R. v. Wilson (A.J.)

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: D. Smith, Garson and MacKenzie, JJ.A.
• Citation: 2012 BCCA 517,(2012), 331 B.C.A.C. 195 (CA)
• Date: 30 November 2012

R. v. Wilson (A.J.) (2012), 331 B.C.A.C. 195 (CA);

    565 W.A.C. 195

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. JA.001

Regina (respondent) v. Archie James Wilson (appellant)

(CA039576; 2012 BCCA 517)

Indexed As: R. v. Wilson (A.J.)

British Columbia Court of Appeal

D. Smith, Garson and MacKenzie, JJ.A.

December 27, 2012.

Summary:

The accused appealed his convictions on two counts of possession of a controlled substance for the purpose of trafficking, asserting that his arrest was unlawful and that the drugs obtained during the search incidental to his arrest should be excluded under s. 24(2) of the Charter. The accused made two arguments. First, he asserted that although the jurisprudence of the Court of Appeal and other appellate courts permitted trial judges to consider an arresting officer's experience on the objective branch of the test for a warrantless arrest, the test failed to adequately constrain the warrantless arrest powers under s. 495 of the Criminal Code. The accused requested that the appeal be referred to a five judge division of the court to reconsider its jurisprudence on the "officer experience" in this context. The accused's second argument was that even if the existing jurisprudence was correct, the police lacked objectively reasonable grounds to arrest him.

The British Columbia Court of Appeal denied the request for a five judge division of the court and dismissed the appeal.

Courts - Topic 77

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Reconsideration - The accused appealed his convictions on two counts of possession of a controlled substance for the purpose of trafficking, asserting that his arrest was unlawful and that the drugs obtained during the search incidental to his arrest should be excluded under s. 24(2) of the Charter - The accused made two arguments - First, he asserted that although the jurisprudence of the Court of Appeal and other appellate courts permitted trial judges to consider an arresting officer's experience on the objective branch of the test for a warrantless arrest, the test failed to adequately constrain the warrantless arrest powers under s. 495 of the Criminal Code - The accused requested that the appeal be referred to a five judge division of the court to reconsider its jurisprudence on the "officer experience" in this context - The British Columbia Court of Appeal denied the request - The court's interpretation of the law as set out in R. v. Storrey (S.C.C. 1990) was consistent with the interpretation of Storrey by other appellate courts and with post Storrey Supreme Court of Canada decisions that had considered an officer's experience in the assessment of the objective grounds for an arrest, detention or search - Any changes in the existing jurisprudence had to come from the Supreme Court of Canada - See paragraphs 18 to 44.

Courts - Topic 126.1

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Supreme Court of Canada - General - [See Courts - Topic 77 ].

Courts - Topic 2109

Jurisdiction - Appellate jurisdiction - Reconsideration of decisions - [See Courts - Topic 77 ].

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - Two police officers (Smith and Penner) received a complaint from a barbershop owner of increased drug activity in the area - Smith had also received information from addicts and street people in the area that drugs were being sold near the slushie machine in a convenience store (Sakhi's) on the same street as the barbershop - As the officers approached Sakhi's, Smith look through a window and saw the accused standing by the slushie machine holding open a black, flat, leather pouch - Smith then saw a woman hold out cash to the accused, who put his hand in the pouch - Smith also observed a man who had the appearance of a drug addict in the area - Believing that he was observing a drug transaction, Smith arrested the accused - The accused was convicted of two counts of possession of a controlled substance for the purpose of trafficking - The accused appealed, asserting that the police lacked reasonable grounds to arrest him - The accused asserted that the trial judge erred in not addressing the conflict between the two officers' testimony about the source of the information about the drugs being sold - The British Columbia Court of Appeal held that there was no conflict in the evidence - Smith relied on two sources (two unnamed drug addicts and the barbershop owner), while Penner relied on the barbershop owner - In any event, as Smith was the arresting officer, it was his evidence that was relevant to whether there were reasonable grounds for a warrantless arrest - Also, the officers' testimony was consistent, as both described information regarding drug deals inside Sakhi's near the slushie machine - See paragraphs 45 to 53.

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - Two police officers (Smith and Penner) received a complaint from a barbershop owner of increased drug activity in the area - Smith had also received information from addicts and street people in the area that drugs were being sold near the slushie machine in a convenience store (Sakhi's) on the same street as the barbershop - As the officers approached Sakhi's, Smith look through a window and saw the accused standing by the slushie machine holding open a black, flat, leather pouch - Smith then saw a woman hold out cash to the accused, who put his hand in the pouch - Smith also observed a man who had the appearance of a drug addict in the area - Believing that he was observing a drug transaction, Smith arrested the accused - The accused was convicted of two counts of possession of a controlled substance for the purpose of trafficking - The accused appealed, asserting that the police lacked reasonable grounds to arrest him - The accused asserted that the trial judge erred in not considering the reliability of the information and specifically, did not address the presence or absence of the indicia of reliability such as the informant's knowledge and past performance - The British Columbia Court of Appeal rejected the argument - The judge properly treated the tips as if they were from unproven sources and balanced that factor against the specificity and consistency of the tips - It was open to the judge to find the lack of reliability of the information was offset by the specificity of the information and the fact that Smith's observations at Sakhi's conformed to the information - This was a case where "the possibility of innocent coincidence" had disappeared - See paragraphs 54 to 56.

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - Two police officers (Smith and Penner) received a complaint from a barbershop owner of increased drug activity in the area - Smith had also received information from addicts and street people in the area that drugs were being sold near the slushie machine in a convenience store (Sakhi's) on the same street as the barbershop - As the officers approached Sakhi's, Smith look through a window and saw the accused standing by the slushie machine holding open a black, flat, leather pouch - Smith then saw a woman hold out cash to the accused, who put his hand in the pouch - Smith also observed a man who had the appearance of a drug addict in the area - Believing that he was observing a drug transaction, Smith arrested the accused - The accused was convicted of two counts of possession of a controlled substance for the purpose of trafficking - The accused appealed, asserting that the police lacked reasonable grounds to arrest him - The accused asserted that the trial judge failed to distinguish between each officer's evidence such that the objective grounds for the arrest found by the judge were an amalgam of the observations of both officers rather than those of Smith - Specifically, the judge referred to Penner's evidence regarding 20 previous occasions when he found black pouches to contain drugs - The British Columbia Court of Appeal agreed that the judge should only have considered Smith's evidence when determining whether there were reasonable grounds to arrest the accused - However, this minor error did not affect the result as Smith had more experience (75 incidents) than Penner observing black pouches containing drugs - See paragraph 57.

Practice - Topic 9143

Appeals - Hearing of appeal - Hearing by a five-member panel - [See Courts - Topic 2109 ].

Police - Topic 3063

Powers - Arrest - Without warrant - Reasonable and probable grounds - [See all Criminal Law - Topic 3212 ].

Cases Noticed:

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

R. v. To (J.) (1998), 109 B.C.A.C. 242; 177 W.A.C. 242 (C.A.), refd to. [para. 21].

R. v. Juan (J.P.) (2007), 243 B.C.A.C. 259; 401 W.A.C. 259; 222 C.C.C.(3d) 289; 2007 BCCA 351, refd to. [para. 21].

R. v. Luong (K.) (2010), 286 B.C.A.C. 53; 484 W.A.C. 53; 2010 BCCA 158, 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; 115 C.C.C.(3d) 129, refd to. [para. 24].

R. v. MacKenzie (B.C.) (2011), 371 Sask.R. 291; 518 W.A.C. 291; 86 C.R.(6th) 78; 2011 SKCA 64, refd to. [para. 27].

R. v. Shinkewski (L.A.) (2012), 399 Sask.R. 11; 551 W.A.C. 11; 264 C.R.R.(2d) 11; 2012 SKCA 63, refd to. [para. 27].

R. v. Biccum (C.D.) (2012), 522 A.R. 310; 544 W.A.C. 310; 2012 ABCA 80, refd to. [para. 27].

R. v. Rajaratnam (M.) (2006), 397 A.R. 126; 384 W.A.C. 126; 2006 ABCA 333, refd to. [para. 27].

R. v. Schrenk (C.A.) (2010), 255 Man.R.(2d) 12; 486 W.A.C. 12; 254 C.C.C.(3d) 277; 2010 MBCA 38, refd to. [para. 27].

R. v. Sinclair (E.J.) (2005), 192 Man.R.(2d) 283; 340 W.A.C. 283; 2005 MBCA 41, refd to. [para. 27].

R. v. Lawes (B.), [2007] O.A.C. Uned. 6; 72 W.C.B.(2d) 487; 2007 ONCA 10, refd to. [para. 27].

R. v. Jacques (J.R.) and Mitchell (M.M.), [1996] 3 S.C.R. 312; 202 N.R. 49; 180 N.B.R.(2d) 161; 458 A.P.R. 161; 110 C.C.C.(3d) 1, refd to. [para. 34].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 35].

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. 36].

R. v. Whyte (M.), [2011] 3 S.C.R. 364; 2011 SCC 49, affing. (2011), 272 O.A.C. 317; 2011 ONCA 24, refd to. [para. 37].

R. v. Henry (D.B.) et al., [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 40].

Bedford et al. v. Canada (Attorney General) et al. (2012), 290 O.A.C. 236; 109 O.R.(3d) 1; 2012 ONCA 186, refd to. [para. 41].

R. v. Prokofiew (E.) (2010), 264 O.A.C. 174; 100 O.R.(3d) 401; 2010 ONCA 423, affd. (2012), 435 N.R. 1; 296 O.A.C. 1; 2012 SCC 49, refd to. [para. 41].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 495(1) [para. 18].

Counsel:

M.B. Rankin, for the appellant;

T.C. Gerhart, for the (Crown) respondent.

This appeal was heard at Vancouver, British Columbia, on November 30, 2012, by D. Smith, Garson and MacKenzie, JJ.A., of the British Columbia Court of Appeal. MacKenzie, J.A., delivered the following reasons for judgment for the court on December 27, 2012.