R. v. Luong

2010 BCCA 158 R. v. Luong

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Luong, 2010 BCCA 158 Date: 20100323 Docket: CA036176 Between: Regina Respondent And Kiet Luong Appellant Before: The Honourable Mr. Justice Mackenzie The Honourable Madam Justice Kirkpatrick The Honourable Madam Justice Bennett On appeal from: Supreme Court of British Columbia, September 25, 2007 (R. v. Luong, New Westminster Registry X070472) Oral Reasons for Judgment Counsel for the Appellant: K.S. Westlake, Q.C. Counsel for the (Crown) Respondent: P.R. LaPrairie Place and Date of Hearing: Vancouver, British Columbia March 19, 2010 Place and Date of Judgment: Vancouver, British Columbia March 23, 2010 [1] BENNETT J.A.: Kiet Luong appeals his conviction for possession of cocaine for the purpose of trafficking pronounced June 6, 2008. He submits that the trial judge erred when he concluded that the police had reasonable and probable grounds to arrest him. Facts [2] On April 18, 2006, Constables Faulkner and Gormick of the Port Moody Municipal police were setting up surveillance of a trailer park on the south side of Dewdney Trunk Road as there had been a sharp increase in reports of drug and property offences occurring there. They were also aware of criminal activity in another trailer park on the north side of the road. [3] At 4:45 p.m., Constable Faulkner observed an Asian male, later identified as Mr. Luong, driving a

newer model Envoy SUV, pass his location and park quickly at the trailer park across the street. Constable Faulkner watched Mr. Luong walk to trailer number 15 and, after about two minutes, return to his vehicle. [4] A search of the licence plate number on the Envoy revealed that it was rented from Avis rental. Constable Faulkner had been involved in approximately 20 drug investigations and in his experience, dial-a-dope sellers often used rented vehicles in order to avoid being identified and to prevent the seizure and forfeiture of their own property. [5] The team decided to follow Mr. Luong and made the following observations: i) Mr. Luong drove to 2431 Wilson Avenue, Port Coquitlam where he was seen parking in a loading zone in front of an apartment building, going in the front door, and then returning to his vehicle about two minutes later; ii) He next went to a residence beside 1819 Fraser where he parked briefly in front of a residence and was seen leaving about 45 seconds later; iii) He then went to 1231 Prairie Avenue, Port Coquitlam where he pulled into a driveway and got out of the car. A woman came out of the house at that address, and Mr. Luong got back into the driver's seat and the woman got into the passenger seat. She remained in the car for about 30-45 seconds before she got out of the car and returned to the residence; iv) The surveillance team then lost Mr.

Luong for about ten minutes; v) He was observed again on Lougheed Highway. He proceeded to drive randomly through quiet neighbourhood streets, performing a U-turn. Constable Faulkner was of the view that this was a "heat check" a process of driving around randomly, which dial-a-dope dealers use to see if the police are following. During the "heat check", Mr. Luong was seen talking on his cell phone. Constable Faulkner said that in his experience drug traffickers conduct dial-a-dope business over a cell phone; vi) He was followed to 10 Bolderwood Place where he was arrested. vii) A search of the rental vehicle revealed two cellular telephones hidden in the driver's door and 86 grams of pre-packed rock and powder cocaine with a value of approximately $8,100 hidden under a control panel. Two rolls of money were also found in the compartment amounting to $1,210. Mr. Luong had $30 on his person. [6] The only issue before the trial judge was the lawfulness of the arrest of Mr. Luong as the validity of the subsequent search rested on whether the arrest was proper. This issue was considered in a voir dire, with reasons released September 25, 2007. [7] On appeal Mr. Luong raises three issues in relation to the arrest: (i) the reasonableness of the arrest; (ii) a related issue regarding the admission of what Mr. Luong refers to as expert evidence with regard to the grounds for arrest and

(iii) whether the admission of this evidence misled the defence at trial resulting in an unfair hearing contrary to the Canadian Charter of Rights and Freedoms. [8] In addition to these issues, Mr. Luong raises for the first time the issue of whether he was provided with his rights pursuant to s. 10(a) and 10(b) of the Charter. [9] For the reasons that follow, I would dismiss the appeal. Charter rights pursuant to s. 10(a) and 10(b) [10] The issue of Mr. Luong's s. 10(a) and 10(b) Charters rights was not raised before the trial judge. The onus rests with an accused to demonstrate that his rights were violated. There was evidence on the voir dire that Mr. Luong was provided his "Charter warning" subsequent to his arrest. There is no basis on which to allow this ground to be raised for the first time on appeal. I would not give effect to this ground of appeal. Lawfulness of the arrest [11] The three issues raised with respect to the lawfulness of the arrest are related and I propose to deal with them at the same time. [12] The appellant's first submission was that the evidence was not sufficient for the trial judge to find that there were objective grounds for arresting Mr. Luong. Secondly, he submitted that the trial judge erred when he relied on the experience of Constable Faulkner and Constable Gormick as this was, in his view, "expert evidence" improperly tendered when

determining whether objective grounds existed. The final issue raised was whether defence counsel was misled with regard to how the "expert evidence" of the police witnesses would be used at trial. [13] Only two witnesses were called by the Crown on the voir dire, Constable Faulkner and Constable Gormick. Mr. Luong did not call any evidence. The findings of the trial judge regarding their observations are set out above. In short, Mr. Luong was seen driving a rental vehicle; he was seen to go to four residences for anywhere from half a minute to a couple of minutes at each location, including one which was known for criminal activity; he was observed driving around performing what the police believed to be a "heat check" and talking on his cell phone while driving. [14] Constable Faulkner testified that in his experience drug dealers commonly use rental vehicles to hide their identity and to avoid forfeiture of their own vehicles, use cell phones to make their deals, conduct transactions in a variety of places, and finish very quickly and at times perform "heat checks". [15] There was no issue that Constable Faulkner had subjective grounds to arrest Mr. Luong. [16] The power to arrest without a warrant is found is s. 495 (1)(a) of the Criminal Code, R.S.C. 1985, c. C-46: 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. [17] Counsel for Mr. Luong went through each of the observations of the police and pointed out other inferences which could be drawn from those observations - for example, he was delivering something other than drugs, he was lost when he was driving around the neighbourhood streets, he had a legitimate reason for renting a car and for using a cellular telephone while driving. This is not the manner in which this evidence is to be assessed or analyzed. 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. See R. v. Storrey, [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316 at para. 17, R. v. Tran, 2007 BCCA 491, 247 B.C.A.C. 109 at para 17 [18] The cases both before and after the Charter have long established that the Criminal Code requires both that the officer subjectively believe that he or she has reasonable grounds for the arrest and that the grounds are justified from an objective point of view. This means that "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": Storrey, supra at p. 324. [19] Being "placed in the position of the officer" does not just mean making

the same observations as the officer, as to many lay people such observations would be meaningless. Included in the assessment of whether the grounds for arrest are reasonable is the officer's experience, training and knowledge: R. v. Juan, 2007 BCCA 351 at para. 27, R. v. To, (1998), 109 B.C.A.C. 242 at para. 11, and R. v Tran, supra. [20] Mr. Luong submitted that if the experience of the police officer is to be relied on for objective grounds, it must be tendered as proper "expert evidence" pursuant to s. 657.3 of the Criminal Code. He submits that the witness must be qualified as an expert in order to express a view on what the conduct of an accused means to him. Further, he submitted that this evidence must be tendered from an independent witness, not the officer who made the arrest. Otherwise, it is submitted, there is no difference between subjective and objective grounds. [21] Mr. Luong points to the decision in R v Kang-Brown, 2008 S.C.C. 18, S.C.R. 456 at para. 78 where the court said in relation to objective grounds in the search context, "[t]he after-the-fact review can only truly be an 'independent assessment' if there are objective grounds put forward to support the personal opinion of the police officer." However, in my view, for the reasons below, this passage supports the Crown's position. [22] This argument, interesting as it is, defies all existing authority

on the subject. As was stated by Professor LaFave, "Objective grounds must be measured from the standpoint of the officer with his skills and knowledge rather from the standpoint of the average citizen" (LaFave W.R. Search and Seizure, A Treatise on the Fourth Amendment, 3rd ed. vol.2, p.38) as adopted by this Court in To, supra at para 11. [23] An expert provides an opinion which will tend to establish a fact in issue (R. Mohan, [1994] 2 S.C.R. 9 at para. 37). This is not the purpose of the evidence of the officer's experience. The purpose is to determine whether there were grounds to arrest someone. This assessment is not done through an independent expert, but through the lens of the officer who has performed the arrest. [24] The assessment of whether objective grounds exist undertaken by a trial judge is conducted by first looking at the observations of the officer (which the trial judge has found as facts) through the lens of someone who has the same experience, training, knowledge and skills as the officer who is making the observations, and then deciding if a reasonable person with the same lens would come to the same conclusion as the police officer. This, in my view, is what the Court was referring to in Kang-Brown, supra. There is no need to call an independent expert to testify. Such evidence would not be admissible as it is irrelevant. It is the arresting officer's

lens which is key to the assessment of reasonable grounds. [25] The reasons in To, supra illustrate the point regarding what is required for objective grounds. In that case this Court confirmed that it was proper to consider an officer's experience in assessing whether objective grounds exist: [11] As for the objective test I am satisfied that there is ample evidence to establish reasonable and probable grounds. The red Talon was engaged in activity which would baffle a layman. What was the vehicle doing in these brief, obviously prearranged street encounters? The police officers testified that they are aware, through experience, of a custom which has arisen in the drug trade which they describe as 'dial-a-doper' The activity of Mr. To fit that profile. As Professor LaFave has described it - "Objective grounds must be measured from the standpoint of the officer with his skills and knowledge rather from the standpoint of the average citizen." (LaFave, supra] [26] In this case, the trial judge found that a series of observations were made: a person is seen driving around in a rental car, using a cell phone, making four stops at residences for two minutes or less, at one stop a person comes out of the residence, gets into the car for 30-45 seconds and then leaves, and the person is seen driving randomly around a quiet neighbourhood with no apparent purpose. None of this would mean

much to the common observer. However, the lens through which this is must be considered is with the knowledge that drug traffickers often use rental cars to avoid identification, that dial-a-dope sellers use cell phones to arrange their deals, perform quick deliveries and while performing deliveries often drive about randomly to see if the police are following them. When viewed from that perspective, and taking the evidence cumulatively, the reasonable conclusion is that this person was probably involved in a dial-a-dope operation. [27] The trial judge concluded that it was objectively "highly probable" that Mr. Luong was as a dial-a-dope operator. This conclusion is amply supported by the evidence. Therefore, the arrest was lawful. There is no issue that the subsequent search was a proper search incidental to arrest. I would not give effect to this ground of appeal. [28] The final point raised is that Mr. Luong did not receive a fair trial because his defence counsel (who is not counsel on this appeal) was confused or misled regarding the purpose for which the evidence of the officer's experience would be used. The issue arose during the evidence of the "heat check". Counsel objected that the evidence being tendered was prejudicial to his client. The Crown then made it clear that the evidence was being tendered to support both the subjective and objective grounds to arrest Mr.

Luong. That was the only purpose for which the evidence was tendered and that was the only purpose for which it was used. Experienced counsel for Mr. Luong eventually conceded, responding, "I am content that we argue this all at the end". [29] It is clear why the Crown tendered the evidence. It is also clear that counsel for Mr. Luong knew the purpose for which the evidence was being tendered. He was not taken by surprise and any possible confusion was quickly cleared up. I would not give effect to this ground of appeal. [30] Therefore I would dismiss the appeal. [31] MACKENZIE J.A.: I agree. [32] KIRKPATRICK J.A.: I agree. [33] MACKENZIE J.A.: The appeal is dismissed. "The Honourable Madam Justice Bennett"