R. v. Hunlin Date:, 2013 BCPC 427

Citation: R. v. Hunlin Date: 20130619 2013 BCPC 0427 File No: 31648-1 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MITCHELL JARET HUNLIN RULING RE: 24(2) of CHARTER OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Crown: W. Mathers Counsel for the Defendant: A. Kaiser Place of Hearing: Williams Lake , B.C. Date of Hearing: February 25, 2013 and May 9, 2013 Date of Judgment: June 19, 2013 [ 1 ] This is my Ruling under s. 24(2) of the Charter of Rights and Freedoms concerning certain pieces of evidence obtained during

Cst. Penton’s investigation of Mr. Hunlin for obstruction by giving a false name and for driving while prohibited, contrary to s. 129 (

a) of the Criminal Code and s. 102(

a) of the Motor Vehicle Act , respectively. In an earlier ruling filed on March 6 th , 2013, I found that the police actions on the evening in question did violate Mr. Hunlin’s s. 9 Charter right to be free of arbitrary detention. [ 2 ] The evidence which the defendant seeks to have excluded falls into two main categories: 1. All of Mr. Hunlin’s words including providing a false name and later, confirming his true identity; and 2. The photograph taken of Mr.

Hunlin at the scene. [ 3 ] I have decided that both categories of evidence must be excluded because the defendant has persuaded me, on a balance of probabilities, that if I were to admit the evidence on Mr. Hunlin’s trial, it would bring the administration of justice into disrepute. I will explain why I have reached this conclusion using, as an outline, the three factors set out in R. v. Grant, 2009 SCC 32 at paragraphs 67 – 86 . (

a) Seriousness of Charter -Infringing State Conduct [ 4 ] I remind myself of the “state conduct” that is in issue here. [ 5 ] Cst. Penton followed Mr. Hunlin’s vehicle for a distance of about 2 blocks and right into a private driveway even though he had neither seen nor heard anything that would suggest that the vehicle or its occupants were violating any law. Once in the driveway, he and his brother officer got out of the police car. Cst. Turko went towards the passenger side of Mr. Hunlin’s vehicle and Cst. Penton walked up to Mr.

Hunlin, who had just got out of the vehicle and was walking towards the townhouse. He engaged Mr. Hunlin in conversation. I found that the detention of Mr. Hunlin crystallized at the point Cst. Penton walked over to Mr. Hunlin and uttered his initial, somewhat innocuous inquiry “How’s your night goin’?” I found that Cst. Penton’s actions went beyond community policing and crossed the line into detention. I also found the detention was arbitrary because Cst.

Penton admitted he was not conducting a random traffic stop as permitted under motor vehicle or impaired driving law, nor did he have any other lawful purpose for stopping Mr. Hunlin as he went about his evening. [ 6 ] In my assessment Cst. Penton’s actions constitute a mild to moderately serious infringement of the Charter protected right to move about the community freely, without detention by police officers, (unless there is a lawful basis for such detention). [ 7 ] I accept that Cst. Penton did not intend to detain Mr. Hunlin and it is true that Cst.

Penton described himself as a friendly person who “always” talks to people he encounters while out on patrol. I found that his manner was, indeed, friendly and outgoing. However, I also found that his manner was assertive. For example, Cst. Penton said that if Mr. Hunlin had refused to respond to his conversational overtures he would not have restrained Mr. Hunlin but he would have continued to walk right along beside Hunlin, talking at him, attempting to elicit a response.

He spoke about another situation where he had walked along beside a man talking at him for quite some period of time, despite the fact that the man clearly did not want to engage in conversation. Cst. Penton seemed to believe conduct of this sort fell within the boundaries of acceptable community policing. [ 8 ] It seems to me that, at a minimum, Cst. Penton is failing to take into account factors like cultural background and minority status or even simple lack of assertiveness due to lack of good language skills, education and experience in the world.

Not everyone has the same bluff, outgoing personality that he does. Many Canadian citizens who are perfectly innocent of any wrongdoing whatsoever would simply be overwhelmed by such forthright behavior on the part of another human being, particularly one cloaked in a police uniform and with all the state sanctioned power that lies behind that uniform. Although they might not want to engage in conversation with the officer they would feel obliged to do so because they would feel incapable of asserting themselves in the face of such a barrage and saying “I don’t wish to speak with you.

I don’t have to speak with you. Please leave me alone.” [ 9 ] This case raises difficult issues. I am sure that all reasonable people would say that it is a good thing when police officers interact with members of the public in an open, friendly way. I agree with Cst. Penton that this is infinitely preferable to a model of policing that sees police officers sealed up in their police cars, discouraged from conversing with citizens other than to tell them they are under arrest. I do not want to discourage Cst.

Penton or other officers from engaging in communication with citizens in an open and casual way as they go about their duties. However, such community outreach must always be exercised with reasonable sensitivity to (

a) the line between community policing and actual detention, and (

b) the characteristics of the individual being approached. “Is this person someone of minority status? Is this someone who is likely to be able to assert themselves in my presence?” should, in my view, be part of an officer’s assessment of how assertive he or she can afford to be. [ 10 ] In my view the location, time of day and the manner of interaction in the case at bar crossed well over the line into detention. As well, Cst. Penton’s subjective belief that he was not detaining Mr. Hunlin demonstrates some lack of sensitivity to things like minority status and assertiveness.

For these reasons I find that the seriousness of the Charter -infringing state conduct in the case at bar falls in the minor to moderate range. (

b) Impact on the Charter-protected Interests of the Accused [ 11 ] This calls for “an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed”: Grant , at paragraph 76 . [ 12 ] Mr. Hunlin, like any other citizen, has the right to move about this country freely, without intervention by the state, unless there is lawful basis for his detention. It is this interest that was undermined by the police action in the case at bar because I have found that Mr.

Hunlin was stopped as he went about his evening, and detained, and that there was no lawful basis for that detention. [ 13 ] As it turned out, Mr. Hunlin was, allegedly, committing a criminal offence that evening by driving while prohibited. It may be easier to appreciate the impact on the Charter -protected interests of Mr. Hunlin by imagining if this incident had happened to a citizen who was totally innocent of any crime. No charge would have resulted and the matter would never have been debated in a court room.

However, the violation of that person’s right to move freely about this country without intervention by the state would still have occurred. Many would take such an intervention in stride, but many others would find the experience of having a marked police car follow them into a private driveway and a uniformed officer get out and come over to speak with them – when there was no basis in law for doing so – intrusive and even somewhat intimidating. [ 14 ] On the other hand, Cst. Penton’s manner was friendly and he used no force on Mr. Hunlin other than placing handcuffs on him briefly at the time of his arrest.

The detention and arrest were of brief duration. [ 15 ] In my view the impact of this incident on Mr. Hunlin’s Charter -protected rights was in the mild to moderate range. (

c) Society’s Interest in an Adjudication on the Merits [This] third line of inquiry, relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.

This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law.” The court should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence. ( Grant , at paragraph 79 ) [ 16 ] In this case the evidence that is in issue appears to be reliable. [ 17 ] I am told by Crown and Defence counsel that the impact of failing to admit the evidence may not be fatal to the Crown’s case, at least with respect to the charge of driving while prohibited, as they may have another route by which to prove the identity of the person driving the vehicle that night. [ 18 ] The case is, in my view, not particularly important.

No one was hurt. No property was damaged. [ 19 ] On the other hand, if the Crown’s theory of the case is correct then Mr. Hunlin was driving a motor vehicle in deliberate defiance of the law. [ 20 ] In my view this third line of inquiry is neutral in result. There is certainly some societal interest in seeing this case adjudicated on its merits, taking into account all of the evidence, including that which was collected following the violation of Mr. Hunlin’s Charter rights.

However, the case is not a particularly important one and it may be possible for the Crown to prove its case without the impugned evidence. (

d) Summary – would admission of the evidence bring the administration of justice into disrepute? [ 21 ] I have concluded that admission of the evidence would bring the administration of justice into disrepute. I would describe this case as ‘small but significant’. Cst. Penton’s actions were non-violent but they still crossed the line into a violation of the citizen, Mr. Hunlin’s, rights in a way that is significant. Despite this, I might still have admitted the evidence in a case where the societal interest was higher.

But in this case I have concluded that the societal interest is quite low and therefore the scales tip in favour of exclusion. ___________________________ E. L. Bayliff Provincial Court Judge