IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The task for this court is to determine if the police detained the accused when they encountered him, asked for his name and enquired as to what he was doing in the area.  If this court finds that there was a detention then the accused’s rights pursuant to s. 10 (a) and (b) of the Charter were violated.

[2]           The accused also argues his rights were violated when the police searched him by patting him down.

[3]           If this court finds that the accused’s rights pursuant to ss. 10 and 8 of the Charter were violated then, this court will consider if admission of the evidence obtained would bring the administration of justice into disrepute.

[4]           On September 25, 2009, Constable Black and Constable Jensen were working on the downtown east side of Vancouver.  They were working in uniform and part of a team that was targeting non-addicted drug traffickers.  Constable Black and Constable Jensen’s role was to work the “identification car.”

[5]           How the identification car would work is when an undercover drug transaction occurred police observers would broadcast the description and location of the seller to the identification car who would then move in and make contact with the seller and in doing so obtain the sellers particulars.  This information would then be used on a later date to obtain a warrant for the seller’s arrest.  

[6]           In some cases the undercover officer is driven past the location where the seller and the identification officers are interacting.  This is done to confirm the identification officers had stopped the correct person.

[7]           With respect to the evidence, Cst. Jensen testified they were aware that a drug transaction had occurred and they were called to identify a suspect.  The suspect’s description was; a possible Hispanic male, dark tan, red t-shirt and a black jacket with a Puma logo.  This male was seen leaving the north lane of the unit East Hasting heading towards East Cordova Street.

[8]           The officers moved into the area and within 30 - 60 seconds of having been called, Cst. Black spotted a male, who was walking west bound in the Unit Cordova Street.  This male was subsequently identified as the accused. The officers stopped their car, got out and approached the accused who was now mid-block.

[9]           The officers began speaking with the accused and asked if he could identify himself.  The accused was cooperative and he stated his name was Robert Domingo and he provided his date of birth.

[10]        According to Cst. Jensen she asked the accused as to how she could verify that he was who he claimed to be.  The accused responded by showing a tattoo and he stated that it was in memory of a friend who had died.

[11]        While conversing with the male Cst. Jensen heard over the radio that the undercover operator had driven by and confirmed the officers were with the correct suspect.

[12]        Cst. Jensen asked the accused if he would mind walking back to the police car.  The accused was cooperative and he walked with the officers.  At some point during the interaction, Cst. Jensen asked the accused why he was in the area and he explained his parents deliver papers and that they had missed a delivery so he had just dropped off an extra paper.

[13]        When asked by the Crown for further details of the interaction, Cst. Jensen testified the entire interaction lasted a maximum of 5 minutes.  The conversation was casual and the accused was friendly, cooperative and he never asked to leave.  Cst. Jensen was of the opinion that the accused could have left at any time, that he was not in custody and that he was not being pressured to remain.

[14]        Cst. Jensen testified she does not recall what was said to get the accused to stop.  She was not sure if it was simply asking him his name or asking what he was doing in the area.

[15]        With respect to the timing of the events, Cst. Jensen agreed she may have been with the accused at the police unit for 5 minutes.  She also agrees the undercover drive by was likely at 10:36 and that she and Cst. Black could have stopped the accused at 10:28.

[16]        Cst. Black testified they received a suspect description of a Filipino, 5’10-5’11 black Puma jacket with an emblem on the chest, red t-shirt, black pin stripe pants. 

[17]        Shortly after receiving the description Cst. Black saw the accused on the corner of Columbia Street and East Cordova Street.  As Cst. Black and Cst. Jensen approached the intersection the accused crossed Columbia Street heading west on Cordova Street.  Cst. Black pulled up to the intersection and stopped.  He and Cst. Jensen exited their police car and approached the accused.

[18]        A conversation occurred that lasted 3-5minutes.  During the conversation the accused gave his name and date of birth and on his own initiative showed the officers his tattoo.  While stopped with the accused Cst. Black learned that the undercover officer had driven by and confirmed the correct person had been stopped. 

[19]        Cst. Black then asked the accused if he would be willing to accompany the police officer to his car and he said yes.  The accused walked with the officers to their police car and he waited outside while computer checks were done.  At about this time Cst. Black took digital photographs of the accused.  Cst. Black does not recall if he asked the accused’s permission prior to taking the photographs.

[20]        Cst. Black testified the accused was not being detained.  He testified the approach was low key and cordial as he wanted to see if the accused was willing to have a conversation.

[21]        Cst. Black was asked if he searched the accused for identification or had him empty his pockets.  Cst. Black did not recall if he conducted a search, however, he stated if he had he would have made a note of it.

[22]        Cst. Black does not recall how they stopped the accused, however, he testified if he said if anything it would have been along the lines of, “VPD, good morning, Vancouver police, how are you?” or “how is it going?” 

[23]        It was suggested to Cst. Black that he yelled to the accused, “hey you”, Cst. Black did not recall what was said but, he felt the approach suggested did not sound friendly.  It was then suggested that the accused turned round and Cst. Black said come here and the accused came towards him. Cst. Black disagreed. 

[24]        It was also suggested that Cst. Black had asked the accused what he was doing there.  Cst. Black disagreed.  When it was suggested to Cst. Black that he said to the accused, “what is your name?” Cst. Black responded that he asked the accused for his name but did not demand it.  Cst. Black also disagreed with the suggestion that the accused asked to leave, or that the accused asked several times why they wanted his name or why he had to come to their cruiser.

[25]        Counsel for the accused took Cst. Black to the portion of his report where he had written that the accused was allowed to proceed.  Cst. Black indicated the language was incorrect as he believed the accused was a willing participant.

[26]        The accused testified about the events in issue.  He testified he had a “clearish” memory of what happened.  He felt his memory was better than that of the police officers as he has never had anything like this happen to him. 

[27]        With respect to the events, the accused testified he was walking on the sidewalk on East Cordova Street near Columbia Street.  When he reached Columbia Street he turned to walk south.  At that point he saw a marked police car coming towards him.  The accused felt threatened so he turned around and started walking west on the south side of Cordova Street.

[28]        As the accused walked he heard someone calling “Hey, Hey.” He turned around and saw the two police officers.  The accused said to the officers, “me”.  The male officer who we now know was Cst. Black responded, “yeah you.”  The accused and the officers started walking towards each other and at some point the male officer asked the accused what he was doing.  The accused told the officer that he was delivering a newspaper for his mother and father. 

[29]        The accused was asked for his name and he gave it to the officers.  He was asked if he had any identification and he stated he did not have any.  At this point the male officer started to pat him down.  The accused then removed his jacket and showed his tattoo to the officers and asked if that helped.  The female officer, who was making notes, wrote down a description of the tattoo.  The accused then asked if that was it and the male officer said, “Can I ask you to do one more thing?”  The accused responded “what is that?”  The male officer indicated he wanted the accused to come back to their police car so they could verify his identity.  The accused indicated that he would.  By this stage, the accused estimated he had been with the officers for about five or six minutes.

[30]        The parties then walked to the police car, which by the accused’s estimation was about a half block away at Columbia Street.  Once at the police car, the female officer started entering information into the computer.  When this was occurring the accused heard a click and noticed that the male officer was taking his picture.

[31]        The accused testified when all of the information was plugged into the computer he was told, “ok, have a good day now”, on his evidence this changed to, “oh, you can go now” and then it changed again to, “you can go”.

[32]        When the events happened the accused was 19 years old.

[33]        The Crown did not cross-examine the accused on his evidence.

[34]        Counsel argues the evidence establishes that anyone in the accused’s position would have reasonably concluded they were detained.  In support, counsel points to the entirety of the circumstances including; the accused being stopped, patted down, and questioned regarding, name, date of birth and purpose, all in the context of his young age.  In support, the defence relies on; R. v. Harris 2015 BCPC 74 (CanLII), 2015 BCPC 0074, R. v. Grant, 2009 SCC 32 (CanLII), [2009] 2 S.C.R. 353.

[35]        The Crown argues the evidence does not support a finding that the accused was detained.  The Crown argues the police are entitled to stop and speak with members of the public without the action constituting detention.  In support, the Crown relies on: R. v. Mann, 2004 SCC 52 (CanLII), [2004] S.C.J. No. 49, R. v. Acosta- Medina, 2002 BCCA 33.

[36]        A police officer speaking with a member of the public and asking for their identification does not automatically become a detention as contemplated by the Charter.  The issue of police stopping individuals and asking for identification was recently discussed in R. v. Poole 2015 BCCA 464. The court appears to conclude that, the police briefly stopping a person, who has not been singled out for a focussed investigation, and obtaining their identification, without physical restraint or legal requirement to comply does not necessarily amount to a detention.

[37]        The court in Mann also discussed the concept of detention:

[38]        In determining if an individual has been psychologically detained the entire circumstances of the encounter need to be considered.  It must then be determined, if in light of the circumstances a reasonable person in the subject’s position would have felt that they were not free to go and that they had to comply with the officer’s command or direction.  If the answer is yes, then psychological detention has been made out, Grant para 31.

[39]        At paragraph 44 of Grant, the court summarized their conclusions regarding psychological detention and provides some factors to be considered.

[40]        Where the evidence between the officers and the accused conflicts, I prefer the accused’s evidence.  I make this finding for a few reasons. The accused provided evidence indicating why he recalled the events, namely, this had never happened to him before.  In contrast, there was no reason offered for the officers to specifically recall the events, in fact, their evidence contained several circumstances where they could not recall what happened. 

[41]        I also felt that Cst. Black tried to create the impression on what he would have done rather than what was done.  This occurred when he was questioned on how the accused was stopped and on the issue of whether or not he patted the accused down.

[42]        Another difficulty I have with the evidence of the officers is they both testified they asked the accused to walk back to their police car.  This makes no sense.  Only one officer needed to ask the question.  It is noteworthy that, neither officer testified about the other officer making the request. Given the proximity to one another, one would have expected each to have heard the other’s request.

[43]        Finally, the accused was not cross-examined on his version of events.  I say this acknowledging that cross-examination is not required on every distinction; however, there were some material points wherein the accused was not challenged on his recollection.

[44]        After having considered all of the evidence, I find the following: The accused  was walking west on Cordova Street when Cst. Jensen and Cst. Black singled him out for a particular investigation, namely, the drug transaction that occurred earlier.

[45]        The officers stopped the accused by coming up from behind and saying to him, “hey, hey”.  The accused asked, “me?”  He was told “yes” and then he turned and walked towards the officers who were walking towards him.  Thereafter, the accused was asked for his name, for identification, how the police could know he had properly identified himself and what he was doing in the area.  Within the context of these questions the accused was also patted down. 

[46]        While the police were dealing with the accused he stated, “is that it?” a comment that I infer as seeking permission to leave.  Rather than telling him yes, the officers transitioned to asking him to come to their police car.  I am satisfied there was a dual purpose in having the accused accompany them to their police car.  The first was to enter the accused’s name into their computer and the second was to move him to a location where Cst. Black could access a camera and take the accused’s picture.  The only reason for taking pictures of the accused was to use the photographs in the drug investigation.

[47]        I am also satisfied that when the police finished with the accused they said words indicating that he was permitted to leave.

[48]        In argument the Crown relied on R. v. Acosta - Medina 2002 BCCA 33, wherein police officers who were part of a drug operation stopped the accused for the purposes of photographing him and obtaining his identification.  The trial judge found that the accused was not detained.  This finding was upheld by the court of appeal.

[49]        I find the instant case to be distinguishable.  In Acosta- Medina, the accused did not testify, he was not patted down, nor, did he say anything to suggest he wanted to go.  In contrast, the accused testified, he was patted down, and he asked if that was it, thus, suggesting he wanted to go and could only do so once the police had indicated it was alright to leave.

[50]        My findings leave me satisfied that a reasonable person in the accused’s circumstances would conclude they had no choice but to comply with the officer’s commands and directions.  Accordingly, I am satisfied the accused was detained by the police, thus, triggering their obligation to give the accused his s. 10 (a) and (b) Charter rights.  This did not happen and, therefore, I find the accused’s Charter rights pursuant to s. 10 (a) and (b) were violated.

[51]        I also find the police breached the accused’s s. 8 Charter protected rights.  In this regard, there was no evidence offered upon which this court could conclude that the pat down search was authorized by law.

[52]        The accused applies pursuant to s. 24 (2) to exclude the evidence that was obtained by the officers.  Specifically, evidence related to his name, his tattoo and the photographs that were taken.

[53]        In Grant, the court clarified the primary considerations relevant to an application to exclude evidence.  The central consideration is whether the admission of the tainted evidence would bring the administration of justice into disrepute.  In this regard, the court was careful to note that the purpose of excluding evidence is not to punish the police, rather, it is forward looking with a focus on maintaining the integrity of and public confidence in the justice system: see para. 68.

[54]        The considerations in the analysis are:

[55]        I do not find the police conduct in the instant case to be wilful, nor, do I find their conduct to be inadvertent or minor.  I am troubled the police did not turn their minds to the issue of whether or not the accused felt obligated to answer their questions and comply with their instructions.  This is because the concept of psychological detention is not new, rather, it was discussed in R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, R. v. Mann, 2004 SCC 52 (CanLII), [2004] S.C.J., No. 49, and in Grant.  As such, it is important for the police to be mindful how their conduct might be perceived by those with whom they were dealing.

[56]        With respect to Grant, the court observed where police are uncertain as to the impact their conduct might have on an individual that it is always open to the police to advise the person they are under no obligation to answer questions and they are free to leave. 

[57]        As such and considering all of the factors, I find the police were not operating in bad faith, rather, their thought process did not consider the impact that their conduct had on the accused; moreover, I am troubled by their failure to note or consider their actions regarding the pat down search of the accused.  In all of the circumstances, I find an absence of good faith.  Accordingly, I find the state conduct was serious.

[58]        The purpose of s. 10 of the Charter is to provide detained and arrested persons with an opportunity to seek legal advice so they can make informed choices when deciding if they want to talk to the police: R v. Brydges, [1990] 1 S.C.R. 297.

[59]        The purpose of s. 8 of the Charter is to protect an individual’s privacy rights against unlawful intrusion by the state.

[60]        In the instant case, the accused was not informed of his right to speak with counsel, nor was he given an opportunity to do so.  In the result, the accused did not receive information necessary to make an informed decision.  Essentially, the breach went to the heart of the purpose of s. 10 of the Charter, hence the impact on the accused’s Charter protected interests was significant. 

[61]        The act of patting down the accused was an invasion of his privacy.  While I appreciate that, at first blush, the exterior of one’s clothing may not be a place of a heightened degree of privacy, intrusion allows physical contact with an individual’s body and disclosure of some items in their pockets.

[62]        The evidence of the photographs and the tattoo is tangible reliable evidence.  In contrast the statement of name and what the accused had been doing in the area were compelled, thus undermining the reliability of this evidence.

[63]        With respect to the import of the evidence to the Crown’s case, the court has not received any information on what other evidence may link the accused to the offence in issue and therefore, the court is not prepared to speculate on the importance of the evidence in issue.

[64]        Even if the evidence is admitted, the Crown would still have to call witnesses who can identify the accused as having been involved in the drug transaction.  As such, there is nothing to say that excluding the evidence would end the case and thereby interrupt the truth seeking function of the court.

[65]        On a balance, it seems to me that the truth seeking function would not be compromised if the evidence were excluded.

[66]        In the circumstances, I find the police conduct was serious and it had the effect of rendering the accused’s ss. 10 and 8 rights meaningless.  I also find some of the evidence obtained is of questionable reliability, and not necessarily critical to the Crown’s case.  Accordingly, it is my view the public’s confidence in the integrity of the justice system must be preserved, hence, justifying excluding the evidence in issue.

[67]        Based on this Court’s findings, the name obtained by the officers, the statement regarding the accused’s reason for being in the area, the information about the accused’s tattoo and the photographs are excluded.