R. v. Karaim, 2019 BCPC 275 (CanLII)
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2019 BCPC 275 |
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Date: |
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File No: |
40174-1 |
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Registry: |
Courtenay |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
ALINA KARAIM
REASONS ON VOIR DIRE
OF THE
HONOURABLE JUDGE GOUGE
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J. Farenholtz |
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Counsel for the Defendant: |
B. Movassaghi |
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Courtenay, B.C. |
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Dates of Hearing: |
November 12 and 13, 2019 |
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Date of Judgment: |
November 19, 2019 |
The Issues
[1] The present issues are:
a. Was Ms. Karaim lawfully arrested prior to a search of her belongings by Sergeant Chubey of the RCMP?
b. If so, was the search lawful as a “search incidental to arrest”?
c. If not, was the search justifiable under the “plain view” doctrine?
If issues “b” and “c” are decided adversely to the Crown it will be necessary to determine an appropriate remedy for the unlawful search. That question has not yet been argued.
The Facts
[2] It is of some significance that each of the participants in this incident was acquainted with each of the others. The complainant, John Lafond, has a long criminal record, including many convictions for acts of dishonesty and violence. The accused, Ms. Karaim, was known to the police. There was a warrant outstanding for the arrest of the bystander, Tyler Sherwin. Each of them was well known to Sergeant Chubey and Constable Landers of the RCMP.
[3] At about 07:30 on August 12, 2018, Mr. LaFond telephoned the RCMP detachment in Courtenay, British Columbia, complaining that a woman had assaulted him and damaged his vehicle. Mr. LaFond remained on the telephone and in continuous contact with the police dispatcher throughout the ensuing events.
[4] Mr. LaFond told the dispatcher that the woman was a drug dealer, and that he had been driving her on her rounds prior to the assault. He provided the dispatcher with a description of the woman; i.e. a blonde woman in her 40’s, wearing red sweat pants, a white tank top and a red jacket. He said that she struck him on the arm with a baton and then struck his vehicle with the same object.
[5] Mr. LaFond told the dispatcher that he had the woman under observation, and that she was in the parking lot of the Rexall drug store on Cliffe Avenue. The dispatcher put out a call on police radio for officers to attend. Two officers were close to the scene and attended at the Rexall drug store within a few minutes.
[6] The first to arrive was Constable Landers. As he entered the parking lot in his police vehicle, he was confronted by a taxi which was attempting to leave. Both vehicles stopped, nose to nose. Constable Landers got out, and found Ms. Karaim in the front seat of the taxi and Mr. Sherwin in the rear. The only people in the parking lot were Mr. Sherwin, Ms. Karaim and the (male) taxi driver. Ms. Karaim, who is a blonde woman in her 40’s, was wearing red sweat pants and a white tank top. Constable Landers observed a red jacket, matching the sweat pants, on the seat beside her. Constable Landers asked her to step out of the taxi, which she did. He placed her hands behind her back and handcuffed her. He observed that her clothing was very tight on her body, and that it was very unlikely that she had anything concealed under her clothing. He performed a cursory pat-down search and placed her in the rear seat of his police car. He told her that she was under arrest for assault and mischief. Ms. Karaim was calm and cooperative throughout the process.
[7] Sergeant Chubey arrived on-scene just as Constable Landers was placing Ms. Karaim in the police car. Sergeant Chubey approached the taxi and recognized Mr. Sherwin, who was sitting in the rear seat. Sergeant Chubey was aware that there was a warrant for the arrest of Mr. Sherwin. He informed Constable Landers of the warrant. Constable Landers promptly arrested Mr. Sherwin and placed him in the police car.
[8] Sergeant Chubey observed that there were many bags and parcels in the rear seat and cargo area of the taxi. The taxi driver told him that they belonged to the passengers, Ms. Karaim and Mr. Sherwin. Sergeant Chubey set about removing the bags and parcels from the taxi and transferring them to the police cars. In one of the bags, at the top, he saw a baton, conforming to the description provided to him by the dispatcher and provided to the dispatcher by Mr. LaFond. Sergeant Chubey removed the baton from the bag, intending to seize it as evidence to be used in the prosecution of Ms. Karaim for assault. When he removed the baton, he observed underneath it a plastic pouch. The top of the pouch was open, exposing the contents to his view. In the pouch was a tube made partly of transparent plastic and partly of metal with a screw top. The plastic part of the tube contained a white crystalline substance. Sergeant Chubey said that he recognized the substance as methamphetamine. He was not asked to provide a basis for that identification, and did not explain how he differentiated the substance in the tube from other white crystalline materials.
[9] Upon identifying the substance as methamphetamine, Sergeant Chubey instructed Constable Landers to arrest Ms. Karaim for possession of a controlled substance.
[10] Sergeant Chubey was not tendered as an expert in drug identification. There is no evidence of his qualifications in that field. He said that he had participated in a number of drug investigations. The tube containing the crystalline substance was not tendered in evidence. I was shown only a poor-quality photograph of it. Looking only at the photo, as I was constrained to do, the crystalline substance might be a drug, but might equally be table salt (of the kind which is sold in a grinder).
[11] Sergeant Chubey put the rest of the bags and parcels in the police cars and took them to the detachment for inspection. When examined at the detachment, various other illicit drugs were found in bags containing documents personal to Ms. Karaim. When tested at the RCMP laboratory, they were found to contain methamphetamine, heroin and fentanyl. The crystalline substance which Sergeant Chubey found under the baton tested positive for methamphetamine.
[12] Constable Landers also seized Ms. Karaim’s cell phone. Its contents were downloaded onto a flash drive which the Crown proposes to tender in evidence in this proceeding. Counsel have not yet addressed the issue of admissibility of the contents of the cell phone.
[13] Sergeant Chubey agrees that there was no threat of violence from Ms. Karaim, and that the pat-down search performed by Constable Landers was sufficient to ensure that she had no weapons on her person. The only risk to officer safety arising from her arrest was the risk that dangerous substances, particularly fentanyl, might be in the bags and parcels. For that reason, he decided to search the bags and parcels under safe conditions at the detachment, which he did.
[14] No application was made for a search warrant at any stage of the process, and no warrant was issued.
Was Ms. Karaim lawfully arrested?
[15] The arrest of Ms. Karaim was lawful if and only if the arresting officers: (i) subjectively, believed that she had committed an indictable offence; and (ii) objectively, had reasonable grounds for that belief: R v. Dubensky 2018 BCSC 1593; [2018] BCJ No. 3203 @ paragraphs 22 – 25. The point was expressed in the following terms in R v Luong 2010 BCCA 158; [2010] BCJ No. 918 @ paragraph 18:
The cases both before and after the Charter have long established that the Criminal Code requires both that the officer subjectively believe that he or she has reasonable grounds for the arrest and that the grounds are justified from an objective point of view. This means that "a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest.”
[16] It is not suggested that Sergeant Chubey or Constable Landers lacked an honest belief that Ms. Karaim had committed the offences of assault and mischief alleged by Mr. LaFond. Mr. Movassaghi submits that their belief was unreasonable because it was founded solely upon a complaint by Mr. LaFond, a career criminal with a reputation for dishonesty. I reject that submission because it depends on the proposition that the police should investigate complaints from people like Mr. LaFond differently than they do complaints from law-abiding citizens. If that were so, such complainants would receive lesser protection under the law than their more reputable counterparts. In its origin, the outlaw was “… one deprived of the benefit of law, and out of the King’s protection …”: Stroud’s Judicial Dictionary, 4th ed. The practice was abandoned as barbarous in the 15th century, and should not be revived now.
[17] Constable Landers was informed by his dispatcher that: (i) a woman of a particular description was reported to have committed an assault and a mischief; and (ii) that woman was to be found in a particular parking lot. The complainant remained on the line and in communication with the dispatcher until after Constable Landers arrived at that parking lot. It was therefore a reasonable inference that Constable Landers would be informed if the woman left the parking lot. Constable Landers arrived at the parking lot within a few minutes. Only one woman was present. She matched the description he was given. Those circumstances were sufficient to justify her arrest.
Search Incidental to Arrest
[18] Counsel approached this voir dire on the premise that, if Ms. Karaim was lawfully arrested, the police were entitled to search the bags and parcels in the taxi without a warrant. As will become apparent, the question is more complex than that.
[19] Section 8 of the Canadian Charter of Rights and Freedoms provides:
Everyone has the right to be secure against unreasonable search or seizure
[20] In R v. Vu 2013 SCC 60 (CanLII), [2013] 3 SCR 657, Justice Cromwell said @ paragraph 46 (underlining by Justice Cromwell):
Prior authorization of searches is a cornerstone of our search and seizure law. As the Court affirmed in Hunter, the purpose of s. 8 is "to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen .... This, in my view, can only be accomplished by a system of prior authorization" (p. 160 (emphasis in original)). Dickson J. went on in Hunter to say that the requirement of prior authorization "puts the onus on the state to demonstrate the superiority of its interest to that of the individual" (ibid.). The purpose of the prior authorization process is thus to balance the privacy interest of the individual against the interest of the state in investigating criminal activity before the state intrusion occurs.
Given that as a foundational principle, one would think that searches without prior judicial authorization would be permissible only when exigent circumstances preclude an application for a search warrant. So, for example, no one would suggest that Constable Landers should have applied for a search warrant before frisking Ms. Karaim for weapons. By contrast, no exigency required Sergeant Chubey to search the bags and parcels in the taxi immediately. Indeed, as he acknowledged, it would be much safer to search them under controlled conditions at the detachment. That could have been done, equally conveniently and effectively, two days after Ms. Karaim’s arrest, allowing ample time to apply for a search warrant. So, applying Hunter and Vu, one would think that a warrantless search of the bags was unreasonable and an infringement of Ms. Karaim’s rights under section 8.
[21] In R v Stillman 1997 CanLII 384 (SCC), [1997] 1 SCR 607 @ paragraph 41, the majority of the Court adopted the following statement of principle from R v Alderton (1985) 17 CCC (3d) 2014 (underlining added):
Searches made incidentally to an arrest are justified so that the arresting officer can be assured that the person arrested is not armed or dangerous and seizures are justified to preserve evidence that may go out of existence or be otherwise lost. As neither circumstance existed here, the Crown cannot rely on a power that is incidental to an arrest to justify seizure of the hair samples …. In my opinion, the power to search and seize does not extend beyond those purposes.
However, later authorities make it clear that searches incidental to arrest for other purposes may be permissible.
[22] The leading authority is R v. Fearon 2014 SCC 77 (CanLII), [2014] 3 SCR 621, which was concerned with a police search of a cell phone incidental to a lawful arrest. The majority judgment was given by Justice Cromwell, who said at paragraph 3 that a search incidental to arrest requires the court to “… strike a balance between the demands of effective law enforcement and everyone’s right to be free of unreasonable searches and seizures …”. At paragraph 16, Justice Cromwell said:
Although the common law power to search incident to arrest is deeply rooted in our law, it is an extraordinary power in two respects. The power to search incident to arrest not only permits searches without a warrant, but does so in circumstances in which the grounds to obtain a warrant do not exist. The cases teach us that the power to search incident to arrest is a focussed power given to the police so that they can pursue their investigations promptly upon making an arrest. The power must be exercised in the pursuit of a valid purpose related to the proper administration of justice. The central guiding principle is that the search must be, as the case law puts it, truly incidental to the arrest.
At paragraph 22, Justice Cromwell referred to the following passage from R v Caslake [1988] 1 SCR 51 (underlining added by Justice Cromwell, bold italics added by me):
If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation.
At paragraphs 48 – 49, Justice Cromwell explained why a cell phone search incident to arrest was permissible in that case:
Beyond the facts of this case, there are other types of situations in which cell phone searches conducted incidental to a lawful arrest will serve important law enforcement objectives, including public safety. Cell phones are used to facilitate criminal activity. For example, cell phones "are the 'bread and butter' of the drug trade and the means by which drugs are marketed on the street": Howell, at para. 39. Prompt access by law enforcement to the contents of a cell phone may serve the purpose of identifying accomplices or locating and preserving evidence that might otherwise be lost or destroyed. Cell phones may also be used to evade or resist law enforcement. An individual may be a "scout" for drug smugglers, using a cell phone to warn criminals that police are in the vicinity or to call for "back up" to help resist law enforcement officers: see, e.g., United States v. Santillan, 571 F.Supp.2d 1093 (D. Ariz. 2008), at pp. 1097-98. In such situations, a review of recent calls or text messages may help to locate the other perpetrators before they can either escape or dispose of the drugs and reveal the need to warn officers of possible impending danger.
I conclude that prompt cell phone searches incidental to arrest may serve important law enforcement objectives. The evidence in this case shows why prompt follow-up of leads may be necessary and how the search of a cell phone may assist those efforts. In this respect, cell phone searches are unlike the taking of dental impressions, buccal swabs and hair samples discussed in Stillman. There, the Court noted that there were no relevant considerations of urgency supporting the extension of the power to search incident to arrest to these procedures: there was no risk that the accused's teeth or DNA would be lost or destroyed if the procedures were not carried out promptly: para. 49. And, of course, such searches, unlike cell phone searches, are very unlikely to allow police to identify and mitigate risks to public safety or to assist them to preserve evidence that might otherwise be lost or destroyed. Similarly, in Golden, while the strip search incident to arrest was aimed at the discovery of illegal drugs on the accused's person, there was little reason to think that the search needed to be performed promptly upon arrest in order to fulfill this purpose: paras. 92-93.
At paragraphs 74 – 84, Justice Cromwell identified the need for limits on the power to search cell phones incidental to arrest. While he was speaking there specifically of cell phones, his decision on that question provides useful guidance for the principles which I must apply in the case at bar. He said:
… we should concentrate on measures to limit the potential invasion of privacy that may, but does not inevitably result from a cell phone search. This may be done by making some modifications to the common law power to search cell phones incidental to arrest. Ultimately, the purpose of the exercise is to strike a balance that gives due weight, on the one hand, to the important law enforcement objectives served by searches incident to arrest and, on the other, to the very significant privacy interests at stake in cell phone searches.
The requirement that the search of the cell phone be truly incidental to the arrest should be strictly applied to permit searches that are required to be done promptly upon arrest in order to effectively serve the purposes of officer and public safety, loss or destruction of evidence, or discovery of evidence.
(paragraphs 74 - 75)
A further modification is that the third purpose for which searches incident to arrest are permitted - the discovery of evidence - must be treated restrictively in this context. The discovery of evidence, in the context of a cell phone search incident to arrest, will only be a valid law enforcement objective when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. Only in those types of situations does the law enforcement objective in relation to the discovery of evidence clearly outweigh the potentially significant intrusion on privacy.
(paragraph 80 – underlining added)
The Crown bears the burden of establishing that the search incident to arrest was lawful. In my view, that burden is not met, absent detailed evidence about precisely what was searched, how and why. That sort of evidence was lacking in this case, and the lack of evidence, in turn, impedes meaningful judicial review of the legality of the search. As I mentioned earlier, this after-the-fact review is particularly important in the case of warrantless searches where there has been no prior judicial screening as occurs when a warrant is required.
(paragraph 87 – underlining added)
[23] If it were the law that a lawful arrest, without more, justifies a search of the belongings of the person arrested, Justice Cromwell would surely have said so. It follows that: (i) something more is required to justify a warrantless search; (ii) there must be evidence to establish that additional factor.
[24] In the passages quoted above, Justice Cromwell gave some examples of additional factors which might justify a warrantless search. No doubt, there are others which will arise in other cases.
[25] In this case, Sergeant Chubey said that the concern which caused him to search the bags and parcels immediately was the fear that they might contain fentanyl. He agreed that, if that were so, it would be safer to conduct the search at the detachment than in the field. Given that rationale for the search, there was no reason to conduct the search immediately. The bags and parcels could have been safely stored in a locker at the detachment while an application for a warrant was made. The onus described at paragraphs 75 and 87 of Fearon is undischarged. That being so, the search cannot be justified as incidental to Ms. Karaim’s arrest.
The Application of the “Plain View” Doctrine
[26] The doctrine was expressed in the following terms by Chief Justice Green in R v. Squires [2016] NJ No. 351; 2016 NLCA 54 @ paragraph 65:
… the application of the doctrine has been expressed to be dependent on the existence of three requirements: (i) the officer must be lawfully in a position from which the evidence was plainly in view; (ii) discovery of the evidence must be inadvertent; and (iii) it must be apparent to the officer at the time that the observed item may be evidence of a crime or otherwise subject to seizure …
Chief Justice Green expressed some doubt as to the need for the second requirement, but that question does not arise in this case.
[27] In relation to the baton, all three requirements are satisfied in this case. Sergeant Chubey was lawfully in a public place. He was standing in a public parking lot. He was engaged in a lawful activity. The bags and parcels in the taxi obviously could not remain there. It was necessary to remove them and place them in secure storage until they could be returned to their owners (both of whom were in handcuffs in the back of Constable Landers’ police car). There is no suggestion that Sergeant Chubey was looking for the baton, although he immediately recognized it as fitting the description of the weapon given by Mr. Lafond to the despatcher. It was immediately apparent to Sergeant Chubey that the baton might be evidence of the assault alleged against Ms. Karaim.
[28] In relation to the methamphetamine, the first two requirements are clearly satisfied. The position in relation to the third requirement is less clear. Sergeant Chubey said that he instantly recognized the substance as methamphetamine. He was not asked to identify any characteristics of the substance which enabled him to identify it as methamphetamine. For example, he did not say that methamphetamine crystals have a distinctive shape, colour or other feature. In fairness to him, he was not asked to do so. He was not tendered or qualified as an expert. Looking at the photo, I could not say whether the substance was methamphetamine, dried airplane glue or table salt. Apart from the fact that he is an RCMP officer with experience of drug cases, there is nothing in the evidence to indicate that he is any better qualified to identify the substance than I am. I would not infer that he was qualified to distinguish between methamphetamine and other crystalline substances simply because he is an experienced police officer.
[29] I acknowledge that an officer confronted with a substance, in plain view, which he reasonably believes to be an illicit drug may seize the drug and arrest the owner. However, the belief must be a reasonable one. The Crown carries the onus of showing it to be reasonable. The arresting officer must articulate the basis for his belief in order that the court can assess whether it was reasonable – see the passage from paragraph 22 of Fearon, quoted above. In this case, Sergeant Chubey was not asked to do so. A bald assertion that the crystalline substance was methamphetamine, without more, is not a rational basis for the conclusion. In the absence of evidence of such a rational basis, the Crown has not discharged the onus which it carries. Because there is no evidence to support the reasonableness of Sergeant Chubey’s identification of the crystalline substance as methamphetamine, the Crown’s onus is undischarged and the seizure of the substance was not authorized by the “plain view” doctrine.
Conclusions
[30] Ms. Karaim was lawfully arrested. Neither the seizure of the baton nor the seizure of the drugs was authorized as a search incidental to arrest. The seizure of the baton was authorized by the “plain view” doctrine, but the seizure of the drugs was not.
November 19, 2019
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T. Gouge, PCJ