R. v. Hunlin Date:, 2013 BCPC 428

Citation: R. v. Hunlin Date: 20130228 2013 BCPC 0428 File No: 31648-1 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MITCHELL JARET HUNLIN RULING ON VOIR DIRE (CHARTER s.9) OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Crown: W. Mathers Counsel for the Defendant: A. Kaiser Place of Hearing: Williams Lake , B.C. Date of Hearing: February 25, 2013 Date of Judgment: February 28, 2013 [ 1 ] This is my Ruling at the conclusion of a voir dire to determine whether the Defendant, Mr. Hunlin, has established that his s. 9

Charter right to be free from arbitrary detention was breached. [ 2 ] Mr. Hunlin is charged with obstruction of a peace officer contrary to s. 129 (

a) of the Criminal Code and driving while prohibited contrary to s. 102(

a) of the Motor Vehicle Act and this voir dire occurred in the course of his trial for those offences. In fact, through counsel, Mr. Hunlin has made it clear that the Charter issue is the sole issue in the case. [ 3 ] I have concluded that Mr. Hunlin has established a breach of his s. 9 rights. Evidence and Some Findings of Fact [ 4 ] Two witnesses testified on the voir dire – Cst. Penton for the Crown and Mr. Hunlin on his own behalf. [ 5 ] The parts of the evidence that are not contested establish that Cst.

Penton and another officer were patrolling the streets of Williams Lake in a police car shortly before midnight on September 12 th , 2011. They were not engaged in any particular investigation at the time; they were simply out patrolling. A vehicle – which they subsequently discovered was being operated by Mr. Hunlin – drove by their location and they decided to follow it. There was nothing about the vehicle, or the way in which it was being driven, that led them to suspect that any offence was being committed.

They simply decided to follow it because they were on patrol and there was nothing of greater urgency requiring their attention at the time. [ 6 ] The officers drove behind this vehicle for a distance of about two blocks. The vehicle may have made one turn onto a different street during that distance – that is not quite clear to me from the evidence, but I don’t think it matters.

It is clear that during this 2 block distance they observed nothing that led them to suspect that the vehicle or its occupants were in violation of any law. [ 7 ] The officers followed along behind the vehicle and observed it turn into the driveway of a townhouse on 1 st Avenue. Instead of just driving on by and continuing with their patrols elsewhere in the city, Cst. Penton turned into the driveway behind the vehicle, and stopped. To this point Cst. Penton had still observed nothing that would indicate that the vehicle or its occupants were violating any law. [ 8 ] It is also clear from Cst.

Penton’s evidence – and this is an important finding when it comes assessing the lawfulness of the detention which I find occurred – that he was not conducting a traffic stop. [ 9 ] If he was not conducting a traffic stop why did Cst. Penton follow Mr. Hunlin’s vehicle into the driveway? The conclusion I draw from his evidence is that he wanted to attempt to engage the occupants of the vehicle in conversation, much in the same way that he might speak with someone he encountered while doing a foot patrol on the street, or in the park.

Or, if he was patrolling in a car, he might pull up beside a pedestrian on the sidewalk and engage that person in conversation. Cst. Penton repeated several times that he “always” talks to people; that he is a friendly person; that he grew up in a part of the country where there was a good deal of positive interaction between members of the public and the police and, as I understand his evidence, this is a model or style of policing that he aims to follow in his own practice. [ 10 ] The accounts of Mr. Hunlin and Cst. Penton differ about the details of what happened after both vehicles came to a stop. Oddly, Mr.

Hunlin’s version of events may actually have assisted the Crown more than himself on the s. 9 issues, at least on some points. In any case, I reject the evidence of Mr. Hunlin where it conflicts with Cst. Penton on these points. It seemed to me that Mr. Hunlin was reconstructing things – probably unconsciously – while giving his evidence. It also seemed that he may have been making assumptions about what must have happened rather than relating what did happen. For example, I find that he assumed the “amber” lights on the police car were activated after it came to a stop and that the opening words of Cst.

Penton were to ask for his driver’s license and registration, because that is almost invariably what occurs in routine traffic stops. Yet, it was clear from Cst. Penton’s evidence that he was not conducting a traffic stop. I therefore find that Mr. Hunlin was mistaken on these points. [ 11 ] As for Mr. Hunlin’s evidence that he was angry and that, after getting out of the driver’s seat of his vehicle he “rushed” over to the police car where he assertively, even aggressively demanded to know why the police were following him, this came across to me as an after the fact rationalization on the part of Mr. Hunlin.

It is not uncommon for people, including myself, to look back on stressful situations we have been in and re-cast our

part in the event to something that is more to our liking, or more consistent with the sort of person we would like to be. The picture Mr. Hunlin painted of himself was of a man aggressively asserting his rights in the face of police authority. It seems more likely to me that Mr. Hunlin was scared and hesitant because he knew he was driving while prohibited and here was a police car pulling up behind him. And, it seems much more likely that he would have behaved as Cst.

Penton related – standing there as the officer walked over to him, responding in a polite and cooperative manner as the officer spoke to him, but otherwise keeping a low profile. I find that is what occurred. [ 12 ] Returning then to the narrative, Cst. Penton stopped the police car, got out and walked over to Mr. Hunlin saying something like “How’s your night goin?” Cst. Turko got out of the passenger side of the police car and walked over to Mr. Hunlin’s vehicle to speak with his passenger who was still sitting in the car. Within seconds of Penton’s initial words to Mr. Hunlin, Cst.

Turko advised Penton that he could see two cans of beer in the back seat of the vehicle. In Cst. Penton’s mind this amounted to an infraction under the Liquor Control and Licensing Act of B.C. of having open liquor in a vehicle – the first and only infraction that he had observed in connection with Mr. Hunlin to this point. [ 13 ] Cst. Penton then immediately commenced an investigation of that infraction by asking Mr. Hunlin his name and date of birth. Mr. Hunlin responded by providing a false name, which is the basis for the charge of obstruction.

The officers quickly determined his correct name by speaking to his passenger; checks were done and they discovered that Mr. Hunlin was a prohibited driver. This is the basis for the second count on the Information. He was arrested for these offences, given his s. 10 Charter rights and released shortly afterwards on a promise to appear, still in the driveway of the townhouse. [ 14 ] I will move now to my analysis of the Charter issue.

Analysis 1. Detention [15] I agree with counsel that the threshold question is whether or not Mr. Hunlin was “detained” at any point in the course of hisdealings with the officers and, if so, when that detention “crystallized”. Clearly, he was detained and his s. 9 rights were triggered whenhe was arrested by Cst. Penton, but was he detained and were his rights triggered at any time prior to his arrest? [16] I have concluded that Mr. Hunlin was detained by Cst. Penton prior to his arrest and that this detention crystallized when Cst.Penton walked over to Mr.

Hunlin and uttered his initial, somewhat innocuous inquiry: “How’s your night goin’?” I will explain why. [17] The law recognizes that even when a police officer has not laid a hand on the subject a detention can still be triggered. This isoften called “psychological detention” because, even though no physical force is asserted by the officer, there is a psychological or moralpressure on the subject to cooperate with the police. [18] The law identifies two situations in which this occurs. The first is when a subject is legally required to comply with a directionor demand, such as a roadside breath demand.

That does not apply in the case at bar. [19] The second situation is the one that I have concluded applies in Mr. Hunlin’s case. It is described as follows in R. v. Grant,2009 SCC 32 at paragraph 30: The second is where there is no legal obligation to comply with a restrictive or coercive demand, but a reasonable person in the subject’sposition would feel so obligated. [Emphasis added.] [20] The classic description of this second kind of psychological detention is found in R. v.

Therens, (SCC), [1985]1 S.C.R. 613 at p. 644 as quoted at paragraph 30 of Grant: In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary,in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or commonlaw authority for the demand or direction therefore an absence of criminal liability for failure to comply with it. Most citizens are notaware of the precise legal limits of police authority.

Rather than risk the application of physical force or prosecution for wilfulobstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. Theelement of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make therestraint of liberty involuntary.

Detention may be effected without the application or threat of application of physical restraint if theperson concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does notexist. [Emphasis added.] [21] The court continues at paragraph 31 of Grant: This second form of psychological detention – where no legal compulsion exists – has proven difficult to define consistently. Thequestion is whether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to complywith the police direction or demand.

As held in Therens, this must be determined objectively, having regard to all the circumstances ofthe particular situation, including the conduct of the police. …[T]he focus must be on the state conduct in the context of the surroundinglegal and factual situation, and how that conduct would be perceived by a reasonable person as it develops. [Emphasis added.] [22] At paragraph 44 of Grant the court summarizes its discussion of psychological detention: 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical orpsychological restraint.

Psychological detention is established either where the individual has a legal obligation to comply with therestrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but tocomply. [Emphasis added.] [23] The court then goes on to suggest some factors to consider in objectively determining whether or not a subject was detained. Iwill now examine the evidence in this case bearing in mind those factors. (

a) The circumstances as the individual would reasonably perceive them [24] The passage from Grant at paragraph 44, sub-paragraph 2(

a) is as follows: [The court may consider] [t]he circumstances giving rise to the encounter as would reasonably be perceived by the individual; whetherthe police were providing general assistance, maintaining general order; making inquiries regarding a particular occurrence; or, singlingout the individual for focussed investigation. [25] The Crown’s position is that Cst. Penton and Cst. Turko were simply “maintaining general order” here – patrolling the streets ofthe city at night, as they are hired and sworn to do – and in the course of that work they encountered Mr.

Hunlin and engaged him inconversation, by asking him the innocuous question “How’s your night goin’?” Counsel for the Crown cites R. v. Kay, (BC CA), [1990] B.C.J. No. 210 (B.C.C.A.), R. v. Grafe (1987), (ON CA), 36 C.C.C. (3d) 267 (Ont. C.A.) (Referred toin R. v. Hall, (ON CA), [1995] O.J. 544 (Ont. C.A.) at ¶ 21), R. v. C.R.H., 2003 MBCA 38 and, of course, R. v. Grant(supra). [26] In the Kay case, an officer investigating a motor vehicle incident followed the accused to the hospital and began asking himquestions as he lay on a hospital bed.

The accused was found not to be detained because at the time the officer posed the relevantquestions, he did not have any definite suspicion that the accused had committed an offence. Lambert, J.A. expressed it this way:

In my opinion, the mere asking of questions at the start of the investigation from people who might turn out to be involved in criminal acts does not, in itself, constitute a detention ... [emphasis added]. [ 27 ] Mr. Mathers argues that Cst. Penton’s actions in the case at bar were actually less focussed on the accused than the actions of the officer in R. v. Kay , who was investigating a particular motor vehicle accident. Cst. Penton simply stopped in the course of his patrol and asked Mr. Hunlin a question for no other reason than to maintain communication with members of the community.

It is argued that, like the officer in Kay , he did not “detain” Mr. Hunlin at any time prior to arresting him. [ 28 ] In further support of what Cst. Penton did in this case Crown counsel refers to the following comment by Krever, J.A. in Grafe at paragraph 274 : The Charter does not seek to insulate all members of society from all contact with constituted authority, no matter how trivial the contact may be.

When one considers the full range of contacts in modern society between state and citizen that which took place between the respondent and [the constables] ... cannot be characterized otherwise than as innocuous. Its occurrence was not an invasion of any of the respondent’s rights. [ 29 ] In R. v. Grant the facts were quite similar to those in Grafe . Officers driving by thought that Grant was behaving suspiciously, pulled over, got out and stepped in front of him as he walked along the sidewalk saying “What’s going on?” The officer also asked Grant his name and address.

It was found that what the police did in relation to Grant, up to this point, did not amount to a detention. [ 30 ] The other case cited by the Crown, C.R.H. , is the closest, factually, to the case at bar. Two officers were on patrol in a police car early one morning and stopped to talk with several young men walking along the sidewalk. One of the officers spoke through the open window of the car, saying something like “Hi, how’s it going? Where are you guys headed?” The young men came over to the car and responded to the questions put to them, providing their names, dates of birth, addresses and phone numbers.

Like Cst. Penton, the officers in C.R.H. did not suspect either the accused or his companions of committing any offence at the time they stopped to talk to them or when they asked them to identify themselves. Like Cst. Penton, the officers in that case testified that stopping and talking to people in this way was something they always did when conducting patrols.

The Manitoba Court of Appeal found no detention in that case, and it is argued that the court should reach a similar conclusion in the case at bar. [ 31 ] In my view there are some small but important differences between the facts in the case at bar and those in C.R.H. and the other cases cited which move this case outside the category of “maintaining general order”. [ 32 ] First, Cst. Penton had followed Mr. Hunlin’s vehicle for two blocks and then followed it right into a private driveway. This was in a residential area of the town close to the downtown area but not in the downtown area.

The vehicles came to a stop in a private driveway not out on the publicly travelled street or in a large commercial or public parking lot. (The residence where the vehicle stopped was the residence of Mr. Hunlin’s passenger rather than Mr. Hunlin but still, it was clearly a private driveway.) Cst. Penton then got out of his vehicle and walked over to Mr. Hunlin. As noted earlier, Cst. Penton did not turn into the driveway behind Mr. Hunlin because of any driving related concerns. This was not a traffic stop. [ 33 ] In my view, the fact that Cst.

Penton, after following the vehicle for 2 blocks, turned into the driveway behind it, got out of his police car and approached the subject moves this from the category of “maintaining general order” to something very close to, if not right into, the category of “singling out the individual for focussed investigation.” (See Grant , paragraph 44 , sub-paragraph 2(a).) In my view, an individual in the same circumstances as Mr. Hunlin would reasonably perceive or conclude that he was being pursued by the police, or at the very least, that they were focussing their investigation on him. (

b) The nature of the police conduct [ 34 ] Sub-paragraph 2(

b) of the

summary at ¶ 44 of Grant reads as follows: [The court may consider] [t]he nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others and the duration of the encounter. [ 35 ] The officers were out patrolling and they turned their attention to Mr. Hunlin’s vehicle for no particular reason. The observed no infraction. Nor were they engaged in neighbourhood inquiries concerning any other investigation. The police car lights were not activated and there was no physical contact between either of the officers and Mr.

Hunlin until later in their encounter when Mr. Hunlin was briefly placed under arrest. Cst. Penton testified that if Mr. Hunlin had simply turned and carried on into the townhouse, he (Penton) would not have prevented him leaving, but he would have walked along beside him and continued trying to engage him in conversation. I find that the language used by Cst. Penton was friendly and outgoing, but assertive, because this was how he came across in court. As noted, it was late at night, this was in a private driveway in a residential area. There was no one else around except Mr.

Hunlin’s passenger who remained in the vehicle throughout. (

c) The characteristics of the individual [ 36 ] Sub-paragraph 2(

c) of the

summary at paragraph 44 of Grant reads as follows: [The court may consider] [t]he particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [ 37 ] Mr. Hunlin is in early middle age. He is First Nations. He is shorter than Cst. Penton and appeared to be somewhat lighter in build. He testified that he makes his home at Redstone which is an Indian Reserve several hours west of Williams Lake. Mr. Hunlin was well spoken and articulate.

He has two previous criminal convictions, one for obstruction of a Peace Officer in 1998 and one for forging a document in 2008 and he admits he is not a newcomer to dealing with police. Despite this, it is my assessment, that he is somewhat unsophisticated. I am thinking here of the way in which he characterized his response to the officers – a characterization I have found to be inaccurate.

(

d) Summary – detention [ 38 ] I conclude that Mr. Hunlin was detained at the point that Cst. Penton walked over to him and asked the first, innocuous question “How’s your night goin?” The key pieces of evidence that support this conclusion are that, after following his car for two blocks, the police car followed Mr. Hunlin right into a private driveway, that the officer had no particular reason for doing so other than a general belief that it is an important part of police work to engage in conversations with members of the public and he was determined to attempt to engage in conversation with Mr. Hunlin.

This was a residential area; it was late at night and there was no one else around. The officer did not just speak to Mr. Hunlin from the window of his car. He got out and approached Mr. Hunlin. He was in uniform and driving a marked car. Mr. Hunlin is the member of a visible minority. While Cst. Penton did not, subjectively, intend to detain Mr. Hunlin at any time prior to arresting him, I find that when all the circumstances are viewed objectively, in fact, the detention crystallized a good deal earlier in their encounter than the actual arrest. 2 .

Was the detention unlawful? [ 39 ] A detention “in the absence of at least reasonable suspicion is unlawful and therefore arbitrary within s. 9”: Grant , paragraph 55 . [ 40 ] It is clear from the evidence that Cst. Penton did not suspect Mr. Hunlin of having committed any offence at the time he followed his vehicle into the driveway of the townhouse and then got out and walked over to him.

The detention which I find followed was therefore unlawful and arbitrary within the meaning of s. 9. [ 41 ] Motor vehicle and impaired driving law does give police the power to randomly stop motorists but such stops must be for purposes related to the safe operation of the motor vehicle – such as checking for driver impairment, licensing and insurance, or motor vehicle safety. It is clear that Cst. Penton did not see himself as engaged in a motor vehicle related investigation in this case. Therefore, what happened in this case cannot be viewed through that paradigm. [ 42 ] I find that although Cst.

Penton genuinely believed he was engaged in community policing when he pulled in behind Mr. Hunlin and walked over and spoke to him, in fact, in all the circumstances, it went beyond that and resulted in the detention of Mr. Hunlin. Since, at the time of that detention Cst. Penton had no reasonable suspicion that Mr. Hunlin was committing any sort of offence, nor was he checking him for motor vehicle related issues, the detention was unlawful and therefore arbitrary. I find that Mr. Hunlin’s s. 9 right to be free from arbitrary detention was violated. 3 .

Remedy [ 43 ] The remedy sought in this case is a judicial stay of proceedings pursuant to s. 24(1). A stay of proceedings is a remedy to be granted only in the “clearest of cases”. I think the Crown is correct in its position that this is not such a case. R. v. Donnelly, 2010 BCSC 1296 is cited. [ 44 ] I find that Cst. Penton was friendly and outgoing, though assertive. I find that the entire incident, including the arrest and release, were of short duration. I cannot find that a judicial stay is justified on this evidence. [ 45 ] Counsel for Mr.

Hunlin has applied to amend his Charter notice to seek a remedy under s. 24(2). This is opposed by the Crown on the basis that it arises very late in the proceedings, after the evidence has been closed. Although the Crown’s concern is well based, I am going to permit the amendment of the Notice and put this matter over to permit the calling of further evidence if counsel perceive that to be necessary – I am not sure that it is – and to permit counsel to make submissions on whether or not the evidence obtained as a result of the detention of Mr.

Hunlin, (the giving of the false name, the discovery of his true identity and the taking of his photograph as he had no picture identification) should be excluded. I am happy to receive those submissions in writing if counsel prefer that, or submissions can be made orally. ______________________________ E. L. Bayliff Provincial Court Judge