IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Thanh Nam Le is charged with three offences dating from the 21^st of February, 2013 in Coquitlam, being possession of cocaine for the purpose of trafficking, possession of heroin for the purpose of trafficking, (both contrary to section 5(2) of the Controlled Drugs and Substances Act) and possession of a baton for a purpose dangerous to the public peace (contrary to section 88(1) of the Criminal Code).  These offences arise from searches following a traffic stop for obstructing traffic by parking, contrary to section 187(2) of the Motor Vehicle Act.

[2]           The trial commenced with a voir dire with respect to sections 8 and 9 of the Charter of Rights and Freedoms, to determine the admissibility of the items found while searching Mr Le after his arrest, including a strip search, and during the search of his car. 

[3]           The only witness called to testify on the voir dire was Cst Dongriah, a member of the Drug Suppression Team of the Coquitlam RCMP. 

[4]           Cst Dongriah testified that he had been a member of this Team for two and one half years at the time of this investigation and that he remains on the Team.  He has been a member of the RCMP for nearly ten years.  He has received specific training relating to drug trafficking investigations including a one-day course on street-level trafficking.  As of February 2013 he had been involved in about 200 cases of his own and had assisted on another 100 - 150 cases.

[5]           He described driving eastbound on Smith Ave (near North Road and Clark) at about 5:30 pm when he saw a grey Accord (driven by Mr Le) parked blocking the driveway entrance to an underground parking lot of an apartment building. He said his attention was drawn to the vehicle because a westbound car that had been indicating a left turn could not in fact turn into the entrance because of the Accord, thereby causing a small traffic jam.  Smith Avenue at that point had one traffic lane in each direction plus parking on each side of the road.

[6]           He stated that he pulled his unmarked vehicle behind Mr Le’s vehicle and activated his emergency lights.  As he walked towards the driver’s side window, he noticed a man standing by the passenger side of the car, apparently talking to Mr Le through the window on the passenger side.

[7]           Cst Dongriah testified that he knocked on the window when he was standing near the “B” pillar intending to tell the driver to move the vehicle, when he observed Mr Le look up in surprise.  He was holding a translucent plastic container in his right hand and, Cst Dongriah stated, “I saw him lift that container and swallow the entire contents of that plastic container.”  He described the contents as little baggies coloured blue, consistent with what he believed to be $20 rocks of crack cocaine.  He said he could see the baggies going into Mr Le’s mouth and see Mr Le chewing really hard to swallow them, opening his mouth to do so. Cst Dongriah said he could see the baggies in Mr Le’s mouth and he believed Mr Le was attempting to destroy evidence.

[8]           Accordingly, Cst Dongriah yelled, “Stop!  You’re under arrest!” and opened Mr Le’s car door.  As he opened the door, he testified that Mr Le continued to swallow and tried to put the container in his track pants at the front right side.  Cst Dongriah took hold of Mr Le’s left hand and pulled him from the car.  Mr Le stepped out without any problem.  As he did this, Cst Dongriah testified that a transparent container fell from Mr Le’s crotch to the road surface.  It was empty.  Cst Dongriah advised the person at the passenger door to stay there so he could talk to him.

[9]           Cst Dongriah advised Mr Le that he was under arrest for possession of narcotics and Mr Le was chartered and cautioned verbally.  Cst Dongriah searched Mr Le incident to arrest, looking for evidence of drugs as well as weapons.  During the pat-down search of Mr Le’s waist and pockets, he located $15 in the left pocket, $15.20 in the right pocket, $285 in the jacket pocket (actually $295 when counted during the trial) and $60 in Mr Le’s wallet as well as his driver’s licence.  He noted that Mr Le was wearing a Bluetooth earpiece that was flashing.

[10]        Cst Dongriah placed Mr Le in his police car, wrote some notes and requested backup.  He identified the second male who had been standing at the passenger door and detained him for a drug investigation.  At approximately 5:50 pm, he began to search the vehicle incident to arrest looking for evidence of drugs, and photographed it.  During the search he observed a fully deployed baton in the storage compartment on the driver’s door.  He also located some pills in the ashtray as well as a single pill on the front passenger-side floor mat.  He saw a plugged-in i-phone charger but no phone.  He  requested the attendance of a police dog to help search for drugs, in case they were in a hidden compartment.

[11]        While the dog was searching the vehicle, Cst Dongriah determined that the second man had no history for drug trafficking although he had been identified as a drug user by the police.  He was allowed to proceed.

[12]        Because Cst Dongriah had not noticed any drug paraphernalia during his search, he re-arrested and this time charged Mr Le with possession of drugs for the purpose of trafficking.  He described his grounds for arrest as:  the baton on the driver’s side door, the swallowing of the drugs, the cash found in four different pockets showing a separation of assets, the passenger side window down with one pill on the passenger side floor, the person he was talking to had a history of drug use, and the phone was hidden and Cst Dongriah could not locate it.

[13]        At this time, about 6:15 pm, Cst Dongriah arrested Mr Le for possession for the purpose of trafficking and read Mr Le his Charter rights from the card.  When asked if he understood that he was under arrest, Mr Le replied, “Yes, but I was lost.”  He was transported to the Detachment.

[14]        Upon arrival at the Detachment, Cst Dongriah decided that because of the way in which Mr Le had handled the translucent container including putting it into the waist area of his track pants, it was possible that one or two rocks of crack cocaine might have fallen into Mr Le’s undergarments.  In addition, he still had not found the cell phone.  So he asked his supervisor for permission to strip search Mr Le.  He described this search as still being incidental to arrest.

[15]        After receiving permission from his supervisor, he conducted a strip search of Mr Le.  To begin, Mr Le removed his shoes and pushed them towards Cst Dongriah.  When Mr Le was asked to remove his underpants, he was slow to respond then reached inside and made a fist before pulling them down.  When Cst Dongriah asked him to open his hand, he was holding a plastic baggie which held a number of small blue baggies.  Cst Dongriah testified that these were consistent with the items that he had seen Mr Le swallow in the car.

[16]        Once the strip search ended, arrangements were made for Mr Le to call Legal Aid.  Cst Dongriah picked up Mr Le’s shoes and when they were moved, packaged baggies of crack cocaine and heroin rolled out from the toe area.

[17]        In total, 7 pills of oxycodone were seized from the car and 1 blue baggie containing 0.11 grams of heroin was removed from his crotch area.  In addition, 1 rock (in orange plastic) x 0.35 gram of cocaine, 4 green baggies of heroin (0.14 g, 0.20 g, 0.18 g, and 0.18 g), 2 black packets of heroin (0.19 g and 0.16g), 7 blue packets of heroin (0.09 g, 0.07 g, 3 x 0.6 g and 2 x 0.05 g), and 9 clear baggies of cocaine (0.17 g, 4 x 0.14 g, 0.13 g, 0.12 g, 0.10 g and 0.08 g) were recovered from Mr Le’s shoe. 

[18]        The total quantity of drugs seized was 7 pills of oxycodone, 13 packets of heroin totalling 1.6 grams and 10 packets of cocaine totalling 1.51 grams.

[19]        The police obtained a certified extract of vehicle registration showing that at the relevant time Thanh Nam Le was the registered owner of a grey 2004 Honda Accord, BC licence 658-SXD.

[20]        In cross-examination, Cst Dongriah acknowledged that by parking behind the vehicle he also partially blocked the driveway.  He remained in that position until he made his arrest then said he had to move his vehicle because traffic was trying to move along Smith, so he drove into the parking lot.  He said he, “had to move [his] vehicle so that cars could go in.”

[21]        Cst Dongriah testified that he only saw Mr Le raise his hand to his mouth when he, Cst Dongriah, knocked on the driver’s side window.  Cst Dongriah insisted that he had been able to see the container and the blue objects going into Mr Le’s mouth.  Although he demonstrated holding the container with only a thumb and forefinger, when questioned he was unable to say how the container had in fact been held and whether or not the other fingers had been wrapped around it.  He agreed that this took less than a second during which time Mr Le put the objects into his mouth.  Cst Dongriah said he could also see Mr Le chewing the baggies in his mouth.  He said he sees people chewing drugs like this on “a fairly regular basis”.

[22]        Cst Dongriah testified that he made notes at roadside and then later at the Detachment.  He agreed that his notes were silent as to the colour of the baggies notwithstanding that he puts in his notes those things that are most important, writing only, “Took out a small plastic container; swallowed 3 - 4 small rocks in mouth”.  He agreed that he saw blue baggies later at the Detachment from the shoe and crotch.

[23]        Cst Dongriah said he did not notice the man who was speaking to Mr Le from the sidewalk until he was out of his police car and walking up to the vehicle.  However, in his Report to Crown Counsel, he wrote, “It was noted that the vehicle was waiting to turn into the parking area but was unable to do so because of the parked Honda.  The driver of the parked vehicle was observed talking to a male…standing on the sidewalk.  Cst Dongriah approached the vehicle on foot in order to advise the driver [Mr Le] to move the vehicle.”  He remained firm during questioning that notwithstanding this note, he did not notice the male until he was approaching the driver on foot.  He agreed that he made no note in his notebook or in his Report to Crown Counsel regarding turning on his emergency lights when he first pulled up although he testified that he had.

[24]        Cst Dongriah testified that he did not consider taking any other action to get the vehicle to move such as honking at it, or pulling alongside and gesturing to the driver.  He also stated that “after the arrest”, he moved his police car by turning into that same driveway supposedly blocked by Mr Le’s vehicle with Mr Le’s vehicle still there, in order to let other cars go in.  He did not specify which arrest he was referring to:  the arrest for simple possession at 5:28 pm immediately after approaching the vehicle or for possession for the purpose of trafficking at 6:15 pm after concluding the on-scene searches, although from his evidence as a whole, it seems to have been the latter.

[25]        Later in his cross-examination, Cst Dongriah denied that he stopped this vehicle on a pretext of a motor vehicle offence in order to commence a drug investigation, stating that there was nothing to suggest to him at the outset that drugs were involved. 

[26]        He testified that he offered Mr Le medical attention at both the scene and at cells but that Mr Le refused it.  He did not call for medical attention notwithstanding Mr Le’s refusal, because he said he could not force medical care on someone.  He acknowledged his understanding that ingesting heroin or cocaine by mouth in damaged packaging could have dire consequences for the swallower.

[27]        He denied Defence Counsel’s suggestions that he approached Mr Le’s vehicle in a stealthy manner, including by not activating his emergency lights, to try to catch Mr Le in a drug transaction.  He also denied the suggestion that the first time he saw any drugs was in the Detachment during the strip search.

[28]        He stated that the note in his notebook regarding the licence plate (658-SXB) was in error as was the same notation in his Report to Crown Counsel, and that the certified extract of registration was the correct plate number (658-SXD), as also shown on the Violation Ticket.  The Violation Ticket was entered in evidence and in a close examination, it is unclear whether the final handwritten letter is in fact a “B” or a “D”.  He did not research the plate 658-SXB and was unable to identify its owner.  The photograph he took of the car at the scene was of no assistance as the rear of the vehicle simply shows as white.

[29]        No further evidence was produced on the voir dire.

[30]        Crown Counsel provided the following cases:

[31]        Defense Counsel relied upon the following cases:

[32]        I have reviewed and considered all of these cases in my decision.

[33]        In summary, these cases establish the following principles.  Firstly, a lawful arrest can only be made on the officer’s having reasonable and probable grounds, and those grounds must be objectively justifiable, (R. v. Spence, para. 29, quoting R. v. Storrey 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241).  In addition, while, “There must be more than mere suspicion, proof on a balance of probabilities is not required; reasonable probability or reasonable belief (credibility based probability) is sufficient”, (para. 33).

[34]        In terms of assessing credibility of the officer, some examples of what have been found to adversely impact findings of reliability and credibility are provided in R. v. Cavdarov (supra).  In that case, Bruce J made the following observations among others of the evidence of the lead investigator: 

[35]        The two Turpin decisions (QB and CA) address the issues relating to the use of a pretext when conducting an investigation to conceal the real objective of the investigation.  In that case, a search for drugs in a motor vehicle which ultimately also included a dog search resulting in the eventual location of concealed drugs was found to not withstand analysis.  Accordingly the arrest and detention of the driver were found to be unlawful.  The Court of Appeal noted at paragraph 89,

[36]        At para. 28 of R. v. Phengchanh (supra), Romilly J cites with approval a summary of the legal principles regarding the stopping of motor vehicles and the related searching of suspects and their motor vehicles incident to arrest, as detailed by Gorman J in R. v. Martin, [2010] N.J. No. 227.  This analysis is helpful in considering the limitations if any on searches performed incidental to arrest and for officer safety.  In applying those principles to the case before him, Romilly J found that the motor vehicle stop therein was lawful as was the subsequent detention.  The “pat-down” search “for officer safety” which followed the driver’s stepping from the motor vehicle at police request was also subjectively and objectively reasonable given the information the officer had received at the time.  However he found that that the officer’s subjective belief for a search of the accused’s vehicle was not objectively reasonable given that the accused was outside his vehicle and he had already undergone the “pat-down” search.  The vehicle search which resulted in the seizure of contraband thus contravened section 8 of the Charter.  The evidence seized was ultimately ruled to be inadmissible.

[37]        The decision in R. v. Grant (supra) succinctly describes the section 24(2) analysis to be undertaken by the court in the event that the provisions in the Charter are found to have been breached as follows:

[38]        Counsel on behalf of Le argued that Mr Le’s arrests were unlawful and contrary to section 9 of the Charter of Rights and Freedoms as they were not properly based on reasonable and probable grounds and accordingly that all of the searches that followed were also unlawful.  In addition, because they were warrantless, they were presumed to be unreasonable and in violation of section 8.  He argued that the evidence of Cst Dongriah overall was not reliable as demonstrated by his apparent errors and significant gaps in note taking, as well as some confusion regarding his management of exhibits.  In addition, he disputes much of Cst Dongriah’s evidence including his purportedly seeing blue baggies in a translucent container being swallowed by Mr Le, and his finding of various items including in particular the container.  Counsel noted especially the repeated confusion regarding the licence plate of the vehicle driven by Mr Le in Cst Dongriah’s notes as well as the possibility of seeing items in a small plastic container being poured into someone’s mouth.  He doubted the likelihood of someone chewing the contents if the packages indeed contained dangerous drugs such as cocaine and heroin.

[39]        Counsel particularly emphasized that when, as here, there is no independent testimony, the Court must carefully evaluate whether or not the evidence presented is reliable and credible.  He suggested that the evidence regarding the container and seeing the blue baggies inside his mouth and being swallowed then chewed was simply embellishment following the constable’s perhaps seeing Mr Le raise his hand to his mouth or make some other gesture.  He argued that it was unlikely that someone attempting to conceal contraband would then continue to chew with his mouth open so that someone observing could see what was in his mouth.

[40]        Counsel argued that the purported stop under the Motor Vehicle Act was in fact a ruse to investigate a driver who had been clearly seen talking to a person on the sidewalk  through his passenger side window, an activity which would be consistent with street-level drug trafficking. 

[41]        Accordingly, Defence Counsel submitted that in considering the principles in R. v. Grant (supra), the evidence discovered from the searches should be found to be inadmissible.  In particular he pointed to the fact that the searches were unauthorized and led to a strip search of his client, which was seriously personally intrusive.  He argued that they could not be found to have been undertaken in good faith.  He stated that it was important to look to the long-term consequences of the police violating protected Charter rights with apparent impunity and the adverse impact it would have on the integrity of the judicial system if they were to succeed in their actions.

[42]        Crown Counsel disagreed that the arrests violated section 9 as they were based on reasonable and probable grounds as detailed by Cst Dongriah.  Although the searches did  prima facie breach section 8 as they were warrantless, they were reasonable in all of the circumstances and reasonably conducted.

[43]        Crown Counsel argued that the observations testified to by Cst Dongriah regarding the sighting of blue-packaged items in a translucent container that Mr Le poured in his mouth and then began chewing provided sufficient objective and subjective grounds for Cst Dongriah to reasonably believe that Mr Le was in possession of drugs contrary to the Controlled Drugs and Substances Act.  In addition, the Crown argued that there was nothing in the evidence to contradict him.  Any mistakes that were made such as incorrectly recording the licence plate are simply human error and have no impact on the reliability and credibility of the witness.

[44]        Crown Counsel further submitted that Cst Dongriah was properly enforcing the Motor Vehicle Act at the time of approaching the driver, and that the investigation only shifted to drugs when he surprised Mr Le at the car door and Mr Le attempted to swallow the contents of the container.  As such, there was no ruse or pretext involved in his investigation.  She argued that there was no evidence of embellishment as Cst Dongriah simply testified to what he saw.  Any problems with his notes were just the result of human frailty and did not detract from the substance of his evidence.

[45]        As such the Crown argued that notwithstanding the Charter breach, the evidence should still be admitted as evidence because of its highly reliable nature.  In considering the factors in R. v. Grant (supra), the Crown submitted that the seriousness of the misconduct was at the low end as the officer did not act in bad faith, and was simply pursuing his investigation after seeing the blue baggies.  The impact of the breach was reduced given that the focus was on the vehicle where there is a lower expectation of privacy, and the manner of the strip search was not objected to.  Finally, society’s interest in a finding based on the merits is high given the significant problem in the community regarding drug offences and that here, if the evidence were excluded, the case would fail.

[46]        This matter commences with Cst Dongriah’s stated intention of enforcing the Motor Vehicle Act by approaching a vehicle that he believed was blocking traffic.  The sincerity of that intention has been challenged by counsel for Mr Le.  There is no question that investigations initiated for a particular reason may change focus when additional evidence presents itself.  That is what Cst Dongriah said happened when he walked up to the driver’s window and he saw the driver attempting to swallow some items.  He denied any ulterior motive including the suggestion by Defence Counsel that he had observed the person standing at the passenger side of the car before pulling up behind the car and was actually trying to catch the driver in a hand-to-hand drug transaction with the person.

[47]        In reviewing the evidence, it is helpful to first consider the section of the Motor Vehicle Act for which Cst Dongriah issued a violation ticket.  Section 187 (2) of the Motor Vehicle Act states:

[48]        It is highly questionable whether or not the driver was actually in contravention of these sections at the time Cst Dongriah first saw the vehicle.  It is unclear that the Accord was in fact “parked” and it is even more unclear that it was “obstructing the free passage of traffic”.  Cst Dongriah testified that his attention was drawn to a vehicle signalling to turn left into the parking lot that could not complete the turn because of the Accord.  It seems equally possible that the unknown driver was unable to complete the turn because of the approaching traffic including the police car, particularly given that Cst Dongriah was able to turn into the parking lot himself sometime afterward driving his Crown Victoria, a very large vehicle, while the Accord was still in the original position. 

[49]        Cst Dongriah testified to having over 9 years’ experience as a police officer as well as over two and a half years on the Coquitlam Drug Suppression Team.  His training and duties have involved him in hundreds of investigations relating to street-level drug trafficking including dial-a-dope transactions. It is unthinkable that he would not have been aware of everyone in the vicinity of a vehicle that he was going to be checking, if only to tell the driver to move on.  His notes also support the contention that he saw the male on the sidewalk adjacent to the Accord before approaching it, in contrast to his testimony to the contrary.

[50]        There are other parts of his evidence which present cause for concern.  Two licence plate numbers have been put in evidence:  658 SXB in the officer’s notes and Report to Crown Counsel, and 658 SXD in the Certificate of Registered Owner.  The notation could be either on the Violation Ticket.  There is no way of being certain what the actual licence plate was on the car that was stopped.

[51]        Cst Dongriah said that he could see the contents of the translucent container and that it held blue items that he believed to be consistent with $20 rocks of crack cocaine.  He demonstrated holding it with right thumb and forefinger with the other fingers held out of the way so that one would be able to see the body of it, but admitted that in fact he could not say how it was held.  (The container was small enough that it would also be possible to wrap all one’s fingers around it while holding it.) He said that he saw the driver, “swallow the entire contents” (emphasis added) yet testified that he convinced his supervisor to authorize the strip search on the grounds that because the driver had tried to hide the container in his track pants (after the apparent attempt at swallowing), some rocks might have fallen into his garments.  These two statements, simply put, are markedly inconsistent and no satisfactory explanation for the discrepancy was provided by Cst Dongriah.

[52]        The initial arrest was based on the apparent sighting of items being swallowed.  This resulted in the search of Mr Le which resulted in locating the cash, then the search of the car where he located the baton, the pill, and the charger cord.  These findings combined with an absence of finding a cell phone and drug paraphernalia in the car, and the result of the conversation with the man on the sidewalk resulted in the second arrest for possession for the purpose of trafficking.  It should be noted that the search of the car also involved the use of a police dog, which was also unsuccessful in looking for a cell phone and drugs.

[53]        It was only following the second arrest for possession for the purpose of trafficking that the strip search at the Detachment took place where the drugs that form the subject matter of these charges were located in Mr Le’s underwear and shoe.  No cell phone was ever found.

[54]        Also of note is Cst Dongriah’s evidence that he believed Mr Le had swallowed “blue $20 rocks of crack cocaine”.  In fact, none of the drugs later seized in this investigation matched this description.  The blue baggies from the crotch area contained heroin, not cocaine, and the cocaine was found in orange baggies and clear baggies, not blue.

[55]        After careful review of the evidence, it is apparent that there are numerous inconsistencies on material points in Cst Dongriah’s testimony and that his notes are ambiguous and incomplete. Specifically, I do not believe the evidence that the Cst thought the Accord was blocking the driveway or that he was enforcing the Motor Vehicle Act.  I find that this became a pretext for the actions that followed.  I also do not accept that he had not seen the male at the passenger’s side window before stopping and leaving his car.  An investigator, well-experienced in street-level drug trafficking could not have overlooked this circumstance.  I do not accept the testimony that he saw any blue objects in the container or falling into the mouth of the driver, Mr Le.  At best, he may have seen Mr Le raise his hand to his mouth, and only that.  While Cst Dongriah may have subjectively believed that Mr Le was moving drugs to his mouth, I find that that belief was neither reasonable or probable.  At best, it was suspicion fuelled by leaps of imagination.  The belief was not objectively justifiable.

[56]        Given these findings, the arrest of Mr Le for possession simpliciter and the searches of Mr Le and of the vehicle at the scene were breaches of sections 8 and 9 of the Charter.  The initial arrest was unlawful and the searches were unlawful.  The subsequent arrest for possession for the purpose of trafficking and the strip search at the Detachment are also tainted as they resulted from previous breaches.  The so-called additional grounds for raising the reason for arrest to possession for the purpose of trafficking in fact amount to nothing and do not provide any support for either a subjective or objective belief.  More significantly, they in no way justify the intrusiveness of a strip search.

[57]        In applying the considerations in Grant, I find the seriousness of the Charter-infringing state conduct to be high.  I have found the testimony of the investigator to be inconsistent, incomplete and unreliable.  I have found that at every stage of this investigation, from the onset to the end, the evidence including inferences to be drawn and beliefs apparently flowing from it is simply incapable of being accepted and of providing reasonable and probable grounds for the actions that followed. 

[58]        The impact of these breaches on Mr Le I find to also be very serious, especially including the fact of the strip search without any actual grounds. 

[59]        Finally, while it is clear that society has a strong interest in having cases decided on their merits, society has an overriding concern in ensuring the law is respected and followed particularly by those who have been given the task of enforcing it.  This principle was articulated in R. v. Golub, 1997 CanLII 6316 (ON CA), [1997] O.J. No. 3097 (CA) and cited with approval in R. v. Bohn, [2000] B.C.J. 867 (CA) at paragraph 46:

[60]        Having made these findings, I am satisfied that pursuant to section 24 (2) of the Charter, none of the evidence related to the items seized including the baton and drugs is admissible on the trial of this matter.