R. v. Crocker

2008 BCSC 1878 R. v. Crocker IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Crocker 2008 BCSC 1878 Date: 20080513 Docket: 24469 Registry: Vancouver Regina v. Larry Crocker Before: The Honourable Mr. Justice Leask Oral Ruling on Voir Dire #2 Counsel for the Crown B. McKinley Counsel for the Accused appearing by teleconference R. Vachon Place and Dates of Trial: Vancouver, B.C. April 21-25, 28-30; May 1, 5-8, 2008 Place and Date of Judgment: Vancouver, B.C. May 13, 2008 [1] THE COURT: On May 8, I ruled that the evidence seized by the police and entered on this voir dire should be excluded from the trial pursuant to s. 24(2) because I found that, having regard to all the circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute. These are my reasons for coming to that conclusion. [2] In my oral voir dire ruling #1, given on May 5, 2008, I found that: 1. Mr. Crocker's s. 8 Canadian Charter of Rights and Freedoms rights had been violated by Constable Johnson on February 6. 2. Mr. Crocker's s. 8 rights had been violated by Constable Scott's search of the Chevy Silverado during the morning of February 9. 3. Constable Fry's arrest of Mr. Crocker at 12:08 p.m. on February 9 violated Mr. Crocker's s. 9 rights. 4. As a consequence of his unlawful arrest, the searches of Mr. Crocker's person, his backpack, and the Chevy Cavalier carried out incidental to that arrest were all unlawful. 5. The entries to Mr. Crocker's penthouse apartment by Constables Johnson, Smith, and Baldinger and the subsequent entry by members of the Burnaby drug squad in Hazmat gear were not justified by exigent circumstances, were carried out without a warrant, and were consequently violations of Mr. Crocker's s. 8 rights. 6. The strip search of Mr. Crocker by Constable Scott was a violation of Mr. Crocker's s. 8 rights. 7. & 8. The second searches of the Chevy Cavalier and the Chevy Silverado at the North Vancouver detachment during the evening of February 9 were both violations of Mr. Crocker's s. 8 rights. [3] After hearing voir dire ruling number 1, Crown counsel conceded that after making excisions to the Information to Obtain to give effect to my findings, the remaining material would not have provided a sufficient basis for the JJP to issue the search warrant for Mr. Crocker's apartment. Consequently, the Crown conceded the search warrant was not validly issued and the search of Mr. Crocker's penthouse apartment, which commenced at approximately 11:30 p.m. on February 9 and concluded at about 6:00 a.m. on February 10, should be treated as a warrantless search and without lawful justification. [4] During submissions, Crown counsel also conceded that the purported arrest of Mr. Crocker's companion on February 6 for possession of a controlled drug was unlawful as a result of being made without reasonable grounds. Crown counsel also conceded that the arrest of Heather Matilda (identified by Constable Johnson as Mr. Crocker's passenger in the Chevy Cavalier on February 6) by Constable Smith on February 9 in the penthouse on the charge of escaping lawful custody was unlawful for the same reason. No reasonable grounds existed to justify arresting her on that charge. The Crown also conceded that Mr. Crocker's s. 10(b) rights were violated on February 9 when, after asserting his wish to consult counsel, he was asked: first, by either Constable Fry or Constable Scott, whether there was anyone in his apartment; second, by Constable Johnson, which key would open the penthouse door; and third, by one of the Burnaby drug squad members, what they would find on entering the formerly padlocked room within the penthouse. [5] I turn now to s. 24(2) of the Charter. Section 24(2) requires the exclusion of evidence: if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. In determining whether admission of the evidence in question would bring the administration of justice into disrepute, the Court must apply what has been called a "reasonable people in normal times" test. In applying this test, the Court must ask itself, given long-term community values, would the regular admission of the type of evidence in question bring the administration of justice into disrepute in the eyes of a reasonable person dispassionate and fully apprised of the circumstances of the case: R. v. Collins, [1987] 1 S.C.R. 265. [6] In Collins, Mr. Justice Lamer, as he then was, found that the circumstances affecting the repute of the administration of justice can be separated into three groups: 1. factors affecting the fairness of the trial; 2. factors relating to the seriousness of the violation; and 3. factors relating to the disrepute that exclusion of the evidence might cause. [7] Defence counsel has urged me to treat the investigation beginning on February 6 and continuing on February 9 and 10 as one transaction. Although that suggestion is not without merit, I intend to deal first with the February 6 incident before beginning my consideration of the events of February 9. February 6 [8] No submission has been made to me that the very small amount of marihuana seized from Mr. Crocker's hand was conscriptive evidence. It existed independently of the Charter breach in a form useable by the state. Thus, for the reasons discussed in Collins and R. v. Stillman, [1997] 1 S.C.R. 607, admission of this evidence would not itself render the trial unfair and I must therefore move on to consider the seriousness of the violation and the effect of exclusion on the repute of the administration of justice. [9] First, the seriousness of the violation. It was not of the most serious kind. Indeed, the Crown urges me to treat it as a "merely technical" breach. This I am unable to do. When the two police officers approached Mr. Crocker's car, they had a proper basis for an investigative detention. That is, they were seeking information to assist the Vancouver Police Department's investigation of the Costco attempted fraud (described in voir dire ruling #1). They also had a secondary purpose. As part of the pro-active policing role, they wished to learn more about these two strangers who had been talking to some known North Vancouver drug users. [10] Mr. Crocker and Ms. Matilda were entitled to their privacy just as all Canadian citizens are. Interactions between the police and the citizenry on the street are part of the fundamental fabric of our democracy. Being seated in a parked car on a street in the City of North Vancouver is similar to walking down the street in any city in this country. Constable Johnson performed an unreasonable search. He then immediately arrested Mr. Crocker without giving any thought to s. 495(2) of the Criminal Code, R.S.C. 1985, c. C-46. At the same time, he arrested Ms. Matilda, a flagrant misuse of his arrest powers. In the Greater Vancouver Area, it has been true for at least 15 to 20 years that the police and prosecutors do not routinely investigate or prosecute possession of very small quantities of marihuana. An arrest in this situation is out of the ordinary. Constable Johnson put forward no justification for it. His information-seeking mission did not require either the search or the arrest. [11] As to the seriousness of the offence, it is at the very lowest end of drug offences. Serious consideration has been given to decriminalizing possession of small amounts of marihuana in this country. Even in the United States, a number of states have decriminalized possession of small quantities of marihuana. I am satisfied that exclusion of this evidence would bring no disrepute to the administration of justice. [12] Admission of this evidence would bring the administration of justice into disrepute as it would represent judicial condonation of unacceptable conduct by the police. For these reasons, I conclude that the small quantity of marihuana seized by Constable Johnson should be excluded pursuant to s. 24(2) of the Charter. February 9 [13] I now turn to the events of February 9. First, I will deal with the breaches of Mr. Crocker's s. 10(b) rights. [14] The answers Mr. Crocker gave to the questions posed by the different officers were conscriptive. As such, their admission into evidence goes to trial fairness. On the facts of this case, no difficult issue is posed here. The Burnaby drug squad member's question regarding the contents of the padlocked room was obviously motivated by a legitimate concern for officer and public safety based on the information available to him at the time. This does not legitimise prosecution use of the answer as evidence in this trial. Crown counsel concedes that the evidence is conscriptive, that its admission goes to trial fairness, and that it should be excluded. On the basis of his concessions, I am satisfied that the answers elicited from Mr. Crocker in breach of his s. 10(b) rights would bring the administration of justice into disrepute if admitted at this trial and rule that they should be excluded pursuant to s. 24(2). [15] The rest of the evidence obtained by the police on February 9 was clearly non-conscriptive evidence; that is, the accused was not compelled to participate in the creation or discovery of the evidence because it existed independently of the Charter breach in a form useable by the state: R. v. Buhay, 2003 SCC 30 at para. 50. Thus, for the reasons discussed in Collins and Stillman, admission of this evidence would not in itself render the trial unfair, and I must therefore move on to consider the seriousness of the violation and the effect of exclusion on the repute of the administration of justice. There is no automatic inclusion of evidence simply because it is non-conscriptive. Non-conscriptive evidence may or may not be excluded. As Iacobucci J. wrote in R. v. Mann, 2004 SCC 52 at para. 57: The focus of the inquiry is to balance the interests of truth with the integrity of the justice system. [16] Of particular significance in this case is the Supreme Court of Canada's admonition in Collins at page 281 that, "s. 24(2) is not a remedy for police misconduct," and police misconduct during the investigative stage which brings the administration of justice into disrepute is not by itself sufficient to warrant exclusion of illegally obtained evidence. Before it can exclude evidence, the Court must be satisfied that the admission of the evidence would bring even further disrepute to the administration of justice than has the police misconduct by, for example, providing judicial condonation of unacceptable conduct by the investigatory or prosecutorial agencies. The seriousness of the police conduct depends on "whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant": R. v. Therens, [1985] 1 S.C.R. 613 at 652. [17] In Buhay, Madam Justice Arbour at paragraph 52 set out other relevant considerations: whether the violation was motivated by a situation of urgency or necessity; whether the police officer could have obtained the evidence by other means, thus rendering his or her disregard for the Charter gratuitous and blatant; the obtrusiveness of the search; the individual's expectation of privacy in the area searched; and the existence of reasonable and probable grounds. Nature of the Violation [18] The events of February 9 included a large number of Charter violations. Some of them were very serious, a few were at the lower end of seriousness, and some fell in between. The breaches of Mr. Crocker's s. 10(b) rights were serious. The strip search was a serious breach of Mr. Crocker's s. 8 rights. The warrantless entry into Mr. Crocker's apartment with no objective basis for the claim of exigent circumstances was a serious breach of Mr. Crocker's s. 8 rights. The warrantless entry was compounded by the failure to knock and announce before entry, the completely groundless arrest of Ms. Matilda immediately following entry, and the flagrantly unjustified opening of the padlocked inner door within the apartment. [19] Crown counsel having conceded that, with excisions to the ITO based on my earlier voir dire ruling, there would not have been a proper basis for the JJP to issue the search warrant for Mr. Crocker's apartment and the extensive search conducted must be treated as a warrantless search of Mr. Crocker's home. Canadians are entitled to have a reasonable expectation of a high degree of privacy in their homes. This is, therefore, a very serious breach of Mr. Crocker's s. 8 rights. [20] I pause to note that, even if I have fallen into error in treating all of the events of February 9 as one continuing transaction, I find as a fact that the three entries by the police into Mr. Crocker's penthouse on that day are so clearly connected to each other that they constitute a single transaction. [21] At the other extreme, I do not regard the second searches conducted at the North Vancouver detachment of the Chevy Cavalier and the Chevy Silverado as being particularly serious breaches of Mr. Crocker's s. 8 rights. Falling into the mid-range in seriousness are Constable Fry's breach of Mr. Crocker's s. 9 rights by arresting him in the underground parking lot and Constable Scott's breach of Mr. Crocker's s. 8 rights in having the tow truck driver open the Chevy Silverado. The Issue of Deliberate, Wilful, or Flagrant Police Misconduct [22] I am not prepared to find that any of the police officers involved in the February 9 investigation deliberately set out to violate Mr. Crocker's rights. I was impressed by the candour of Constable Smith's evidence when she said about the Crime Reduction Unit, "We didn't plan much." I do have a concern that the modus operandi of the Crime Reduction Unit on that day was to attempt to take advantage of every fortuitous event to maximize their opportunity to obtain evidence against Mr. Crocker. [23] There was no deliberate plan to breach Mr. Crocker's Charter rights. There was an unspoken assumption that it was good police practice to act consistently at the knife edge of permissible conduct. Their lack of experience and Constable Johnson's bad judgment calls found them repeatedly "over the edge", engaged in impermissible conduct. Some of Constable Johnson's decisions, notably the unwarranted entry into the penthouse, were wilful. The breaches of Mr. Crocker's s. 10(b) rights and his strip search after having been properly "booked in" and searched by Staff Sergeant Cumming were "flagrant" violations of his Charter rights. The arrest of Ms. Matilda also constitutes a flagrant breach of her Charter rights. The Buhay Factors [24] Dealing with the factors identified by Madam Justice Arbour in Buhay: 1. The officers were aware on the morning of February 9 that they had no reasonable and probable grounds that would entitle them to obtain a search warrant for any place connected to Mr. Crocker. Constable Johnson believed that he had reasonable and probable grounds to arrest Mr. Crocker for escaping lawful custody. The evidence to give objective support to Constable Johnson's belief has not been led on this voir dire. Nevertheless, it is certainly possible that if Constable Johnson had sought an arrest warrant for Mr. Crocker, he might have obtained one. The real point is that by seeking prior judicial authorization for the arrest, the situation would have been clarified. If a warrant had been obtained for Mr. Crocker's arrest, any of the team could have properly arrested him and a search incident to arrest would have been lawful. Even a subsequent court finding that the arrest warrant was improperly issued would not have had the consequences that proceeding without one has produced. Failure to persuade a judicial officer to issue an arrest warrant would, of course, have clarified the situation for the investigators. 2. There was no urgency or necessity by February 9. 3. The course of conduct I have described would have been a lawful method of proceeding which could have resulted in the officers obtaining the evidence before me. If Mr. Crocker had been lawfully arrested pursuant to an arrest warrant, a search of his person incident to arrest could lawfully have been made. Items found in his possession could have justified the issuance of a search warrant for his apartment. In short, most, if not all, of the material unlawfully seized by the police could have been obtained in a lawful manner. 4. Many aspects of the searches of February 9 were obtrusive. 5. Mr. Crocker had a high and justifiable expectation of privacy with respect to his person and his dwelling place, a lower expectation of privacy with respect to his mother's vehicle, the Chevy Cavalier, and a still lower expectation with respect to the Chevy Silverado. Good Faith of the Officers [25] Dealing with the whole course of conduct on February 9, I find the words of Madam Justice Ryan in R. v. Bohn, 2000 BCCA 239 at paragraph 43, are apposite: There is an absence of good faith in this case, not because the mistake was deliberate, but because it was not reasonable. I have already made a series of findings that the Constables did not behave in a reasonable manner. In considering s. 24(2), I have made additional findings concerning the arrest of Ms. Matilda and the manner of entering Mr. Crocker's apartment for the first unwarranted search. [26] I wish to add here a finding that the manner of arresting Mr. Crocker - described by the officers as code 5 - involving two officers with drawn guns ordering Mr. Crocker to exit his vehicle, lie on his stomach, and have his hands handcuffed behind his back, was in my view unreasonable. Such an approach to arresting a person for escaping lawful custody may be appropriate in many instances. On the information available to Constables Fry and Scott, there was no reason to expect violence or the possession of any weapon by Mr. Crocker at the time of his arrest. [27] Dealing with the search of Mr. Crocker's apartment, the first entry by Constable Johnson was justified by him on the basis of exigent circumstances. I have found there were no such exigent circumstances. Therefore, I believe I am bound by the decision of the B.C. Court of Appeal in R. v. Lau, 2003 BCCA 337 at paragraph 38: I am of the view that once the trial judge concluded that there were no exigent circumstances, it was not open to him to find good faith on the part of the police. [28] Because of the number of acts by the police that were taken in the absence of good faith or in a markedly careless manner, I asked Crown counsel during submissions if a series of such decisions could amount to bad faith. His reply, which I believe stated the law properly, was that the correct question to ask in this case is: Was there a pattern of disrespect for Charter rights? My answer to that question is yes. [29] First, the sheer number of Charter violations that took place on February 9 indicates a pattern of disrespect. Second, the fact that every member of the Crime Reduction Unit who remained at the scene throughout the events of that day was involved in at least one flagrant breach of the Charter further indicates such a pattern. Constable Smith arrested Ms. Matilda for "escape lawful custody" without any reasonable or probable grounds. Constable Scott and Fry participated in the s. 10(b) breaches of Mr. Crocker's rights and failed to note them in their notebooks. Both Constables participated in the serious breach of Mr. Crocker's s. 8 rights by, in the one case, authorizing and, in the other conducting the strip search. This was not only a breach of Mr. Crocker's Charter rights, but also, according to Staff Sergeant Cumming, a breach of an explicit North Vancouver detachment policy dealing with the subject. Constable Johnson, in addition to a number of careless or negligent breaches of Mr. Crocker's Charter rights, directed the warrantless search of Mr. Crocker's penthouse on the basis of a groundless claim of exigent circumstances. He directed Constable Smith's unlawful arrest of Ms. Matilda. He compounded the illegal entry into the penthouse with his indefensible opening of a padlocked door within the penthouse. [30] Throughout the day, there were alternate lawful procedures open to the officers. There were experienced senior officers, particularly Staff Sergeant Cumming, available to provide guidance to the team. Constable Johnson and the others sought his guidance to deal with a hypothetical problem, yet neglected to seek it when confronted with very real circumstances where they needed assistance. [31] Even if all of the breaches can be attributed to carelessness, I find Madam Justice Koenigsberg's observations in R. v. Sharpe, [1997] B.C.J. No. 1468 (QL) (S.C.) at paragraph 33 relevant: when assessing police conduct resulting in errors and omissions in an investigation and/or an information to obtain a search warrant, to determine how serious a breach of rights is, carelessness can amount to the equivalent of "bad faith". One must look at the totality of the circumstances and ask what the level of carelessness reveals. Here, in my view, the carelessness reflects a serious disregard for the rights of the accused and the violation of those rights is serious. I agree with those comments and find them relevant to the case at bar. Constable Johnson and most of the Crime Reduction Unit team were inexperienced. That is not blameworthy. However, the failure to seek assistance from experienced supervisors is blameworthy. [32] Making counterfeit money, being in possession of stolen mail, identity theft, and possession for the purpose of trafficking of marihuana are serious offences. Some of Mr. Crocker's charges could result in significant sentences of imprisonment. Exclusion of the impugned evidence in this case will seriously weaken the Crown's case. I accept that the administration of justice could suffer some degree of disrepute from the exclusion of this evidence. [33] However, it is my view that in all of the circumstances, any disrepute the administration of justice might suffer as a result of exclusion is outweighed by the disrepute that the administration would be brought into by the regular admission of evidence acquired in a manner that this evidence was. I share Mr. Justice Iacobucci's view expressed in R. v. Burlingham, [1995] 2 S.C.R. 206 at 242: ... we should never lose sight of the fact that even a person accused of the most heinous crimes is entitled to the full protection of the Charter. Short-cutting or short-circuiting those rights affects not only the accused, but also the entire reputation of the criminal justice system. It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques are of fundamental importance in applying s. 24(2). [34] I would also echo the comments of Mr. Justice Doherty in R. v. Golub (1997), 117 C.C.C. (3d) 193 at 215 (Ont. C.A.): Respect for the rule of law and the long-term viability of the justice system suffers where the police engage in "short cuts" or fail to respect the constitutional rights of those they encounter in the course of the exercise of their duties. The long-term harm to the justice system is not worth the short-term gain made by the admission of the evidence which was obtained in a manner that ignores the rule of law. [35] For all of these reasons, I conclude that the evidence in this case should be excluded pursuant to s. 24(2) of the Charter. "P. LEASK, J."