



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Lloyd,









2019 BCCA 25




Date: 20190115

Docket: CA45046

Between:

Regina

Respondent

And

Joseph Ryan Lloyd

Appellant




Before:



The Honourable Mr. Justice Harris

The Honourable Madam Justice Stromberg-Stein

The Honourable Madam Justice Fenlon




On appeal from:  An
order of the Provincial Court of British Columbia, dated September 18, 2017
(conviction) and January 5, 2018 (sentence) (
R. v. Lloyd
, Vancouver
Registry 233735-2-C).

Oral Reasons for Judgment




Counsel for the Appellant:



D.N. Fai





Counsel for the Respondent:



J.N. Walker





Place and Date of Hearing:



Vancouver, British
  Columbia

January 15, 2019





Place and Date of Judgment:



Vancouver, British
  Columbia

January 15, 2019








Summary:

Appeal of convictions on basis
that an arrest search incidental to arrest that produced evidence on which some
of the convictions depended was unlawful and the search unreasonable. Appeal
dismissed; the judge did not misapprehend the evidence critical to her
conclusion that the arrest was lawful, the search was reasonable, and the
evidence was admissible.

[1]

HARRIS J.A.
: Mr. Lloyd appeals his conviction of multiple
counts of possession of controlled substances for the purposes of trafficking,
carrying a concealed weapon (a knife), possession of a weapon for a purpose
dangerous to the public peace, obstructing a peace officer, and assaulting a
peace officer with a weapon.

[2]

Critical to his convictions was the result of a voir dire held to
determine the admissibility of evidence seized in a search incidental to his
arrest. Mr. Lloyd contended that his arrest was unlawful and accordingly
the search was unreasonable.

[3]

It is not necessary to recount the facts in detail. In short, Mr. Lloyd
was approached by two plain clothes police officers as he sat with another man
outside a coffee shop. The judge accepted that the officers advised the men
that they were police officers investigating a bylaw infraction for smoking
within six metres of a doorway. They advised them that they were not free to leave.
They asked for their names and dates of birth. The accused was uncooperative
but eventually gave his name. One of the officers queried both names on the
computer in the police car. Before the process was complete, the other officer
noticed a bulge in the accuseds clothing that he suspected to be a weapon. He
called a warning to the police officer in the vehicle, who returned to the
scene.

[4]

The officers were concerned that the accused was about to run. They
advised him again that he was not free to go and warned him of the offence of
obstructing police. One officer attempted to grab his arm. A fight ensued and
the accused attempted to draw a knife. The police knocked it out of his hand
and a bystander retrieved it. The fight was intense. The accused was arrested
and searched while handcuffed, lying on the ground, and still struggling. He
was found to be carrying a leather purse under his shirt which contained 25.7
grams of cocaine, 56.59 grams of methamphetamine, and 51.29 grams of heroin and
fentanyl in combination. The drugs were in small plastic bags. The accused was
also carrying a digital scale, two knives, and $1,780 in cash.

[5]

The defence argued that the evidence should be excluded because the
whole police interaction was a ruse for the purposes of interacting with the
accused. Alternatively, the defence argued that the arrest for obstruction was
unlawful, because the officers had already completed the identification of the
accused: they had learned his name and one of them recognized the name. Therefore
there was no further reason to detain him, the arrest was unlawful, and the
ensuing search violated s. 8 of the
Charter
. The defence also
argued that the police tried to conceal, in their initial report to Crown
counsel, the original purpose for their surveillance, and that this should cast
doubt on all their evidence.

[6]

The judge concluded that the arrest was lawful, the search was
reasonable, and the evidence was admissible. She found that the police did not
try to conceal the initial purpose of their investigation. She found the facts
as I have set them out above. In so doing, she rejected the position on the
facts taken by Mr. Lloyds counsel. She accepted that the police had not
completed their confirmation of Mr. Lloyds identity. The officers were
still engaged in the execution of their duty to identify the accused at the
time of the obstructive conduct. She concluded that the arrest was lawful. The
search conducted incidental to that arrest did not violate s. 8 of the
Charter
.
There was justification for a safety search, as the officers had reason to
believe the accused was carrying a weapon and was backing away while blading
his body away from the officer.

[7]

The evidence from the voir dire was admitted as evidence at trial. The
findings of fact made in the voir dire reasons formed the foundation of the
reasons for conviction. Mr. Lloyd contends that the judge made multiple
errors in the conclusions she reached, but, in my view, they boil down to the
proposition that the judge misapprehended the evidence in ways that
contaminated her critical finding that the arrest was lawful.

[8]

As is well known, this Court shows deference to the findings of fact
made by a trial judge in the absence of demonstrable error. In this particular
case, I do not think the appeal can succeed unless Mr. Lloyd can
demonstrate that the judge committed palpable and overriding errors of fact
through misapprehending critical evidence. If the facts, as found by the trial
judge are accepted, there is, in my view, not other basis to interfere with the
convictions.

[9]

I do not think that Mr. Lloyd has done more than reargue his case
at trial. He has not demonstrated any reversible error in the judges findings
or reasoning. What he has done is attempt to persuade us that the judge ought
to have reached different conclusions, for example, by taking a different view
of the credibility of the officers or in her assessment of whether subjective and
objective grounds existed for the arrest. I am satisfied that the judge did not
misapprehend the evidence in the manner required to justify appellate
intervention. All of the material findings of fact made by the judge were open
to her on, and well-supported by, the evidence. On that basis, I would dismiss
the appeal substantially for the reasons given by the judge.

[10]

STROMBERG-STEIN J.A.
: I agree.

[11]

FENLON J.A.
: I agree.

[12]

HARRIS J.A.
: The appeal is dismissed.

The
Honourable Mr. Justice Harris


