R. v. Stables, 2019 BCPC 372

Citation: R. v. Stables 2019 BCPC 372 Date: 20190607 File No: 247290-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Division) REGINA v. MARC DAVID STABLES RULING ON VOIR DIRE OF THE HONOURABLE JUDGE L. BAKAN Counsel for the Crown: A. Russell Counsel for the Defendant: E. Cooper Place of Hearing: Vancouver , B.C. Date of Hearing: April 8, 9, 2019 Date of Ruling: June 7, 2019 [ 1 ] Marc David Stables was arrested on September 1, 2018 for: 1. unlawfully possessing cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and; 2. carrying a baton as a concealed weapon contrary to s. 90(1) of the Criminal Code .

[ 2 ] Mr. Stables submits that

section 7, 9, 10 of his Charter rights were violated by Vancouver police officers. The initial breach from which all others allegedly flow was he was unlawfully detained when he was asked his name by a police officer in an alley on the DTES, depriving him of his liberty and security under s. 7 of the Charter. [ 3 ] Defence counsel advised he is not advancing a s. 9 Charter breach on the voir dire . He submits there is overlap between the alleged s. 7 and s. 10 Charter breaches. [ 4 ] The Crown submits Mr.

Stables was not unlawfully detained, and if there were any Charter breaches, they were not made in bad faith and were minimal. [ 5 ] If I find that Mr. Stable’s Charter rights were violated, I will consider whether or not evidence obtained from the search of Mr. Stable’s should be excluded pursuant to s. 24(2) of the Charter following submissions. Witnesses [ 6 ] Constables Chow and LaBrosse were called as witnesses by Crown. Mr. Stables testified on his own behalf.

Crown Evidence [ 7 ] On the night of September 1, 2018, Constables Chow and LaBrosse were working in uniform in a marked policed car as beat officers on the downtown east side (DTES). Constable LaBrosse was driving. Constable Chow was in the front passenger seat. [ 8 ] At approximately 10:05 p.m., the officers heard what sounded like a male and female arguing in a lane south of Cordova St.

The Army and Navy store is on either side of this lane. [ 9 ] The officers were concerned there might be a domestic dispute in progress and entered the lane in the police vehicle, to investigate. [ 10 ] The male and female were in the middle of the lane. Cst. LaBrosse said as they approached in the vehicle, he observed that the female was “OK”. This was his initial concern. He further observed there was no argument. He recorded in his narrative that the male, subsequently identified as Mr. Stables, and female were friendly and chatting. [ 11 ] Cst.

Chow states he believed there had been an argument but that it had ended. [ 12 ] Cst. LaBrosse testified the male and female were on the driver’s side of the police vehicle. He recognized the female as someone he had previously encountered on the DTES. They exchanged hellos briefly and she walked away. Neither he nor Cst. Chow asked her anything further or stopped her from walking away. Cst. LaBrosse said he had no concern about her at this point. [ 13 ] Cst. Chow was sitting on the passenger side of the car and had no conversation with the female. He did not recall any interaction between Cst.

LaBrosse and the female. He believed she walked by the police car before it had stopped, in contrast to Cst. LaBrosse’s evidence. Cst. Chow could not recall her returning after she left. Cst. LaBrosse could not recall her returning to get money from the accused after she initially left, but said it was possible. [ 14 ] Neither officer recognized or knew Mr. Stables. He was standing closer to the north side of the lane on the laneway. The East side of the lane was blocked to vehicles by construction. The female had walked west when she left the area.

Abbot St. was to the west of the lane and Carrall St. to the south. The area was described as well-lit from adjacent businesses that included parkades. [ 15 ] Cst. LaBrosse testified that on a good day, 2 cars could pass each other. There are garbage bins in the alley. [ 16 ] Cst. LaBrosse testified he stopped the police vehicle beside Mr. Stables. Mr. Stables was several feet away from the driver’s window which Cst. LaBrosse had rolled down.

He was standing in front of an alcove in the lane besides a dumpster. [ 17 ] Both constables testified that part of their job is to build relationships and trust with persons in the DTES. Both stated that speaking to persons in the DTES is one of the tools used to build rapport and make people feel at ease. They also agreed they want to know who is in the DTES. I accept these are legitimate goals of police patrolling in the DTES. There are a number of vulnerable individuals living there and establishing rapport and knowing who is there, is important in protecting them. [ 18 ] Constable LaBrosse and Cst.

Chow acknowledged they had no grounds to detain Mr. Stables when they encountered him. They both testified that when Cst. LaBrosse asked the accused his name, he was not required to provide it and was free to go. They did not tell him he had to give his name nor did they tell him he need not, and was free to leave. [ 19 ] Cst. LaBrosse states he engaged Mr. Stables in ‘small talk.’ He said that he introduced himself and then asked Mr. Stables his name. [ 20 ] Cst. LaBrosse testified he spoke to Mr. Stables in a friendly and casual tone. Cst. Chow stated this as well. [ 21 ] Both officers described Mr.

Stables as casual and relaxed. [ 22 ] Cst. Chow and Cst. LaBrosse were still in the police vehicle when the conversation between Mr. Stables and Cst. LaBrosse took place. Cst. Chow testified in his direct evidence, that when Mr. Stables was asked his name by Cst. LaBrosse, he heard the accused give his name as Jeff St. Mark. On cross-examination he said he was not sure if the accused had just replied his name was Jeff but his recollection was hearing the name of Jeff St. Mark. [ 23 ] Cst. LaBrosse testified the accused said his name was Jeff. He wrote that in his narrative.

He said it is possible the accused gave his last name as ‘St. Mark’ as well but he didn’t record it.

[ 24 ] I find that the accused must have given a last name or the name could not have been run by Cst. Chow on the police computer. [ 25 ] The constables both testified they had no conversation about the name before Cst. Chow ran the name the accused provided on the computer. Before Cst. Chow completed the first computer search, Cst. LaBrosse continued to engage in small talk with the accused. He said he may have asked him his birthdate and ‘what you up to’. He testified the small talk lasted from 1.5-2.5 minutes prior to Mr. Stables’ arrest.

He testified it is his practice is to say hello, ask people their name, how long they have lived there and where they are from to learn about people they deal with. He and Cst. Chow denied either one of them told the accused they wanted his name to check for warrants. [ 26 ] According to Cst. Chow, he received no ‘hit’ on either CPIC or Prime for the name the accused provided. Cst. Chow advised Cst. LaBrosse of this. Cst.

LaBrosse testified he then point blank said to the accused ‘Hey, is that really your name?’ He did not believe the name the accused had given was correct as the computer search came back with no results. He said he wanted to know who he was speaking to although the man had done nothing wrong to his knowledge. Both he and Cst. Chow said that person (later identified as Marc Stables) was still free to go at that point and that had he not been free to go, they would have exited the police car. Cst. LaBrosse testified officers are vulnerable in the car as they are not in control of a situation. [ 27 ] Cst.

Chow heard Cst. LaBrosse asking the accused something about his name after he advised there was no hit on the computer. He described his tone as questioning not confrontational. [ 28 ] Cst. LaBrosse demonstrated how he asked the accused if he had given his real name. He made a gesture with his palms up that I find was not threatening but questioning in a friendly somewhat joking demeanor. He testified that the accused responded by giving his name as Marc Stables. [ 29 ] At 10:08 p.m., Cst. Chow ran the name Marc Stables and got ‘a hit’ of two possible active warrants. He advised Cst. LaBrosse of this. Cst.

Chow testified the warrants were for Mr. Stables’ failure to comply with probation orders. It is clear from all the evidence that conversation with Mr. Stables, prior to Cst. Chow leaving the police vehicle, was between just Cst. LaBrosse and Mr. Stables. [ 30 ] Both officers testified that before they had the information about the warrants, Mr. Stables had been free to decline to converse and had been free to leave. [ 31 ] Cst. LaBrosse agreed on cross-examination that people are more deferential to police than others and more likely to speak to police. [ 32 ] Cst. Chow testified that after he advised Cst.

LaBrosse of the warrants, he believes Cst. LaBrosse left the vehicle and took Mr. Stables into custody. After he was handcuffed, Cst. Chow states he then asked Mr. Stables to spell his first name, what his middle name was and asked where he was from. He said the response confirmed Mr. Stables was the person the warrants were for. He recalls that it was Cst. LaBrosse that advised Mr. Stables of the warrants. [ 33 ] It is Cst. Chow’s recollection that he was still at the computer in the car when Mr. Stable was handcuffed by Cst. LaBrosse and he asked for Mr.

Stables’ spelling of his first name, middle name and place of birth. [ 34 ] Cst. LaBrosse testified that after he learned of the warrants, he exited the car, walked up to Mr. Stables and took physical control of his arm. He said he waited for Cst. Chow to exit the car and assist with cuffing Mr. Stables. [ 35 ] I do not find that the difference in evidence on some points between the officers bears on the substantive issues. I found both were credible. While Cst. Chow’s memory was not as clear of certain aspects, most of these areas were ones where Cst. LaBrosse was dealing directly with Mr. Stables. Cst.

Chow was somewhat defensive at times on cross-examination but I don’t find that reflected on the veracity or reliability of his evidence on matters at issue. The Arrest of Mr. Stables [ 36 ] Cst. LaBrosse testified he told Mr. Stables he was under arrest for outstanding warrants within 10 seconds of him being handcuffed. [ 37 ] Cst. LaBrosse did not Charter Mr. Stables as Cst. Chow was beside him and took over with Mr. Stables following his arrest. [ 38 ] Cst. LaBrosse stated it was Cst. Chow’s responsibility to Charter and warn Mr. Stables as part of his post arrest duties. He was unaware Mr.

Stables requested to speak to counsel. [ 39 ] I accept Cst. LaBrosse’s recollection that Cst. Chow exited the car after Cst. LaBrosse took physical control of Mr. Stables and Cst. Chow dealt with Mr. Stables post arrest. [ 40 ] Cst. LaBrosse testified that he searched Mr. Stables, incidental to arrest for safety reasons, as he was going to be taken to the jail. He searched the backpack that had been on Mr. Stables’ shoulders by emptying it on the hood of the police car. There were 3 bags of suspected cocaine and a collapsible baton in the backpack. [ 41 ] Cst. LaBrosse said he told Cst.

Chow about the items. [ 42 ] Cst. Chow recorded in his notebook that at 10:10 p.m., he re-arrested Mr. Stables for both the warrants and the PPT and Chartered and warned him on these charges. He said that Mr. Stables answered ‘yes’ to s. 10(a), ‘yes please’ to whether he wanted counsel under s. 10(

b) and ‘yes’ to the official warning. [ 43 ] Cst Chow testified he took a photo of Mr. Stables with his phone at 10:11 p.m. He said this was the time stamped in the police computer. He was asked in cross-examination to check the time over lunch and returned with this information.

[ 44 ] He said the photo was taken for evidence of appearance after he had received further information confirming the accused was Marc David Stables. [ 45 ] At 10:19 p.m. Cst. Chow stated he arrested, C hartered and warned Mr. Stables for carrying a concealed weapon (the collapsible baton) and other charges. He said Mr. Stables responded ‘yup yup’ to s. 10(a), ‘yeah’ to s. 10(

b) and ‘yup’ to the official warning. [ 46 ] Before making the arrest for the baton, Cst. Chow asked Mr. Stables, if in his view, the baton was a weapon. It was collapsed when it was found in the backpack and measured one foot collapsed. Cst. Chow opened the baton. It measured 2 feet extended. Cst. Chow also contacted an expert to see if the baton was a prohibited weapon. [ 47 ] On the evidence, I find that while Mr. Stables was first arrested at 10:08 p.m. on the two warrants for breaches of probation orders, he was not Chartered or warned on this charge until approximately 10:10 p.m. when Cst.

Chow rearrested him on the warrants and the PPT charges. [ 48 ] I accept Cst. LaBrosse’s evidence that he did not Charter or warn Mr. Stables, as post arrest dealings with Mr. Stables were tasked to Cst. Chow as Cst. LaBrosse was dealing with the evidence seized. [ 49 ] Cst. Chow did not record in his notes that he had Chartered and warned Mr. Stables after Cst. LaBrosse arrested him on the warrants until 10:10 p.m. after he re-arrested him on the warrants and PPT charges. On cross-examination, he agreed he did not Charter Mr.

Stables for the breach of probation until 10:10 p.m., after the suspected drugs were found. [ 50 ] Cst. Chow recorded this and also recorded the subsequent re-arrest and Charter /warning at 10:19 p.m. in regards to the baton. He agreed it is his normal practice to note the time he Charters and warns persons. [ 51 ] Mr. Stables was taken to the police station by police wagon. He was not given access to counsel at the scene as there was no work phone or privacy. Mr. Stables was also handcuffed. Joint Admission on Access to Counsel [ 52 ] A joint admission was made that Mr.

Stables received access to counsel at 10:39 p.m. on September 1, 2018 at the Vancouver jail on East Cordova St. Evidence of the Accused [ 53 ] Mr. Stables is 40 years old. He grew up in Ontario. He has completed some post-secondary education. He appears as a Caucasian person of average build and height. There was no evidence that he had any cognitive or physical disability. [ 54 ] Mr. Stables testified he has lived in Vancouver since September 1, 2017. At the time of these allegations he lived at the Grand Union Hotel at Abbott and Hastings St., Vancouver, BC.

He is a trained bartender and has worked in this capacity in addition to working as an audio installer. He last worked as a handyman. [ 55 ] Mr. Stables stated that prior to coming into contact with the officers on September 1, 2018, he was standing on the north side of the lane waiting for a friend to come down and let him into his building. The friend lived above the Bourbon Bar that was on the south side of the lane. He said he was waiting in the alcove on the north side of the lane. [ 56 ] He described the lane as long. He said there are garbage dumpsters staggered up and down the lane.

There is a parking garage in the lane. He described the lane as being wide enough for two cars to drive by each other even with the dumpsters in the lane. [ 57 ] While waiting, he testified a woman he knew named Gina, asked him for some change. It was at this time he saw the police car coming down the lane. [ 58 ] He said the car came to a stop beside he and Gina. He testified he was 4 feet away from the police car when it drove up and that he was between the dumpster and the vehicle. The dumpster was to his right. He said he could have walked away although it would have been ‘tight’.

He said after the car stopped, Gina and the officers said hi to each other. Gina then walked away in a northerly direction, passing by the vehicle and was not stopped. He said she returned shortly after to get money and he gave her a dollar. This was after he said the police had asked him his name. She was not stopped when she left the first or second time. [ 59 ] After the police vehicle stopped, Mr. Stables said he was closest to the driver side of the car. He said Cst. LaBrosse asked him what he was doing and he replied that he was ‘waiting for a buddy to let me in the back door here’.

He said he was then asked for his last name, he asked why it was needed, and Cst. LaBrosse said he was going to check to see if there were any warrants for him. The reason he said he was given was something to the effect that ‘shady activities’ happen in alleys. [ 60 ] Mr. Stable’s evidence is consistent with the officers that he had no direct dealings with Cst. Wong until after Cst. Wong had left the police vehicle. [ 61 ] On cross-examination, he testified that in the past he had told police he didn’t want to give his name and the police officers said they would wait till he did. [ 62 ] Mr.

Stables acknowledged he initially gave a false name. On cross-examination, he said in the past he had always been arrested when he gave a false name but he took the risk on this occasion. He agreed that Cst. LaBrosse spoke to him in the same tone and manner as he had demonstrated in his testimony. I found that Cst. LaBrosse was not aggressive or intimidating in the manner he testified he asked the question. [ 63 ] At trial, Mr. Stables was not asked what false name he gave. He said he was asked if he had given a false name. He said he thought about this and then gave his real name.

[ 64 ] On direct, he said he could not recall any other conversation with the officers, but on cross-examination testified Cst. LaBrosse said “We have time to wait,” while he was considering giving his real name. Mr. Stables said he had not recalled this when he gave his direct evidence. [ 65 ] This alleged statement was not put to either officer in their testimony. [ 66 ] On direct, he was asked why he gave his real name.

He said he was under the assumption there were no warrants for him although he did not really want to give his last name as he wasn’t doing anything wrong. [ 67 ] On cross-examination, he was asked why he had initially given a false name. He stated ‘I had things in my back pack and if arrested I would be searched.’ He testified that the police always ‘find a reason to arrest you’. He testified that the police never told him he had to give his name or couldn’t leave, nor did they tell him he need not give his name and was free to leave.

He said he assumed he had to give his name. [ 68 ] He testified he thought that if he did not give his name he would be placed in custody, that the officers would get out of the car and arrest him. [ 69 ] He testified he was not doing anything but one can’t just walk away or the police will stop you. He said that if a person walks away, they look guilty although sometimes police are just checking an area and will let you go. [ 70 ] He said that in the past, when he has been stopped by the police, they usually don’t ask for more than a name.

He said his assumption on why a name was asked for was because they were ‘going to run it’. The inference was that the name given would be checked on the computer. [ 71 ] He said the police have authority and power and it would be ‘evading and disrespectful’ to walk away and one could be arrested for walking away. [ 72 ] He said it was his belief that if he had walked away without giving his name, he would have been arrested and fingerprinted so his identity would be known. [ 73 ] On re-direct, Mr.

Stables testified that after he provided his real name to the officers, he was told there were warrants for breach of probation. He said when he was initially arrested on these warrants, he was not advised of his right to counsel. He was advised of his right to counsel after his backpack was searched and arrested for PPT and re-arrested for breach of probation. He advised that he wanted counsel. [ 74 ] He acknowledged he was arrested for the outstanding warrants for breach of probation after Cst. Chow got out of the police car. [ 75 ] It is admitted through counsel that Mr.

Stables received access to counsel at the Vancouver Jail at 265 E. Cordova St, at 10:39 p.m. [ 76 ] I accept the evidence of Cst. LaBrosse and Cst. Chow where it conflicts with Mr. Stables regarding pre-arrest and post-arrest conversations. Position of Defence [ 77 ] Mr. Stables submits his Charter rights were violated and therefore items found in the search following his detention should be excluded from evidence pursuant to s. 24(2) of the Charter. [ 78 ] It is submitted he was at least psychologically detained when he was asked his name by Cst.

LaBrosse as there was no reasonable basis for police to ask his name initially or ask if he had given a false name. It is submitted this violated his s. 7 Charter rights. [ 79 ] It is submitted that Cst. LaBrosse ‘confronted’ Mr. Stables in regards to giving a false name and that it was reasonable Mr. Stables did not believe he was free to leave. [ 80 ] It is Mr. Stables’ position that he gave his real name although he did not want to.

He felt he had no choice but do to so and that if he didn’t give his real name and left, he would be detained. [ 81 ] While he physically was not blocked from leaving, he would have had to have walked 50 meters north down the lane and thought police would find a way to detain him. [ 82 ] Defence states that if it is found Mr. Stables was detained when asked his name, the search violated his Charter rights as he was not given his s. 10 warnings and recitation. [ 83 ] Defence submits the following three s. 10(

b) breaches: 1. The initial questioning of Mr. Stables; 2. The failure to provide Mr. Stables with a s. 10 warning and rights immediately following his arrest; 3. Cst. Chow’s questions about the baton prior to his arrest on a weapon charge. Position of the Crown [ 84 ] The Crown submits the accused has not met the onus on him to establish on a balance of probabilities, that his Charter rights were breached.

[ 85 ] On the facts of this case, Crown states that Mr. Stables was not detained until he was lawfully arrested on the warrants. The obligation to provide s. 10 rights and warnings did not arise until this time. Any delay in providing his s. 10 rights and warnings was brief and reasonable following the accused’s arrest on the warrants and following his re-arrest on what included the weapon offence. The Crown takes the position any statements made by the accused in respect to the baton are not prejudicial as the statement is not being introduced as evidence. The Law Was Mr.

Stables Detained? [ 86 ] The onus is on the accused to establish on a balance of probabilities that he was deprived of his liberty of choice. ( R. v. Suberu , 2009 SCC 460 at para. 28 ) [ 87 ] Whether a person …’has been deprived of the right to choose simply to walk away’ from an interaction with police depends ‘on all the circumstances of the case.’ ( R. v. Grant, 2009 SCC 32 at para. 43 ). [ 88 ] A detention may be physical or psychological. One is not automatically detained, within the meaning of ss. 9 and 10 of the Charter , by being stopped as stated in R. v. Grant , para. 26 , approving R. v. Mann .

Significant physical or psychological restraint of an individual is required for there to be a s. 9 and 10 breach. [ 89 ] The test of whether or not one has been detained is objective, although one’s individual particular circumstances and perceptions at the time may be relevant in assessing the reasonableness of any perceived power imbalance between the individual and the police, and thus the reasonableness of any perception that he or she had no choice but to comply with the police directive….(para. 32 R. v.

Grant ) [ 90 ] At para. 38, it was held that: S. 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of an encounter that they have no obligation to speak to them and are entitled to legal counsel. ( R. v. Grant , para. 38 ) [ 91 ] The following is a

summary of the Grant factors on 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 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. (Underlining added). 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 must consider, inter alia, the following factors: a. The circumstances giving rise to the encounter as 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 a focused 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. Physical Detention? [ 92 ] On the factual evidence, I find that Mr. Stables was not physically detained until after it became known that there were warrants for his arrest.

The officers did not get out of the police car until after they were aware of the warrants. [ 93 ] Mr. Stables was not physically prevented from walking away. The police car was not blocking his departure and he physically was able to exit the laneway onto the street. [ 94 ] Prior to his physical detention, he was not told that he could not leave or that he was legally obliged to remain. As stated in R. v. Grant , police are not obliged to advise at the outset of an encounter that one is not obliged to speak to them. (para. 38). [ 95 ] The facts in R. v.

Poole , 2015 BCCA 464 are similar to those in this case .The central issue on the voir dire in R. v. Poole was whether Mr. Poole’s initial stop by police and prior to his arrest on a warrant following its discovery, constituted a detention contrary to s. 9. and a breach of his s. 10 Charter rights. [ 96 ] The trial judge’s finding that Mr. Poole was not detained was upheld. The police pulled their vehicle alongside Mr. Poole while he was crossing the street at 0300. They had no reason to suspect he had committed a crime nor was he under police investigation.

Through a rolled down window, they asked for his name and ID. After finding there was a warrant for him, he was arrested and searched. A loaded handgun was found. [ 97 ] Mr. Poole, like Mr. Stables, was not physically restrained or under a legal obligation to provide his name to the officers. It was held the officers were making general inquiries and not singling Mr. Poole out for a focused investigation. It was stated that the officers did not initially get out of their vehicles, impede Mr. Poole’s travel, and that the encounter between police and Mr. Poole was brief. Mr.

Poole was 45 years old, larger in stature than the officers, and had ‘considerable past experience with police’.(para. 62)

[98] On the evidence before me, I find most of the above applied to Mr. Stables. Psychological Detention? [99] On application of the Grant factors, I find that Mr. Stables was also not psychologically detained. [100] This case is distinguishable from R. v. Domingo, 2015 BCPC 317 , 2015 BCPC 0317, where a 19 year old male wastargeted by police, stopped, and asked to walk with police to their car and, photographed after he asked if he could leave. Judge Harrisaccepted the accused’s evidence over the officers. The accused testified he had been yelled at to stop and patted down when he said hehad no identification.

It was found there was no legal basis for this. [101] Judge Harris reviewed R. v. Poole noting one is not necessarily detained when briefly stopped for identification. In all thecircumstances before him, however, Mr. Domingo would not have felt free to leave or not comply with the officer’s commands. Henoted that the accused was not cross-examined on his evidence and that he was singled out for a drug investigation, patted down andwalked to the car indicating he was detained. The age of the person stopped is a Grant factor, as is the police language used, physicalcontact, and minority status. Mr.

Domingo was young and from a minority group. It was accepted the police yelled at him and hadphysical contact with him during the pat down. [102] I note the police actions both in Grant and Suberu were more extensive than in the case at bar. Mr. Grant was a young personfrom a minority group.

He was asked what he was doing and asked for his name and address by an officer on foot who had walked infront of him. [103] In Suberu, the accused was again approached on foot and told the officer wanted to talk to him before he left the scene in hisvehicle. [104] In neither Grant or Suberu was unlawful detention found. [105] The case at bar is also distinguishable from R. v. Hunlin, 2013 BCPC, where a s. 9 breach was found.

An Indigenous man, for nogiven reason, other than the police had time and decided to follow his car, was followed to his private residence where a police officergot out of his vehicle in a private driveway and asked Mr. Hunlin how his night was going. No breaches had been observed nor was thereany suspicion of a crime. The officer equated his conduct to part of community policing. The factors that lead to a finding Mr.

Hunlinwas psychologically detained included that the officer got out of the car and spoke to him, that he had been followed for no reason, thathe was stopped in a private driveway and that he was an Indigenous person. It was held a reasonable person in Mr. Hunlin’s situationwould feel he had no choice but to comply. [106] This case is much closer to the facts found in R. v. C.R.H., 2003 MBCA 38, cited in R. v. Hunlin, at paras. 25 and 30.

In that casetwo patrol police officers stopped their car and through the open car window asked several young men outside in the early morninghours, where they were headed and how things were going. The young men answered questions and provided personal identificationinformation. The officers did not suspect the accused or others of committing offences when they stopped to speak to them or asked themto state who they were.

It was accepted that patrol officers routinely stopped and spoke to people and no detention was found by theManitoba Court of Appeal. [107] In Poole, it was held that not every random stop of a pedestrian is a detention. (para. 56). Analysis [108] I accept the evidence of the police officers that their attention was first drawn to Mr. Stables in what initially appeared to be apotential domestic dispute. While Cst.

LaBrosse was satisfied upon entering the lane that there was no domestic incident ongoing, Iaccept as part of community policing and maintenance of general order, the officers wished to introduce themselves to him and find outwho he was. Neither had encountered him before. [109] Only Cst. LaBrosse and Mr. Stables spoke prior to the arrest of Mr. Stables. I find that the conversation was very brief, friendlyand casual. The officers were in the police vehicle. I accept they did not leave the vehicle until they were aware of the warrants. Theentire encounter prior to Mr. Stables’ arrest was brief; 1.5 - 2.5 minutes.

The short duration and non-confrontational conversation isrelevant to the analysis. [110] I reject Mr. Stables’ evidence that Cst. LaBrosse said they had time to wait, when Mr. Stables did not initially give his correctname. This was not put to Cst. LaBrosse or Cst. Chow in direct. It was not evidence given by Mr. Stables in his direct testimony. [111] Mr. Stables said in past encounters with police, he had given a false name to police and been arrested but ‘took the risk’ on thisoccasion. When asked why he then gave his real name, he said he did not think there were any warrants out for him.

On cross-examination he said he initially gave a false name because he had ‘things in his backpack and if arrested I would be searched’. [112] He said that in the past when he had been stopped by police they usually did no more than ask for a name.

He assumed policeasked for one’s names as they were ‘going to run it.’ He also said that it would be ‘evading and disrespectful’ to walk away and onecould be arrested for doing so. [113] He said it was his belief that if he had left without giving his name, he would have been arrested and fingerprinted and his identitydetermined. [114] He was never told he could not leave nor that he was free to go. It was his evidence that he observed Gina walk awayunobstructed on 2 occasions. [115] Mr. Stables came across as relatively sophisticated in his dealings with police. He was of average stature, middle aged and was

not from any identifiable minority group. He was proficient in the English language. [ 116 ] On application of the Grant factors and cases cited herein, I do not find that Mr. Stables was physically or psychologically detained. Rather he took a calculated risk in initially giving a false name. When he was asked if the false name was really his, he gave his real name as he thought there were no outstanding warrants. His actions were meant to avoid arrest and search given his evidence he had items in his backpack rather than because he was detained.

As he stated, in his experience police did not usually go further than asking for one’s name. [ 117 ] I find that Mr. Stables was not detained until after the outstanding warrants became known to the officers, he was arrested and within seconds told he was arrested on the outstanding warrants. This was when his s. 10 rights crystalized. I find the search incidental to arrest was lawful. [ 118 ] There was approximately a 2 minute gap between the arrest and Cst. Chow re-arresting Mr Stables for both the warrants and the PPT charge. He answered yes to questions asked under s. 10(

a) of the Charter and stated he wished to have counsel in regards to s. 10(

b) of the Charter . He had not initially been given his s. 10 Charter rights when arrested on the outstanding warrants for breach of probation although he was aware of the reason for the arrest. There is no evidence he made any statement between his initial arrest and when he was read and answered the s. 10 questions. I do not find that this gap constitutes a breach. I find it was a fluid situation and the s. 10 warning and rights recitation was made as soon as reasonable. [ 119 ] In

summary, Mr. Stables has not proven on a balance of probabilities that his s. 7 and s. 10 Charter rights were breached in regards to matters prior, during, or following his arrest on the s. 5(2) CDSA charge. Weapon Charge [ 120 ] Following Mr. Stables being read his s. 10 Charter rights, but prior to Mr. Stables’ arrest for carrying a concealed weapon, he was asked by Cst. Chow whether he was carrying the baton as a weapon. Cst. Chow also contacted a weapons expert. Cst.

Chow stated he did this as he was not an expert on if the baton was a prohibited weapon. [ 121 ] There was a further delay of at least 8 to 9 minutes before Cst. Chow arrested, Chartered and warned Mr. Stables for carrying a concealed weapon. This related to the collapsible baton found in the backpack. He again asserted he wanted counsel. [ 122 ] Mr. Stables was given s. 10 (

a) and (

b) Charter warning and rights following his arrest for PPT and warrants, but defence submits Mr. Stables was detained for having a weapon. Cst. Chow questioned him about a weapon. Cst. Chow said the questions were to determine the accused’s mens rea , i.e. did he intend to use the baton as weapon. The Crown is not seeking to use the statement given by Mr. Stables during this exchange and submits he is therefore not prejudiced. [ 123 ] Cst. Chow testified that he asked Mr. Stables about why he had the baton and called an expert to ascertain if he should charge Mr. Stables with a weapon offence.

While I do not attribute bad faith to Cst. Chow in questioning Mr. Stables and the delay in providing the warning, I find it constitutes a breach of Mr. Stable’s s. 10 Charter rights. Conclusion [ 124 ] In conclusion, I do not find that Mr. Stable’s Charter rights were breached up to and including his initial arrest. I further do not find the approximate 2 minute gap between his detention following discovery of the warrants and his s. 10 Charter rights being read constitutes a breach in the circumstances.

I do find his s. 10 Charter rights were breached in regards to the weapon offence. [ 125 ] I will hear submissions in regards to whether or not a s. 24 Charter remedy applies in regards to the weapons charge under s. 90(1) of the Criminal Code . _____________________________ The Honourable Judge L. Bakan Provincial Court of British Columbia