R. v. Walkley Date:, 2014 BCPC 418

Citation: R. v. Walkley Date: 20140730 2014 BCPC 418 File No: 30751-1 Registry: Cranbrook IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JACOB RICHARD WALKLEY RULING ON VOIR DIRE OF THE HONOURABLE JUDGE HEWSON Counsel for the Crown: R.B. Smyth Counsel for the Defendant: P.J. Dearden Place of Hearing: Cranbrook , B.C. Date of Hearing: July 30, 2014 Date of Judgment: July 30, 2014

[ 1 ] THE COURT: This is a ruling on a voir dire. [ 2 ] Jacob Richard Walkley is before the court on Information 30751. He is charged with unlawfully being in possession of cannabis resin in an amount greater than one gram and with unlawfully being in possession of marihuana in an amount not greater than 30 grams. Those offences are alleged to have occurred on the 7th of September, 2013. [ 3 ] Yesterday morning Mr. Walkley appeared with counsel and entered pleas of not guilty to both counts. [ 4 ] He makes an application under s. 24(2) of the Charter . Mr.

Walkley alleges breaches of ss. 7, 8, 9, and 10 of the Charter . It is clear from the evidence and from the submissions of counsel that s. 9, the right not to be arbitrarily detained or imprisoned, is the focus of the application. [ 5 ] There is some background to the application before the court. Mr. Walkley is a lifelong resident of Cranbrook. Constable Nielsen is an experienced police officer performing general duties here in Cranbrook. He has seven years' experience, the last two and a half of which have been in this city. [ 6 ] Mr. Walkley came to the attention of Constable Nielsen in 2012.

Constable Nielsen received information from a number of sources that Mr. Walkley was dealing drugs and was involved in other criminal activities. Since 2012 the two men have become well known to each other. Mr. Walkley routinely swears at Constable Nielsen in public and makes obscene gestures, including gestures with his middle finger. Mr. Walkley has been charged with assaulting Constable Nielsen. [ 7 ] At one point over the last two and a half years a number of t-shirts were produced in Cranbrook. On the front of the t-shirt there was a Photoshop picture of Constable Nielsen.

I have not seen these t-shirts, but they have been described as nasty and defamatory. Constable Nielsen thought that Mr. Walkley was involved with the group that made those t-shirts. [ 8 ] There have been a number of traffic stops and foot stops over the past two and a half years. These are incidents where Constable Nielsen is stopping Mr. Walkley. They total between 10 and 20 incidents. Some of these incidents have taken place when Mr. Walkley has been on foot and some have taken place while he has been driving a motor vehicle. There have been no traffic violation tickets ever issued by Constable Nielsen to Mr.

Walkley. [ 9 ] Constable Nielsen testified that his reason for stopping Mr. Walkley was because of Mr. Walkley's suspected criminal associations and because of the fact that Walkley had made himself known to Constable Nielsen. On one occasion when Mr. Walkley was a passenger in a vehicle driven by his girlfriend, Constable Nielsen stopped the vehicle at the Royal Bank in Cranbrook after following the vehicle with his lights out so that the police vehicle could not be seen. [ 10 ] On September the 7th, 2013 at around 2 o'clock in the morning, Mr. Walkley was leaving the McDonald's restaurant in Cranbrook.

He was driving a car with two passengers and Walkley's dog in it. One of the passengers was a Mr. Butts [phonetic]. Mr. Walkley and Mr. Butts both testified on the voir dire that they passed Constable Nielsen going in opposite directions. Walkley and Butts both testified that Walkley and Constable Nielsen made eye contact and that Constable Nielsen immediately did a U-turn and began to follow the car that Walkley was driving. They testified that Constable Nielsen followed them for about eight blocks. [ 11 ] Constable Nielsen also testified. He did not remember making a U-turn, but he did not deny it.

He did not remember how he came to be following Walkley's car on the morning of September 7, 2013. Constable Nielsen testified that his attention was first drawn to Walkley's car by the motion of the passengers turning to look at him out of the back window when he pulled up behind their vehicle at a light. Constable Nielsen said that at 2 o'clock in the morning he decided to stop this vehicle to check for the sobriety of the driver, driver's licences, and the mechanical fitness of the vehicle.

Constable Nielsen testified that he did not realize it was Walkley driving until he approached the vehicle on foot and was able to see Mr. Walkley through the driver's door window. When Mr. Walkley provided his identification to Constable Nielsen, Constable Nielsen provided the identification numbers in Mr. Walkley's name to police dispatch and he was told that there was an outstanding warrant for Mr. Walkley's arrest. Walkley was arrested, chartered and warned. [ 12 ] In the course of the search incident to the arrest, Constable Nielsen seized cannabis resin that was found in a container in Mr. Walkley's pocket.

The resin weighed .78 of a gram. Mr. Walkley was re-arrested, re-chartered and warned, and there was a search of his vehicle that led to the seizure of just over nine grams of marihuana and another 29 grams of cannabis resin. [ 13 ] The issue on a voir dire is whether or not the traffic stop on the morning of the 7th of September, 2014 [sic] was an arbitrary detention. There is a second subordinate issue about whether or not the subsequent searches of Mr. Walkley and Mr.

Walkley's vehicle were breaches of the right to be free from unreasonable search and seizure. [ 14 ] I have had the benefit of being provided with a number of authorities and being provided with the submissions of counsel with respect to the law in this area. [ 15 ] In

summary, the law is that random stopping of a motorist as authorized by the Motor Vehicle Act violates s. 9 of the Charter because the officer assumes control over the movement of the motorist by a demand or a direction. That violation is such even when the detention involves only traffic offences rather than violations of the Criminal Code . The detention is arbitrary since the decision as to whether the stop should be made lies in the absolute discretion of the police officer.

The violation can, however, be justified as a reasonable limit aimed at meeting the pressing and substantial concern for safety on the highways. The stop must though be for legal reasons to check the driver's licence and insurance, the sobriety of the driver, and the mechanical fitness of the vehicle. Once stopped, the only questions which may justifiably be asked are those related to driving offences.

Any further more intrusive procedures can only be undertaken based on reasonable and probable grounds. [ 16 ] The law is clear as well that random stops must not be turned into a means of conducting an unfounded general inquisition or an unreasonable search. As the British Columbia Court of Appeal pointed out in a decision called R. v. Khaddoura , 2009 BCCA 113 , police

officers may stop drivers for more than one reason. However, the police cannot validate an unlawful stop by pursuing highway safety issues once the motorist is detained. [ 17 ] The issue on this voir dire is whether highway safety issues were really the reason for the stop and that turns on a determination I think of whether or not Constable Nielsen knew that Mr. Walkley was the driver of the vehicle when he did the U-turn and then followed the vehicle for eight blocks before stopping it. I find that he did know that Mr. Walkley was the driver.

I make that finding for the following reasons: First, the two men were well known to each other; second, the first sighting of the Walkley vehicle by Constable Nielsen was at a well-lit location on a strip here in Cranbrook; third, Mr. Walkley and Mr. Butts both testified that Mr. Walkley and Constable Nielsen made eye contact. I find that Mr. Walkley was not honest about all of his evidence, but that that piece of evidence can be believed; fourth, Constable Nielsen's U-turn is best explained by Constable Nielsen having recognized Walkley and wanting to follow him as he had in the past.

That conduct was consistent with Nielsen's actions on previous occasions when he had seen Mr. Walkley driving and had stopped him. The reason for the stop was not to check sobriety, licensing or mechanical fitness, or at least not primarily for those reasons.

The reason was the same reason that Constable Nielsen had stopped the accused in the past because of suspicions relating to criminal associations and because Walkley had brought himself to the attention of the police. [ 18 ] I find that the traffic stop at 2:00 a.m. on the 7th of September, 2013, was an arbitrary detention and a violation of s. 9 of the Charter . [ 19 ] I find that the warrantless searches resulting in a seizure of cannabis resin and of marihuana were not reasonable and were violations of s. 8 of the Charter . [ 20 ] My understanding from the submission of counsel yesterday was that in the event that I found that those breaches had occurred the Crown was not seeking to have the evidence admitted in spite of the violations. [ 21 ] MS.

SMYTH: That's correct. [ 22 ] THE COURT: I think that that is a -- given the case law I think that is a reasonable position for the Crown to have taken. [ 23 ] Accordingly, I find that the cannabis resin and the marihuana that was seized from Mr. Walkley is not admissible in this trial. [ 24 ] MS. SMYTH: So the Crown has no further evidence to call on the trial proper. [ 25 ] MR. DEARDEN: No further evidence. [ 26 ] THE COURT: And you are making a no evidence motion? [ 27 ] MR. DEARDEN: Absolutely. [ 28 ] THE COURT: The no evidence motion will be granted. [ 29 ] MR.

DEARDEN: Thank you, Your Honour. (REASONS CONCLUDED)