R. v. Luu (T.T.T.) et al., 2006 BCCA 73

• Judge: Southin, Smith and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 09, 2006
• Jurisdiction: British Columbia
• Citations: 2006 BCCA 73;(2006), 222 B.C.A.C. 275 (CA)

R. v. Luu (T.T.T.) (2006), 222 B.C.A.C. 275 (CA);

    368 W.A.C. 275

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. MR.003

Regina (respondent) v. Thi Thu Thao Luu (appellant)

(CA032053)

Regina (respondent) v. Phieu Su Tran (appellant)

(CA032054; 2006 BCCA 73)

Indexed As: R. v. Luu (T.T.T.) et al.

British Columbia Court of Appeal

Southin, Smith and Lowry, JJ.A.

February 20, 2006.

Summary:

The accused were charged with possession of marihuana for the purposes of trafficking. They argued that certain evidence should be excluded on the basis that their ss. 8, 9 and 10(b) Charter rights were violated. The trial judge admitted the evidence and convicted the accused. The accused appealed.

The British Columbia Court of Appeal dismissed the appeal.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search seizure defined - A police officer went to a basement suite to deal with a complaint about a motor vehicle that was parked illegally - The officer knocked - Luu responded - She opened the door and stepped outside on a small landing and pulled the door closed - Luu said the vehicle was hers - The officer noticed a smell of bulk marihuana - He asked Luu for identification - She was nervous - She went inside to get identification - Another occupant, Tran, closed the door part way - The officer noticed an "overwhelming strong smell of marihuana" - Tran then said something to Luu in a foreign language - The officer grabbed Tran by the arm and told him he was under arrest - A struggle ensued and the two stumbled into the suite - The officer handcuffed Tran and sat him and Luu on the couch - The officer quickly searched the suite to ensure no one else was present - In one room he saw a large garbage bag and smaller bags containing what appeared to be marihuana - The officer radioed for assistance - Luu and Tran were taken away - The officer left, obtained a search warrant and discovered a large amount of marihuana - The accused were charged with possession of marihuana for the purposes of trafficking - The British Columbia Court of Appeal held that the trial judge did not err in finding that the arrests were lawful and the accused were not detained arbitrarily (Charter, s. 9) - The officer's cursory search to ensure his own safety was not unreasonable (Charter, s. 8) - See paragraphs 15 to 28.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - A police officer arrested the two accused in a basement suite after he smelled an "overwhelming strong smell" of bulk marihuana - He sat them on the couch - He called for assistance - He read them their rights - Both asked to speak to a lawyer - The officer did not provide an opportunity for them to call a lawyer from the residence because he could not afford them privacy in that location - The police wagon arrived less than ten minutes later and the accused were transported to the police station - The British Columbia Court of Appeal held that the accused's rights to counsel (Charter, s. 10(b)) were violated when they were not afforded an opportunity to consult counsel without delay after they were arrested and when the officer continued to question the accused - There were telephones available - The officer could have given the accused the option of contacting counsel without privacy - However, the Charter violation did not warrant exclusion of the evidence - There was no causal link and only a remote temporal link between the violation of the accused's s. 10(b) rights and the obtaining of the evidence - See paragraphs 29 to 51.

Civil Rights - Topic 4615

Right to counsel - General - Instructing counsel - Right to privacy - [See Civil Rights - Topic 4604 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1646 ].

Police - Topic 3073

Powers - Arrest and detention - Arrest without warrant - Of person in a dwelling - A police officer went to a basement suite to deal with a complaint about a motor vehicle that was parked illegally - The officer knocked - Luu responded - She opened the door and stepped outside on a small landing and pulled the door closed - Luu said the vehicle was hers - The officer noticed a smell of bulk marihuana - He asked Luu for identification - She was nervous - She went inside to get identification - Another occupant, Tran, closed the door part way - The officer noticed an "overwhelming strong smell of marihuana" - Tran then said something to Luu in a foreign language - The officer grabbed Tran by the arm and told him he was under arrest - A struggle ensued and the two stumbled into the suite - The officer handcuffed Tran and arrested Luu - The accused were convicted of possession of marihuana for the purposes of trafficking - Luu appealed, arguing that the trial judge erred in failing to find that her arrest was unlawful because the officer forcibly entered the suite to arrest her without a warrant, contrary to R. v. Feeney (S.C.C.) - The British Columbia Court of Appeal rejected the argument - The officer entered the suite as the consequence of being pulled into it during his struggle with Tran after he had arrested Tran - Thus, the officer did not enter deliberately, forcibly, or for the purpose of arresting Luu - See paragraphs 24 and 25.

Police - Topic 3073

Powers - Arrest and detention - Arrest without warrant - Of person in a dwelling - [See Civil Rights - Topic 1646 ].

Cases Noticed:

R. v. Pettit (M.J.) et al. (2003), 187 B.C.A.C. 246; 307 W.A.C. 246; 179 C.C.C.(3d) 295; 2003 BCCA 522, refd to. [para. 13].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 53 C.C.C.(3d) 316, refd to. [para. 15].

R. v. Duong (C.Q.) et al. (2002), 162 B.C.A.C. 236; 264 W.A.C. 236; 162 C.C.C.(3d) 242 (C.A.), refd to. [para. 20].

R. v. Schulz (C.L.) (2001), 159 B.C.A.C. 146; 259 W.A.C. 146; 2001 BCCA 601, refd to. [para. 21].

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, dist. [para. 24].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 14 C.C.C.(3d) 97, refd to. [para. 28].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 30].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 30].

R. v. Bui (D.N.) et al. (2005), 217 B.C.A.C. 194; 358 W.A.C. 194; 2005 BCCA 482, refd to. [para. 30].

R. v. Goldhart (W.), [1996] 2 S.C.R. 463; 198 N.R. 321; 92 O.A.C. 161; 107 C.C.C.(3d) 481, refd to. [para. 33].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 34].

R. v. Bohn (J.A.) (2000), 136 B.C.A.C. 263; 222 W.A.C. 263; 145 C.C.C.(3d) 320; 2000 BCCA 239, refd to. [para. 35].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 117 C.C.C.(3d) 193 (C.A.), refd to. [para. 38].

R. v. Clayton (W.) et al. (2005), 196 O.A.C. 16; 194 C.C.C.(3d) 289 (C.A.), dist. [para. 47].

Counsel:

N.L. Cobb, for the appellant;

V.L. Hartney, for the respondent.

This appeal was heard on January 9, 2006, at Vancouver, British Columbia, by Southin, Smith and Lowry, JJ.A., of the British Columbia Court of Appeal. The decision of the Court of Appeal was delivered on February 20, 2006, when the following opinions were filed:

Smith, J.A. (Lowry, J.A., concurring) - see paragraphs 1 to 55;

Southin, J.A. - see paragraphs 56 and 57.