2008 BCCA 48 R. v. Baddock

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	*R. v. Baddock,*
	2008 BCCA 48

Date: 20080130

Docket: CA034315

Between:

Regina

Respondent

And

Christopher Lee Baddock

Appellant

Before:	The Honourable Madam Justice Levine
	The Honourable Madam Justice Kirkpatrick
	The Honourable Mr. Justice Tysoe

Oral Reasons for Judgment

P.T. Miranda	Counsel for the Appellant
R.D. Leong V.L. Hartney	Counsel for the (Crown) Respondent
Place and Date of Hearing:	Vancouver, British Columbia
	28 January 2008
Place and Date of Judgement:	Vancouver, British Columbia
30 January 2008

[1] LEVINE, J.A.: The appellant, Christopher Lee Baddock, appeals his conviction by a Supreme Court judge on one count of possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He was found to be in possession of just under one gram of cocaine found in his vehicle after being stopped by police who had arranged to purchase one-half gram of cocaine over the telephone.

[2] The appellant claims that the trial judge erred in failing to exclude the evidence found in his vehicle on the ground that his rights under ss. 8 and 9 of the Charter of Rights and Freedoms were violated when his vehicle was stopped and searched, and that the verdict is unreasonable and unsupported by the evidence.

[3] For the reasons that follow, I would not accede to any of the appellant’s arguments. It follows that I would dismiss the appeal.

Evidence and Trial Judge’s Reasons

[4] The evidence consisted of the viva voce testimony of Police Officer Thomson, the investigating and arresting officer, and the expert opinion of Constable Herbert, admitted by consent, that the drugs found in the appellant’s vehicle were possessed for the purpose of trafficking. The evidence was produced on a voir dire held to determine the admissibility of the evidence found on the search of the appellant’s vehicle.

[5] The trial judge’s reasons for his ruling on the voir dire (March 8, 2006, Chilliwack Registry 49840-2) summarize the evidence of Officer Thomson, the issues raised by defence counsel, and set out his findings of fact and conclusions on the legal issues. As they are brief, and are the focus of the appellant’s arguments in this Court, I will reproduce them in full:

[1] THE COURT: The issue on the voir dire is the admissibility of evidence found on a search of the accused’s vehicle. The police officer who gave evidence on the voir dire said that he received information from an informant who he believed reliable on the basis firstly, that he had provided information instrumental in other arrests, and secondly, in that certain phone numbers were provided to him that were associated by the informant with dial-a-dope operations and through which he was able to set up a drug purchase.

[2] The police officer phoned one of these numbers and was able to engage in a drug transaction with the person who answered the phone. A meet was set up for 15 minutes subsequent to the call, when a small, white car was to attend at a McDonald's restaurant. Within the time expected, the accused, with a passenger, came on to the scene at the McDonald's in a small, white Honda Civic and parked in front of the McDonald's restaurant. This is situate in a small mall with other stores, including a convenience store. The Honda parked. Neither the driver nor the passenger attended any of the stores or McDonald's. The driver waited about two minutes without either of the two occupants leaving the vehicle. It then left the mall. The police officer followed and pulled the vehicle over, believing that the occupants of the vehicle were associated with the telephone call he had made to the dial-a-dope operation. On approaching the suspect vehicle, the police officer had his cell phone preset to phone the same number he had used in engaging the original drug conversation, and noted that the accused's phone, which he held in his hand, was vibrating as he approached the driver's side window. The accused then turned his cell phone off. Subsequent to this, the accused was put under arrest and a search of the Honda conducted. Drugs were found in a coin compartment between the steering wheel and the driver's side door, and underneath a mat in the driver's side area of the vehicle.

[3] The accused focuses on the arrest and says there are insufficient grounds to found the objective conclusion that there were reasonable and probable grounds for arrest, and that the best that could be authorized in the circumstances was detention and a safety search of the accused to assure officer safety. Further, the accused's submission is that the subsequent search and the evidence of the drugs found should be excluded under s. 24(2), in that good faith cannot be established in these circumstances where, in the accused's submission, the police officer was acting beyond the precepts of objective reasonable and probable grounds.

[4] In my view, the crux of the matter here focuses on the arrest. I am of the view that the arrest was objectively well-founded on circumstances that establish reasonable and probable grounds. First of all, it is clear that there was subjective belief by the police officer in making the arrest. In viewing this from an objective point of view, the informant's information had face validity in that it had assisted the police in other investigations. But most importantly, it was tested on phoning the telephone number provided and the ability through that phone call to engage in the drug transaction. That, I think, is strong confirmation that the information that the informant provided was reliable. Subsequent to that, the appearance of the small, white car, in this case the white Honda, within the time expected, the fact that the vehicle didn't attend for any apparent purpose of attending at any of the stores in the mall, but rather parked for a short time and then drove off, added to the circumstances implicating the accused. Subsequent pulling over of the vehicle was, in my view, authorized as an authorized detention. The suspicion at that point was heightened to reasonable and probable grounds on the phoning to the original number that resulted in the drug transaction and the police officer's observation of the accused's telephone receiving a call. It is true, as the police officer acknowledged, that this may have been a case of simple coincidence, some other call either arriving before the police officer activated his cell phone, or at approximately the same time, and that the police officer didn't raise this cellphone at all. But in my view, the circumstances are such as to make that unlikely and the event, notwithstanding the other possibility, is capable of sustaining objective grounds of reasonable and probable grounds for arrest.

[5] Accordingly, the search subsequent had the foundation of a search subsequent to a legal arrest, which, as is conceded, would envisage search of the vehicle for evidence. Accordingly, the evidence will be received in these proceedings.

[6] The trial judge’s reasons for judgment (March 8, 2006, Chilliwack Registry 49840-2) are also brief, providing his analysis and conclusions on the guilt of the appellant:

[1] THE COURT: In my view, the Crown has proved beyond a reasonable doubt that the accused was in possession of cocaine for the purposes of trafficking. In saying that, I have come to the conclusion that the drugs that were found closest in proximity to where he sat as he drove the vehicle are, in my view, drugs in his possession.

[2] I am not convinced, however, that the drugs that were found under the other occupant were in his possession.

[3] Secondly, his cell phone, which was in his hand when he was detained, received a call when the police again dialled the number used to set up the meet. That phone was tested at a later opportunity for incoming calls, and it was apparent from those calls that the callers were persons attempting to obtain drugs.

[4] The total amount that stands proved in the accused’s possession is about one gram of cocaine.

Grounds of Appeal

[7] The appellant’s claim is that the verdict was unreasonable and unsupported by the evidence, in that the trial judge made four errors of law. He says the trial judge erred in law:

(a) in failing to address the reliability of the evidence given by Officer Thomson;

(b) in failing to adequately address the issue of the reasonableness of the detention, and thus whether the evidence derived from the detention was admissible;

(d) in finding that the appellant had the intention to sell or distribute the drugs found in his vehicle.

Reliability of Constable Thomson’s Evidence

[8] The appellant claims that it was incumbent on the trial judge to address the reliability of Officer Thomson’s evidence, pointing to what he says are inconsistencies and uncertainties in the officer’s testimony arising out of cross-examination.

[9] The appellant acknowledges that no issue concerning the officer’s credibility or reliability was raised by defence counsel at trial, and that none of the trial judge’s findings of fact on the issues with which the identified inconsistencies and uncertainties are concerned, on their own, constitute palpable and overriding error. Nonetheless, he claims that it was a legal error for the trial judge not to expressly consider in his reasons the issues the appellant says were raised by the officer’s testimony, by expressly commenting on the reliability of the witness’s evidence and explaining his reasons for his findings of fact. The appellant says that the failure to consider cumulatively the inconsistencies and uncertainties amounts to palpable and overriding error.

[10] I find no merit in this ground of appeal. The facts to which Officer Thomson testified, and his credibility and reliability, were not in dispute. Where inconsistencies or uncertainties arose on cross-examination, Officer Thomson either offered an explanation or admitted to not being certain of the particular matter. The issue before the trial judge (at para. 4) was whether the undisputed facts satisfied the legal tests for detention and arrest. He was not required to recite in his reasons every nuance in the evidence, or to explain or resolve every inconsistency or uncertainty. He clearly accepted the evidence of Officer Thomson, as he was entitled to do.

[11] I would not accede to this ground of appeal.

Objective Grounds for Detention

[12] There is no dispute that the legal test for investigative detention is as set out in R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52 at para. 45:

…police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all of the circumstances that the individual is connected to a particular crime and that such a detention is necessary.

[13] The test for assessing the lawfulness of an investigative detention was summarized in R. v. Greaves (2004), 189 C.C.C. (3d) 305, 2004 BCCA 484 at para. 33:

First, the police must have "reasonable grounds to detain" in the sense that they reasonably suspect that the individual detained was involved in a crime under investigation. There must also be both a subjective and objective basis for that belief. Second, the detention must be "reasonably necessary" in all the circumstances, including the nature of the liberty interfered with and the public purpose the interference serves.

[14] From the appellant’s factum and submissions on the appeal, it appears that the appellant objects to the trial judge’s conclusion that pulling over the appellant’s vehicle was an authorized detention on two bases: first, that the trial judge did not deal with the reliability of the officer’s testimony, and second, that the officer testified that when he pulled the appellant over he was intending to arrest him, and at that time he did not have reasonable and probable grounds for arrest.

[15] These two arguments have no merit. As to the first, I have already dealt with, and rejected, the appellant’s argument that the trial judge erred in law in failing to address the reliability of the officer’s testimony.

[16] As to the second argument, the trial judge did not find that the officer had reasonable and probable grounds to arrest the appellant when he pulled him over – he found there were objectively reasonable grounds to detain him. At trial, defence counsel, in both opening and closing submissions, conceded that.

[17] The issue raised by defence counsel in his submissions to the trial judge was whether the officer had objectively reasonable and probable grounds to arrest the appellant. His objective was to persuade the trial judge to rule that the evidence obtained on the search of the vehicle was inadmissible, on the ground that the search was unreasonable because it did not follow a lawful arrest. He argued that the officer did not have more than reasonable grounds to suspect that the appellant was involved in a crime, which, as he said: “And that’s the basis for investigative detention”.

[18] Defence counsel’s submissions at trial are not binding on either the trial judge or this Court. If the trial judge erred in law, it is for this Court to correct the error. However, the trial judge cannot be said to have erred in law in finding, consistent with defence counsel’s submissions, that at the time the officer pulled the appellant’s vehicle over, the officer was authorized to detain the appellant for investigative purposes. That finding was clearly supported by the evidence. As a result, there was no violation of s. 9 of the Charter.

[19] I would not accede to this ground of appeal.

Validity of the Arrest and Subsequent Search

[20] Again, there is no dispute as to the law.

[21] The test for making a valid arrest without a warrant was set out in R. v. Storrey, [1990] 1 S.C.R. 241 at 250-51:

In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, 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. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

[22] The police may search a vehicle pursuant to a lawful arrest where the object or purpose of the search is correlated to the reasons or grounds for the arrest: R. v. Caslake, [1998] 1 S.C.R. 51 at para. 14, quoting Cloutier v. Langlois, [1990] 1 S.C.R. 158 at 186.

[23] Thus, as the trial judge said in his reasons, “…the crux of the matter here focuses on the arrest”. There was no dispute as to the officer’s subjective belief that the driver of the vehicle had committed an offence. The issue at trial, again as identified by the trial judge, and on appeal, is whether the officer’s subjective belief was objectively reasonable.

[24] The trial judge found (at para. 4) that the suspicion that validated the detention:

was heightened to reasonable and probable grounds on the phoning to the original number that resulted in the drug transaction and the police officer’s observation of the accused’s telephone receiving a call.

[25] The appellant questions the validity of this finding on the ground that the trial judge wrongly drew the inference from the evidence of the officer that the phone call the officer made as he approached the appellant’s vehicle was the call that was received by the appellant. The appellant points to the officer’s acknowledgment that he did not take steps, by calling the appellant’s cell phone after he had seized it, to confirm that the number he dialled to arrange the drug transaction was the number he called a second time as he approached the appellant’s vehicle, and that the number was, in fact, connected to the appellant’s cell phone. He suggested there could have been some confusion or error because the officer recorded a second telephone number on the Exhibit Flow Chart. The police officer acknowledged, in his testimony, that it was possible, though unlikely, that the appellant received a call from another telephone at the time the officer approached the vehicle.

[26] The trial judge was clearly alive to this evidence – he expressly dealt with it in his reasons when he said:

It is true, as the police officer acknowledged, that this may have been a case of simple coincidence, some other call either arriving before the police officer activated his cell phone, or at approximately the same time, and that the police officer didn’t raise this cell phone at all. But in my view, the circumstances are such as to make that unlikely and the event, notwithstanding the other possibility, is capable of sustaining objective grounds or reasonable and probable grounds for arrest.

[27] It was open to the trial judge to accept the officer’s evidence and draw the inference he did. He applied the correct legal test. The appellant has failed to identify any legal error in the trial judge’s fact finding or legal reasoning that led to the conclusion that the arrest was lawful. Since the arrest was lawful, the search for evidence following the arrest was also lawful. Although the trial judge did not explicitly say so, the legal result of his finding that the arrest and search were lawful is that there was no violation of s. 8 of the Charter.

[28] It follows that I would not accede to this ground of appeal.

Intent to Traffic

[29] The appellant’s final ground of appeal is that the trial judge erred in finding that the appellant had the intention to sell or distribute the drugs found in his vehicle.

[30] The appellant’s argument focuses on the trial judge’s acceptance of the officer’s evidence that two calls were received on the appellant’s cell phone following his arrest from persons seeking to purchase drugs. The appellant again claims that the trial judge failed to consider the reliability of this evidence, pointing out that the officer contradicted his evidence at the preliminary inquiry on the question of whether he turned the appellant’s cell phone on after seizing it. Obviously, the trial judge accepted the officer’s explanation, as he was entitled to do, that he had been wrong in his testimony at the preliminary inquiry, and that he had turned the phone on.

[31] It is worth noting that when the expert opinion that the drugs were possessed for the purpose of trafficking was admitted by consent, the trial judge commented, without objection from defence counsel: “That establishes the opinion that these drugs were held for the purposes of trafficking, is that it, Ms. Grewel [Crown counsel at trial]?” That was additional evidence that the trial judge was entitled to take into account in concluding that the appellant was guilty of possession for the purpose of trafficking.

[32] I would not accede to this ground of appeal.

Conclusion

[33] The appellant has failed to establish that the trial judge erred in his findings of fact or made any legal errors in his conclusions that there were no violations of the Charter associated with the detention, arrest, and search of the appellant, and the appellant had the intention of trafficking in the drugs found in his vehicle. The trial judge’s findings of fact and legal conclusions were well supported by the evidence, and the verdict of guilty of possession of cocaine for the purpose of trafficking was reasonable.

[34] I would dismiss the appeal.

[35] KIRKPATRICK, J.A.: I agree.

[36] TYSOE, J.A.: I agree.

[37] LEVINE, J.A.: The appeal is dismissed.

“The Honourable Madam Justice Levine”