



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Henareh,









2017 BCCA 7




Date: 20170110

Docket: CA43305

Between:

Regina

Respondent

And

Esfandiar Henareh

Appellant




Before:



The Honourable Chief Justice Bauman

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Fitch




On appeal from:  An
order of the Supreme Court of British Columbia, dated January 5, 2015 (
R. v.
Henareh
, 2014 BCSC 566, Vancouver Docket 26235-5).




Counsel for the Appellant:



J.P. Desbarats





Counsel for the Respondent:



W.P. Riley, Q.C.





Place and Date of Hearing:



Vancouver, British
  Columbia

December 16, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 10, 2017









Written Reasons by:





The Honourable Mr. Justice Fitch





Concurred in by:





The Honourable Chief Justice Bauman

The Honourable Madam Justice Kirkpatrick










Summary:

The appellant
appeals from conviction for possessing opium for the purposes of trafficking on
grounds that evidence obtained in a search of his vehicle incidental to a
warrantless arrest should not have been admitted at trial. The central issue is
whether the arresting officers subjective belief that he had reasonable
grounds to arrest the appellant was objectively reasonable. Held: appeal
dismissed. The trial judge did not err in law or misapprehend the evidence.
Though importation of drugs is not a continuing offence, the appellants
post-importation conduct afforded cogent evidence of his involvement in the
importation. The trial judge was not obliged to rule out every possible innocent
inference for the appellants suspicious activity. She properly assessed the
totality of the circumstances known to the arresting officer at the time of
the arrest and correctly concluded that the arresting officers subjective
belief was reasonable. There was ample evidence supporting her conclusion.

Reasons for Judgment of the Honourable Mr. Justice
Fitch:

A.       Introduction

[1]

On March 11, 2011, the appellant, Esfandiar Henareh, was arrested by
Sgt. Fossum for importing opium. The vehicle driven by the appellant at
the time was searched by a different officer incidental to the arrest.
Concealed in three coolers located in the trunk of the vehicle was 13.78
kilograms of opium with a wholesale value of approximately $275,000.

[2]

The central issue on this appeal is whether Sgt. Fossum had reasonable
grounds to arrest the appellant without a warrant under s. 495 of the
Criminal
Code
, R.S.C. 1985, c. C-46. More specifically, the issue is whether
Sgt. Fossums subjective belief that he had reasonable and probable grounds to
arrest the appellant was objectively reasonable. If the arrest was lawful, the
appellant concedes, as he has throughout, that it afforded justification for
the search of the vehicle.

[3]

Following a six-day
voir dire
, the trial judge held, in reasons
indexed as 2014 BCSC 566, that the arrest was lawful because Sgt. Fossum
subjectively believed that he had reasonable and probable grounds to arrest the
appellant and his belief was objectively reasonable. The trial judge admitted
the drug-related evidence, and the appellant was convicted of one count of
possession of opium for the purpose of trafficking contrary to s. 5(2) of
the
Controlled Drugs and Substances Act
,

S.C. 1996, c. 19. He
appeals from conviction.

[4]

In my view, the trial judge did not err in concluding that Sgt. Fossum
had objectively reasonable grounds to arrest the appellant for importing opium.
For the reasons that follow, I would dismiss this appeal.

B.       Background

(a)      Overview of Events Leading to the Arrest

[5]

On January 27, 2011, Sgt. Fossum received information from an unknown
tipster that a man named Aghasi, said to be associated with a particular
address in Burnaby, and a man named Henareh were involved in importing opium
into Canada. Sgt. Fossum relayed this information to the Canada Border Service
Agency (CBSA).

[6]

On February 3, 2011, Sgt. Fossum received additional information from
the same tipster that Aghasi and Henareh were importing opium from Iran,
that Aghasi had been responsible for importing large amounts of opium into
Canada, and that there was a large amount of opium in his Burnaby residence.

[7]

Within a few hours of receiving this information, Sgt. Fossum attended
at the Burnaby address provided by the tipster and spoke with Aghasi Salamat
Ravandi. Mr. Salamat Ravandi confirmed that he was from Iran and that
while his father was an opium addict, he had never before seen opium. He
invited Sgt. Fossum to do a cursory search of the apartment. No opium was
discovered.

[8]

On March 9, 2011, Sgt. Fossum received information from the CBSA that a
shipment had arrived from Iran addressed to Mr. Salamat Ravandi at his
Burnaby residence. The shipment consisted of four large packages that were said
to contain samovars (teapots) and rugs. The packages were referred for
secondary inspection. Three of the packages contained samovars. One package
contained rolled up rugs. The samovars were deconstructed and found to contain a
total of approximately 18 kilograms of opium.

[9]

On the same day, Mr. Salamat Ravandi attended at the CBSA Air Cargo
Centre in Richmond to collect the shipment. He was told that it would take a
number of days for the shipment to clear and that he would be contacted to
re-attend for pick up.

[10]

Sgt. Fossums team, working in collaboration with the CBSA, began
planning a controlled delivery of the packages to Mr. Salamat Ravandi on March
14, 2011.

[11]

On March 11, 2011, Mr. Salamat Ravandi unexpectedly returned to the
CBSA Air Cargo Centre to collect the shipment. Sgt. Fossum was advised of this
development and a surveillance team was quickly assembled consisting of RCMP
and CBSA officers.

[12]

Mr. Salamat Ravandi was invited by a CBSA officer to wait in a
small coffee shop adjacent to the CBSA Air Cargo Centre for his packages to be
readied for delivery. He was observed by surveillance officers sitting at a table
in the café. A second Persian man, later identified as the appellant, was
seated in the café at the same time. Both men were typing on their handheld
devices but did not speak or appear to acknowledge one another. Mr. Salamat
Ravandi exited the café. Shortly thereafter, the appellant exited the café and
walked in the same direction as Mr. Salamat Ravandi.

[13]

The appellant was observed getting into a Honda Civic with an identified
licence plate number.

[14]

Mr. Salamat Ravandi returned to the CBSA Air Cargo Centre with a
U-Haul van to collect the shipment. The four packages were loaded into the van
and Mr. Salamat Ravandi drove away. He was followed by surveillance
officers.

[15]

Sgt. Fossum observed Mr. Salamat Ravandi pull over and park in the
2000 block of S.E. Kent Avenue in Vancouver. He appeared to have his head down,
sending text messages on his phone. He did not exit the van. Three minutes
later, he did a U-turn and drove back down the street. He parked on SE Kent in
front of a building associated with the address of the plate holder for the Honda
the appellant was seen driving away from the CBSA Air Cargo Centre.

[16]

At this point, Sgt. Fossum noticed the appellant standing near the Honda
right across the street from where Mr. Salamat Ravandi parked the van. The
appellant did not immediately cross the street but continued to look to his left
and right, even though it was safe for him to cross the street and join Mr. Salamat
Ravandi.

[17]

The appellant eventually crossed the street to where Mr. Salamat Ravandi
parked the U-Haul. From a distance of approximately 150 metres and while using binoculars,
Sgt. Fossum watched the two men load one of the packages from the van into the
Honda. From his vantage point, Sgt. Fossum could not tell which one of the four
packages was transferred to the Honda. Both men then got into the Honda and the
appellant drove away. Sgt. Fossum and other surveillance officers followed.

[18]

For a couple of minutes, the appellant drove behind a slow-moving
transport truck without attempting to pass. Sgt. Fossum testified that it made
no sense for the appellant to stay behind the truck.

[19]

The appellant then turned into Central Park. The park is serviced by one
road. The appellant backed into a parking space enabling a clear view of anyone
else entering the park. Mr. Salamat Ravandi got out of the vehicle and had
a cigarette. The two men left the park about seven minutes later.

[20]

The appellant drove in the direction of Mr. Salamat Ravandis
residence, but took an indirect route that added distance and travel time.

[21]

The appellant parked a block or two away from Mr. Salamat Ravandis
residence in Burnaby. The appellant stayed in the vehicle while Mr. Salamat
Ravandi got out and began walking towards his building. This made no sense to
Sgt. Fossum because there was ample parking closer to Mr. Salamat
Ravandis building.

[22]

The appellant then drove around to the back alley of Mr. Salamat
Ravandis building. Sgt. Fossum stopped the Honda and arrested the appellant
for importing a controlled substance.

[23]

After the arrest, Sgt. Fossum directed Cpl. Greenway to search the
Honda. The package transferred from the U-Haul to the Honda was discovered to
be the one that contained rugs. As mentioned earlier, Cpl. Greenway found
13.787 kilograms of opium in three coolers located underneath a blanket in the
trunk of the Honda.

(b)      Subjective Grounds for the Arrest

[24]

There is no question that Sgt. Fossum subjectively believed he had
reasonable and probable grounds to arrest the appellant for importing opium. He
testified on the
voir dire
that his subjective belief in the existence
of reasonable grounds to arrest the appellant for this offence was based on his
evaluation of the following information:

·

the tips received on January 27 and February 3, 2011, had been
confirmed in important ways. As the tipster indicated, a large shipment of
opium had been shipped to Aghasi Salamat Ravandi at his Burnaby address from
Iran;

·

the tips included the fact that a second man was involved with
Aghasi in the importation of opium from Iran;

·

a second Persian man, later identified as the appellant, was seen
sitting in the café while Mr. Salamat Ravandi waited for his shipment to clear.
Based on surveillance information relayed to him, Sgt. Fossum believed that
they were texting with one another but wanted to conceal the fact that they
were together. Sgt. Fossum testified that he believed the second Persian mail
to be involved because it makes no sense not to be  not  it would make no
sense for him not even to be with his friend;

·

Sgt. Fossum also testified that, based on his experience, the
behaviour of the appellant in the café was consistent with the role played by a
watcher in an importation scheme. He testified that watchers are used about
90% of the time;

·

both men left the café at the same time without talking to one
another;

·

the behaviour of the appellant on SE Kent  looking to his left
and right as Mr. Salamat Ravandi remained seated in the U-Haul van parked
across the road  was consistent with the activity of a watcher seeking to
flush out surveillance;

·

the appellant eventually met up with Mr. Salamat Ravandi on
SE Kent and the two men carried one of the four packages from the U-Haul to the
Honda; and

·

the appellant subsequently engaged in what Sgt. Fossum described
as common counter-surveillance techniques or heat checks, including: driving
behind a slow-moving vehicle in such a way as to force trailing surveillance
officers to pass or be exposed; stopping in Central Park to flush out
surveillance; taking a circuitous route from SE Kent to a location near the
Burnaby residence of Mr. Salamat Ravandi; and parking several blocks away
from Mr. Salamat Ravandis residence when there was no reason to do so.

[25]

In cross-examination, Sgt. Fossum testified that he believed the package
transferred from the U-Haul to the Honda was one of the three packages
containing opium-stuffed samovars (as opposed to the package containing rugs)
as this accounted for what he considered to be heat checks engaged in by the
appellant after the transfer occurred.

[26]

Sgt. Fossum explained that everything together caused him to believe
that both men were directly involved in the importation of opium.

C.       Reasons for Judgment on the
Voir Dire

[27]

The trial judge engaged in an extensive review of the governing
jurisprudence. The appellant does not suggest that the trial judge misdirected
herself on the applicable law.

[28]

The trial judge also engaged in an exhaustive review of the evidence. She
noted that Sgt. Fossum was an experienced drug investigator, knowledgeable in
matters pertaining to the importation of drugs, including opium. She found him
to be a credible and reliable witness.

[29]

The trial judge referenced the specific information provided in the tips
and found that the tips had been shown to be quite reliable through
independent confirmation. She noted that the commission of the crime itself
confirmed the reliability of much of the information supplied by the tipster.
Given the general reliability of the tipsters information, she concluded that
it was objectively reasonable for Sgt. Fossum to proceed on the basis that a
second male was working with Mr. Salamat Ravandi in the smuggling of opium
as the tipster had indicated.

[30]

The trial judge characterized the appellant and Mr. Salamat Ravandis
behaviour in the café as purposefully avoidant. Viewing the circumstances in
their totality, she concluded that if the appellant was an innocent dupe merely
assisting a friend with an errand, he would not have avoided speaking with or
sitting near Mr. Salamat Ravandi in the café. She said:

[49]      Taken
cumulatively, the events raise a much stronger probability that the two persons
were acting together in the importation of opium. Once the police had seen Mr. Henareh
at the airport and then again on Kent Street, they were entitled to look at the
two circumstances together: If Mr. Henareh was an innocent party just
helping out Mr. Ravandi, why would he avoid speaking to him or sitting
near him in a small airport café when they meet a short time later. This
purposeful avoidance is inconsistent with a mere associate helping a friend in
what he believed was an innocent activity.

[31]

She referenced the transfer of one of the packages from the U-Haul to
the Honda and the appellants role in facilitating that transfer. She noted the
heat checks engaged in by the appellant after the package had been
transferred to the Honda. Based on the appellants surveillance-conscious behaviour
after the transfer, she found that it was reasonable in the totality of the
circumstances for Sgt. Fossum to believe that the bag which had been moved into
the Honda contained opium.

[32]

With respect to the central issue that arises on this appeal, the trial
judge said:

[71]
The level of particularity in his
[Sgt. Fossums] testimony regarding the conduct of Mr. Henareh, in
relation to his experience and the information in his possession at the time of
arrest as set out above, provides ample evidence for me to find that not only
did Sgt. Fossum subjectively believe he had reasonable and probable grounds to
arrest Mr. Henareh, but also that a reasonable person in his place would
have believed that there were reasonable and probable grounds for the arrest.

[72]
The Crown has discharged its onus
on both the subjective and objective elements of the test.

[73]
I
therefore find that the arrest was lawful under s. 495(1)(a) of the
Criminal Code
, as the arresting officer had, both
subjectively and objectively, reasonable and probable grounds to arrest Mr. Henareh
in the totality of the circumstances.

D.       The Positions of the Parties

[33]

The appellant argues that that the trial judge erred in law in finding
Sgt. Fossums subjective belief to be objectively reasonable. While the
appellants submissions focussed on the trial judges reliance on his behaviour
in the café and her assessment of the reliability of the information contained
in the tip, he advances a number of additional points. In particular, he argues
that:

·

Sgt. Fossum blindly accepted the inference drawn by unknown
CBSA surveillance officers from the behaviour of the two men in the café that Mr. Salamat
Ravandi and the appellant didnt want it to be known that they knew each
other. In the absence of additional supporting facts, it was not reasonable
for Sgt. Fossum to proceed on this factual footing;

·

Likewise, the trial judges inference that the appellant and Mr. Salamat
Ravandi engaged in purposefully avoidant behaviour while together in the café
is said to be based on a misapprehension of the evidence. The trial judges
finding that the appellant avoided sitting near Mr. Salamat Ravandi in the
café was not a fact relayed to Sgt. Fossum. Although it was set out in an
agreed statement of facts that the two men sat at separate tables in the café,
Sgt. Fossum did not testify that he had been so informed. It was, therefore, an
error for the trial judge to incorporate this into her purposeful avoidance
finding. The error is said to be material because it affected the trial judges
assessment of the objective reasonableness of Sgt. Fossums grounds to arrest.
Specifically, the trial judge relied on this finding to reject a competing
inference put forward by the appellant that he was an innocent party helping
out a friend with what he believed to be a legitimate pick up of goods;

·

Importation of opium is not a continuing offence; it is complete
once the drugs have entered the country:
R. v. Bell
, [1983] 2 S.C.R. 471.
Accordingly, any observations about the appellants suspicious behaviour
subsequent to the importation of the drugs could not, standing alone, give rise
to reasonable and probable grounds to arrest him for opium importation;

·

The trial judge erroneously found that the reliability of the tipsters
information had largely been confirmed by the time of the arrest. In fact, all
of the details of the tip that were corroborated related to Mr. Salamat Ravandi
and not to the appellant. At the time of the arrest, there was no corroboration
that a second person was involved in the importation of opium aside from
unreasonable inferences made by CBSA officers regarding the appellants
behaviour in the café;

·

The trial judge erroneously found that it was reasonable for Sgt.
Fossum to have believed that the package loaded into the Honda contained drugs.
There was no evidence before her to justify that conclusion because the size
and shape of the package loaded into the Honda was different from the packages
that contained drugs; and

·

The trial judge erred in finding that Sgt. Fossums belief was
objectively reasonable when it was clear that a number of competing and innocent
inferences could be drawn from the appellants behaviour.

[34]

The appellant argues that his detention was arbitrary and the search of
his vehicle that led to the discovery of the opium a breach of his s. 8
rights.

[35]

The Crown submits that the trial judge made no error in fact or in law.
The Crown argues there was abundant evidence to support the trial judges
conclusion that Sgt. Fossums subjective belief that he had grounds to arrest
the appellant for importing opium was objectively reasonable.

F.       Analysis

(a)      Governing Legislation

[36]

Section 495(1)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46,
provides that:

495.  (1)  A peace officer may
arrest without warrant

(a)     a person who has committed an indictable offence or
who, on reasonable grounds, he believes has committed or is about to commit an
indictable offence.

(
b)      Guiding
Principles

[37]

A number of uncontentious principles frame the core issue that arises
for determination on this appeal.

[38]

In
R. v. Storrey
, [1990] 1 S.C.R. 241 at 250-251, the Court held
that there is a subjective and objective element to the test for a lawful
arrest under s. 495(1)(a):

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.

[39]

The reasonable grounds standard requires something more than mere
suspicion, but something less than the standard applicable in civil matters of
proof on the balance of probabilities:
Mugesera v. Canada (Minister of
Citizenship & Immigration)
, 2005 SCC 40 at para. 114. The
appropriate standard is one of reasonable probability:
R. v. Debot
,
[1989] 2 S.C.R. 1140 at 1166. Reasonable or credibly-based probability
contemplates a practical, non-technical and common sense evaluation of the
probability of the existence of facts and asserted inferences:
R. v. Sanchez
(1994), 93 C.C.C. (3d) 367 at 367 (Ont. Ct. (G.D.)).

[40]

Determining whether reasonable and probable grounds exist requires an
assessment of the totality of the circumstances:
R. v. Debot
at 1168.

[41]

A trial judges ruling on whether objectively reasonable grounds to
arrest have been shown is a question of law subject to a correctness standard:
R.
v. Shepherd
, 2009 SCC 31 at para. 20. Factual findings and inferences
made in the course of the analysis are, however, entitled to deference and fall
within the exclusive domain of the trial judge absent palpable and overriding
error:
R. v. Mann
, 2004 SCC 52 at para. 49;
R. v. Cornell
,
2010 SCC 31 at para. 25;
R. v. Bush
, 2010 ONCA 554 at para. 48.

[42]

Trial judges are obliged to assess the objective reasonableness of an
arresting officers belief that he or she had reasonable grounds to arrest from
the perspective of a reasonable person standing in the arresting officers shoes.
The analysis takes account of the arresting officers knowledge and experience
with respect to the matter under investigation:
R. v. Luong
, 2010 BCCA
158 at para. 24;
R. v. Wilson
, 2012 BCCA 517 at para. 26.

(c)      Surveillance at the Café and the Alleged
Misapprehension of the Evidence

[43]

I will deal together with the first two points made by the appellant.

[44]

First, there is no evidence that Sgt. Fossum blindly accepted the
observations communicated to him by the surveillance team that the appellant took
steps to make it appear as if he did not know Mr. Salamat Ravandi when
both of them were in the café. The trial judge made no such finding and it is
clear from the evidence of Sgt. Fossum that he weighed the totality of the
information before him before determining to arrest the appellant for importing
opium. Further, the appellants submission on this and on other points invites
an inappropriate piecemeal assessment of the evidence. The trial judge
correctly approached the central issue before her  whether Sgt. Fossums
subjective grounds for arrest were objectively reasonable  on the basis of the
totality of the information available to him.

[45]

I am also unable to accept the submission that the trial judge
misapprehended the information that had been communicated to Sgt. Fossum by the
surveillance team about the appellants behaviour in the café. While Sgt.
Fossum did not specifically testify that he had been informed that the two men
avoided sitting near one another in the café, it is clear that he was supplied
with the essence of this information. On direct examination, Sgt. Fossum
testified that Mr. Salamat Ravandi was observed sitting and there was
another male  Persian male  that was sitting and the  they both seemed to be
connected On cross-examination, Sgt. Fossum testified that he believed the
two men were texting each other because it makes no sense not to be  not  it
would make no sense for him not even to be with his friend It was open to the
trial judge to put these statements together and find that Sgt. Fossum had been
informed that the two men were not sitting together. Further, the trial judges
finding that the appellant and Mr. Salamat Ravandi engaged in purposefully
avoidant behaviour while they were in the café was reasonable and supported by
the subsequent behaviour of the two men on SE Kent. In my view, there is no
basis upon which this Court could properly interfere with what amounts to a
factual inference.

(d)      The Offence of Importing Opium was
Complete when the Appellant Attended at the CBSA Air Cargo Centre

[46]

The appellant argues that importation of drugs is not a continuing
offence and that it was unreasonable for Sgt. Fossum to infer that he was
involved in importing opium based on his behaviour after the drugs had entered
Canada. I cannot accede to this argument. Although importation is not a
continuing offence, I agree with the position of the Crown that subsequent conduct
can afford cogent evidence of involvement in the offence of importing drugs. I
see nothing wrong with the trial judges evaluation of the reasonableness of
Sgt. Fossums grounds for arrest in light of the appellants post-importation
conduct. This is particularly true in the instant case where the police had information
that two men were involved in importing opium from Iran.

(e)      The Trial Judges Reliance on the
Tipsters Information

[47]

I cannot accept the appellants submission that the trial judge
committed reviewable error by overemphasizing the reliability of the tipsters information.

[48]

Although nothing was known of the tipsters history of reliability, the
information supplied by the informer was rich in detail and confirmed in
material ways. In these circumstances, it was reasonable for Sgt. Fossum to
regard the tip as a whole as reliable, including information that a second man
was involved in importing opium from Iran. Indeed, this information could
reasonably be regarded as having been confirmed by the appellants conduct the
day Mr. Salamat Ravandi took delivery of shipment.

(f)       The Trial Judges Finding that it was
Reasonable for Sgt. Fossum to Believe that the Package Transferred to the Honda
Contained Opium

[49]

Similarly, I cannot accept the appellants argument that the trial judge
erred in finding that it was reasonable for Sgt. Fossum to believe that the
package transferred from the van to the Honda contained opium. From his vantage
point, Sgt. Fossum could not tell one package from the other. It must be
remembered that Sgt. Fossum was conducting covert surveillance from a
considerable distance. All four packages were similar in size and the same
colour. Three of the four packages were known to contain opium. The trial judge
found that it was reasonable, in the totality of the circumstances, for Sgt.
Fossum to believe that the package transferred to the Honda contained opium.
The totality of the circumstances included the post-transfer
counter-surveillance measures employed by the appellant. I see no reviewable
error in the conclusion the trial judge reached on this point.

[50]

I cannot accept the appellants further submission that Sgt. Fossum
placed no reliance on the heat check evidence in formulating what he
considered to be reasonable grounds to make the arrest. While Sgt. Fossum
testified on the
voir dire
that he thought he had reasonable grounds to
arrest when the package was transferred to the Honda, it is apparent from his
evidence as a whole that the appellants counter-surveillance measures also factored
into the formulation of his subjective belief that the appellant was arrestable
for the offence of importing opium. As a consequence, the trial judge made no
error in considering this evidence in determining whether those grounds were
objectively reasonable.

[51]

In summary, the trial judges finding on this point was entirely
reasonable and untainted by palpable or overriding error. Again, there is no
basis upon which this Court could properly interfere on this ground.

(g)      Failure to Consider Other Innocent
Explanations for the Appellants Behaviour

[52]

The appellant argues that the trial judges reasoning effectively
foreclosed consideration of other innocent inferences that might be drawn
from his behaviour at the café and other interpretations of the
counter-surveillance measures. I cannot give effect to this argument. I agree
with the Crown that the appellants submission on this point overlooks the
nature of the reasonable grounds analysis. The trial judge was not obliged to
scrutinize the evidence by employing tests applicable to the determination of
guilt or innocence. She was not obliged to rule out every possible innocent
inference for suspicious activity in determining whether Sgt. Fossums grounds
for arrest were objectively reasonable. Rather, she was obliged to consider the
totality of the circumstances relied upon by Sgt. Fossum and decide whether a
reasonable person standing in the arresting officers shoes and imbued with
that officers knowledge and experience would have believed that reasonable grounds
existed to make the arrest.

(h)      Objective Reasonableness of Sgt.
Fossums Grounds for Arrest

[53]

The trial judge considered the totality of the circumstances and
concluded that it was objectively reasonable for Sgt. Fossum to have believed
that he had reasonable grounds to arrest the appellant for importing opium. In
my view, the trial judge correctly resolved this issue. Given the totality of
the circumstances known to him at the time of the arrest, it was objectively
reasonable for Sgt. Fossum to believe that the man driving the Honda was the
second person identified by the tipster as being involved with Mr. Salamat
Ravandi in importing opium from Iran to Canada. I see no reviewable error in
the trial judges finding on this critical issue. Indeed, I agree with her
observation that there was ample evidence supporting a conclusion that Sgt.
Fossums grounds for the arrest were objectively reasonable.As the arrest of
the appellant was lawful, the search of the appellants vehicle was justified
because it was incidental to the arrest. The appellants
Charter
rights
were not breached in the events that led up to the discovery of the evidence.
In light of the conclusion I have come to on these points, it is unnecessary to
consider the application of s. 24(2).

[54]

I would dismiss the appeal.

The Honourable Mr. Justice Fitch

I AGREE:

The
Honourable Chief Justice Bauman

I AGREE:

The Honourable Madam Justice
Kirkpatrick


