IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           These are my reasons for judgment in respect of a voir dire that I declared in this prosecution in order that I might determine whether the rights of Shaun Paul Naidu (“Mr. Naidu”) to be secure against arbitrary detention and unreasonable search and seizure—rights that are conferred upon him by sections 9 and 8, respectively, of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, enacted by the Canada Act 1982 (U.K.), c. 11 (the Charter”)—were breached in the course of a police drug investigation conducted in the evening of February 22, 2013.  I am also, of course, called upon to consider whether any such breaches I might find to have occurred would entitle Mr. Naidu to a constitutional remedy under s. 24 of the Charter.

[2]           Mr. Naidu is charged under Information No. 90291 with unlawful possession of cocaine and heroin, both for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”).  It is common ground that these are indictable offences: s. 5(3) of the CDSA. 

[3]           The charges arise out of an investigation which occurred in the parking lot of the Coquitlam Centre Mall in Coquitlam, B.C. (the “CC Mall”).  The investigation culminated in the warrantless arrest of Mr. Naidu by Cst. Evan Todd of the Coquitlam Detachment of the RCMP (“Cst. Todd”) and the seizure of the alleged cocaine and heroin from him during a search conducted incidental to that arrest.  (Mr. Naidu’s path happened to cross with that of Cst. Todd because he visited the CC Mall during the evening of February 22^nd and Cst. Todd—who was in uniform but driving an unmarked police vehicle at the time—happened at the same time to be conducting patrols there.  The CC Mall is one of what Cst. Todd considers to be the “hot spots, or areas of drug activity” in Coquitlam: Trans., November 17, 2014, pp. 6-7.)

[4]           Mr. Naidu contends that the evidence led in the course of the voir dire reveals that Cst. Todd—the primary investigating officer in this matter—had insufficient grounds to detain him, much less arrest him.  He argues, accordingly, that his detention and arrest by Cst. Todd were arbitrary and that the evidence which was gathered and seized by the officer incidental to his arrest was gathered and seized pursuant to an unreasonable search and should therefore be excluded pursuant to s. 24(2) of the Charter.  The Crown disagrees, submitting that the detention and the arrest of Mr. Naidu by Cst. Todd were entirely Charter-compliant, and that the search of his person and vehicle incidental to arrest was therefore not tainted by any constitutional deficiency that would trigger a remedy under s. 24(2).

[5]           As should be clear from the Introduction above, the outcome of this voir dire will turn mainly on the question of whether, when he first detained and then almost immediately thereafter arrested Mr. Naidu, Cst. Todd had proper grounds to first suspect, then believe, that Mr. Naidu had committed or was about to commit an indictable offence. 

[6]           While it is submitted on behalf of the accused that Cst. Todd’s basis for curtailing Mr. Naidu’s liberties on the alleged offence date was so weak as to be insufficient to justify even his detention, the gravamen of the defence argument before me is that the arrest that followed the detention by mere seconds was not based upon “reasonable grounds” for the purposes of s. 495(1)(a) of the Criminal Code.  My reasoning leading to the disposition of this voir dire shall therefore focus mainly upon that question.

[7]           What, then, did Cst. Todd specify as the grounds upon which he arrested Mr. Naidu?  In his testimony during the voir dire, he identified the following:

[8]           In order to assess the sufficiency of these grounds, I must consider the extensive evidence that was led during the voir dire with respect to each, alongside all other relevant evidence, and then proceed to determine whether, in the aggregate—given the totality of the circumstances—they amount to “reasonable” grounds for that arrest.

[9]           I begin by outlining in greater detail each of what Cst. Todd identified as his grounds for arresting Mr. Naidu.

[10]        Cst. Todd testified that he had knowledge about Mr. Naidu going into the current investigation and that that knowledge was based in part upon three previous interactions he had had with him, personally, while in the course of duty as a police officer. 

[11]        The first interaction was a street check in 2011 that was largely uneventful.  That is an encounter about which Cst. Todd recalled little and about which no more therefore need be said here. 

[12]        The second interaction, in April of 2012, occurred in the course of a drug investigation in which he (Cst. Todd) was providing assistance to his colleague, Cst. Parsons.  Mr. Naidu was arrested on that occasion. 

[13]        The third interaction took place at the Coquitlam RCMP detachment, ancillary to the aforementioned drug investigation.

[14]        These latter two interactions call for some elaboration.

[15]        The second interaction came about after the arrest of Mr. Naidu by Cst. Parsons and another officer following a traffic stop to which Cst. Todd had been summoned to assist.  The vehicle Mr. Naidu was driving at the time of the traffic stop and subsequent arrest (not the Brown Honda) was found to contain a hidden aftermarket compartment, as well as a large quantity of drugs, a mobile phone and some money.  Ultimately, no charges were laid against Mr. Naidu “for a multitude of reasons” (Trans., November 17, 2014, p. 41).  Those reasons include the fact that he was not the registered owner of the vehicle and problems the police encountered with their fingerprint evidence gathered during the investigation.  Nevertheless, Mr. Naidu was made subject to an order requiring him to remove the hidden aftermarket compartment from the vehicle that he had been driving that night. 

[16]        Cst. Todd’s third interaction with Mr. Naidu occurred when he (Mr. Naidu) attended at the Coquitlam RCMP Detachment sometime after the second interaction to confirm to Cst. Todd that he had, indeed, complied with the order to remove the hidden aftermarket compartment.

[17]        Cst. Todd made queries via the PRIME database as part of the subject investigation and they yielded some returns.  One confirmed that Mr. Naidu was not the registered owner of the Brown Honda he was driving on the evening in question.  Another referred to an occasion in 2003 when Mr. Naidu was stopped by Port Moody police and given a 24-hour driving suspension.  A significant amount of cocaine was located in the course of that traffic stop although, to Cst. Todd’s understanding, no charges were laid against Mr. Naidu.

[18]        Approximately three weeks prior to the evening in question, Cst. Todd received information about Mr. Naidu from his drug suppression team colleague, Cst. Parsons.  That information had, in turn, come to Cst. Parsons from a confidential police informant for whom he (Cst. Parsons) was the “handler”.  It was to the effect that:

[19]        Based upon the information he had received from Cst. Parsons regarding assistance the informant had given to police in other successful investigations, Cst. Todd held the belief that the confidential police informant who was the source of that information about Mr. Naidu was a reliable source.

[20]        When, after exiting the Brown Honda and making his way toward the entrance doors for the CC Mall, Mr. Naidu noticed Cst. Todd sitting in his parked vehicle, he reacted with surprise and did a “double take”.  Following that, Cst. Todd noted that Mr. Naidu quickened his pace and proceeded very swiftly into the mall.

[21]        After about 30 minutes had passed following Mr. Naidu’s entry into the CC Mall, the backup officers that Cst. Todd had summoned observed Mr. Naidu re-emerge from it and get back into the Brown Honda.  They informed Cst. Todd by radio that he had done so.  Cst. Todd then quickly returned to that part of the parking lot in his unmarked police vehicle (from which he had retreated to avoid detection) and pulled up and stopped, “nose to nose” with the Brown Honda and with his emergency lights activated.  Cst. Todd observed Mr. Naidu sitting in the Brown Honda’s driver’s seat, leaning or hunching forward and looking down into the driver’s seat foot-well.

[22]        Once parked in front of the Brown Honda “nose to nose”, Cst. Todd climbed out of his unmarked police vehicle with its emergency lights activated and approached the driver’s side of the Brown Honda.  Through the closed window he observed Mr. Naidu, still hunched over, place a small object into the middle area of the front driver’s seat floor.

[23]        Mr. Naidu is sharply critical of the grounds Cst. Todd has cited as those which led him to first detain, then arrest, him.  He submits, variously, that some of the grounds are individually flawed, that other evidence calls some of those grounds into question or qualifies their reliability, and that those which might survive scrutiny do not, in the aggregate, achieve the critical mass necessary to justify either his detention or his arrest.

[24]        I turn therefore to an item-by-item consideration of the points raised by Mr. Naidu in the course of his critique of Cst. Todd’s grounds for detaining and then arresting him.

[25]        The Crown argues that Cst. Todd’s detention and arrest of Mr. Naidu were justified, in part, by the officer’s recollection at the time of a previous history of dealings with Mr. Naidu.  The main basis for attack on this ground centres upon alleged deficiencies in the way that factor was documented in the officer’s notes and reports.  The burden of the argument is that what the officer actually recalled about Mr. Naidu at the time of his detention and arrest was both unclear and mistaken and thus does not contribute meaningfully, or at all, toward proving that the detention and arrest were justified and lawful.

[26]        The references in Cst. Todd’s notes and Report to Crown Counsel (the “RTCC”) to his recollection of his previous history of dealings with Mr. Naidu (described earlier in these Reasons) are, to be sure, cryptic.  As to the notes, all that is recorded are the words “previous history/conviction”; as to the RTCC, the reference is limited to “previous history of drug trafficking”: Trans., November 18, 2014, pp. 3-4.

[27]        To the extent that these notations convey the suggestion that it was Cst. Todd’s belief that Mr. Naidu’s history involved actual convictions for drug offences, the officer acknowledged under questioning during cross-examination that the notations are, in that respect, mistaken.  He did so unhesitatingly.  Cst. Todd was at a loss to explain why he had used the word “conviction” in his notes and he was adamant that, while at the time of the subject detention and arrest he had a clear recollection of having dealt with Mr. Naidu previously in drug-related investigations, he did not then have any knowledge, personal or from other sources, that Mr. Naidu had ever been convicted of drug offences: see Trans., November 17, 2014, pp. 78-82 and November 18, 2014, pp. 3-4.

[28]         Rather remarkably, the evidence adduced during cross-examination of Cst. Todd revealed that there is another “Shaun Naidu” who is known to police and who has acquired a number of convictions, including one for trafficking in illicit drugs.  Records for that “Shaun Naidu” are found in CPIC which Cst. Todd acknowledges he queried at some point during the subject investigation but doesn’t know when.  Moreover, a conviction history of that other “Shaun Naidu” was appended to the Report to Crown Counsel that was forwarded to the Public Prosecution Service of Canada in relation to the present prosecution.  The “Shaun Naidu” who is the accused in the present prosecution argues that this evidence shows that Cst. Todd thought he was dealing with the other “Shaun Naidu” at the time of his detention and arrest.  This, he says, undermines an important element in the array of grounds claimed by Cst. Todd to justify his detention and arrest as being lawful.

[29]        In analysing this critique, I begin with the cryptic nature of Cst. Todd’s notes and report references to his previous dealings with Mr. Naidu.  Does the use of compendious phrases like “previous history” in this officer’s notes and reports—instead of more detailed descriptions of those previous dealings—fall so far short of the required standard as to render the Crown’s argument unmaintainable that the officer’s recollection of past dealings with Mr. Naidu numbered among his grounds for detaining, then arresting, Mr. Naidu?  With respect, I do not believe that it does.

[30]        The first point to bear in mind is that Cst. Todd did not, as some police officers sometimes do, fail to include any mention of an important ground for the detention and arrest of an accused in his notes and report.  Rather, he collapsed into a short phrase—“previous history”—the sum and substance of what he remembered of Mr. Naidu based on past dealings when he arrested him on February 22, 2013.  As his testimony at trial confirmed, that note was in fact able to prompt detailed recall on Cst. Todd’s part of what he remembered, at the relevant time, about Mr. Naidu based on encounters he had had with him in the course of an earlier investigation.

[31]        Second, this case does not involve either the wholesale omission from notes, or even a very cryptic recording in notes, of a central or touchstone observation—like, for example, an observation during an impaired driving investigation that the accused collided with a mailbox before being pulled over, or had alcohol on his or her breath.  Hence, the case at bar is, in this regard, readily distinguishable from authorities such as R. v. Sundberg, [2010] B.C.J. No. 2054 (Prov. Ct.) and R. v. Sahota, [2011] B.C.J. No. 1149 (Prov. Ct.).

[32]        Third, it must not be forgotten that officers’ notes are not evidence in themselves but, rather, that they serve as aids to memory.  Such notes assist officers like Cst. Todd in recalling, much later, what they had in mind when they detained and arrested persons like Mr. Naidu.  More detailed and particularised notes are always welcome; and the more detailed and particularised they are, the better they will serve as aides memoires for testifying officers.  But the circumstances of an arrest are often, as they were at times here, fast moving.  Officers are required to be agile and to “multi-task” (if that is a verb) in order to respond to the imperatives of evolving and fluid situations. This will, necessarily, impose constraints upon their ability to be detailed and comprehensive in their contemporaneous (or roughly contemporaneous) note-taking.  It is for this and other reasons that the law is pragmatic and acknowledges a reasonably broad range of what is acceptable as to detail and coverage in officers’ notes when assessing the credibility of those officers’ testimony in areas where their note-taking is challenged. 

[33]        The point was put this way by Miller J. in R. v. Medwed, [2011] A.J. No. 405 (Q.B.) at para. 3:

[34]        Reasoning to a similar effect can be found in R. v. Antoniak, [2007] O.J. No. 4816 (S.C.J.)—a decision that was cited with approval by Giardini P.C.J. in Sahota, supra, at para. 48—where, at paras. 22 and 24-25, Garton J. stated:

[35]        I respectfully adopt the reasoning in Medwed and Antoniak for the purpose of formulating my approach to Cst. Todd’s note-taking in the case at bar and consider that it applies a fortiori to circumstances, like those here, where the objection is not that an observation or factor is missing altogether from an officer’s notes but, rather, that the record of it is insufficiently detailed.

[36]        Mr. Naidu also submits that the previously mentioned error made by Cst. Todd in his notes—by describing him as a person with a conviction—detracts from the officer’s credibility on the previous history issue and undermines it as a properly operative ground for arrest.  Here, too, I find myself in respectful disagreement with Mr. Naidu’s submission.  I do not consider that the error has the significance that he ascribes to it.

[37]        Cst. Todd did, most certainly, make an error when he wrote the word “conviction” in his notes.  This error does case a shadow of sorts over the reliability of his evidence.  However, he did not shrink at all from admitting that he had made that error; further (and importantly) he did not point to a past conviction as a consideration he bore in mind when formulating his grounds for detention and arrest of Mr. Naidu.  These factors, in my respectful view, largely neutralise Cst. Todd’s error regarding the errant conviction for present purposes.

[38]        Neither, in my view, does Mr. Naidu’s objection in this connection gain any appreciable added force or strength from the fact that the RTCC in this matter was submitted with the criminal record for the other “Shaun Naidu” attached to it.  This, too, Cst. Todd candidly acknowledged was done in error but he also made it plain in his testimony that the appending of that record to the RTCC was done in error by another member of the RCMP (a court liaison officer) without his (Cst. Todd’s) knowledge: Trans., November 17, 2014, pp. 78-82.  Thus, the appending of the errant criminal record to the RTCC by another has no probative value in relation to the aspects of the previous history of the Mr. Naidu before me that were in Cst. Todd’s mind at the time he detained and arrested him.

[39]        I do acknowledge that knowing, amongst other grounds, that a suspect has a previous conviction for a drug offence would strengthen the array of grounds overall more than would knowing only that the suspect has had previous involvement in drug-related investigations.  But the difference between these two pieces of knowledge for the purposes of assessing grounds for detention or arrest ought not to be overstated. An officer’s previous interactions with an accused person in the course of drug investigations is surely a legitimate variable in the “reasonable grounds” equation in a matter like the case at bar, even if those investigations did not, ultimately, yield convictions.  Knowledge of a suspect’s past associations with illegal activity has indeed figured in the grounds for arrest that courts have been called upon to assess for reasonableness in other cases.  For a recent example, I turn to R. v. Crowther, [2013] B.C.J. No. 1763 (C.A.) where Bennett J.A. (for the court) acknowledged, at para. 33, an arresting officer’s knowledge of a suspect’s previous involvement in the drug trade as one of several objective grounds justifying the suspect’s arrest.

[40]        Neither do I find it surprising that Cst. Todd, having inter alia had a hand in confirming that Mr. Naidu had taken police-mandated steps to remove a hidden compartment from a vehicle he had been driving—which vehicle had been found to contain drugs, money and a mobile phone—might mistakenly have recalled that Mr. Naidu had picked up an illicit drug-related conviction (although he was adamant that, at the time, he recalled no such thing).  I repeat that, as Cst. Todd freely acknowledged in connection with Mr. Naidu’s prior “conviction”, he was simply mistaken when he put the “conviction” reference into his notes and RTCC.  He was clear that the reference did not reflect his true state of belief about Mr. Naidu.  But I would also add that, had he actually believed, in error, at the time that Mr. Naidu had a drug conviction, the mistake would have been a reasonable one in the circumstances and would not have meaningfully diminished the court’s confidence in the legitimacy of the officer’s stated grounds for detaining and arresting of Mr. Naidu.

[41]        To summarise then on this element of Mr. Naidu’s critique of Cst. Todd’s grounds for his detention and arrest, I do not consider that the brevity of the officer’s references to his past dealings with Mr. Naidu in his notes and reports, or the inclusion of erroneous content regarding a past conviction in those materials, significantly impair or undermine Cst. Todd’s evidence regarding his recollection of Mr. Naidu’s past history as one of several factors that, in combination, led him to conclude that on February 22, 2013, Mr. Naidu was both detainable and, ultimately, arrestable.

[42]        In forming his grounds for detention, then arrest, of Mr. Naidu, Cst. Todd placed considerable reliance upon information from a police informant, relayed to him by his colleague Cst. Parsons, to the effect that Mr. Naidu was selling illicit drugs at, among other locations, the CC Mall.  The police informant had also advised that Mr. Naidu was making use of a precisely identified vehicle—the Brown Honda—which had been modified to provide a hole in its driver’s side floor to conceal drugs in the event of a police encounter.  Where informant intelligence comes, as here, with a high degree of specificity, that specificity has been recognised by courts to “lend credence” to that intelligence when it is relied upon by an officer as part of his or her claimed reasonable grounds for detention or arrest: see, for example, R. v. Jir, 2010 BCCA 497 (CanLII), [2010] B.C.J. No. 2171 (C.A.) at para. 31.

[43]        This specific ground for detention and arrest is, indeed, particularly important in the case at bar—in part because of its specificity and in part because the content of the informant “tip” ties into other key observations Cst. Todd made that are consistent with the presence of a hole in the Brown Honda’s driver’s side floor as a place for concealment of contraband drugs. 

[44]        Mr. Naidu attacks the “tip” information that was relied upon by Cst. Todd with great vigour and from several angles.

[45]        First, he questions the reasonableness of Cst. Todd’s reliance upon the “tip” information on the basis that he (Cst. Todd) had little to work with to assess the reliability of the informant or the information he had imparted to Cst. Parsons.

[46]        It is true that what Cst. Todd knew about the reliability of Cst. Parsons’ informant was not detailed.  As his notes expressed it, the police informant was one of “known reliability”—something Cst. Todd came to know because that was how Cst. Parsons had characterised the informant given that, as Cst. Parsons had also told him, the informant had supplied information that “had been used previously … in successful investigations”: Trans.. November 17, 2014, p. 37.

[47]        Here again, in my respectful view, when submitting that knowing this without more Cst. Todd did not know enough to place reasonable reliance upon the information originating from the tipster as a ground for detention and arrest, Mr. Naidu seeks to hold Cst. Todd to too high a standard.  Mr. Naidu submits at p. 6 of his counsel’s argument that:

[48]        As regards the adequacy of the note-taking concerning this point, my comments above regarding the law that governs officers’ note-taking generally apply, mutatis mutandis, here.  Here too I judge the note-taking, though cryptic, to have been adequate in the circumstances.  But beyond that, and more importantly, there is no requirement known to law to support the contention found in counsel’s argument that Cst. Todd could not reasonably rely upon the police informant intelligence gathered by Cst. Parsons and passed on without verifying it through his own independent inquiries.  Cst. Todd, like any peace officer, was entitled in this case to act on hearsay information obtained from a fellow officer where there is some evidence that the information is reliable or can reasonably be acted upon: R. v. Lal (1998), 1998 CanLII 4393 (BC CA), 130 C.C.C. (3d) 413 (B.C.C.A.); R. v. Nahorniak (2009), 2010 SKCA 68 (CanLII), 256 C.C.C. (3d) 147 (Sask. C.A.). 

[49]        Cst. Parsons’ advice to Cst. Todd that the informant had provided information used in previously successful investigations is “some evidence” of reliability for the purposes of those authorities and the present analysis.

[50]        But that is not all.

[51]        It must not be forgotten that, just as the informant had predicted, Mr. Naidu showed up at the CC Mall—a drug-dealing “hot spot” in Cst. Todd’s experience—in the Brown Honda.  And, consistent with the informant’s tip about a hole having been made in the Brown Honda’s floor for concealment of drugs in the event of an encounter with police, Mr. Naidu was seen by Cst. Todd to be doing something with his hands down in the foot-well of the Brown Honda just as he (Cst. Todd) approached him intending to detain him for investigation.  Knowing about a hole in the Brown Honda’s floor, Cst. Todd would be expected to be particularly watchful for any behaviour on Mr. Naidu’s part that might confirm its presence.  Mr. Naidu, by his conduct, supplied exactly that confirmation.  In my judgment, the equation between the detailed content of the police informant’s tip and what actually transpired in this latter regard as observed by Cst. Todd, made the informant’s prediction of what unfolded in the CC Mall parking lot on February 22, 2013 truly “compelling” as that word is used in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140.

[52]        Cst. Todd’s observation of Mr. Naidu leaning over and doing something with his hands down in the foot-well below him was, quintessentially, a touchstone observation.  It was the observation that the officer said was definitive in elevating his grounds from a mere suspicion to a belief that Mr. Naidu was engaged in some form of drug offence: Trans., November 17, 2014, p. 66.  And it was an observation that was wholly foreseeable, given what the informant had imparted about a hole in the driver’s side floor of the Brown Honda that Mr. Naidu had previously used to conceal drugs from investigating police.

[53]        I do not doubt that in some other cases, decided on different facts, officers in Cst. Todd’s position had more, fresher and better-corroborated information to work with than did Cst. Todd here.  And I do not disagree with Mr. Naidu that in some other cases in which informant tips have been subjected to the three-part Debot assessment, the information imparted by the tipster was of more recent vintage and supported by more fully articulated corroboration through police investigation than exists here.  But in the case at bar the tip regarding Mr. Naidu, where he was likely to be found, the car he was likely to be driving and the special and distinctive feature that that car would display—all of which elements were borne out by Cst. Todd’s own observations—was particularly compelling and it came, to Cst. Todd’s knowledge, from a source he had been told was one of “known reliability”. 

[54]        A Debot assessment is necessarily a somewhat elastic one.  While on some Debot criteria what the officer here had to work with was weaker (freshness, for example), on others it was particularly strong.  Viewed in its entirety and on the authority of cases including R. v. Ranneris, [1994] B.C.J. No. 3077 (S.C.); R. v. Parchment, 2005 BCSC 1871 (CanLII), [2005] B.C.J. No. 3031 (S.C.), aff’d 2007 BCCA 326 (CanLII), [2007] B.C.J. No. 1281 (C.A.); R. v. Bjornson, [2009] B.C.J. No. 2615 (S.C.) and R. v. Jir, supra); the information obtained by Cst. Parsons from the tipster and relayed to Cst. Todd in the case at bar withstands scrutiny as a reasonable element in the array of information and observations cited by Cst. Todd to support his decisions to detain and then arrest Mr. Naidu.  As Lamer J. noted in Debot:

[55]        Mr. Naidu’s startled reaction when, on Cst. Todd’s testimony, he first saw the officer, in uniform, sitting in the CC Mall parking lot in his unmarked police car on February 22, 2013, and then scurried into the CC Mall at a swift pace, occupied a place of lesser prominence than some of the other factors cited by Cst. Todd in support of his decision to detain and then arrest Mr. Naidu.  Mr. Naidu rightly argues that overmuch significance ought not to be attributed to this behaviour.  He also argues that other innocent explanations can be conceived of that would explain it.  However, that latter point can almost always be made about the individual elements in any aggregation of observations and information that the law requires be assessed together.  While accepting that the analysis does require recourse to the totality of the circumstances, I note that the other innocent explanations mentioned during defence submissions here, if entertained, would require the court to engage in speculation—about what Mr. Naidu could or could not see given the lighting conditions and the angle of police vehicle headlights, for example.  The “double-take” observation was made by Cst. Todd as part of a constellation of observations which, I repeat, must be assessed together in order to determine whether, in the aggregate, they gave him reasonable grounds to detain and arrest Mr. Naidu: see Parchment and, in particular, para. 55 of the trial decision.

[56]        As I have already noted, to its credit the Crown does not place much emphasis upon Cst. Todd’s recognition-based “double-take” testimony as one of his grounds for detaining and then arresting Mr. Todd.  Crown counsel submits simply that this is a reaction which might reasonably be expected from an individual who is engaged in illicit drug-related activity and happens upon a police officer with whom he has had previous dealings in connection with illicit drug-related investigations.  To that extent, I agree with Crown counsel that this element does properly belong in the collection of information and observations that, together, have been held up for the court’s scrutiny so that the court might assess whether Cst. Todd’s grounds for arresting Mr. Naidu meet the required standard.

[57]        During his examination-in-chief, Cst. Todd referred to an observation he made of Mr. Naidu before he (Cst. Todd) had alighted from his police vehicle after pulling up in front of the Brown Honda.  He described the actions or movements he saw this way:

[58]          After getting out of his police vehicle and approaching the driver’s side door of the Brown Honda, Cst. Todd made this further observation:

[59]        When taken to his notes during the course of cross-examination, Cst. Todd acknowledged that this latter observation, as recorded there, contained slightly more detail than the above-quoted testimony (and, indeed, slightly more detail than is found in the RTCC)—namely, that Mr. Naidu appeared to be placing a small black object under the floor mat in the driver’s side foot-well of the Brown Honda: Trans., November 17, 2014, at pp. 87-88.  (I pause to recognise that the officer’s notes do not, however, situate the placement of that object under the floor mat at the middle of the foot-well area.)

[60]        It was this touchstone observation, Cst. Todd said, which carried matters cumulatively over the threshold that divides reasonable suspicion from reasonable grounds and led him to believe that Mr. Naidu was, then, not merely detainable but arrestable.

[61]        Mr. Naidu attacks this important ground for arrest, again forcefully and from a number of angles.

[62]        Part of the attack raises what counsel for Mr. Naidu submits is the inherent implausibility of Cst. Todd’s account.  For example, he argues that it is improbable that the pulling up of the unmarked police car, lights flashing, nose to nose, with the Brown Honda would not have caught Mr. Naidu’s attention and caused him to look up well before Cst. Todd arrived on foot at the driver’s side door.  Note however that Cst. Wiley, one of the backup officers assisting with the investigation could not recall whether Cst. Todd’s emergency lights had, in fact, been activated at that time: Trans., December 17, 2014, p. 12.  (His fellow backup officer. Cst. Sharma, thought he did recall that: Trans., December 17, 2014, pp. 30-32.)

[63]         Without unequivocal evidence about whether the emergency lights had been switched on, their relative positioning relative to the windshield of the Brown Honda, the actual lighting conditions then generally prevailing, and so forth, for me to conclude that a man hunched over and reaching down into the foot-well of the Brown Honda would have to have seen Cst. Todd before the officer says he did would involve speculation on my part, not the drawing of an irresistible inference from the evidence.

[64]        I would make the same comment with regard to what Cst. Todd testified he saw upon arriving at the driver’s side of the Brown Honda.  It must not be forgotten that the observation that the officer made and related in both his notes and his testimony was, at bottom, a gross (that is, unrefined and broad) one.  It contained little detail and was made under observational conditions that all agree were less than ideal.  In these circumstances, for me to conduct a highly detailed analysis of what the officer recalled, if anything, about the precise location of the hole in the foot-well of the Brown Honda before he carried out his search of the vehicle incidental to his arrest of Mr. Naidu would not, in my opinion, advance matters meaningfully beyond what can be taken from the established fact that Mr. Naidu was seen to be hunched over and doing something with his hands in the driver’s side foot-well of a vehicle which the officer had been told had a hole in it for the purpose of concealing drugs.

[65]        Importantly, the key observation that immediately preceded the arrest did not, contrary to what Mr. Naidu submitted at page 10 of his counsel’s submission, include any reference to particulars such as “see[ing] two hands manipulating a mat and hook and stuffing a 1 x 1.5 inch bag into a dark hole with presumably one of those hands” or “putting a small black package into a small black hole under a floor mat in the dark”.  Rather, the observation was limited to Cst. Todd having seen Mr. Naidu hunched over, placing something down in the driver’s foot-well area—perhaps in the middle of that area—and nothing more. 

[66]        In sum, Cst. Todd’s testimony regarding his touchstone observation did not go further as to detail than do the officer’s testimony and notes quoted and described in the foregoing paragraphs.  Accordingly, I do not find merit in the submission that Cst. Todd claimed to see things well beyond what, in the circumstances, anyone could credibly be believed to have seen.  In this respect the case at bar differs from R. v. Chong, [2013] 284 C.R.R. (2d) 31 (Prov. Ct.) where the officer conducting the investigation at issue (Cst. Parsons, as it happens) made non-credible claims to have made highly detailed observations in circumstances that rendered those claims highly suspect: see, especially, paras. 39-44.

[67]        Mr. Naidu also argues that I should turn a sceptical eye on Cst. Todd’s testimony that he saw him (Mr. Naidu) hunched over and then reaching down into the driver’s side foot-well of the Brown Honda because neither of the backup officers—Cst. Wiley and Cst. Sharma—reported having made that same observation.  He argues that Cst. Todd was engaged in an inherently risky manoeuvre—the detention and possible arrest of a suspected drug trafficker—and that the backup officers would have been particularly watchful for activities that might signal that Cst. Todd was potentially in danger.  For all they knew, counsel argues, if he really was seen by Cst. Todd to be leaning over and reaching down toward the floor of the Brown Honda, Mr. Naidu could have been reaching down for a firearm.

[68]        This line of attack carries greater apparent strength than some of the others pursued by Mr. Naidu.  However, the evidence as a whole doesn’t support the suggestion that either Cst. Todd or his backup team viewed the investigation conducted at the CC Mall on February 22, 2013 as being a high-risk investigation.  Indeed, it was Cst. Wiley’s evidence that Cst. Todd had told them that it was a “relatively low risk investigation”: Trans., December 17, 2014, p. 7.  The approach taken did not, for example, have all three officers approach Mr. Naidu together to assure them mutual protection.  Rather, the other officers were left to observe, in the dark, from a distance, without binoculars or other optical assists while Cst. Todd proceeded to approach Mr. Naidu alone.  Cst. Wiley’s best estimate of that distance was 100 feet whereas Cst. Sharma’s was 25-30 feet: Trans., December 17, 2014, pp. 4 and 22-23.  In Cst. Wiley’s words under cross-examination, from where the backup officers were located “… [they] weren't really in a position to actually see the driver of the vehicle and what his hands were doing”: Trans., December 17, 2014, p. 11.  Cst. Sharma’s evidence shows that, as between them, his vantage point was inferior to Cst. Wiley’s: Trans., December 17, 2014, pp. 24-25.

[69]        That being the case, and there being no suggestion that either Cst. Wiley or Cst. Sharma were aware of the informant’s advice that the target vehicle had a hole in its driver’s side foot-well for concealing drugs, there is less reason to expect them to be astute to the possibility that Mr. Naidu might lean or reach down than one would expect Cst. Todd to be.  Accordingly, I do not find the fact that neither of the backup officers involved in the subject “relatively low-risk investigation” made the same observations that Cs. Todd did of Mr. Naidu leaning over and then reaching down into the foot-well to be particularly surprising. 

[70]        Similarly, I do not find that the absence of corroborating observations, in these circumstances, undermines my confidence in Cst. Todd’s claimed recollection of what he considered to be the most important observations he made of Mr. Naidu.  Mr. Naidu was at pains, through counsel, to stress that he does not contend that Cst. Todd set out intentionally to mislead or deceive the court in this connection; rather, he argues that Cst. Todd, being a human with human fallibilities, may have misremembered the touchstone observation he reported about seeing Mr. Naidu leaning over and reaching downward as he (Cst. Todd) approached the Brown Honda.  However, as I have already explained, I accept that Cst. Todd was highly sensitised to, and vigilant for, the very kind of behaviour that Mr. Naidu actually displayed, given what he knew about the hole in the driver’s side foot-well of the Brown Honda.  Witnessing that behaviour, for him, clinched matters and propelled him over the threshold of reasonable suspicion and into the realm of reasonable grounds—hardly, one would have thought, an observation that he would be likely to misremember.  Thus, despite the able arguments to the contrary made on Mr. Naidu’s behalf, I view the officer’s testimony about that crucial, touchstone observation to be reliable.

[71]        The further arguments Mr. Naidu makes at pages 12-13 of his counsel’s submissions suggesting that I should question the reliability of Cst. Todd’s testimony generally—based, inter alia, on other areas in which it is contended that the officer’s notes are deficient, and different perspectives of the unfolding events as between Cst. Todd and the members of his backup team—do not in my view call for specific comment here, in part because I have dealt with most such arguments in a general way earlier in these reasons.

[72]        The law is well settled that for a police officer’s arrest of a person, without warrant, to be a lawful arrest which complies not only with the requirements of s. 495(1)(a) of the Criminal Code but s. 9 of the Charter, the officer must subjectively believe, and have objectively reasonable grounds to believe, that the person of interest has committed or is committing an offence: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241.  (See also, Jir at paras. 24 and 27-29 and the authorities cited therein.)

[73]        Moreover, the objective grounds cited by a police officer must be "measured from the standpoint of the officer with his skills and knowledge rather than from the standpoint of the average citizen": R. v. To, [1998] B.C.J. No. 1323 (C.A.) at para. 11. The arresting officer is also under a duty to assess the totality of the observations he or she makes, in the aggregate and not in isolation.  In R. v. Huddle, [1989] A.J. No. 1961 (C.A.), the court held per curiam that the trial judge "... erred in law in assessing the various indicia on which the police officer relied in isolation and in rejecting each on the grounds of consistency with other explanations" (at p. 2, Quicklaw pagination) and then went on to state:

[74]        In my respectful view, this reasoning—though taken from a case involving a consideration of an officer’s grounds for making a breath demand in the course of an impaired driving investigation—is generic in nature and has equal application to any prosecution where an officer’s proffered grounds for making a warrantless arrest are called into question.

[75]        In coming to his or her conclusions regarding grounds for arrest, an arresting officer must further give consideration to any reliable exculpatory evidence of which he or she is aware at the time the observations are made: Chartier v. Attorney General of Quebec, 1979 CanLII 17 (SCC), [1979] 2 S.C.R. 474; R. v. Todd, 2007 BCCA 176.

[76]        So, bearing all of that law in mind, I ask myself this question: Would an hypothetical police officer with Cst. Todd’s experience, standing in the shoes of Cst. Todd in the case at bar and knowing and observing what Cst. Todd did on February 22, 2013 (taking into account, as well, all of the relevant information available to him, including relevant contrary information) have reasonably believed that he or she had proper grounds to arrest Mr. Naidu for a drug offence?  In my judgment, the answer to that question must be “yes”.

[77]        I have, earlier in these reasons, assessed the various bases for criticism of Cst. Todd’s stated grounds that have been advanced, ground by ground, by Mr. Naidu.  To be sure, in his criticisms Mr. Naidu has identified some areas of weakness.  As happens in every case, the Crown has not been able here to lead evidence in support of the impugned police conduct that is perfect in every particular.  But the evidence the Crown has led does, in my view, nevertheless suffice to meet the required standard as it is reflected in the governing case law.  To the extent that there may be a lingering shadow cast by Cst. Todd’s mistaken reference to the man he was investigating on February 22, 2013 having a “conviction” for previous drug offence, I would put that mistaken reference into the same category as the mistaken reference by the arresting officer to the accused in Crowther having worn a blood-stained sock at the time of his arrest.  The officer there cited the blood-stained sock as a ground for arrest, although the evidence as a whole confirmed that that observation was made later and after he had made his arrest of the accused.  In this regard Bennett J.A. (for the court) stated, at para. 33 of Crowther, that:

[78]        For the reasons I have given and upon the authorities I have cited, the individual elements in the officer’s stated grounds withstand close scrutiny.  When viewed in the aggregate and in their proper context (as authorities such as Huddle and Chartier say they must be), they were sufficient in my judgment to achieve the critical mass necessary to trigger the jurisdiction to arrest without warrant that is conferred by s. 495(1)(a) of the Criminal Code and consistent with the requirements of s. 9 of the Charter. 

[79]        To recap, on the evening of February 22, 2013, Cst. Todd was carrying out drug patrols in and around the CC Mall, an area known to him to be a “hot spot” for drug activity in the Coquitlam area.  While doing so he spotted Mr. Naidu making his way on foot from a brown Honda Accord bearing license plate number 117-XLF in the parking lot into the mall.  When Mr. Naidu saw him, in uniform and sitting in his unmarked police vehicle, he recognised the officer, reacted in a startled way and then scurried hurriedly into the interior of the CC Mall.  The recognition was mutual.  Cst. Todd knew Mr. Naidu from dealings they had had with one another during previous drug investigations and he associated him with illicit drug dealing.  Cst. Todd also knew, as a result of police intelligence gained from a reliable informant shared with him by a fellow officer, Cst. Parsons, that Mr. Naidu was said to be making use of a brown Honda Accord bearing license plate number 117-XLF in the course of his drug dealing and that, in fact, that vehicle has been modified to create a hole in the driver’s side floor to conceal drugs in the event of police involvement.  Cst. Todd could see that it was that very Honda Accord that Mr. Naidu had exited before passing by him, doing a “double take” and then entering hurriedly into the interior of the CC Mall.  Accordingly, his suspicions raised, Cst. Todd summoned a backup team of two officers in another unmarked police car to set up surveillance while he retreated in his own unmarked police vehicle to a discreet distance.  Sometime later, when his backup team informed him that Mr. Naidu was returning to the Brown Honda, Cst. Todd quickly approached and boxed that vehicle in.  He then observed Mr. Naidu leaning over in the driver’s seat of the Brown Honda, looking down at the floor beneath him.  As he got out and approached the driver’s side of the Brown Honda on foot, Cst. Todd saw Mr. Naidu placing something in the floor area in front of the driver’s seat.  These latter observations were eminently foreseeable and highly salient to the investigation, given what Cst. Todd knew about modifications to the Brown Honda’s floor which had been made to create a location where contraband drugs could be concealed.

[80]        Looking at these facts in the aggregate and in their proper context, I cannot see any basis upon which Cst. Todd’s claim that he subjectively believed he had grounds to arrest Mr. Naidu for a drug offence can be challenged as being disingenuous or untruthful.  But, more importantly, what the evidence establishes Cst. Todd knew and saw—set within the context of the circumstances that obtained at the time—gave him, cumulatively, in my respectful view, ample objective support for his subjective belief that Mr. Naidu was arrestable.

[81]        For all of those reasons I find that both the brief detention and then the arrest of Mr. Naidu effected by Cst. Todd during the drug investigation carried out at the CC Mall on February 22, 2013, were wholly lawful under s. 495(1)(a) of the Criminal Code and also compliant with the requirements of s. 9 of the Charter.

[82]        The ensuing search by police of Mr. Naidu’s person and the Brown Honda, carried out incidental to his arrest, is attacked on the ground that the unlawfulness of the arrest taints the search, thereby putting that search offside the reasonableness requirements of s. 8 of the Charter.  As I have said, I cannot accept that the arrest of Mr. Naidu that entitled Cst. Todd to carry out the search of his person and vehicle contravened either the requirements of s. 495(1)(a) of the Criminal Code or s. 9 of the Charter.  Mr. Naidu’s attack upon the search of his person and vehicle, to the extent that it hinges on a characterisation of the grounds for his arrest being insufficient, therefore fails.

[83]        For the reasons given above, the arrest of Mr. Naidu in the course of the drug investigation that was carried out by Cst. Todd at the CC Mall on February 22, 2013 did not infringe Mr. Naidu’s rights under s. 9 of the Charter.  Neither did it fail to comply with the requirements of s. 495(1)(a) of the Criminal Code.  It follows that, subject to any other arguments that may be forthcoming citing other bases for objection, Mr. Naidu’s objection to the admissibility of evidence seized during the search of his person and the Brown Honda citing an unlawful arrest lacks merit and, hence, entitles him to no constitutional remedy.

[84]        For all of the foregoing reasons, Mr. Naidu’s application to exclude evidence seized from his person and vehicle, based on an alleged breach of his rights under ss. 8 and 9 of the Charter, is dismissed.

[85]        Order accordingly.