R. v. Washington (A.N.) et al., (2007) 248 B.C.A.C. 65 (CA)

• Judge: Rowles, Ryan and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 08, 2007
• Jurisdiction: British Columbia
• Citations: (2007), 248 B.C.A.C. 65 (CA);2007 BCCA 540

R. v. Washington (A.N.) (2007), 248 B.C.A.C. 65 (CA);

    412 W.A.C. 65

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. NO.035

Regina (respondent) v. Alexis Nicole Washington (appellant)

(CA032614)

Regina (respondent) v. Brandi-Ann Beverly Shepherd (appellant)

(CA032618; 2007 BCCA 540)

Indexed As: R. v. Washington (A.N.) et al.

British Columbia Court of Appeal

Rowles, Ryan and Lowry, JJ.A.

November 8, 2007.

Summary:

An air freight carrier employee suspected that a package shipped to one of the accused contained drugs. The employee opened the package, discovered a container of white powder he believed might be cocaine, resealed the package and called police. The package was re-opened and the police recognized the powder as crystallized methamphetamine, which was confirmed with testing. The package was resealed. When one of the accused picked up the package and handed it to the other accused, they were arrested. Their vehicle was towed to the police station, where a search disclosed evidence of drug trafficking. The accused were charged with possession for the purpose of trafficking. The accused submitted that the search of the package and subsequent search of the vehicle constituted an unreasonable search and seizure (Charter, s. 8), which meant that they were arbitrarily arrested contrary to s. 9. The accused sought exclusion of the evidence. The trial judge held that the employee, who was not a state agent, had an implied right to search the package. The warrantless police search of the opened package was reasonable. The arrests were accordingly lawful and the vehicle search was reasonable as a search incidental to the arrests. In any event, the trial judge opined that he would not have excluded the evidence under s. 24(2). The trial judge found the accused guilty. The accused appealed.

The British Columbia Court of Appeal, Rowles, J.A., dissenting, dismissed the appeals. Contrary to the trial judge's finding, the warrantless search of the package, in which the accused continued to have an expectation of privacy even after it was opened by the employee, constituted an unreasonable search and seizure contrary to s. 8 of the Charter. However, there was no error in not excluding the evidence under s. 24(2). Given the discovery of drugs, police had reasonable grounds to arrest the accused, so there was no violation of s. 9 of the Charter and the vehicle search was reasonable as a lawful search incidental to arrest. Finally, the court rejected the accused's submission that the verdicts were unreasonable or unsupported by the evidence. Rowles, J.A., dissenting, would have allowed the appeal and quashed the convictions on the ground that the evidence obtained from the package search should have been excluded under s. 24(2).

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - An air freight carrier employee suspected that a package shipped to one of the accused contained drugs - The employee opened the package, discovered what he believed might be cocaine (although he had no expertise), resealed the package and called police - The package was re-opened and the police recognized the powder as crystallized methamphetamine, which was confirmed with testing - The package was resealed - When one of the accused picked up the package and handed it to the other accused, they were arrested - Their vehicle was towed to the police station, where a search disclosed evidence of drug trafficking - The accused were charged with possession for the purpose of trafficking - The British Columbia Court of Appeal affirmed the accused's convictions - Since the employee was not a state agent, his unauthorized search could not violate the accused's Charter rights - Notwithstanding the accused had a reduced expectation of privacy in the package at the courier's office, there was some expectation of privacy unaffected by the employee's unauthorized opening of the package - The police lacked reasonable grounds to search the package without warrant - The search constituted an unreasonable search and seizure contrary to s. 8 of the Charter - However, the trial judge was correct in holding that he would not have excluded the evidence under s. 24(2) of the Charter - The offence was serious - The evidence was non-conscriptive, so trial fairness was unaffected - The evidence was critical to the Crown's case - There was a reduced expectation of privacy - Although the police lacked authority to search the package, there was no bad faith as the police reasonably misunderstood their authority - Accordingly, the accused were lawfully arrested and the search of the vehicle was reasonable as incidental to arrest - See paragraphs 35 to 98.

Civil Rights - Topic 1646

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

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1508 ].

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 1508 ].

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches - Reasonable grounds - [See Civil Rights - Topic 1508 ].

Cases Noticed:

R. v. Fry (R.L.) (1999), 183 Nfld. & P.E.I.R. 346; 556 A.P.R. 346; 142 C.C.C.(3d) 166; 29 C.R.(5th) 337 (Nfld. C.A.), not folld. [para. 26].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 39].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 132 D.L.R.(4th) 31, refd to. [para. 39].

R. v. Truong (S.H.) (2002), 169 B.C.A.C. 97; 276 W.A.C. 97; 168 C.C.C.(3d) 132; 2002 BCCA 315, refd to. [para. 48].

United States of America v. Jacobsen (1984), 466 U.S. 107, refd to. [para. 49].

United States of America v. Pierce (1990), 893 F.2d 669 (5th Cir.), refd to. [para. 49].

United States of America v. Moore (1991), 943 F.2d 884 (8th Cir.), refd to. [para. 49].

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, appld. [para. 52].

R. v. Buhay (M.A.) (2001), 156 Man.R.(2d) 111; 246 W.A.C. 111; 2001 MBCA 70 (C.A.), refd to. [para. 52].

R. v. Snow (F.J.) (2005), 248 Nfld. & P.E.I.R. 64; 741 A.P.R. 64; 2005 NLTD 81, dist. [para. 56].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351; 70 C.C.C.(3d) 193, refd to. [paras. 57, 117].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81; 104 C.C.C.(3d) 23, refd to. [para. 57].

R. v. Grant (D.) (2006), 213 O.A.C. 127; 81 O.R.(3d) 1; 38 C.R.(6th) 58 (C.A.), refd to. [para. 62].

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 2002 SCC 10, refd to. [para. 63].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. Smith (L.K.) (2005), 213 B.C.A.C. 286; 352 W.A.C. 286; 199 C.C.C.(3d) 404; 2005 BCCA 334, refd to. [para. 79].

R. v. Kitaitchik (A.) (2002), 161 O.A.C. 169; 166 C.C.C.(3d) 14; 4 C.R.(6th) 38 (C.A.), refd to. [para. 80].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193, refd to. [para. 91].

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; 155 D.L.R.(4th) 19, refd to. [paras. 96, 121].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1; 114 C.C.C.(3d) 385, refd to. [para. 106].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 38 D.L.R.(4th) 508, refd to. [para. 110].

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; 144 D.L.R.(4th) 193, refd to. [para. 113].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655, refd to. [para. 114].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161; 21 O.R.(3d) 797, refd to. [para. 115].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161; 124 D.L.R.(4th) 7, refd to. [para. 115].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 118 D.L.R.(4th) 83, refd to. [para. 116].

R. v. Pastro (1988), 66 Sask.R. 241; 42 C.C.C.(3d) 485 (C.A.), refd to. [para. 116].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161; 23 O.R.(3d) 256, refd to. [para. 117].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 117].

R. v. Sieben, [1987] 1 S.C.R. 295; 74 N.R. 271, refd to. [para. 118].

R. v. Hamill, [1987] 1 S.C.R. 301; 75 N.R. 149, refd to. [para. 118].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241; 55 D.L.R.(4th) 673, refd to. [para. 120].

R. v. Jacoy, [1988] 2 S.C.R. 548; 89 N.R. 61, refd to. [para. 121].

R. v. Wong et al., [1990] 3 S.C.R. 36; 120 N.R. 34; 45 O.A.C. 250, refd to. [para. 121].

R. v. Klimchuk (A.W.) (1991), 4 B.C.A.C. 26; 9 W.A.C. 26; 67 C.C.C.(3d) 385 (C.A.), refd to. [para. 122].

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, refd to. [para. 123].

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. 126].

R. v. Harris and Lighthouse Video Centres Ltd. (1987), 20 O.A.C. 26; 35 C.C.C.(3d) 1 (C.A.), leave to appeal refused [1987] 2 S.C.R. vii; 86 N.R. 400; 25 O.A.C. 240, refd to. [para. 134].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81; 34 O.R.(3d) 806, refd to. [para. 135].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13; 55 D.L.R.(4th) 503, refd to. [para. 140].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), paras. 9.116 [para. 117]; 9.50 [para. 115].

Stuart, Don, The Unfortunate Dilution of Section 8 Protection: Some Teeth Remain (1999), 25 Queen's L.J. 65, para. 58 [para. 143].

Counsel:

T.J. Russell, for the appellant, Alexis Nicole Washington;

D.J. McKay, for the appellant, Brandi Anne Shepherd;

S.D. Frankel, Q.C., for the respondent.

This appeal was heard on November 17, 2006, at Vancouver, B.C., before Rowles, Ryan and Lowry, JJ.A., of the British Columbia Court of Appeal.

On November 8, 2007, the judgment of the Court was delivered and the following opinions were filed:

Ryan, J.A. (Lowry, J.A., concurring) - see paragraphs 1 to 108;

Rowles, J.A., dissenting - see paragraphs 109 to 144.