R. v. Mclauchlin, 2022 BCPC 305

Citation: R. v. Mclauchlin 2022 BCPC 305 Date: 20221121 File No: AH72230453-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. JAMES ANTHONY MCLAUCHLIN ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. CUTLER Counsel for the Crown: R. Carot Counsel for the Accused: D. Berntsen Place of Hearing: Duncan , B.C. Dates of Hearing: February 11, 2022, May 6, 2022 and August 16, 2022 Date of Judgment: November 21, 2022

[1] The Defendant is before the court as a result of being issued a violation ticket for speeding on a public highway contrary to s.146(3) of the Motor Vehicle Act. There is no issue that the Defendant was operating a motor vehicle in excess of the speed limit whilepulling a trailer behind the vehicle. He admits to travelling in excess of the 90 km per hour speed limit posted on the highway when theOfficer observed him speeding and pulled him over.

The Officer issued the speeding ticket at that time. [2] The Defendant has brought on an application seeking a remedy pursuant to s. 24(1) of the Charter, and accordingly, pursuant tos. 2.1 of the Provincial Court Act, this violation ticket matter must be heard by a judge of the Provincial Court. [3] The Defendant’s position before this court, after admitting to committing the offence, is that the prosecution ought to be stayedas a result of the Officer violating the Defendant’s Charter rights, specifically the rights protected under ss. 2(d), 7, and 15 of theCharter.

He maintains that permitting this prosecution to proceed would be an abuse of process. [4] Before the court engages in what would likely be a lengthy hearing, requiring extensive evidence and legal argument to fullyaddress the alleged Charter breaches, the Crown has brought on a preliminary application seeking to have the court summarily dismissthe Charter challenge without a full hearing. The Crown seeks dismissal of the Defendant’s Charter application at this stage of theproceedings maintaining it has no reasonable prospect of success. (R. v. Vukelich, (BC CA), [1996] B.C.J.

No. 1535,B.C.C.A., leave denied, [1996] S.C.C.A. No. 461) [5] After extensive legal argument, including written submissions, on the Crown’s application, I have concluded that theDefendant’s Charter arguments have no reasonable prospect of success in obtaining the relief sought. In the result, the Charter argumentought to be dismissed at this stage of the proceedings.

I have come to this conclusion for the following reasons: 1) there is insufficientnexus between the claimed Charter breaches and the matter being prosecuted in this matter; and 2) the Charter breaches as allegedwould not appear to have any merit. [6] The Charter breaches alleged by the Defendant focus, for the most part, on the past conduct of the Officer who witnessed thecommission of the speeding offence and pulled the Defendant over and issued the violation ticket.

The Defendant submits that theOfficer has for a number of years been harassing the Defendant. [7] The Defendant is a member and president of a motorcycle club which regularly associates with the Hells Angels MotorcycleClub. He maintains that he has been targeted by the Officer over the years, resulting in numerous improper interactions, including theOfficer regularly following the Defendant, improperly detaining him, pointing his firearm at the Defendant without cause, anddiscouraging others, including those in the Defendant’s motorcycle group, from associating with the Defendant. [8] In

summary, the Defendant submits that due to the Officer’s prior interactions with the Defendant and others in the Defendant’sorbit, wherein the Officer allegedly breached the Defendant’s Charter rights, allowing this prosecution to proceed would be an abuse ofprocess which the court should not permit. [9] Upon assuming the facts as alleged by the Defendant could ultimately be proven at a full hearing of the matter, I have concludedthat they are not legally capable of supporting the remedy sought by the Defendant. [10] It is important to remark that there is no suggestion by the Defendant that the Officer acted improperly at any time during thepull over of the Defendant and the issuance of the violation ticket, all of which took approximately 14 minutes.

I note in this regard thatthe Defendant does not raise a s. 9 Charter argument of arbitrary detention as a result of the Officer pulling the Defendant over. [11] It is trite to state that where a violation of a Motor Vehicle Act offence is observed by an Officer, the subsequent pulling over ofthe offender does not constitute a prima facie infringement of s. 9 of the Charter. As was noted in R. v. Woody, [2018] B.C.J.

No. 7139at para. 43: When dealing with an observed infraction, the investigating officer has an independent basis for stopping the vehicle, and the fact theofficer may have additional concerns or interests does not invalidate the independent basis for stopping the vehicle for Motor Vehicle Actenforcement purposes.

Where a police officer sees a vehicle in an identifiable traffic infraction, like speeding or driving without lights,the officer has authority to stop the vehicle in connection with the traffic violation, and the detention is not rendered arbitrary simplybecause the officer suspects that the driver or occupants may be involved in unrelated criminal activity. [12] The focus of the Defendant’s complaint is with the Officer’s past interactions with the Defendant, coupled with the surveillanceof the Defendant at the time the speeding was observed which he alleges constitute Charter violations.

It is based on this impugnedconduct of the Officer that the Defendant asserts this prosecution ought to be stayed and a conviction for the admitted speeding offenceshould not be entered. I have concluded the Defendant’s argument has no merit. [13] In this case, the Officer was on duty conducting surveillance of the Defendant when he observed the Defendant speeding abovethe 90 kilometres per hour posted speed limit while towing a trailer on a highway.

Given the danger to the public presented by theDefendant’s conduct, the Officer would likely have been in dereliction of his duty had he not stopped the Defendant from continuing inthis dangerous activity. [14] The Defendant has admitted to committing the offence of speeding and there is no question that the Officer observed theDefendant in a public place committing the offence.

Regardless of the Officer’s prior interactions with the Defendant or his surveillanceat the time of observing the speeding offence, there is nothing improper with the Crown prosecuting this speeding offence and callingthe Officer to provide evidence of what he observed. Even if the court were to assume the Charter violations alleged by the Defendantare true and he is able to establish the Officer breached the Defendant’s Charter rights in the past, the alleged breaches lack sufficientnexus to the offence that brings the Defendant before the court.

The alleged breaches do not taint, compromise or undermine theOfficer’s lawful actions in observing the offence occurring in a public place, or his testifying before the court as to what he observed.

[ 15 ] If the Defendant’s challenge were to be accepted, the court would be adopting the position that because the Officer had earlier improper interactions with the Defendant, the Officer cannot provide evidence of an offence the Officer witnessed the Defendant commit in a public place. This cannot be the law. If the Defendant believes the Officer is biased against him and making false accusations or providing false evidence in this matter, he would be entitled to challenge the Officer when the Officer testifies with respect to the offence the Officer claims he observed.

However there is no merit to the Defendant’s argument that because of past improprieties committed by the Officer in his interactions with the Defendant, the court should not proceed with the prosecution of an offence witnessed by the Officer which has minimal connection to the earlier impugned conduct. [ 16 ] The Defendant wishes, in this prosecution of a violation ticket, to litigate his grievances with the Officer’s past conduct when there is no evidence or suggestion the Officer acted improperly when observing the offence or when stopping the Defendant for his unlawful conduct. [ 17 ] In essence the Defendant’s application amounts to the assertion that as a result of the historical relationship between the Defendant and the Officer, which the Defendant claims was unlawful and abusive on the part of the Officer, it is improper for the state to prosecute the Defendant in a situation in which the same Officer stopped the Defendant upon observing the Defendant engaging in unlawful activity endangering the public.

I have not been provided any case law to support the Defendant’s proposition. This is not a situation of a random stop, or of police activity involving improper conduct resulting in discovery of evidence or entrapment of the Defendant, leading to the prosecution before the court.

In this prosecution, the Defendant was observed committing an offence in a public place by the Officer, and there is nothing improper with the Crown calling the Officer to testify to what he observed. [ 18 ] While the court may refuse to enter a conviction for an offence where the state, in its enforcement efforts, has acted improperly in its investigation or prosecution of the specific offence before the court, the courts have been very reluctant to hold that misconduct by a state actor, unrelated to the offence before the court, is grounds to avoid a conviction being entered for that offence. [ 19 ] There is no question that evidence of police Charter breaches may be addressed at trial if the breaches occurred during the course of the same investigation or prosecution that is before the court.

However, in general, where an officer’s misconduct does not relate to the circumstances of the offence before the court, the accused must seek his or her remedy in another forum. ( R. v. Nasogaluak, 2010 SCC 6 ) When, as in the situation before this court, the allegatio n of Charter breaches focuses on prior conduct of an officer which is unrelated to the investigation or prosecution that brings the Defendant before the court, the court will only permit evidence of the alleged breaches to be admitted in rare circumstances.

The jurisprudence only allows for admissibility of previous alleged police misconduct in a trial in very narrow circumstances. These include where the previous misconduct has been the subject of a previous judicial finding ( R. v. Harflett, 2016 ONCA 248 ); the police admit that they acted in such a manner on previous occasions specifically with respect to past practices relating to procedural matters ( R. v.

Perjalian, 2011 BCCA 323 ); and where the allegations relate to systemic or institutional problems and the impugned conduct extends beyond the treatment of the Defendant to others in similar circumstances ( R. v. Reilly, 2020 BCCA 369 ). None of these exceptions are applicable to this prosecution. [ 20 ] There is good reason for the limited nature in which previous officer misconduct, unrelated to the investigation, may be admitted in a prosecution.

These include avoiding extensive litigation occupying precious court time when there is little if any link to the specific prosecution or the functioning of the administration of justice. It would be most problematic to permit accused individuals to raise earlier misconduct by police officers unrelated to the prosecution before the court when the misconduct has little relevance to the matter before the court. [ 21 ] In R. v.

Fahad, 2016 ONSC 4247 , the court stated at para. 15: Where the alleged instances of misconduct are separate and distinct and unrelated to the charged offences, the accused cannot bundle them and use them to justify a stay of proceedings. To state this in a different way, an individual cannot "bank" alleged Charter breaches for years with the intention of "cashing them in" to receive a stay of proceedings for an unrelated crime. If this were the case, how could a court determine when an accused had exhausted his or her "credit" for prior Charter violations?

Further, trials would become unnecessarily long and complex involving evidence of potentially numerous prior historic alleged Charter breaches. [ 22 ] Similarly, in R. v. Blanchard , 2018 ABQB 43 , the court stated at para. 22: However, to expand the range of state misconduct beyond that which is related in some way to the offences before the court would open the floodgates in terms of evidence that could be adduced to support a Charter remedy in criminal proceedings.

Such an expansion could result in admission of evidence with only a very tenuous link to the circumstances bringing the offender before the court and no link at all to the functioning of the administration of justice itself. It would unduly lengthen proceedings and would not be logically related to the prosecution of the offences. [ 23 ] This is not the forum for the accused to pursue his prior grievances with the Officer.

One of the purposes of a Vukelich hearing is to ensure that the court guards against its limited resources being utilized for lengthy court hearings which have little to no likelihood of success, or are more properly litigated in a different forum. [ 24 ] With respect to the latter concern, the court must be mindful that this prosecution is for a speeding offence, the trial of which in the normal course would be conducted in less than an hour, or less if the Defendant is not contesting the charge. And if convicted, the result would be a nominal fine being imposed; in this case no greater than $196.

The extensive nature of the allegations advanced by the Defendant in this matter, as well as the novel principles of law, would require days, if not weeks, of evidence to properly canvas all the issues. Given the litany of complaints asserted by the Defendant against the Officer for the Officer’s prior conduct, the court would need to explore numerous incidents, involving numerous witnesses, where the Defendant and the Officer had prior interactions, to determine if these interactions constituted Charter infringements on the part of the Officer.

As well, given the nature of the Charter rights the Defendant claims have been violated (specifically ss. 2(

d) and 15), the Crown would be at liberty to call extensive evidence to establish that the group(

s) the Defendant wishes to have protected under the Charter have been formed for the purpose of furthering criminal activity, and accordingly are not protected by the Charter . In short, to fully canvass the Charter claims advanced by the Defendant in this matter would require extensive court time.

[25] In this particular case, I would suggest that the proper forum for adjudicating the Defendant’s grievances for the Officer’s priorconduct would be in the civil courts or through a police complaint. These forums would be better suited to focus on the variousgrievances and appropriate remedies as well as provide procedural fairness to all parties, including the impugned Officer who has nostanding in this prosecution.

The court is being asked to make a finding of extensive improper conduct on the part of the Officer, yet theOfficer is not a party to these proceedings, has no standing, and is unable to have counsel, call evidence or make submissions withrespect to the issues.

Permitting the Defendant to pursue his grievances with the Officer in this prosecution would not only undermine theprocess engaged in this prosecution and distract the court from the issue of the speeding offence charged in this matter, it would alsoprovide for a less than adequate forum for the Officer’s prior conduct to be tried fairly for all parties concerned.

It would be beneficial toall involved, including the Defendant, the Officer, the court, and ultimately the public, if these grievances were adjudicated in theirproper forum, either by a civil action or a police complaint. [26] In the result, having concluded there is an insufficient nexus between the speeding offence before the court and the alleged priormisconduct of the state actor, the Defendant’s application to have the matter before the court stayed as result of the alleged past Charterviolations must fail.

Even if I were to have concluded that the alleged Charter breaches had a stronger connection to the matter beforethe court, I do not believe it would be appropriate or wise for the court to embark on an extensive Charter litigation in this prosecution ofa minor traffic offence.

To do so would require a massive hearing to potentially resolve what would otherwise be a short trial that canonly result in minimal consequences for the Defendant. [27] Although not necessary given my findings of a lack of nexus of any alleged Charter violation to the offence before the court, Iwill nonetheless provide brief reasons addressing the Defendant’s Charter complaints and my conclusions that the alleged Charterbreaches lack merit. [28] In his s. 2(

d) Charter claim, the Defendant maintains the Officer interfered with his ability to associate with other members ofhis motorcycle club both by the Officer’s past conduct and at the time of the pull over. The Defendant had a fellow member of hismotorcycle club with him in the vehicle at the time he was pulled over. [29] The simple answer to the suggestion of a violation of the right to association at the time of being pulled over, is that theDefendant was pulled over as he was, at that very moment, engaged in an unlawful act. The purpose of s. 2(

d) of the Charter has notbeen recognized to protect an individual when the individual is committing unlawful acts while engaged in that association (MountedPolice Association of Ontario v. Canada, (Attorney General), 2015 SCC 1). As well, it should not be overlooked that the duration of thepull over was a mere 14 minutes while the Officer proceeded to issue a violation ticket. [30] Further, with respect to the s. 2(

d) Charter claim generally, the majority decision in Mounted Police Association of Ontario v.Canada, (Attorney General) provides greater clarity in its general overview of the purpose of the protections guaranteed by s. 2(

d) of theCharter at para. 58: This then is a fundamental purpose of s. 2(d) -- to protect the individual from "state-enforced isolation in the pursuit of his or herends": Alberta Reference, at p. 365. The guarantee functions to protect individuals against more powerful entities. By banding together inthe pursuit of common goals, individuals are able to prevent more powerful entities from thwarting their legitimate goals and desires. Inthis way, the guarantee of freedom of association empowers vulnerable groups and helps them work to right imbalances in society. Itprotects marginalized groups and makes possible a more equal society. [31] The constitutional rights protected by s. 2(

d) of the Charter were not incorporated into the Charter, nor have they ever beeninterpreted, to protect social groups such as motorcycle clubs. [32] With respect to the s. 7 Charter argument, it would seem, as best I can tell, that the Defendant’s claim is that his right to libertyand security would be violated if a conviction were to be entered in this prosecution. Assuming for a moment that the Officer’s conductinfringed the Defendant’s Charter rights, I fail to see how entering a conviction in this prosecution will have any impact on theDefendant’s right to liberty and security.

The jeopardy of the Defendant in this matter is a fine of $196. A conviction cannot result in ajail term (R. v. Miner, [1997] B.C.J. No. 2697, BCCA). His argument that his right to liberty and security would be infringed by thisprosecution simply has no merit. To be concise, had the Defendant simply paid the ticket, admitting his guilt as he has done before thiscourt, his sanction would have been a $196 fine; even less if he paid the fine early.

No liberty or security rights are engaged by thisprosecution proceeding. [33] Nor do I find any merit in the contention that the Officer’s alleged harassment of the Defendant constitutes a violation of theDefendant’s liberty or security. The Defendant was observed speeding on a public road by the Officer and was pulled over. As indicated,the Defendant does not allege a s.9 Charter violation occurred, nor am I able to conclude there was such a violation. The Officer wasperforming his lawful duties. The Defendant has no right to travel in excess of the speed limit.

He is not free to drive over the speed limitwith impunity because the police, or this particular Officer, may have harassed him in the past. [34] Even if the court were to conclude that proceeding with this prosecution would violate the Defendant’s right to liberty andsecurity, the Defendant would need to further establish, pursuant to s. 7 of the Charter, that the violation has occurred contrary to theprinciples of fundamental justice. [35] The Defendant submits that the principle of fundamental justice at stake in permitting this prosecution to proceed is that thejudicial process including the investigation is not fair and thus constitutes an abuse of process. [36] While fairness of the process is always sought by the court, more than a finding of unfairness is required to constitute an abuse ofprocess warranting a judicial stay.

There must be a finding of “unfairness or vexatiousness of such a degree that it contravenesfundamental notions of justice and thus undermines the integrity of the judicial process” R. v. O’Connor, (SCC), [1995]S.C.J. No. 98 at para. 73. The investigation or prosecution must involve very serious conduct and significant harm. (R. v. Nixon, 2011SCC 34) I am unable to identify any aspect of the investigation or the prosecution which is unfair. And certainly nothing of themagnitude which could result in a finding of abuse of process, warranting a stay of the prosecution.

[37] As indicated, there was nothing improper in the Officer observing the speeding or pulling the Defendant over. He was fulfillinghis duties as a police officer and no s. 9 Charter violation is alleged.

As well, I am unable to contemplate how the Officer’s impugnedconduct could be characterized as very serious resulting in significant harm to the Defendant, which is what is required to meet the highthreshold established by the jurisprudence. [38] Lastly, with respect to the s. 7 Charter challenge, I don’t believe the conduct of the Officer in observing the Defendant speedingand pulling him over, regardless of the allegations of previous harassment, would shock the community. (R. v.

Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3) [39] As for the prosecution, the Defendant has been provided full due process in this matter. He was given the opportunity to pursue adefence including challenging the Officer and his conduct at the time of the offence, and what the Officer observed. He has chosen not todo so. Indeed, he has admitted to committing the offence.

He has not provided any indication of any aspects of this prosecution that arecontrary to the principles of fundamental justice. [40] The Defendant claims his equality rights were violated contrary to s. 15 of the Charter as the Officer’s conduct discriminatedagainst the Defendant based on his religion. To this end, the Defendant seeks a ruling that his motorcycle group is akin to a religion.

Thejurisprudence is clear that the court must be careful not to risk trivializing the constitutional protection of freedom of religion, whichfocuses on “an approach which recognizes that persistent systemic disadvantages have operated to limit the opportunities available tomembers of certain groups in society and seeks to prevent conduct that perpetuates those disadvantages” (Kahkewistahaw First Nation v.Taypotat, 2015 SCC 30).

The proposition that a socially based motorcycle group warrants protection under s. 15 has little merit. [41] Lastly, even if the court were to conclude that the Charter rights of the Defendant were violated, I am unable to conclude thatproceeding with the trial in this matter could constitute an abuse of process and that the remedy sought pursuant to s. 24(1) of theCharter could be invoked. The jurisprudence indicates there are two distinct categories of abuse of process: the right to a fair trial andthe integrity of the justice system (R. v. Babos, 2014 SCC 16).

I have already indicated that I am unable to conclude that the breaches, asalleged, could compromise the fairness of this trial.

Similarly, I do not believe there is any merit to the concerns for the integrity of thejustice system. [42] I am unable to foresee, upon proof of the Defendant’s allegations, how the prosecution of this matter could constitute “unfairnessor vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicialprocess.” (O’Connor at para. 73) If the alleged improper conduct of the Officer were to be established by the Defendant, the integrity ofthe justice system would not be compromised by proceeding with this prosecution. (R. v.

Anderson, 2014 SCC 41) The conduct of theOfficer in the investigation and prosecution of this speeding ticket, as alleged by the Defendant, could not reach the level necessary forthe court to conclude proceeding with this prosecution would tarnish the integrity of the judicial system. (Nixon) [43] Moreover, the jurisprudence is clear that even if the court were to find that proceeding with this prosecution constituted an abuseof process, that would not necessarily result in the conclusion that a stay of proceedings is the appropriate remedy.

In O’Connor,L’Heureux-Dube J. confirmed at para. 68: The power granted in s. 24(1) is in terms discretionary, and it is by no means automatic that a stay of proceedings should be granted for aviolation of s. 7. On the contrary, I would think that the remedy of a judicial stay of proceedings would be appropriate under s. 24(1) onlyin the clearest of cases. [44] Cases warranting a stay of proceedings will be exceptional and very rare.

Proceeding with the trial in this matter would notviolate those fundamental principles of justice which underlie the community’s sense of fair play and decency, nor would theproceedings be oppressive or vexatious. (R. v. Keyowski, (SCC), [1988] 1 S.C.R. 657) Any harm in proceeding with thistrial would be minimal at most.

Assuming the conduct alleged by the Defendant could be established in these proceedings, I am unableto contemplate the court granting the s. 24(1) remedy sought by the Defendant. [45] After assessing the Defendant’s various Charter challenges, I have little difficulty concluding that if his Charter application wereto have a full hearing, he would be unable to establish the various breaches alleged on a balance of probabilities, or that the remedysought pursuant to s. 24(1) would be granted. [46] In the result, I am dismissing the Defendant’s Charter challenges and entering a guilty verdict. ____________________________ The Honourable Judge R.

Cutler Provincial Court of British Columbia