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EVIDENCE - Methods of proof - Identification

Wednesday, August 28, 2019 @ 7:53 AM  

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Appeal by the accused from conviction for possession of cocaine for the purpose of trafficking. An unsealed envelope fell from the appellant during a struggle with police officers when he was being arrested on a warrant to take an impression of his fingerprints. After moving the envelope around and placing it on the front passenger seat of the police vehicle, the officer claimed to happen to see inside it and recognized its contents from experience as a kilogram brick of cocaine. Two weeks after that, the officer took the cocaine brick and envelope to a forensic identification officer to obtain samples. The judge found that the plain view doctrine applied to support the police seizure of the cocaine brick. She accepted the officer’s evidence that he did not suspect the envelope contained cocaine and did not deliberately manipulate the envelope so that he could see inside, hoping it would reveal evidence but that it became visible to him accidentally. The trial judge found she had no reasonable doubt with respect to the continuity of the police handling of the exhibit although the officer had changed his evidence regarding transport of the cocaine brick and other exhibits. The judge noted the change in the officer’s evidence and that he was grilled about this in cross examination, but she rejected the defence arguments that the officer’s evidence was patently unreliable.

HELD: Appeal dismissed. The judge did not err in finding that the plain view doctrine applied and in accepting the officer’s evidence respecting his handling of the envelope. There was no error in the judge’s findings that the officer was credible and reliable and was not actively taking steps to determine what was in the envelope, nor suspecting that it contained cocaine, before the contents became visible to him. In determining whether the cocaine was in plain view, the officer’s intentions were relevant in determining whether the conduct was just a pretext for an unlawful search or whether the officer’s conduct was part of the exercise of lawful police duties. The judge was entitled to conclude that the officer’s interactions with the envelope were not intentional efforts to search the envelope. The judge carefully weighed the evidence and the challenges to the officer’s credibility and found his evidence to be credible, reliable, and consistent with his conduct. There was no basis for this Court to reject the evidence that the judge carefully considered and accepted. The judge did not err in finding that the Crown proved that the object found by the officer in the envelope was the substance submitted for testing and found to be cocaine. The appellant did not point to any palpable and overriding error in the judge’s findings regarding the continuity of the exhibit. The judge had evidence to support her findings and was entitled to make the findings she did.

R. v. Gill, [2019] B.C.J. No. 1308, British Columbia Court of Appeal, L.A. Fenlon, S.A. Griffin and G.B. Butler JJ.A., July 16, 2019. Digest No. TLD-August26019008