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Arrest circumstances not to be considered piecemeal

The grounds justifying an arrest are to be more than mere suspicion but less than the civil standard of proof when all circumstances are considered.

In R. v. Perjalian, 2011 BCCA 323, police followed a vehicle which turned abruptly into a lane, drove well over the speed limit and stopped behind an apartment building. The passenger quickly entered the building and two officers detained the driver, Ali Perjalian, to investigate the speeding violation as he exited the vehicle. 

One officer asked Perjalian for his driver's licence and registration but he only produced a licence. A half-full bottle of beer was visible on the car's centre console. When asked again for the registration, Perjalian turned towards the car, as if intending to get it, and appeared to deliberately position himself to block the officer's view. 


October 3, 2011
By Mike Novakowski

The grounds justifying an arrest are to be more than mere suspicion but less than the civil standard of proof when all circumstances are considered.

In R. v. Perjalian, 2011 BCCA 323, police followed a vehicle which turned abruptly into a lane, drove well over the speed limit and stopped behind an apartment building. The passenger quickly entered the building and two officers detained the driver, Ali Perjalian, to investigate the speeding violation as he exited the vehicle. 

One officer asked Perjalian for his driver’s licence and registration but he only produced a licence. A half-full bottle of beer was visible on the car’s centre console. When asked again for the registration, Perjalian turned towards the car, as if intending to get it, and appeared to deliberately position himself to block the officer’s view. 

The officer saw Perjalian reach with his right hand and drop a plastic film container on the floor, making no attempt to pick it up or look for the registration before turning back and saying he could not find it. A 28-year veteran with 10 years on the drug squad, the officer formed the belief there were drugs in the container and that Perjalian was arrestable for either possessing them for trafficking or simple possession. He ordered Perjalian out of the car, opened the container and found 13 rocks of crack cocaine and a ball of powder cocaine.

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Perjalian was arrested for possessing cocaine for the purpose of trafficking, handcuffed, searched and advised of his right to retain and instruct counsel. He said he wished to speak with a lawyer. The car was then searched and a scoresheet (a form of a drug-trafficker’s bookkeeping) was found along with $270 cash. 

While waiting for police transport, the officer asked Perjalian if he had a crack pipe or needle, to which he responded, “Do I look like a fucking junkie?”

At trial in British Columbia Provincial Court the officer testified that he believed the film container held drugs because of Perjalian’s obvious attempt to dispose of it without detection. In his experience, drug dealers used the containers extensively to store and transport their drugs. The officer also said that he did not believe he was prohibited from questioning a suspect who had asked to speak to counsel and had done so in the past. 

The judge found Perjalian was detained when the officers approached him initially to investigate the traffic violation. Police breached ss. 10(a) and (b) of the Charter because they failed to immediately inform him of the reason for his detention or his right to counsel at the outset of the investigation and, later, when the officer came to believe the accused possessed drugs. Sections 10(a) and (b) were only complied with when Perjalian was arrested, some three minutes after the investigation began.

The judge found the search reasonable. The officer’s subjective belief that the film container held drugs was credible and objectively reasonable based on his experience and the circumstances in which he saw the container. It wasn’t based on a mere hunch. 

The seizure and search of the container were also lawful. Even though Perjalian wasn’t actually arrested until shortly after the search the officer had reasonable grounds to arrest him when the search occurred so it was therefore justified as a search incidental to arrest. 

As for Perjalian’s statement, the officer committed a “clear, conscious and flagrant breach” of s. 10(b) in obtaining it by questioning Perjalian after he indicated he wished to speak to counsel but had not yet been given an opportunity to do so. Although the Crown did not seek to admit the statement, the judge considered this s. 10(b) breach to be relevant as part of a pattern of Charter abuse in the s. 24(2) analysis for the drugs and score sheet. The evidence was ultimately admitted and Perjalian was convicted of possessing cocaine for the purpose of trafficking.

Perjalian appealed, arguing (in part) before the BC Court of Appeal that the judge erred in failing to find that police breached his s. 8 Charter rights and excluding the evidence. In his view, the Crown did not establish the subjective or objective grounds for his arrest. He had no record for drug offences and police had no information linking him or the vehicle to drug-related activity, nor did the officer see or smell drugs. Although the presence of an opaque film canister in the car and his conduct may have been suspicious, it fell far short of providing reasonable grounds to justify the arrest for a drug offence.

The search

Justice Neilson, writing the unanimous judgment, first noted that the “search of the film container was prima facie unlawful because it was conducted without a warrant.” However, an exception to this rule exists when a search is conducted as an incident to arrest. A lawful arrest requires reasonable grounds, which encompasses both a subjective and an objective component. In this case, (1) the officer was required to honestly believe he had grounds to arrest Perjalian for a drug offence and (2) a reasonable person standing in the officer’s position would need to find that belief objectively reasonable. 

In Neilson’s view, it wasn’t established that the trial judge erred in concluding the officer honestly believed Perjalian was “arrestable” at the time of the search since he had seen drug dealers use film containers many times. As for the objective grounds:

The evidence relevant to that determination includes the following. (The officer) had 28 years’ experience with the Vancouver Police Department, ten years of which was with the drug squad. He estimated he had conducted 50,000 drug investigations and made about 4,000 arrests, 85 per cent of which dealt with cocaine. In his experience, film containers were used extensively by drug traffickers to store and secrete their drugs. He had encountered this several hundred times. 

He saw a vehicle with two occupants speed down a laneway and stop behind an apartment building, where the passenger quickly got out and went into the building. (The officer) asked the driver twice for proof of registration. On the second request, the driver turned toward the car door as if attempting to look for the registration, but made no effort to do so. Instead, he positioned himself in a manner indicative of an attempt to shield his actions from (the officer) and dropped a film canister from his right hand onto the floor of the car on the driver’s side. He then turned back to (the officer) and said he could not find the registration.

The standard of proof for reasonable grounds is reasonable probability. This is something more than mere suspicion but less than the civil standard of proof. In considering whether that standard has been met the circumstances must be considered in their totality, rather than on a piecemeal basis.

In the context of those principles and viewed from the perspective of (the officer’s) knowledge and experience, I am satisfied that a reasonable person would conclude there were objectively reasonable grounds to believe the film canister held drugs. (The accused’s) attempt to surreptitiously dispose of that canister in the presence of police leads to an inevitable inference that it held something illegal. (The officer’s) extensive experience with the use of such containers in the drug trade forms a proper basis for a conclusion that it was reasonably probable it contained drugs (paras. 51-53).

Perjalian’s secretive conduct was sufficient to raise the officer’s subjective suspicion to an objective level. The trial judge did not give too much deference to the officer’s intuition or experience and, therefore, did not effectively render the objective element of the inquiry meaningless. The officer had reasonable grounds to arrest Perjalian for a drug offence at the time of the search. The search was therefore lawful as an incidental to arrest and did not violate s. 8 of the Charter.

Other breaches

The appeal court also found police were not required to advise Perjalian of his right to counsel under 
s. 10(b) when they initially detained him to investigate the traffic violation. Although it is engaged when a suspect is detained for a motor vehicle offence, police are not required to immediately advise the detainee of the right to counsel. However, when the officer decided Perjalian was “arrestable” for possession of illicit drugs, the focus of the investigation changed from a traffic to a drug offence and he should have immediately advised him of his right to counsel. Instead he ordered him to the rear of the vehicle while he looked in the film canister. 

It wasn’t until Perjalian was arrested that he was advised of the reason and his right to counsel. There was a breach of s. 10(b) when the detention continued after the officer formed the belief that Perjalian was in possession of illicit drugs.

Although the trial judge’s s. 24(2) analysis was upheld, Perjalian’s conviction for possessing cocaine for the purpose of trafficking was set aside and a conviction for simple possession substituted. This was a circumstantial case; a trafficking conviction requires that offence to be the only reasonable inference that can be drawn from the facts. 

Since a drug expert provided information that the trial judge failed to consider, along with an absence of other indicia typically found with trafficking, simple possession was an equally reasonable conclusion.