R. v. Khan Date:, 2010 BCPC 85

Citation: R. v. Khan Date: 20100423 2010 BCPC 0085 File No: 53231-3-B Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TRISTAN ALI KHAN EXCERPTS FROM PROCEEDINGS RULING ON APPLICATION OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: S. McCallum Counsel for the Defendant: M. Smith Place of Hearing: North Vancouver, B.C. Date of Judgment: April 23, 2010 [ 1 ] THE COURT: (Orally) The accused, Tristan Ali Khan, is charged on Information 53231-B-3 with the offence of breach of probation, an order made by the Honourable Judge Rodgers on January 14, 2010.

He is alleged to have without reasonable excuse been in possession of spray paint or related paint accessories without written permission of his probation officer. The offence is alleged to have occurred on February 1st, 2010, about two weeks after the order was made. Mr. Khan applies to exclude evidence allegedly possessed by him based on an unreasonable search, arbitrary detention, and a breach of his right to counsel. Facts [ 2 ] The encounter between Mr. Khan and Corporal De Vries of the RCMP in North Van occurred sometime after 3:00 a.m. on February 1st.

The officer was on general patrol in the area of 23rd Street and Mahon Avenue in North Vancouver. Although he was assigned to a supervisory position in the office that night, he apparently had decided to patrol the area because of a proliferation of thefts from automobiles in that area. [ 3 ] Corporal De Vries provided some background information known to him before he stopped the defendant. He was aware of overnight break-ins in the area and some of the locations where these had occurred near to where the events unfolded.

He said some of the North Van officers had loosely organized a project by going out in plainclothes and frequenting the locations where theft had been occurring to see if there were individuals walking around on the streets. De Vries was not part of that project, being the patrol supervisor. He remained in uniform. [ 4 ] Some time before he went on this patrol, he said he heard over the radio that officers had observed a group of four individuals, one of whom had tried a door handle of a parked car. They had tried to perform a check of these individuals, but they ran away.

Hearing that, Corporal De Vries decided to leave the office, in his police car, and do some patrols himself in the area. [ 5 ] He headed for the general area of the occurrence, the last one that had been reported. As he did, he heard another dispatch, he said, that a patrol had seen more people in the area who had again run away when approached by the police. Shortly after that, Corporal

De Vries was on 22nd Street himself where he saw two individuals. He pulled up to them in his police vehicle and one ran away through a yard and over a fence into a back yard. The other stopped and Corporal De Vries spoke with him and sent him on his way after taking his name. [ 6 ] Shortly after that, Corporal De Vries encountered the defendant walking in the vicinity of Mahon and 22nd. He noticed that his pants were wet and he had some mud stains on his coat. Corporal De Vries felt he did not really belong in the area, which was primarily residential. This was about 3:30 in the morning.

The officer decided he wanted to identify the defendant so he pulled his vehicle alongside him and stopped. The defendant did not look at the officer or his vehicle. [ 7 ] The officer got out, identified himself as a police officer, and said, “Can you stop for a minute,” or words to that effect. The defendant did not stop or slow. He just kept walking. Corporal De Vries called out again using a firmer and louder voice telling the defendant to stop. He did so, that is, Mr.

Khan, the defendant, stopped and turned to face the officer. [ 8 ] As to the officer’s motivation in stopping the defendant at that point, Corporal De Vries said that he kept an open perspective. He thought it possible that Mr. Khan might be involved in thefts from vehicles based on the time of night, the way he was dressed, and that he did not appear to fit into the neighbourhood.

His sense that the defendant did not fit into the neighbourhood was derived from the fact that there were generally few people walking in that area at that time of night, which I note is somewhat inconsistent with the observations that were made by the officers previously that evening of groups of people roaming the streets. [ 9 ] In any event, he also added his dishevelled appearance as appearing as if he had been somewhere wet and muddy, and, as well, the fact that he did not stop and look at the officer as he pulled up beside him.

He said people usually stop and turn and he also noted that when he called out to Mr. Khan, he did not stop and turn in response to that, either. [ 10 ] With all of that, he decided he needed to stop and identify the defendant. Once the officer stopped his car and called out again, the defendant turned and said something like, “Why do I have to stop,” or “Why do I have to talk to you?” Corporal De Vries explained that he wanted to identify him. [ 11 ] The defendant asked why, and why he needed to stop and remain there.

Corporal De Vries said he explained that there had been a lot of thefts from vehicles in that area at night. He mentioned something about the way Mr. Khan looked and he said he was concerned that he might be involved and wanted to identify him. According to Corporal De Vries, the defendant provided his name, address, date of birth, and home phone number. [ 12 ] Before this, however, Corporal De Vries testified, he told him he wanted to pat him down to ensure he did not have any weapons or items like screwdrivers that could be used as weapons. He said he did this for his own safety.

Before he did so, he had the defendant take his hands out of his pockets. The defendant again challenged this, Corporal De Vries said, asking why, but was eventually convinced to remove his hands and place them on the top of his police vehicle. [ 13 ] Corporal De Vries said that when he did so, he saw the defendant was wearing surgical gloves and that they had an ink-type substance on the fingers. At some later point the defendant asked if he could take his gloves off, according to the officer. [ 14 ] The officer began his pat-down search.

In one of the defendant’s pockets he felt a hard object which he pulled out to see if it was a weapon. It turned out to be some kind of mask which looked to the officer to be one utilized from painting, he said, from watching shows on TV. He placed it on the hood of the police vehicle. [ 15 ] The officer continued patting down the defendant and said that he noticed that underneath his coat he had a shirt or sweater and, under that, as Corporal De Vries patted on top of it, he could feel what felt like canisters. To him, they felt like spray paint cans, maybe five or six, suspended under the shirt against Mr.

Khan’s torso in a semicircular fashion across his chest. As he patted them, they made a noise that sounded to him like the agitator in a spray paint can. Having determined that they were likely not a weapon, Corporal De Vries stopped searching in that particular area. [ 16 ] It was the officer’s evidence that when he finished his search of the defendant, he then asked his name and particulars. At some point, the defendant asked if he could put the gloves back into his pockets and he did so.

The officer went and sat in his police cruiser to check the defendant’s particulars on the computer and, as he did so, the defendant fled. De Vries followed him to a ravine where he lost him. Later with the assistance of the police dog, De Vries discovered the jacket the defendant had been wearing which at that point contained three pairs of surgical gloves and a pair of garden gloves. [ 17 ] Some of the background information Corporal De Vries provided in court was not provided in his Report to Crown Counsel or disclosed to the defence initially. What he said in his report about his reason for stopping Mr.

Khan was only that the defendant had muddy spots on his clothing and did not appear to belong in the area. This area is a densely populated residential neighbourhood. [ 18 ] There were no reports of thefts on that particular night. The officer had no description of suspects including the two he said in his evidence had fled from police scrutiny. The first of those was an hour prior to his patrol. Nothing linked Khan to any of the prior incidents in the evening and none of those were crimes.

This comes from the officer’s evidence in cross-examination. [ 19 ] Corporal De Vries conceded he had no reason to believe that the defendant did not live in one of the houses or apartments nearby and that Lonsdale Avenue which had many late-night establishments was three blocks away. The officer agreed that Khan may have said he was just walking home.

He agreed that Khan may have said he was just walking home when he was first stopped and that he had no reason to disbelieve that. [ 20 ] Corporal De Vries denied telling Khan he did not need a reason to stop him or that it was late at night and he was just going to ask him some questions. He said he had a specific discussion with Mr. Khan about the reasons he was stopping him.

Corporal De Vries agreed that he could have told Khan that he could easily pull up a dozen things such as thefts from vehicles that had happened in the area, but denied saying, “We can do this the easy way or the hard way.” He did not tell Mr. Khan he could speak to a lawyer and did not recall if he had asked to do so or that he had responded that he could do so after he gave his identification.

[ 21 ] It was put to Corporal De Vries that he had obtained Khan’s name and address before he searched him and he did not think he had, but agreed that according to his notes, he had recorded his name and address with the notation at the time, “3:30,” which was the time of the initial stop. The officer conceded that he was not sure when he received the name and address and it would have been made contemporaneously with the note of the time in his notebook. He agreed that he had also recorded the defendant’s name before the search in his Report to Crown Counsel.

He said it sounded like he may have asked the defendant’s name in the discussion, but not documented his particulars until after the search when he went to run it on the computer. [ 22 ] It is of note that the officer also stated in his report that Khan asked to remove his gloves after agreeing to the search, following which, Corporal De Vries notes that he “had not noticed that Mr. Khan had been wearing plastic medical gloves.” As Mr. Khan removed the gloves, Corporal De Vries noticed that the fingertips of the gloves appeared to be stained with ink.

This is not consistent with his testimony about the timing of his observation of the gloves and there is no mention of having the defendant take his hands out of his pockets in the report. From the report, it is clear that the gloves did not figure into the decision to pat search the defendant. The address provided by the defendant was in the direction he was walking, though some distance away. [ 23 ] Mr. Khan is a 22-year-old student at Cap College. He testified that on the night in question, he was walking on his way home.

It was raining and his jeans were wet, but he denied having any muddy patches on his clothing. He saw the police car at a stop sign and just kept on walking deciding not to look up as the officer came alongside Mr. Khan because, as Mr. Khan put it, “He had no business with me.” [ 24 ] When Corporal De Vries asked him to stop, he continued on and when he said stop the second time, he did stop. The officer asked him for ID and he said he did not have any and asked what was the problem. Corporal De Vries told him he needed his name and he needed to stop and be identified.

Khan said he was just out for a walk and asked if he had the right to just continue home. The officer said it was late at night, there were no open businesses nearby, and asked what he was doing there. They went back and forth about whether Corporal De Vries had the right to just stop him and ask his name. [ 25 ] Mr. Khan suggested that unless the officer had seen a crime or thought he was about to commit one, he could not just stop him like that. Mr. Khan said Corporal De Vries said that actually he could because it was late at night. Asked why, he said there had been crimes in the area.

Asked specifics, the officer said he could pull up a dozen files for recent crimes in the area. It was Mr. Khan’s evidence that Corporal De Vries told him they could do this the easy way or the hard way and said “Give me your name.” [ 26 ] Mr. Khan, feeling intimidated, and feeling that the officer may be inclined to “take him down,” relented and gave his name, address, date of birth, and phone number. Corporal De Vries then told him he wanted to do a pat search and it was Khan’s evidence that he said he wanted to speak to a lawyer first.

The officer told him he would be free to do so after the search. [ 27 ] Corporal De Vries proceeded with the pat-down search which Khan described as too close for comfort and quite intrusive. I note, quite rightly, as commented by Ms. McCallum, that that was not put entirely to the officer. As he was being searched or about to be, Mr. Khan said that at that point, he asked if he could take off his gloves, which he says he wears for warmth. [ 28 ] Once the search was done, Corporal De Vries said he was going to run his name on the computer and Khan asked for his things back.

Khan ran as the officer was checking the computer knowing that he had an outstanding probation order that prohibited his possession of spray paint. Mr. Khan was arrested by Corporal De Vries at his house the next day, before the charge was laid. Submissions [ 29 ] Mr. Smith, in his able submissions, submits that there were no grounds to detain to Mr. Khan. There was no crime committed that night either by the individuals stopped before Khan or by him. De Vries himself said his only motivation was to identify Mr. Khan.

He relied upon his mud-stained clothes, that he did not seem to belong, and then that he did not stop. He mentioned the possibility of being involved in auto thefts which does not form suspicion or grounds. He went on to do a pat search for tools or weapons without a detention. [ 30 ] The defence submits I should find that Corporal De Vries knew the defendant’s name and address before the search and that there were therefore no further grounds to detain or do a search.

The defence relies on Mann , Grant , and Suberu in submitting that there was a detention here based on the requirement that the defendant stop, but that there were no grounds to believe the individual was connected to a particular crime. Accordingly, Mr.

Smith says there is a breach of s. 9. [ 31 ] As for the search, there must be grounds to believe the officer’s safety is at risk or that there were weapons present and he says there were none in the absence of grounds to believe there was a crime. [ 32 ] Under Suberu , the court found a right to be advised of the right to counsel at the investigative detention stage which Mr. Smith conceded could be delayed if there were exigencies, but he submitted there were none here. There was time, at least to give the rights if not to have them exercised.

The informational component is breached, he says. [ 33 ] Then under grounds, Mr. Smith says a stop without grounds based on appearance without any nexus to a crime is a misuse of police powers as was the case throughout the evening with stops of other individuals who were not connected with crimes. He says the impact of the breach is on personal integrity and freedom from state interference without any basis and the ability to proceed unimpeded without being stopped for no reason. [ 34 ] Society’s interest requires the court to consider the strength of the Crown case, Mr.

Smith says, and he challenges the strength here, whether it would have been open to the court to draw an inference that these items were, in fact, items prohibited by the order. He submits that the admission of the evidence would in all the circumstances seriously undermine the public’s confidence in the administration of justice. [ 35 ] Ms. McCallum, in her able submissions, submits that there were reasonable grounds for suspicion for a search. She notes that the officers have encountered thefts in the area at night and that in that evening, there had been prior reports of people in the area, one trying

a door handle. The officer admitted there was no apparent connection between those and the defendant, she concedes, but he himself had a prior encounter with two other individuals near to where he encountered the defendant. [ 36 ] Based on the defendant’s dishevelled appearance and refusal to acknowledge the officer, the officer was entitled to ask him to stop. The circumstances in total, Ms. McCallum says, amount to a basis for suspicion that Mr. Khan was engaged in criminal activity and that Corporal De Vries then was authorized to stop him and then to pat search him.

The officer described his search as based on concerns that persons breaking into vehicles often carry tools and his concern for weapons is supported, she says, by the fact that he declined ultimately to remove the paint cans. So he was not obviously going on a fishing expedition. Ms.

McCallum submits that the search was within the scope of the detention. [ 37 ] As to whether the defendant should have been given his rights, she says that the issue under Suberu is whether it is the kind of detention which meets the test in paragraph 24, whether the interaction was confrontative, public, the length of the interaction, the suspect’s level of sophistication and stature, and whether there would be a legal sanction if he left. She says that these factors favour a finding that Mr. Khan did not need to be given his right to counsel in the circumstances. [ 38 ] As for s. 24(2), Ms.

McCallum submits the breach is at the lower end in seriousness noting the officer’s decision not to pursue a seizure of the spray paint cans, his attempt to explain his actions to the defendant before embarking on the search. She submits the impact on the defendant’s interests is low, challenges the intrusiveness of the search given the fact that some elements were not put to the officer, and says that with respect to the public interest in adjudication on the merits, the long-term interest in the administration of justice requires that the evidence be admitted.

Analysis [ 39 ] The issues outlined in the case of Suberu with respect to investigative questioning and detention are, firstly, whether the defendant was detained or simply subject to investigative questioning. If he is detained, he is entitled to be given his right to counsel, according to Suberu, if there is a detention of the type that meets the requirements set out in paragraph 24. [ 40 ] The Supreme Court of Canada found that there was no justification for suspending the right to counsel at roadside during an investigative detention.

There is, however, power granted to police to engage in non-coercive exploratory questioning without triggering either detention or a right to counsel. The question in this case, firstly, therefore is whether there was a detention authorizing a pat-down search or simply exploratory questioning. [ 41 ] The answer is straightforward. The officer believed, according to his report, that he had the authority to both “pat him down for weapons and identify him.” The authority to pat down comes only with investigative detention and the officer must clearly have intended to detain the defendant in order to pat him down.

He had no grounds to do so. There was no constellation of discernible facts giving rise to any reasonable belief that he may be involved in a crime. There was no nexus to any crime that was committed or reported that night and no nexus whatsoever to any of the observations made by police on the evening in question, which in and of themselves did not amount to crimes. [ 42 ] The officer may well have been permitted to engage the defendant in conversation pursuant to the case of R. v. Suberu , but he had no authority to search him under any view of the law.

This is elementary, in my view. [ 43 ] Looking at the whole of the circumstances, even with Mr. Khan’s reluctance and his dishevelled appearance, I note a number of things, as well. The allegation that the coat was mud-stained is denied by Mr. Khan. Mud stains may well have been on the coat after the fact because it was found in a ravine. I have some questions as to whether, in fact, that was the case, although Mr. Khan may well have been wet.

I do not know that his apparel added much to the officer’s grounds for stopping him, but I do conclude that his appearance did have something to do with that. [ 44 ] Apart from that, the appearance, the officer says that he appeared out of place in the neighbourhood and that nobody was out walking generally in that neighbourhood, but as I have noted, people were out walking in groups that very evening so the fact that Mr. Khan was walking alone at 3:00 in the morning would not appear to have been an unusual circumstance. As I have indicated, that is my conclusion with respect to the facts.

There was absolutely no basis for stopping Mr. Khan. [ 45 ] Now, he was reluctant. Does that add something to grounds? It adds perhaps a conclusion that Mr. Khan is a person who stands on his rights, at his own peril and, instead of complying with what he views to be an unreasonable request from a police officer, he gets himself into a situation. But that does not give the officer any further or stronger grounds to believe that Mr.

Khan was engaged in any kind of nefarious activity on the evening in question. [ 46 ] There is nothing about the circumstances that would have given rise to what is required in order to found an investigative detention. Nonetheless, the officer did embark upon an investigative detention and I conclude that by virtue of the fact that he decided to pat down the defendant.

In deciding to do that, he must have been investigating what in his mind was a potential, or suspicion of, a crime. [ 47 ] There was no reason in those circumstances given the time and the amount of discussion between the parties that the officer ought not to have also given the defendant his right to counsel in terms of the informational component. It would not have made much sense to permit him to phone counsel, but he could have given him his rights. There was lots of discussion back and forth. It meets the test set out in paragraph 24 because it is an investigative detention.

There may be some investigative detentions where the right can be suspended or does not arise, but in my view, this was not one of them. So there was additionally a breach of that. [ 48 ] I find there were breaches of ss. 8, 9, and 10 in these circumstances. [ 49 ] Dealing with the aspect of s. 24(2) under the new analysis prescribed by R. v. Grant , the breach is blatant and displays ignorance -- the breaches, I should say, and display, in my view, and with all due respect to the officer, ignorance of the operating legal principles that should be in play every day on the streets in the community.

There was some gilding of the lily by the officer, in my view, in an

attempt to retroactively justify his actions, which makes it more serious, in my view. [ 50 ] I find that the officer was operating in ignorance and not in good faith. I do not find he was operating particularly in bad faith, but he was operating well outside the scope of his authority on the night in question in committing the three breaches that he committed. As well, I note and agree with Mr. Smith’s submissions that it appears that this whole group of officers, this informal task force, or whatever it was, was operating in a fashion that likely infringed people’s rights. I do not conclude that, necessarily.

They were entitled to stop people and ask them their names and what they were doing, but without further information to connect them with crimes, they were not entitled to go any further than that, and I do not know that they did. [ 51 ] The impact of the breach on the protected interests is that while real evidence is involved, so perhaps it is less intrusive than a cavity search or something, it is a bodily search. To some extent, the defendant was really coerced into participating in his incrimination, if it was that, and it is therefore further up the scale than that of a vehicle search, for instance.

It was, I have said, completely groundless. [ 52 ] The state’s interest in adjudication on the merits is low, in my view, even looking at it from the long-term perspective. While the defendant possessed items that were probably prohibited by his probation order, they were not recovered. Except the mask which the officer was of the opinion it was a painting accessory, but he would not have been an expert on that. I do not know if the Crown would have gotten over that hurdle. [ 53 ] In my view, it is incumbent on the court, to some extent, to assess the strength of the Crown case in looking at this aspect.

It appears in this case that the whole of the case is before me at this point so I can do that to some extent, and I agree with Mr. Smith’s assessment that the case had its issues.

I note that apart from being prohibited by the order, if they were, these items were not weapons or prohibited devices in themselves. [ 54 ] The circumstances are suspicious and if the defendant intends to pursue some kind of professional career of one kind or another, he would be well advised not to put himself in these kinds of circumstances, particularly so soon after being placed on probation. [ 55 ] All in all, however, I conclude that there is not a high interest in conviction in this particular case or with respect to the long-run view as to the administration of justice being brought into disrepute.

I do not see it as happening in this case if the evidence is excluded. The factors I am required to consider weigh strongly in favour of exclusion, in my view. The evidence is excluded. [ 56 ] Does the Crown have any further evidence to call? [ 57 ] MS. McCALLUM: No, Your Honour. [ 58 ] THE COURT: Thank you. The case is dismissed. Mr. Khan is free to go. Do not come back to court, sir. [REASONS FOR JUDGMENT CONCLUDED]