IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The accused, Brandon Curtis Chong (“Mr. Chong”), is charged under Information No. 7416-1 with possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.  Mr. Chong was detained and then arrested, twice, in that regard on or about July 28, 2011.  The first arrest was for possession simpliciter of cocaine; the second was for possession of that controlled substance for the purposes of trafficking.

[2]           Several small packages of a substance that the Crown contends is cocaine were seized from Mr. Chong’s vehicle in the course of the police investigation on that date in circumstances that, he argues, contravened his rights under ss. 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (the “Charter”).  Mr. Chong further argues that those Charter breaches justify an order, pursuant to s. 24(2), excluding evidence obtained during the subject investigation.  Accordingly, at the commencement of Mr. Chong’s trial, a voir dire was declared for the purpose of determining the admissibility of evidence collected during the course of the police investigation upon which the Crown now wishes to rely.

[3]            This is my ruling on the voir dire.

[4]           On June 28, 2011, in the early evening and acting on a tip from an off-duty officer (“Cst. Dongriah”), Cst. Shane Patrick Parsons of the Coquitlam detachment of the RCMP (“Cst. Parsons”) effected a traffic stop of a white Toyota Celica with British Columbia licence plate number 149 TKM (the “Celica”).  The Celica was stopped by Cst. Parsons at the intersection of Apel Drive and Linwood Avenue in Coquitlam, B.C.  It was being driven by its registered owner, Mr. Chong; his friend, Jaskarn Singh Sandhu (“Mr. Sandhu”) was a passenger.

[5]           Minutes before, Cst. Parsons had been advised by Cst. Dongriah via a cellular phone call that the driver of the Celica had just enaged in what appeared to him to be suspicious drug-related activity in the parking lot of a Starbucks coffee outlet.  Cst. Dongriah also mentioned to Cst. Parsons that he had witnessed similarly suspicious activity involving the Celica and the same driver some five days earlier.  Equipped with this information, together with information about its general whereabouts, Cst. Parsons set out in search for the Celica.  When he located it soon thereafter, he queried its licence plate with negative results.  He then “paced” the Celica in his unmarked police vehicle while it drove along Apel Drive for a distance of about two city blocks.  Over that distance the Celica’s speed was noted by Cst. Parsons to exceed the posted limit by 25 km/hr.  At that point Cst. Parsons effected a “dual purpose” (his words) traffic stop.

[6]           During the search of the Celica that was conducted following the traffic stop and incidental to Mr. Chong’s second arrest by Cst. Parsons, 13 small 1” x 1” monogrammed Ziploc baggies containing a substance that the Crown contends is powdered cocaine were seized, along with two cell phones, almost $700 in cash and numerous other empty 1” x 1” Ziploc baggies.

[7]           Mr. Chong’s arguments are principally rooted in what he says were:

[8]           He has ancillary arguments to make about the way his rights under subss. 10(a) and 10(b) of the Charter were addressed but, for reasons that will soon become apparent, I need not address those.

[9]           In essence, Mr. Chong’s submission is that the evidence that the Crown seeks to have admitted in this voir dire was obtained in the course of a search that, having been conducted pursuant to a second arrest preceded by a first unlawful arrest, is constitutionally tainted under s. 9 and thus was necessarily unreasonable for the purposes of s. 8.

[10]        Mr. Chong bears the burden of proving any Charter breaches he alleges on a balance of probabilities:  R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 and, more recently, R. v. Hardenstine, 2010 BCSC 899.  However, the search of Mr. Chong’s Celica, like any warrantless search, must be viewed at law as being presumptively unreasonable: R. v. Nolet, 2010 SCC 24 (CanLII), [2010] 1 S.C.R. 851 at para. 21.  Accordingly, in order to be able to rely upon the potentially incriminating evidence that was seized during that search, the Crown must first rebut the presumption of unreasonableness and prove on a balance of probabilities that the search and seizure, and the arrests that were their predicates, were Charter-compliant.  If the Crown succeeds in that regard then constitutionally at least—but subject to other potential objections based on relevance or other grounds—that which was seized during the search can be received in evidence.  If the Crown does not succeed in that regard, I must still consider whether exclusion of the evidence obtained in contravention of Mr. Chong’s Charter rights is the appropriate remedy.

[11]        The mainspring of the defence argument in the voir dire is that Mr. Chong’s first arrest was made by Cst. Parsons (for simple possession) without reasonable grounds.  The second arrest (for possession for the purpose of trafficking) was made based on observations and evidence Cst. Parsons gathered that could only have been gathered after the officer brought Mr. Chong under control, directed his actions and dealt with the Celica pursuant to the first arrest.  For example, it was only after he was arrested for the first time that Mr. Chong was directed to open the driver’s door of the Celica in preparation for stepping out of it, at which time Cst. Parsons said he observed packages containing illicit drugs in a compartment in that door: Trans., January 11, 2013, p. 17—an observation that led quickly to the second arrest (for possession for the purpose of trafficking).   Thus, it is contended, if unlawfulness of the first arrest is established, then the constitutional unravelling of investigative activities that proceeded after it (and were enabled by it) necessarily follows.

[12]        That proposition—which ties the constitutional validity of everything that came after the first arrest of Mr. Chong, including searches carried out pursuant to his second arrest, to the validity of the first arrest—is not, to my understanding, controversial as between defence and Crown.  Indeed, in her written submission, Crown counsel has written that:

[13]        The notion that a constitutionally invalid detention (by unlawful arrest or otherwise) will unseat the constitutional validity of the investigative steps that it enables and which follow in its wake—including a search conducted incidental to a subsequent arrest—is acknowledged in the case law:  see, for example, R. v. Ladouceur, 2002 SKCA 73 (CanLII), [2002] S.J. No. 343 (Sask. C.A.)  and R. v. Bilouzenko (2009), 2009 BCPC 93 (CanLII), 189 C.R.R. (2d) 90 (B.C.P.C.).

[14]        I turn, therefore, to the grounds that Cst. Parsons had for making his first arrest of Mr. Chong—grounds that the Crown says were sufficient in the circumstances and that the defence says were inadequate.  Before doing so, however, I pause to instruct myself that the observations forming Cst. Parsons’ grounds for arrest of Mr. Chong for simple possession must be evaluated in the aggregate in order to determine whether, as an experienced policeman, he had an objectively reasonable subjective belief that Mr. Chong had committed or was about to commit a drug offence.  Particular individual observations forming part of the whole may be weak and susceptible of alternative explanations, but the law in this area does not admit of a piecemeal assessment: see, for example, R. v. Luong, 2010 BCCA 158 (CanLII), [2010] B.C.J. No. 918 at para. 17 (C.A.) and R. v. Perjalian, [2011] B.C.J. No. 1346 (C.A.) at para. 52.  Rather, in the colourful words of Taylor J. found in R. v. Parchment, 2005 BCSC 1871 (CanLII), [2005] B.C.J. No. 3031 (S.C.) at para. 55:

[15]        Cst. Parsons was first alerted to the possibility that Mr. Chong might be involved in some kind of illegal drug activity by his off-duty colleague, Cst. Dongriah.  The cell phone call Cst. Parsons took from his off-duty colleague reporting on something he had seen in a Starbucks parking lot was, however, short on detail—or at least what Cst. Parsons could remember of it was short on detail.  Importantly, apart from taking down the license plate number of the vehicle to which Cst. Dongriah had alerted him, Cst. Parsons made no notes of what Cst. Dongriah said.  To the extent then that he remembered anything at all about what he was told by his colleague (apart from the license plate number), Cst. Parsons was forced to call upon on his unaided memory. 

[16]        The events of July 28, 2011, preceded Cst. Parsons’ testimony by more than 17 months.  Thus, this case put the officer’s unaided memory to a significant test.  Generally, Cst. Parsons was very hesitant to give unhedged answers to the questions addressed to him unless he could find support for them in his notes, even though he also recognised that some of his notes made “no sense”.  For example, without notes Cst. Parsons could and would not answer confidently about whether Cst. Dongriah eventually attended at the scene of Mr. Chong’s arrest after it had occurred and identified him as the man he had seen in the Starbucks parking lot.  What’s worse, Cst. Parsons’ notes ended up being of no assistance to him on that particular point.

[17]        Cst. Parsons’ unaided recollection of what he was told by Cst. Dongriah before he set out in search for the Celica is found in this exchange during his examination-in-chief:

[18]        Given that it was not corroborated by his notes (although it must not be forgotten the officer’s notes have their own manifest infirmities), I must confront this evidence from Cst. Parsons with considerable caution.  Moreover, counsel for Mr. Chong rightly argues in his written submission, based on Cst. Parsons’ testimony, that there was no mention made in that account of any money changing hands or of any observations of packaging consistent with drug transactions: see Trans., January 11, 2013, pp. 70-71).   Similarly, there is no suggestion that the Starbucks parking lot in question has a reputation for being a place where commerce in illicit drugs is known to occur. 

[19]        When continuing his testimony under direct examination, Cst. Parsons himself acknowledged the very limited probative value of what Cst. Dongriah told him when he volunteered that, by itself, what Cst. Dongriah had to say did not furnish “grounds for any sort of arrest”: Trans., January 11, 2013, p. 10).  Indeed, in terms of its forensic value to Cst. Parsons in the investigation of Mr. Chong that he was about to commence, Cst. Dongriah’s cell phone report, in my view, cannot have given Cst. Parsons anything more than a mere suspicion or a hunch that Mr. Chong was dealing in illicit drugs.  I say this because, without containing references to money changing hands, or packaging consistent with drug transactions, or the setting being one that is well known for drug trafficking, Cst. Dongriah’s report did not convey to Cst. Parsons any real objective grounds for his (Cst. Dongriah’s) impression that Mr. Chong had been involved in selling or buying illicit drugs.  As Richard J.A. noted in R. v. Yeh, 2009 SKCA 112 at para. 44, “ … a hunch based on intuition gained by experience does not constitute a reasonable suspicion”.  If all Cst. Dongriah’s observations could trigger for him was a hunch then, a foritiori, the report of that hunch and a skeletal outline of the basis for it to Cst. Parsons could certainly do no more than give rise to a hunch on Cst. Parsons’ part.

[20]        The traffic stop that Cst. Parsons performed first involved his rushing up alongside Mr. Chong’s Celica in his unmarked police vehicle with its emergency equipment activated.  The officer then manoeuvred his police vehicle in front of the Celica, cutting it off, and came to a stop partway into a crosswalk, thereby preventing the Celica from moving any further forward.  Immediately thereafter, Cst. Parsons got out of his police vehicle and “quickly” approached the Celica’s driver’s door and demanded Mr. Chong’s driver’s license and insurance papers. 

[21]        While complying with the officer’s request, Mr. Chong’s hands shook and he and his passenger appeared nervous.  This is perhaps not surprising, given that he had been the subject of what might be described as a dramatic, Joe Mannix-like traffic stop. 

[22]        Mr. Chong’s nervousness was significant to Cst. Parsons insofar as, to him, it constituted some further, though generic, evidence of possible involvement in illicit drug activity.  The officer did acknowledge that Mr. Chong’s nervousness could also be attributable to the mere fact of having been stopped by police:

[23]        Cst. Parsons testified that during his initial interactions with Mr. Chong, and prior to making the first arrest for possession simpliciter, he noted that a blue Samsung cell phone in the centre console of the Celica rang several times.  He found it a “touch suspicious” that neither Mr. Chong nor his passenger sought to have him put his investigation of them on hold so they could answer the cell phone as calls were coming in.

[24]        I find it curious that Cst. Parsons would cite the continuous ringing of a cell phone as a ground for arresting Mr. Chong for possession simpliciter.  Notoriously, continuously ringing cell phones are associated with dial-a-dope operations and with charges of possession of illicit substances for the purposes of trafficking.  When I first heard that testimony I wondered whether the officer had conflated what he had determined were his grounds for his first arrest of Mr. Chong (for simple possession) with his grounds for his second arrest of Mr. Chong (for possession for the purpose of trafficking).

[25]        Cst. Parsons’ sworn testimony that the frequent ringing of the blue Samsung cell phone in the centre console of the Celica contributed to his grounds for arresting Mr. Chong for possession simpliciter is irreconcilable with his notes (such as they were) and with independent, objective evidence regarding incoming calls on that cell phone.

[26]        In fairness, the officer’s testimony overall was that the subject events “… happened very fast [sic], and things were very fluid”: Trans., January 11, 2013, p. 52.  But when giving his answers—despite testifying that he made notes continuously in real time throughout his interactions with Mr. Chong and Mr. Sandhu (see Trans., January 11, 2013, p. 54)—Cst. Parsons’ evidence was inconsistent on times and what happened specifically at particular times leading up to the first arrest.  The best sense I am able to make of the officer’s confusing testimony regarding the chronology of events preceding the first arrest is reflected in the following summary:

[27]        That chronology, which I find to be the true chronology, emerges from summing-up and clarifying answers Cst. Parsons gave near the end of the part of his cross-examination that was focused on timing:

[28]        Importantly, Cst. Parsons also gave testimony about the missed calls that were recorded in the memory of the blue Samsung cell phone and which came in prior to 8:12 p.m. (20:12)—more than 20 minutes after the second arrest of Mr. Chong—when he (Cst. Parsons) began answering it.  His evidence was that before he began answering it, only two missed calls showed on that cell phone, one at 7:46 p.m. (19:46) and another at 7:58 p.m. (19:58): see Trans., January 11, 2013, p. 30.

[29]        Cst. Parsons’ evidence about calls coming in repeatedly during the brief, three-minute period of interaction that preceded the first arrest of Mr. Chong at 19:50 (7:50 p.m.) is problematical for the Crown’s case on several levels.  To begin, the first of the missed calls that the Samsung’s memory records came in at 19:46—a minute before the vehicle stop was even effected.  The evidence is that that cell phone was equipped with a voicemail feature and so it cannot be that that incoming call was still ringing after 19:47 when Cst. Parsons was dealing with Mr. Chong and his licence and insurance papers.  Beyond that, according to the officer’s testimony about the Samsung’s memory, the next missed call came in at 19:58—some eight minutes after the first arrest had been made at 19:50 (7:50 p.m.).  

[30]        Having regard to this evidence, while I have no doubt that the blue Samsung cell phone did ring a number of times during the entirety of Cst. Parsons’ interactions with Mr. Chong and his passenger, Mr. Sandhu, I find as a fact that it did not ring even once during that critical three-minute period between the time the Celica was pulled over (at 19:47) and when Mr. Chong was placed under arrest (at 19:50).

[31]        I should mention that it was not contended by Cst. Parsons in his evidence nor by the Crown in its submissions (nor could it be) that it was the other cell phone that Mr. Chong had in his possession—the Blackberry—that was ringing non-stop during the crucial interval between 19:57 and 19:50 when Cst. Parsons determined that he had reasonable grounds to arrest Mr. Chong for possession simpliciter.  The officer’s evidence concerning the call traffic recorded in that device’s memory referred to no calls or text messages came in to it during the interval in question:  see Trans., January 11, 2013, pp. 33-35.

[32]        It follows from the foregoing that I cannot accept as credible Cst. Parsons’ testimony that observations of the “continuous” ringing of the Samsung cell phone or any cell phone numbered among the observations upon which he relied in formulating his suspicions and ultimately his grounds for arresting Mr. Chong for simple possession.

[33]        The fourth and last factor to which Cst. Parsons referred when giving his testimony about forming grounds for arresting Mr. Chong for possession simpliciter was his observation of a plastic carrier bag in the footwell in front of the passenger’s seat in the Celica, occupied at the time by Mr. Sandhu.  (The disposable bag is of the kind commonly given to customers by grocery stores to carry their groceries away with them after purchasing them.)  The officer’s testimony was that the top of that carrier bag was open, revealing inside it—in plain view to him from where he was standing at the driver’s side window—a number of smaller, empty, 1” x 1” Ziploc baggies bearing logos, consistent with those that the officer, in his experience, associates with the packaging for sale of various kinds of illicit drugs: Trans., January 11, 2013, pp. 15-16.

[34]        This observation, more than any of the others, was definitive in Cst. Parsons’ determination that he had grounds to arrest Mr. Chong for simple possession of an illicit substance.  Once added to Cst. Dongriah’s tip and the other observations he said he had made himself, the observation of the carrier bag containing 1” x 1” Ziploc baggies with logos brought the total of the officer’s observations to what the cases sometimes refer to as a “critical mass” or “constellation of observations” sufficient, in his mind, to justify the arrest of Mr. Chong:  see, for example, R. v. Winter, 2010 ONCJ 147 (CanLII), [2010] O.J. No. 1733 (C.J.), and R. v. Martel, [2010] B.C.J. No. 736 (Prov. Ct.).  In Cst. Parsons’ own words, “… the arrest for the possession of the controlled substance was primarily based on his – on my observations of those baggies on the passenger side floor …” (Trans., January 11, 2013, p. 17, emphasis added).

[35]        The officer’s notes say this about the observations he made leading to his arrest of Mr. Chong for possession simpliciter and, in particular, about that definitive observation:

[36]        I pause to mention that, surprisingly, Cst. Parsons was adamant under close cross-examination by defence counsel that he wrote that note contemporaneously with the making of the observations it documents—that is, the observations giving rise to what he considered reasonable grounds for arresting Mr. Chong for simple possession.  He testified that he made that note while, at the same time, attending to a variety of other concerns, including safety concerns:

[37]        Cst. Parsons’ unyielding insistence that he made the note quoted in para. 35 above—set out as it is in carefully worded, full sentences—at the very same time that the subject events were unfolding did him no credit.  The Crown expects too much when it expects the court to believe that the officer made those notes in that form while he was also (a) attending to his watch to take account of and record the times when those events were unfolding, and (b) ensuring that his two detainees did nothing to imperil his personal safety or destroy evidence.  That is testimony given by Cst. Parsons which, misguidedly, appears to have been aimed at bolstering the court’s confidence n the officer’s note-taking performance.  It had precisely the opposite effect.  Cst. Parsons’ assertions about real-time, contemporaneous note-taking were assertions from which common sense instinctively recoils.  At the very least, the officer’s testimony calls into question the reliability of a written record that he insists was created while he was caught up in an almost superhuman exercise of multi-tasking where virtually every other concurrent priority would, one would expect, rank ahead of capturing in words in the moment what was happening as it was happening.

[38]        What is most surprising, however, is the uneven character of Cst. Parsons’ overall effort to capture an enduring record of the scene in words and images.  With respect to images, while Cst. Parsons took numerous photographs of the exterior and interior of the Celica at scene, he did not take a single photograph at scene of the carrier bag in the footwell of the passenger’s seat with 1” x 1” Ziploc baggies projecting out of it—the baggies marked with logos that the officer testified were in plain view as seen from his vantage point, standing at the driver’s window.  This, as has been mentioned above, was a definitive observation—the observation that Cst. Parsons said carried him over the threshold from mere suspicion and into the realm of reasonable grounds for arrest.  All of the observations and items of seized evidence upon which the Crown relies in this prosecution that were gathered after the officer saw that open carrier bag and arrested Mr. Chong for possession simpliciter could only be gathered because the officer made that initial arrest.  One would have thought that if he had taken only one photograph of the interior of the Celica at scene, Cst. Parsons would have taken a photograph of that open carrier bag sitting in the footwell from the location where he stood when he says he first saw it.  But, remarkably, there is no such photograph before me because none exists.

[39]        Photograph 3 in Exhibit “A” for identification on the voir dire shows the interior of the Celica but from the passenger’s side with no occupants inside it and with the passenger’s door open.  There is something visible on the floor in the passenger’s footwell in that photograph, perhaps a plastic bag with something in it, but that object appears much whiter than the one in photograph 13 and its orientation is different.  Interestingly, that object did not come up for mention at all during Cst. Parsons’ examination-in-chief about photograph 3.  To the extent that there is anything contained in what is depicted in the footwell in photograph no. 3, it does not appear to have any of the orange and black colouring that characterises the contents of the bag that are visible in photograph 13.

[40]        While it would likely take expert evidence concerning sight lines, heights, angles and distances to reach a confident conclusion on the point, I will comment here that if (a) the white object (possibly a bag) which is shown in photograph 3 is the one the sight of which clinched the officer’s decision to arrest Mr. Chong and, (b) if that object is sitting where the bag of Ziploc baggies was sitting when Cs. Parsons says he saw it, I have doubts about whether it and particularly its contents could in fact be seen from the driver’s side window.  The carrier bag’s position, close to the Celica’s transmission hump, suggests to me that, as depicted, it would not be visible from where Cst. Parsons was standing.  In this specific connection I comment further that Mr. Chong’s own evidence on cross-examination to the effect that an opaque carrier bag (but not its contents) might have been visible from the driver’s side door (see Trans., January 11, 2013, p. 81) neither reinforces nor weakens my own doubts about Cst. Parsons’ claim that he could see 1” x 1” monogrammed Ziploc bags projecting out of a carrier bag from where he was standing.

[41]        In short, I find nothing about photograph 3 that is corroborative of Cst. Parsons’ testimony about what he observed in the passenger’s footwell through the driver’s window; indeed, as I have mentioned, when he was taken to photograph 3 during his direct examination, he did not even mention anything depicted in that footwell.

[42]        Photograph 13—which does depict the carrier bag containing the 1” x 1” monogrammed Ziploc baggies which tipped the balance for Cst. Parsons in favour of arresting Mr. Chong for possession simpliciter—was, in fact, taken back at the detachment, well into the investigation and well after Mr. Chong’s second arrest.  Mr. Chong’s counsel refers to that photo in his written submission as being “staged”.  A perhaps more neutral term might be “re-created”.  Cst. Parsons testified in chief that he arranged the bag to appear roughly as it had when he made his definitive observation of it at scene:

[43]        But even at very close range, as shown in photograph 13, logos are not discernible on the Ziploc baggies.  At the risk of being repetitive, I would say again that if Cst. Parsons was as mindful as he appears to have been of the importance of the evidence of the carrier bag containing the 1” x 1” monogrammed Ziploc baggies, it is baffling that he should have failed to capture that crucial evidence photographically at scene.  He went to the trouble, after all, of taking many other photographs—a good number of which are of trifling comparative importance—but inexplicably he did not take one photograph of the object that, for him, constituted the definitive ground for arrest.  A “re-creation” that showed the carrier bag and its obviously logo-emblazoned contents positioned in the footwell and visible through the driver’s side window where Cst. Parsons was standing might have been of some assistance.  But we do not even have that.

[44]        Divorced as it is from the configuration of evidence within the Celica as it existed at scene, and unaccompanied by any explanation (and perforce any convincing explanation) as to why the carrier bag containing 1” x 1” logo-stamped Ziploc baggies was only photographed at the detachment and in the form of a re-creation of what Cst. Parsons says he observed at scene, photograph 13 is nothing more than an unreliable proxy for the best evidence of the bag and its contents.  It is not capable of corroborating the officer’s testimony about what he said was visible and discernible in the passenger’s footwell at the scene when he made the decision to arrest Mr. Chong for possession simpliciter.  Without that evidence, I am unable to find as a fact that a carrier bag containing emptiy, 1” x 1” monogrammed Ziploc baggies was observed by Cst. Parsons from where he stood at the driver’s side window of the Celica and prior to making his first arrest of Mr. Chong for simple possession.  Rather, I find that the carrier bag and its contents were first observed after Mr. Chong’s first arrest and that that observation could not have formed a ground, much less the definitive ground, for that first arrest.

[45]        Cst. Parsons arrested Mr. Chong for simple possession of an illicit substance on the basis of his professed belief that he had reasonable grounds to make that arrest.  Based on my analysis of the evidence set out above, I have determined that the objective support for his professed subjective belief that Mr. Chong was in simple possession of an illicit substance consists only of the following:

[46]        Manifestly, these objective correlates of Cst. Parsons’ professed belief that Mr. Chong was in simple possession of an illicit substance fall far short of what is necessary to constitute reasonable grounds for that arrest when regard is had to the requirements of s. 495(1) of the Criminal Code and seminal authorities like  R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241; R. v. Luong, supra; R. v. Wilson, 2012 BCCA 517; and R. v. Perjalian, supra.

[47]        Even viewed in the aggregate and through the eyes of a reasonable and experienced policeman, these two thin strands—weak unto themselves—do not in combination acquire anything approaching sufficient strength to form the “strong rope” to which Taylor J. colourfully referred in R. v. Parchment as being necessary to constitute reasonable grounds for arrest.  Indeed, I would go so far as to say that these two thin strands, twined together, were even insufficient to constitute a reasonable suspicion such as would justify investigative detention: see R. v. Mann,  2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59 and R. v. Yeh, supra at para. 44.  In my view, Mr. Chong was arrested on the first occasion by Cst. Parsons on the basis of nothing more than mere suspicion or a hunch.   (It has not been suggested by the Crown in argument, nor could it be, that Mr. Chong’s detention by way of the unlawful first arrest of him made by Cst. Parsons can be saved by recourse to any other properly exercised common law power of the sort recognised in cases like Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2.)

[48]        By attacking the evidence of Cst. Parsons, both in an impressive cross-examination and in sound submissions made later, counsel for Mr. Chong has succeeded in whittling away the contended objective grounds for his client’s first arrest to the point where what remains is insufficient to justify that arrest or make it lawful.  Accordingly, I hold that Cst. Parsons’ first arrest of Mr. Chong for possession simpliciter was without reasonable grounds and amounted to an unlawful and arbitrary detention.  As such, it constituted a breach of Mr. Chong’s right under s. 9 of the Charter to be secure against arbitrary detention.

[49]        For the reasons I have given early on in this decision (and based on the authorities cited there) I am also satisfied that, without the first unlawful arrest, the second arrest and the searches that were conducted pursuant to both would not have taken place, and that the evidence that the Crown wishes now to rely upon in its prosecution of Mr. Chong would not have been located and seized.  To put it somewhat differently, everything that was done by police pursuant to the first arrest and thereafter is constitutionally tainted by the constitutional infirmities of the first arrest and, accordingly, subject to possible exclusion under s. 24(2).

[50]        That being so, I do not consider it either necessary, or an appropriate use of the court’s resources, for me to subject the second arrest, or the searches conducted pursuant to either arrest, or any other potentially Charter-vulnerable police conduct complained of by Mr. Chong, to a detailed evidentiary or constitutional assessment.  If I am correct in my conclusion that Mr. Chong’s first arrest was an unlawful one, made without reasonable grounds and in breach of both s. 495(1) of the Criminal Code and s. 9 of the Charter, then because that arrest conditioned and enabled everything that followed in its wake, everything thereafter is tainted in terms of its constitutional validity in any event.

[51]        On the basis of the foregoing analysis I have found above that, by reason of his having been arrested by Cst. Parsons on the first occasion without reasonable grounds, Mr. Chong’s constitutional right to be secure against arbitrary dentention, pursuant to s. 9 of the Charter, was breached.  I have also found that all of the incriminating evidence that the Crown seeks to rely upon in its prosecution of Mr. Chong came into its hands as a result of steps taken that could only be taken because of that unlawful first arrest.

[52]        Counsel for Mr. Chong argues that this breach is sufficiently serious to warrant the exclusion of all of the evidence obtained in the course of the drug investigation that followed that unlawful first arrest.  Crown counsel argues, to the contrary, that any breaches the court might find were committed regarding Mr. Chong’s Charter rights would not justify an order under s. 24(2) of the Charter excluding evidence that is indispensable to the prosecution of a serious drug offence.

[53]        Section 24(1) of the Charter creates a right in those whose constitutionally protected rights and freedoms have been infringed or denied to turn to a court of competent jurisdiction to obtain a just and appropriate remedy.  Section 24(2) provides as follows:

[54]        Exclusion of evidence under s. 24(2) is the constitutional remedy that Mr. Chong is seeking in this voir dire.

[55]        In 2009, the Supreme Court of Canada had occasion in Grant to revisit the analytical process according to which trial judges' decisions to exclude evidence, or not, under s. 24(2) for Charter breaches ought to be made. That case, and two others that were decided contemporaneously with it—R. v. Suberu, 2009 SCC 33 and R. v. Harrison, 2009 SCC 34—have restated the test for exclusion.

[56]        The test, as reformulated, is succinctly summarised at para. 71 of Grant as follows:

[57]        As Frankel J.A. (for the majority) stated in R. v. Reddy, 2010 BCCA 11, “the greater the level of state misconduct, the greater will be the need for the courts to dissociate themselves from that conduct” (at para. 92).

[58]        I will say straightaway that, in my opinion, the “state misconduct” reflected in Cst. Parsons’ actions and omissions, for the purposes of the s. 24(2) analysis, is serious.

[59]        The majority judgment in R. v. Mann, supra, authored by Iacobucci J., begins with these portentous words:

[60]        Adapting those words to the contours of the case at bar, one might say that “this prosecution presents fundamental issues on the right of individuals to drive the streets free from state interference, but in recognition of the necessary role of the police in criminal investigation. As such, this case offers another opportunity to consider the delicate balance that must be struck in adequately protecting individual liberties and properly recognizing legitimate police functions”.

[61]        The right of citizens in Canada to go about their their daily lives free from unwarranted state interference is a very significant right indeed.  It is a right that distinguishes the life experience of Canadians from that of others in the world where the exercise of arbitrary power by the state is not held in check by constitutional constraints like those found in the Canadian Charter.  That right, along with many others, has given many who have not enjoyed the benefit of constitutionally entrenched fundamental freedoms with a compelling reason to seek to reside in Canada.

[62]        However, as the quotation from Mann makes plain, the right to go about one’s daily life free from state interference is not an unqualified right.  It must be balanced against the competing imperative of ensuring that law enforcement personnel, employing legitimate police functions, are able to operate effectively for the protection of us all.  The balance, as Iacobucci J. has acknowledged for the majority in Mann, is a delicate one.  For the purposes of the present case, the controlling parameter is the requirement that there be demonstrably reasonable grounds for arrest.  Reasonable grounds must exist before the grossly intrusive interference with personal liberty that arrest constitutes can be justified.  It is this legal requirement that, when properly observed, confines the exercise of the considerable power of arrest to its proper limits in a free and democratic society.  

[63]        As Wood, P.C.J. observed in R. v. Boyd, [2011] B.C.J. No. 1175 at para. 63 (Prov. Ct.), aff’d [2013] B.C.J. No. 64 (C.A.):

[64]        The evidence in the case at bar persuades me that little if any sober consideration of the “statutory limitations” imposed by s. 495(1) of the Criminal Code and by s. 9 of the Charter upon the power to arrest preceded Cst. Parsons’ first arrest of Mr. Chong.  That power was invoked in that instance in a manner that was conspicuously free of “thoughtful caution”.  Cst. Parsons had, at best, a hunch that Mr. Chong might be involved in something untoward that was drug-related.  With nothing more than Cst. Dongriah’s hunch to go on, plus the evidence of Mr. Chong’s nervousness following a traffic stop whose dramatic execution would likely have induced significant displays of nervous behaviour in almost anyone, Cst. Parsons precipitously arrested Mr. Chong for simple possession of an illicit substance.  Other grounds that he offered in support of that decision—the continuous ringing of the cell phone and the presence in plain view of a carrier bag containing packaging materials consistent with drug trafficking—do not withstand scrutiny.  The independent evidence of the memory resident in the subject cell phone confirms that no calls whatsoever came in during the crucial three-minute interval during which the officer formed his grounds for the first arrest.  And Cst. Parsons’ dubious contention that he could see the carrier bag, and its logo-bearing contents, from where he stood beside the driver’s door window is not corroborated by any photographic evidence of how it actually appeared at scene (though many other photographs of other aspects of the scene were dutifully recorded with his camera).  Even the close-up photograph of the re-created display of the carrier bag and its contents at the detachment well after the impugned arrest (photograph 13 in Exhibit “A”) fails to display logos, even at close range.

[65]        Cst. Parsons’ recourse to these purported grounds for the first arrest—so plainly contradicted or weakened or both by other evidence placed before me (some of it sourced in his own testimony)—leave the Crown in a position where it is unable to argue credibly that his actions when arresting Mr. Chong for the first time were taken in good faith.  As Iacobucci J. observed in Mann, "this Court has stated that 'good faith' cannot be claimed if a Charter violation is committed on the basis of a police officer's unreasonable error or ignorance as to the scope of his or her authority" (at para. 55).  It is incumbent upon police officers when dealing with members of the public to be ever mindful of the scope of their authority and to act within it: see R. v. Buhay, 2003 SCC 30 (CanLII), [2003] 1 S.C.R. 631 at para. 59.  That did not happen here.

[66]        Cst. Parsons’ approach to the limitations on his powers and the constitutionally entrenched freedoms of Mr. Chong was dismissive and offhand.  Like Cst. Cranmer in R. v. Boyd, supra, Cst. Parsons in the case at bar:

[67]        Such conduct, when displayed by a police officer in the course of a criminal investigation, is of such an order of seriousness that, in my judgment, the court must be clear in dissociating itself from it.

[68]        The impact of the breach of Mr. Chong’s s. 9 Charter right to be secure against arbitrary detention by unlawful arrest was serious.  Had his Charter rights been respected, after being issued a violation ticket for speeding Mr. Chong would have been sent on his way.  The curtailment of his ability to move about without state interference would have been purposeful, brief and Charter-compliant.  As it happened, it was anything but.  The device of the unlawful arrest opened the door (literally and figuratively) to progressively more intrusive incursions into his zone of privacy and personal autonomy, incursions that widened to include the searches that ultimately yielded the evidence upon which the Crown now seeks to rely.

[69]        The courts cannot turn a blind eye to deliberate or reckless police conduct of this kind and expect law enforcement authorities to respect the enactments and common law doctrines that place justifiable limits on their investigative powers.  The courts cannot countenance intentional or reckless disregard for the requirements that must be fulfilled by police officers before individuals are placed under arrest and at the same time expect citizens—whose rights the Charter is intended to protect—to view the Charter and its enforcement apparatus as being something that, in fact, truly confers upon all Canadians a mechanism for safeguarding their fundamental freedoms that is effective and workable in practice.  This country’s highest court has implicitly acknowledged that aggressively Charter-noncompliant approaches to law enforcement, when they are identified and left unchecked, can place our society on the brink of a dangerous and slippery slope.  As McLachlin C.J. stated for the court in R. v. Grant, supra at para. 75:

[70]        The substance seized from Mr. Chong’s Celica is reliable evidence, assuming that its identity as cocaine is ultimately proven.  Beyond that, trafficking in hard drugs, like cocaine, is a serious societal problem with many victims.  The apprehension and conviction of those who engage in this form of illicit commerce, with its many indirect adverse effects, is an understandable priority for all members of society.  These considerations require that a decision to exclude evidence that, by the prosecution’s admission, is indispensable to its case against Mr. Chong ought not to be taken lightly.

[71]        The s. 24(2) analysis, following the protocol prescribed by the Grant trilogy, is a qualitative exercise.  There is no precise formula to apply and different factors will weigh differently in the balance in different cases.  In the final reckoning, the question of whether the disputed evidence must be admitted or excluded in this and all cases is answered by determining which of those steps—admission or exclusion—will best preserve confidence, on the part of informed citizens, in the administration of justice.  If, having regard to all of the necessary considerations, I conclude that the admission of the evidence against Mr. Chong here will bring the administration of justice into disrepute, I must exclude it. 

[72]        Any decision I may make to exclude evidence under s. 24(2) will have the effect of vindicating Mr. Chong’s s. 9 Charter right to be secure against arbitrary detention via arrest unsupported by reasonable grounds.  However, here (as is often the case) such decisions also have the effect of preventing the adjudication of criminal allegations on their merits—that is, of preventing that which “society generally expects” (Grant at para. 79).  In balancing such vindication of Charter rights against the inimical effect of the loss of the disputed evidence to the truth-seeking process that would unfold at Mr. Chong’s criminal trial if it proceeds here, I must—in the words of Doherty J.A. (for the court)—ask whether “the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial": R. v. Kitaitchik, 2002 CanLII 45000 (ON CA), [2002] O.J. 2476 (C.A.) (QL) at para. 47 (cited with approval in Harrison at para. 23).

[73]        This analysis leads inevitably to further qualitative assessment of the egregiousness of the police conduct, seen in context, that accounts for the breaches that are cited as a basis for exclusion under s. 24(2).  At para. 41 of his decision in Kitaitchik, Doherty J.A. made this observation:

[74]        Starting there, I would repeat that the “state misconduct”in this case—that is, Cst. Parsons’ conduct—was serious.  Nothing that was done or omitted to be done by Cst. Parsons with regard to Mr. Chong’s Charter right to be secure against arbitrary detention by unlawful arrest can be fairly described as “blameless”.   He knows, as an experienced police officer, what he is required to have in order to be properly equipped with reasonable grounds to make an arrest.  That, arguably, is one of the most foundational examples of baseline knowledge for any law enforcement officer.  Here, I regret to say, Cst. Parsons’ lapse when placing Mr. Chong under arrest for possession simpliciter amounted to a blatant disregard for Mr. Chong’s s. 9 right under the Charter to be able to go about his business without unwarranted state interference.  Like Cst. Cranmer in R. v. Boyd, supra, Cst. Parsons employed his power of arrest without legal justification so he could follow up on what was nothing more than a mere suspicion or a hunch.  I consider that that inference from the facts proven before me during this voir dire is irresistable.  The fact that the additional tools that he then had at his disposal, once he had Mr. Chong under arrest, led ultimately to the discovery of apparently incriminating evidence does not provide the officer with an ex post facto justification for his unlawful actions.  If that were so, police officers would be free to intrude without justification into citizens’ zones of privacy and personal autonomy every day.  Commerce in illicit drugs is a pervasive problem in our society and, undoubtedly, wholly arbitrary arrests and searches, or arrests and searches predicated only on hunches, would turn up quantities of incriminating evidence in all manner of surprising places.  But the drafters of the Charter recognised that in this area law enforcement objectives cannot be pursued at all costs and at the expense of individual liberties, even if that means that some unlawful activity will go undetected.  The two values—that is, of protecting individual liberties and enabling police to do their important work effectively—do sometimes come into conflict and when they do the courts are called upon to perform a true balancing, as the majority in R. v. Mann, supra, has stated.  In a case like this one, the prerequisite of reasonable grounds is a requirement for a lawful arrest that is seldom, if ever, dispensed with.  I will not effectively dispense with it here by admitting into evidence materials that came into police hands as the result of an arrest made without reasonable grounds.

[75]        After thoroughly considering all of the evidence and arguments placed before me, I have reached the conclusion in this case that a decision to admit into evidence the illicit substances and other materials obtained by Cst. Parsons from Mr. Chong as a result, indirectly, of his first arrest made without reasonable grounds would bring the administration of justice into disrepute in the estimation of informed, right-thinking members of society.  As such, that material must be excluded.

[76]        Pursuant to s. 24(2) of the Charter, all of the evidence obtained in the course of the investigation of Mr. Chong following his first arrest (that is, his arrest, made without reasonable grounds, for possession simplicter) is hereby held to be inadmissible against him.

[77]        Order accordingly.