R. v. Dhillon, 2021 BCPC 375

Citation: R. v. Dhillon 2021 BCPC 375 Date: 20210125 File No: 256511-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEVINDER SINGH DHILLON RULING ON VOIR DIRE OF THE HONOURABLE JUDGE J.F. GALATI Counsel for the Crown: J. Madden Counsel for the Defendant: D. Karp Place of Hearing: Vancouver , B.C. Date of Judgment: January 25, 2021 [ 1 ] THE COURT : This is my ruling on the voir dire which was declared at the outset of this trial, in respect of the various Charter

rights breaches alleged by Mr. Dhillon. The notice of Charter application has been filed. Mr. Dhillon is charged with six separate counts of firearms offences all stemming from the police having found a loaded Glock handgun in a man-purse he was wearing slung across or below his chest on July 12, 2019. [ 2 ] Mr.

Dhillon alleges he was arbitrarily detained contrary to s. 9 of the Charter when the police performed a purported traffic stop of the vehicle he was driving when, in fact, he says the vehicle stop was in respect of a generalized suspicion that he was involved in some sort of criminal activity, most likely trafficking in illicit drugs. In the alternative, Mr.

Dhillon alleges that if he was, in fact, stopped for a legitimate Motor Vehicle Act purpose, his further detention after he produced his driver's licence and the insurance registration document for the vehicle that his detention became arbitrary in that the Motor Vehicle Act purpose had been satisfied. [ 3 ] Further, Mr. Dhillon alleges that the subsequent pat-down search of his torso and the man-purse he was wearing was conducted pursuant to his arbitrary detention and, accordingly, it was an unreasonable search contrary to s. 8 of the Charter . Mr.

Dhillon also alleges that he was denied his right to be informed of the reason for his detention contrary to s. 10(

a) of the Charter when he was initially approached by police and again when his detention continued after he produced the requested documents. Finally, Mr. Dhillon alleges that, after the handgun was found in his man-purse, he was denied his s. 10(

b) Charter right to contact a lawyer by cellphone at the scene of his arrest. [ 4 ] Admissions of fact were filed with respect to the identity of Mr. Dhillon as the person arrested, the timing of the events leading up to and subsequent to his arrest, and the fact that he was knowingly in possession of a loaded prohibited firearm.

It was agreed at the outset that any submissions with respect to s. 24(2) of the Charter would follow after this ruling. [ 5 ] It is common ground that police are not entitled to arbitrarily stop a vehicle under the guise of a routine traffic stop on nothing more than a hunch that the occupant may be committing a crime where the real police purpose is to search the occupant and/or the vehicle for evidence of criminality.

As I alluded to during submissions by counsel that, in my view, is the primary issue in this case, namely, whether the vehicle stop for a purported Motor Vehicle Act purpose was a ruse designed or intended to facilitate and justify the search of Mr. Dhillon. [ 6 ] The determination of that issue requires a careful scrutiny of the evidence of the two police officers who testified. They were the officers who effected the vehicle stop and interacted with Mr. Dhillon. They were the only witnesses on the voir dire . [ 7 ] Counsel provided numerous cases and many of which I am familiar with.

I have to some extent reviewed all of the cases that were provided, but find it only necessary to mention a few. [ 8 ] Now, the evidence. Constable Waller had been a police officer for approximately three years on July 12, 2019. That day, she was working with Constable Battle, who had only been a police officer for approximately seven months. Both were in uniform.

Constable Battle was driving a marked police car and Constable Waller was the passenger responsible for conducting queries on the police computer. [ 9 ] At approximately 7:30 p.m., they were on general patrol in the Downtown Eastside of Vancouver in the area of the 100 block of Keefer Street. They drove into an open parking lot wherein days prior they were aware stolen vehicles had been located.

Constable Waller testified that she queried the licence plates of the few vehicles in that lot to determine if any were stolen. [ 10 ] In the course of doing so, she observed a silver BMW with the engine running parked at what she considered an odd angle in the north laneway adjacent to the parking lot. She said she thought the vehicle looked out of place in what she knew to be a high crime area and she determined to query its licence plate.

Constable Battle drove out of the parking lot into the laneway and past the BMW. [ 11 ] Constable Waller said that as that occurred, she made eye contact with the driver and noted he was a South Asian male in his early 20s wearing black-rimmed glasses. She said that his facial expression as the police drove by was one of alarm. Constable Battle also testified in this regard. She said the 20 to 30-year-old South Asian male driver was wide-eyed and looked surprised. [ 12 ] The police car stopped further up the laneway. Constable Waller queried the licence plate of the BMW.

She learned that the registered owner was 68 years old and that there were multiple police files associated to the vehicle including a file regarding a "take auto without consent" and a more recent file regarding an assault with a weapon. Constable Waller decided she wanted to check the BMW, but she heard what she described as a peel-out and, on looking behind her, she saw the BMW driving down the laneway away from the police car.

She described seeing a cloud of dirt and dust being raised by the vehicle and said it was travelling at a very quick rate of speed which, based on her training and experience, she estimated at 10 to 15 kilometres per hour above the 20-kilometre-per-hour speed limit in laneways. [ 13 ] Constable Waller testified that this driving behaviour in combination with the startled expression Mr. Dhillon had exhibited caused her to believe he was attempting to avoid the police.

She said her intention at that point was to stop the vehicle to check the driver for a valid driver's licence as well as to confirm proper registration and insurance of the vehicle and also to ensure the driver had permission to have possession of the vehicle. Constable Waller also said that she intended to ticket the driver for speeding. [ 14 ] Constable Battle testified that Constable Waller had told her the registered owner of the BMW was born in the 1950s and, accordingly, Constable Battle concluded that Mr. Dhillon was not the registered owner.

She said it was her intention at this point to conduct a vehicle stop to ensure that the driver had a valid driver's licence and permission to use the vehicle and also to make sure the vehicle was properly insured. [ 15 ] She said that as she and Constable Waller communicated with respect to performing the vehicle stop, the BMW drove off down the lane in the opposite direction from that which the police car was facing at a speed she estimated to be in excess of 30 kilometres per hour based on her general driving experience. In the result, Constable Battle also came to believe that Mr.

Dhillon was trying to evade the police. [ 16 ] Rather than turn the police car around in the laneway, Constable Battle drove to Keefer Street and turned right onto Columbia

and, from Columbia, she saw the BMW turning right onto East Hastings Street. Constable Battle followed in pursuit of the vehicle and eventually pulled it over without incident in the 300 block of East Hastings Street. [ 17 ] Both police officers exited the police car. Constable Battle went to the driver-side window of the BMW and Constable Waller went to the passenger-side window. The rear windows on both sides of the vehicle had black mesh sunscreens which were up. Constable Battle said she identified herself and asked Mr.

Dhillon for his driver's licence and the vehicle insurance registration document, but she said she could not recall whether she told Mr. Dhillon why he had been stopped. In this regard, in subsequent re- examination, she said that her practice in this type of vehicle stop is to tell the driver she needs to verify the registered owner and then to request the driver's licence and registration. [ 18 ] In any event, returning to her evidence in chief, Constable Battle said that Mr. Dhillon appeared very nervous.

She described observing beads of sweat on his forehead and his hands shaking to the point of making it difficult for him to remove the insurance registration document from its plastic sleeve. [ 19 ] Constable Battle testified she wanted to check the rear seat area for safety reasons and to see if it was occupied, but that Mr. Dhillon refused her request to roll down the rear windows telling her she needed a warrant.

He did eventually comply and, although the sunscreens remained in place for some time, the police officers were able to look into the empty back seat area. [ 20 ] Constable Waller testified that although she could not hear the entire conversation between Constable Battle and Mr. Dhillon, she did hear Mr. Dhillon ask repeatedly why he was being stopped. She described Mr. Dhillon as being verbally confrontational and agitated. She also said that he was uncooperative with Constable Battle's request that he roll down the rear windows saying that the police needed a warrant.

Constable Waller also testified that she observed beads of sweat on Mr. Dhillon's forehead and that his hands were shaking. She also thought his lips were dry because he kept licking them. She saw that he was wearing a man-purse across his chest which he kept pushing to his right toward the centre console as he was conversing with Constable Battle. [ 21 ] It was unclear to me on the evidence precisely when, but Mr. Dhillon did produce his driver's licence and the vehicle registration while he was still seated in the BMW.

Constable Battle said she had the documents and had glanced at them briefly, but she wanted to maintain her focus on Mr. Dhillon whom she described as being one of the most nervous individuals she had encountered in over 200 vehicle stops she had been involved in. She said his behaviour made her feel anxious. [ 22 ] It was at this point in time that Constable Waller told Constable Battle to get Mr. Dhillon out of the vehicle. Constable Waller testified that in addition to Mr.

Dhillon's nervous and verbally confrontational behaviour, she noted that he kept looking toward the road and, because the vehicle was still running, she thought he might try to flee. She said she felt that they "had to get Mr. Dhillon out of the vehicle before something bad happened." She said it was not her general practice to do this, but that she had never in her career observed this type or level of nervous behaviour in a traffic stop which she described as "almost visceral fight or flight response." She did acknowledge in cross-examination that, at that point in time, she had a hunch Mr.

Dhillon was involved in something untoward, from which I assume she was referring to criminal activity. [ 23 ] Constable Battle testified that she directed Mr. Dhillon to open the door and get out of the vehicle. She said he questioned her authority in that regard and that, when he did so, she replied with "something to the effect of officer safety." Mr. Dhillon got out of the vehicle and Constable Battle asked him his date of birth and address to confirm the information on his driver's licence. She said that Mr.

Dhillon continued to exhibit nervous behaviour and challenge her authority, but he answered her questions. [ 24 ] At this point, Constable Battle went back to the police car to query Mr. Dhillon on the police computer leaving him on the sidewalk with Constable Waller. Constable Waller said that she knew by this point that Mr. Dhillon had said his father was the registered owner of the BMW, but she was not prepared to take his word for it. Presumably, she expected that Constable Battle would confirm Mr.

Dhillon's status from the queries she had gone to perform on the police computer. [ 25 ] Constable Waller said she then tried to determine why Mr. Dhillon was so nervous or if there was a reasonable explanation for his nervousness. She asked him why he was so nervous and whether he had ever been stopped by the police before, to which he replied that he had. She also asked him if he was bound by any court conditions, to which he replied that he was not. [ 26 ] She described Mr. Dhillon at this point as verbally compliant, but still agitated.

She said he continued to ask why he had been stopped even after she had told him that it was because he had been speeding in the laneway, that he did not match the description of the registered owner, and that she thought the BMW looked out of place in the laneway. She said that, while talking to him, Mr. Dhillon kept shifting side to side and kept touching or moving the man-purse slung across his chest. [ 27 ] Constable Waller said she was overwhelmed with safety concerns, that Mr. Dhillon might have a weapon. So she told Mr. Dhillon that she was going to do a pat-down search of him for safety.

She said that, as she started to pat down his pockets, Mr. Dhillon shifted his body in a manner that essentially shielded the man-purse from her. She referred to this as "blading his body." In addition, she said that, as he did this, Mr. Dhillon was yelling that she needed a warrant and that he wanted to call a lawyer. [ 28 ] Constable Waller testified that she felt she was unable to complete the pat-down search properly so she gestured for Constable Battle to assist her to handcuff Mr. Dhillon. She said she was increasingly fearful that there was something in the man-purse that could harm her.

Constable Battle said she had not yet had the time to complete her computer queries when Constable Waller indicated she needed assistance. Constable Battle described Mr. Dhillon at this point as pacing back and forth on the sidewalk and looking up and down the street which made her concerned that he might try to flee. [ 29 ] Between the two of them, the police officers handcuffed Mr. Dhillon behind his back.

Constable Waller testified that, once he was handcuffed, she was able to see a stack of bills and what she erroneously believed to be either a needle in a plastic or a crack pipe in an unzippered compartment of the man-purse. She said that given the location, she thought the money and the other item, which subsequently turned out to be a vape instrument, were suggestive of drug-trade involvement. So she told Mr. Dhillon at that point that he was detained for a drug investigation. She read him his Charter rights and the evidentiary caution at 7:44 p.m. Mr.

Dhillon indicated he understood and said that he wanted to contact a lawyer.

[ 30 ] Constable Waller said she then resumed the pat-down search of Mr. Dhillon, but she required the assistance of Constable Battle to pin one of Mr. Dhillon's arms because, even while handcuffed behind his back, he was able to reach his man-purse and move it away from her. Constable Waller said that she could see a bulge in the man-purse and that, on touching it, she felt a hard object she immediately believed to be a gun.

So she announced that to Constable Battle and the other officers that had by then arrived on the scene. [ 31 ] Constable Waller then unzipped the main compartment of the man-purse and saw the handgun. A strap of the man-purse was cut and the man-purse was removed from Mr. Dhillon who was then arrested for unlawful possession of a firearm and possession of a dangerous weapon. He was again read his Charter rights and the caution and he again indicated he wished to contact a lawyer.

This was at 7:47 p.m. [ 32 ] Even though they were only approximately one block away from the Vancouver Jail, a police transport wagon was called for at 8:11 p.m. Mr. Dhillon did not arrive at the jail until 8:37 p.m. and his phone call to a Legal Aid duty lawyer did not occur until 8:48 p.m., roughly one hour after he had been arrested. [ 33 ] Moving on to my analysis and conclusions. Although when they first observed him the police officers may have been and likely were suspicious that Mr.

Dhillon may have been involved in the drug trade or that he was in possession of a stolen vehicle, there is no good reason to disbelieve the police evidence as to why they initially decided to perform the vehicle stop. There were gaps in the evidence as to what was said and when things were said, but in the circumstances, that is to be expected.

There were no significant inconsistencies between the evidence of the two police officers and, viewed cumulatively, that evidence paints a fairly vivid picture of what was transpiring at the time. [ 34 ] Based on their respective observations and the information from the licence plate query, I accept that both officers individually intended to check Mr. Dhillon's status as a driver, the insurance status of the vehicle, and Mr. Dhillon's permission to have possession of it. Before that vehicle stop could be effected, Mr. Dhillon sped away at a speed both officers estimated to be over 30 kilometres per hour.

I accept the evidence of Constable Waller that, in addition to the initial purpose of the vehicle stop, she also intended at that point to ticket Mr. Dhillon for speeding, and I note that she eventually did do so at the jail. [ 35 ] Notwithstanding the rigorous cross-examination of both police officers in this regard, I do not find that either jointly or severally they contrived a plan to pull Mr. Dhillon over under the guise of a legitimate Motor Vehicle Act stop on nothing more than a hunch he might be involved in criminal activity.

I am satisfied the vehicle stop was initiated for the legitimate purposes of determining and enforcing compliance with the provisions of the Motor Vehicle Act . The vehicle stop and ensuing detention of Mr. Dhillon inside his vehicle was not for an improper purpose and there was no breach of s. 9 of the Charter . [ 36 ] The detention of Mr. Dhillon did not become arbitrary when it continued after he produced his driver's licence and the vehicle registration. As noted by the Ontario Court of Appeal in R. v.

Gonzales , 2017 ONCA 543 , the police are entitled to check those documents against the information in databases available to them. In the case at bar, the evidence establishes that Constable Battle had not yet completed the computer inquiries she was making when Constable Waller commenced the pat-down search of Mr. Dhillon. The fact that Mr. Dhillon was asked to step out of his vehicle does not, in my view, constitute a separate detention for a different purpose. Mr.

Dhillon, both in the vehicle and out of the vehicle, was detained for legitimate Motor Vehicle Act purposes. [ 37 ] Given that his detention was lawful, the remaining issue is whether the pat-down search was reasonably necessary in these circumstances which prevailed at the time. In R. v. Mann , 2004 SCC 52 , the Supreme Court of Canada held that police may conduct a pat-down search incident to a lawful detention if the officer believes on reasonable grounds that his or her own safety or the safety of others is at risk. [ 38 ] R. v. Thibodeau , 2007 BCCA 489 is a B.C.

Court of Appeal decision which is authority for the proposition that police officers involved in enforcing the Motor Vehicle Act may, in any event, have valid safety concerns which can justify a pat-down search. Thibodeau involved a safety search of a fanny pack which ultimately was held to be justified. In R. v. Sheck , 2015 BCCA 471 , our Court of Appeal again held that the scope of a safety search includes not only a pat down of the person, but also a search of fanny packs. [ 39 ] The test for a lawful safety search has recently been clarified in R. v.

Webber , 2019 BCCA 208 , another decision of our Court of Appeal, which bears some factual similarities to the case at bar. The Court of Appeal held that the test is whether the police officer has reasonable grounds to suspect that the search is necessary to ensure safety. The search in question in Webber was of the centre console of a vehicle. It was held to be justified. [ 40 ] As noted in R. v.

Patrick , 2017 BCCA 57 , by our Court of Appeal, the issue is not whether the person detained does something that causes a safety concern, but rather whether the officers' subjective perception of the risk to safety was reasonable in the circumstances. In the case at bar, Constable Waller clearly articulated the basis upon which she decided to perform a pat-down search of Mr. Dhillon, namely: (

a) his startled look when the police drove past him in a high crime area; (

b) the database information associating a BMW to an assault file and a "take auto without consent" file; (

c) the fact that Mr. Dhillon drove off rapidly in the opposite direction; (

d) his confrontational or agitated behaviour when he was pulled over and being dealt with; (

e) the physical signs of nervousness that Mr. Dhillon exhibited both inside and out of his vehicle, primarily the beads of sweat on his forehead, his shaking hands, and his darting eye movements; and (

f) Mr. Dhillon's body movements to adjust the position of the man-purse away from Constable Waller when she told him she was going to pat him down for safety.

[ 41 ] I accept that, in all of the circumstances, Constable Waller's perception that Mr. Dhillon may have been in possession of a weapon he could harm her with was a reasonable suspicion and, accordingly, she was justified in performing the pat-down search of Mr. Dhillon and his man-purse in order to ensure safety. There was no breach of s. 8 of the Charter when the pat-down search commenced or when it continued after Mr. Dhillon was detained and given his Charter rights for the drug investigation. The purpose of the search remained the same.

It was to ensure officer safety and not to search for evidence. [ 42 ] The fact that the safety search commenced when the detention was justified by Motor Vehicle Act concerns and subsequently continued when the nature of the detention was expanded by reason of suspected drug trafficking is, in my view, of no significance in the circumstances of this case. Constable Waller's focus was entirely on safety throughout the entire search until the handgun was found. [ 43 ] With respect to s. 10 of the Charter , I am satisfied that, at the very latest, Mr.

Dhillon was advised of the reasons he had been pulled over by Constable Waller after he had exited his vehicle at some point. As the detention was for legitimate Motor Vehicle Act purposes, there was no legal requirement for the officers to advise Mr. Dhillon of his right to retain and instruct counsel without delay, as noted in R. v. Woody , 2018 BCSC 2275 , a British Columbia Supreme Court case. That requirement only arose when Constable Waller detained Mr. Dhillon for suspected drug trafficking and, at that point, she fully complied with the informational aspect required by s. 10 of the Charter .

The safety search then continued and, in short order, the prohibited firearm was found, at which time Mr. Dhillon was arrested and, again, he was informed as required by s. 10 of the Charter . [ 44 ] The only remaining issue is whether the police complied with their constitutional obligation to facilitate Mr. Dhillon's access to counsel at the first reasonably available opportunity, as set out by the Supreme Court of Canada in R. v. Taylor , 2015 SCC 50 .

I accept that, in the context of a loaded handgun investigation, it is not reasonable to expect the police to be able to provide private and secure access to counsel at the roadside, particularly in the Downtown Eastside of Vancouver. [ 45 ] In all of the circumstances, the decision by the police to delay access to counsel until Mr. Dhillon was booked into the jail was reasonable. At first blush, it appears that Mr.

Dhillon was held at the scene of his arrest for what seems like a much longer period of time than what perhaps should have been necessary given the short one-block distance to the jail and the presence of at least four police officers. Rather than walk him over to the jail, which may or may not have been a reasonable plan, 10 minutes after the arrest, the police decided to call for transport. There was a further delay of 14 minutes until the police wagon arrived and, thereafter, it took another 26 minutes for Mr.

Dhillon to be brought to the jail which included the booking-in procedure and search. [ 46 ] With respect to the last period of time, it was admitted that the jail guards acted expeditiously to facilitate Mr. Dhillon's access to counsel, but there is a paucity of evidence as to why it was necessary to call the police wagon. Although the Crown bears the burden of demonstrating that the delay in providing access to counsel was reasonable, in making this application, Mr. Dhillon has relied only on the fact that he was not provided a cellphone at the scene.

I have found that decision was a reasonable one and I am not, in all of the circumstances, prepared to find that if there was any delay caused by calling for the police wagon that that delay was not reasonable, particularly in the absence of that having been canvassed in submissions. I do not find any breach of s. 10 of the Charter . [ 47 ] That is my ruling on the matters at issue in the voir dire . (RULING CONCLUDED)