R. v. Budd (S.C.), (2009) 279 B.C.A.C. 309 (CA)

• Judge: Levine, Frankel and Tysoe, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 02, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 279 B.C.A.C. 309 (CA);2009 BCCA 595

R. v. Budd (S.C.) (2009), 279 B.C.A.C. 309 (CA);

    473 W.A.C. 309

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. JA.019

Regina (respondent) v. Steven Charles Budd (appellant)

(CA036277; 2009 BCCA 595)

Indexed As: R. v. Budd (S.C.)

British Columbia Court of Appeal

Levine, Frankel and Tysoe, JJ.A.

December 29, 2009.

Summary:

The accused was charged with several charges relating to marihuana production and trafficking. He alleged that his rights under ss. 7, 8, 9, and 10(b) of the Charter were violated and sought a stay of proceedings or, alternatively, an exclusion of evidence.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. I42, dismissed the application. The trial proceeded.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. H40, convicted the accused on five charges relating to marihuana production and trafficking.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. H45, imposed a sentence of one year of jail for each count (concurrent). The accused appealed his convictions, arguing that the trial judge erred in finding that there were reasonable grounds for his arrest and that there was no violation of his right to counsel (Charter, s. 10(b)).

The British Columbia Court of Appeal dismissed the appeal.

Editor's Note: for another case involving these parties see [2007] B.C.T.C. Uned. I43.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - After surveillance of three properties, the police stopped a moving van in which the accused was a passenger at 1:30 a.m. - The van was on the way from a house on Fry Street to a house on Extension Road which was within the accused's control - The van contained 316 marihuana plants - The accused was arrested at 2:00 a.m. and informed of his right to counsel (Charter, s. 10(b)) - The arresting officer testified that the accused declined his right to counsel - The accused testified that he remained silent - He did not ask to contact counsel during the booking process after he was taken to the detachment - An officer instructed that the accused and others arrested with him not be given the opportunity to make any telephone calls, including to counsel (the hold order) so that the police could secure the three residences, conclude their investigation and obtain search warrants - The residences were secured by 3:40 a.m. - The hold order remained in place until the accused was rearrested and given the right to contact counsel around 7:00 a.m. - The police then executed a warrant on the Extension Road house and found 1,139 grams of drying marihuana bud - The trial judge held that the accused's s. 10(b) rights were not violated - The British Columbia Court of Appeal dismissed the accused's appeal - There was no evidence that the accused was denied an opportunity to ask for counsel - Had he asked to call counsel during the "hold" period and his request was refused, that would have been a violation of his rights under s. 10(b) - The accused could not claim that his personal rights had been violated when he did not diligently pursue them - The court agreed with the trial judge's comments respecting the seriousness of the police actions in placing the "hold" on calls to counsel on the basis of their assertions that they wished to secure the residences for officer safety and to preserve evidence - The court opined that depriving an arrested person who had exercised his right to contact counsel of that right, where there were no exigent circumstances, was a serious violation of s. 10(b) of the Charter - See paragraphs 22 to 33.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - [See Civil Rights - Topic 4604 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - After surveillance of three properties, the police stopped a moving van in which the accused was a passenger at 1:30 a.m. - The van was on the way from a house on Fry Street to a house on Extension Road which was within the accused's control - The van contained 316 marihuana plants - The police then executed a warrant on the Extension Road house and found 1,139 grams of drying marihuana bud - There was also evidence of an ongoing marihuana operation of some sophistication - The police claimed reasonable grounds to arrest the occupants for possession of marihuana based on a combination of sources: B.C. Hydro, another "source", information linking the accused and others to three targeted residences and other marihuana grow operations and surveillance of the target residences - The accused was convicted of several charges relating to marihuana production and trafficking - He appealed, arguing that the trial judge erred in finding there were reasonable grounds for his arrest - The British Columbia Court of Appeal dismissed the appeal - Constable Toye's observations of the movements of the vehicles and moving van between the three residences, the suspicious driving activities, the sounds of the moving van being loaded, and his past experience with grow operations being moved in moving vans, together with the information that Toye knew from another officer about the suspected marihuana grow operation at Extension Road, provided objectively reasonable grounds for the arrest of the occupants of the moving van - The trial judge drew the reasonable inference from all of the facts that any passengers found in the vehicle were clearly "not just innocent passengers who happened to be getting a ride at 1:30 in the morning" - See paragraphs 7 to 21.

Cases Noticed:

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 18].

R. v. Tran (L.V.) (2007), 247 B.C.A.C. 109; 409 W.A.C. 109; 2007 BCCA 491, refd to. [para. 19].

R. v. Baig, [1987] 2 S.C.R. 537; 81 N.R. 87; 25 O.A.C. 81, refd to. [para. 28].

R. v. Anderson (1984), 2 O.A.C. 258; 10 C.C.C.(3d) 417 (C.A.), refd to. [para. 28].

R. v. Smith (1988), 43 C.C.C.(3d) 379 (B.C.C.A.), refd to. [para. 29].

R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93, refd to. [para. 29].

R. v. Patterson (D.J.) (2006), 221 B.C.A.C. 208; 364 W.A.C. 208; 2006 BCCA 24, refd to. [para. 31].

Counsel:

H.M. Patey, for the appellant;

P. LaPrairie, for the respondent.

This appeal was heard in Vancouver, British Columbia, on December 2, 2009, by Levine, Frankel and Tysoe, JJ.A., of the British Columbia Court of Appeal. The following decision of the court was delivered by Levine, J.A., on December 29, 2009.