R. v. Messina

2013 BCCA 499 R. v. Messina

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Messina, 2013 BCCA 499 Date: 20131115 Docket: CA040425 Between: Regina Respondent And Andrew Messina Appellant Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Frankel The Honourable Madam Justice Stromberg-Stein On appeal from: Provincial Court of British Columbia, June 6, 2012 (R. v. Messina, North Vancouver Registry No. 54658) Oral Reasons for Judgment Counsel for the Appellant: J.A. Michaels Counsel for the Respondent: P. Eccles Place and Date of Hearing: Vancouver, British Columbia November 13, 2013 Place and Date of Judgment: Vancouver, British Columbia November 15, 2013 Summary: Accused appeals from his conviction for possessing cocaine for the purpose of trafficking on the basis that he was unlawfully arrested therefore any drug evidence that was discovered from the resulting strip search was inadmissible. Held: Appeal dismissed. The arrest and search were lawful. The police had objectively reasonable grounds to arrest and search the accused. [1] STROMBERG-STEIN J.A.: Overview On June 6, 2012, Mr. Messina was convicted of possessing cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c.

19. He appeals his conviction on the grounds that the trial judge erred in her decision to admit evidence found during what she held to be an unlawful arrest, contrary to s. 9, and an unreasonable search, contrary to s. 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [2] The Crown's position is that Mr. Messina was lawfully arrested pursuant to s. 495(1)(b) of the Criminal Code, R.S.C 1985, c. C-46. Alternatively, the Crown submits that the trial judge properly weighed and considered the Grant factors in concluding the drug evidence was admissible: R. v. Grant, 2009 SCC 32. [3] In my view, the trial judge erred in finding a breach of Mr. Messina's s. 8 and s. 9 Charter rights. I would dismiss this appeal without revisiting the trial judge's s. 24(2) Charter analysis. I conclude the police had objectively reasonable grounds to arrest Mr. Messina, the arrest and search incidental to the arrest were lawful, and the drugs found in Mr. Messina's possession were properly admissible. Factual Background [4] On September 24, 2010, between approximately 11:50 a.m. and 12:54 p.m., members of the North Vancouver RCMP Crime Reduction Unit observed Mr. Messina meet four people at four different locations in North Vancouver. The Crime Reduction Unit (CRU) is a plainclothes unit which targets

prolific offenders, including dial-a-dope operations. On the day of Mr. Messina's arrest, CRU members, including Constable Hakonson, observed as each of the four people approached Mr. Messina's car on foot, entered the vehicle for approximately 30 to 60 seconds, and then exited and immediately left the area. [5] At the time of these events, Constable Hakonson had been an RCMP officer for three and a half years. For the 13 months prior to Mr. Messina's arrest, Constable Hakonson had been a member CRU. He had investigated 20-30 suspected drug trafficking incidents, 10 of which led to arrests for dial-a-dope trafficking. [6] His supervisor was Corporal Tupper, a 17 year veteran of the RCMP who had been second in command of CRU since its inception in 2006. She had extensive experience dealing with drug addicts and dial-a-dope traffickers, having conducted hundreds of investigations, which resulted in 50 arrests and charges. She had been involved in numerous surveillance projects and was familiar with the indicia and methods of street level drug sales. [7] While on patrol in an unmarked vehicle, Constable Hakonson first became suspicious when he saw a disheveled male standing on the sidewalk smoking a cigarette and looking left and right. As he drove by, the male looked at Constable Hakonson as if waiting for a signal. Constable Hakonson found this to be odd behaviour. He parked a

short distance away and a minute or two later he observed Mr. Messina drive up very slowly and stop in front of the male. The male got into the passenger side of Mr. Messina's vehicle. Mr. Messina circled the block and then the male left the vehicle and walked into an alley. [8] Constable Hakonson believed what he had observed was consistent with his experience dealing with dial-a-dope operations. As a result, he contacted Corporal Tupper and described what he had seen and requested assistance. [9] Corporal Tupper testified she authorized CRU members to begin surveillance on Mr. Messina because what Constable Hakonson described sounded like a dial-a- dope transaction. CRU members began surveillance, maintaining constant radio contact with each other, as Mr. Messina drove to three other locations in North Vancouver. [10] Mr. Messina drove to an Esso station where he filled his tank and talked on his cell phone. Constable Hakonson was informed by radio that after leaving the gas station Mr. Messina drove to a location where a "skinny" female got into his car. He was told the female came from and returned to what looked like a "crack shack". Constable Hakonson concluded that the woman's thin build supported an inference that she was a drug user. [11] Shortly thereafter, Mr. Messina picked up a male in Lynn Valley and dropped him off at a McDonald's nearby. Mr. Messina then drove

to Seymour Parkway where a man entered the car briefly and then left. [12] Constable Hakonson and Corporal Tupper both testified at the voir dire that the meetings between Mr. Messina and the four people were distinctive in that they were clearly pre-arranged. Each person approached on foot and entered the passenger seat of Mr. Messina's car. Each person sat in the car for 30-60 seconds, then left the car and immediately left the area. [13] Based on his observations, the observations communicated by other CRU members, and a discussion with Corporal Tupper, Constable Hakonson made the decision to arrest Mr. Messina. Mr. Messina was taken to the RCMP detachment where he was strip searched. The search yielded two rocks of crack cocaine totalling 0.5 grams. Decision at Trial [14] At trial, Mr. Messina applied to exclude the drug evidence found as a result of the strip search, on the basis that the police lacked reasonable grounds to arrest and search him, thus violating his ss. 8 and 9 Charter rights. The Crown called two witnesses on the voir dire, Constable Hakonson and Corporal Tupper. Mr. Messina did not provide any evidence. [15] The trial judge's findings of fact on the voir dire are summarized at para. 14 of Mr. Messina's factum: 14. In finding breaches of Mr. Messina's ss. 8 and 9 Charter rights, the trial judge made the following findings of fact: (i) It appeared that

Constable Hakonson "was operating from behind lenses which cast everything he saw in the light of being connected to a dial-a-dope operation"; (ii) Constable Hakonson had a "mindset during the investigation which permits only inferences supporting their theory of guilt to be entertained" which is "clearly dangerous and improper for any police officer to adopt"; (iii) Regarding Constable Hakonson's testimony: (a) he "provided the court with a great deal of supposition and embroidery about what the accused, as well as the four alleged buyers, were thinking or doing and drew conclusions about them from their appearance"; (b) he "drew an erroneous conclusion on a material point" when he testified that Mr. Messina had received a phone call at a gas station despite not being a witness to the event and not being told by the surveillance team the duration of the call or whether Mr. Messina had initiated or received it"; (c) he falsely stated that the accused took a convoluted route driving when Mr. Messina had "simply went westbound then northbound"; and (d) his theory of the case relied upon the assumption that Mr. Messina was receiving drug calls and getting further directions over the phone, however, there was only one occasion when Mr. Messina was observed on the phone. (iv) The reliable and material evidence which formed the basis for ground to arrest were four 30 to 60 second

encounters in Mr. Messina's car with four different individuals in the course of an hour; (v) The grounds here did not add up to the critical mass necessary to elevate them to reasonable and probable grounds for arrest. The evidence was sufficient to provide the officers with a reasonable suspicion but otherwise amounted to little more than "acting on a hunch based on intuition and experience". [Citations omitted.] [16] The trial judge ruled that there had been insufficient grounds to justify Mr. Messina's arrest and therefore his s. 9 Charter rights had been violated. As the legality of the search depended on the legality of the arrest, the trial judge concluded the strip search violated Mr. Messina's s. 8 Charter rights. However, after reviewing the Grant factors, she concluded the admission of the evidence would not bring the administration of justice into disrepute. [17] The trial judge based her Charter violation findings on Constable Hakonson's evidence, as summarized above. However, in assessing the credibility of Constable Hakonson, the trial judge failed to consider that Corporal Tupper, Constable Hakonson's superior officer, also testified on the voir dire and corroborated most of Constable Hakonson's evidence. Corporal Tupper authorized and assisted with the surveillance and independently concluded there were reasonable grounds to arrest Mr. Messina. She approved

Constable Hakonson's decision to arrest based on her own direct observations, as well as information she received from Constable Hakonson. Oddly, the trial judge did not consider Corporal Tupper's evidence, and therefore did not impute tunnel vision or a blinkered approach to her evidence even though she was 'side by side' with Constable Hakonson throughout the investigation. Issue on Appeal [18] The issue on appeal is whether the trial judge erred in admitting the evidence obtained from Mr. Messina's arrest and search incidental to arrest. Analysis [19] Section 495(1)(b) of the Criminal Code authorizes an arrest without a warrant if a peace officer has reasonable grounds to believe a person has committed an indictable offence. [20] In R. v. Storrey, [1990] 1 S.C.R. 241 at 250-251, Mr. Justice Cory set out a two-part test to establish reasonable grounds for an arrest without a warrant. The first step requires the arresting officer to have a subjective, personal belief that there are reasonable grounds for the arrest. The second part requires objective justification for the officer's subjective belief. In assessing objective justification, the consideration is whether a reasonable person, "standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest": Storrey. The test requires reasonable probability or

reasonable belief and not proof beyond a reasonable doubt: R. v. Debot, [1989] 2 SCR 1140 at 1166. [21] In the recent case of R. v. Wilson, 2012 BCCA 517, leave to appeal ref'd [2013] SCCA No. 71, Madam Justice MacKenzie helpfully reviewed a number of cases that discuss the appropriateness of considering an officer's experience in assessing the objective grounds for detention, arrest and search. At para 21, she stated: [21] In interpreting the Storrey test, this Court has consistently held that an arresting officer's personal experience is relevant to whether the officer's subjective belief in grounds to arrest is objectively justified: R. v. To (1998),109 B.C.A.C. 242; R. v. Juan, 2007 BCCA 351, 222 C.C.C. (3d) 289; R. v. Tran, 2007 BCCA 491, 247 B.C.A.C. 109; R. v. Luong, 2010 BCCA 158, 286 B.C.A.C. 53. [22] Madam Justice MacKenzie went on to quote from R. v. To (1998), 109 B.C.A.C. 242 ; R. v. Juan, 2007 BCCA 351; and R. v. Luong, 2010 BCCA 158, all of which have facts similar to the case at bar. Madam Justice MacKenzie made the following comments: [22] For example, in R. v. To, Madam Justice Ryan, for the Court, said: [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 W.R., Search and Seizure, A Treatise on the Fourth Amendment (3rd ed.), vol. 2, p. 38). [24] After reviewing Storrey, R. v. Feeney, [1997] 2 S.C.R. 13, 115 C.C.C. (3d) 129, and cases from other jurisdictions, Mr. Justice Thackray said: [27] The test set forth is to establish that "a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest." This does not mean that the beliefs of police officers are not necessarily objective. However, in that their conclusions might be perceived to have a bias or prejudice they must be subjected to a test of whether a reasonable person standing in the officers' shoes would have come to the same conclusion. In applying the Storrey test the knowledge of the police officers is not to be ignored. As said in R. v. Rajaratnam, 2006 ABCA 333: [25] ... a judge is entitled to consider a police officer's training and experience in determining objective reasonableness. See R. v. Smith, 1998 ABCA 418, 219 A.R. 109 at para. 30; R. v. Sinclair, 2005 MBCA 41, 192 Man.R. (2d) 283 at para.

14. What may appear to be innocent objects to the general public may have a very different meaning to an officer experienced in drug operations: R. v. Kluczny, 2005 ABQB 350, 385 A.R. 182 at para. 51. [Emphasis of Thackray J.A.] [25] In Luong, Madam Justice Bennett, for the Court, was clear: [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. [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 [R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456]. 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. [23] See also R. v. Ashby, 2013 BCCA 334 at para. 57, where Mr. Justice Frankel stated: [57] Ms. Ashby contends that the factors Constable Thompson took into consideration in addition to the odour of marihuana are "neutral" and, therefore, should be excluded from the objective analysis. However, notwithstanding that each of those factors standing alone can be consistent with non-criminal activity, their combined effect, when viewed through the lens of a police officer's experience, cannot be ignored. As Madam Justice MacKenzie stated in R. v. Wilson, 2012 BCCA 517 at para. 21, 99 C.R. (6th) 76, "this Court has consistently held that an arresting officer's personal experience is relevant to whether the officer's subjective belief in grounds to arrest is objectively justified". Apposite is the following succinct statement by Madam Justice Moen in R. v. Kluczny, 2005 ABQB 350 at para. 51, 385 A.R. 183, cited with approval in R. v. Rajaratnam, 2006 ABCA 333 at para. 25, 214 C.C.C. (3d) 547: [A]n officer experienced in drug operations can see a series of what might appear to a layperson to be innocent objects and take a very different meaning from them than the layperson might. [24] These authorities leave no doubt that Constable Hakonson's interpretation of Mr. Messina's actions must be considered in light of his

experience and training as a police officer and a CRU officer. This is what the Crown refers to as the "experience factor'', which requires that an officer's reasons for arrest be assessed from the vantage point of a prudent, reasonable and cautious police officer, similarly experienced as the arresting officer, rather than an untrained civilian. [25] Additionally, Corporal Tupper's extensive experience was relevant and inexplicably ignored in its entirety by the trial judge. The trial judge did not appreciate that there was other evidence supporting the reasonableness of Mr. Messina's arrest and based her findings solely on her assessment of Constable Hakonson's testimony. While she averted to the fact that other officers were involved in the investigation, she completely ignored their observations that there was a reasonable probability that Mr. Messina was trafficking in drugs from his car. The trial judge did not consider that both police officers, Constable Hakonson and Corporal Tupper, independently formed reasonable grounds to arrest Mr. Messina. [26] Both Constable Hakonson and Corporal Tupper have specialized skill and training that the trial judge failed to take into account when deciding whether there were objectively valid grounds for arresting Mr. Messina. These were experienced officers who had been involved in numerous drug investigations. Their observations,

considered in their totality, were sufficient to support objectively reasonable grounds that Mr. Messina was engaged in drug dealing. They did not have to rule out all other possible innocent explanations for Mr. Messina's conduct or each event. They were entitled to use their training and experience to conclude from the totality of their observations that Mr. Messina was trafficking in drugs from his car. [27] As Madam Justice MacKenzie notes in Wilson: [37] Most recently, the Court in R. v. Whyte, 2011 SCC 49 [2011] 3 S.C.R. 364, endorsed the decision in R v. Whyte, 2011 ONCA 24, 266 C.C.C. 5, where the sole question was whether the police had objectively reasonable grounds to arrest. Mr. Justice Rosenberg for the Court found the arresting officers' experience and knowledge were relevant in evaluating the objective grounds to arrest: [31] In this case, the sequence of events, from the 30 minute stay at the specified address in Windsor to the secreting of the shoe box after the 30 minute stay in Peel, sufficiently conformed to the anticipated pattern to remove the possibility of innocent coincidence. This sequence of events had to be measured against the knowledge and experience that the police officers brought to the investigation in informing the inferences to be drawn from the observations. That experience included knowledge of the trafficking in firearms in the Windsor

area and the use of rental cars in illegal trafficking of drugs and firearms. As Levine J.A. said in R. v. Tran, 2007 BCCA 491 at para. 12, the objective reasonableness of the arresting officer's grounds "must be assessed from the standpoint of the reasonable person 'standing in the shoes of the police officer'". [28] It fell to the trial judge in this case to assess objectively the reasonableness of the officers' belief, considering a reasonable person "standing in the shoes" of Constable Hakonson and Corporal Tupper. She did not do so. Instead, the trial judge adopted a layperson's view of what an experienced officer would deduce in the circumstances, focusing on the officer's subjective belief, when her task was to consider whether there was an objective basis for the officers' subjective belief. [29] In my view, the observations made of Mr. Messina's actions, when considered having regard to the experience of the officers involved, objectively support the officers' belief in the existence of reasonable grounds. Conclusion [30] The trial judge erred in finding Mr. Messina was unlawfully arrested and that the search incidental to arrest was unlawful. There were no Charter breaches on these facts; therefore s. 24(2) of the Charter was not engaged. The drug evidence was obtained from the search of Mr. Messina incidental to his lawful arrest and was admissible at trial. [31] I would uphold Mr. Messina's conviction and dismiss his appeal. [32] NEWBURY J.A.: I agree. [33] FRANKEL J.A.: I agree. [34] NEWBURY J.A.: The appeal is dismissed. "The Honourable Madam Justice Stromberg-Stein"