R. v. Llagas Date:, 2014 BCPC 342

Citation: R. v. Llagas Date: 20140902 2014 BCPC 0342 File No: 14544-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NATHANIEL ART LLAGAS EXCERPTS FROM PROCEEDINGS RULING OF VOIR DIRE #1 OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: J. Cryder Counsel for the Defendant: J. Turner Place of Hearing: Vancouver , B.C. Date of Hearing: September 2, 2014

Date of Judgment: September 2, 2014 [ 1 ] THE COURT: So Mr. Llagas faces charges. Two counts remain on this Information. It is 14544-2-C. There were originally four counts. Counts 3 and 4, there was a stay of proceedings entered before the trial, and then Counts 1 and 2 remain and that is colloquially known as an obstruction of a peace officer in the execution of his duties, and the possession of marihuana under the Controlled Drugs and Substances Act . Both of these offences occurred allegedly on August 24th, 2013. [ 2 ] The defence has alleged that Mr.

Llagas has suffered some breaches of his Charter rights under s. 9, to be free from arbitrary detention, specifically, that there was an unlawful arrest and, in light of that, the officer was not acting in the execution of his duties; and s. 8, that there was a search incidental to arrest, by which marihuana was discovered, one bag in his hoodie, and the evidence suggests one bag fell out of his hoodie during the struggle that he had with the police. [ 3 ] It was agreed that I would hear the Crown evidence on the trial and then hear the defence evidence in the protection of a voir dire in order to determine the Charter issues that were raised. [ 4 ] So, essentially, the evidence is that at about 3:15 p.m. on August 24th, 2013, Constable Green and Constable Hendricks were on their way to answer a suicide call when they both say they saw Mr.

Llagas, whom they both have had previous contact with. They saw him riding a BMX bicycle on the sidewalk with no helmet on. He was weaving in and out of pedestrians. This would be contrary to ss. 183(2)(

a) of the Motor Vehicle Act , riding on a sidewalk, and s. 184(1), I believe, riding with no helmet. [ 5 ] Now, Constable Green continued, he observed these things, he says, and then he continued on to the suicide call, obviously, because that was the priority. But he concluded in his mind that he was determined at some later time to issue violation tickets to Mr. Llagas for those offences that he had observed. [ 6 ] Later, at about 7:30 p.m., Constable Green was on patrol with Hendricks. Constable Plummer was there, as well, and a police cadet, Youngman, was also in the vehicle. Constable Green spotted Mr.

Llagas crossing the road eastbound from the southwest side of Hastings to the southeast side of Hastings across Main Street. [ 7 ] Constable Green pulled his vehicle over on the southeast corner of that intersection intending to wait for Mr. Llagas to cross the road because he wanted to have dealings with him at that point in time and serve him the violation ticket. Constable Green says he exited his vehicle and made eye contact with Mr.

Llagas. [ 8 ] Now, the other witnesses in this case, which are the other police officers mentioned in the ride-along, I guess, for lack of a better term, do not confirm that and, in fact, the weight of the evidence suggests that Constable Green did not, in fact, get out of the vehicle at that point in time. But really, in my mind, it is immaterial to the issues to be resolved. What is clear is that there were no gestures or verbal commands made by the officer, Constable Green, that would in any way signal to Mr. Llagas that the police wished Mr.

Llagas to stop and be dealt with in any fashion. [ 9 ] What is also clear is that Mr. Llagas seemed to notice that there was police on the other side of the crosswalk and I accept his evidence when he says he just did not want to have any part of another, what he calls, random street check. So he turned on his heels and either walked quickly, according to his common law spouse who gave evidence and his evidence, or sprinted or ran, according to the police witnesses, in the opposite direction. He entered the alley behind the Carnegie Centre there for a few seconds and then re-emerged walking back eastbound.

He testified, and it makes sense, that he knew his spouse would likely follow so he thought he would just go back. [ 10 ] Meanwhile, Constable Green has made a determination at this point as a result of Mr. Llagas running away from him that Mr. Llagas is arrestable for the offence of obstruction which is a Criminal Code offence under s. 129 of the Criminal Code . Constable Green said he believed that Mr. Llagas was obstructing him from serving the violation tickets. [ 11 ] He also testified that he had reasonable and probable grounds to believe that Mr.

Llagas had committed a criminal offence, although he did not know what offence that might be. He said the area behind the Carnegie is notorious for drug activity so that it could be related to that. He also testified that it appeared to him that Mr. Llagas was trying to avoid contact with him and had "something to hide" because he ran with his hands in his hoodie pocket. [ 12 ] Constable Green pulled a quick U-turn when he noticed Mr. Llagas running away and parked his car on the sidewalk nose-in to the Carnegie Centre in an effort to block the path of Mr.

Llagas who was walking back towards the area that he had come from. Constable Green said he then got out of the police car and pointed at Mr. Llagas and said something to the effect of, "You're under arrest." [ 13 ] Constable Green testified that Mr. Llagas then slid across the front bumper portion of the police car and seemed to ignore Constable Green. He testified that Mr. Llagas wished to push past him so he repeated to Mr. Llagas that he was under arrest. Mr.

Llagas, the evidence from Constable Green was, appeared to ignore that, as well, and then Constable Green took him by the shoulders and eventually took Mr. Llagas to the ground. [ 14 ] Mr. Llagas' evidence is that he did not slide over the hood of the police car and did not push Constable Green, but he did certainly wish to walk past him and there was enough room to walk past him so he attempted to do that. Mr. Llagas says that when Constable Green said he was under arrest, he asked the question, "What for?" [ 15 ] That was a little later in the chronology, but what happened when Mr.

Llagas was on the ground and other officers are grappling with him is not entirely clear from the evidence. Mr. Llagas and his spouse's version of the events differs from the police as to what happened and whether he was on his back or his stomach initially. It is not necessary to resolve that conflict, in my mind, in this part of the evidence.

[ 16 ] What is clear is that the police felt it necessary, in light of Mr. Llagas' uncooperative behaviour, to apply several knee strikes, that was Constable Green, and there was fist strikes by Constable Hendricks to Mr. Llagas in an effort to gain compliance with the handcuffing process. Mr. Llagas says his arm was trapped under his body as he lay face-down and that, therefore, he could not comply with requests to move his arm. [ 17 ] When Mr. Llagas was stood up, Cadet Youngman says he saw a baggie fall away from Mr. Llagas and he testified it was Hendricks who seized it. Constable Green then arrested Mr.

Llagas for obstruction and possession. Constable Plummer says he then seized another single baggie from the hoodie pocket of Mr. Llagas. Llagas' evidence is that two very small baggies of what was proven to be marihuana were in his hoodie when seized and not on the ground; again, not necessary to resolve that conflict to deal with the issues. [ 18 ] Mr. Llagas says that Constable Green had conducted about 20 to 30 street checks of him and he just did not want any part of another one, largely due to the fact that his pregnant spouse was standing there watching the whole proceedings.

So he just wanted to avoid the police by walking away. [ 19 ] In cross-examination the Crown suggested to Mr. Llagas that he should be used to these detentions by now and challenged his reasons for running away. Of course, no one, even people who are commonly seen hanging around in the Downtown Eastside, can be blamed for not getting used to it, I suppose. [ 20 ] I accept Mr.

Llagas' evidence with respect to the reason that he walked or ran away from yet another likely encounter with the police, but again, it is not entirely necessary to make findings of fact in that regard because it is clear that Constable Green could not have reasonably come to the conclusion that Mr. Llagas knew, at least based on the initial alleged eye contact, that the police wanted to deal with him for some lawful purpose. [ 21 ] These two small baggies of marihuana combined to weigh about 2.7 grams. Much of the evidence given about Mr.

Llagas' actions when he was on the ground and much evidence was given about his brother being present and recording it, but none of that is relevant, really, to the issues on the voir dire . [ 22 ] The question was whether the arrest of Mr. Llagas was valid. The evidence was certainly discovered as a result of the arrest. Crown has conceded that if a breach is found as alleged by the defence, they are not seeking to have the evidence admitted under s. 24(2). [ 23 ] The Crown argues that the marihuana fell out in the context of a lawful arrest, that Constable Green was acting lawfully when Mr.

Llagas' behaviour escalated into the obstruction that amounted to a criminal offence. Defence says that the Constable Green's evidence is determinative of the matter. [ 24 ] The Queen v. Storrey is still the law in defining the test for arrest and s. 495(1) of the Criminal Code makes it clear that the police are required to have reasonable and probable grounds that the accused has committed an offence before they can arrest him.

The Supreme Court of Canada in the Storrey case goes on to say that without that protection, even the most democratic society could fall too easily prey to abuses and excesses of a police state. [ 25 ] It requires, the Code does, for an officer to demonstrate to a judicial officer that they have the reasonable grounds to believe that the person to be arrested has committed an offence.

In the case of an arrest without a warrant, the Supreme Court of Canada says it is even more important for the police to demonstrate that they have those same reasonable and probable grounds that they base the arrest on. [ 26 ] Again, the degree of force applied during the arrest is kind of a red herring because the use of excessive force in arresting a person or during the currency of an arrest has been held to be a breach of s. 7 of the Charter , but it is not an issue that was raised in this case, the right of security of the person.

The Grant comments about investigative detention and how it is a lower standard than the arrest are not, again, determinative of this issue because the police officer says he has grounds to arrest. [ 27 ] Did Constable Green possess grounds to arrest for obstruction? That is the question because that is his evidence. It is not particularly relevant to determine what police actions may have been justified had Constable Green advised Mr. Llagas when he slid or walked around the hood of the police car that he simply wished to serve him with a violation ticket from the earlier incident.

This perhaps should have come into play, but it was not, apparently, and I refer to a case called The Queen v. Langthorne , [2012] B.C.J. No. 2845 . [ 28 ] The issue to be analyzed at least in determining the validity of the detention from the perspective of what was actually done by the police and not what could have been done by the police and that was noted in Whitaker , 2008 BCCA 174 , where the court said in deciding whether the police infringed Charter rights, they are to be judged on what they did, not what they could have done.

While the issue involving powers to arrest under the Motor Vehicle Act is an interesting one, it is largely academic because Mr. Llagas was purportedly arrested under the Criminal Code for obstruction and that is the analysis that really must be undertaken at the outset. [ 29 ] Constable Green admitted that Mr. Llagas could not have possibly known when he was walking in the crosswalk that Constable Green wished to serve him a violation ticket for an earlier incident. It is, therefore, difficult to accept that, as a result of Mr.

Llagas turning and running away from the constable, that grounds existed to believe, on Constable Green's part, that Mr. Llagas was wilfully obstructing him from issuing a violation ticket. [ 30 ] Mr. Llagas may have been, from a de facto standpoint, interfering with Constable Green's intention to serve the violation ticket at the time he went the other way. However, that is a far cry from supporting any reasonable belief that Llagas knew that Constable Green wished to serve a violation ticket and, therefore wilfully obstructed him from performing that task. [ 31 ] In the case of The Queen v.

Noel , which is a [1995] B.C.J. No. 1852 case from our Court of Appeal, Justice Wood speaking in obiter but technically and specifically dealing with this issue in order to provide guidance to lower courts talked about obstruction and he

said the offence defined in s. 129(

a) of wilfully obstructing a peace officer is conduct that is undertaken with the intention that it obstruct the individual in question in the execution of his duty. That intention cannot exist in the absence of knowledge that: (

a) the individual obstructed is a peace officer or other person defined in s. 129 (a); and (

b) that individual is engaged in the execution of his duty. Each of those are circumstances essential to the completion of the offence, and knowledge of those circumstances is an essential component of the mens rea of the offence. [ 32 ] You know, in most cases, obviously, the duties that are attempted to be executed are within the subject's knowledge or the inference can be made that it is easy to determine, but here, obviously not. Constable Green admitted there was no way for Mr.

Llagas to know what Green wanted with him and, in light of that clear and obviously reasonable admission, it cannot be said that Constable Green held a subjective belief that it was Mr. Llagas' intent in running away to obstruct him from serving a violation ticket. [ 33 ] It follows that despite his testimony otherwise, he could not have subjectively believed that Mr. Llagas was arrestable for that Criminal Code offence of obstruction.

There is no justification for an arrest on an objective basis, as well, for the same reason that there could be no subjective belief on the part of Green. [ 34 ] Constable Green was without lawful authority to lay his hand on Mr. Llagas and that includes his sort of very vague assertion -- his testimony that he thought he had grounds to believe that a criminal offence had taken place in the alley. It simply does not come close to amounting to reasonable and probable grounds for an interference with Mr. Llagas' liberty. [ 35 ] His detention was not authorized by law and is arbitrary and violates s. 9.

Since Constable Green possessed no lawful right to touch the accused, he was not in the execution of his duty at the time of the purported arrest and subsequent resistance to that arrest and the accused was within his rights to use reasonable force to repel the application of force against him, and he should be acquitted on Count 1. [ 36 ] Count 2, and I am mindful of the directions in MacKenzie , that recent Supreme Court of Canada case, where Justice Moldaver says on this issue of arrest or detention and search, those sort of analyses should be kept distinct and independently justified, but it follows, really, from my earlier finding that if there are no grounds to arrest the accused, any searches incident to that arrest that followed were also unlawful. [ 37 ] Evidence that was obtained as a direct result of the unlawful arrest either by the marihuana falling out of a pocket during the arrest process or by a search incidental to the unlawful arrest is evidence that was impugned and there is breaches of s. 8 established, as well.

That evidence, given the concessions of the Crown, should not be admitted into the proceeding. In light of that, I think, with all the issues being dealt with, Mr. Llagas is entitled to an acquittal on Count 2, as well. All right. [SUBMISSIONS RE STAYING OF COUNTS OR ACQUITTAL] [ 38 ] THE COURT: I guess I misunderstood the concessions that had been made earlier and, fair enough. I mean, obviously, people have different understandings of concessions and the effect that they have, but I take it, at this point in time, if given the findings that I made, you would have invited the court to acquit, then? [ 39 ] MR.

CRYDER: Exactly, yes. [ 40 ] THE COURT: Okay, well, then, that is fair. I will do that, then. Once the findings are made, I will accede to that request from the Crown. [RULING ON VOIR DIRE #1 CONCLUDED]