IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Zobair Afzali is on trial and charged with a single count of possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.

[2]           The rental vehicle which Mr. Afzali was driving was stopped by the investigating officer, Cst. Thompson, in Barriere on November 17, 2014.  The police dog, Whiskey, deployed by Cst. Thompson indicated the presence of drugs, and found inside the trunk’s rear fender wall was 1.2 kilograms of cocaine, valued at $60,000.

[3]           On this Voir Dire, Mr. Afzali argues that his rights as contained in s. 8 (unreasonable search) and s. 9 (arbitrary detention) of the Canadian Charter of Rights and Freedoms (Charter) have been violated, and he asks that the cocaine be excluded as evidence on his trial.

[4]           Constable Thompson was the only witness called on the Voir Dire.

[5]           For the following reasons, I have concluded that Mr. Afzali was arbitrarily detained and that the cocaine seized must be excluded pursuant to s. 24(2) of the Charter.

[6]           Mr. Westell, on behalf of Mr. Afzali, argues that the evidence of Cst. Thompson is manifestly unreliable, and cannot form the basis for the vehicle being stopped and Mr. Afzali detained, or a search based on reasonable suspicion.  I have been provided with two cases, R. v. Fleury, 2014 ABQB 199, a similar fact pattern, where the investigating officer’s credibility was at issue, and R. v. Nguyen, [2014] B.C.J. No. 2253, which comments on inferences to be drawn by peace officers when forming a basis for investigative detention.

[7]           The Crown’s position is that the totality of the circumstances, plus Cst. Thompson’s experience, justifies both the initial stop and the subsequent search of the motor vehicle.  The Crown has provided me with the following cases dealing with reasonable suspicion:

[8]           Constable Thompson has been a member of the RCMP since 2007.  In that year Cst. Thompson attended the Operation Pipeline Course, which provided instruction on how to detect “travelling criminals.”  In 2009, Whiskey was assigned to Cst. Thompson, along with a drug kit, which includes street drugs.  Constable Thompson has made approximately 250 seizures from motor vehicles, ranging from gram amounts up to 260 pounds of marijuana, eight kilograms of cocaine, two kilograms of methamphetamine, and 10,000 pills of fentanyl.  In 2013 Cst. Thompson became an instructor in the Operation Pipeline Course and is now a coordinator for the program, which involves reviewing drug seizure files.

[9]           On November 17, 2014 at 11:43 p.m., Mr. Afzali was driving northbound on Highway 5.  Cst. Thompson, accompanied by Whiskey, a trained drug recognition dog, was driving an unmarked police vehicle southbound.  The two vehicles passed by one another just outside the south end of the town of Barriere.

[10]        Constable Thompson described the weather as typical for November.  It was cool, the road conditions were slippery, and there was some snow in certain areas of Highway 5.

[11]        Constable Thompson became interested in the vehicle because it was travelling “just below” the speed limit, or approximately 10 km/hr under the limit.  To Cst. Thompson the vehicle stood out because most people do not travel below the speed limit.

[12]        Constable Thompson turned his police vehicle around, caught up to the vehicle, and with the assistance of his mobile data terminal, queried the vehicle’s licence plate.  Constable Thompson also turned on his in-car video system.

[13]        The video, which shows Cst. Thompson following Mr. Afzali’s vehicle and the subsequent interaction between them, was played during the Voir Dire.

[14]        The CPIC search indicated that the vehicle was registered to Van City Motors and linked to 22 (there are actually 24) recent police investigations, a majority of which involved drugs.  Constable Thompson found the number of police files very unusual.  He had never seen that many files associated with one vehicle.  The search also indicated there was no driver’s licence associated to the vehicle.

[15]        Constable Thompson, despite receiving the 24 entries, did not open or read any of the files.

[16]        Constable Thompson was also concerned about whether the vehicle was equipped with winter tires, which are required from October through April.  He described this section of the highway as a mountain pass, with further mountainous areas up Highway 5.

[17]        As the vehicles entered Barriere, Cst. Thompson activated his emergency lights, and Mr. Afzali pulled his vehicle over and stopped.  It was 11:55 p.m.

[18]        Constable Thompson testified that he stopped the vehicle to check for a driver’s licence and to determine if the vehicle had the proper winter tires.

[19]        Constable Thompson approached the vehicle from the passenger side, and through the front passenger window, which was rolled down, he saw Mr. Afzali, the only occupant, sitting in the driver’s seat.  It appeared to Cst. Thompson that Mr. Afzali had just lit a cigarette.  He told Mr. Afzali that the reason for the stop was to check for winter tires.  He asked Mr. Afzali for his driver’s licence.

[20]        When Mr. Afzali produced his driver’s licence, Cst. Thompson could see Mr. Afzali’s hand shaking and he could feel the shaking when it was exchanged.  Constable Thompson described the interior of the vehicle as “pretty much empty”, except for a case of Red Bull on the front passenger seat and some fast food wrappers in the back seat.

[21]        While Cst. Thompson was checking the tires, Mr. Afzali asked him what he was looking for. Mr. Afzali asked if he could step out of the vehicle to look, and Cst. Thompson gave him permission.

[22]        When Mr. Afzali came around the back of the car, Cst. Thompson made two observations, Mr. Afzali was still holding the cigarette, which Cst. Thompson thought was odd, and Mr. Afzali had a can of Red Bull in his other hand, which Cst. Thompson found extremely odd.  Constable Thompson said that most people, when dealing with the police, will extinguish their cigarette, and “to physically grab a Red Bull to come out of the vehicle to look at tires just seemed very odd to me…”  Constable Thompson described this as “abnormal behaviour.”

[23]        Constable Thompson explained and pointed out the winter tire logos to Mr. Afzali.  The front drive tires had the correct logos, but the rear tires did not.

[24]        Constable Thompson asked Mr. Afzali if he owned the vehicle, and was told that it was a rental.  Constable Thompson requested the rental agreement and Mr. Afzali reached through the passenger side window and retrieved it.  When Mr. Afzali handed it to him, he was still shaking.  Constable Thompson also saw that Mr. Afzali’s hands were shaking when he was smoking.

[25]        Constable Thompson acknowledged that it is common for motorists who are stopped by the police to be nervous.  In Mr. Afzali’s case, his nervousness did not abate, but escalated.  Constable Thompson found him to be extremely nervous, and said Mr. Afzali “was one of the most nervous people I’ve dealt with.”

[26]        After taking possession of the rental agreement, Cst. Thompson told Mr. Afzali to have a seat in his vehicle.  Constable Thompson returned to his vehicle, but Mr. Afzali remained outside his vehicle.

[27]        From inside his police vehicle, Cst. Thompson observed Mr. Afzali pacing back and forth, continuing to smoke, and yawning.  Constable Thompson found this very odd because of the time of night, the cool temperature, as Mr. Afzali was only wearing a long sleeve shirt.  While pacing back and forth, Mr. Afzali opened the rear passenger door, reached in and took out a sandwich, which he began to eat.  To Cst. Thompson, Mr. Afzali’s decision to eat his sandwich outside the vehicle, as opposed to inside, was unusual and odd behaviour.  After Mr. Afzali reached into the vehicle, Constable Thompson became concerned about officer safety and instructed Mr. Afzali to return to his vehicle, which he did.

[28]        From the video, approximately one minute and 40 seconds elapsed between the two instructions from Cst. Thompson to Mr. Afzali, to have a seat in his vehicle, or to put it another way, during the time Mr. Afzali paced back and forth.

[29]        Constable Thompson, using his computer database, conducted inquiries of Mr. Afzali and located two police files.  One was a Motor Vehicle Act infraction and the other indicated that Mr. Afzali was the driver in a drug trafficking matter.  The computer search also indicated that Mr. Afzali was convicted of forcible confinement and robbery in 2013.

[30]        While in his police car, Cst. Thompson telephoned his watch commander in Kamloops and determined that two winter tires on the front drive shaft complied with the winter tire regulation; he completed a violation ticket for failing to comply with the Motor Vehicle Act, s. 25(15), for the offence of failing to display an “N”; and he reviewed the rental contract and determined that the vehicle was rented in Vancouver on November 17, 2014, at approximately 5:00 p.m.  It was due back on November 19, 2014 at approximately 5:00 p.m.  Cst. Thompson reviewed the rental contract, and saw that it contained a smoking prohibition, and if violated, a fine would be imposed.

[31]        After completing the violation ticket and conducting the computer inquiries, Cst. Thompson walked to the driver’s window and told Mr. Afzali that he would be receiving a ticket for failing to display his “N” decal (the ticket was never served).

[32]        Constable Thompson told Mr. Afzali that he had other concerns and asked him to step out of his vehicle.  After Mr. Afzali stepped out, Cst. Thompson informed him that he was detaining him for investigation of possession of drugs.  Mr. Afzali was told of his Charter of Rights and police warning.  It was then November 18, 2014, at approximately 12:10 a.m.

[33]        Constable Thompson testified that his reasonable suspicion was based on the totality of seven factors:

[34]        After Mr. Afzali was handcuffed, he stumbled, said he was dizzy and collapsed against the hood of the police car and fell to the ground.  When Constable Thompson saw Mr. Afzali’s eyes roll back, he made arrangements for BC Ambulance to attend.  While on the ground, Mr. Afzali told Cst. Thompson that his ears would not pop.  Constable Thompson told Mr. Afzali to yawn, as this may help.  Mr. Afzali also said he was cold, and Cst. Thompson took off his jacket and put it over Mr. Afzali.  Mr. Afzali told Cst. Thompson that he had recently been in a motor vehicle accident.

[35]        The ambulance arrived at approximately 12:20 a.m. and Cst. Thompson removed the handcuffs in order for the paramedics to conduct an assessment of Mr. Afzali. 

[36]        At 12:27 a.m., Cst. Thompson deployed Whiskey and approximately seven minutes later, Whiskey gave a positive indication that he had detected narcotics inside the vehicle.

[37]        At 12:34 a.m., Mr. Afzali was arrested for possession of drugs and told his Charter and police warnings again.

[38]        At about the same time, the paramedics told Cst. Thompson that Mr. Afzali had an elevated heart rate, but was otherwise fine.

[39]        Constable Thompson searched the trunk and behind the passenger side fender wall found the cocaine, which was in a vacuum-sealed bag and was wrapped within a towel and two plastic bags.

[40]        After the cocaine was found, Mr. Afzali was arrested for possession of cocaine for the purpose of trafficking.  He was transported to Kamloops and released at approximately 6:00 a.m. on November 18, 2014.

[41]        In cross-examination, Cst. Thompson conceded that his first notebook entry, at 11:42 p.m., only details the vehicle licence plate query and search results.  His notes do not contain any reference to the vehicle travelling under the speed limit, a suspected impaired or prohibited driver, a driver’s licence check, or winter tires.

[42]        The next note, made at 11:55 p.m., after the vehicle was stopped, does contain a reference to the driver’s licence check and winter tires.

[43]        Constable Thompson testified that he was interested in the vehicle “based on the way he was driving.”  At the time he was thinking of an impaired or prohibited driver, and that is why he turned his police car around and followed the vehicle.

[44]        When asked directly, in cross-examination, if he was embarking on a drug investigation when he pulled the vehicle over, Cst. Thompson said, “I don’t believe so.”  He went on to say, “It was suspicious.”

[45]        Constable Thompson testified that there were other factors which led to him to stop the vehicle.  He is aware, based on his traffic enforcement experience, that prohibited drivers, will often rent vehicles in order to avoid detection.  He was also suspicious of the vehicle because it was not from a “brand name” rental agency, and it was from the lower mainland, where there is no snow.

[46]        Constable Thompson conceded that of the 24 PRIME computer entries and the two entries related to Mr. Afzali, he had no information that an arrest was made, or if any of the incidents resulted in a successful prosecution.

[47]        Constable Thompson also agreed with the cross-examination suggestion that the cigarette which Mr. Afzali was smoking, no longer became a masking agent once he stepped out of his car.  Despite this concession, Cst. Thompson quickly and repeatedly pointed out that it was a sign of nervousness.   

[48]        Constable Thompson agreed that, from the video, Mr. Afzali did not sway until after he was arrested.  There were also no problems with his balance when he squatted to look at the tires.  Constable Thompson also conceded that Mr. Afzali did not shake at any time other than when he handed Cst. Thompson his driver’s licence and registration, and when he was smoking.

[49]        Constable Thompson testified that Mr. Afzali remained outside the vehicle so as to distance himself from the cocaine, which he knew to be in the trunk, to reduce his culpability, and thereby comfort himself.  Constable Thompson referred to this as a “common fact”.  Constable Thomson also testified that Mr. Afzali’s yawning, was consistent with an escalation of his nervousness.  He was yawing in an effort to get oxygen to his brain.

[50]        The following exchange took place between Mr. Westell and Cst. Thompson, regarding smoking in the car:  

[51]        The challenge to Cst. Thompson’s evidence pertains to the articulated reason why he stopped the vehicle (road safety) and the basis for his suspicion that Mr. Afzali had drugs in his possession.

[52]        In R. v. Chehill, 2013 SCC 49 (CanLII), [2013] 3 S.C.R. 220, Madam Justice Karakatsanis said:

[53]        It is with these words in mind that I must address Cst. Thompson’s credibility.

[54]        To begin, Cst. Thompson testified that he became interested in the vehicle “based on the way he was driving.”

[55]        When I consider Cst. Thompson’s evidence that the roads were slippery, there was some snow in certain areas of the highway, it was mid-November, dark, and the temperature was cool, the vehicle was travelling “just below” the speed limit and approaching Barriere (on the video warning signs can be seen advising motorists to slow to 60 km/hr), there is nothing unusual or suspicious about the driving whatsoever.  It is more than plausible that there was a prudent driver behind the steering wheel of the vehicle.

[56]        In cross-examination Cst. Thompson mentioned, for the first time, that he considered the possibility of an impaired or prohibited driver.  In examination in chief, Cst. Thompson stated that “most people don’t travel below the speed limit.  A lot of times it’s a sign of impaired driving or fatigued driving.”  Constable Thompson did not say that he considered this in Mr. Afzali’s case.  Furthermore, he made no mention of a possible prohibited driver in examination in chief.

[57]        The notes which Cst. Thompson prepared are at odds with the sequence of events which he described in his evidence.  The first note made at 11:42 p.m., only relates to the computer searches.  It contains no reference to any Motor Vehicle Act concern.  Those concerns were only noted at 11:55 p.m., after the vehicle had been stopped.

[58]        Constable Thompson testified that he was concerned whether the vehicle was equipped with winter tires, which are a requirement in November, but he did not know the complete regulation, that winter tires are only required on the drive axle.  This suggests to me that winter tires were not a real concern to him.

[59]        Constable Thompson described this section of the highway as a mountain pass.  This is an intentional exaggeration by Cst. Thompson.  This section of Highway 5, near Barriere, is relatively flat with few hills as the highway follows the North Thompson River.

[60]        In cross-examination, Cst. Thompson emphasized that it was unusual behaviour for a driver to get out of their vehicle when dealing with the police (“drivers don’t do this”).  That might be the case in most instances, but in the present circumstance, Mr. Afzali asked if he could step out of the vehicle, and Cst. Thompson gave him permission.  It is difficult to understand why this is a factor in Cst. Thompson’s formulating a reasonable suspicion, when he gave Mr. Afzali permission to step out of his vehicle.

[61]        Constable Thompson found it extremely odd or abnormal behaviour for Mr. Afzali to step out of his car with a can of Red Bull in his hand.  This evidence from Cst. Thompson is inaccurate. From the video, it is clear that when Mr. Afzali stepped out of the vehicle, he did not have a can of Red Bull in his hand.  Approximately 45 seconds later, while standing beside Cst. Thompson on the passenger side of the vehicle, the video depicts Mr. Afzali reaching in through the front passenger side window and removing the can of Red Bull.

[62]        Throughout the course of his evidence, Cst. Thompson stressed, time and again, Mr. Afzali’s nervousness.  Not only did it not abate, as Cst. Thompson has experienced when dealing with other motorists, but it escalated to the point where Cst. Thompson concluded that Mr. Afzali was one of the most nervous people he has ever encountered.

[63]        It is my view that this conclusion reached by Cst. Thompson is a misrepresentation of the circumstances.  It is not a fair comment to say that Mr. Afzali paced back and forth.  In the short period of time Mr. Afzali was alone, outside the vehicle, he walked to the passenger rear side of the vehicle, stretched, drank from the can of Red Bull, smoked his cigarette, walked to the front driver’s side of the vehicle, back to the rear driver’s side of the vehicle, placed the can of Red Bull on the trunk, and then walked to the passenger side of the vehicle, bent over, extinguished his cigarette in the gravel, and opened the rear door and removed his sandwich.  Constable Thompson then instructed him to sit inside his vehicle.  When Mr. Afzali was returning to the car, he picked up his can of Red Bull and entered the car.  Mr. Afzali’s balance was fine, even when he squatted, and there is no indication of shaking, either when he drank from the can of Red Bull or smoked.  There is nothing objectively apparent from the video which equates to nervousness, and especially extreme nervousness. 

[64]        In addition to these difficulties in Cst. Thompson’s evidence, I found him to be extremely verbose.  As examples, when asked by Mr. Westell to explain the first PRIME entry, Cst. Thompson took it upon himself to explain all 24 entries; and then his lengthy and generally off topic answer to the simple question of whether people roll their windows down when smoking in a vehicle (paragraph 50).  Constable Thompson engaged in speculation, including, whether the rental car company was “dirty”; whether Mr. Afzali turned the heat down in the vehicle when Cst. Thompson first approached; the notion that if Mr. Afzali distanced himself from the vehicle (and the cocaine), this would somehow reduce his culpability; whether Mr. Afzali was yawning in order to get oxygen to his brain; whether Mr. Afzali’s shaking was not due to being cold (that would be a body tremor); and that prohibited drivers will often rent vehicles in order to escape detection.

[65]        One of the factors which Cst. Thompson says led him to formulate a reasonable suspicion was where Mr. Afzali was headed.  At the time, Constable Thompson had no information as to where Mr. Afzali was going.  Constable Thompson assumed Mr. Afzali was headed to Alberta. 

[66]        Throughout his evidence, Cst. Thompson continually deflected questions, and took the opportunity when answering, to argue or justify the reason(s) for stopping and detaining Mr. Afzali.  For example, Cst. Thompson properly acknowledged in cross- examination that when Mr. Afzali stepped out of the car with the cigarette, it was no longer a masking agent.  Despite this concession, Cst. Thompson went on at length about the cigarette being “more of a sign of nervous behaviour…”

[67]        For these reasons, when I consider the entirety of Cst. Thompson’s evidence, I have very little confidence in his objectivity, and therefore his evidence.  In this case, it is very difficult to rely on Cst. Thompson’s evidence relating to his observations (unless supported by independent evidence) or the suspicion he says he formed.

[68]        The evidence is clear, Cst. Thompson stopped and detained Mr. Afzali on account of road safety, or Motor Vehicle Act concerns, the presence of winter tires and a driver’s licence check.

[69]        Although Cst. Thompson was suspicious of the vehicle following the computer search, he did not stop the vehicle for the purpose of a drug investigation.

[70]        When scrutinized, Cst. Thompson’s articulated reasons for stopping and detaining Mr. Afzali do not support a traffic-related stop.  In addition to my reservations regarding Cst. Thompson’s observations, my reasons include:

[71]        The reality of the situation is as set out in Cst. Thompson’s evidence:

[72]        I find as a fact that Cst. Thompson stopped and detained Mr. Afzali on account of the computer search results.

[73]        This was not a dual purpose stop, either on the evidence of Cst. Thompson, or as discussed in Madill, Schrenk, Morris, and Fleury (paragraph 22).

[74]        It was suggested to me in argument by Mr. Varesi that the video, where Cst. Thompson can be heard talking to himself about winter tires and a driver’s licence, plus his subsequent checks are confirmation of a traffic stop.  I do not accept this argument.  In my view, this evidence is self-serving and part of Cst. Thompson’s ruse.

[75]        In summary, I find that when Cst. Thompson stopped and detained Mr. Afzali he did not have any legitimate road safety or Motor Vehicle Act concerns.  Mr. Afzali was stopped and detained by Cst. Thompson on account of his hunch of criminal activity relating to the number police files associated to the vehicle, none of which involved Mr. Afzali.

[76]        I conclude that Mr. Afzali was arbitrarily detained and his s. 9 Charter rights were violated when he was pulled over and stopped by Cst. Thompson.

[77]        Constable Thompson described in detail seven factors which form the basis of his reasonable suspicion.

[78]        Those factors must be viewed through the lens of an experienced and well-trained drug investigator.  As well, Cst. Thompson had been involved in many significant drug and drug-related seizures.  In the Fleury and Nguyen decisions, cited by Mr. Westell, I am cautioned about the need for an objective assessment and to be cautious regarding generalized suspicions.

[79]        In this case, I have certain reservations about some of the factors relied upon by Cst. Thompson.  Too much was made of Mr. Afzali smoking, both inside and outside of the vehicle.  I am not prepared to rely on Cst. Thompson’s evidence relating to Mr. Afzali’s nervousness.  At the time Cst. Thompson formed his reasonable suspicion, he did not know of Mr. Afzali’s final destination, but it is somewhat significant that he was headed north, late at night, on a short-term rental agreement.  In MacKenzie, the court gave the following direction when considering reasonable suspicion: 

[80]        When I weighed the known evidence:

[81]        It is my opinion that a reasonable person, when viewing the vehicle’s history, including the short term rental, its route and contents, plus Mr. Afzali’s criminal involvement, would have a reasonable suspicion of criminal activity.

[82]        To conclude, the evidence does not disclose a breach of Mr. Afzali’s s. 8 Charter Rights.

[83]        In R. v. Grant, 2009 SCC 32 (CanLII), 2009 S.C.C. 32, the court set out three considerations for trial courts to balance when exercising their s. 24(2) discretion:

[84]        In this case, Cst. Thompson stopped and detained Mr. Afzali on a hunch, after seeing a summary of the PRIME entries relating to the vehicle.  None of the entries involved Mr. Afzali.  Under the guise of a motor vehicle stop, Cst. Thompson detained Mr. Afzali to satisfy his curiosity regarding the vehicle.  Constable Thompson had to have known that his actions in detaining Mr. Afzali were suspect and this likely explains the nature and quality of his evidence during the Voir Dire.  The s. 9 arbitrary detention in this case is serious.  The attempted cover up by Cst. Thompson was intentional and makes the breach even more egregious.

[85]        As a result of the breach, Mr. Afzali was handcuffed at approximately 12:15 a.m. on November 18, 2014.  Very shortly after this, Mr. Afzali collapsed and Cst. Thompson called the BC Ambulance Service, who attended to Mr. Afzali.  There was nothing wrong with Mr. Afzali outside of a high heart rate.  Mr. Afzali was transported by Cst. Thompson to the Kamloops RCMP Detachment where he was released at approximately 6:00 a.m.

[86]        In Harrison, which is factually and legally similar to the case before me, the court held that a person in Mr. Afzali’s position “has every expectation of being left alone - subject, as already noted, to valid highway traffic stops.”  The court held that despite a lower expectation of privacy due to the vehicle search, the deprivation of liberty and privacy was significant.  Those words are equally applicable to Mr. Afzali and I conclude that there was a significant impact of his right not to be arbitrarily detained.

[87]        The cocaine seized by Cst. Thompson weighed 1.2 kg and had a value of $60,000.  The evidence which was found is reliable and essential to the possession aspect of the charge (the Agreed Statement of Facts, paragraph 5, contains an admission that it was possessed for the purpose of trafficking).  There is no doubt whatsoever that the evidence should be admitted at trial so that there is an adjudication on the merits.  This is in the best interests of the community.

[88]        In this case, the balancing exercise which I am required to do by s. 24(2) of the Charter is greatly influenced by the decisions in Harrison and Fleury, similar type cases.

[89]        The seriousness of the breach (an arbitrary detention, exacerbated by an intentional cover-up) and the significant impact on Mr. Afzali’s liberty strongly suggest that the evidence should be excluded.  On the other side of the scale is the reliable evidence and the community’s interest in an adjudication on the merits.

[90]        I agree with the reasoning in both Harrison and Fleury that even though an acquittal will flow from exclusion of the evidence, it is important to maintain high Charter standards.  To admit the evidence would bring the administration of justice into disrepute.

[91]        The application of Mr. Afzali is allowed and the cocaine found in the vehicle will not be admitted into evidence at this trial.