



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 appellants 
    arguments.  It follows that I would dismiss the appeal.

Evidence and Trial Judges 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 appellants 
    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 appellants vehicle.

[5]

The trial judges 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 appellants arguments in this Court, I will reproduce them in full:

[1]
THE COURT:
T
he issue 
    on the voir dire is the admissibility of evidence found on a search of the 
    accuseds 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 judges 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 accuseds possession is about one 
    gram of cocaine.

Grounds of Appeal

[7]

The appellants 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;

(c)        
    in finding there were objectively reasonable and probable grounds to arrest 
    the appellant; and

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

Reliability of Constable Thomsons Evidence

[8]

The appellant claims that it was incumbent on the trial judge to address 
    the reliability of Officer Thomsons evidence, pointing to what he says are 
    inconsistencies and uncertainties in the officers testimony arising out of 
    cross-examination.

[9]

The appellant acknowledges that no issue concerning the officers credibility 
    or reliability was raised by defence counsel at trial, and that none of the 
    trial judges 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 officers testimony, by expressly commenting on the reliability 
    of the witnesss 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 appellants factum and submissions on the appeal, it appears 
    that the appellant objects to the trial judges conclusion that pulling over 
    the appellants vehicle was an authorized detention on two bases:  first, 
    that the trial judge did not deal with the reliability of the officers 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 appellants argument that the trial judge erred 
    in law in failing to address the reliability of the officers 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 thats the basis for investigative detention.

[18]

Defence counsels 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 counsels submissions, that 
    at the time the officer pulled the appellants 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 officers
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 officers 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 officers observation 
    of the accuseds 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 appellants vehicle 
    was the call that was received by the appellant.  The appellant points to 
    the officers acknowledgment that he did not take steps, by calling the appellants 
    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 appellants vehicle, and that the number was, in fact, connected 
    to the appellants 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 didnt 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 officers 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 judges 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 appellants 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 appellants argument focuses on the trial judges acceptance of 
    the officers evidence that two calls were received on the appellants 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 appellants cell phone on 
    after seizing it.  Obviously, the trial judge accepted the officers 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 judges 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


