R. v. McLellan

2012 BCSC 39 R. v. McLellan IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. McLellan, 2012 BCSC 39 Date: 20120112 Docket: 153925-2 Registry: Victoria Regina v. Nolan Oliver McLellan Edited for Publication Purposes Before: The Honourable Mr. Justice S. R. Romilly Ruling on a Voir Dire - Sufficiency of Grounds for Warrantless Arrest Reasons for Judgment Counsel for the Crown: C. J. Peel Counsel for the Defence: C. L. Sutton Place and Date of Hearing: Victoria, B.C. January 10, 2012 Place and Date of Judgment: Victoria, B.C. January 12, 2012 THE INDICTMENT [1] The accused is charged with the following offence: Nolan Oliver McLellan, on or about the 2nd day of June, 2011, at or near the City of Victoria, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: cocaine, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He entered a plea of not guilty to the charge. NATURE OF THE APPLICATION [2] At the commencement of the trial a voir dire was declared. On this voir dire there was an application by the defence to have the warrantless arrest of the accused declared unlawful. It is also an application by the defence for a ruling that the evidence obtained as a result of Nolan's unlawful arrest was obtained contrary to s. 8 of the Charter. The defence further submits that the evidence obtained as a result of the illegal arrest and search should be excluded under s. 24 (2) of the Charter. [3] For the reasons stated below, the application is denied. BACKGROUND [4] Constable Eddy, a 30-year veteran of the police force, has dealt throughout his career in "dial-a-dope" operations. During his period as a police officer he had conducted approximately 30 dial-a-dope investigations. At the time of the alleged incident he was a member of the enforcement team. He received information from a reliable informant that Nolan was selling crack and heroin out of [removed for publication purposes]. Nolan's phone number is [removed for publication purposes]. Constable Eddy recognized the address as being that of a hotel on his police "beat", where some drug traffickers resided. He also recognized the "Nolan" referred to by his confidential informant as being the accused Nolan McLellan, who has just returned to town after serving some time in jail for a conviction for possession for the purpose of trafficking in drugs. [5] The information received by Constable Eddy from his informant was compelling. It was sufficiently specific to warrant his attention and did not take the form of bald conclusory statements or "mere rumour or gossip". The tip related to a serious offense (drug trafficking), and was very recent, having been received within 48 hours. [6] The tip was also credible. This informant had been known to Constable Eddy for one year. Constable Eddy had spoken to this informant two to three times per week for that year, and this informant had provided information in the past which had led to nine arrests. The source had never provided unreliable information to Constable Eddy in the past. [7] The informant's tip was also corroborated by the investigation the officers undertook as a result of the tip. Constable Eddy set up a deal for a "half ball of hard" (street language that indicates 1.5 grams of crack cocaine) by calling the cell phone number provided by the informant, [removed for publication purposes]. [8] In the first call at 12:20 a.m. on June 2, 2011, Constable Eddy said "Hey Nolan, what's up buddy, it's Troy." In reply, the male on the phone said "Hey Troy" and then the line went dead. Two minutes later, Constable Eddy's cell phone rang and the male at the other end said to Constable Eddy, "Be at the DQ in 10 minutes." This location was believed to be the Dairy Queen restaurant on Douglas Street. A few minutes after the call, at 12:40 a.m., Constable Eddy called back to the number provided to him by the informant. The same male that the officer had spoken to before answered and Constable Eddy said to him, "How much longer, I am at Wendy's." The male said that he would be there in two minutes. [9] Constable Eddy called the number once again and spoke to the same male he had spoken to in previous calls. In that call he said, "Hey man, how much longer, I am getting cold out here." The male at the other end of the line replied, "I am just leaving now." [10] At that time Constable Eddy received a call from Constable Taylor of the surveillance team, via police radio, who was well acquainted with the accused, Nolan McLellan. Constable Taylor told Constable Eddy that they had observed the accused pass the Dairy Queen, walking briskly towards Wendy's. She also gave Constable Eddy a description of the clothes that the accused was wearing. In her testimony, Constable Taylor could not remember telling Constable Eddy that the accused was heading towards Wendy's but she did testify to seeing the accused using his cell phone briefly. [11] Constable Eddy testified that at 1:01 a.m. he received a call from the same number that had been supplied to him by his informant. The male asked, "Where are you at?" Constable Eddy replied, "I am at the drive through." The male then said, "I am on my way." Constable Eddy and his partner then drove up to the accused and arrested him for possession for the purpose of trafficking. Upon his arrest the accused was searched. A cell phone was found in his possession. Constable Eddy phoned the number that had been provided to him by his informant and the seized cell phone rang. The accused was taken to the police detachment where he was searched. During the search, Constable Eddy found that the accused had 1.5 grams of crack cocaine in his underpants. [12] When asked about his subjective belief for effecting the arrest, Constable Eddy stated three reasons: 1. The information that he had received from his reliable informant; 2. The phone calls made and returned to his cell phone; and 3. The area where the activity took place. POSITION OF THE DEFENCE [13] Defence counsel submits that the arrest of the accused was premature. She submits that there was no evidence that the voice of the person with whom Constable Eddy spoke was the voice of the accused. She submits that the person who took the order for drugs from Constable Eddy did not admit or deny that he was "Nolan". [14] Defence counsel further submits that the "buy site" for the drugs was to be the Dairy Queen and that the accused had passed that "buy site" when he was arrested by Constable Eddy. She further submits that, as a result, Constable Eddy could not be sure that he had arrested the right person. Defence counsel also submitted that the conflict in the evidence between Constable Taylor and Constable Eddy as to what Constable Taylor told Constable Eddy about the movements of the accused before his arrest should be considered by me in assessing whether Constable Eddy had reasonable grounds to arrest the accused. THE LEGAL FRAMEWORK FOR SEARCH INCIDENT TO ARREST WITHOUT A WARRANT i. Reasonable grounds not a pre-requisite for search incident to arrest [15] The existence of reasonable and probable grounds is not a prerequisite to the existence of the power of the police to search as an incident to arrest. In Cloutier v. Langlois, [1990] 1 S.C.R. 158, L'Heureux-Dubé J. writing for the court said at para. 49: ... that the common law as recognized and developed in Canada holds that the police have a power to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner's escape or provide the evidence against him. The common thread in this line of authority is the objective of guaranteeing safety and applying the law effectively. [16] She continued at para. 59: I agree with the opinion of the Ontario Court of Appeal as stated in [R. v. Brezak (1949), 96 C.C.C. 97; R. v. Morrison (1987), 35 C.C.C. (3d) 437; and R. v. Miller (1987), 38 C.C.C. (3d) 252] ... that the existence of reasonable and probable grounds is not a prerequisite to the existence of a police power to search. The exercise of this power is not however unlimited. [17] The common law recognizes the discretionary power of the police to search an arrested person and his immediate surroundings as long as the search is not abusive, and that any physical or psychological force is directly proportional to the valid objectives of the search. This power was developed to guarantee the safety of the police and the accused, prevent the prisoner's escape and provide the evidence against him. In R. v. Stillman, [1997] 1 S.C.R. 607, however, the court pointed out that there were three conditions that must be satisfied in order for a search to be valid under the common law power of search incident to arrest, at para. 27: 1. the arrest must be lawful; 2. the search must have been conducted as an incident to the lawful arrest; 3. the manner in which the search is carried out must be reasonable. [18] Lamer C.J., writing in R. v. Caslake, [1998] 1 S.C.R. 51, set out the requirements necessary to establish a lawful search that is incident to arrest: 25 In summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation. [19] This approach was cited with approval by the court in R. v. Nolet, 2010 SCC 24, at para. 49. ii. The legal framework for the inquiry into legality of a search incident to arrest [20] The legal framework for the inquiry into the legality of a search incident to an arrest without a warrant was described in R. v. Bracchi, 2005 BCCA 461, at para. 4: A search incidental to arrest will be valid if the arrest out of which it arose was valid. For that proposition see R. v. Caslake (1998), 121 C.C.C. (3d) 97 at para. 13 (S.C.C.). The warrantless arrest in this case was authorized by s. 494 of the Criminal Code so long as the arresting officer believed on reasonable grounds that the respondent was in the course of committing an indictable offence. The standard of proof is that of reasonable probability, that is, the arresting officer must subjectively have reasonable and probable grounds to arrest and, as well, the grounds must be justifiable from an objective point of view. That test is set out in R. v. Storrey (1990), 53 C.C.C. (3d) 316 at p. 324 (S.C.C.). iii. Onus on Crown to prove reasonable grounds for arrest where there is search incident to arrest [21] In R. v. Besharah, 2010 SKCA 2, Smith J.A. for the court was of the view that the onus was on the Crown to prove reasonable and probable grounds for arrest in order to justify a warrantless search incident to arrest. Smith J.A. wrote: 35 In summary, it is my view that the logic of the approach taken in other cases by the Supreme Court of Canada in other circumstances applies with equal force to the circumstances of the case before us. Where the lawfulness of the police arrest is put at issue on a Charter challenge, as it was here, the onus must fall on the Crown through police witnesses to establish that the police had subjectively and objectively reasonable and probable grounds for the arrest, for, as a practical matter, this proposition is asserted and relied upon by the Crown and is within the peculiar knowledge of the police. Thus, fairness requires that the burden of proving this matter fall [sic] on the Crown and that the accused have an opportunity to challenge the police evidence by way of cross-examination. This logic applies where the police have justified a search of the accused as a search incident to arrest, whether or not the accused has also challenged the lawfulness of the arrest pursuant to s. 9 of the Charter. While it is true that search incident to a lawful arrest is an exception to the general rule that a warrantless search is prima facie unreasonable, it is for the Crown to establish that the pre-requisites for the exception have been satisfied. Reasonable grounds for arrest [22] The test for an arrest without a warrant is set out in R. v. Storrey, [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316, at para. 17. It was held in Storrey that an arrest without a warrant may be made where the police officer believes on reasonable and probable grounds the accused has committed an indictable offence and where such grounds are objectively justifiable. It is not necessary that the police officer make a prima facie case for conviction before arresting a suspect. Cory J. said at para. 17: ... the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, 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 ... [23] See also R. v. Charlton (1992), 15 B.C.A.C. 272, where Cumming J.A. wrote at 276: While a police officer must possess, both subjectively and objectively, reasonable and probable grounds to arrest an accused, he is not required to establish a prima facie case for conviction before making the arrest. The standard of proof is one of "reasonable probability". [24] R. v. Shokar, 2006 BCSC 770, at paras 19-21, provides a succinct summary of the law. Joyce J. stated: 19 There must be both a subjective and an objective basis for the reasonable grounds to arrest the suspect. The arresting officer or the officer who directs the arrest must believe that he has reasonable and probable grounds -- the subjective element. Further, it must be shown that a reasonable person standing in the shoes of the officer would have believed that reasonable and probable grounds existed to make the arrest -- the objective element. 20 The standard to be applied in assessing whether or not there were reasonable and probable grounds is not proof beyond a reasonable doubt or even a prime facie case. It is one of reasonable probability (R. v. Storey [sic], [1990] 1 S.C.R. 241). Whether or not a reasonable probability exists is also to be determined based on the totality of the circumstances (R. v. DeBot, [1989] 2 S.C.R. 1140). 21 The police officer who must have reasonable and probable grounds to arrest is the one who decides that the suspect should be arrested. The officer who actually effects the arrest is entitled to rely on the request or instruction of another police officer who has the requisite reasonable and probable grounds to justify the arrest. It is not necessary that the officer who actually performs the arrest form an independent judgment that there are reasonable and probable grounds. (See R. v. DeBot and R. v. Hall, [2006] S.J. No. 92, 2006 SKCA 19). Therefore, as long as Constable Currie had reasonable and probable grounds, Constable Weatherby was entitled to rely on them. [25] Shokar was cited with approval in R. v. Le, 2009 BCCA 14. Subjective belief of arresting officer [26] In R. v. Feeney, [1997] 2 S.C.R. 13, 115 C.C.C. (3d) 129, Sopinka J. for the majority emphasized the importance of the requirement for the arresting officer to have a subjective belief in the grounds for arrest. He stated at para. 29: According to the plain wording of s. 495, the peace officer may arrest someone only if, on reasonable grounds, he or she believes the person to have committed an indictable offence. An objective standard was added in Storrey, supra, but this did not displace the subjective requirement: see Storrey, supra, at p. 250. Indeed, it would be inconsistent with the spirit of the Charter to permit a police officer to make an arrest without a warrant even though she or he does not believe reasonable grounds for the arrest exist. The absence of subjective belief, therefore, rendered the arrest in the present case unlawful irrespective of the existence of objective grounds for the arrest ... [27] In R. v. Johns (1998), 123 C.C.C. (3d) 190 (Ont. C.A.), however, the court held at para. 27: "[a]lthough the perceptions of the police may be relevant to the assessment of whether an accused is detained, they are not decisive. See R. v. Hawkins (1993), 79 C.C.C. (3d) 576 (S.C.C.) and R. v. Caputo (1997), 114 C.C.C. (3d) 1 (Ont.C.A.)." [28] Subjective belief is a question of fact, and there is no reviewable error in a judge's finding of subjective belief: R. v. Cornell, 2010 SCC 31, at paras. 25 and 35. Objective justification for arrest must be considered cumulatively [29] In Bracchi, the British Columbia Court of Appeal reversed the trial judge's finding that a search was unreasonable. The trial judge erred by considering and rejecting the pieces of evidence which formed the objective foundation for the officer's subjective grounds for arrest individually. The court held that the proper test was whether the totality of the circumstances upon which the Crown relied as objective justification for arrest when considered cumulatively amounted to reasonable and probable grounds (paras. 24-26). [30] In R. v. Juan, 2007 BCCA 351, the respondent was a passenger in a car that a drug dealer drove to a pre-arranged meeting for the sale of nine ounces of cocaine. He was arrested with the driver and other cocaine was found in his pocket. The trial judge held that although the officers subjectively believed they had grounds to arrest the passenger, they did not objectively have reasonable grounds and excluded the evidence. [31] Thackray J.A. for the court allowed the Crown's appeal. The officers testified to their knowledge based on their experience of drug traffickers at the multi-ounce cocaine level, and the trial judge accepted their evidence as truthful. A reasonable person standing in the officers' shoes must consider their training, knowledge and experience. The evidence which the trial judge accepted constituted objectively reasonable grounds in Juan. [32] In R. v. McKenzie, 2011 ONCA 42, at para. 8, the court states: 8 This constellation of objectively discernable [sic] facts showed that the police had reasonable grounds to believe that the appellant was in unlawful possession of firearms when he was arrested and his vehicle searched. The careful and lengthy investigation provided information that passed the threshold from a mere hunch or educated guess to reasonable and probable grounds. [33] Additionally, in R. v. Jir, 2010 BCCA 497, after referring to the comments of Cory J. in Storrey, Frankel J.A. for the court wrote: 24 Further, as Madam Justice Bennett reiterated in R. v. Luong, 2010 BCCA 158: [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. ... ... 27 As has been stated many times, the "reasonable grounds" standard is not only less than that required for conviction, but is also less than the civil standard of proof. Madam Justice Wilson put it this way in R. v. Debot, [1989] 2 S.C.R. 1140 at 1166: The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly. I agree with Martin J.A. that the appropriate standard is one of "reasonable probability" rather than "proof beyond a reasonable doubt" or "prima facie case". The phrase "reasonable belief" also approximates the requisite standard. More recently, in Mugesera v. Canada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, the Court stated (at para. 114): the "reasonable grounds to believe" standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities [citations omitted]. Further, as Mr. Justice Hill noted in R. v. Sanchez (1994), 93 C.C.C. (3d) 357 at 367 (Ont. Ct. (G.D)): The appropriate standard of reasonable or credibly based probability envisions a practical, non-technical and common sense probability as to the existence of the facts and inferences asserted. 28 It is well established that a reasonable grounds determination involves a consideration of the "totality of the circumstances". When the police act on the basis of an anonymous tip, consideration must be given to a variety of factors, including the degree of detail provided by the tipster, information as to the tipster's source of knowledge, and indicia of the tipster's reliability, including confirmation of some of the information provided: Garofoli at 1457. Weakness in one area may be compensated for by strengths in other areas: Debot at 1168. As Mr. Justice Cumming succinctly stated in R. v. Charlton (1992), 15 B.C.A.C. 272 at para. 29: The inability to assess the credibility of the informant may be compensated for by the quality of the information as well as by any corroborating or confirmatory evidence [citations omitted]. [34] See also R. v. Spence, 2011 BCCA 280 per Chiasson J.A., for the court, at paras. 32-33. Nexus between the individual detained and the crime being investigated [35] In R. v. Clayton, 2007 SCC 32, an appeal by the Crown from an Ontario Court of Appeal decision excluding handgun evidence, the Supreme Court of Canada discussed the parameters of lawful detention. The court explained that the Waterfield test as articulated in R. v. Mann, 2004 SCC 52, requires a clear nexus between the individual detained and the crime being investigated. It does not, however, require a perfect match between the description of the suspect and the individual detained. Accordingly, the court stated at para. 28: Mann dealt with the detention of an individual walking on the sidewalk during the investigation of a break and enter. The Court concluded that the detention was lawful since the accused not only closely matched the description given by the radio dispatcher, which had included the age, race, height, weight, and clothing of the suspect, but also because the accused was only two or three blocks from the scene of the reported crime. While the circumstances in this case are different from those in Mann since the police in this case were obviously unable to identify any particulars about the occupants before their initial detention, some of the analysis in Mann is nonetheless helpful in assessing whether the police were acting within the scope of their common law powers ... [emphasis added] ANALYSIS [36] I mean no disrespect, when I say that, in her submissions, defence counsel invites me to conduct a microscopic analysis of the grounds for the arrest. This is, however, the same type of analysis that was frowned upon by our Court of Appeal in Bracchi. [37] On the basis of the evidence adduced on this voir dire, I agree that Constable Eddy had reasonable grounds to arrest the accused when he did. [38] I agree that the information received by Constable Eddy was compelling. It was sufficiently specific to warrant his attention and did not take the form of bald conclusory statements or "mere rumour or gossip". The tip related to a serious offense (drug trafficking), and was very recent, having been received within 48 hours. [39] The tip was also credible. This source had been known to Constable Eddy for one year. Constable Eddy had spoken to this informant two to three times per week for that year, and this informant had provided information in the past which had led to nine arrests. The source had never provided unreliable information to Constable Eddy in the past. [40] The tip was also corroborated by the investigation the officers undertook as a result of the tip. Constable Eddy set up a deal for a "half ball of hard" (street language that indicates 1.5 grams of crack cocaine) using the cell phone number provided by the source. In the first call, the officer said "Hey Nolan, what's up buddy, it's Troy" and in reply, the male on the phone said "Hey Troy." Finally, the agreed upon location for the drug deal was "DQ" (believed to the Dairy Queen restaurant on Douglas Street), and then changed to Wendy's, at Bay and Blanshard Streets. These locations are within a one-block radius of [removed for publication purposes]. [41] In summary, through five phone calls made to the phone number provided by the informant, Constable Eddy confirmed that drug dealing was occurring using this particular phone number, he confirmed the substance being sold (cocaine), he confirmed the approximate location (meet locations set up near [removed for publication purposes]), and he indirectly confirmed that "Nolan" was taking the calls. Portions of the tip were finally corroborated when Constable Taylor saw Nolan McLellan walking north on Douglas Street, coming from the area of [removed for publication purposes] and heading towards the area of the Wendy's restaurant. These observations were made within minutes of Constable Eddy having set up the drug deal. [42] I agree with Crown Counsel that the degree of detail contained in the tip, the reliability of the informant, and the numerous ways in which various aspects of the tip were corroborated rule out the possibility of mere coincidence. Given Constable Eddy's extensive experience doing undercover drug investigations in Victoria, I agree that his subjective grounds for the arrest of the accused were objectively reasonable, based on the totality of the circumstances. DECISION [43] The defence's application is dismissed. "S. R. Romilly, J." The Honourable Mr. Justice Romilly