R. v. Hoof Date:, 2011 BCPC 104

Citation: R. v. Hoof Date: 20110210 2011 BCPC 0104 File No: 4321-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMES ROY HOOF EXCERPTS FROM PROCEEDINGS RULING ON VOIR DIRE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. MEYERS Counsel for the Crown: H. Pineo Counsel for the Defendant: T. Fung Place of Hearing: Vancouver , B.C. Date of Hearing: February 10, 2011 Date of Judgment: February 10, 2011 [ 1 ] THE COURT: Mr. Hoof, you are charged with an offence, March 13th in Vancouver, possession of heroin in Vancouver.

What happened is the trial started after the plea of not guilty and your lawyer announced that he was going to be challenging the arrest and search by the police officer of you on March 13th, 2010. [ 2 ] So what your lawyer is asking or asked for is we hold what is called a voir dire which is like a trial within a trial to determine whether the officer, in dealing with you the way he did, breached your rights under the Charter to be free from an arbitrary arrest or search. [ 3 ] In other words, if there are unreasonable grounds for the officer to have done what he did, then the Court has the right to say, well, any evidence they get by breaching your rights should not be proudly presented in the Court as evidence against you.

So it is not a trial of your guilt or innocence in terms of whether you did have the heroin or you did not have the heroin. The question is how the police acquired that evidence against you. [ 4 ] So on the voir dire, we had two officers, testify. The first officer was, of course, the most important one. What he said was, that from a distance, he saw you with two other people, one in a wheelchair and the other person, a male who he did not know. You are all huddled close together and he witnessed what he thought to be a drug transaction of some kind, but that it did not involve you.

It involved the fellow in the wheelchair and the other individual who was unidentified. [ 5 ] Based on the fact of where this was taking place, in particular, that courtyard where he saw you on Carrall and Cordova, he knows from his experience that that is a high drug use area. Twenty-four hours, seven days a week, 365 days a year, drug transactions go on there.

By "drug transactions", he meant buying, selling, using, and it is a notorious area for police officers to know that, those at least who work in that particular area. [ 6 ] So he sees what he believes to be a hand-to-hand drug transaction not involving you. He then, with his partner, starts to walk

fairly quickly towards your area. The first thing that happens is the identified male walks off and they decide or at least one of theofficers, the second officer, Schisler, said they decided not to chase him down because that would leave one officer with two men sothey both decide to investigate the two of you who were remaining. [7] The first constable, I think his name was Herejk, he starts coming towards you and he gets to about five feet away from you. Heis moving at a brisk clip. He gets to be about five feet away from you.

He says he notices in your hand you have maybe an inch and ahalf of plastic. [8] His mind, because of the area, because of the fact that he knew you before, seeing you in the area as an addict -- as a drug user, Ishould say, he suspects having watched what just went down, watching where it went down, knowing that you are a user, he suspectsseeing that plastic, it is probably drugs. It is true, as Mr. Fung brought out, there is a grocery store there.

You could have bought anapple, you could have bought pet food, you could have bought anything, but he, in his mind, given the circumstances, believes that youhave drugs in your hand. [9] If he at that point wanted to search you and only for the purpose of checking for drugs, I would rule that he had no reasonablegrounds to believe that, because he did not see you doing anything wrong; you have something that is innocuous in your hand; it is just apiece of plastic; you did not run when you saw him; you did not try to hide anything. He could not at that point have searched you forthe purpose of looking for drugs.

He could not have opened your hand, as he did. He could not have even have told you to open yourhand because he would not have had reasonable grounds to believe you had any drugs on you. [10] So he says that his reason for yelling at you to open your hands was for the purpose of officer safety. He says that he had theright to detain you for investigation and do a search to make sure that you had no weapons. The law is that an officer can detainsomebody for investigation.

They can search somebody to protect themselves from the prospect of being hurt. [11] He said the reasons that he was searching you were primarily for officer safety. It certainly was in his mind, as well, that youmight have drugs, but he said he was searching you for officer safety. Does he have reason to do that? [12] Well, he has reason, not by virtue of anything you did but rather from his experience in the area, lots of drug users will carryneedles, sharp pipes, sometimes razor blades for cutting up drugs, and also regular knives.

You are in that area, he knows you to be auser, and your fists are clenched, and he says that he has a concern for his safety. [13] Your counsel points out that notwithstanding his concern for his safety, he does not when he is five feet from you, and sees youwith a clenched fist, say, "Stop in your tracks," or, "Drop your hand," he does not say that.

He continues to move right towards youwithout stopping. [14] The first thing that comes to my mind, although it seems to me quite reasonable for him to have stopped five feet away from youand say, "Drop what's in your hand," or "Open your hands," and then give you a second or two to do it, and if you did not, then he couldcome in and pry it out of you the way he did.

There seems, though, in these circumstances when the officer does not even stop, yet he issaying, "I'm concerned for my safety," then the question comes to my mind, well, why would he not stop and say, while you are five feetaway where you cannot do any harm, "Drop it," and if he did not, then move in on you? [15] He did not do that. He went directly at you while saying, "Open your hands," and "Drop what's in there." Now, your counselsays, well, maybe you did not hear that. Well, I do not know whether you did or did not, but the interesting

part is his co-officer,Schisler, did not hear it. So I say, well, if she did not hear it and she is standing right beside him, well, maybe you did not hear it either. [16] He did not give you, as counsel suggested, two seconds to respond and drop something. In that two seconds, as he movedquickly towards you, you did not show that you were going to attack him, you did not try to run, you didn't do anything aggressive. Hismind was already made up.

I find that when he came within five feet, he saw what he did in your fist, he was going to get it from youeither because you were going to open your hand or he was going to pull it open, and the fact that he said it was for officer safety causesme some concern simply because his movement was direct. [17] He did not stop and if he were genuinely concerned for his safety, he would have stopped because who wants to get within a footof somebody who is holding a razor blade or a knife. He did not do that.

So, in my view, what he did breached your right not besearched without reasonable grounds. [18] The Crown and defence were good enough to give me a number of cases which I have read and those cases, in particular, were: a decision of my sister Judge Baird Ellan, R. v. Duong in Provincial Court in Vancouver, December 5th, 2007, very, very similar to yourcase and also a decision of Dedman v. The Queen, (SCC), [1985] 2 S.C.R. 2; R. v. Waterfield, [1963] 3 All E.R. 659.

Inthe Dedman and Waterfield cases, what they talk about is the fact that the police have certain rights and the public have certain rights. [19] The police have enormous powers in order to preserve the peace, prevent crime, prevent people from getting hurt, and toinvestigate crime, as well. It is always a delicate balance between the rights that a police officer has and the rights any citizen has, to befree from an intrusion by the state unless there are reasonable grounds to do that.

Intrusion by the state includes being searched andincludes being detained, as well. [20] The balancing is always very difficult because one does not want to impede the police in doing lawful investigations and lawfulsearches. On the other hand, the rights of the police are not completely without any sort of fence around them, as it were.

Similarly,people on the street have tremendous rights, too, but they are not totally, in a free, democratic, and safe society, allowed to do whateverthey want. [21] Certain interferences are required and the law basically says, as did Chief Justice Dickson in the Dedman case: It has always been a fundamental tenet of the rule of law that the police, in carrying out their general duties as law enforcement officershave limited powers and are only entitled to interfere with the liberty or property of the citizen to the extent authorized by law. It is

necessary to distinguish the duties of police officers from the power, or [their] lawful authorit[ies], they possess to execute those duties. The fact that a police officer has a general duty to prevent crime and protect life and property does not mean that he or she can use any ... means for achieving [those goals]. [ 22 ] The Chief Judge went on to say that it is a matter of balance for the court. Our case, the Crown argued, was strongly similar to the Duong case. I agree it is. There are significant differences, though, between that Duong case and your case.

I do agree with Judge Baird Ellan that the moment the officer said to, "Open your hands," that constituted a search. [ 23 ] The fact that the officers thought that they were detaining you as opposed to arresting you. In practical matters, you could not have gone anywhere and you knew it and it went beyond mere detention. It was an arrest, not in the sense that they formally cuffed you at that time, but in the sense that, "You are not going anywhere." [ 24 ] The officer in the Duong case had a lot more to go on than the officer did in your case.

In that case, the officer saw a group of people who were in a similar area to yours, a high drug usage area, but those particular individuals were acting not strangely, but erratically.

They were "tweaking", as the officer described. [ 25 ] He knew from past dealings with the accused Duong that he had previously been involved in weapons offences and he feared legitimately that because the accused was acting stoned, acting suspicious and he looked like he was trying to conceal something, the officer said, "I thought it was potentially a weapon," so he told him to drop his hands or open his hands for safety purposes. [ 26 ] That makes a lot of sense in that case.

The officer in the Duong case same as the officer in your case did, that is, that they know that drug addicts or drug users will often have sharp objects in their hands for either cutting up heroin or coke, but also to be able to use the object as a defence or offence against other people who are coming to interfere with them, be they police officers or other drug users. However, in your case, the officer had seen you around many times. [ 27 ] The officer said that, "You know, I'm doing the beat," they get to know who is around, who is who, and the officer had dealings with you in the past.

He knew that you were an addict or a user, I am not sure which -- I cannot remember which it was. I suppose it depends how much you use before you become an addict, but he knew that you were a drug user.

He had dealt with you before. [ 28 ] So it certainly was not unreasonable for him to think you had drugs on you, but I am a little concerned that because of the general view that many drug users or addicts have paraphernalia in their hands that they are prepared to use, or a weapon that they are prepared to use, that he should use that general knowledge, to specifically give him cause to fear for you, in the circumstances. He did not say you were on drugs and being erratic and, therefore, "who knows what in the world you would do". [ 29 ] He says, "I knew him from before. He had always been peaceful.

He's never caused me any trouble. I have no reason to believe that he had weapons on him." Yet what he used -- and I do not intend to say what in the heat of a moment, a police officer should or should not do; that would be something very dangerous to do on a regular basis, but I do say, given the specific knowledge he had of you and given that he said that, "The reason I told him to open his hands was because I feared largely that he had a weapon potentially in there," was not factually based. [ 30 ] It was not based on his experiences with you. It was based on a general perception of the drug community.

If he had never seen you before and never knew you before, then I agree, he can say, "Well, this is the area where they use drugs, he's an addict, a user, I've never seen him before, he has his fist clenched, who knows what he's got in there and who knows what he is capable of using?" But, he did know you and that makes a big difference, in my mind, as far as objectively, whether he really had reasonable grounds to fear for his safety in the moment. [ 31 ] I am also alive to the issue that it well might have been a consequence of you not hearing the command as opposed to deliberately disobeying him.

The search starts when he says, "Open your hands" and you do not, but the manner of carrying out the search and prying your hand open, although it takes place during the search, certainly is reflective of the manner of the search. Because his partner did not hear the command, I have some reasonable doubt that the officer's recollection that he hollered that at you may, and I have some doubt, may not have happened. [ 32 ] Consequently, the manner of carrying out the search in the circumstances, had you not heard the command, was an unreasonable way to carry out the search.

It is the combination of those two things that lead me to the conclusion that there was a breach of your Charter right to be free from any detention, arrest, and search in the particular facts that were in front of the constable when this happened. [ 33 ] So the question then is: your rights are breached, what do I do with that? Well, there are a couple of things that can happen.

One is I can say that the breach is serious enough that no evidence can come in as a result of it or I can say that the officer did not deliberately breach your rights and that the breach of the rights was of a minor nature, that is, it was not very intrusive in that he told you to open your hands and he pried them open when you did not.

That is not like doing a full search or a full body search or something very invasive. [ 34 ] When I decide what to do in the circumstance, I have to be aware -- and your counsel, although I did not agree with the way he put it, I have to be aware of the fact that I as a Judge cannot differentiate between two types of people: if you are a user or an addict, you are in the Vancouver east end and you are in a park that everybody uses, you have the same rights as anybody else who is walking down the street in West Vancouver while wearing a business suit.

That is not to say that if the same circumstances existed for them, yes, the police can arrest, they can search, and they can do a weapons safety search. [ 35 ] They can do all the same things regardless of who you are or where you are, but in this particular case, I am aware of the fact that you live in the east end.

You are subject to all of the vagaries of life in trying to get drugs for yourself, whatever fears there are in dealing with people, going from day to day looking for drugs, fear of the police because they arrest you and then you get put in a jail and you are forced to withdraw cold turkey for one day, two days, six days, however long you are held in custody. The consequences to you of an unlawful search and seizure are just as important as for somebody in a business suit who is searched downtown while all their

friends watch. [ 36 ] I am not prepared to make any distinction between your rights and anybody else's rights and, in the same circumstances where a police officer did not have justification or reasonable grounds to believe for his own safety he should not have told you to open your hands and then pry them open. I find the intrusion on you in this circumstance, where you were not doing anything, and I am not saying you did not possess drugs, of course you did, but you were not doing anything that would lead him to be able to do a search of you or pry your hands open if you did not open them.

That was a serious, in my view, breach of your rights. The consequence is that the evidence that was obtained as a result of that breach, in my view, ought not to come into evidence. [ 37 ] This case should not be held as any form of precedent to say a police officer is not in his lawful rights to ask somebody who he suspects might have a weapon in his hand to demand the person open his hand and if the person does not open his hand, pry it open.

This case is decided upon the peculiar facts here where, in my view, the officer did not have the requisite reasonable grounds to make that demand of you, because he knew you before and there was nothing in your behaviour or background at all, that indicated any concern that he should have for his safety in the circumstances. [ 38 ] All right. So that is the end of the case here. You are free to go, I assume. There is nothing else, right? All right. [ 39 ] MS. PINEO: Your Honour, the Crown is calling no further evidence. [ 40 ] THE COURT: All right, thank you for an interesting argument. [ 41 ] MR.

FUNG: Thank you. [ 42 ] THE COURT: I guess you can avoid a lot of problems if you can get off the drugs. I know that that is a miserably hard thing to do, but life will be better off drugs than on them, in all kinds of ways, I am sure. Good luck. [RULING ON VOIR DIRE AND REASONS FOR JUDGMENT CONCLUDED]