R. v. Jones

2024 BCSC 2224 R. v. Jones

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Jones, 2024 BCSC 2224 Date: 20240828 Docket: 40755-2 Registry: Port Alberni Rex v. John Arthur Jones Before: The Honourable Madam Justice Wilkinson Oral Ruling on Voir Dire #1 Counsel for the Crown: T.I. McFadgen Counsel for the Accused: B.C. Durrant Place and Date of Hearing: Nanaimo, B.C. August 27-28, 2024 Place and Date of Judgment: Nanaimo, B.C. August 28, 2024 [1] THE COURT: Mr. Jones is charged with three counts of possession for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act [CDSA], S.C. 1996, c.

19. The counts relate to possession of fentanyl, cocaine, and methamphetamine. The charge arises from a search incidental to the arrest of Mr. Jones under an unendorsed warrant for his arrest. [2] The accused challenges the admissibility of evidence obtained after searching his person and his vehicle when he was arrested on November 2, 2020. He submits the initial search of his person infringed his Charter s. 8 right to be secure against unreasonable search and seizure. Facts surrounding the arrest and search [3] On November 2, 2020, shortly after 4:00 p.m., Cst. Paciejewski was dispatched to respond to a complaint that "Johnny Jones" was sitting in a white vehicle with the licence plate noted by the complainant, nodding off and appearing to be high at the 7‑Eleven on Johnston Road in Port Alberni. [4] Cst. Paciejewski knew Mr. Jones from prior police contact and was also aware that he had an outstanding warrant. Cst. Paciejewski located the vehicle in the parking lot of the 7‑Eleven and he pulled his vehicle behind and activated its lights [5] Cst. Paciejewski approached Mr. Jones on the driver side and indicated to him that he was under arrest for the outstanding warrant. The warrant was an unendorsed warrant for breach of probation terms. This meant that Mr. Jones could not be released at the scene and that he would have to be taken into custody and appear before a

justice. [6] Mr. Jones was known to Cst. Paciejewski as having a lengthy history related to a variety of offences including theft. He also recalled attending an incident where Mr. Jones was, in Cst. Paciejewski's view, having a drug‑induced psychosis as he was in crisis atop a local bridge for quite some time before he was eventually removed from the bridge and taken to hospital. [7] Cst. Paciejewski recalled the dispatch information flagged Mr. Jones for risk of violence and escape and stated he likely noted the flags shortly after Mr. Jones was arrested. [8] Before Mr. Jones left the vehicle after arrest, Cst. Paciejewski observed Mr. Jones slip a small baggie with a dark, granular substance up his sleeve. Cst. Paciejewski believed the baggie to contain a controlled substance. [9] Mr. Jones left the driver's seat and exited the vehicle and Cst. Paciejewski handcuffed him behind his back. Cst. Paciejewski conducted what he calls a search incidental to arrest of Mr. Jones at that time. On his person, he located a small black coin purse in a pant pocket, a cellphone, a wallet, the small baggie previously noted was found in his sleeve, and a metal vile also found in one of his pant pockets. Cst. Paciejewski stated he conducted the search for safety purposes, checking for weapons and drugs or means of escape. This was to ensure neither he nor Mr. Jones would get hurt and that Mr.

Jones would not be able to escape restraint, for example by using a hair pin to defeat the handcuff locking mechanism. He has experience with the harmful effects of small amounts of controlled substances available during the opioid crisis this province continues to suffer from. He had concerns of the possible overdose of Mr. Jones which can come very quickly due to the high potency of available substances. [10] Cst. Paciejewski has previously located weapons and drugs when conducting searches incidental to arrest. He also knew that Mr. Jones would be taken into custody in the cells, which would require a more extensive search of his person. This also meant that Mr. Jones's belongings would follow him to the cells and Cst. Paciejewski was responsible for seizing and accounting for those belongings. He could be held liable for missing items if they are not initially properly accounted for and retained for safekeeping for eventual return to the accused. He could also be subject, he testified, to discipline if a complaint about theft arose and he had no contemporaneous documentation. The items on his person would accompany him to the cells, therefore the safety of the jail staff was also a consideration. [11] Cst. Swain-Pelletier arrived on scene during or shortly after the initial arrest. He was responding to the same dispatch call. He was familiar with Mr. Jones from his prior

six months working with the Port Alberni detachment. He had conducted curfew checks on Mr. Jones with regard to conditions related to property offences. He also knew that Mr. Jones had a history of drug use, as well as having a lengthy criminal record mostly for property crimes, including possession of stolen property and theft. [12] Cst. Swain-Pelletier parked his vehicle and approached Cst. Paciejewski and Mr. Jones by the driver side of the white vehicle. It appeared to him that Cst. Paciejewski was arresting Mr. Jones as Mr. Jones was in handcuffs. Cst. Paciejewski informed Cst. Swain-Pelletier that Mr. Jones was under arrest and that during his search of Mr. Jones, he found a black coin purse and had placed it on the armrest of the driver side open door. Cst. Paciejewski confirmed in his testimony that when he found the coin purse in Mr. Jones's pocket, he placed it on the armrest of the subject vehicle door while he continued his search. [13] Cst. Paciejewski took Mr. Jones to his police vehicle and placed him inside. Cst. Swain-Pelletier then searched the coin purse. He was not directed by Cst. Paciejewski to conduct the search of the purse. Cst. Paciejewski testified that he would have searched the purse incidental to arrest if it was left to him to do so. [14] Cst. Swain-Pelletier testified that he searched the purse incidental to arrest. He did not know what Mr. Jones

was arrested for, although he did think that Mr. Jones likely had an outstanding warrant at the time. He conducted the search for two reasons: one, he searched for means of escape as he was concerned that Mr. Jones was a flight risk; the purse could contain a small handcuff key, for example, he testified. When transporting in a vehicle it is not possible to fully watch an accused. Secondly, he was concerned for officer safety and searched for anything inherently dangerous in the purse. He has personal experience being cut with small pieces of broken glass from drug pipes and razors. He also has person experience working in Grande Prairie with harmful exposure to opioids like fentanyl and needed medical attention himself after exposure. He has also witnessed colleagues after exposure needing hospitalization and Narcan which he himself has administered. [15] Cst. Swain-Pelletier denied that he searched the coin purse for evidence. Cst. Swain-Pelletier looked into the purse and observed what he considered a significant amount of controlled substances, identifying fentanyl and methamphetamine in small zip‑lock baggies. Based on the packaging and weight and different types of substances, he believed that the substances were not consistent with personal use. He advised Cst. Paciejewski that there was a quantity of what he suspected were drugs inside and showed several baggies to him,

which Cst. Paciejewski also believed contained controlled substances. [16] Cst. Paciejewski then arrested Mr. Jones for possession for the purposes of trafficking and provided Mr. Jones with his s. 10(a) and 10(b) rights for both arrests. Mr. Jones declined access to a lawyer. [17] Cst. Paciejewski and Swain-Pelletier then searched the vehicle incident to arrest on the PPT offence. Cst. Paciejewski testified that he is aware from his experience as an officer that those involved in trafficking drugs often carry related items in their vehicles like paraphernalia, cash, and drugs. A number of items were seized from the vehicle. These items were a box filled with coins and coin rollers in the trunk, a small empty drug bag on the rear seat and inside a backpack they found a used scale, and they also found a drug kit used in the consumption of drugs. Cst. Swain-Pelletier also has experience in PPT arrests and dealing with confidential informants in controlled substance trafficking investigations in Grande Prairie and Port Alberni. He has also worked with the Alberta drug team to gain experience in the field. [18] The substances in the baggies and the coin purse were analyzed and found to be fentanyl, cocaine, and methamphetamine. The defence agrees the testimony of Cst. Paciejewski and Swain-Pelletier was credible. However, Mr. Jones notes that Cst. Swain-Pelletier in particular

could not recall how the coin purse or other items were handled once they were searched or in whose vehicle Mr. Jones was transported to the detachment. I find nothing turns on that lack of recall. Burden on a s. 8 challenge [19] Search and seizure incidental to arrest is a warrantless search. Anywarrantless search is prima facie unreasonable and in violation of s. 8 of the Charter. Therefore, the onus is on the Crown to demonstrate, on a balance of probabilities, that the warrantless search in this case was reasonable: R. v. Tim, 2022 SCC 12. The Crown agrees that it bears this onus. [20] The defence bears the onus under s. 24(2) of the Charter to demonstrate that the evidence should be excluded if the search is found to violate s.

8. The common-law authority for a warrantless search [21] The Crown bears the burden of proving that the "accused was lawfully arrested, that the search is truly incidental to arrest, in the sense that it was for a valid law enforcement purpose connected to the arrest, and that the search is conducted reasonably": R. v. Caslake, [1998] 1 S.C.R. 51 at paras. 11 to 13. [22] The defence does not challenge the lawfulness of the arrest under the warrant and, on the evidence before me, it was lawful. Was the search for a valid law enforcement purpose connected to the arrest? [23] This common law power to search incident to arrest is extraordinary because it does not require a warrant or reasonable and probable grounds. The power is one that is focused, allowing police to facilitate prompt investigations of crime that triggered upon every lawful arrest. It must be incidental to the arrest, such that it is for one or more of three valid purposes of: (1) police and public safety, including prevention of escape; (2) discovery of evidence related to the arrested offence; or (3) prevention of the destruction of evidence: Caslake at paras. 14 and 19. [24] If acting in furtherance of one of the three valid law enforcement purposes, the power of police to search incidental to arrest applies not only to the individual arrested, but also to the arrestee's "immediate surroundings": Cloutier v.

Langlois, [1990] 1 S.C.R. 158 at paras. 180‑81. The police must subjectively believe that the search is connected to the arrest and the officer's belief that the purpose will be served by the search must be objectively reasonable: also see Caslake at para. 19. [25] What is permissible is based on the circumstances of the particular arrest. Relevant factors may include the alleged crime, the nature of the items seized, and the place and time of the search in relation to the place and time of the arrest: Caslake at paras. 15 to 16. [26] The inquiry relies on the police being able to "clearly explain why they did what they did and how it was connected to the arrest" on the facts of the case: again, Caslake at paras. 19 to 24. [27] The question to be answered is whether the police had "some reasonable basis" to do what they did: Caslake at para.

20. This is met, provided the search is "based on generalized concerns arising from the arrest": R. v. Stairs, 2022 SCC 11 at para. 67. "Some reasonable basis" is a far lower standard than the standard of reasonable grounds to believe and distinct and less stringent than the reasonable suspicion standard: Stairs at para. 67. [28] A safety search is justified in circumstances where it is reasonably necessary to reduce an imminent threat to safety of the public or police: R. v. MacDonald, 2014 SCC 3 at para.

40. An accused may not be in possession of an item, for example while being handcuffed or inside a police vehicle, but that does not necessarily eliminate the inherent harmfulness of an item previously in their possession: see R. v. Tsang, 2014 BCSC 1054 at paras. 57 and 63. Others may be harmed with exposure and the accused may be harmed or use an item in a harmful manner if it is returned to them on release from custody. The leading decision out of our Court of Appeal on safety concerns for search incidental to arrest is R. v. Majedi, 2009 BCCA 276. In that decision, the accused was arrested after police observed her driving her vehicle in a location in breach of a recognizance. The vehicle was impounded due to a parking violation. Police searched the car and found two purses. They searched the purses for two reasons: to inventory her belongings and to protect the custodial staff from any sharp objects. Both officers testified they searched the purses out of concern for jail staff safety. The Court of Appeal held: a) One purpose of the searches of the purses was concern for the safety of jail staff, and at the core of the acceptability of those searches was whether the purses were to accompany Ms. Majedi to the police station (at para. 28); b) The subjective and objective requirements for searching the purses for objects that might imperil the safety of jail staff were met

(at para 32); and c) It was apparent the officers believed it was incumbent on them to undertake the search out of concern for correction officer safety (at para. 34). [29] In this case, the Crown relies on one of the three valid objectives for search and seizure incident to arrest, namely safety. [30] While acknowledging these cases are determined on the factual matrix involved in each search, the parties refer me to a number of authorities for consideration. In particular, Mr. Jones refers me to the decisions of: R. v. Weaver, 2022 BCPC 73; R. v. Howell, 2020 BCSC 1731; R. v. Smith, 2019 SKCA 126; and R. v. Santana, 2020 ONCA 365, for consideration. [31] In Weaver, the stated purpose for searching a wallet located on the accused was to locate further identification evidence. This was not a case which turned on safety concerns, which explains why Majedi was not considered in the Provincial Court's reasons. As well, I have concerns regarding the reasoning which appears to suggest the police must have a necessity to search for further evidence before they can conduct such a search incidental to arrest. [32] I do not see Caslake as imposing a necessity requirement. In Weaver, the judge held that because the police already accepted the self‑identification of the accused and that they could also confirm identification which, once back at the police station, they had no need to find

further evidence of identification. Instead, Caslake stands for the proposition that police simply require a reasonable basis to do what they did. In any event, this decision is distinguishable on its facts and reasons for the search undertaken. [33] In Howell, the police officers' stated reasons for searching a backpack while the accused was detained in a police vehicle and handcuffed was to look for weapons and safety purposes, because the police officer was going to transport the accused to the detachment. There does not appear to have been any specific safety concerns particularized. Mr. Howell did not appear to be known to police, other than having been identified as being observed in a hand‑to‑hand drug transaction. He was arrested on outstanding warrants. Again, it appears the court was not referred to Majedi. In any event, the searching officer in the case before me particularized his safety concerns, as opposed to the generalized reasoning set out in Howell. This case is also distinguishable on its facts. [34] In Santana, a passenger in a vehicle was arrested for outstanding warrants. A jacket, thought to be the accused's, was seized when the vehicle was searched incidental to arrest. The pockets of the jacket were searched to check for weapons or other objects relevant to police safety, since it would follow the accused to the police detachment. The issue was whether

the jacket was validly seized. The court held that if the seizure of the jacket was lawful, the court would "have no difficulty in holding a search of the pockets of the jacket before it was placed in the police cruiser was justified for police safety purposes as a lawful incident of the appellant's arrest": Santana at para. 27. [35] Before me, the coin purse was found on Mr. Jones' person when he was pat down or otherwise searched. It was not an item sitting apart from him in the vehicle. Cst. Paciejewski was entitled to take it out of his pocket and seize it as they were taking Mr. Jones into custody. [36] In Smith, the accused was arrested on an outstanding warrant for charges of possession of stolen property and obstruction. The police searched the accused's purse after she was arrested and handcuffed. Her brother was present and asked for the purse to be handed to him, and the accused also indicated she wanted the police to deliver it to her common law partner. The police refused those requests. The trial court found that the police reason for searching the purse on the basis of "vague concern for safety" was unjustified. The Court of Appeal upheld the trial judge's decision. The Saskatchewan Court of Appeal held, pursuant to R. v. Stillman, [1997] 1 S.C.R. 607, the police power of search incident to arrest for items of evidence not in the immediate possession of the detainee does not, on its face at least, apply to searches for the purposes of officer or public safety: Smith at para.

25. If Smith stands for the proposition that separated items no longer pose a safety concern, then Smith is in direct contrast to the holding in Majedi which is binding on me. [37] However, if Smith stands for the proposition that a safety search of separated items is not, in and of itself, always valid without further circumstances, see Smith at para. 34, then I agree. In this case, those circumstances existed and were part of the decision‑making process considered by Cst. Swain-Pelletier. The separated belongings of every known user of controlled substances should not be subject to search incidental to arrest for safety purposes without more. [38] I will note that fentanyl and some other controlled substances are inherently toxic, whether in the control of the accused or not. [39] The court in Smith sought to distinguish Majedi in suggesting that our Court of Appeal did not conduct an assessment of the objectiveness of the officers' concern. However, there in Majedi at para. 32 , both the subjective and objective requirements for searching the purses for objects that might imperil the safety of jail staff were met. In any event, as I have said, Majedi is binding on me. [40] The defence raises an interesting argument that Cst. Swain-Pelletier was required to know what Mr. Jones was arrested for before he could form the basis of a search of the coin purse. I was not referred to

any authority to support this proposition. In my view, it certainly holds true that an officer needs to be aware of the offence when searching for further evidence. However, it does not hold true for a search for safety purposes where other circumstances support such a search. [41] In the case before me, Mr. Jones' history with use of controlled substances was known to both officers. The complainant indicated Mr. Jones was nodding off and appeared high as he sat in his car. Both officers testified they were concerned that Mr. Jones was impaired at the time based on this complaint. Cst. Swain-Pelletier has personal experience of the inherent harmfulness of drugs available on our streets, as well as contact with sharp items associated with drug use. [42] In 2020, this province was experiencing an ongoing health crisis due to the dangers of opioids and this crisis continues. First responders place their safety at risk in responding to calls on a daily basis. Csts. Paciejewski and Swain-Pelletier were no different. Mr. Jones was in a very public space at a busy intersection at a convenience store. [43] The coin purse was bound to follow Mr. Jones, whether that be released later at the scene, as it appears Cst. Swain-Pelletier was not certain as to the reasons for the arrest when he conducted the search, or to the cells. In the circumstances, I find that Cst. Swain-Pelletier had

valid concerns for his safety and the safety of others who would be required to handle the coin purse or otherwise be exposed to its contents. I am less convinced of the risk of escape as a reasonable basis for the search. However, the subjective concerns of Cst. Swain-Pelletier for himself and others were objectively reasonable in the circumstances. [44] Based on the circumstances after the search of the purse, there were reasonable grounds for arrest on the trafficking offence. The search of the vehicle was conducted incidental to that arrest for reasons related to the discovery of evidence related to the arrested offence. [45] The Crown has met its burden to show, on a balance of probabilities, that the police acted reasonably in the circumstances and their search and seizure of the items was justified as incidental to the appellant's arrest under the warrant and subsequently for trafficking. [46] In conclusion, the application pursuant to s. 8 of the Charter is dismissed. "Wilkinson J."