



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Ward,









2010 BCCA 1




Date: 20100104

Docket:
CA036841

Between:

Regina

Respondent

(
Respondent
)

And

Gail
Phyllis Ward

Applicant

(
Appellant
)






Before:



The Honourable Mr. Justice Lowry





(In Chambers)




On
appeal from: Supreme Court of British Columbia, December 1, 2008,
(
R. v. Ward
, 2008 BCSC 1653, Docket X071775)




Counsel for the Appellant:



M.
  T. K. Berry





Counsel for the (Crown) Respondent:



W.
  P. Riley





Place and Date
  of Hearing:



Vancouver, British Columbia





December 18, 2009





Place and Date of Judgment:



Vancouver
, British Columbia





January
  4, 2010






Reasons for
Judgment of the Honourable Mr. Justice Lowry:

[1]

The applicant seeks leave to appeal the order of
a judge of the Supreme Court dismissing her appeal of her conviction before the
Provincial Court for possession of a small quantity of cocaine.  At issue is
the trial courts determination that the admission of evidence obtained in a
manner that infringed the applicants
Charter
rights would not bring the
administration of justice into disrepute: s. 24(2).

The
Conviction


[2]

The applicant was arrested after being observed
in suspicious circumstances in a back alley in Surrey in an area known to
police as a place where people in the drug trade congregated to conduct drug
transactions.  The arresting officer was an experienced police officer who had
worked in the area for a long time.  He had observed literally hundreds of drug
transactions and carried out many arrests and drug seizures.  He observed the
applicant together with several other individuals standing in an alley.  The
applicant was holding a weight scale.  She and another person appeared to be
attempting to conceal what they were doing.  Both were seen to be conducting
what the officer referred to as heat checks, being visual scans for police. 
After making these observations, and determining he had sufficient grounds, he
arrested the applicant, conducted a search incidental to arrest, and found a
small amount of rock cocaine in a contact lens container in her left jacket
pocket.

[3]

On conducting a
voir dire
, the trial
judge found that the officer did not have reasonable and probable grounds for
arrest, and that the ensuing search was therefore in violation of the applicants
s. 8
Charter
rights.  He then followed the approach to the s. 24(2)
analysis prescribed by the Supreme Court of Canada in
R. v. Collins
,
[1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1, and
R. v. Stillman
, [1997]
1 S.C.R. 607, 113 C.C.C. (3d) 321, in determining that the admission of
the evidence would not bring the administration of justice into disrepute.  He
concluded:

[9]  Turning next to the next part of the
Collins
test, I find that while this breach was not a flagrant breach, not particularly
obtrusive or egregious, it was certainly deliberate.  But the officer had a
subjective, genuine belief in the lawfulness of what he was doing.  I therefore
find at the end of the day, applying the
Collins
test to this evidence,
that it has not been established by the defence, on a balance of probabilities,
that the admission of the cocaine in this case would bring the administration
of justice into disrepute, and accordingly I decline to exclude the evidence.

[
R. v. Ward
(17 March 2008) Surrey Registry 165532-1 (B.C. Prov. Ct.)]

[4]

On admitting the evidence, the judge then found
the applicant guilty as charged.

[5]

For reasons indexed as 2008 BCSC 1653, the judge
presiding in the Supreme Court upheld the trial judges decision, finding no
apparent error as to the applicable principles or any unreasonable finding (para.
34). She found the trial judge considered all the relevant factors and that the
evidence was properly admitted.

The
Application


[6]

The considerations on an application of this
kind were recently restated in
R. v. Winfield
, 2009 YKCA 9, 79
M.V.R. (5th) 19:

[13]  To
obtain leave to appeal from the decision of a summary conviction appeal court,
the applicant must establish that (a) the ground of appeal involves a question
of law alone, (b) the issue is one of importance, and (c) there is
sufficient merit in the proposed appeal that it has a reasonable possibility of
success.  The overriding consideration in the exercise of the discretion
to grant or refuse leave is the interests of justice:
R. v. Cai
,
2008 BCCA 332, 258 B.C.A.C. 235 at para. 26 (Chambers);
R. v. Gill
,
2008 BCCA 259 at para. 3 (Chambers).

[7]

The applicant contends the approach to be taken
to a s. 24(2) analysis is now different than it was at the time of the trial,
and the first level of appeal, by virtue of the Supreme Court of Canadas
decision in
R. v. Grant
, 2009 SCC 32, 245 C.C.C. (3d) 1.  This is said
to raise a question of law of sufficient importance to merit the proposed
appeal being heard.  The applicant maintains that under the approach that is
now prescribed, the evidence obtained by the officer would have to be held to
be inadmissible.

[8]

In
Grant
, at para. 71, McLachlin C.J.C.
and Charron J., writing for the majority, said s. 24(2) requires a court to
balance the effect of admitting evidence on societys confidence in the justice
system based on three lines of inquiry:

... whether the admission
of evidence obtained in breach of the
Charter
would bring the
administration of justice into disrepute engages three avenues of inquiry, each
rooted in the public interests engaged by s. 24(2), viewed in a long-term,
forward-looking and societal perspective.  When faced with an application
for exclusion under s. 24(2), a court must assess and balance the effect of
admitting the evidence on societys confidence in the justice system having
regard to: (1) the seriousness of the
Charter
-infringing state
conduct (admission may send the message the justice system condones serious
state misconduct), (2) the impact of the breach on the
Charter
-protected
interests of the accused (admission may send the message that individual rights
count for little), and (3) societys interest in the adjudication of the case
on its merits.  The courts role on a s. 24(2) application is to balance
the assessments under each of these lines of inquiry to determine whether,
considering all the circumstances, admission of the evidence would bring the
administration of justice into disrepute.

[9]

In assessing the seriousness of the infringing
conduct, the court should consider whether admission of the evidence would
suggest to the public that the court condones state deviation from the rule of
law:
Grant
at para. 72.  In making this determination, the court should
evaluate the seriousness of the police conduct with an eye to whether the
violation was minimal and inadvertent, or reckless and wilful. Good faith that
is not a result of ignorance of or wilful blindness of
Charter
standards
is a factor that weighs towards admission.  Deliberate police conduct in
violation of established
Charter
standards supports exclusion:
Grant
at para. 76.

[10]

Consideration of the impact on the protected
interests of an accused requires the court to evaluate the extent to which the
breach undermined the interests protected by the right infringed:
Grant
at paras. 76-78.  A s. 8 violation impacts on the right to privacy and to
human dignity.  A higher expectation of privacy in the area of violation
results in a greater negative impact on the interests protected by s. 8.

[11]

With respect to societys interest in an
adjudication on the merits, the court must assess the impact on the perception
of the administration of justice in failing to admit the evidence.  The fact
that evidence is reliable is not determinative of its admission:
Grant
at para. 80.  The reliability of the evidence and the fact that it will
facilitate the discovery of the truth is a factor to weigh against other
factors that tend toward exclusion.

Discussion


[12]

The applicant contends that in saying the search
the officer undertook was deliberate the judge found the
Charter
breach
to have been wilful.  She maintains that renders the officers infringing
conduct serious.  The applicant also contends that, contrary to what the trial
judge said, the search conducted was intrusive because the pocket where the
cocaine was found was where there was a high expectation of privacy resulting
in a negative impact on the right protected.  As I understand the
submission, it is that on the basis of these two considerations the proposed
appeal has sufficient merit to warrant leave being granted.

[13]

I am unable to accept that is so.

[14]

With respect to the seriousness of the
infringing conduct, I do not accept the judge found the officer wilfully
infringed the applicants
Charter
rights.  The judge found the officer
acted deliberately in the sense that he intended to arrest and search the
applicant, but he lacked bad faith in acting as he did, because he had a
subjective, genuine belief in the lawfulness of what he was doing.  This
renders the infringement less serious and weighs towards admitting the
evidence.

[15]

The judge saw the search as not particularly
obtrusive or egregious.  It was a relatively minor search which quickly led to
the discovery of the small quantity of cocaine.  While a persons pocket may be
a place where there is a relatively high expectation of privacy, it does not
necessarily follow that the impact on the right protected in this instance was
so great as to tip the balance of the s. 24(2) assessment against admission of
the evidence.

[16]

The evidence recovered as a result of the search
conducted by the officer was highly reliable and its exclusion would have a
negative impact on the determination of the truth.  Certainly that was, in this
case, a factor weighing in favour of admission in serving societys interest in
an adjudication on the merits.

[17]

While it may be the issue on the proposed appeal
is one of law, it involves a deferential standard, and I consider it of
questionable importance given the context in which it is raised.  In any event,
I do not consider the appeal would have any reasonable prospect of success and
it would not, in my view, be in the interests of justice to grant leave.

[18]

The application for leave to appeal is
accordingly dismissed.

The Honourable Mr. Justice Lowry


