R. v. Huffman, 2019 BCPC 351

Citation: R. v. Huffman 2019 BCPC 351 Date: 20191216 File No: 42098-1-A Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT JESSE HUFFMAN RULING ON VOIR DIRE OF THE HONOURABLE JUDGE C. CROCKETT Counsel for the Crown: B. Goddard and A. Venturini Counsel for the Defendant: D. Marion, Q.C. Place of Hearing: Campbell River , B.C. Dates of Hearing: July 31 and September 20, 2019 Date of Judgment: December 16, 2019 Overview [ 1 ] Mr. Huffman is charged with possessing a device capable of accessing a computer network, contrary to a condition of his bail. Mr.

Huffman submits that he was detained and searched contrary to sections 8 and 9 of the Charter . Mr. Huffman seeks exclusion of the device (a tablet) and Mr. Huffman’s statements to the police, pursuant to section 24(2) of the Charter. [ 2 ] The primary issue for me to determine is whether Mr. Huffman was detained when he produced a tablet to Cst. Waite. A

secondary issue is whether a “search” occurred and therefore

section 8 of the Charter is engaged. My

section 8 determination rests on my findings of fact, including an assessment of credibility. [ 3 ] I heard evidence on the voir dire from Cst. Waite, Cst. Guthrie, and Mr. Huffman. The Evidence [ 4 ] Cst. Waite testified that on December 19, 2018, he was patrolling downtown Campbell River as a member of the Community Response Unit. His unit primarily deals with prolific problem offenders in the downtown core. He described his work as mostly proactive policing, but that sometimes they will take calls if the general duty members are not available. [ 5 ] At 12:40 p.m., Cst. Waite and his partner, Cst.

Guthrie, stopped their police vehicle in the mouth of an alley because they observed two males on or near a small porch leading to the back of a graphics business. One male was lying down and appeared extremely intoxicated. There was vomit beside him. That male was known to Cst. Waite as Mr. Hutchinson. The other male, standing or sitting beside Mr. Hutchinson, was Mr. Huffman. [ 6 ] The police pulled in to speak to the two men to check their sobriety, to see if Mr. Hutchinson needed medical assistance, and to make general inquiries of them, since the police believed they were not associated to the business.

There was a “No Trespassing” sign at the back of the building. The business owners had, in the past, complained about people hanging around and drinking in the back of their building. It was clear both men had been consuming alcohol. [ 7 ] Cst. Waite spoke to Mr. Huffman. Cst. Guthrie focused on Mr. Hutchinson. [ 8 ] Cst. Waite testified that even though Mr. Huffman had been drinking and admitted to doing so, he was not intoxicated. Cst. Waite asked Mr. Huffman his name and if he was on any conditions. Mr. Huffman provided his name and a piece of picture identification. Mr.

Huffman said he was on conditions, but said “I’d rather not say” when Cst. Waite asked what the conditions were. Cst. Waite did not press him on what his conditions were. [ 9 ] Cst. Waite went to his police vehicle and learned that Mr. Huffman’s conditions included not to possess a device capable of accessing a computer network. Cst. Waite could not recall if he kept Mr. Huffman’s identification when he went to his police vehicle, nor could he recall when he returned the identification to him.

However, in cross-examination he testified that normally in a traffic stop he would take a person’s identification with him to his vehicle. However, when speaking to people downtown, normally people would just give their name and he would use that to look up a person on his police computer. [ 10 ] Cst. Waite returned from his police vehicle to talk to Mr. Huffman. He asked Mr. Huffman if he had a cell phone with him. Mr. Huffman replied that he did have a cell phone, but it was not with him. Cst. Waite told Mr. Huffman he was not allowed to have a cell phone. Mr. Huffman said he was allowed to have a flip phone.

Cst. Waite asked if he had anything that could connect to the Internet. Mr. Huffman said no, but he produced a wallet. Mr. Huffman looked at the wallet. Cst. Waite did not say anything further. Then Mr. Huffman pulled out a Samsung tablet and threw it on the porch. [ 11 ] Cst. Waite arrested Mr. Huffman for breach of his bail condition. [ 12 ] Cst. Waite testified in cross-examination that he believed he had a duty to inquire about whether Mr. Huffman was in breach of his conditions. Cst. Waite was asked on cross-examination what he would have done if Mr. Huffman had run away when Cst.

Waite went to check his name in his police car. Cst. Waite said he would have let Mr. Huffman go, and then gone to look for him if it turned out he was arrestable. [ 13 ] Cst. Waite was asked on cross-examination if he attempted to persuade Mr. Huffman to stay where he was. Cst. Waite testified that he did not. He elaborated that it was a frequent occurrence in the downtown core for a person to give a false name, or walk away. If that happened, Cst. Waite would figure out after that fact whether or not that person was arrestable. [ 14 ] Cst. Waite was asked if he detained Mr.

Huffman prior to arresting him, or told him he could not leave or was not free to go. Cst. Waite testified that he did none of those things. In cross-examination, he agreed that he did not tell Mr. Huffman he was free to leave. [ 15 ] He testified that at no time was Mr. Huffman detained or arrested prior to when he produced the tablet. He agreed with defence counsel’s suggestion that he had no grounds to detain or arrest prior to Mr. Huffman producing the tablet. He testified that he had “no grounds at all” to believe he was breaching his conditions until he produced the tablet. [ 16 ] Cst.

Waite testified that, prior to arresting Mr. Huffman, Cst. Waite did not say he was going to search Mr. Huffman. He said he usually does not tell people they are going to be searched before he searches them, but that Mr. Huffman would have been searched after he was arrested, prior to him getting into the police car, to make sure he did not have anything he could use to injure himself or damage the car. [ 17 ] Finally, Cst. Waite testified that his tone of voice in the exchange was the same as he used in the courtroom, which was a normal speaking voice. Cst. Waite testified that he weighed more than Mr.

Huffman and the evidence overall establishes that Cst. Waite is two inches taller. [ 18 ] Cst. Guthrie testified similarly to Cst. Waite regarding their attendance at the scene. He dealt primarily with Mr. Hutchinson, which included arresting him. He testified that their entire time at the scene was between five-to-ten minutes, after which both Mr. Hutchinson and Mr. Huffman were transported to the RCMP detachment. [ 19 ] Mr. Huffman testified that he is 24-years-old, has a grade 12 education, and currently supports himself on a disability payment.

He does not work because he is not able to sit still or stand for long periods of time, or lift anything. He testified his disability is related

to an injury to his back and a diagnosis of ADHD. [20] He testified that on the day in question the police approached him and Mr. Hutchinson. The latter was lying on the stairs.Within three-to-five minutes, Mr. Hutchinson was arrested and placed in the police vehicle by Cst. Guthrie. Cst. Waite dealt primarilywith Mr. Huffman. [21] He did not recall Cst. Waite asking about the “No Trespassing” sign. He did recall him first asking if he was drunk and thenasking for identification. He produced his identification. He recalled Cst. Waite asking him if he was on conditions.

He was asked whathis conditions were, and he testified that he told Cst. Waite that he was uncomfortable telling him and “the lady at the other end” wouldtell him (referring to dispatch). He believed Cst. Waite took his identification to the police vehicle to check his conditions. [22] Mr. Huffman testified that he recalled Cst. Waite returned from the police vehicle and took care to put on gloves and that he toldMr. Huffman that he was going to search him. At that time he said Cst. Waite was in front of him and that he was in the middle of thestaircase “probably”. He testified that he was “pretty sure” that Cst.

Waite pulled the gloves out of his pocket. He testified that Cst. Waitewas quite a bit bigger than him. He testified that when Cst. Waite put his gloves on, Mr. Huffman pulled out the tablet and threw it onthe stairs because he believed Cst. Waite was going to find it anyway. [23] Mr. Huffman was asked if he felt he was free to leave. He responded “absolutely not”, and said he felt kind of intimidated bythe police rolling up and arresting his friend and that the police not saying anything made him feel like he had to stay there. [24] He testified that he was not told he was free to leave.

When asked what he would have done if he had been told that, he said hewas not sure, but he imagined he would have turned around and left. [25] In cross-examination, Mr. Huffman agreed that his memory might be affected by the fact he had consumed alcohol that day andthat he was “intoxicated” but not “super intoxicated”. He agreed he had difficulty remembering the events of that day because he hadbeen drinking and it had been a long time. He agreed he was nervous when interacting with Cst. Waite. He agreed it was possible Cst.Waite read him his Charter rights at the scene, but he did not remember that. [26] Mr.

Huffman agreed on cross-examination that after he told Cst. Waite he preferred not to tell him about his conditions, Cst.Waite did not ask him questions about that, nor did he press him or force him to answer anything. He then said he felt like he was beingforced to answer, even though he agreed he did not in fact answer Cst. Waite. He testified that he knew Cst. Waite was going to find outanyway by running his name with dispatch. [27] Mr. Huffman agreed that Cst. Waite did not force him to answer questions, or produce his wallet, or get the tablet out of hispocket. He agreed Cst.

Waite did not tell him that he had to stay and that he did not try to stop him from leaving. [28] It was suggested to Mr. Huffman that he could have left at any point and he replied, “I guess so, but I didn’t feel like that wasthe case”. He followed up by saying he felt like he was forced to stay there once the police came to talk to him. He agreed withsuggestions on cross-examination that this feeling that he had to stay came from him and had nothing to do with the police, and that thepolice did not do or say anything to make him feel he had to stay. [29] On cross-examination, Mr.

Huffman testified that when Cst. Waite left the police car, he put his gloves on and said he wasgoing to search Mr. Huffman. The Crown pointed out to him, after he gave this answer, that he left out details in his chronology.Specifically, he left out that after Cst. Waite returned from the police car, he asked whether Mr. Huffman had a cell phone or a devicethat connected to the Internet. Mr.

Huffman’s response was to the effect that this happened over a year ago, suggesting his memory mightbe affected by the lapse of time. [30] Later in cross-examination, it was suggested to him that he handed over the tablet because he “guessed” he was going to besearched. Mr. Huffman responded “it looked like it, yeah”. Credibility Assessment [31] Because of the discrepancy between the testimony of Cst. Waite and Mr. Huffman, I must make an assessment of theircredibility and reliability. In doing so, I will not apply the reasonable doubt standard in R. v. W.D., (SCC), [1991] 1S.C.R. 742.

Instead, I am guided by two decisions of the Alberta Provincial Court on the assessment of credibility in a Charter voir dire:R v. Kicovic 2004 ABPC 190 and R. v. Sturko 2013 ABPC 211. In this voir dire, the onus is on the accused, on a balance ofprobabilities, to establish the facts to support a breach of sections 8 and 9. [32] With this onus in mind, Mr. Huffman has not persuaded me that Cst. Waite put his gloves on and told him he was going tosearch him, prior to Mr. Huffman producing the tablet. It may be that Cst. Waite put on his gloves and uttered those words after heplaced Mr. Huffman under arrest.

I do not know. But I do not accept that he did so before the tablet was produced. [33] I make this finding by considering all of the evidence of both Cst. Waite and Mr. Huffman. I believe Mr. Huffman did his bestto relate his interactions with Cst. Waite. However, his testimony was not consistent on the sequence of events, as pointed out by theCrown in cross-examination. As well, he conceded more than once that his memory was affected by his intoxication and the lapse oftime. Accordingly, I do not find his evidence to be reliable. [34] Cst.

Waite was very clear in his testimony about what steps he took at what stages of the interaction. He was knowledgeableabout his duties and responsibilities under the Charter. He explained his usual procedures, and those he used that day, to the best of hisrecollection. He demonstrated that he knew the difference between what he believed was his obligation to make inquiries of people inorder to conduct proactive policing, and the limits of his powers under the Charter. He explained that it was often the case that peopleprovide false names, or false information.

If he had no grounds to detain someone, they were free to leave. In those situations, he wouldfollow up with such a person at a later time.

[ 35 ] I accept that Cst. Waite understood his responsibilities and his conduct remained within the proper limits of his police powers. Specifically, I find that he did not put his gloves on and tell Mr. Huffman he was going to search him, prior to Mr. Huffman producing his tablet. I also accept that from Cst. Waite’s perspective, he did not detain Mr. Huffman until after he observed the tablet and placed Mr. Huffman under arrest. [ 36 ] My factual findings do not, however, end the issue of whether or not Mr. Huffman was detained within the meaning of

section 9. Analysis: Was Mr. Huffman detained within the meaning of

section 9? [ 37 ] The leading case on the meaning of detention within the context of

section 9 is R. v. Grant 2009 SCC 32 . The court provides a helpful

summary of the principles involved at paragraph 44: [44] In

summary, we conclude as follows: 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.

To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia , the following factors:

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

b) The 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.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [ 38 ] I note the first paragraph of the Grant test refers to a “significant physical or psychological restraint”. The court quotes earlier in its reasons, from R. v. Mann 2004 SCC 52 , at paragraph 26 , which assists with how to interpret the meaning of “significant” restraint: [26] The second

interpretation of "detention", reducing it to any interference, however slight, must also be rejected. As held in Mann , at para. 19 , per Iacobucci J.: ... the police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter , every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.

It is clear that, while the forms of interference s. 9 guards against are broadly defined to include interferences with both physical and mental liberty, not every trivial or insignificant interference with this liberty attracts Charter scrutiny. To interpret detention this broadly would trivialize the applicable Charter rights and overshoot their purpose. Only the individual whose liberty is meaningfully constrained has genuine need of the additional rights accorded by the Charter to people in that situation. [ 39 ] Does the interaction between Cst. Waite and Mr. Huffman meet the threshold test for a detention?

More specifically, was Mr. Huffman significantly physically or psychologically restrained? [ 40 ] Mr. Huffman was asked for identification and was briefly interviewed. He was delayed. He was kept waiting. [ 41 ] Mr. Huffman testified he felt he had to stay there, but he conceded that Cst. Waite did not tell him he had to stay. He agreed that Cst. Waite did not press him when he said he did not want to tell Cst. Waite his bail conditions. [ 42 ] I have accepted Cst. Waite’s evidence that, prior to Mr. Huffman producing the tablet, Cst. Waite did not state he was going to search Mr.

Huffman, nor did he put his gloves on. [ 43 ] Cst Waite testified that he had no grounds to arrest prior to the tablet being produced. If Mr. Huffman had not pulled it from his pocket, the encounter would have ended once Mr. Huffman said he did not have a device that could access the Internet. [ 44 ] Cst. Guthrie testified that the entire incident, between first encounter and when they left the scene, lasted five-to-ten minutes. If Mr. Huffman had not been arrested, I infer the encounter between Mr. Huffman and Cst. Waite would have been closer to the lower end of that timeframe.

This is a very short duration. [ 45 ] In considering whether the interaction between Cst. Waite and Mr. Huffman amounts to a “significant” detention, I am mindful of the facts in R v. Suberu 2009 SCC 33 . In that case, a police officer arrived at a liquor store in response to a call about a person attempting to use a stolen credit card. The relevant narrative starts at paragraph 9: [9] …Constable Roughley responded to a call about a male person attempting to use a stolen credit card at the Cobourg LCBO.

Before Constable Roughley entered the store, an officer who was already inside advised him by radio that there were two male suspects in the store. Constable Roughley entered the store and saw that officer at a cash register talking to a store employee and one male customer

(Erhirhie). Mr. Suberu walked past Constable Roughley and said words to the effect of "[h]e did this, not me, so I guess I can go." Constable Roughley followed Mr. Suberu outside and said "Wait a minute. I need to talk to you before you go anywhere" , while Mr. Suberu was getting into the driver's seat of a minivan. [10] Mr. Suberu was seated in the driver's seat of the van but turned outwards, facing Constable Roughley, throughout the following brief exchange : Q. Who's the guy inside you were with? A. A friend. Q. What is your friend's name? A. Willy. Q. Where are you from? A. Toronto. Q.

How did you come to be in Cobourg today? A. Willy asked me to drive him. Q. From Toronto to Cobourg? A. Yes. Q. Who's [ sic ] van is this? A. My girlfriend's. Q. Who is your girlfriend? A. Yvonne. [11] Constable Roughley then received further information by radio , including the description and licence plate number of the van driven by the men who had used a stolen credit card to buy gift certificates at another LCBO store earlier that day. The description and the licence plate number both matched that of the van in which Mr. Suberu was sitting. Constable Roughley asked for Mr.

Suberu's ID and for the vehicle ownership documents . While Mr. Suberu retrieved the ownership documents, Constable Roughley looked into the van and saw Wal-Mart and LCBO shopping bags between and behind the front seats. [12] At this point, Constable Roughley decided that he had reasonable and probable grounds to arrest Mr. Suberu for fraud. … [Emphasis added.] [ 46 ] The above interaction, up to the point of arrest, was found not to be a detention. [ 47 ] The interaction in Suberu is remarkably similar to that before me.

It involved a police officer approaching an individual, having a brief verbal exchange, including asking for identification, and the police receiving further information (via police radio in Suberu , and in Mr. Huffman’s case, via the police computer). [ 48 ] The situation in Suberu had elements which, arguably, make it more like a detention than Mr. Huffman’s situation. [ 49 ] First, Cst. Roughley told Mr. Suberu to wait, and that he needed to talk to him before he went anywhere. In short, Cst. Roughley gave Mr. Suberu verbal directions to restrict his movement. Mr.

Suberu stated words to the effect that he intended to leave, but Cst. Roughley told him to wait. Cst. Waite gave no direction to Mr. Huffman to stay where he was or that he could not leave. [ 50 ] Second, the police officer spoke to Mr. Suberu while he sat in his car, so Mr. Suberu would have been unable to physically leave without climbing through the car, or walking around Cst. Roughley. Cst. Waite spoke to Mr. Huffman in an alleyway and at one point, Cst. Waite walked away from Mr.

Huffman, to his police vehicle. [ 51 ] Third, the conversation in Suberu included a request for personal information and was focused specifically on Cst. Roughley’s current credit card investigation. By contrast, Cst. Waite simply asked for name, identification, and whether Mr. Huffman had conditions. These questions were asked before Cst. Waite had any reason to focus on Mr. Huffman as part of an investigation. He then followed up by asking if he had a cell phone or a device that was capable of accessing the Internet. These are logical, simple questions in the circumstances.

They are, arguably, the start of a focused investigation on Mr. Huffman, but, unlike in Suberu , this was before Cst. Waite had any knowledge of any criminal offence. Cst. Roughley was more specifically focused on Mr. Suberu as a suspect in an already existing criminal investigation. [ 52 ] Based on this analysis, I conclude that Mr. Huffman was not detained by Cst. Waite. To use the language quoted above, from Grant , there was no significant physical or psychological restraint of Mr. Huffman by Cst. Waite. His liberty was not “meaningfully restrained”.

By analogy with the facts in Suberu , the interaction between Cst. Waite and Mr. Huffman falls within the category of “trivial and insignificant” and therefore does not attract Charter scrutiny. [ 53 ] Because I have found no significant detention, it is not necessary for me to move onto the second step of the Grant analysis:

whether there was a psychological detention in this case. It is this area on which counsel based most of their submissions. However, I will provide reasons under this heading, in case I am found to be wrong in concluding there was no significant detention. [ 54 ] In assessing whether Mr. Huffman was psychologically detained, I must determine whether a reasonable person in Mr. Huffman’s circumstances would conclude that he had been deprived of his liberty by Cst. Waite. [ 55 ] The Crown submits that Cst. Waite was making general inquiries and did not single Mr. Huffman out for a focussed investigation, until Cst.

Waite determined he had a condition not to possess a cell phone or device capable of accessing a computer network. Mr. Huffman submits that he was singled out for investigation, and this is a significant factor that leads to a finding of psychological detention. [ 56 ] The Crown submits that Cst. Waite’s conduct was polite, no physical contact occurred, and the duration of the encounter was brief. Mr. Huffman submits that he felt compelled to answer questions and felt he could not leave. His psychological state was impacted by the fact his friend, Mr.

Hutchinson, was arrested very shortly after police arrived. [ 57 ] The Crown submits that Mr. Huffman knew he did not have to answer Cst. Waite, which he demonstrated by not telling him his conditions. The Crown further submits that it was Mr. Huffman’s choice to produce the tablet, perhaps because he believed Cst. Waite was going to find it anyway, but that belief came from the mind of Mr. Huffman, not by any overt words or actions by Cst. Waite. [ 58 ] Mr. Huffman submits that he was intimidated by Cst. Waite’s larger size, and his previous negative experience when the police searched his residence.

He felt he had no choice but to comply. (He made further submissions based on his testimony that Cst. Waite put on his gloves and said he was going to search him, but I have not included these submissions, because I have rejected that evidence). [ 59 ] My reasoning on whether or not this was a significant detention such that it attracts Charter scrutiny informs my reasons on psychological detention. A reasonable person in Mr. Huffman’s position would likely feel obligated at some level to answer questions from Cst. Waite. Interestingly though, Mr. Huffman did not feel compelled to answer Cst.

Waite’s question about what conditions he had. He testified this is because he felt uncomfortable about talking about the conditions. [ 60 ] But this level of social obligation to answer a police officer’s questions falls short of the language in Grant . A reasonable person, in Mr. Huffman’s circumstances, must not simply feel obligated to answer.

Rather, a reasonable person must conclude that he is “deprived by the state of the liberty of choice”. [ 61 ] The court in Grant provides guidance on how to interpret whether a psychological “deprivation by the state of the liberty of choice” occurred, under paragraph 44, subparagraph 2(

a) to (c), which I repeat here for ease of reference:

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

b) The 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.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [ 62 ] The interaction between Cst. Waite and Mr. Huffman began because Cst. Waite saw that Mr. Hutchinson might be in need of medical assistance. He also wanted to make general inquiries of both men, since they were behind a business with a “No Trespassing” sign, and the business had made previous complaints about people drinking and loitering there. The initial focus was not Mr. Huffman. It only became so once Cst. Waite learned of Mr.

Huffman’s conditions. Even then, Cst. Waite made only general inquiries about compliance. Mr. Hutchinson was in a state of extreme intoxication and was arrested by Cst. Guthrie. [ 63 ] Cst. Waite did not direct Mr. Huffman’s movement by words or physical gesture. The encounter was 5-to-10 minutes duration, likely at the shorter end of that timespan if one considers only the time prior to Mr. Huffman’s arrest. Mr. Huffman presented on the stand as articulate.

He is Caucasian and appears physically healthy, albeit with the disabilities about which he testified, which I conclude do not impact the Grant analysis in this case. His age, physical stature and level of sophistication are unremarkable in the context of the Grant analysis. [ 64 ] Overall, considering all of the factors in Grant , I find there was no psychological detention in this case. Conclusion [ 65 ] Mr. Huffman has not established a detention on a balance of probabilities and

section 9 is not engaged. [ 66 ] My findings of fact also lead to the conclusion that no search occurred in this case. Mr. Huffman produced the tablet voluntarily while he was not under detention. I have found that Cst. Waite did not say he was going to search him, or make any motion to do so. Therefore,

section 8 of the Charter is also not engaged on these facts. [ 67 ] I therefore need not consider section 24(2) of the Charter . ____________________________

The Honourable Judge C. Crockett Provincial Court of British Columbia