



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Patterson,






2006 
          BCCA 24



Date: 20060123





Docket: CA032118

Between:

Regina

Respondent

And

Darrin 
    John Patterson

Appellant








Before:


The 
          Honourable Mr. Justice Donald




The 
          Honourable Madam Justice Newbury




The 
          Honourable Madam Justice Levine






W.P. 
          Riley


Counsel for the Appellant




J.M.P. 
          Firestone


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




December 14, 2005




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 23, 2006






Written 
          Reasons by
:




The 
          Honourable Madam Justice Levine




Concurred 
          in by:




The 
          Honourable Mr. Justice Donald

The Honourable Madam Justice Newbury



Reasons for Judgment of the Honourable Madam Justice 
    Levine:

Introduction

[1]

Darrin John Patterson appeals from his conviction by a Supreme Court 
    justice 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.  The appellants arguments at trial and on appeal are that his 
    rights under the
Charter of Rights and Freedoms
were violated 
    in three distinct circumstances: on his arrest, while he was held in custody, 
    and during his dealings with police.

[2]

The appellants primary ground of appeal is that the trial judge erred 
    in failing to find that his right to consult counsel without delay was violated 
    when he was held incommunicado at the police detachment while police officers 
    executed a search warrant at his home, and the evidence obtained from the 
    search should have been excluded. I agree that his right to counsel was violated, 
    but in all of the circumstances I would not exclude the evidence obtained 
    from the search. I would not accede to any of the other grounds of appeal, 
    with the result that I would dismiss the appeal.

[3]

The trial judges reasons for judgment may be found at 2004 BCSC 355.

[4]

I will deal in turn with the appellants arrest, custody, and dealings 
    with police.

[5]

The appellant was arrested by Constable Richmond at approximately 1 
    p.m. on September 13, 2002. Constable Richmond had provided back-up to another 
    police officer who served a three-month driving prohibition under s. 95 of 
    the
Motor Vehicle Act
, R.S.B.C. 1996, c. 318, on the appellant 
    in August 2002, about one month before the arrest. At the time the driving 
    prohibition was served, the appellant was aggressive and he and his girlfriend 
    were taken into custody.

[6]

The day of the arrest, Constable Richmond was driving a marked police 
    vehicle to a meeting. He observed the appellant driving a black Cadillac, 
    a vehicle the appellant was known to drive regularly. Constable Richmond pulled 
    the appellant over. As Constable Richmond pulled in behind the appellants 
    vehicle, he noticed the appellant and his passenger, Paul Flynn, quickly change 
    seats, so that the appellant was in the passenger seat and Mr. Flynn was in 
    the drivers seat.

[7]

Constable Richmond ordered the appellant out of the vehicle, by name. 
    The appellant complied. Constable Richmond did a pat-down search of the appellant, 
    finding 13.8 grams of white powder, later found to be cocaine, in a baggie 
    in the side front pocket of his pants. Constable Richmond arrested the appellant 
    for possession of cocaine for the purpose of trafficking.

[8]

On a search of the vehicle, Constable Richmond found an expandable 
    baton in the centre console. He then arrested all three occupants for possession 
    of a prohibited weapon.

[9]

Constable Richmond testified that he informed the appellant and the 
    two passengers of their
Charter
rights and warnings. The appellant 
    testified that he received the warnings and requested to speak to his lawyer. 
    The three men were taken to the police detachment.

The Alleged
Charter
Breach

[10]

The appellant asserted at trial that the police did not have reasonable 
    and probable grounds to arrest him and the search of his person was unreasonable, 
    infringing his rights under s. 8 of the
Charter
. He sought to 
    have the cocaine excluded as evidence.

The Decision of the Trial Judge

[11]

The trial judge found Constable Richmond to be a credible witness. 
    She found the appellant not to be credible and did not accept his evidence. 
    The trial judge found that Constable Richmond had reasonable and probable 
    grounds to arrest the appellant for a prohibited driving offence under s. 
    79 of the
Motor Vehicle Act
, which authorizes a police officer 
    to arrest without warrant and detain a person who the officer has reasonable 
    and probable grounds to believe was driving in contravention of s. 95 of the
Act
. She summarized the circumstances leading to the arrest 
    as follows (at para. 16):

This accused was known to Constable Richmond.  Constable 
    Richmond had been present one month previously in August, 2002 when Mr. Patterson 
    had been served with the notice.  Constable Richmond saw the accused driving 
    on September 13th.  He also saw Mr. Patterson's actions in switching seats 
    so quickly before Constable Richmond had time to park his vehicle or get out 
    of his vehicle.  Constable Richmond also had past knowledge of this accused 
    and his temperament, and there is also the fact that Constable Richmond was 
    alone at this time in his vehicle and in the vehicle in front of him, the 
    Cadillac, there were three young men approximately 20 years of age.  The cocaine 
    was found, a considerable quantity, on the pat down search.  I find the search 
    was not intrusive.  It was a pat down as I have said.  At that point, it became 
    an arrest for possession of cocaine for the purpose of trafficking.

[12]

Having found that the search of the appellant followed a lawful arrest, 
    the trial judge admitted the cocaine as evidence.

Grounds of Appeal

[13]

The appellants grounds of appeal in connection with the arrest are 
    accurately summarized by the Crown:

(a)        Whether the trial judge erred in 
    failing to consider relevant evidence or in failing to provide sufficient 
    reasons for accepting the evidence of Constable Richmond with respect to the 
    circumstances of the appellants arrest.

(b)        Whether the trial judge erred in holding that there was no 
    violation of the appellants rights under s. 8 of the
Charter
in 
    connection with the roadside search incidental to the arrest.

[14]

The appellant points to certain inconsistencies in the evidence and 
    maintains that the trial judge did not adequately deal with these in her assessment 
    of the credibility of the witnesses or her analysis of the issues.

[15]

In my opinion, there is no basis for the appellants complaints about 
    the manner in which the trial judge dealt with the evidence of the circumstances 
    of his arrest. There was no real difference between the testimony of Constable 
    Richmond and the appellant regarding the arrest in any event. The appellant 
    argues, however, that inconsistencies between Constable Richmonds evidence 
    and that of other witnesses should have led the trial judge to a different 
    conclusion regarding Constable Richmonds credibility.

[16]

The trial judges reasons for judgment contain a thorough analysis 
    of the material evidence and the reasons for accepting that of Constable Richmond 
    and rejecting that of the appellant. Where there were inconsistencies between 
    the evidence of Constable Richmond and other witnesses, they were not material 
    to the issue: whether Constable Richmond had reasonable and probable grounds 
    to arrest the appellant for a driving prohibition and search him incidental 
    to that arrest. As set out by the trial judge in the paragraph quoted above, 
    the evidence provided obvious grounds for the appellants arrest: Constable 
    Richmond had been involved in the personal service of a three-month driving 
    prohibition on the appellant one month before; Constable Richmond observed 
    the appellant driving a vehicle that he was known to regularly drive; Constable 
    Richmond observed the appellant quickly moving from the drivers seat to the 
    passenger seat; Constable Richmond knew the appellant to be aggressive and 
    had reasonable grounds to be concerned for his own safety.

[17]

The appellant relies on
R. v. Sheppard
, [2002] 1 S.C.R. 
    869, to support his claim that the trial judges reasons were insufficient. 
    However,
Sheppard
does not require the trial judge to recount 
    every item of evidence in her reasons; it requires that the reasons provide 
    an intelligible guide to the trial judges reasoning. There is no question 
    that the trial judges reasons in this case readily meet that standard.

[18]

I would not accede to this ground of appeal.

Violation of s. 8 of the
Charter

[19]

The appellant concedes that if there were reasonable and probable grounds 
    for his arrest for a driving prohibition, the subsequent search was authorized 
    as incidental to the arrest and was therefore a reasonable search for the 
    purposes of s. 8 of the
Charter
.

[20]

As noted above, the grounds for the appellants arrest for a driving 
    prohibition were obvious. I agree with the trial judge (at para. 15) that 
    it was not reasonably necessary for the police officer to check his computer 
    to confirm that the driving prohibition was still in effect, nor was it necessary 
    in the circumstances for him to ask whether the prohibition had been appealed 
    and stayed.

[21]

There is no basis to find, as the appellant alleges, that the police 
    officer breached s. 29(2) of the
Criminal Code
by failing to 
    advise the appellant that he was being arrested for driving while prohibited. 
    The appellants conduct in changing seats made it clear that he knew why he 
    was stopped (see
R. v. Beaudette
(1957), 118 C.C.C. 295 (Ont.C.A.)) 
    and the officer was not required to state the grounds for the arrest before 
    he searched the appellant (see
R. v. Charlton
(1992), 15 B.C.A.C. 
    272 at para. 38;
R. v. Dubois
, 2004 BCCA 589 at para. 10).

[22]

Nor is there any basis to find that Constable Richmond acted in bad 
    faith. The appellant suggests that Constable Richmond was rounding up the 
    appellant and the two passengers in the car for suspected drug violations. 
    Much of the appellants argument regarding bad faith focused on the treatment 
    of the two passengers, which is of course not relevant to the appellants 
    claim that his
Charter
rights were breached (see
R. v. 
    Spinelli
(1995), 101 C.C.C. (3d) 385 (B.C.C.A.)). The trial judge 
    made no finding with regard to bad faith. In any event, there is no basis 
    for the claim, since the trial judge clearly found, and I agree, that Constable 
    Richmond had reasonable grounds for the arrest and he believed that he had 
    such grounds.

[23]

I would not accede to this ground of appeal.

Time in Custody

Summary of the Facts

[24]

The appellant and his two passengers were taken to the police detachment 
    following their arrest after the roadside stop, arriving there at 1:24 p.m.  
    The appellant was not allowed to call his lawyer, though he had asked to do 
    so at the time of his arrest. Constable Richmond testified that he wanted 
    to search the appellants residence, and had concerns that officer safety 
    and the preservation of evidence would be jeopardized if the appellant or 
    either of the other two persons arrested called anyone before the search was 
    completed.

[25]

Constable Richmond prepared the documents to obtain a search warrant, 
    faxed them to Vancouver at 4:31 p.m., and received the authorization to search 
    the appellants residence at 5:01 p.m. The search began at 5:50 p.m. and was 
    completed at 7:16 p.m. The police seized drug paraphernalia from the appellants 
    home, including mini scales, a kitchen knife with a residue of cocaine, a 
    coffee grinder also found with a residue of cocaine, $5,330 in cash in a briefcase 
    under the bed, a long sword, a machete in a closet, and an empty tin of mace 
    found in the same briefcase as the cash.

[26]

At 7:30 p.m., the two passengers were released from custody without 
    charges. Constable Richmond told the appellant he would be released and offered 
    him the use of the telephone for the first time. Constable Richmond testified 
    that the appellant told him he would telephone his lawyer after he was released, 
    which the appellant denied. The appellant was released at 8:47 p.m., without 
    having used the telephone.

[27]

Thus, from the time of his arrest at 1 p.m. until 7:30 p.m., the appellant 
    did not have access to a telephone to call his counsel or anyone else.

[28]

The appellant claimed that his right under s. 10(b) of the
Charter
to retain and instruct counsel without delay was infringed when he was held 
    incommunicado and denied access to a telephone for six-and-a-half hours, 
    from the time of his arrest until the search of his home was completed. He 
    sought a stay of proceedings under s. 24(1) or exclusion of the evidence obtained 
    in the search of his home (that is, the drug paraphernalia) under s. 24(2) 
    of the
Charter
.

[29]

The Crown conceded that there had been a breach of the appellants 
    right to consult counsel without delay from the commencement of the search 
    at 5:50 p.m. until he was offered the telephone at 7:30 p.m., but argued there 
    was no breach from the time of the appellants arrest until the search commenced 
    and the police had the situation at the appellants home under control.

The Decision of the Trial Judge

[30]

The trial judge found, relying on
R. v. Strachan
, [1988] 
    2 S.C.R. 980, that there was no breach of the appellants right to consult 
    counsel until the search warrant was executed at 5:50 p.m.  She accepted Constable 
    Richmonds concerns that officer safety and preservation of evidence would 
    have been jeopardized had the appellant been allowed to make a telephone call 
    before the police were in control, that is, on the premises beginning a lawful 
    search (at para. 32). She found, however, from the time the search commenced 
    until 7:30 p.m., when the appellant was offered the use of the telephone, 
    there was a violation of his
Charter
right to counsel. She concluded 
    nonetheless that the evidence obtained from the search of the appellants 
    home should not be excluded, as its admission would not render the trial unfair; 
    the violation, though serious, was not flagrant; and the exclusion of evidence 
    necessary to substantiate a charge could, in itself, bring the administration 
    of justice into disrepute (at paras. 40-41).

Grounds of Appeal

[31]

The appellants grounds of appeal relating to the alleged violation 
    of his right to counsel are accurately summarized by the Crown: whether the 
    trial judge erred in declining to exclude evidence or impose a stay of proceedings 
    under the
Charter
in connection with an infringement of the 
    appellants right to counsel without delay contrary to s. 10(b) of the
Charter
.

Violation of s. 10(b) of the
Charter

[32]

In my opinion, the trial judge erred in applying
Strachan
to the facts of this case and finding there was no breach of the appellants
Charter
right to counsel until the search warrant was executed.

[33]

In
Strachan
, four police officers executed a search warrant 
    at the home of the accused, knowing he was on the premises. There were two 
    other men, unknown to police, in the apartment. The police knew that the accused 
    had two restricted weapons on the premises and wanted to locate them. The 
    police refused the accuseds request to telephone his lawyer immediately after 
    he was arrested, telling him there would be no call until they had matters 
    under control. The accused was allowed to call his lawyer from the police 
    station, one hour and forty minutes after his arrest.

[34]

The Crown conceded on the appeals to this Court and the Supreme Court 
    of Canada that there had been a breach of the accuseds
Charter
right to consult counsel without delay when he was not allowed to call his 
    lawyer until he was taken to the police station.  The issue was therefore 
    whether the evidence obtained on the search should be excluded under s. 24(2) 
    of the
Charter
. Dickson C.J.C., for the majority, said this 
    about the breach of s. 10(b) (at pp. 998-999):

Section 10(b) and the Right to Counsel

The respondent has conceded in this Court and in the 
    Court of Appeal, that the police violated the appellant's right to counsel 
    when they refused to allow him to telephone a lawyer until after he was taken 
    to the police station. Because of that concession, it is not necessary to 
    consider the violation of the right to counsel in depth in this case, but 
    it is nevertheless opportune to comment on one aspect.

The trial judge rejected the argument that Constable 
    Bisceglia needed to get the situation "under control" before allowing 
    any telephone calls and held that the violation of the right to counsel occurred 
    as soon as the Constable refused to let the appellant telephone his lawyer. 
    Esson J.A. disagreed with the trial judge on this point and held that
Constable 
    Bisceglia's concern to stabilize the situation was a proper one
.  Although 
    it is not necessary to decide the point in this case, I would be inclined 
    to agree with Esson J.A.
The combination of an arrest in the accused's 
    home, the presence of two unknown people, and the knowledge that two restricted 
    weapons were in the apartment, was a potentially volatile situation
.  
    It is true the accused had the proper registration permits for the weapons, 
    but, notwithstanding, the possibility of their use was a serious matter for 
    a police officer to consider while taking a person into custody.  In my opinion,
Constable Bisceglia was justified in preventing any new factors from entering 
    the situation until some of the unknowns had been clarified
.  Thus I would 
    say that the violation of s. 10(b) did not occur when Constable Bisceglia 
    initially prevented the appellant from telephoning his counsel.  But
once 
    the accused had been arrested, the weapons located, and the other two people 
    had left, the police were clearly in control
and there was no reason why 
    they should not have allowed the appellant to telephone a lawyer.  I would 
    hold that the denial of counsel began from that point.

[My underlining.]

[35]

The principle that police are entitled to get a situation under control 
    before providing an accused person the opportunity to contact counsel was 
    applied by this Court in
R. v. Schultz
(1991), 67 C.C.C. (3d) 
    360 (B.C.C.A.).  In that case, the appellant was convicted on seven counts 
    of an indictment concerning the violent armed kidnapping, with accomplices, 
    of a Vancouver businessman. He was arrested at about 3 p.m. and a decision 
    was made by police (but not communicated to the accused) to prohibit him from 
    making any telephone calls, to protect certain victims from other suspects 
    still at large. He first requested, and was allowed, the opportunity to telephone 
    a lawyer between 8 p.m. and 9 p.m. Later in the evening, he called one of 
    his accomplices to ask her to warn the others. The Court held his s. 10(b) 
    right to counsel was not violated.

[36]

The Quebec Court of Appeal came to the same conclusion in
R. 
    v. James
, [2001] J.Q. No. 5232 (C.A.). In that case, the police denied 
    the appellant access to counsel for five-and-a-half hours in order to facilitate 
    the execution of search warrants and arrests of other suspects in Montreal 
    and Toronto. The investigation involved charges of first degree murder of 
    a security guard, an attack described as one of extreme violence. There 
    was evidence that a number of named suspects remained at large, and that the 
    appellant and an accomplice had travelled from Montreal to Toronto to carry 
    out an exchange of firearms.

[37]

Strachan
,
Schultz
and
James
were relied on by the trial judge in
R. v. Kiloh
, 2003 BCSC 
    209.  The accused were arrested at 10:35 a.m. for the armed robbery of a jewellery 
    store during which a hand-gun had been fired at a civilian who attempted to 
    hinder the escape of the robbers. The trial judge described the arrest (at 
    para.9): The arrest was a Code 5 take-down, which is used in high risk 
    situations for the safety of police. Code 5 refers to the police arresting 
    the accused by drawing and pointing their sidearms to bring the accused to 
    the ground and handcuff them.  The police suspended the two accused's exercise 
    of their right to consult counsel until after the search of their residence 
    was completed. The reasons for the suspension were to protect the safety of 
    the police officers conducting the search  there were unlocated firearms 
    and unidentified persons involved in the robbery  and preservation of evidence 
    which might be inside the residence. The accused arrived at the police detachment 
    at 11 a.m.; the residence was secured by 11:53 a.m.; and the accused were 
    allowed to use the telephone at 12:30 p.m.

[38]

The trial judge held that the two accused's s. 10(b) rights were properly 
    suspended while the police took control of the situation. She found that 
    the over suspension after the residence was secured probably amounts to 
    a s. 10(b) breach, because there was no longer a concern about officer safety 
    or preservation of evidence, but noted that it was brief and no attempts were 
    made to interview or question the accused during that time.  In the result, 
    the trial judge held that there was no violation of the accuseds s. 10(b) 
    right.

[39]

The Crown cited two other cases in support of its argument that there 
    was no violation of the appellants s. 10(b) right to counsel until after 
    the search was commenced:
R. v. Fairgrieve
(1996), 83 B.C.A.C. 
    219 and
R. v. Coates
(2003), 176 C.C.C. (3d) 215 (Ont. C.A.). 
    These cases do not support the Crown on this issue, however. In both cases, 
    the Crown conceded that there had been a breach of s. 10(b) and the issue 
    before the courts was whether the evidence should be excluded under s. 24(2). 
    In both cases, it was held that the evidence was admissible.

[40]

Strachan
,
Schultz
,
James
, 
    and
Kiloh
share certain characteristics not present in this 
    case. All of them dealt with investigations in progress, involving high risk, 
    volatile situations where firearms were known to be involved. The police had 
    identifiable reasons for concerns about the potential for violence and a risk 
    that evidence may disappear or be destroyed. In
Strachan
, the 
    police encountered not only the accused, but two other unknown persons, during 
    a search for known firearms. In
Schultz
, the accused was involved, 
    with accomplices, in a violent armed kidnapping. In
James
, the 
    accused and accomplices were involved in the violent murder of a security 
    guard, and were known to be trading in firearms. In
Kiloh
, the 
    accused were arrested in a volatile situation for armed robberies of jewellery 
    stores where shots had been fired at civilians.

[41]

In this case, the trial judge accepted that Constable Richmond had 
    concerns about officer safety and the preservation of evidence. But the concerns 
    were of a general nature; there was no evidence that the police knew there 
    were weapons in the residence, or that the appellant had accomplices in his 
    drug dealings that were at large or in the residence. There was no investigation 
    in progress until after the appellants arrest, which arose initially from 
    a roadside stop for a driving prohibition.  It took an unexplained three-and-a-half 
    hours to obtain the search warrant, and another fifty minutes until the search 
    of his home began. The suspension of the appellants right to counsel extended 
    over a total of six-and-a-half hours.

[42]

In my opinion, the appellants right under s. 10(b) of the
Charter
to retain and instruct counsel
without delay
was infringed when he 
    was not allowed to use a telephone shortly after he was taken to the police 
    detachment and charged. The police were not justified in suspending the 
    appellants right for six-and-a-half hours.

Admission of the Evidence  s. 24(2) of the
Charter

[43]

The trial judge held that the evidence obtained in the search of the 
    appellants residence, the drug paraphernalia, should not be excluded. I agree 
    with her analysis of the application of s. 24(2) of the
Charter
in these circumstances, despite my conclusion that the appellants right to 
    counsel was violated for a longer period of time.

[44]

The three factors to be considered are, as established by
R. 
    v. Collins
, [1987] 1 S.C.R. 265, the fairness of the trial, the seriousness 
    of the breach, and the effect of excluding the evidence on the administration 
    of justice.

[45]

The evidence obtained in the search was real evidence. The violation 
    of the appellants right to counsel had nothing to do with its discovery, 
    its admission as evidence at the trial, or the fairness of the trial.

[46]

The breach of the appellants right to counsel was more serious than 
    determined by the trial judge, but nonetheless I agree that it was not flagrant. 
    It is of some importance that during the time the appellant was denied access 
    to counsel, the police made no attempt to question him or elicit information. 
    The appellant has demonstrated no prejudice to him from the delay and, in 
    fact, he delayed contacting counsel, when given the opportunity, until after 
    he was released. The police were found to have had concerns about officer 
    safety and preservation of evidence, which had been held, in other cases, 
    to justify a suspension of right to counsel. That I have found their concerns 
    did not justify the suspension in the circumstances of this case will guide 
    police in the future, but for the purposes of this case, I would take the 
    view that the police acted in good faith, at least until they commenced their 
    search of the appellants home. (This is not to imply that they acted in bad 
    faith after that.) Insofar as the breach continued after that, the trial judges 
    analysis is entitled to deference and I see no reason to interfere: see
R. 
    v. Smith
, 2005 BCCA 334 at paras. 36-38.

[47]

The drug trafficking charge was serious and the drug paraphernalia 
    found in the search of the appellants home was important to the prosecution 
    of the charge. I agree with the trial judge that excluding that evidence could 
    bring the administration of justice into disrepute.

Stay of Proceedings  s. 24(1) of the
Charter

[48]

The appellant claims that the trial judge should have stayed the charges 
    against him because of the seriousness of the circumstances in which he and 
    his two passengers were held incommunicado for six-and-a-half hours.

[49]

It is sufficient in response to state that this was not one of the 
    clearest of cases that justify a stay of proceedings. There was no abuse 
    of the process of the courts or the justice system.

[50]

The appellant argues that the police breached s. 7(1) of the
Offence 
    Act
, R.S.B.C. 1996, c. 338. He maintains that breach provides an additional 
    reason why there should be a stay of proceedings under s. 24(1) or the evidence 
    obtained from the search should be excluded under s. 24(2) of the
Charter
.

[51]

The
Offence Act
provides in s. 7:

Right to telephone

7          (1)        Every person who is taken into 
    custody by a peace officer is entitled, on request to the person responsible 
    for his or her custody, to have access to, and the private use of, a telephone 
    as soon as possible at least once during the first 12 hours of his or her 
    custody.

(2)        A person who, without reasonable 
    excuse, hinders or prevents a person in custody from exercising the right 
    granted by subsection (1), commits an offence.

[52]

This argument is without merit. First, there was no breach of s. 7(1), 
    as the appellant was offered the use of a telephone within the first 12 hours 
    of his custody. Second, if there was a breach, s. 7(2) provides the remedy 
     the person in breach has committed an offence under the
Act
. 
    Third, it is doubtful that the
Act
applies to criminal proceedings 
    under the
Criminal Code
: see
Scowby et al. v. Glendinning
(1986), 29 C.C.C. (3d) 1 at 13 (S.C.C.), where the majority of the Supreme 
    Court of Canada held that provincial human rights legislation was constitutionally 
    inapplicable to arrest or detention under the provisions of the criminal law. 
    Fourth, s. 24 of the
Charter
provides remedies for violations 
    of
Charter
rights.

[53]

I would not accede to this ground of appeal.

Dealings with Police

[54]

On the appellants release from custody, as he was leaving the police 
    station, Constable Richmond gave him his business card and invited him to 
    provide information to the police. The evidence concerning this conversation 
    was conflicting.

[55]

Constable Richmond testified that he asked the appellant if he wanted 
    to provide information regarding drug activity or any other criminal offence. 
    Constable Richmond said he would listen and would tell the Crown that the 
    appellant had been cooperative. According to Constable Richmond, the appellant 
    took his card but said nothing in response.

[56]

The appellant testified that Constable Richmond told him if he gave 
    up his dealer then Constable Richmond would have the charges dropped to 
    possession. The appellant said that he told Constable Richmond he would think 
    about it. In cross-examination, he testified that Constable Richmond said 
    he drops the charges for all his [informant] friends. The appellant did 
    not believe that Constable Richmond had the power to drop charges and had 
    no intention of providing information because he was not a rat.

[57]

The appellant testified further that about a month later he was approached 
    by another officer who suggested that he call Constable Richmond about getting 
    those charges dropped to a lesser charge.  The other police officer denied 
    saying anything to the appellant about reducing charges because he was in 
    no position to make such an offer.

The Alleged Abuse of Process

[58]

The appellant sought a stay of proceedings on the ground that the discussions 
    initiated by the police were an abuse of process.

Decision of the Trial Judge

[59]

The trial judge rejected the appellants argument that there was any 
    abuse of process. As she put it (at para. 49): There was no meeting of the 
    minds here, no deal proposed, no deal contemplated and no deal accepted, and 
    there was no abuse of process in my view.

No Abuse of Process

[60]

The trial judge accepted the evidence of both Constable Richmond and 
    the appellant. She found that Constable Richmond had asked the appellant if 
    he wanted to give information and offered to tell the Crown that he had been 
    cooperative if any information was given. She also found that the appellant 
    did not believe that Constable Richmond could make a deal and had no intention 
    of providing information.

[61]

In these circumstances, the trial judge was correct in concluding there 
    was no abuse of process: see
R. v. Pawliuk
(2001), 148 B.C.A.C. 
    165 at paras. 49, 52, 57-58.

[62]

I would not accede to this ground of appeal.

[63]

I would dismiss the appeal.

The Honourable Madam Justice Levine

I AGREE:

The Honourable Mr. Justice Donald

I AGREE:

The Honourable Madam Justice Newbury


