IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[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.

[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.

[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.

[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 his arrest, 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 the evidence.  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 RCMP detachment.

[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 be considered 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 police questions.  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 police officers, including in relation to his date of birth.  In my view that was unnecessary given the officers would only need his name, which I am satisfied Cst. Gibson knew on the date in question, in order to give this accused a ticket for the two alleged infractions under the Motor 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 this case.

[39]        Similarly here in this case, in R. v. Trott the officer was involved with a proactive policing in connection with persons in Saanich, 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 a knife 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 the discovery 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 for what 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 would have likely left, and in fact, he testified he would have left.  At paragraph 34 of the Trott decision, Judge Higinbotham stated as follows:

[45]        On the evidence in this case involving Mr. Harker, I am satisfied when this accused, Mr. Harker, was initially stopped he was not free to leave.  Moreover, I find he felt compelled to answer inquiries made of him, including information about the bicycles and his date 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 in excess of that duty.  Individual liberty interests are fundamental to the Canadian constitutional order.  Consequently, any intrusion upon the must not be taken lightly and, as a result, police officers do not have carte blanche to detain.  The power to detain cannot be exercised on the basis of a hunch, nor can become a de facto arrest (see paragraph 35 in R. v. Mann, (2004) 2004 SCC 52 (CanLII), 3 SCR 59).

[48]        Furthermore, it was not until cross-examination that it was brought out that the officers were making inquiries regarding the bicycles and conducted queries of the bicycles.  Cst. Gibson essentially admitted this fact yet he did not put this in his notes or his police statement, 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 right to 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 a note 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 lawyer given 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.

[53]        As is mentioned by my brother, Judge Higinbotham, in R. v.Trott at para 42:

[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:

[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:

[56]        As my brother Judge Higinbotham stated in R. v. Trott at paragraphs 53, 54, 56-59:

[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 accused Mr. Harker and investigating the bicycles in his possession, thereby violating his rights under section 8, 9, 10(a) and 10(b) of the Charter.

[59]        Cst. Gibson and Cst. McGrath failed to properly advise the accused for the reasons of detention moments after 4 p.m. on March 24, 2017, thereby violating his rights under section 10(a) of the Charter once the violation ticket was not issued to him for the bicycle infractions.

[60]        Furthermore, Cst. Gibson and Cst. McGrath failed to advise the accused at the outset of his detention of his right to retain and instruct counsel once he was not issued a violation ticket for the alleged bicycle infractions thereby violating the accused rights under section 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 on his way once it was determined the two bicycles were not reported as stolen.  They had no further business in detaining him for any period 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.  In this 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 Charter protected 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 arbitrarily detained.  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 the police 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 Madam Justice Nielson in writing for the Court, stated in paragraph 39 in part:

[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 interactions that occurred with this accused, Mr. Harker, on the facts of this case, both initially at the roadside and once back at the Nanaimo RCMP detachment.

[68]        I find that the violations in this case were at best reckless, and at worst wilful, showing a flagrant disregard for Mr. Harker’s Charter rights.  There is no excuse for non-compliance of the Charter.  Both Cst. Gibson and McGrath have an obligation to know the limits of their authority and as mentioned by Mr. Justice Sopinka in R. v. Kokesch, (1990) 3 SCR (SCC) at paragraph 46, I find is also applicable on the facts of Mr. Harker’s case:

[69]        Furthermore, this case is completely distinguishable from motor vehicle stops in the cases of R. v. Kaddoura (2009) 2009 BCCA 113 (CanLII), B.C.J. No. 526 and R. v. Madill (2005) 2005 BCSC 1564 (CanLII), B.C.J. No. 2902 relied upon by the Crown in their submissions in this case.

[70]        In R. v. Mann (2004) 2004 SCC 52 (CanLII), 3 S.C.R. 59, Mr. Justice Iacobucci, writing for the majority, at para 15 stated as follows:

[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 administration of 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 evidence obtained from the accused in this Trial.