R. v. LeeWritten on the 17 October 2005 Recent Criminal Law CasesCase Name: R. v. Lee
Between Her Majesty the Queen, and Ly Sang Lee and Bing Quan Chen
[2005] O.J. No. 4389
[2005] O.T.C. 906
67 W.C.B. (2d) 474
Court File No. 05-FD-42
Ontario Superior Court of Justice
W. Low J.
Heard: September 14, 15, and 16, 2005. Judgment: October 17, 2005.
(42 paras.)
Constitutional law -- Canadian Charter of Rights and Freedoms -- Legal rights -- Protection against arbitrary detention or imprisonment -- Protection against unreasonable search and seizure -- Remedies of denial of rights -- Specific remedies -- Exclusion of evidence -- Warrantless arrest of accused and search of accused's vehicle after arrest was unreasonable -- Officer witnessed one accused remove garbage bag from vehicle of co-accused -- Officer had seen one accused leave house of suspected marijuana grow operation -- Officer believed he had witnessed drug transaction -- After arrest, officer searched bag found in trunk of accused -- Bag contained marijuana -- Marijuana found was excluded from evidence -- Canadian Charter of Rights and Freedoms, ss. 8, 9.
Application by accused for exclusion of marijuana found in trunk of accused Chen's vehicle based on breach of sections 8 and 9 of the Charter -- Accused were charged with possession of cannabis sativa -- Police received anonymous tip of marijuana grow operation in a residential house -- Officer concluded he had insufficient grounds to obtain search warrant for house -- After another tip, officer went to residence - Accused Chen was seen leaving in black Honda -- Officer followed Honda -- Chen met accused Lee at a parking lot -- Chen reached into trunk of Lee's vehicle and took out large garbage bag -- Officer believed he had witnessed drug transaction and that bag contained marijuana or money -- Both Lee and Chen were arrested -- Officer subsequently opened trunk of Chen's car and found bags of marijuana inside -- Application allowed -- Lee had no standing to advance breach of s. 8 right -- Once the bags left his vehicle with his consent, Lee had no reasonable expectation of privacy in the trunk of Chen's car -- Arrest and search of both accused was unreasonable -- At time of arrest, officer did not know that bags contained marijuana -- Conduct of the accused that was witnessed by officer was also consistent with lawful activity -- Charter 9 rights of both a accused were violated -- Marijuana found was direct result of the violation of s. 9 right -- Breaches of Charter rights were serious and resulted from pattern of conduct based on arrest first and investigation thereafter -- Without reasonable cause, the arrests were calculated to provide the occasion to effect a warrantless search without accused's consent -- Administration of justice would be brought into disrepute if evidence admitted.
Statutes, Regulations and Rules Cited: Canadian Charter of Rights and Freedoms, 1982, s. 8, s. 9
Counsel: Ruth Mcguirl, for Her Majesty the Queen Leora Shemesh and Darren Sederoff, for the defendants
1 W. LOW J.:-- The defendants are charged with possession of cannabis sativa for the purpose of trafficking. 2 They have made an application under the Charter to have physical evidence that was seized on January 26, 2004 excluded from evidence on the grounds that their section 8 and section 9 rights have been infringed. 3 On January 13, 2004, Detective Constable Andrew McCall received a telephone tip from an anonymous source that 43 or 47 Eastlea Boulevard was a possible marijuana grow house. The information he received was that the house had been purchased for $360,000 cash, that there had been no house inspection, that no furniture had been moved in, that the siding, which had been white, was now showing a brown ooze from the roof edge, that all the roof tops in the area were snow covered but that this house was not, that oriental males came and went in different vans of different colours, that an oriental female had attended in a BMW and had waited outside, that the front door faced southwest, that a water pipe had burst the day before and people had attended for 2 to 3 hours to attend to it. 4 Detective McCall took no action on this information. On January 19 he went to check the addresses and determined that the information did not apply to 47 but to 43. He noticed the absence of snow on the roof, the unshovelled drive and walkway, condensation on the windows, staining on the siding, and the absence of lights on in the interior. He did not cause a title search to be done to check the reliability of the information concerning the price of purchase and cash paid on closing. He acknowledged in evidence that based on the information he had, there were not sufficient grounds to obtain a warrant to search the house. 5 On January 26, Detective McCall received a further communication from his anonymous source. The information was that a white Hertz van had pulled up to the address and that a large number of garbage bags were being loaded into it by an oriental male. 6 Detective McCall received the information from the tipster before he came on shift and he called dispatch to have one of his colleagues attend the address. 7 He went to the address himself at 1:35 p.m. before going into work. He saw a black Honda with plate number ALNK498 in the driveway. He had a CPIC check done which revealed that the car was registered to Chen Bing Quan of 23 New Forest Square. The car was described in the CPIC record as a 93 ALX grey 4 door car. Detective McCall saw an oriental male, who he later learned was the defendant Chen, leaving the premises. He called dispatch to have the car stopped and investigated to identify the driver. He followed it himself into a commercial plaza near the intersection of Silver Star Boulevard and Midland Avenue. 8 The driver of the black Honda, the accused Mr. Chen, was on the phone as he was driving in the plaza parking lot and appeared to be waiting for or looking for someone. He was driving slowly. He came back on to Silver Star Boulevard. Detective McCall then saw a similar small black car and he watched them both proceed west on Silver Star Boulevard. The two cars went into the rear of the commercial units that fronted the west end of the commercial plaza at 63 Silver Star Boulevard. They parked side by side. 9 Detective McCall drove into an adjacent plaza to the west and parked in its parking lot at a location where he had a view of the two small black cars parked with their fronts facing the rear of the building. From where he parked, Detective McCall was about 50 feet away from the two cars. 10 He observed the trunk of the black Honda ALNK 498 pop open. He saw the driver, (Chen) exit his vehicle. At the same time, the trunk of the other car popped open, but the driver (the accused Mr. Lee) stayed in the car. 11 Chen reached into the trunk of Lee's car and took out a large garbage bag and a small white shopping bag. He put the bags into his own trunk, closed it and got back into his car. The two drivers did not speak to each other. The transfer happened quickly, the entire action taking at most a minute from the time both cars came off Silver Star Boulevard and on to the parking lot. 12 Detective McCall testified that he believed he had witnessed a drug transaction. He also stated that he believed the bags contained marijuana or money or both. He stated that the facts that led him to believe that this was a drug transaction were: the tandem arrival, the parking of the two cars side by side, the absence of a greeting or contact between the two drivers, the quick transfer of property, the apparent pre-arrangement of the meeting, and the fact that the black Honda was a vehicle that had just left 43 Eastlea which he believed was a marijuana grow house. 13 Upon seeing the transfer of the garbage bag and the white shopping bag from the trunk of Lee's car to the trunk of Chen's car, Detective McCall gave the instruction to his colleagues Officers Bisla and Martin to arrest the drivers of the two black cars who were in at that point in the process of driving away. He instructed the officers to arrest for possession for the purpose. 14 On cross-examination at the preliminary inquiry, Detective McCall variously stated (at page 52) that he was not guessing and that he was guessing. He stated that he could not see and did not know what was in the bags. 15 Officers Bisla and Martin drove their police cruiser into the area where Chen and Lee had been parked and blocked them in. Officer Martin arrested Mr. Chen. Officer Bisla arrested Mr. Lee. 16 In the meantime, Detective McCall made his way to the site of the arrest in his car. He took Chen's car keys from the ignition and opened the trunk. He saw that the white shopping bag contained 2 ziploc bags containing marijuana bud. Using a sharp implement, he poked a hole into the garbage bag to ascertain its contents. The contents were 20 to 30 ziploc bags containing bud marijuana. 17 At about two in the afternoon Detective McCall instructed Detective Constable Poczak, who had been dispatched to 43 Eastlea pursuant to his earlier instructions, that anyone going in or out of that property was to be arrested. Further to those instructions, Detective Poczak did arrest an individual, Mr. Lin, at that address. The charge or charges against that person were subsequently terminated. 18 Both the accused, Lee and Chen, apply to have the evidence of the marijuana found in Chen's trunk excluded from the trial. The Crown argues that Lee has no standing to make such an application. While in the particular circumstances before me I am not persuaded that standing on the part of Lee to assert an infringement of section 8 rights is determinative of the matter, the issue was argued at some length and I will deal with it. 19 The leading authority is R. v. Edwards (1996), 104 C.C.C. (3d) 136. Writing for the majority, Cory J. held that standing to assert a violation of right to be secure against unreasonable search and seizure depends on the accused establishing that his personal privacy rights have been violated. In determining whether or not an accused had a reasonable expectation of privacy in the place in which the seizure occurred, the court is to consider the totality of circumstances, among them, presence at the time of the search, possession or control of the property or place searched, ownership of the property or place, historical use of the property or item, ability to regulate access to the place, existence of a subjective expectation of privacy, and objective reasonableness of the expectation of privacy. 20 The marijuana which is sought to be excluded from evidence was not found either on Lee's person or in his car although Lee was present at the time the search took place and the evidence indicates that the marijuana had been in his car immediately prior to being moved to Chen's car. There is no evidence that Lee had any physical or legal control over Chen's car, its trunk or its contents. Likewise, there is no evidence that he had any control over the actions of Mr. Chen. While the evidence of Detective McCall may lead to an inference that Mr. Lee may have had a degree of physical possession of the marijuana at some point in time, there is no evidence that Lee had any ownership interest in the marijuana. 21 In my view, whatever privacy interest Lee may have had over the trunk of his own car and thus over the garbage and shopping bags while located there, it was lost once the bags were transferred to Chen's car. That transfer appeared, on the evidence, to have taken place with the consent of Lee. Once the bags left his car, they left his control. As Lee had no reasonable expectation of privacy in the trunk of Chen's car, he accordingly he has no standing, in the parlance of the majority in R. v. Edwards, to assert a violation of section 8 arising out of seizure of the bags from Chen's car. 22 Chen's application under section 8 of the Charter is on a different footing. Chen does have a reasonable expectation of privacy in the trunk of his car. While the privacy interest is of a lesser degree than would be the case had his home been the location of the search, there is nevertheless some degree of privacy accorded to that place. He owned the car and was in control of it at the time of his arrest and the search. 23 The search was warrantless. It is prima facie unreasonable subject to the Crown showing that it was not unreasonable. Here the Crown contends that the search and seizure was incident to arrest. Assuming that to be the case, the fact that the search and seizure was incident to arrest is not sufficient to render the seizure reasonable if the arrest was itself without reasonable and probable grounds and therefore unlawful. The latter issue is the heart of the matter. 24 It is common ground that there were not sufficient grounds upon which a search warrant could reasonably be applied for in respect of 43 Eastlea Boulevard. 25 The house had been frequented by oriental men who came and went, the drive and walkways were unshovelled, there was vapour but no snow on the roof and there was a brown staining on the siding. There was no smell of marijuana emanating from the house. No verification had been done as to the anonymous tipster's information about the financial aspects of the purchase of the house. No expert evidence was adduced as to the external physical characteristics of a marijuana grow house. 26 The thing connecting the house with the transfer of two bags of material from one trunk to another at the rear of the plaza at 63 Silver Star Boulevard was Mr. Chen. He had been seen leaving 43 Eastlea that afternoon. As there were not sufficient grounds to obtain a search warrant of that property, there were equally not sufficient grounds to arrest Mr. Chen, or any other person, merely for exiting the house at that time. 27 If there were reasonable grounds to believe that 43 Eastlea was a grow house, there might arguably have been grounds to investigate material emanating from that house. The two bags of material in issue here, however were transferred not from the Chen vehicle to the Lee vehicle but from the Lee vehicle to the Chen vehicle. There was no evidence that Lee was connected to 43 Eastlea Boulevard or that the bags from Lee's car emanated from 43 Eastlea. 28 From Detective McCall's vantage point of about 50 feet from the Lee and Chen cars, the detective did not and could not know what was in the bags. He did not see the contents. He did not detect a smell of marijuana from his vantage point. In my view, he was telling the truth when, at the preliminary inquiry he agreed that he was guessing. 29 Nevertheless, having seen the transfer of the two bags, he gave the order to arrest Lee and Chen without having investigated further to ascertain the contents of the bags. His action in giving the orders appears to have been grounded on the fact that Lee and Chen were two oriental men, that they appeared to him have made a pre-arrangement to meet at the place where they met, that they did not greet each other, that the transfer of the bags took place quickly, and that Chan had been followed from 43 Eastlea from which garbage bags of material had been removed earlier that day in a Hertz rental van. While the evidence is unclear as to the precise sequence of his instructions to make arrests, it is significant that he also gave the instructions to arrest anyone entering or leaving 43 Eastlea Boulevard. 30 While I accept Detective McCall's testimony that he believed in good faith that what he was seeing was a drug transaction, there was, in my view, no objectively reasonable basis, and no articulable cause for the arrest and search of Lee and Chen. The conduct that Detective McCall witnessed in the parking lot which he believed to be indicative of a drug transaction was also consistent with activity that was not unlawful. Detective McCall stated that he formed the belief that he was seeing a drug transaction based on his years of experience as a policeman engaged in the investigation and enforcement of drug legislation. That, however, does not articulate an objectively reasonable cause for the belief; it merely indicates the experiential origins of his coming to hold such a belief. 31 As the court of appeal stated in connection with an auto stop for investigative purposes in R. v. Simpson (1993), 12 O.R. (3d) 182 per Doherty J.A.:
In my opinion, where an individual is detained by the police in the course of efforts to determine whether that individual is involved in criminal activity being investigated by the police, that detention can only be justified if the detaining officer has some "articulable cause" for the detention. After reviewing the American jurisprudence on the point, Justice Doherty continued,
These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation. The requirement that the facts must meet an objectively discernible standard is recognized in connection with the arrest power: R. v. Storrey, [1990] 1 S.C.R. 241 at p. 251, 53 C.C.C. (3d) 316 at p. 324, and serves to avoid indiscriminate and discriminatory exercises of the police power. A "hunch" based entirely on intuition gained by experience cannot suffice, no matter how accurate that "hunch" might prove to be. Such subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation. Equally, without objective criteria detentions could be based on mere speculation. A guess which proves accurate becomes in hindsight a "hunch". In this regard, I must disagree with R. v. Nelson (1987), 35 C.C.C. (3d) 347, 29 C.R.R. 80 (Man. C.A.), at p. 355 C.C.C., p. 87 C.R.R. where it is said that detention may be justified if the officer "intuitively senses that his intervention may be required in the public interest". Rather, I agree with Professor Young in "All Along the Watch Tower", supra, at p. 375:
In order to avoid an attribution of arbitrary conduct, the state official must be operating under a set of criteria that at minimum, bears some relationship to a reasonable suspicion of crime but not necessarily to a credibly-based probability of crime. 32 Here, what occurred was not merely an investigative detention. It was an arrest. In my view, there were no reasonable grounds for the arrest of Lee and Chen. The conduct that Detective McCall saw was, from an objective standpoint, ambiguous: while the detective's own personal experiences led him to suspect criminal conduct and thus to focus on the activity being consistent with a drug transaction, the individual aspects of the conduct were also consistent with absence of criminal activity as was the totality of the conduct. 33 I would pause to deal here with one detail from the evidence of Officer Bisla. Officer Bisla testified that she arrested Lee on the instructions of Detective McCall. She received those instructions prior to her approaching Lee's car to effect the arrest. She was told that bags had been moved. She did not know what was in the bags, who moved the bags, or which car the bags had been moved from. She had formed the intention to arrest Lee prior to her approaching his car. 34 Evidence was led from her by the Crown to the effect that she smelled fresh marijuana as she approached Mr. Lee. Officer Bisla did not recall whether the windows were up or down. The Crown's position appears to be that whatever the frailties of Detective McCall's grounds for arrest as relied upon and adopted by Officer Bisla when she set out to arrest Lee, those frailties are compensated for by the smell of marijuana such that by the time the arrest was affected, Officer Bisla had acquired reasonable and probable grounds. 35 I found Officer Bisla's evidence unsatisfactory on this and on other points. On this point, she did not offer the evidence that she detected the smell of marijuana until given significant prompting by Crown counsel. Her original testimony was to the effect that there was nothing remarkable. I therefore place negligible weight on the evidence that she smelled "fresh marijuana". The arrest was already in progress, and the intention to arrest and the instructions to effect the arrest were the intention and the instructions of Detective McCall. He did not smell marijuana. 36 I have also been referred to Regina v. Polashek (1999), 134 C.C.C. (3d) 187 (C.A.) which is instructive as to the dangers of basing a police action on a perception by an individual officer of a particular smell. As Rosenberg J.A. notes, "the sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature smells are transitory and thus, largely incapable of objective verification." 37 I am persuaded on a balance of probabilities that the arrest of both Lee and Chen was without reasonable and probable grounds and that Lee's and Chen's section 9 rights not to be arbitrarily detained or imprisoned were violated when they were arrested and their persons and cars searched. As the search of the two accused and their cars was incident to the arrest of both of them at the same time and place and upon a single instruction, they formed a single transaction or event and are indivisible. Accordingly, I am of the view that the evidence which is the product of the search incident to the arrest of the accused were the direct result of the violation of their section 9 Charter rights. 38 The Crown argues that even if there was a breach of the accused's Charter rights, the evidence ought not to be excluded. 39 Applying the three part analysis described in Regina v. Collins, [1987] 1 S.C.R. 265; [1987] S.C.J. No. 15, in determining whether the evidence ought to be excluded under section 24(2) of the Charter, I am not able to say that admission of the evidence would affect trial fairness. The evidence is real evidence and was not conscripted either directly or indirectly. Trial fairness would not be affected. 40 These were, however, multiple breaches of the accused's Charter rights, and they were neither trivial nor merely technical. They were serious and resulted from a pattern of conduct or a methodology that based on arrest first and investigation thereafter. Detective McCall gave instructions to stop the black Honda although there was no legitimate highway traffic purpose for so doing. He gave instructions to arrest the accused on a guess or a suspicion. Perhaps most tellingly, he gave instructions to arrest anyone going into or coming out of 43 Eastlea Boulevard. There were no exigencies: no imminent danger to officers or to members of the public. It was open to the officers to carry out investigations with the purpose of obtaining sufficient grounds to obtain a search warrant. Without reasonable cause, the arrests were calculated to provide the occasion to effect a warrantless search without the consent of the accused. It reflects either a misunderstanding or a disregard for the fundamental Charter rights of citizens, including citizens who may have committed offences. 41 In my view, the disrepute into which the administration of justice would be brought by admission of the real evidence obtained directly as a result of the unlawful arrests outweighs the negative impact of exclusion of the evidence. While the exclusion of the real evidence may result in the acquittal of the accused, the damage to the integrity of the administration of justice would be greater were the court to countenance and thus implicitly give approbation to the police methods used here by allowing the use of unlawfully gathered evidence. As observed by La Forest J. in Regina v. Edwards, supra, "We exercise discretion to exclude evidence obtained by unconstitutional searches from being used against an accused, even when it would clearly establish guilt, not to protect criminals but because the only really effective safeguard for the protection of the constitutional right we all share is not to allow use of evidence obtained in violation of this public right when doing so would bring the administration of justice into disrepute." 42 In the result, I would allow the application to exclude the evidence gathered on January 26, 2004 from the persons and automobiles of the accused before the court. W. LOW J. cp/e/qw/qlesm |
