R. v. Gill

2017 BCSC 1815 R. v. Gill IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Gill, 2017 BCSC 1815 Date: 20170503 Docket: X079543 Registry: New Westminster Regina v. Amanpreet Singh Gill Before: The Honourable Madam Justice Arnold-Bailey Oral Ruling on Voir Dire #1 Counsel for the Crown: Oren Bick Jessica R. Lawn James A. Billingsley Counsel for the Accused: Thomas B. Doust Place and Date of Trial/Hearing: New Westminster, B.C. April 24, 25, 27, 2017 May 1, 2017 Place and Date of Judgment: New Westminster, B.C. May 3, 2017 [1] THE COURT: These are my reasons in relation to the voir dire. [2] These reasons pertain to a Charter application made on behalf of the accused, Amanpreet Singh Gill, who alleges that police violated his s. 8 rights to be secure from unreasonable search or seizure. The alleged violation occurred when a police officer seized an envelope he subsequently saw contained a brick of cocaine. The envelope dropped from Mr. Gill's person and fell to the ground during a lawful detention. [3] The accused is before the court on a single-count Indictment that charges him with the unlawful possession of a controlled substance, to wit: cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA]. The charge arises from an incident that occurred in Surrey, British Columbia, on December 3, 2014. [4] The position of the defence is that Constable Kerr, the officer who picked up the envelope from where it had fallen, being familiar with bricks of cocaine and suspecting the accused's involvement in the cocaine trade, manipulated it with his hand or hands so as to determine its contents. The defence further submits that Constable Kerr then deliberately placed the envelope on the front passenger seat of his police vehicle so as to facilitate the opening of the folded flap of the unsealed envelope, which revealed the brick of wrapped cocaine inside. This, the defence submits, constitutes a violation of the accused's reasonable expectation of privacy in relation to the contents of the envelope. [5] The defence relied upon the following authorities: R. v. Collins, [1987] 1 S.C.R. 265; R. v. Mann, 2004 SCC 52; and R. v. Grant, 2009 SCC 32. [6] The Crown submits that Constable Kerr properly moved to secure the accused's property, including the envelope. In particular, it is the Crown's position that Constable Kerr was obliged to pick up the envelope up, first placing it on the trunk of the police vehicle, and then securing it with the accused's keys in the police vehicle. The Crown submits that it was Constable Kerr's inadvertent act of placing the envelope against the seat such that its unsealed flap gaped to reveal the wrapped brick inside, which put the brick in plain view inside the envelope, such that the common law plain-view doctrine applies in this case, and no violation of s. 8 is established. [7] The Crown relies upon the following authorities: R. v. Gibson, 2003 BCSC 1572; R. v. Asp, 2008 BCSC 794 [Asp]; R. v. Asp, 2011 BCCA 433; R. v. Strilec, 2010 BCCA 198; R. v. Majedi, 2009 BCCA 276; and R. v. Cooper, 2016 BCPC 259. [8] Two officers testified on the voir dire: Constable Kerr and Corporal Mereski. The key portions of Constable Kerr's testimony relate to the issue before the Court. I will provide a brief summary of his evidence on direct and cross-examination. [9] Constable Kerr testified that on December 3, 2014, he was on duty in Surrey and Richmond, British Columbia. He was tasked to locate Mr. Gill and to execute an impression warrant upon Mr. Gill. Constable Kerr and Corporal Mereski were interested in a particular address, 6330 165th Street, in Surrey, British Columbia. He and Corporal Mereski determined they would go and knock on the door of the residence. Constable Kerr said as he was going up the driveway towards the garage he heard a door close, and then Mr. Gill met him by a pillar by the front door near the garage. Constable Kerr said he recognized Mr. Gill from a photo on a target sheet and called his first name, to which Mr. Gill responded, "Yup." Then Corporal Mereski began to explain the impression warrant to Mr. Gill. Mr. Gill asked what this was all about and Corporal Mereski continued with his explanation, which included that Mr. Gill would be accompanying the police to the detachment for the purpose of obtaining his fingerprints. Mr. Gill then turned to his left, motioning towards the door, indicating that he needed to go inside to let his brother know. [10] Constable Kerr said they advised Mr. Gill that he was not going inside the residence and he was being detained, and Mr. Gill kept motioning to the door, and pulling towards the door. At that point, Corporal Mereski indicated to Constable Kerr that they should "take down" Mr. Gill, meaning put him down to the ground, and the two officers did so after a brief struggle. They then handcuffed Mr. Gill. [11] Both officers noticed that an envelope had fallen to the ground under Mr. Gill in the course of the struggle to put Mr. Gill down on the ground, which Constable Kerr described as "pretty much" one event that lasted seconds. Once Mr. Gill went to the ground, Constable Kerr said he saw the envelope, which had not been there previously. [12] After he helped Corporal Mereski handcuff Mr. Gill, Constable Kerr retrieved a copy of the warrant that had also fallen to the ground and picked up the envelope. With those items in his hand, he walked back towards the police car and went to the trunk area where Corporal Mereski and Mr. Gill were standing. Constable Kerr turned on his recorder and placed it on the trunk to capture what was being said between Corporal Mereski and Mr. Gill. Constable Kerr stood by while Corporal Mereski explained the impression warrant to Mr. Gill and also while Corporal Mereski searched Mr. Gill. [13] Constable Kerr testified that then, Corporal Mereski gave him a set of Mr. Gill's keys and he grabbed the envelope and went and placed both items on the front seat of the unmarked police vehicle. He said that he rested the envelope against the seat in an upward position and that he could then see inside it. He saw what looked like a kilo of cocaine. He described this item as about 10 inches in length, six inches wide, and about three inches deep; like a book but bigger, but roughly the same shape. It was wrapped in brown tape and vacuum sealed. [14] Constable Kerr further stated that when he rested the envelope against the back of the seat the envelope was open and the brick was just right there. He said that he had not looked into the envelope before this. When he picked it up, it was open but he did not look in then. Further, when he rested the envelope on the trunk he was not paying attention to what was inside it. Constable Kerr reiterated that he only saw inside the envelope when it was placed on the seat in the police vehicle and the flap was open. He said that the face of the envelope was leaning against the back of the seat and the flap was towards the front window of the vehicle. [15] Viewing the empty envelope in court, Constable Kerr said that the flap was resting downwards, but at the time the envelope and its contents were on the front seat of his police vehicle leaning against the seat, the flap was angled up, and it created an opening into which he could see the item inside. Trying to be more clear, Constable Kerr explained that the object inside pushed the envelope outward so that the flap was up. It was the bulk of the object inside that made this occur. Asked about the dimensions of the envelope, Constable Kerr said that he did not make any observations at that time. He became really focused on the object, and stated, "[a]ll I know was it was open and I could see inside." [16] At this point, Constable Kerr said he went back to where Corporal Mereski and Mr. Gill were, and told Mr. Gill that he was under arrest for possession of a controlled substance. He then continued to describe his handling of the envelope, the brick of what field tested positive as cocaine, and the subsequent search of Mr. Gill's residence pursuant to a search warrant the police then obtained. [17] Constable Kerr was cross-examined vigorously on his handling of the envelope and its contents, and how it was he came to believe it contained a brick of cocaine. He was cross-examined about the condition of the envelope generally, and in terms of several small tears in it, and several small closed staples remaining on the flap. [18] I find that the condition of the envelope including its flap, Exhibit A on the voir dire, supports the fact that it had previously been used, including that the glue on the flap had been moistened and had adhered it to the body of the envelope at some point but, despite that, the flap itself remained intact and separate from the body of the envelope. [19] Constable Kerr admitted that he was familiar with bricks of cocaine, that on this date he was aware of their relative dimensions, and that he had a perception of cocaine bricks being rectangular. He further stated that when he first picked up the envelope to carry it to his car he had a perception of a rectangular object. [20] He had no recollection of whether he used one hand or two to carry it, and said that at the time he had no sense the envelope might contain a brick of cocaine. [21] He said that he recalled seeing it fall from the accused's jacket and it "kind-of went plunk". He said, "I did not suspect that it was a brick. I was very amped up regarding taking Mr. Gill to the ground," and until he looked into the envelope it never crossed his mind. He said, "I didn't squeeze the item, I just held it. I knew it was something firm. I was not paying attention to that at all at that time." He agreed that in a larger investigation two kilos of cocaine had been sold to a police agent. He had seen those kilos of cocaine and said he was familiar with their size and shape. [22] Constable Kerr was pressed in cross-examination about his handling of the cocaine in the envelope. It was put to him that he was squeezing and scrunching the envelope to determine its contents and he knew it was a brick of cocaine when he picked it up and was carrying it, which he denied. [23] Constable Kerr was also asked about his evidence at the preliminary inquiry where he manipulated a different envelope. In the context of dealing with the "sample envelope" at the preliminary inquiry, for lack of a better word, he said when he dealt with that envelope there was a difference as it was a new envelope, and he had to lift the flap. However, with regard to the envelope that he placed on the passenger seat in the vehicle on December 3, 2014, he did not "scrunch it" on the seat until it popped open. At the end of the day I find Constable Kerr's testimony was not shaken in terms of how he handled the envelope on this occasion. [24] The Court finds Constable Kerr to be a reliable, honest, and credible witness. He was vigorously cross-examined on all aspects of his dealings with the envelope. I have carefully considered his evidence in direct examination and on cross-examination. I find that he did not deliberately manipulate the envelope in order to see inside it. I find that the flap on the envelope came up and the inside of the envelope became visible. This occurred after Constable Kerr placed the envelope, its face towards the back of the front passenger seat in his police vehicle, such that the contents of the envelope caused it to bulge open. Based on his experience generally and the investigation he was embarked upon, he then had a reasonable basis upon which to believe that the rectangular package contained in the envelope, wrapped as it was, contained cocaine. [25] The plain-view doctrine as set out in Asp (conviction upheld on other grounds in R. v. Asp, 2011 BCCA 433), applies to this case: [47] There are a number of articulations of what may properly be found to constitute a seizure of items in "plain view". One of the more recent and concise is found in R. v. Gibson, 2003 BCSC 1572, in which Halfyard J. summarized the essential elements of the plain view doctrine (at ¶18-19) as follows: [18] I next consider the plain view doctrine. This rule of law permits the police to seize evidence that is in plain view if certain conditions are proved. As I read the authorities, the elements that are essential to the application of this doctrine are the following. (This is my paraphrasing.) First, that the police officer had lawful, prior justification for his or her intrusion into or presence at the place where the evidence was found. Second, that the police officer discovered the evidence inadvertently while in the course of exercising a lawful police power or performing a lawful police duty. Third, that the evidence was in plain view in the sense that it was detected through the unaided use of the police officer's senses. Fourth, that it must have been immediately apparent to the police officer that the evidence was probably connected with criminal activity. [19] The authorities that I have reviewed on this point are R. v. Spindloe (2001), 154 C.C.C. (3d) 8, in the Saskatchewan Court of Appeal, particularly at paragraphs 35 to 41 and 49; R. v. Law (2002), 160 C.C.C. (3d) 449, in the Supreme Court of Canada at paragraph 27; and R. v. Buhay, [2003] S.C.J. No. 30, the judgment given June 5, 2003, at paragraph 37. [48] This summary was accepted and followed by Joyce J. in R. v. Grunwald, 2007 BCSC 767. [49] Given the facts in the present case the description of the plain view doctrine J. Fontana provides in The Law of Search and Seizure in Canada, 6th ed. (Markham: LexisNexis, 2005) is also helpful. The author describes the plain view doctrine as follows at p. 497-98: "Plain view" occurs when items fall into the view of an officer who has a right to be in the position he is in to have the view he has had; and such items have been held to be subject to seizure. When an officer finds such evidence - contraband, stolen property or crime evidence - unexpectedly in the course of his duties, in circumstances where it is at once obvious and visible without positive action on the officer's part to make it observable, he has the right to seize it. It may arise in circumstances in which the officer is already lawfully in the premises (under valid warrant, hot pursuit of a fugitive, emergency, etc.) and in the course of these duties he comes across seizable items in plain view, or, it may arise in circumstances where there has been no entry onto premises, but the seizable items present themselves to his view (e.g. in the rear of a pick-up truck parked on a public street). [Emphasis added.] [26] In the present case, I find that the conduct of the police, in particular Constable Kerr, easily meets the test for an application of the plain-view doctrine. My findings in this regard are: 1. The police were in the process of detaining the accused pursuant to a valid impression warrant when the envelope containing the cocaine dropped from the accused's person and was retrieved by police; 2. Constable Kerr was legally obliged to pick up the envelope and to take steps to secure it with its contents, as it was part of the accused's personal effects upon detention; 3. The envelope was not sealed at the time and its flap was not adhering to close the top edge of the envelope; 4. When Constable Kerr took steps to secure the envelope with its contents in his police vehicle, the top of the envelope with the flap opened such that Constable Kerr was able to see that it contained a brick-like package he associated with cocaine; and 5. Accepting Constable Kerr's testimony as I do, I do not find that he engaged in a positive action to make the interior of the envelope visible. Rather, given the size of the envelope, its contents, and the fact that the envelope was not sealed, the interior of the envelope became visible to him inadvertently given the size of its contents once it was placed, as he described, leaning against the back of the front passenger seat. [27] Factually, I find the facts of the present case are similar to some aspects of the facts in Asp, except as opposed to the lid of the box containing the marihuana being dislodged when Mr. Asp's vehicle collided with a pole such that the marihuana was in plain view, here, the contents of the envelope became visible to Constable Kerr when he placed the envelope on the seat of his police vehicle to secure it. [28] I also find, as a matter of common sense, that if Constable Kerr had suspected that the envelope contained a brick of cocaine when he first picked it up, he would have said something to Corporal Mereski to that effect. Further, he would not have placed it on the trunk of the vehicle while they continued to deal with Mr. Gill and then move to secure it with Mr. Gill's keys as part of his personal effects to be kept while Mr. Gill was detained. [29] In this case there is no need to consider that the contents of the envelope would most likely have been discovered in any event by the police as part of an inventory search when Mr. Gill was taken and detained at the detachment for the purpose of executing the impression warrant. The evidence in this case does not take the Court there. [30] For these reasons, I find that the accused has failed to establish a violation of his s. 8 Charter rights to be secure from unreasonable search or seizure on a balance of probabilities. The impugned evidence, namely the brick of cocaine, is admissible evidence at trial. "Arnold-Bailey J."