy emptied the contents of the man purse and found approximately $3,660 in cash and two BlackBerry cellphones. She took down the serial numbers of the phones and recorded who was calling the phone as calls came in, but did not obtain any information by opening the lock screen. [90] At 4:58 p.m., Mr. Arthur was put in a secured room to communicate with counsel. Mr. Arthur had a private call with counsel at 5:02 p.m. which ended at 5:05 p.m. [91] After the call, Constable Saran finished booking Mr. Arthur and took photographs and fingerprints. He did so with Mr. Arthur's verbal consent. [92] Mr. Arthur was released later that night. B. Issues [93] The events of May 4 give rise to similar issues to those of April 4, 2009. The issues before the court are: 1. Did the CFSEU have reasonable and probable grounds to arrest Mr. Arthur on May 4, 2009? If the grounds were present, who formulated them; at what time? 2. Was Mr. Arthur provided reasonable access to counsel pursuant to his 10(b) right to counsel? 3. Did Constable Cassidy breach Mr. Arthur's s. 8 right against unreasonable search and seizure by inspecting his cellphones without any instructions to do so from her superiors? 4. Did Constable Saran breach Mr. Arthur's s. 8 rights when he subjected Mr. Arthur to fingerprinting and photographing at the Burnaby detachment? C. Analysis 1. Did the CFSEU have reasonable and probable grounds to arrest Mr. Arthur on May 4, 2009? [94] Mr. Arthur argues that the police did not have reasonable and probable grounds to arrest him on May 4, 2009. I, respectfully, cannot accept that argument. [95] The arrest of May 4, 2009, was completely independent from the arrest of April 9, 2009. [96] The analysis in these circumstances is complicated by the issue of whose reasonable and probable grounds Mr. Arthur's arrest was based upon. [97] It is settled law that a police officer can effect an arrest based on the reasonable and probable grounds possessed by another officer. The law was summarized by Joyce J. in Shokar, at 2006 BCSC 770: [21] The police officer who must have reasonable and probable grounds to arrest is the one who decides that the suspect should be arrested. The officer who actually effects the arrest is entitled to rely on the request or instruction of another police officer who has the requisite reasonable and probable grounds to justify the arrest. It is not necessary that the officer who actually performs the arrest form an independent judgment that there are reasonable and probable grounds. (See DeBot, supra, and R. v. Hall, [2006] S.J. No. 92, 2006 SKCA 19). [98] After evaluating the evidence, it appears to the court that what happened here was a complex application of this simple rule. Evidence establishing grounds was communicated by Corporal Furlan to, amongst others, Detective Campbell who ordered the arrest of Mr. Arthur on the basis of those grounds in follow-up of the information and additional information obtained through surveillance. To that limited extent, I prefer Corporal Furlan's evidence to that of Detective Campbell, who was not sure of the means by which he communicated with Corporal Furlan at the time the decision to arrest the person who turned out to be Mr. Arthur. I accept that Detective Campbell simply forgot that he only communicated his decision to arrest the individual by a text message to which Corporal Furlan did not respond. It is undisputed that Detective Campbell ultimately informed Constable Cassidy and Saran to effect the arrest. Thus, I conclude that grounds for arrest were formulated by Detective Campbell based on the cumulative evidence before him from Corporal Furlan's briefing, the newly intercepted communications, and the surveillance of that day. [99] Corporal Furlan communicated the intercepted communication evidence on which the surveillance was based to the other officers, including Detective Campbell, at the 11:00 a.m. briefing on May 4, 2009. That informed the other officers that Mr. Mehan was suspected to be holding approximately 50 kilograms of cocaine in his residence, where evidence indicated that a number of people would be coming to examine and purchase the cocaine, one of whom was interested in 10 to 20 K and using the email address bigdaddykane@prosperitas.cc. The intercepted communication also established that "bigdaddykane" and Mr. Mehan planned to meet at 1:00 p.m. that day. At this stage, she informed the officers of her belief that they should effect an arrest if they observed evidence that a drug transaction had occurred. I accept that the other officers, particularly Detective Campbell, were apprised of all of this evidence after 11:00 a.m. [100] Corporal Furlan and Detective Campbell were both aware of the emails which indicated "bigdaddykane" would arrive later than 1:00 p.m. They both knew that a phone call was intercepted from an unidentified man asking if he should go into the "undy." They both determined that the phone call, the email from "bigdaddykane" indicating he was three minutes away, and an event in which a Jeep Cherokee tried and failed to enter Mr. Mehan's underground parking garage correlated exactly. However, Corporal Furlan indicated in the briefing that this was not enough to effect an arrest of the unknown individual whom the evidence suggested was using the "bigdaddykane" email address. [101] It was only after Detective Campbell became aware that the unknown driver of the Jeep Cherokee, later identified to be Mr. Arthur, had left the premises with a box of some weight and placed it in the Jeep Cherokee, that he ordered the Burnaby uniformed members to effect the stop. [102] Because it was Detective Campbell who ordered the arrest, the information obtained by Corporal Furlan regarding Mr. Arthur as the registered owner and his involvement in a cash seizure a month earlier did not constitute a ground for arrest. [103] I find that the sum of occurrences in this investigation established Detective Campbell's reasonable and probable grounds to effect the arrest of Mr. Arthur. The CFSEU officers sought to arrest previously unknown individuals who purchased large quantities of cocaine from Mr. Mehan. There was evidence that "bigdaddykane" would be purchasing a large quantity of cocaine from Mr. Mehan, specifically 10 to 20 kilograms. Though police established it after the arrival of the Jeep Cherokee at Mr. Mehan's, the timing of the arrival of the vehicle and its failure to enter the underground parking lot created a consistent timeline in which "bigdaddykane" informed Mr. Mehan that he would be arriving in three minutes. [104] The Jeep Cherokee being driven by Mr. Arthur arrived and the vehicle could not enter the underground parking lot and a man calls Mr. Mehan asking to enter the underground lot. No other vehicles arrived within this window of time. This gave a reasonable belief that the driver of the vehicle was "bigdaddykane". The driver, later found out to be Mr. Arthur, was identified visually by a member of the surveillance team. That same driver was identified leaving with a weighted bag consistent with a large quantity of cocaine. All of this information was possessed by Detective Campbell when he ordered the police officers to effect the arrest of the driver. I reiterate that the police need not establish on a balance of probabilities that a target has committed a crime. Under these circumstances, I am satisfied that Detective Campbell had sufficiently reasonable and probable grounds, both subjectively and objectively, to order the arrest of Mr. Arthur for possession for the purpose of trafficking. That arrest was effected by Constables Saran and Cassidy based on Detective Campbell's grounds. Accordingly, Mr. Arthur's s. 9 right against unlawful arrest was not breached. 2. Did Burnaby RCMP officers breach Mr. Arthur's s. 10(b) Charter rights? [105] Mr. Arthur argues that Constables Saran and Cassidy violated his 10(b) right to counsel by refusing to let him contact counsel via cellphone in the back of the police car. This concerns reasonable access to counsel. I find that Mr. Arthur was afforded reasonable access to counsel in these circumstances. [106] Defence counsel submits that this case is analogous to Camacho. In Camacho, Barrow J. held that the police had breached the accused's 10(b) rights by failing to let him contact counsel at the scene of his detention. He reasoned: [44] In [Manninen], Lamer J. (as he then was) held that s. 10(b) requires that the police, where there is a telephone available, allow a suspect to make use of it. As a general proposition, there is no justification for refusing access to counsel until the suspect is returned to the police station. Exigent circumstances may make that reasonable in a particular case but there were no such circumstances here. Further, there is no reason why Mr. Camacho could not have had the privacy that the backseat of a police car affords. As noted, while I accept that Cst. Greenhalgh would have allowed that, Mr. Camacho was not told as much. His right to counsel was, in the circumstances, violated. [107] Thus, it follows in the defence submission that since Mr. Arthur had cellular phones in his vehicle and the back of the police car was available for use at the roadside stop, the failure to let him contact counsel at the location he was arrested constituted a violation of s. 10(b). I cannot accede to that argument. [108] Camacho was followed in the context of roadside access to counsel in R. v. Smith, 2011 BCSC 1695. The Court reasoned: [179] It is clear from [Manninen], that where there is a telephone available then a detainee ought to be afforded the opportunity to contact counsel before being required to participate in any sort of interview or process. Thus the right to counsel and the opportunity to exercise that right must be afforded immediately where the circumstances permit. Camacho extends the requirement of immediacy to the time of immediate availability of a cellular telephone. Provided it is not impractical to permit a telephone call before arriving at a police detachment, then a detainee ought to be afforded the opportunity to contact counsel at roadside, even from the back of a police vehicle, if privacy can be afforded to the detainee. The point is the detainee ought to be apprised of this where the option exists and if it is feasible to facilitate. [109] In Smith, the accused was in possession of a machete during an altercation that arose at a party together with a co-accused. Smith pursued the deceased who was killed by injuries from the machete. He had made a statement. He claimed that he had been coerced into confessing without having the opportunity to consult with counsel. He applied to have his confession excluded under s. 10 and the application was granted. Following the arrest, the police intended to have an undercover officer arrest him and with getting a confession as one of their primary goals. He indicated there was a specific lawyer that he wished to contact. He was arrested in the bush where there was no cellular contact. The police failed to turn their minds to the fact that eventually there would be cellular phone service in certain areas along the lengthy drive to the detachment; however, they did not stop. It was asserted that this was a violation of the right to counsel. He was additionally asking for a specific lawyer in Quesnel and counsel argued that it was a failure for the officer not to obtain this number via dispatch and, from there, the Yellow Pages. As noted, Ker J. in that decision points to that option of using a cellphone where it is feasible to facilitate. However, she states: [183] I adopt this analysis and reiterate that practical considerations and the reality of the circumstances that arise in any particular case are the crucial foundation to the application of the principles to any factual matrix. [184] Although Mr. Smith was arrested in a remote location in northern B.C. in the winter, we simply do not know whether it would have been impractical in this case to attempt to facilitate access with counsel because the officers never turned their minds to it and never tried, nor does anything in the evidence suggest there were exigent circumstances or other officer safety concerns. [110] Subsequent case law suggests that circumstances surrounding some roadside arrests in which a vehicle is searched incident to that arrest may constitute exigent circumstances in which it is impractical to facilitate access to counsel at the scene of the arrest. [111] In R. v. Ashby, 2011 BCSC 513, the accused was arrested at the roadside for possession of 21 kilograms of marijuana after her vehicle was pulled over. The arresting officer declined to provide Ms. Ashby with his cellphone or to get her cellphone to allow her to access counsel. Instead, he searched her vehicle and waited until another officer arrived at the scene to watch the vehicle until it was towed. She was given access to counsel at the detachment. The court found that Ms. Ashby's s. 10(b) rights were not violated. [112] In the present case, there was a 50-minute delay between when Mr. Arthur advised that he would like to speak to counsel and when he was allowed to exercise that right at the Burnaby detachment. However, it was not an unreasonable delay. This is not a case like Smith in which the officers did not even turn their mind to facilitating roadside access. Constable Saran considered whether he could facilitate roadside access, but determined it was impractical to do so. Mr. Arthur's car was stopped on a busy street. It was obstructing a lane of traffic. Constable Saran indicated, under those circumstances, it was not reasonable to let Mr. Arthur make a phone call in the back of the police car without an officer in the vehicle being there because there was a risk that Mr. Arthur would try to run or try to fight when the officer opened the door. He was previously unknown to the officers and had been arrested for possession of a large quantity of cocaine. Such a circumstance would involve significant risk with the busy traffic surrounding the location of the stop. I accept there was no reasonable way for the officers to allow Mr. Arthur to access counsel in the police car with adequate privacy and consideration for officer safety. The only suggestion put to Constable Saran was putting the cellphone to Mr. Arthur's head while he spoke and I find in these circumstances that is impractical and would not have afforded privacy. Constable Saran also noted that leaving to allow Mr. Arthur access to counsel at the detachment before the tow truck arrived would have left the area unsafe for the public. I accept that the officers had to wait until the road was safe to leave. Mr. Arthur's access to counsel was facilitated immediately upon his arrival to the police station. These were the kind of exigent circumstances which Barrow J. discusses in Camacho and were not present in Smith. [113] Under these circumstances, this delay and the decision not to allow Mr. Arthur to make a call on one of his phones at the scene of the arrest did not breach his 10(b) right to counsel. [114] I note that this conclusion should not be read as a general statement that officers are not required to facilitate access to counsel at a roadside detention or arrest. What constitutes reasonable access will vary with the circumstances of each case. On a less busy road or in a more controlled situation, it may have been reasonable to facilitate roadside access to counsel when a phone is available. 3. Did Constable Cassidy breach Mr. Arthur's s. 8 right against unreasonable search and seizure by inspecting his cellphones without any instruction to do so from her superiors? [115] Counsel for Mr. Arthur argues that Constable Cassidy's search of Mr. Arthur's cellphones constituted a breach of his s. 8 right against unreasonable search and seizure. Counsel referred to her conduct with the cellphones as "ham-handed". [116] The law in British Columbia allows the police to search an unprotected cellphone incidental to arrest. In R. v. Goodkey and Krieger, 2012 BCSC 2027, Willcock J. held: [70] To seize and search the cell phones and text messages of individuals suspected of trafficking in controlled substances appears to me to be an exercise incidental to the arrest of such individuals for that offence. The search of unprotected devices more closely resembles the search and seizure of the black book of someone suspected of trafficking, referred to in the reasons for judgment of Mr. Justice Trafford in R. v. Polius, [2009] O.J. No. 3074 (Ont. SCJ), than the locked briefcase referred to in the same judgment. [117] Contrary to being "ham-handed" searching through the protected contents of the phone, Constable Cassidy exercised significant restraint in her search. She never tried to access the contents of the cellphone and, in fact, did not even determine if it was password-protected. She only recorded the IMEI numbers on the phones and information that appeared on the screen while Mr. Arthur was detained. The search was not invasive. That conduct, based on Goodkey and Krieger, does not violate s. 8 of the Charter. The accused's Charter argument is, therefore, dismissed. [118] Defence counsel also suggested that Constable Cassidy needed to be directed by a superior to lawfully search the cellphones. I first note that Constable Furlan advised Constable Saran to note the IMEI numbers and any missed calls on the phone. I find it to be a logical inference on the evidence that Constable Saran told Constable Cassidy that. However, the factual issue is not important because this argument is also not persuasive on legal grounds. Search incident to arrest is not identical to grounds for arrest. An investigating officer need not formulate reasonable and probable grounds for the search. The power to search incident to arrest draws its authority from the arrest itself. I am cognizant of the Supreme Court of Canada's direction in R. v. Caslake, [1998] 1 S.C.R. 51, and that the limits of the common law power to search incident to arrest must be respected. In that decision, the majority of the Supreme Court held: [13] In this case, the Crown is relying on the common law power of search incident to arrest to provide the legal authority for the search. In [Cloutier v. Langlois, [1990] 1 S.C.R. 158], supra, my colleague L'Heureux-Dubé J. (for a unanimous Court) discussed this power in detail. She held that it is an exception to the ordinary requirements for a reasonable search (articulated in [Hunter v. Southam Inc., [1984] 2 S.C.R. 145]) in that it requires neither a warrant nor independent reasonable and probable grounds. Rather, the right to search arises from the fact of the arrest. This is justifiable because the arrest itself requires reasonable and probable grounds (under s. 494 of the Code) or an arrest warrant (under s. 495). However, since the legality of the search is derived from the legality of arrest, if the arrest is later found to be invalid, the search will be also. As Cory J. stated in R. v. Stillman, [1997] 1 S.C.R. 607, at para. 27, "[n]o search, no matter how reasonable, may be upheld under this common law power [of search incident to arrest] where the arrest which gave rise to it was arbitrary or otherwise unlawful." [14] In Cloutier, L'Heureux-Dubé J. also recognized the potential breadth of this police power. She held that the court must balance the state's interests in law enforcement and the protection of the police against the arrested person's interest in privacy in order to determine whether a search was a reasonable and justifiable use of the police power. She then set out three important limits on the power to search incident to arrest (at p. 186): 1. This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search. They must be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives. 2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for example if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions. 3. The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation. If all three of these conditions are met, and the arrest itself is lawful, the search will be "authorized by law" for the purposes of s. 8 of the Charter. In the case at bar there is no allegation that the arrest was unlawful or that the search was abusive. Rather, the problem in this case is that the objective and scope of the search exceeded its permissible limits. [119] In particular, I am aware that the search must be for a valid objective such as the discovery of evidence for which the person is arrested. [120] In this case, Constable Cassidy knew that she was to look for evidence of possession of an illegal substance for the purposes of trafficking from the direction of Constable Furlan. Mr. Arthur had a man purse on his person when he was arrested. Constable Cassidy secured the purse and eventually brought it into the detachment with the bricks of powder believed to be cocaine that were in Mr. Arthur's car. She found the bundles of cash totalling nearly $3,700 and the two BlackBerry cellphones inside the man purse. She then searched the phones in the limited manner stated above. The limited search of those phones was conducted for the purpose of gathering evidence that Mr. Arthur was in possession of a drug for the purpose of trafficking. This is far from a purposeless search or a "fishing expedition." The phones were with a large quantity of cash in a bag found on the person of someone whose vehicle had 10 kilograms of cocaine in it. His phones, in such circumstances, were subject to a reasonable search incident to arrest. Phones were not - the phones were returned to him the night of May 4 when he was released, according to Constable Cassidy's evidence which I accept. [121] Counsel for the defence also put in R. v. Telus Communications Co., [2013] S.C.J. No. 16, 2013 SCC 16, before the Court. That case concerned police conscription of text messages which were briefly stored at a service provider's facilities during their communication through the use of a general warrant pursuant to s. 487.01 of the Criminal Code. The court held in that case that the prospective acquisition of text messages should be subject to Part VI of the Criminal Code which governs the interception of communications. [122] Counsel did not suggest that Constable Cassidy's recording of the information which appeared on the screens of Mr. Arthur's cellphones constituted an unlawful interception of communication in contravention of Part VI of the Criminal Code. I, therefore, do not find Telus Communications has a bearing on the present case. [123] Finally, defence counsel asserted that some of Mr. Arthur's BlackBerry cellphones were not returned. As noted, I find that, in the evidence before me, that Mr. Arthur's phones were returned to him on release. 4. Did Constable Saran breach Mr. Arthur's s. 8 right when he subjected Mr. Arthur to fingerprinting and photographing at the Burnaby detachment? [124] Defence counsel also argues that Constable Saran breached Mr. Arthur's s. 8 Charter rights when he subjected Mr. Arthur to fingerprinting and photographing at the Burnaby detachment when Mr. Arthur had not been charged with an indictable offence. This argument is based on the failure to comply with s. 2 of the Identification of Criminals Act, R.S.C. 1985, c. I-1 which reads: 2.(1) The following persons may be fingerprinted or photographed or subjected to such other measurements, processes and operations having the object of identifying persons as are approved by order of the Governor in Council (c) any person alleged to have committed an indictable offence ... [125] This issue was recently addressed by Bruce J. in R. v. Bishop, 2013 BCSC 522, at paragraphs 133-134, wherein she states: [133] Returning to the case at hand, whether or not the common law right to fingerprint an accused upon arrest continues to exist in spite of the enactment of the Identification of Criminals Act, I am unable to accept that a violation of the Act must be deemed to be a breach of the accused's rights under s. 8 of the Charter. The authorities cited above support a conclusion that photographing an accused in the course of a police investigation is not a search. I agree. I am also satisfied that if a photograph of an accused during the booking-in process can be regarded as a search, it is not unreasonable provided the arrest is lawful. A photograph at this time is necessary to identify the accused, particularly if he is detained in custody. It is not a serious invasion of privacy in the circumstances. [134] Equally, fingerprinting an accused who is lawfully arrested and taken into custody, if it may be regarded as a search, it is not an unreasonable one. As the Court noted in [R. v. Beare, [1988] 2 S.C.R. 387], fingerprints have become an integral part of the criminal justice system at every stage; they assist the police to investigate crimes and can establish the innocence of an accused. The act of fingerprinting is a nominal intrusion into the accused's privacy provided his arrest is lawful. [126] As the fingerprinting and photographing of Mr. Arthur did not constitute a search, that conduct did not breach his s. 8 Charter rights. [127] This section has been considered following the decision of the Supreme Court of Canada in Beare by Courts of appeal including the Québec Court of Appeal in R. v. Bourque, [1995] 103 C.C.C. (3d) 559, which found a common law power existed. The British Columbia Court of Appeal's decision in R. v. Connors (1998), 49 B.C.L.R. (3d) 376, resulted in three separate judgments being rendered on the issue. On my analysis, the reasons of Newbury J.A., together with the reasoning of Cummings J.A., result in the position that the Identification of Criminals Act, R.S.C. 1985, c. I‑1, insofar as indictable offences are concerned, has not displaced the common law power. Newbury J.A. stated: [117] ... On the question of the common law right to fingerprint incidental to general powers of search, although there may well have been a common law power to take fingerprints as part of the general powers of search at the time of arrest, I read the Identification of Criminals Act as displacing that power insofar as summary conviction offences are concerned. In other words, I read the Act as "occupying the field" and not as augmenting any powers which police officers had at common law. [118] ... As earlier indicated, I find it unnecessary to address whether common law powers of fingerprinting would have violated the Charter. [128] Thus, Connors only concluded that the Identification of Criminals Act displaces the common law power to search incident to arrest with regard to summary conviction offences. The Court of Appeal left existence of a common law power issue of fingerprints and photographs incident to arrest for indictable offences open. As that issue was left open by the Court of Appeal, I follow Bruce J.'s reasoning in Bishop. [129] Counsel made submissions on the effect of Bill C-31 and related documents in which it was suggested that the Identification of Criminals Act should be amended to remove the requirement that a person in lawful custody be charged with an indictable offence before they may be fingerprinted or photographed. It was argued that the Department of Justice having taken this position must conclude no common law power to photograph and fingerprint exists in the absence of a charge. That bill died on the Order Paper and the amendment was never enacted in subsequent legislation. Defence counsel argues that the facts that this amendment was proposed and its legislative summary suggested the Department of Justice proposed the amendment because the police did not have authorization to photograph and fingerprint which resulted in delays amongst other things. The federal Interpretation Act, R.S.C. 1985, c. I-21, demonstrates that this argument cannot succeed. Section 45 of the Interpretation Act states: 45. (2) The amendment of an enactment [shall be deemed -] shall not be deemed to be or involve[d] a declaration that the law under enactment was or was considered by Parliament or other body or person by whom the enactment was enacted to have been different from the law as it is under the enactment as amended. (3) The repeal or amendment of an enactment in whole or in part shall not be deemed to be or to involve any declaration as to the previous state of the law. [130] Even if the amendment was brought into force, it could not be suggested that there was no common law power to fingerprint or photograph incident to a lawful - to a lawful arrest. I note, as well, the comments of Pierre-André Côté in the fourth edition of The Interpretation of Legislation that parliamentary history is to be used with care and his comments therein at page 466. [131] To the extent defence counsel argues that the Department of Justice cannot bring in an argument that a common law power exists because of its alleged position according to the legislative summary attached to Bill C-31, I find that a legislative summary written by a representative of the Library of Parliament is not reflective of any Department of Justice position, in any event. I, therefore, do not need to address what, if any, persuasive force such a position should have on the state of the common law. [132] Defence counsel cited numerous authorities to suggest that Bruce J.'s decision in Bishop was wrongly decided. I reproduce para. 102 of her decision as follows: [102] Mr. Bishop and Mr. Brien argue that the police violated their rights under s. 8 of the Charter by taking their fingerprints and photographs before charges were laid. In support of this argument, the accused rely upon R. v. Connors (1998), 155 D.L.R. (4th) 391 (B.C.C.A.); R. v. Nicholson, [1999] B.C.J. No. 1330 (S.C.); R. v. Nguyen, 2001 BCSC 1869; R. v. Pham, 2003 BCPC 276; R. v. Temple, 2005 BCSC 243; R. v. Nguyen, 2005 BCPC 202; R. v. Bui, 2006 BCPC 47; and R. v. W.M., 2006 BCSC 423 [133] These are most of the authorities upon which defence counsel seeks to rely in favour of the proposition that there is no common law power to fingerprint or photograph before a charge is laid. Clearly, Bruce J. has considered and rejected these authorities in coming to her conclusion. [134] I reject the defence argument. In accordance with the principles outlined in Hansard Spruce Mills (Re), [1954] B.C.J. No. 136, wherein Wilson J. states: [4] Therefore, to epitomize what I have already written in [Cairney v. Queen Charlotte Airlines, Vancouver Registry, No. 1066/52], I say this: I will only go against a judgment of another Judge of this Court if: (a) subsequent decisions have affected the validity of the impugned judgment; (b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered; (c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority. [135] Given that there has been subsequent argument, I cannot accede to the argument that I should follow that of Nguyen of Catliff J. and prefer instead the reasoning of Bruce J as set out in her decision in Bishop. [136] Bruce J. had the benefit of thorough argument. As in the words of Wilson J., if none of the situations in (a) to (c) exist, "a trial Judge should follow the decisions of his [or her]" colleagues. [137] Consequently, this argument is dismissed. V. SUMMARY [138] In summary, the only Charter breach found here is that of Mr. Arthur's 10(b) right to counsel after his arrest on April 9, 2009. As there was a breach of the Charter, I will hear argument from counsel with regard to the application of s. 24(2) of the Charter. ____________ "Maisonville J."_____________ Maisonville J.