IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Melnick and Mr. Susee-Holmes are charged jointly with nine offences by indictment. The charges primarily relate to the possession of firearms and proceeds of crime. Mr. Melnick is also charged with possessing an identity document that relates or purports to relate to another person.

[2]           Both Mr. Melnick and Mr. Susee-Holmes make applications to exclude the evidence obtained through the investigation pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms. The applications are brought pursuant to claims of breaches of ss. 7, 8, 9 and 10 of the Charter.

[3]           Most of the evidence led on the voir dire applies to these claims of breaches of the Charter in a continuous and culminating flow.

[4]           Constable Eric Thompson has been a member of the RCMP since January, 2007. He has been in traffic services in the Clearwater area since at least 2009. In addition, he has worked with RCMP dogs including his latest, Dale, who was with him on the night in question. Dale was not deployed on this evening.

[5]           Constable Thompson was part of a roving traffic unit, meaning that he was a provincial resource who could be sent anywhere with the dog. His work involves traffic enforcement and safety, which includes looking for impaired drivers. That is his main purpose. He was so employed on the evening of December 3, 2014.

[6]           Constable Thompson parked his vehicle near a mailbox pull out in the Vinsula-Heffley Creek area. At approximately 10:00 p.m., he observed a vehicle driving slower than normal, at approximately 85 km/hour. This was abnormal because the speed limit is 100 km/hour in this area.

[7]           Constable Thompson could see that it was a dark sport utility vehicle, but could not identify the make of the vehicle. He began to follow the vehicle to determine if he was observing a possible impaired driver. He did not use his lights or sirens for the purposes of following the vehicle.

[8]           As he followed the vehicle, Constable Thompson observed a number of indicia that suggested to him that he might indeed be following an impaired driver. These indicia included the vehicle’s fluctuating speed, constant braking, and difficulty maintaining its lane. The vehicle would drift over the fog line and, on occasion, Constable Thompson could hear it cross the rumble strip. Constable Thompson, at one point, began to video record the vehicle while he followed it. Over the recording time, the vehicle can be seen to drive just below 80 km/hour and as high as 95 km/hour with some weaving within the lane and occasionally crossing the fog line. Eventually, Constable Thompson pulled over the vehicle.

[9]           Upon pulling the vehicle over and before exiting, Constable Thompson contacted the dispatch through the radio to inform them that he was involved in a traffic stop. He conducted queries on the Alberta licence plate, PRIME and CPIC. The plate query revealed that Jonathan Wayne Melnick was the owner of the vehicle and that his Alberta licence was inactive.

[10]        Upon receiving and reviewing this information, Constable Thompson exited his vehicle. As he approached the vehicle with Messrs. Melnick and Susee-Holmes, he noted that the driver had both hands out of the driver window and appeared to be holding a card. According to his usual practice, Constable Thompson approached the vehicle on the passenger side. He did so because this is a safer approach and also because the driver’s behaviour of sticking his hands out the window struck him as odd.

[11]        The passenger window was rolled up so Constable Thompson knocked on it. The driver only rolled that window down half way. Constable Thompson saw a radar detector mounted to the windshield, an air freshener tree hanging from the rear view mirror, two cell phones in the cup holder, and the front passenger seat seatbelt clipped up with no occupant. Constable Thompson noticed there was a second male in the second row seating. He also observed that there was third row seating. Constable Thompson would subsequently learn that there is also a trunk behind the third row seating but he could not observe it at that time.

[12]        Mr. Melnick told Constable Thompson he did not want to make a sudden movement and wanted to take his seatbelt off. Constable Thompson found that statement odd. Mr. Melnick took off his seatbelt and handed Constable Thompson his driver’s licence and vehicle registration.

[13]        Constable Thompson asked Mr. Melnick if he had anything to drink that night to which Mr. Melnick said no. He also explained to Constable Thompson that he did not have an insurance card but that his insurance was active.

[14]        Constable Thompson asked Mr. Melnick if he knew how fast he was going to which Mr. Melnick said 80 to 90 km/hour. Constable Thompson asked him if he was falling asleep because he was driving that slowly. Mr. Melnick said he was following his GPS, which stated the speed limit.

[15]        At this point, Constable Thompson noted that Mr. Susee-Holmes was fidgeting with his waistband. It appeared to him that Mr. Susee-Holmes had been attempting to sleep or was sleeping at that point. Constable Thompson asked Mr. Melnick to roll the window down so he could observe better. Constable Thompson’s impression was that Mr. Susee-Holmes might be trying to put on his seatbelt because he had not been wearing it while sleeping. However, once the window was down, he could see that Mr. Susee-Holmes’ seatbelt was on. He also observed that Mr. Susee-Holmes’ face was covered in what looked to him like meth sores.

[16]        During this observation, Mr. Melnick produced a British Columbia driver’s licence. Mr. Melnick admitted he needed to change his address. Constable Thompson asked Mr. Melnick where he was travelling, to which Mr. Melnick said he was helping a female move. Because the radio was making noise in his ear at that moment, Constable Thompson could not recall if Mr. Melnick said he was helping a girlfriend or a sister move but he was moving a female person to Kelowna.

[17]        With this information, Constable Thompson returned to the police vehicle. As he passed the back of the vehicle he had pulled over, he observed there did not appear to be any luggage in the car.

[18]        The query he conducted of Mr. Melnick’s licence revealed that he had a valid licence that would expire on December 19, 2017. He also reviewed Mr. Melnick’s criminal record at that time, which dated back to 1994 and contained a number of entries including convictions related to firearms and trafficking.

[19]        The CPIC information revealed that Mr. Melnick was prohibited from possessing weapons. He also had convictions for possession for the purposes of trafficking and was identified as a surveillance person by the police in Edmonton. The “recent comment” input to the CPIC was that Mr. Melnick was part of an ongoing drug investigation.

[20]        Based upon the information he had received back from PRIME and other queries, Constable Thompson believed he had a reasonable suspicion that the applicants were in possession of a controlled substance. He was also concerned that there was the possibility of firearms in the vehicle.

[21]        Among the constellation of indicia that created this suspicion, apart from the queries, was the presence of two cell phones placed in the same cup holder. It is Constable Thompson’s experience that drug traffickers use multiple cell phones. Although there were two individuals in the vehicle, both cell phones were in the same cup holder. It was his experience that people travelling together would not keep their cell phones together in that fashion or, as with Mr. Susee-Holmes, beyond arms’ reach. Based on these observations, Constable Thompson believed both cell phones belonged to Mr. Melnick.

[22]        In conjunction with the presence of the air freshener and the radar detector, the indicia were falling in line with his observations of travelling criminals. When compounded with Mr. Melnick’s behaviour of putting both his hands out an open driver’s window, rolling the passenger window down only half way, and making the comments that he did not want to make a sudden move, along with Mr. Susee-Holmes’ meth sores and his fidgeting around his waist, Constable Thompson determined he had the requisite reasonable suspicion to detain the applicants on suspicion of drug offences.

[23]        Constable Thompson approached the driver’s side of the vehicle and asked Mr. Melnick to step out. He informed Mr. Melnick that he was detaining Mr. Melnick for possession of drugs and told him to put both of his hands behind his back. He then handcuffed Mr. Melnick, which Constable Thompson said was for officer safety. The officer safety concerns were identified: he was alone in the middle of the night out in a rural area on the side of the highway, in the company of an individual with a history of firearms and drugs, with a second male inside the vehicle whom Constable Thompson believed was using drugs.

[24]        Mr. Melnick was handcuffed at the side of the vehicle so that Constable Thompson could continue to observe Mr. Susee-Holmes for those officer safety reasons. Then Constable Thompson took Mr. Melnick to the police vehicle and lodged him in the back seat. Mr. Melnick wanted further explanation and Constable Thompson said he would get back to him. Constable Thompson was concerned about Mr. Susee-Holmes and wanted to deal with him as safely and quickly as possible.

[25]        Once Mr. Melnick was secured in the back of the police vehicle, Constable Thompson returned to the rear passenger door of the applicants’ vehicle. He opened the door and asked Mr. Susee-Holmes to come out. Mr. Susee-Holmes took a bite of his sandwich and put a cigarette in his mouth before exiting the vehicle. Constable Thompson handcuffed Mr. Susee-Holmes and detained him for suspected possession of drugs. Constable Thompson advised Mr. Susee-Holmes of his rights, advising him he may call any lawyer he wished and also advising him that there was a 24-hour legal aid service. Mr. Susee-Holmes indicated he understood all of this. Constable Thompson then asked Mr. Susee-Holmes if he wanted to call a lawyer or Legal Aid, to which Mr. Susee-Holmes said he wanted to call Legal Aid.

[26]        Constable Thompson conducted a pat-down search of Mr. Susee-Holmes for officer safety. He felt a lump in Mr. Susee-Holmes’ pants, which turned out to be his wallet. Constable Thompson also located a Tylenol pill bottle. Constable Thompson did not open the bottle until later when he was at the detachment. He did seize the bottle at this point, again for safety reasons he articulated. Constable Thompson then lodged Mr. Susee-Holmes in the back of the police vehicle.

[27]        Constable Thompson returned to the applicants’ vehicle to shut the driver’s door, which was still wide open. He returned to the passenger side of the police vehicle and asked Mr. Melnick to step out. He provided Mr. Melnick at this point with his Charter rights and police warning, and did a pat-down search.

[28]        Mr. Melnick told Constable Thompson that he had a marijuana joint in the vehicle, which he was willing to get for him. Constable Thompson asked Mr. Melnick if he had a Health Canada card. Mr. Melnick said he did but he did not have it on him. Based on this, Constable Thompson believed he had reasonable and probable grounds to believe that Mr. Melnick was in possession of a controlled substance. He arrested Mr. Melnick for possession of marijuana. After telling him he was under arrest for possession of marijuana, Mr. Melnick said he understood. Constable Thompson gave him the police warning and advised him of his right to counsel. Mr. Melnick also said he understood this. Mr. Melnick said he had a lawyer he wanted to call. He advised Constable Thompson that he wanted Ken Westlake and then changed his selection to a lawyer in Cranbrook whose name he could not recall.

[29]        At this point, Constable Thompson conducted the pat-down search of Mr. Melnick for officer safety reasons and then placed him back in the police vehicle.

[30]        What ensued was an attempt to contact counsel for both applicants. Constable Thompson used the internet access from his terminal to google the Cranbrook criminal lawyers. He went through the list with Mr. Melnick, who did not recognize any of the names. This process commenced at 10:26 p.m. Mr. Melnick suggested the Cranbrook RCMP might know the name of the lawyer Mr. Melnick dealt with. Constable Thompson did eventually reach someone at the Cranbrook RCMP detachment who provided the name of Rick Strahl. Mr. Melnick recognized the name as soon as Constable Thompson said it.

[31]        Constable Thompson also asked Mr. Susee-Holmes if he wanted to talk to the same lawyer. Mr. Susee-Holmes responded “I guess”. Mr. Susee-Holmes and Mr. Melnick had a conversation and decided to speak to just one legal counsel. Constable Thompson then asked the applicants if they wanted to speak to the lawyer individually or together and they decided to speak to the lawyer together.

[32]        Constable Thompson made an attempt to contact Mr. Strahl but had to leave a message. Mr. Strahl’s number would not accept blocked calls which Constable Thompson’s number was. He tried to unblock his cell number but was unsuccessful after eight attempts. He asked dispatch to contact Mr. Strahl. He then spent approximately an hour calling different lawyers encountering different challenges. Constable Thompson provided the applicants with a list of Kamloops lawyers. While the applicants were reviewing the list, dispatch provided Constable Thompson with Mr. Strahl’s cell phone number. Constable Thompson left a message on that cell phone. He told the applicants that he had left the message. Constable Thompson again offered Legal Aid or any other lawyer they wanted. Mr. Melnick said he wanted to speak with Mr. Westlake. Constable Thompson telephoned Mr. Westlake but had to leave a message.

[33]        Thereafter, Mr. Melnick and Mr. Susee-Holmes began picking names off the list Constable Thompson had provided them. Constable Thompson began calling those lawyers. On each occasion that he telephoned a different lawyer, he got a voice message and left a message.

[34]        At 11:05 p.m. without any success, Constable Thompson called Kamloops City Detachment to obtain cell phone numbers for local lawyers. They continued down the list using cell phone numbers.

[35]        After leaving several messages and having no success, Mr. Melnick offered the name of a lawyer in Alberta. Constable Thompson also called that lawyer but it turned out that the lawyer had become a judge.

[36]        Finally, at 11:26 p.m., the men asked to call Legal Aid. The line was busy and Constable Thompson was unable to leave a message.

[37]        Constable Thompson decided at this point to move his investigation forward. He began to search the vehicle incidental to arrest to look for evidence of the offence for which he had arrested Mr. Melnick. During the course of this vehicle search, he noticed a walkie-talkie on the driver’s floor. This was a matter of concern for Constable Thompson because, based on his experience and training, when a travelling criminal has a walkie-talkie there may be a second vehicle travelling with it. Constable Thompson also located an orange bag containing gloves, winter gear and a police scanning system.

[38]        Constable Thompson decided at this point to call for back up. He informed dispatch that he wanted a second member to attend the scene.

[39]        Constable Thompson then continued his search. He located a plastic bag under the third row seating of the vehicle. Inside that bag was a vacuum-sealed bag. Inside the vacuum-sealed bag, he found currency bundled with an elastic, in a 10 x 10 inch brick. There was also a gun magazine vacuum-sealed inside that package. Based on this evidence, Constable Thompson formed the opinion that the magazine and cash were proceeds of crime. He felt that the jeopardy to Mr. Melnick and Mr. Susee-Holmes had changed. He returned to the vehicle to arrest the applicants for possession of property obtained by crime. Up to this point, Mr. Susee-Holmes was still under investigative detention. Only Mr. Melnick had been arrested on any charges.

[40]        Having informed the applicants that they were now under arrest for possession of property obtained by crime, he provided their Charter rights and police warning again. He provided this information to the applicants together. They both indicated they understood at each stage. This arrest occurred at 11:34 p.m.

[41]        In response to the request if they wanted to speak to counsel, the applicants indicated that they wanted to speak to a lawyer. Constable Thompson tried to call Legal Aid again. It was still busy. At 11:41 p.m., he asked dispatch if they had another number for after-hours Legal Aid but the number was the same. He called again but the Legal Aid number was still busy. He advised the applicants that he called Legal Aid and that they were just going to have to wait.

[42]        At this point, Constable Eaket arrived. Together, Constables Eaket and Thompson jump-started the other vehicle as its battery had died. They did this so that they could unlock the door to the hatch area. Then they began the search of the vehicle and photographing of the contents. In the back area, they located another duffle bag. They searched the bag, which contained clothing and a pistol. The pistol was unloaded. It was a CO2 pistol.

[43]        They also searched a green and grey backpack found in the vehicle. It contained jewellery, drug paraphernalia and men’s clothing. In another black bag, there was a garbage bag and a couple of shotguns. The shotguns appeared to be modified to have pistol grips. There was also a semi-automatic rifle.

[44]        Constable Thompson also located another bag which contained two more pistols. It was in the second row seating just below a blanket and pillow. The blanket and pillow were located next to where Mr. Susee-Holmes had been sitting. One of the pistols was loaded. There was also currency in the bag.

[45]        Also located during Constable Thompson’s search of the vehicle was a small book that contained business cards, driver’s licences and identification as well as firearms’ licences in the name of Adrian Michael Millington. The phones that had been in the centre console were also seized. There was another phone seized from between the seats, as well as an iPod. Mr. Melnick also had a cell phone on him.

[46]        Constable Thompson also located a knife on the second row floor and some pepper spray in the jacket in the hatch.

[47]        Constable Thompson returned again to his police vehicle and this time arrested Mr. Melnick and Mr. Susee-Holmes for possession of prohibited weapons. When he asked them if they understood, they became argumentative with him. They refused to answer his questions. He recalled that they were denying knowing about the guns. They became uncooperative when he read them their Charter rights and police warning. They refused to answer whether they understood or if they wanted to speak to counsel. This was at 12:06 a.m.

[48]        At 12:08 a.m., on December 4, Constable Thompson contacted Legal Aid and this time was able to get through. He advised the applicants that he believed he had counsel on the phone and provided the phone to them.  He again asked them whether they wanted to speak to Legal Aid together or separately and they decided to speak to Legal Aid together. He turned off the recording device and left them to speak with legal counsel in private.

[49]        The applicants spoke with the same lawyer between 12:10 and 12:24 a.m. At this time, the call lost connection. Constable Thompson learned this when he noticed the applicants were not speaking on the phone any longer and opened the door to ask them if they were satisfied with the advice they had received. They advised him that the call had dropped but they were not satisfied with the lawyer because he was from Saskatoon.

[50]        Constable Thompson first called back Legal Aid but received a busy signal. The applicants requested to find a local lawyer instead. They had contacted all of the lawyers that they could contact and had left messages with each one. They were just waiting for someone to call back.

[51]        As Constable Thompson returned to the vehicle to continue his search, he noticed a laser sight gun attachment next to his vehicle. It was in the grass alongside the highway near the rear passenger door. Upon finding this, Constable Thompson took Mr. Melnick out of the vehicle again to conduct another personal search. While the previous pat-down search had been incidental to arrest, this was part of the investigation with respect to possession of firearms, ammunition, drugs and currency.

[52]        He conducted another search of Mr. Susee-Holmes now incidental to his arrest also for possession of prohibited weapons, ammunition and currency. After searching both of the applicants, they were placed in Constable Eaket’s vehicle so that Constable Eaket could transport them back to the Kamloops city cells. Constable Eaket left at 12:34 a.m. Constable Thompson remained behind to wait for a tow truck.

[53]        The tow truck arrived about 12:48 a.m. and Constable Thompson departed the scene at 1:08 a.m., following the tow truck. The vehicle was taken to the Southeast District Office to its secure bay in Aberdeen. Following the securing of the vehicle in the bay and the exhibits in the exhibit locker, Constable Thompson proceeded to the city cells at the Kamloops Battle Street detachment.

[54]        In the meantime, Constable Eaket drove the applicants directly to the cell block with no stops in between. He had no discussions with either applicant during that transport. When he arrived, Constable Eaket parked the vehicle inside the secure bay. He took out Mr. Melnick first and booked him into the cell block at the booking counter.

[55]        During that process, Constable Eaket had some conversation with Mr. Melnick about lawyers that he wanted to speak to. Mr. Melnick had identified several different lawyers. Constable Eaket put the names and numbers in his notebook. He made a call to Mr. Strahl at 1:28 a.m. and transferred the phone to Mr. Melnick in the secure phone room at the detachment. Mr. Melnick was afforded privacy while he made that call. When he was finished with the call, Mr. Melnick was placed in the cell blocks.

[56]        Mr. Susee-Holmes was left in the police vehicle until Mr. Melnick was booked into cells. At 1:39 a.m., Constable Eaket brought Mr. Susee-Holmes into the same secure phone room. Mr. Susee-Holmes asked for an Edmonton lawyer. The number he was provided was a wrong number. Constable Eaket advised Mr. Susee-Holmes of this and was given names Mr. Susee-Holmes picked from the list of on-call lawyers posted outside the phone room. Constable Eaket called the two lawyers in the order requested by Mr. Susee-Holmes. There was no answer at either number. A message was left on both numbers. Constable Eaket advised Mr. Susee-Holmes of the outcome again. He asked Mr. Susee-Holmes if he wanted to wait for one of the lawyers to call back or pick more names. Mr. Susee-Holmes picked two more names. The first again had no answer. A message was not left. However, Constable Eaket had success calling Sheldon Tate, which call was placed at 2:01 a.m. Mr. Tate answered the phone and Constable Eaket transferred the call to the secure phone room for Mr. Susee-Holmes to have privacy. That phone call was concluded at 2:06 a.m. After placing Mr. Susee-Holmes in cells, he had no further contact with either applicant.

[57]        Constable Thompson placed a call to Health Canada at 2:43 a.m. to determine if Mr. Susee-Holmes or Mr. Melnick had a possession licence for marijuana. To be clear, no marijuana had been found in the vehicle. Constable Thompson checked with Constable Eaket to see if the applicants had spoken to counsel. Constable Thompson also prepared a search warrant for the vehicle because he believed he had found an aftermarket compartment when he noted what he thought was aftermarket wiring.

[58]        Preparations were also being made for a bail hearing for Mr. Melnick and Mr. Susee-Holmes. Constable Thompson prepared the bail package and sent it in to the Justice Centre at approximately 1:00 p.m. Constable Thompson had first contacted Crown Counsel in order to bring the applicants in front of a judge on that Monday morning. However, Crown informed him to do the bail hearing through Justice Centre. Justice Centre told Constable Thompson that they could not do the bail hearing because court was in session in Kamloops. Constable Thompson then tried to get the applicants in front of a judge in Kamloops through the Judicial Case Manager. Ultimately, Constable Thompson was told that he could not get the applicants in front of a judge that day in Kamloops and he would have to go through the Justice Centre.

[59]        Constable Thompson at this point decided to go home from his shift. Other officers attempted to contact counsel in his absence. Constable Thompson also said that the applicants declined duty counsel. He returned that evening at 8:07 p.m., and again sent the bail package to the Justice Centre for a bail hearing. Mr. Westlake requested in the meantime to be involved in that hearing.

[60]        After the bail hearing, Constable Thompson attempted to take statements from the applicants. The interview of Mr. Susee-Holmes was conducted at 10:40 p.m. The interview lasted just over 13 minutes.

[61]        The issue with respect to the timing of the bail hearing is the delay between 1:00 p.m. and 8:00 p.m. Neither applicant has any issue with the time leading up to 1:00 p.m.

[62]        Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[63]        The allegation of breach of s. 7 arises from a statement made by Mr. Susee-Holmes after his bail hearing, the question being one of voluntariness. The s. 7 argument was abandoned during the voir dire except to the extent that, if the statement was not voluntary, the facts and the breach would impact the overall consideration of exclusion of evidence under s. 24(2). I have ruled separately that the statement was voluntary.

[64]        The finding of voluntariness is determinative of the s. 7 issue. This was addressed in the decision of Madam Justice Donegan in R. v. A.D., 2017 BCSC 2065 (CanLII), 2017 B.C.S.C. 2065, specifically as follows:

[65]        I have been provided with about fifty cases to address the various issues on this voir dire but I do not propose to address each one. However, it is instructive to set out the summary of principles on section 8 and 9 considerations as encapsulated by Gorman P.C.J. in R. v. Martin, 2010 CanLii (Nfld. Prov. Court) at paragraph 49:

[66]        Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned.

[67]        Both applicants claim that their s. 9 rights were breached throughout their detention and arrest by Constable Thompson. They submit that Constable Thompson did not have a reasonable suspicion to detain them at roadside in the first instance, nor reasonable grounds to arrest them thereafter.

[68]        The applicants claim Constable Thompson had an ulterior purpose for stopping the vehicle related to his “operation pipeline” drug investigations. Even if Constable Thompson had reasonable suspicion to detain Mr. Melnick for a possible impaired driving investigation, the applicants claim there was no reasonable suspicion to justify any further detention for an investigation related to drug possession.

[69]        The applicants argued that following his conversation with the applicants, Constable Thompson no longer suspected that he had an impaired driving investigation and therefore the reason for the stop was over. However, Constable Thompson now felt he had a reasonable suspicion that drug or firearms offences were being committed.

[70]        The applicants rely on R. v. Afzali, 2016 BCPC 305 (CanLII), 2016 B.C.P.C. 305, where the court rejected Constable Thompson’s basis for his reasonable suspicion. In that case, Constable Thompson had stopped Mr. Afzali because he was travelling just below the speed limit. The court found that it was more than plausible that it was a prudent driver behind the steering wheel given that the roads were slippery and it was dark. Constable Thompson also observed odd behaviour of Mr. Afzali that was out of keeping with other drivers, including getting out of his vehicle during the stop. However, the court found that Mr. Afzali did this with permission. Finally, Constable Thompson found that Mr. Afzali’s  attire and his pacing, smoking behaviour, and eating were unusual for the situation. The court ultimately rejected the basis upon which Constable Thompson formed his reasonable suspicion and found that there was no legitimate road safety or Motor Vehicle Act concern that permitted Constable Thompson to stop Mr. Afzali.

[71]        Each case must be determined upon its own specific facts. The standard continues to be a robust one determined “on the totality of the circumstances, based on objectively discernible facts, and is subject to independent and rigorous judicial scrutiny” (R. v. Chehil, 2013 SCC 49 (CanLII), 2013 S.C.C. 49 at paragraph 3). This passage is particularly relevant because Constable Thompson repeatedly stated that there was no one factor that governed the formation of his suspicions or his reasonable and probable grounds, but it was the totality of those factors. The applicants argue that Constable Thompson’s evidence was rehearsed and I ought to reject it. However, I found that his evidence was consistent rather than rehearsed. He described a number of times what his objective thoughts were at each stage of the proceedings. He was unshaken on cross examination.

[72]        Mr. Gagnon argued that Constable Thompson’s purpose that evening was to harass drivers who were driving under the speed limit, presumably searching for travelling criminals. He points to numerous stops logged by Constable Thompson. I have no specifics of any of those stops. There is no evidence before the court with respect to what the other stops were about. Furthermore, stopping vehicles who are travelling under the speed limit and otherwise indicating suspicious patterns of driving is not harassment. It is the performance of expected police duties. In any event, I have no evidence whether those other vehicles were stopped for speed or for other reasons.

[73]        Mr. Balison referred to R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257, where entirely random stops were held to be justified under s. 1 of the Charter:

[74]        In this case, the stop was not random. The pattern of driving gave rise to suspicion for Constable Thompson that he may be witnessing an impaired driver. His suspicions were not abated while he followed the vehicle. The applicants believe that Constable Thompson was in fact conducting an operation pipeline investigation. Constable Thompson said that there was no such thing as an operation pipeline investigation. At the point that he pulled over the driver, in fact, he had no suspicion that he was observing travelling criminals. He did not even consider they were travelling criminals.

[75]        To paraphrase the various authorities on what constitutes a reasonable suspicion, it is something more than mere suspicion and something less than belief based on reasonable and probable grounds. As stated by the Supreme Court of Canada in R. v. Chehil, 2013 SCC 49 (CanLII), [2013] 3 S.C.R. 220, at paragraph 27:

[76]        Provided that Constable Thompson had a reasonable suspicion that Mr. Melnick was an impaired driver, the stop was not arbitrary and therefore not in breach of s. 9 of the Charter. Certainly the video provides support that his suspicion was objectively reasonable. I am satisfied that Constable Thompson had a reasonable basis for his suspicion that he was observing an impaired driver.

[77]        Having commenced that investigation, it was appropriate for him to pull over the vehicle, thereby detaining the driver for an impaired investigation and there was no breach of Mr. Melnick’s s. 9 Charter rights.

[78]        Constable Thompson’s investigation, though, was dynamic. When he queried the plates, he had reason to investigate the validity of the driver’s licencing, registration and insurance. The peculiar behaviours alerted Constable Thompson to further possible criminal behaviours. Constable Thompson’s suspicions were compounded when he received the results of queries of Mr. Melnick. His suspicions were objectively supported by the driving, the behaviours and the queries. I am satisfied that Constable Thompson had a reasonable suspicion to detain Mr. Melnick and Mr. Susee-Holmes for an appropriate investigation into drugs and firearms offences. I find that the detention of both applicants was lawful.

[79]        Constable Thompson testified that he detained Mr. Melnick by asking him to step out of the vehicle, advising him of the purpose of his investigation, and handcuffing him for officer safety. This officer safety was predicated on the concerning reports in the queries as well as the environment in which Constable Thompson found himself. The applicants object to being handcuffed given that they had been cooperative to this point. They argue that this constituted a de facto arrest. However, as Constable Thompson testified, it is the totality of the circumstances which he had to take into account in making the decision he made for officer safety, and not for arrest.

[80]        Counsel also object that Constable Thompson ought to have provided Mr. Melnick with his Charter rights and police caution and right to counsel as he was led from the applicants’ vehicle to the police vehicle. There was certainly time during that walk to provide those rights. In fact, Constable Thompson had taken the time to advise Mr. Melnick of the reason for his detention.

[81]        In R. v. Walsh, [2016] B.C.S.C. 2022, the court considered delay in affording a suspect access to counsel at paragraphs 48 through 51:

[82]        The court agreed in that case that officer safety measures constituted a reasonable delay.

[83]        While counsel argue that Constable Thompson did not provide Mr. Melnick the reason for the detention, I do not agree. Constable Thompson’s evidence was credible and entirely uncontradicted on any of the evidence. Once back in recording range of the video, there was a brief conversation between Constable Thompson and Mr. Melnick where Mr. Melnick appears to be asking Constable Thompson questions. Those questions do not bely Constable Thompson’s evidence. Constable Thompson explained that Mr. Melnick was asking for further information that Constable Thompson was not prepared to give him at that point until he had secured Mr. Susee-Holmes. This was reasonable in the circumstances.

[84]        Constable Thompson testified that he did not want to heighten the risk factors by providing Mr. Melnick with his rights and caution until after he had secured Mr. Susee-Holmes. He was mindful of his isolation and the fact that there were two people to his one. Counsel suggested that the risk was not as high Constable Thompson claimed because he had his police dog Dale with him. However, Constable Thompson testified that Dale was a trained drug dog and had not been trained for protection or arrest procedures. That evidence is also uncontradicted. Dale remained in the police vehicle throughout the investigation, arrests and searches. Given that Constable Thompson did not know how Dale would perform if Constable Thompson came under threat, this was an appropriate course of action.

[85]        Officer safety was very much a factor, if not the factor in delaying advising Mr. Melnick of his rights and police warning. No statement was taken from Mr. Melnick. No evidence was found in this very brief delay. I find that there was no breach of Mr. Melnick’s section 10 Charter rights on this detention. Even if there were not sufficient safety reasons for not providing Mr. Melnick with notice of his right to remain silent and to contact counsel, the breach was not for any improper purpose nor of unreasonable length. Constable Thompson acted in good faith bearing in mind his goal of securing both applicants for the investigative detention.

[86]        When Constable Thompson returned to the applicants’ vehicle, it had not been his intention initially to handcuff Mr. Susee-Holmes. It was Mr. Susee-Holmes’ response to Constable Thompson’s direction to step out of the vehicle that led Constable Thompson to make the decision that he too should be handcuffed. I accept that Constable Thompson provided Mr. Susee-Holmes with the reason for his detention, his Charter rights and the police caution.

[87]        At this point, with the applicants handcuffed, the applicants argue that they were effectively arrested. I was referred to R. v. Tsang, 2014 BCPC 80 (CanLII), 2014 B.C.P.C. 80 with the principles which have emerged relating to de facto arrest:

[88]        In the same vein, in R. v. Wong, 2009 BCPC 89 (CanLII), 2009 B.C.P.C. 89, the court held at paragraph 42:

[89]        The use of handcuffs on detention was also addressed in R. v. Chaif-Gust, [2011] B.C.J. No. 2455 by the British Columbia Court of Appeal. The court held at 48:

[90]        Unlike Wong, there was a sufficient safety concern in this case to justify the use of handcuffs for an investigative detention. In other words, it was necessary and reasonable. I am satisfied that it was appropriate for Constable Thompson to handcuff the applicants during the course of the investigative detention, but the handcuffing did not constitute a de facto arrest in these circumstances.

[91]        I will address one of the arguments made by counsel with respect to the threat level perceived by Constable Thompson. It was put to Constable Thompson that he ought to have called for back-up before effecting the detention. Constable Thompson said that he felt if he called for back-up and waited for someone to arrive it would have raised the risk level by possibly increasing the concerns of the applicants. I accept that, in the circumstances Constable Thompson found himself, this was appropriate and reasonable.

[92]        Upon securing Mr. Susee-Holmes in the vehicle, Constable Thompson had Mr. Melnick step out for the purposes of being provided his right to counsel and for a pat-down search for officer safety. Mr. Melnick spontaneously advised Constable Thompson during this that he had a marijuana joint in the vehicle. This would turn out to be untrue. However, it gave Constable Thompson the final factor he required to form reasonable and probable grounds to arrest Mr. Melnick for possession of a controlled substance. He proceeded with the appropriate arrest, Charter rights and police cautions.

[93]        Constable Thompson testified that he did not feel threatened in the sense of being fearful when he was outside of the vehicle. Threat is a risk assessment he conducts on a personal scale based on the circumstances and his experience. When he conducted his pat-down search of Mr. Melnick, he found no weapons. However, Constable Thompson was aware that he was on the side of a highway in the dark with no help nearby and faced with uncertain risks. He considered the conduct of Mr. Melnick and Mr. Susee-Holmes at the time of detention to increase the risk. It is not a question of fear or intimidation, but an issue of threat to officer safety.

[94]        Counsel argued that because Mr. Melnick claimed to have a Health Canada card permitting him to possess the marijuana, this ought to have negated the reasonable and probable grounds to make the arrest. The complaint is that Mr. Melnick was not given an opportunity to retrieve a Health Canada card. Mr. Melnick offered to get “it” which Constable Thompson perceived to be the marijuana joint and not the Health Canada card.

[95]        As counsel recognized, there is no obligation on the part of Constable Thompson to dispel any innocent explanation that might be offered. Given the factors that he had been presented with in the driving, the queries, the behaviour of the applicants, and the statement uttered by Mr. Melnick, he had reasonable and probable grounds to make the arrest.

[96]        Section 8 of the Charter provides everyone has the right to be secure against unreasonable search or seizure.

[97]        The applicants argued that the arrest of Messrs. Melnick and Susee-Holmes was not lawful and therefore the search was not lawful. In R. v. Phengchanh, 2011 BCSC 484 (CanLII), 2011 B.C.S.C. 484, the defendants argued that there was no lawful reason for a pat-down search or a warrant-less search of the vehicle. At paragraph 21, the court said:

[98]        At paragraph 25 of Phengchanh, the court said:

[99]        I find that the arrest occurred when Constable Thompson advised Mr. Melnick that he was under arrest for possession of a controlled substance, and that arrest was lawful.

[100]     Mr. Susee-Holmes’ first arrest occurred immediately after Constable Thompson formed reasonable and probable grounds that both Mr. Melnick and Mr. Susee-Holmes were in possession of proceeds of crime. Based upon the items that Constable Thompson had found at that point, his reasonable and probable grounds were objectively supportable. The arrest was lawful.

[101]     Both of the applicants object to the legality of the search of both their person and the vehicle and to the search of the vehicle. The Crown maintains that Mr. Susee-Holmes does not have standing to challenge a search of the vehicle. However, the applicants referred me to R. v. Jones, 2017 SCC 60 (CanLII), 2017 S.C.C. 60, where the Supreme Court of Canada found that an accused may rely on the Crown theory for his Charter arguments. In this case, the Crown theory is that both Mr. Melnick and Mr. Susee-Holmes possessed the firearms and the proceeds of crime which were found in the applicants’ vehicle.

[102]     As set out in R. v. McKinnon, [2013] B.C.S.C. 2295:

[103]     Mr. Balison provided me with the decision of R. v. Ramos, [2011] S.J. No. 327 to the effect that s. 8 Charter rights are personal. To exclude evidence under s. 24(2), the applicant had to prove his or her personal privacy rights were violated. However, this decision predates the Supreme Court of Canada decision of Jones. Furthermore, the initial search of the vehicle was part of the initial investigation during the detention of Mr. Susee-Holmes. The detention was lawful, and so was the search. 

[104]     I am satisfied that Mr. Susee-Holmes does have standing to object to the Charter breaches he alleges arise from the search of the luggage and the vehicle.

[105]     The vehicle belonged to Mr. Melnick and was driven by him. The search of his vehicle was incidental to his arrest. It was a lawful search. No luggage was searched until both applicants were under arrest. At that point, the search was incidental to the arrest of both applicants, and was also lawful. The facts fall well within what was contemplated by the principles in Martin, supra.

[106]     With respect to the search of the person of each of the applicants, the test is set out in R. v. Mann, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59 at paragraph 45:

[107]     In this case, Constable Thompson’s evidence clearly articulated his reasons for a pat-down search of each of the applicants. His rationale for officer safety is supported in the environment and his observations. The subsequent pat-down searches are lawful if the arrest is lawful. They are incidental to arrest. Given the nature of the charges, the pat-down search is clearly reasonable and appropriate. There is certainly no supportable argument that the search is unconnected to those charges.

[108]     Section 10 of the Charter provides everyone has the right on arrest or detention a) to be informed promptly of the reasons therefor; b) to retain and instruct counsel without delay and to be informed of that right. 

[109]     Both applicants claim that their s. 10(b) rights were breached once they were detained by Constable Thompson. They claimed that they were unreasonably denied the right to retain and instruct counsel without delay.

[110]     This is with respect not only to the detention of Mr. Melnick in the first instance, but with respect to both applicants from the point of Mr. Melnick’s detention onward. This includes the delay in obtaining a bail hearing until the next evening, as well as the failure to provide Mr. Susee-Holmes with further notice of his right to counsel before the interview although he was provided a fairly detailed account of the charges.

[111]     I have already commented on the justified brief delay in communication to Mr. Melnick his caution and rights on detention. What followed was persistent and lengthy efforts to provide the applicants with every opportunity to speak to counsel. There was no obligation on Constable Thompson to insist on calling Legal Aid again against the wishes of the applicants and while there were so many outstanding messages for various counsel to call back. Both applicants were advised again of their rights and provided the police warning on every arrest.

[112]     Once at the detachment, both applicants spoke to counsel before they were lodged in cells and again prior to their bail hearings. They had counsel on their bail hearings.

[113]     Mr. Susee-Holmes was not provided further rights to counsel before his interview. Even absent the repeated cautions and rights provided, I would not find this to be a violation of his right to counsel.

[114]     By this point, he had been arrested multiple times, had access to counsel when booked into cells, and had access to counsel before the bail hearing. I have already found that his statement was voluntarily made, and I find that this was not a violation of his right to counsel under s. 10 of the Charter.

[115]     During the course of this voir dire, Mr. Melnick and Mr. Susee-Holmes added an additional challenge arising from Constable Thompson’s evidence. He had delayed their access to a bail hearing because he sent the bail materials to the Justice Centre when he ought to have taken the two applicants to the courthouse for a bail hearing.

[116]     In R. v. E.W., 2002 NFCA 49 (CanLII), [2002] N.J. No. 226, the court was presented with an accused who was arrested and then held in custody for almost 24 hours before being brought before a Justice of the Peace. The court referred to s. 503 of the Criminal Code which provides at (1)(a):

[117]     The court held at paragraph 14 that the 24 hours is an outer limit:

[118]     The question before me is whether the delay in taking the applicants before a Justice of the Peace, the court or otherwise was reasonable. In other words, there must be an explanation by way of evidence of activities or exigencies preventing the applicants being brought before the court without unreasonable delay. Absent such explanations, the court must conclude that the detention is arbitrary and therefore a violation of s. 9 of the Charter. 

[119]     Constable Thompson’s evidence was that other officers continued to attempt to get counsel for the bail hearing after Constable Thompson was off shift. The applicants had declined duty counsel. There was a suggestion that the delay was an opportunity to ensure that the two applicants remained at the detachment over the weekend instead of being lodged at Kamloops Regional Correctional Centre. However, Constable Thompson testified that he would have gone up to the correctional facility to conduct those interviews if the two applicants had appeared before the court and been detained or remanded in custody.

[120]     I am satisfied that, with the nature and extent of the investigation, the steps Constable Thompson took, the exigent circumstances such as the challenges he had getting the applicants to the bail hearing, the delay was not unreasonable.

[121]     Both applicants submit that even if each individual breach is not sufficient in and of itself, the constellation of breaches is significant. The remedy sought pursuant to any and all of the breaches is the exclusion of evidence obtained in the searches and by way of the statements.

[122]     I have not found any breaches of any Charter rights and therefore the section 24(2) applications to exclude evidence are dismissed.