R. v. Goodkey (K.G.) et al., (2016) 381 B.C.A.C. 218 (CA)

JudgeBauman, C.J.B.C., Garson and Fenlon, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateJanuary 07, 2016
JurisdictionBritish Columbia
Citations(2016), 381 B.C.A.C. 218 (CA);2015 BCCA 11

R. v. Goodkey (K.G.) (2016), 381 B.C.A.C. 218 (CA);

    659 W.A.C. 218

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. JA.041

Regina (respondent) v. Scott Berthold Krieger (appellant)

(CA41114; 2015 BCCA 11)

Indexed As: R. v. Goodkey (K.G.) et al.

British Columbia Court of Appeal

Bauman, C.J.B.C., Garson and Fenlon, JJ.A.

January 7, 2016.

Summary:

Goodkey was charged with trafficking in cocaine after two packages of cocaine were found hidden in Krieger's truck. Krieger was charged with possession for the purpose of trafficking. Krieger was under surveillance for suspected gun smuggling. Krieger met with an unidentified man (later identified as Goodkey). The man passed two boxes to Krieger. The police decided to arrest Krieger for "smuggling". A search found seven kilograms of cocaine hidden in a secret compartment. Two seized cell phones and a Blackberry were searched for the contact lists, incoming and outgoing calls, and text messages. Warrants were subsequently obtained to search Krieger's residence for weapons, etc. On the first voir dire, the trial judge ruled that the police lacked objectively reasonable and probable grounds to arrest Krieger. Accordingly, he was arbitrarily detained (Charter, s. 9) and subjected to an unreasonable search and seizure (s. 8). On a second voir dire, the trial judge ruled that Krieger's s. 10(b) right to counsel was infringed by the police inadvertently questioning him before he could exercise his right to counsel. Notwithstanding that the Charter breaches were "serious and substantial", the trial judge ruled against excluding the cocaine evidence under s. 24(2).

The British Columbia Supreme Court, in a judgment reported [2013] B.C.T.C. Uned. 1429 found both accused guilty of possession of cocaine for the purpose of trafficking. The court was satisfied beyond a reasonable doubt that Goodkey knew that he was delivering cocaine to Krieger and that Krieger knew that the packages he hid in his truck were cocaine. At the conclusion of the oral decision convicting Krieger and Goodkey, it was pointed out to the court that he found Goodkey guilty of possession for the purpose of trafficking, but he had been charged with trafficking. Prior to sentencing, the court invited submissions and corrected the error.

The British Columbia Supreme Court, in a judgment reported [2013] B.C.T.C. Uned. 1430, held that the court was not functus officio where the sentencing hearing had yet to take place. The court rejected Goodkey's submission that because the charge against him was not assessed on its merits, independent of the charge against Krieger, the error gave rise to a reasonable apprehension of bias which should be remedied by a mistrial or a reconsideration of the case against him. The court held that since the Crown had proved beyond a reasonable doubt that Goodkey knowingly delivered cocaine to Krieger, it was appropriate to correct the error by entering a conviction for trafficking in cocaine. Both Goodkey and Krieger appealed their convictions. Krieger argued that the trial judge erred (1) in failing to find additional violations of his Charter rights under ss. 10(a) and (b); (2) in failing to find that the search of his residence violated s. 8; (3) in not excluding evidence under s. 24(2); and (4) in misapprehending the evidence in finding that he knew the contents of the two boxes delivered by Goodkey were cocaine. Goodkey argued that the trial judge erred (1) in coming to an unreasonable verdict that was unsupported by the evidence and (2) in failing to find a reasonable apprehension of bias.

The British Columbia Court of Appeal, in a judgment reported (2015), 367 B.C.A.C. 231; 631 W.A.C. 231, dismissed the appeal. The trial judge did not err in finding that Krieger's right to be informed of the reason for his arrest (s. 10(a)) was not infringed. Krieger's s. 10(b) right to counsel was not infringed when he was not immediately re-advised of his right to counsel when it was discovered that the hidden boxes contained cocaine rather than guns. The search of Krieger's residence constituted an unreasonable search and seizure (s. 8), because it was not properly issued. Notwithstanding serious breaches of the accused's Charter rights under ss. 8, 9 and 10(b), the court rejected Krieger's argument that the police systematically and deliberately disregarded his Charter rights. Applying the Grant factors, admission of the cocaine evidence would not bring the administration of justice into disrepute. The court stated that "Reasonable and informed members of the public would understand and appreciate that the breaches here were not occasioned by disrespect or disregard for rights guaranteed by the Charter, but, rather, resulted from unintended human error". Krieger appealed his sentence of two years' imprisonment for possession of cocaine for the purpose of trafficking and applied for a post-sentence report and admission of fresh evidence on the appeal.

The British Columbia Court of Appeal dismissed the application for a post-sentence report and admission of fresh evidence, and dismissed the appeal.

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - See paragraphs 1 to 28.

Criminal Law - Topic 6201.1

Sentencing - Appeals - Variation of sentence - Post-sentence report - See paragraphs 1 to 28.

Criminal Law - Topic 6218

Sentencing - Appeals - Variation of sentence - Evidence on appeal (incl. fresh evidence) - See paragraphs 1 to 28.

Cases Noticed:

R. v. Fraser (T.D.) (2009), 269 B.C.A.C. 200; 453 W.A.C. 200; 2009 BCCA 179, refd to. [para. 14].

R. v. Li (P.S.) (2009), 267 B.C.A.C. 77; 450 W.A.C. 77; 2009 BCCA 85, refd to. [para. 14].

R. v. Terezakis (A.) (2010), 288 B.C.A.C. 121; 488 W.A.C. 121; 2010 BCCA 268, refd to. [para. 14].

R. v. Nasogaluak (L.M.) (2010), 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 20].

R. v. Takhar (G.) (2007), 247 B.C.A.C. 251; 409 W.A.C. 251; 2007 BCCA 505, refd to. [para. 26].

R. v. Lévesque (R.) (2000), 260 N.R. 165; 2000 SCC 47, refd to. [para. 27].

R. v. Radjenovic (A.) (2013), 335 B.C.A.C. 93; 573 W.A.C. 93; 2013 BCCA 131, refd to. [para. 27].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 27].

Counsel:

N.L. Cobb, for the appellant;

W.P. Riley, Q.C., for the respondent.

This appeal and these applications were heard on January 6, 2016, at Vancouver, B.C., before Bauman, C.J.B.C., Garson and Fenlon, JJ.A., of the British Columbia Court of Appeal.

On January 7, 2016, the judgment of the Court was delivered orally and the following opinions were filed:

Garson, J.A. - see paragraphs 1 to 30;

Bauman, C.J.B.C. - see paragraphs 31, 33;

Fenlon, J.A. - see paragraph 32.

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