R. v. Crocker (L.), (2009) 275 B.C.A.C. 190 (CA)

• Judge: Newbury, Bauman and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 25, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 275 B.C.A.C. 190 (CA);2009 BCCA 388

R. v. Crocker (L.) (2009), 275 B.C.A.C. 190 (CA);

    465 W.A.C. 190

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. SE.009

Regina (appellant) v. Larry Crocker (respondent)

(CA036160; 2009 BCCA 388)

Indexed As: R. v. Crocker (L.)

British Columbia Court of Appeal

Newbury, Bauman and D. Smith, JJ.A.

September 11, 2009.

Summary:

The accused was charged with various offences, including escaping lawful custody, possession of various illegal drugs and possession of and making counterfeit money. The trial judge concluded that the police, in various searches, had infringed the accused's s. 8 Charter right. In a second ruling, the trial judge held that the evidence obtained as a result of the unlawful searches should be excluded under s. 24(2) of the Charter. He concluded that while trial fairness was not in issue, the Charter breaches, when viewed cumulatively, displayed a pattern of serious misconduct by the police such that to admit the evidence would bring the administration of justice into disrepute. As a result, the accused was acquitted on all charges. The Crown appealed.

The British Columbia Court of Appeal found significantly fewer Charter breaches than the trial judge. When the remaining Charter breaches were weighed against the substantial real evidence obtained from the lawful searches incidental to the accused's investigative detention and arrest, and pursuant to the two search warrants, the court was not persuaded that the Charter breaches amounted to "a pattern of abuse" that would support exclusion of the evidence. The court held that the same verdicts would not necessarily been reached had the trial judge correctly applied the legal tests. The court allowed the Crown's appeal and ordered a new trial.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - Two police officers (Johnson and Tupper) were working in plain clothes, in an unmarked police vehicle - They observed a male driver in his 50s (Crocker/the accused) and a female passenger in her late teens, parked in a residential area, in a Chevy Cavalier - The officers observed the Cavalier's occupants to be talking to three known drug users - A licence plate query disclosed the registered owner to be Mabel Crocker, an elderly female - A further query revealed that an unidentified male and female occupant of a Cavalier were suspects in an attempted cheque fraud at a Costco about a month earlier - The officers called for back-up and followed the car - When it stopped, Johnson approached the Cavalier to investigate the identity of its occupants and to question them about any connection they might have to the earlier Costco incident - He walked up to the driver's side window, called out "Police", and displayed his badge - He noted that the driver was tucking a manila envelope or folder under his seat with his right hand and clutching something in his left hand from which a small white item protruded - Johnson asked the driver to roll down his window - The driver did not respond - Johnson made two more demands before the driver complied - The officer then asked the driver to open his fist - He testified that he did so to ensure his personal safety and Tupper's safety - He testified that his safety concerns were based on: (i) his belief that the Cavalier's occupants were at the time, or in the past, involved in a criminal offence (the Costco incident), (ii) the driver's failure to respond immediately to his demand that he roll down his window, (iii) his concern over the driver reaching under the front seat with his right hand, which suggested to him that the driver was trying to hide something, and (iv) the driver's attempt to conceal something in his clenched fist, which he was concerned might be a weapon - The British Columbia Court of Appeal held that the trial judge erred in finding that Johnson's request that the accused open his clenched fist was not justified as a protective search incidental to an investigative detention - See paragraphs 8 to 16, 60 to 72.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - The police detained the accused pursuant to an investigative detention - At issue was whether a police officer lacked the reasonable grounds, both subjectively and objectively, to demand that the accused open his clenched fist for the purpose of a protective officer safety search - The British Columbia Court of Appeal stated that "In assessing an officer's expressed subjective belief it is important not to conflate the subjective and objective grounds for establishing the standard of reasonable suspicions. An officer's subjective belief in the level of risk for a protective safety search is established if he or she can articulate a basis for his or her suspicions. It is only when the objective standard is applied to the officer's articulated subjective belief for being suspicious that the reasonableness of his or her suspicions is determined." - See paragraph 62.

Civil Rights - Topic 1404.3

Security of the person - Law enforcement - Warrantless search for weapons - [See first Civil Rights - Topic 1214 ].

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The accused sped away in his vehicle, a Cavalier - Several days later, officers went to arrest the accused at his apartment building - The British Columbia Court of Appeal held that the trial judge erred in ruling that the searches of the accused's vehicle and the stolen truck in his control, incidental to his arrest, constituted breaches of s. 8 of the Charter - While the search of the truck at the parking garage may have been unlawful, any remedy associated with that conduct could be asserted only by an individual who had a lawful proprietary, possessory or privacy interest in the vehicle, which the accused lacked - The subsequent searches of the Cavalier and the truck at the police detachment were also valid as incidental to the accused's lawful arrest - See paragraphs 83 to 87.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - Officer Johnson advised the accused and his passenger (daughter) that they were under arrest for possession of a controlled substance - The accused sped away in his vehicle - Several days later, officers arrested the accused in the parking garage of his apartment building - Officer Johnson understood that the accused's daughter was alone in their penthouse apartment - Concerned that she might destroy any potential evidence before the police could obtain a search warrant, Johnson took the accused's penthouse keys and, along with several fellow officers, entered the penthouse - They did not knock before entering but shouted "Police" several times - Johnson directed that the daughter be arrested for escaping lawful custody - However, she was never charged with any offence related to the original incident - Johnson and another officer went through the penthouse to ensure that no one else was present - His stated purpose was to secure it until he was able to obtain a search warrant - He did not search any of the cupboards, drawers or closets, but used the front door key to unlock a padlocked door on the upper floor - Inside he saw what he believed to be a clandestine methamphetamine lab - He ordered everyone out, contacted the Hazardous Materials (Hazmat) police team and then left the penthouse - The Hazmat team reported that the room was an abandoned marihuana grow operation - They did not open any cupboards, drawers or closets during their examination - The trial judge concluded there were no "exigent circumstances" that might have supported a warrantless entry into the penthouse by the police - After his arrest, the accused had no opportunity to communicate with anyone, including his daughter, for the purpose of warning them of the police investigation and/or to direct them to destroy relevant evidence - Further Johnson could have obtained a telewarrant before there was any reasonable likelihood that the accused's daughter would have had any reason to be alarmed about his whereabouts - The British Columbia Court of Appeal held that the trial judge did not err in finding that the warrantless search of the penthouse was unlawful and therefore unreasonable - See paragraphs 88 to 97.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The British Columbia Court of Appeal held that where there was a temporal and tactical connection between an initial warrantless search of a penthouse and evidence seized pursuant to two valid search warrants, the manner of the searches conducted pursuant to the search warrants infringed the accused's s. 8 Charter right - Therefore, an inquiry into the admissibility of the evidence seized under the warrants had to be undertaken in accordance with the modified framework for a s. 24(2) Charter analysis - See paragraphs 98 to 102.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See first Civil Rights - Topic 1214 , Civil Rights - Topic 1508 and Civil Rights - Topic 1556 ].

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - [See Civil Rights - Topic 1556 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See first Civil Rights - Topic 1646 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused was charged with various offences, including escaping lawful custody, possession of various illegal drugs and possession of and making counterfeit money - The trial judge concluded that the police, in various searches, had infringed the accused's s. 8 Charter right - In a second ruling, the trial judge held that the evidence obtained as a result of the unlawful searches should be excluded under s. 24(2) of the Charter - He concluded that while trial fairness was not in issue, the Charter breaches, when viewed cumulatively, displayed a pattern of serious misconduct by the police such that to admit the evidence would bring the administration of justice into disrepute - As a result, the accused was acquitted on all charges - The Crown appealed - The British Columbia Court of Appeal found significantly fewer Charter breaches than the trial judge - When the remaining Charter breaches were weighed against the substantial real evidence obtained from the lawful searches incidental to the accused's investigative detention and arrest, and pursuant to the two search warrants, the court was not persuaded that the Charter breaches amounted to "a pattern of abuse" that would support exclusion of the evidence - The same verdicts would not necessarily have been reached had the trial judge correctly applied the legal tests - The court allowed the Crown's appeal and ordered a new trial - See paragraphs 13 to 112.

Narcotic Control - Topic 2035

Search and seizure - Search warrants - "Securing" premises until search warrant arrives - [See Civil Rights - Topic 1556 ].

Narcotic Control - Topic 2067

Search and seizure - Warrantless searches - Existence of exigent circumstances - [See Civil Rights - Topic 1556 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - A police officer (Johnson) arrested the accused for possession of a controlled substance - The accused sped away in his vehicle - Several days later, six officers including Johnson, Frye and Smith went to arrest the accused at his apartment building - Smith followed the accused to the underground parking garage in the elevator - There, Frye arrested the accused without warrant under s. 495(1)(a) of the Criminal Code - A trial judge held that Frye did not have reasonable grounds to make the warrantless arrest because he did not have reasonable and probable grounds to believe that the accused was the same individual who had escaped Johnson's lawful custody - The British Columbia Court of Appeal overturned this finding - The trial judge reached this conclusion, not based on Frye's evidence, but from speculative reasoning that Frye could not have had an honest belief as to the identity of the individual he arrested because of Smith's earlier comments to him about her concern that she could not identify the individual whom she followed to the underground parking garage as the accused - Frye's knowledge base for identifying the accused was considerably greater than Smith's - See paragraphs 73 to 82.

Police - Topic 3108

Powers - Investigation - Power to enter private property - [See Civil Rights - Topic 1556 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See first Civil Rights - Topic 1214 and Civil Rights - Topic 1508 ].

Police - Topic 3188

Powers - Search - Weapons search of persons, vehicles, etc. - [See both Civil Rights - Topic 1214 ].

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, appld. [para. 5].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, appld. [para. 7].

R. v. Suberu (M.) (2009), 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, appld [para. 7].

R. v. Harrison (B.) (2009), 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, appld. [para. 7].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, appld. [para. 22].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 42].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 26 O.R.(3d) 736, refd to. [para. 43].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 50].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 50].

R. v. Shepherd (C.) (2009), 391 N.R. 132; 331 Sask.R. 306; 2009 SCC 35, refd to. [para. 55].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 58].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 58].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 63].

R. v. Miller and Cockriell (1975), 24 C.C.C.(2d) 401 (B.C.C.A.), refd to. [para. 63].

R. v. Romeo (1989), 93 N.B.R.(2d) 332; 238 A.P.R. 332; 47 C.C.C.(3d) 113 (C.A.), refd to. [para. 63].

R. v. Willis (R.) (2003), 173 Man.R.(2d) 208; 293 W.A.C. 208; 174 C.C.C.(3d) 406; 2003 MBCA 54, refd to. [para. 64].

R. v. Duong (T.) (2006), 228 B.C.A.C. 183; 376 W.A.C. 183; 2006 BCCA 325, refd to. [para. 65].

R. v. Thibodeau (A.M.) (2007), 247 B.C.A.C. 103; 409 W.A.C. 103; 2007 BCCA 489, refd to. [para. 69].

R. v. Ferris (T.L.) (1998), 108 B.C.A.C. 244; 176 W.A.C. 244; 126 C.C.C.(3d) 298 (C.A.), refd to. [para. 69].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 73].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 77].

Eccles v. Bourque et al., [1975] 2 S.C.R. 739; 3 N.R. 259, refd to. [para. 77].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 78].

R. v. Klimchuk (1991), 4 B.C.A.C. 26; 9 W.A.C. 26; 67 C.C.C.(3d) 385 (C.A.), refd to. [para. 78].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 84].

R. v. Spinelli (J.P.) (1995), 65 B.C.A.C. 272; 106 W.A.C. 272; 101 C.C.C.(3d) 385 (C.A.), refd to. [para. 86].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 89].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 90].

R. v. McCormack (R.D.) (2000), 133 B.C.A.C. 44; 217 W.A.C. 44; 143 C.C.C.(3d) 260; 2000 BCCA 57, dist. [para. 95].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161, refd to. [para. 100].

R. v. Tomlinson (B.) (2009), 270 B.C.A.C. 134; 454 W.A.C. 134; 2009 BCCA 196, refd to. [para. 101].

Counsel:

M. Brundrett and B. McKinley, for the appellant;

D. Gaffar, for the respondent.

This appeal was heard at Vancouver, B.C., on June 25, 2009, by Newbury, Bauman and D. Smith, JJ.A., of the British Columbia Court of Appeal. D. Smith, J.A., delivered the following decision for the court on September 11, 2009.