R. v. Harker, 2018 BCPC 163

Citation: R. v. Harker 2018 BCPC 163 Date: 20180621 File No: 82754-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WESLEY ALLAN HARKER REASONS ON VOIR DIRE #1 OF THE HONOURABLE JUDGE B.A. HARVEY Counsel for the Crown: Christopher Gibson Counsel for the Accused: Kelly Bradshaw Place of Hearing: Nanaimo , B.C. Dates of Hearing: April 9, May 14, 28, 29 June 14 and 15, 2018 Date of Judgment: June 21, 2018

Introduction [ 1 ] The accused, Wesley Allan Harker, has been charged with three counts on Nanaimo Court Information 82754. All counts involve the possession of various drugs, namely cocaine, methamphetamine and heroin/fentanyl for the purpose of trafficking from March 24, 2017. [ 2 ] At the outset of the Trial the Court entered into a voir dire to determine various Charter violations alleged by the accused upon his initial detention and subsequent arrest by the RCMP on March 24, 2017.

In the end, the Court is asked to rule on these alleged Charter violations and to determine the admissibility of the evidence seized from the accused by the Nanaimo RCMP, including any statements made by the accused, pursuant to section 24(2) of the Charter .

Summary of the voir dire evidence [ 3 ] At approximately 4 p.m. on March 24, 2017, Cst. Gibson and McGrath, of the Nanaimo RCMP projects unit, were involved in a “spring clean-up” targeting low-level drug dealers, etc. when at or near the 900 block of Haliburton Street in this city they noted a male riding one bicycle on a sidewalk, without wearing a helmet, and whilst pushing another bicycle at the same time. Cst. Gibson identified the accused Mr. Harker as the person riding the bicycle. Approximately sixteen minutes later, namely 4:16 p.m., after some initial computer inquiries were made by Cst.

McGrath, the accused was arrested for an unendorsed bench warrant and placed in handcuffs without issue. [ 4 ] As a result of that initial arrest on the unendorsed warrant arrest, Cst. Gibson testified in examination-in-chief that he began to search the accused incidental to that arrest “to look for any weapons, means of escape or any further evidence that may be on his person”. [ 5 ] Cst. Gibson initially testified that he located in the accused’s left front pants pocket a small zippered skull candy headphone case, which when he opened it, contained suspected methamphetamine, cocaine and heroin.

Later in his evidence-in-chief, Cst. Gibson said that skull candy headphone case came from an outer jacket pocket that the accused had been wearing over top of a backpack and an inner jacket. As a result of that search, he then placed the accused under arrest for possession of a controlled substance and gave him his Charter rights verbatim from a prepared card. The accused understood and requested to speak to a lawyer. [ 6 ] Upon further search of a backpack the accused had been wearing on his person, Cst. Gibson located a small digital scale in a compartment of the backpack.

He also located a cell phone and approximately $1,800.00 in cash on the accused’s person. Given those additional pieces of evidence it was just decided in concert with Cst. McGrath that the accused should be arrested for possession for the purpose of trafficking. That subsequent arrest was done at 4:25 p.m. Once again, the accused indicated he understood and re-iterated his request to speak to a lawyer. [ 7 ] As Cst. Gibson and McGrath were working plainclothes in an unmarked police vehicle they called for backup to attend to transport the accused to the Nanaimo RCMP detachment. As a result of that call, Cst.

McCulloch and Sgt. Armstrong attended to facilitate the transport of the accused back to the Nanaimo RCMP. Once back at the RCMP detachment, Cst. Gibson and McGrath ultimately took photos of various exhibits which were filed by way of a book of photographs marked as Exhibit “A” on the voir dire . [ 8 ] What is clear from Cst. Gibson and McGrath’s evidence is that neither one of those officers personally arranged for the accused to be given an opportunity to contact legal counsel when they arrived back at the Nanaimo RCMP detachment on May 24, 2017. Cst.

Gibson also testified he made certain handwriting and a check mark regarding the accused’s cell phone when the C-13 Prisoner Report was prepared. [ 9 ] Cst. McCulloch and Sgt. Armstrong both agreed in cross-examination that once they took over custody of this accused from Cst. Gibson and McGrath, it then became their responsibility for Mr. Harker to get access to counsel given they were the police officers who transported him back to the Nanaimo RCMP detachment. [ 10 ] The accused was booked into Nanaimo RCMP cells at 1648 hours or 4:48 p.m. on March 24, 2017.

The prisoner report was filed as Exhibit “G” on the voir dire . Exhibit “H” on the voir dire was the guard’s log and notes which confirms that at 1648 hours the accused, namely Mr. Harker, went to cell number 11. [ 11 ] Cst. McCulloch testified that he was driving a marked police vehicle. At no point did Cst. McCulloch arrange for the accused to contact legal counsel when back at the detachment on March 24, 2017. In fact after the booking process took place his evidence was he took the accused directly to his cell. [ 12 ] In cross-examination, Cst. McCulloch was asked if he recalled being advised by Cst.

Gibson if the accused had requested to speak to lawyer. His answer was “I do not recall that”. [ 13 ] Furthermore, his evidence was that he does not recall the accused asking to speak to a lawyer back at the detachment. The accused was provided an opportunity for a smoke break at 2224 hours after being removed from his cell. I note however, that at 2110 hours, the guard’s log indicates “Harker asking for lawyer call”. [ 14 ] Sgt. Armstrong testified that he has been a police officer since May 2004. He further advised that when he attended to the scene with Cst. McCulloch to transport the accused, Cst.

Gibson advised him that the accused wanted to speak to counsel. After two minute drive back to the Nanaimo RCMP detachment, Sgt. Armstrong testified the cell block was not at all busy that evening. Once the accused was booked in at the guard counter, Sgt. Armstrong testified he overheard Mr. Harker advise Cst. McCulloch that given he was spending the night in jail pursuant to the warrant, he changed his mind and would wait to speak to duty counsel in the morning. [ 15 ] Sgt.

Armstrong testified that he advised the accused should he change his mind further, he should let any police officer or guard know and that someone would arrange for the accused to contact counsel right away.

[ 16 ] Cst. McCulloch and Sgt. Armstrong took no contemporaneous notes with respect to this investigation. Thus they are relying solely on their memory as well as reviewing Exhibits “G” and “H”, the prisoner report and guard log notes. Sgt. Armstrong completed page two of the prisoner report, namely exhibit G, which showed the accused as being completely calm and lucid. Sgt. Armstrong signed the document on March 24, 2017, prior to the accused’s release on a promise to appear. It is also noted in Sgt. Armstrong’s evidence that in the counsel contacted box he wrote in Cst.

McCulloch as being responsible for the accused to contact counsel. [ 17 ] Sgt. Armstrong also testified he was the police officer who took the accused to the cells after he was booked in at 1648 hours. Sgt. Armstrong was still working in overtime capacity when the accused requested to speak to a lawyer at 2110 hours. Sgt. Armstrong further agreed that he minimized his role as there was no notation made anywhere regarding the change in the accused’s position as to contacting counsel as he, Sgt. Armstrong, alleges. [ 18 ] Sgt. Armstrong agreed that the accused spent some twenty-four hours in cells.

After a JJP hearing was conducted at 1246 hours on May 25, 2017, the accused was not released from police custody until 4:32 p.m. on the same date. There was no concrete explanation given as to why the accused may have had to wait that long for his release from police custody on Sgt. Armstrong’s evidence or from that of Cst. McCulloch, Gibson or McGrath. [ 19 ] What is also clear from the evidence of the voir dire is that Sgt. Armstrong made no contemporaneous notes in relation to a change of mind of this accused’s desire to contact counsel.

None of the other police officers had mentioned that fact, nor are there any police notes supporting Sgt. Armstrong’s allegation that the accused changed his mind about contacting a lawyer upon being booked into cells. [ 20 ] The accused also testified on the voir dire . His criminal record was filed as Exhibit “I”. [ 21 ] Essentially the accused does not deny that he was riding a bicycle on a sidewalk without a helmet whilst pushing other bicycle.

The accused was questioned by police about the two bicycles yet was not given any violation ticket for any Motor Vehicle Act infractions by either police officer. [ 22 ] The accused testified he was cooperative with the police officers who wanted information about the two bicycles in his possession. Once inquiries were made on the two bicycles he asked if he was free to leave. Prior to that time he was not advised to any of his usual

section 10(

a) or (

b) Charter rights by the police. [ 23 ] The accused was then asked for his birthdate on the roadside before being initially arrested for an unendorsed warrant.

The accused had asked if he was free to leave after the bicycles did not come back as stolen, yet the police conducted further inquiries once they obtained his date of birth. [ 24 ] The accused testified that he asked to speak to a lawyer on multiple occasions, both initially whilst on arrest pursuant to the warrant and further when he was arrested for possession for a controlled substance and for possession for the purpose of trafficking. [ 25 ] The accused testified he recalled Cst. McCulloch transporting him to the detachment along with the other officer. The accused also testified that Cst.

Gibson assured the accused that he would come back and make sure that the accused contacted legal counsel. The accused adamantly denied changing his mind about contacting counsel at the Nanaimo RCMP and ultimately, he agreed he was released on a promise to appear at 9:48 p.m. by Cst. McGrath on the drug charges but held overnight for a JJP hearing for the unendorsed warrant. [ 26 ] The accused says at no time was he put into contact with legal counsel prior to his release after a JJP hearing the following day. Ultimately, it was several hours later after the JJP hearing that he was released.

In total, the accused spent some 24 hours in custody without having spoken to legal counsel. Issues [ 27 ] The accused, with assistance of his legal counsel, alleges a breach of

section 8 , 9 , 10(

a) and 10(

b) of the Canadian Charter of Rights and Freedoms and is seeking exclusion of all of the evidence obtained from him, including all statements, pursuant to section 24(2) . If the evidence obtained from the accused is excluded from evidence there would be no further case for the Crown against this accused.

Section 9 analysis [ 28 ] The accused argues that he was arbitrarily detained by Cst. Gibson and McGrath of the Nanaimo RCMP for some sixteen minutes whilst they pursued an investigative detention unrelated to the initial stop and prior to his arrest on a warrant on March 24, 2017. [ 29 ] Briefly, on the facts of this case the Crown concedes that this accused was detained and in police custody and was not free to go upon his initial stop by Cst. Gibson and McGrath of the Nanaimo RCMP. [ 30 ] The accused Mr.

Harker was initially stopped because he was riding a bicycle on the sidewalk along with pushing a second bicycle, without wearing a helmet, both of which are infractions under the Motor Vehicle Act . [ 31 ] Cst. Gibson acknowledged, only under cross-examination however, that after stopping the accused both he and his partner Cst. McGrath conducted queries of the bicycles to determine if they were stolen. Neither bicycle came back as stolen. [ 32 ] Cst. Gibson and Cst. McGrath further requested the accused’s date of birth, and ran a CPIC check, discovering an outstanding warrant out of Courtenay, B.C.

The accused was then arrested on the warrant by Cst. Gibson at 4:16 p.m., some sixteen minutes after his initial detention. I note that up to that point in time was the accused ever given his

section 10 Charter rights by either Cst. Gibson or Cst. McGrath.

[33] The defence argues that the accused was arbitrarily detained for at least sixteen minutes following the bicycle stop, prior to hisarrest, and that the officers did not have statutory or common law authority to detain him and make any further inquiries of him. [34] The Crown on the other hand concedes there was a detention but that the conduct is not sufficient to warrant exclusion of theevidence. The Crown further concedes a

section 10(

b) right to counsel breach at 9:10 p.m. on March 24, 2017 but relies upon Sgt.Armstrong’s evidence in relation to a waiver by the accused to contact legal counsel once initially back at the Nanaimo RCMPdetachment. [35] Both counsel made extensive further submissions on the various Charter issues and the Court was provided with some thirty-three cases in support of their positions.

For clarity, a list of those cases is attached as an appendix to these reasons should this case beconsidered by others in the future. [36] It is clear from the authorities presented to the Court that a person who was detained can still consent to answer policequestions. However, consent must be one that is informed and given at a time when the individual is made aware of his or her rights.

Clearly that was not the case with this accused. [37] I am satisfied on the evidence of this case that the accused felt compelled to respond to questions put to him by the policeofficers, including in relation to his date of birth. In my view that was unnecessary given the officers would only need his name, which Iam satisfied Cst. Gibson knew on the date in question, in order to give this accused a ticket for the two alleged infractions under theMotor Vehicle Act. [38] I find the analysis of my brother Judge Higinbotham in R. v. Trott,

(2012) B.C.J. No. 1135 very helpful in the disposition of thiscase. [39] Similarly here in this case, in R. v. Trott the officer was involved with a proactive policing in connection with persons inSaanich, B.C. [40] The officer in the Trott case asked the accused under the auspices of a “consensual conversation” for Mr. Trott’s identification. Upon querying Mr. Trott, the police officer discovered an outstanding warrant and arrested him. Upon searching Mr.

Trott, he found aknife in his jacket, leading to a charge of possession of a prohibited weapon. [41] The main issue to be decided in Trott was whether the two males were detained when the officer stopped them on the sidewalk. [42] The voir dire that was held in the Trott case was to determine whether that accused was arbitrarily detained prior to thediscovery in his possession of what was alleged to be a prohibited weapon. [43] Judge Higinbotham found that Cst.

Swanson in Trott was not investigating a specific offence and that no grounds existed forwhat is euphemistically referred to as an investigative detention. The detention in Trott was determined as unlawful, and thus arbitrary. [44] Similarly to our case involving Mr. Harker, if Cst. Swanson had told Mr. Trott he was free to leave any time, Mr. Trott wouldhave likely left, and in fact, he testified he would have left. At paragraph 34 of the Trott decision, Judge Higinbotham stated as follows: “The duration of the encounter was seven or eight minutes.

Detention was found in Grant in an encounter approximately four minutes. What occurs during the encounter is more important than the length of the encounter, but eight minutes is a long time to be held up bypolice officer for no particular reason. It is unlikely that a person would submit to a random series of personal questions, at night, on adark street, in the rain, on the way to the store, for this period of time without feeling they were required to do so.” [45] On the evidence in this case involving Mr. Harker, I am satisfied when this accused, Mr. Harker, was initially stopped he wasnot free to leave.

Moreover, I find he felt compelled to answer inquiries made of him, including information about the bicycles and hisdate of birth. [46] In my mind it is clear that the officers exceeded their authority to stop and detain Mr. Harker for approximately sixteen minutes,prior to the arrest on the warrant. As was decided in R. v. Trott, the officers did not stay within their authority and thus I find Mr.Harker’s detention was arbitrary, violating

section 9 of the Charter. [47] While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action inexcess of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion uponthe must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercisedon the basis of a hunch, nor can become a de facto arrest (see paragraph 35 in R. v.

Mann, (2004) 2004 SCC 52 , 3 SCR 59). [48] Furthermore, it was not until cross-examination that it was brought out that the officers were making inquiries regarding thebicycles and conducted queries of the bicycles. Cst. Gibson essentially admitted this fact yet he did not put this in his notes or his policestatement, nor did he give this in his evidence-in-chief. [49] Given my findings on the arbitrary detention, I find it unnecessary to deal with the other breach allegations, namely sections 8,10(

a) and 10(

b) Charter allegations to dispose of this matter save and except that I do not find that the accused ever waivered on his rightto counsel throughout his dealings with all police officers. [50] If this accused had changed his mind about contacting legal counsel once back at the detachment then I would have expected anote from an officer, a mention in the prisoner booking in form and/or guard log in addition to a supplemental warning being read to him. None of is present in this case and I do not accept Sgt.

Armstrong’s allegation that the accused changed his mind in contacting a lawyergiven that officer was going purely from memory many months later. [51] The absence of such information in any notebook, prisoner booking in form and/or guard log to confirm Sgt. Armstrong’s

assertion is also of some concern given this officer’s rank. To the contrary, the guard log does confirm that at 9:10 p.m. on March 24, 2017 the accused was noted to be requesting a call to a lawyer. [ 52 ] Moreover, Cst. McCulloch did not testify as to the accused’s change of mind as was alleged by Sgt. Armstrong. It was Cst. McCulloch who was tasked with arranging for the accused to contact counsel upon return to the Nanaimo RCMP detachment. I would have expected Cst. McCulloch to have mentioned this important issue in his own evidence, which he did not.

Section 24(2) Disposition [ 53 ] As is mentioned by my brother, Judge Higinbotham, in R. v.Trott at para 42: “The key question in a section 24(2) analysis is what a reasonable person, informed of all the relevant circumstances and values underlying the Charter , conclude that the admission of the evidence would bring the administration of justice into disrepute?” [ 54 ] As was also stated in paras 60 and 61 of R. v.

McGuffie , 2016 ONCA 365 by one of Canada’s leading jurists in Doherty JA: [60] “Section 24(2) recognizes that the admission of constitutionally tainted evidence and the use of that evidence to convict persons may bring the administration of justice into disrepute. As observed in Grant , at paras. 67-71, s. 24(2) is premised on the assumption that there must be a long-term negative impact on the administration of justice if criminal courts routinely accept and use evidence gathered in violation of the legal rights enshrined in the Charter .

At the same time, however, section 24(2) accepts that the exclusion of evidence can also bring the administration of justice into disrepute.

In Grant , the Supreme Court provide the framework for differentiating between those cases in which the exclusion of the evidence would promote the proper administration of justice and those cases in which the proper administration of justice would be further harmed by the exclusion of otherwise relevant probative evidence. [61] After Grant , at paras. 71-86, the admissibility of evidence under section 24(2) is approached by examining: • the seriousness of the Charter -infringing state conduct; • the impact of the breach on the Charter -protected interests of the accused; and • society’s interest in an adjudication on the merits.” [ 55 ] I make the following observations in my analysis as to whether or not the evidence obtained from the accused is admissible in this case: 1.

That the two police officers were involved in a “spring clean-up” and out actively targeting low-level drug dealers. 2. The accused was stopped for alleged infractions under the Motor Vehicle Act whilst operating a bicycle on a sidewalk and without a helmet, contraventions of ss. 183(2)(

a) and 184(1) of the Motor Vehicle Act respectively. 3. Cst. Gibson or McGrath never proceeded to issue a violation ticket to the accused for those two Motor Vehicle Act infractions. 4. This is not a case where the accused was stopped randomly whilst operating a motor vehicle and would be required to produce his driver’s licence. 5. That I find that the real purpose for the stop was for Cst. Gibson and McGrath to pursue their suspicion that this accused was in possession of stolen property, namely a bicycle or bicycles. 6.

That the Court has heard no evidence on this voir dire that CPIC checks are regularly done by the police as part of routine stops in relation to alleged bicycle infractions. 7. That the police did conduct inquiries regarding the bicycles, as conceded by Cst. Gibson in cross-examination, without the accused having been given his

section 10(

a) and 10(

b) Charter rights notwithstanding he was under detention. 8. The accused was cooperative and made no attempt to flee the scene. However, I do find that the accused asked if he was free to leave after the bicycles came back as not being stolen, which was uncontradicted on the evidence. 9. That the accused conscripted himself by providing his date of birth to the police as part of a CPIC check after the bicycles came back as not stolen. 10.

I find this accused felt he was compelled to provide to the police officers his birthdate notwithstanding I accept that he asked the two police officers if he was free to leave before being asked for his birthdate. 11. That the best case scenario for the delay in providing the accused his

section 10(

a) and (

b) Charter rights is eight to nine minutes until his arrest on the warrant and the worst case scenario is some sixteen minutes as conceded by Crown counsel in their submissions. 12. That the accused was separated from all of his personal belongings which were searched after his arrest on the warrant and thus the police were not in any danger when he was arrested. 13. That once the bicycles came back as not stolen, the accused asked if he was free to leave. It was only after providing his date of birth to the police did they run further inquiries which led to his arrest pursuant to a warrant. 14.

It is my view that the length of time the accused spent on the roadside while he was detained without having previously been given his Charter rights was at the upper end of the worst-case scenario the Crown concedes.

15. That as in the Trott case, physical evidence, like the drugs seized, is highly reliable. Therefore, it goes without saying that theevidence is critical to a determination of the case on its merits. [56] As my brother Judge Higinbotham stated in R. v. Trott at paragraphs 53, 54, 56-59: [53] “However, evidence that is essential to the Crown’s case does not necessarily need to be admitted. Allowing the third line ofinquiry to overrun the section 24(2) analysis would send the message that the “ends justifies the means” and that the Charter protectionsare not afforded to those who commit crimes (R. v.

Harrison (2009) 2009 SCC 34 , 2 S.C.R. 494 (SCC at paragraph 40). [54] The possession of a prohibited weapon is a serious crime. However, the Court in Grant found at paragraph 84 that the seriousnessof the crime can “cut both ways” in a section 24(2) analysis. The Court found that the seriousness of the crime is not a useful factor toconsider in that case, as the interests of society in admitting the evidence were no greater than that of reinforcing the principle that rightsmust be respected. [56] I would add further that I have difficulty accepting Cst.

Swanson’s justification for the type of focus questioning he engages inwhen he makes a stop such as he did in this case. He said, and I quoted him a paragraph 7 of this decision, that he enquires of them as tocriminal background for officer safety reasons, then goes on to say that it is a method by which he tests a subject’s honesty; to see if theanswer obtained from the subject accords with the information received back from the police computer programs CPIC and PRIME. Inmy opinion this has nothing to do with officer safety.

What it does establish is that in each and every case were such a stop is made thepolice officer is going to focus an investigation into the criminal background of the person. All of this is done without any reasonablesuspicion that the person stopped has doing anything wrong at all. [57] In my opinion this is questionable enough when done to a person such as Brodie Laughran but is to be strongly discouraged andcarried out as a matter of routine practice. Mr. Kennedy, for example, was detained for a significant period of time and questioned abouthis background without any reasonable suspicion at all.

I am certain there are many more Mr. Kennedys out there who have had theirfreedom of movement restricted in an arbitrary fashion for no other reason that they were young, wearing hip-hop clothes and walkingalong a major thoroughfare to get to the nearest store. They have no forum for redress as they were never charged with an offence. [58] Mr. Kennedy has no standing before this court, nor do any others that have been arbitrarily stopped, detained and questioned whereno reason to arrest was found.

It is not there rights that I rule on, but I am of the opinion that in determining whether a remedy should beafforded to Mr. Trott in this case, I can consider the impact of a generalized “profiling” practice on the community at large, and theimportance of ensuring that the right to be free from arbitrary detention is respected. [59] I have determined that this particular violation was significant to Mr. Trott, and that the evidence shows that if not denounced byjudicial decision it will become a routine aspect of normal police conduct, if it is not already.

For these reasons the evidence of thefinding the knife will be excluded.” [57] Judge Higinbotham’s analysis in Trott is apropos to Mr. Harker’s case in my view. [58] I find that Cst. Gibson and Cst. McGrath exceeded their authority under the Motor Vehicle Act by further detaining the accusedMr. Harker and investigating the bicycles in his possession, thereby violating his rights under

section 8, 9, 10(

a) and 10(

b) of theCharter. [59] Cst. Gibson and Cst. McGrath failed to properly advise the accused for the reasons of detention moments after 4 p.m. on March24, 2017, thereby violating his rights under

section 10(

a) of the Charter once the violation ticket was not issued to him for the bicycleinfractions. [60] Furthermore, Cst. Gibson and Cst. McGrath failed to advise the accused at the outset of his detention of his right to retain andinstruct counsel once he was not issued a violation ticket for the alleged bicycle infractions thereby violating the accused rights undersection 10(

b) of the Charter. [61] It is further my view that the accused ought to have been allowed to leave the presence of Cst. Gibson and McGrath and go onhis way once it was determined the two bicycles were not reported as stolen. They had no further business in detaining him for anyperiod of time and his further detention cannot be justified on the evidence in this case. [62] I find the

section 9 breach is in fact more serious as it was in Mr. Trott’s case as it involved a lengthier period of detention. Inthis accused’s case, the two police officers conducted a criminal investigation into the bicycles in a situation where they both agreed Mr.Harker was not free to leave. There was no ambiguity in whether Mr. Harker was detained. In this respect the breach of his Charterprotected interests is more severe. [63] In my view it is speculative to say that this accused would have voluntarily provided his birthdate if he had not been arbitrarilydetained.

Additionally, the accused had not been provided with his right to counsel upon his detention, as Cst. Gibson was obliged to do,which further adds to the speculation about whether the accused would have voluntarily provided his birthdate. [64] Given my finding of an arbitrary detention in this case, the accused provided further additional personal information to thepolice when there was no basis to do so in these particular circumstances. [65] The Crown provided authority of R. v. B.S. (2014) BCCA 257 from our Court of Appeal.

However, the Honourable MadamJustice Nielson in writing for the Court, stated in paragraph 39 in part: “… I agree with the appellant, however, that Cst. Hall was not entitled to require the youths to remain until they produced identificationand satisfied him that they had no outstanding warrants…” [66] It is conceded that the accused never spoke to legal counsel whilst in police custody and, in any event, I am not satisfied the

Crown has discharged the burden of waiver required of it. [67] Thus, in balancing the three factors as is required of me, this Court must distance itself from the police conduct and interactionsthat occurred with this accused, Mr. Harker, on the facts of this case, both initially at the roadside and once back at the Nanaimo RCMPdetachment. [68] I find that the violations in this case were at best reckless, and at worst wilful, showing a flagrant disregard for Mr. Harker’sCharter rights. There is no excuse for non-compliance of the Charter. Both Cst.

Gibson and McGrath have an obligation to know thelimits of their authority and as mentioned by Mr. Justice Sopinka in R. v. Kokesch, (1990) 3 SCR (SCC) at paragraph 46, I find is alsoapplicable on the facts of Mr. Harker’s case: “Where the police have nothing but suspicion and no legal way to obtain other evidence, it falls that they must leave the suspect alone,not charge ahead and obtain evidence illegally and unconstitutionally.

Where they take this latter course, the Charter violation is plainlymore serious than it would be otherwise, not less…” [69] Furthermore, this case is completely distinguishable from motor vehicle stops in the cases of R. v. Kaddoura (2009) 2009BCCA 113 , B.C.J. No. 526 and R. v. Madill (2005) 2005 BCSC 1564 , B.C.J. No. 2902 relied upon by the Crown intheir submissions in this case. [70] In R. v. Mann (2004) 2004 SCC 52 , 3 S.C.R. 59, Mr.

Justice Iacobucci, writing for the majority, at para 15 stated asfollows: “As stated earlier, the issues in this case require the court to balance individual liberty rights and privacy interests with the societalinterest in effective policing. Absent a law to the contrary, individuals are free to do as they please. By contrast, the police (and morebroadly, the state) may act only to the extent that they are empowered to do so by the law.

The vibrancy of a democracy is apparent byhow wisely it navigates through those critical junctures where state action intersects with, and threatens to impinge upon, individualliberties.” Decision [71] In the end it is my view that a reasonable person, informed of all the relevant circumstances and values underlying the Charter,would conclude that to admit the evidence obtained from the accused in the particular facts of this case, would bring the administrationof justice into disrepute. [72] Accordingly, pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms I order exclusion of all of the evidenceobtained from the accused in this Trial.

BY THE COURT ____________________________ The Honourable Judge B.A. Harvey Appendix 1. Defence Case Authorities (

i) Section 9 of the Charter 1. R. v. Mellenthin, (SCC), [1992] 3 S.C.R. 615 (S.C.C.) 2. R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59 (S.C.C.) 3. R. v Phengchanh, [2011] B.C.J. No. 699 (B.C.S.C.) 4. R. v. Trott, [2012] B.C.J. No. 1135 (B.C.P.C.) 5. R. v. M.E. [2006] O.J. No. 1657 (O.C.J.) 6. R. v. Huete, [2018] B.C.J. No. 727 (B.C.S.C.) 7. R. v. Arkinstall, [2005] B.C.J. No. 1805 (B.C.P.C.) (ii)

Section 8 of the Charter 8. R. v. Caslake, (SCC), [1998] 1 S.C.R. 51 (S.C.C.) 9. R. v. Fortune, [2012] B.C.J. No. 2850 (B.C.S.C.) (iii)

Section 10 of the Charter

10. R. v. Bartle, (SCC), [1994] 3 S.C.R. 173 (S.C.C.) 11. R. v. Prosper, (SCC), [1994] 3 S.C.R. 236 (S.C.C.) 12. R. v. Suberu, [2009] 2 S.C.R. 360 (S.C.C.) 13. R. v. Taylor, 2014 SCC 50 , [2014] 2 S.C.R. 495 (S.C.C.) 14. R. v. Strilec, [2010] B.C.J. No. 669 (B.C.C.A.) 15. R. v. Deschamps, [2017] B.C.J. No. 2204 (B.C.S.C.) (iv) Lack of contemporaneous notes 16. R. v. Zack, [1999] O.J. No. 5747 (O.C.J.) 17. R. v. Tweedly, [2013] B.C.J. No. 1062 (B.C.S.C.) (v) Section 24(2) of the Charter 18. R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32 (S.C.C.) 19. R. v. Harrison, 2009 SCC 34 , [2009] 2 S.C.R. 494 (S.C.C.) 20.

R. v. Reddy, 2010 BCCA 11 , [2010] B.C.J. No. 49 (B.C.C.A.) 21. R. v. Caron, 2011 BCCA 56 , [2011] B.C.J. No. 200 (B.C.C.A.) 22. R. v McGuffie, 2016 ONCA 365 (ON.C.A.) 23. R. v. Tombs, [2012] B.C.J. No. 2539 (B.C.S.C.) 24. R. v Chong, [2013] B.C.J. No. 1070 (B.C.P.C.) 25. R. Cavdarov, [2003] B.C.J. No. 956 (B.C.P.C.) 26. R. v. Le, 2014 BCPC 218 , 2014 BCPC 0218 (B.C.P.C.) 2. Crown Case Authorities 27. R. v. Kaddoura, 2009 BCCA 113 (B.C.C.A.) 28. R. v. Madill, 2005 BCSC 1564 (B.C.S.C.) 29. R. v. B.S., 2014 BCCA 257 (B.C.C.A.) 30. R. v. Trieu, 2010 BCCA 540 (B.C.C.A.) 31. R. v. Ashby, 2013 BCCA 334 (B.C.C.A.) 32.

R. v. Archambault, [2012] Q.J. No. 54 (QUE. CA) 33. R. v. Greaves, 2004 BCCA 484 (B.C.C.A.)