R. v. Adelberg

C99-0677.html Citation: R. v. Adelberg Date: 19991117 1999 BCCA 677 Docket: CA025744 Registry: Vancouver

COURT OF APPEAL FOR BRITISH COLUMBIA

ORAL REASONS FOR JUDGMENT Before: The Honourable Madam Justice Ryan November 17, 1999 The Honourable Madam Justice Saunders The Honourable Madam Justice Proudfoot Vancouver, B.C. BETWEEN:

R E G I N A

RESPONDENT AND:

GORDON ADELBERG

APPELLANT S.E. Martin appearing for the Appellant C. Stolte appearing for the (Crown) Respondent [1] RYAN, J.A.: The appellant was convicted in Vancouver Provincial Court on March 15, 1999 of one count of unlawful possession of heroin for the purpose of trafficking. The offence occurred on April 25, 1997. The appellant appeals his conviction on the ground that the trial judge erred in finding that the search which uncovered the drugs was an incident of the appellant's lawful arrest. He submits that the police officer who conducted the search did not have reasonable and probable grounds to arrest him. [2] The evidence revealed that on three occasions prior to the appellant's arrest, he had been in the company of three different people, once at the Mastings Restaurant and twice at the nearby Brandiz Hotel. All three had been arrested after being found in possession of heroin for the purpose of trafficking. A month after the last incident, one of the arresting officers received information from a source he said was reliable that the appellant would be arriving at the Mastings Restaurant in a black convertible with a particular license plate number, would park in front of the restaurant between 9:00 a.m. and 9:15 a.m. on April 25, 1997, and would go into the restaurant where a drug deal would take place which involved the exchange of flaps of heroin. At 11:00 a.m. the appellant

would go to the Brandiz Hotel to sell drugs. [3] When the appellant parked in front of the Mastings Restaurant on April 25 at 9:10 a.m., the police officer arrested him. When told he was arrested, the appellant produced a change purse that contained a number of flaps of heroin which were the subject matter of the charge. Judge McGivern found that this evidence provided the police officer with reasonable and probable grounds to arrest the appellant. [4] Counsel for the appellant made an effort today to analyze the evidence to demonstrate that the informant was not proved to be reliable. He submitted that the information provided by the informant was merely information about the appellant's habitual attendance at the Mastings Restaurant which any casual observer might know. [5] With respect to the first point, there was evidence before the trial judge that the informant had provided reliable information in the past. The informant's tips had resulted in the arrest of a person wanted by way of warrant and of another for possession of drugs. In addition the informant had predicted the behaviour of the appellant beyond what could be categorized as habit. He predicted the time and date of his arrival which was confirmed and acted upon by the police officer. [6] In the circumstances of this case, I am not persuaded that the finding of the trial judge that the police officer had reasonable and probable grounds to arrest the appellant was an unreasonable finding on the part of the trial judge. [7] For that reason, I would dismiss the appeal. [8] SAUNDERS, J.A. I agree. [9] PROUDFOOT, J.A. I agree. [10] RYAN, J.A. The appeal is dismissed. "The Honourable Madam Justice Ryan"