IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Two transit police officers stopped Mr. Zanatta on the SkyTrain for a fare check in the early hours of March 2, 2023.  That stop ultimately led to his arrest for possession of a firearm.  Mr. Zanatta alleges his detention, questioning, pat down search and subsequent arrest were unlawful, and given that, he alleges the search of his backpack was also unlawful.

[2]         The events are not significantly contested.  The two officers have the surname “Chow”, although they are not related.  Constable J. Chow was the lead officer in the events, while Constable L. Chow covered for him.  I am relying mainly on the evidence of Constable J. Chow, who I will refer to as Constable Chow.  I found that Constable L. Chow’s evidence was less reliable for the following reasons:

[3]         In addition, it was Constable Chow’s decision to detain and to conduct an arrest, and Constable L. Chow did not play a decisive part in those actions.  To the extent that there are inconsistencies in their evidence, I rely on Constable Chow’s version of the events and of what Mr. Zanatta said.

[4]         On March 2, 2023, at approximately 1:19 am, the officers approached Mr. Zanatta and advised they were checking fares.  Mr. Zanatta is alleged to have said something to the effect of “Just write me the ticket, I don’t have a fare”.  He added that he had to get going or was in a hurry.  Constable Chow said he asked Mr. Zanatta if he had any curfew or restrictions, like from the court, that he had to abide by, and Mr. Zanatta said “Yeah”.

[5]         Constable Chow then told Mr. Zanatta that he had to check that, and was detaining Mr. Zanatta for breaching conditions.  He asked Mr. Zanatta for his name and date of birth so that he could verify the conditions.  The officer said he told Mr. Zanatta that if the breaches were minor, he would issue a ticket and let him go. He would then email Mr. Zanatta’s probation officer.  Mr. Zanatta was cooperative. These interactions took place within a few seconds.

[6]         Constable Chow did not give Mr. Zanatta a warning as required by s. 10(b) of the Charter after detaining him.  The Constable testified that was because of the following:

[7]         The officer added that he was also concerned about the possibility of Mr. Zanatta reacting physically, although I note his concerns arose from the conversation he had with Mr. Zanatta after he announced he was detaining him.

[8]         Constable Chow continued to question Mr. Zanatta.  Up until this point, Mr. Zanatta’s responses had been very brief.  Constable Chow then asked Mr. Zanatta to what charge his conditions related.  Mr. Zanatta began to explain the context of the charge.  The Constable cut him off and asked what it was Mr. Zanatta was alleged to have done.  The officer told the court he wanted to know the context, although I note he was not prepared to hear the context from Mr. Zanatta.  

[9]         Constable Chow asked Mr. Zanatta what the “alleged charge” was.  After hesitating, Mr. Zanatta disclosed the charge was aggravated assault for allegedly stabbing someone.  Constable Chow determined that he wanted to see whether Mr. Zanatta was under other conditions, as in his experience, the more serious the charge, the more restrictive the conditions would be.  He said he determined they would get off at the next station to confirm Mr. Zanatta’s conditions, and if he was violating any of them.  

[10]      When asked why the officer did not do a pat down search for officer safety while they were on the train, Constable Chan responded:

[11]      The officers and Mr. Zanatta departed the train at the Holdom station platform, having entered the train two stops earlier at Rupert.  After asking Mr. Zanatta to put his backpack against the wall of the station Constable Chow told Mr. Zanatta he would do a pat down to ensure he had no weapons.  Constable Chow testified he was concerned about officer safety because of the nature of the platform – that there is no railing, and there is limited space.

[12]      The Constable determined that Mr. Zanatta had some keys.  He removed and inspected a vaping device before returning it to his pocket.  He felt something soft in another pocket area but could not locate it.  Mr. Zanatta reached into an inside pocket and pulled out an item of clothing, shook it out for the officer, and then returned it to the pocket.

[13]      Constable Chow then told Mr. Zanatta to stay where he was while the Constable grabbed his backpack, which was three to four meters away.  He testified that he was going to ask for consent to search it when Mr. Zanatta said, “Please don’t search my bag, sir”.  The officer said he asked, “Why?”, and if Mr. Zanatta had knives in the bag.  Mr. Zanatta responded, “No, a gun”.  

[14]      The Constable then arrested Mr. Zanatta at 1:28 am for “whatever firearm was in the bag”.  Mr. Zanatta was cooperative throughout.  He sat on a bench and Constable Chow read the warning from the Charter card and informed Mr. Zanatta that he was under arrest for possession of a firearm and for breaching conditions, although there was no evidence that he had by then confirmed that Mr. Zanatta had conditions, or what they were.  

[15]      When asked, Mr. Zanatta confirmed that he wished to speak with a lawyer.  He had the lawyer’s name and phone number.  The officers elected to remain on the platform until their transport arrived outside the station because they said it was warmer there than on the street.  Constable Chow testified that they could not accommodate Mr. Zanatta’s wish to speak with counsel until they got him to the station.

[16]      Following the arrest, Constable L. Chow brought the bag over and confirmed that a firearm was in the bag.

[17]      It is unclear from the evidence at which point the officers confirmed that Mr. Zanatta was under conditions, including no firearms.  Constable Chow could not recall if it was before or after the arrest.

[18]      The Issues to be decided are as follows:

[19]      It is clear that Constable Chow detained Mr. Zanatta immediately after he responded positively to the question of whether he had any court-imposed conditions such as a curfew.  Constable Chow acknowledged that at this point he commenced an investigation.

[20]      However, the officer informed the court that he was not sure that Mr. Zanatta had conditions, because, as he said, “lots of people say that and don’t”.  He volunteered that while curfews are often in effect by 11 pm, sometimes they have exceptions for work obligations, so the fact that it was after 1 am did not give him reason to be suspicious of a curfew breach.  He testified that he needed to confirm that Mr. Zanatta was on conditions; that they included a curfew; and that he was in breach of that condition, or of any others.  He admitted that he detained Mr. Zanatta to figure out “what was going on” and to “figure out what conditions he is on”.

[21]      The test for the common law power of investigative detention was confirmed by the Supreme Court of Canada in R. v. Mann, 2004 SCC 52, and has not changed since (paras. 33 – 35).  The test, which includes both subjective and objective components, is set out at para. 34:

[22]      The Crown submits that Constable Chow had an objective basis for a reasonable suspicion, on the facts available to the officers at the time, and consequently, the detention cannot be found to be arbitrary, citing R. v. Clayton, 2007 SCC 32 at para. 20.

[23]      Counsel for Mr. Zanatta argues that the detention was unlawful because Constable Chow testified that he did not conclude that Mr. Zanatta was breaching his curfew.  While the late hour might be an objectively reasonable basis to assume a curfew breach, in this case it does not apply because Constable Chow testified, that he “had no idea if (Mr. Zanatta) was breaching a condition”.  He further admitted that he was detaining Mr. Zanatta to determine whether any conditions existed and then make a determination as to whether he was in breach of any conditions.

[24]      As defense counsel submits, police officers are not authorized to detain persons to check compliance with conditions unless there first exists a reasonable suspicion that they are breaching the condition.  That is particularly so in such a calm, non-confrontational situation as these officers encountered Mr. Zanatta.  

[25]      Counsel for Mr. Zanatta acknowledged that these officers did have the right to escort Mr. Zanatta off the train at the next stop and issue him a ticket.  After all, Mr. Zanatta was riding a train without a fare and the officers testified that it is their common practise to do so.  Counsel noted they had Mr. Zanatta’s name and date of birth and could have checked for conditions at that time.  Upon determining that he was in breach, they could have then arrested him for the breach, warned him and could have searched his backpack, lawfully.

[26]      I find that on Constable Chow’s evidence, the officers did not have the grounds to interfere with Mr. Zanatta’s liberty because:

[27]      Given this, I find that the detention was unlawful and breached Mr. Zanatta’s s. 9 Charter rights not to be arbitrarily detained.

[28]      Section 10(b) of the Charter guarantees an individual the right to retain and instruct counsel “without delay” and to be informed of that right.  As Mr. Jessop submits, the purpose and core mandate of s. 10(b) is to protect the privilege against self-incrimination, which is a cornerstone of the criminal justice system, citing R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236 at para. 39, which cites R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at pp. 176 – 177:

[29]      R. v. Prosper goes on to quote R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, at para. 206, which noted, “This is precisely the reason that there is a duty on the police to cease questioning the detainee until he has had a reasonable opportunity to retain and instruct counsel”.

[30]      In the case of R. v. Suberu, 2009 SCC 33, the court defines the informational and implementational duties on the police.  First to inform the detainee of their right to retain and instruct counsel “without delay”.  The implementational component imposes a requirement that police provide the detainee with a reasonable opportunity to retain and instruct counsel. “This obligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so” (para. 38, Suberu).

[31]      The court went on to define the meaning of “without delay”.  They determined that it means immediately.  They note that the purpose of s. 10(b) is “to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy.  Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination” (para. 40, Suberu).  That vulnerability arises at the outset of a detention; therefore, it is “only logical that the phrase “without delay” must be interpreted as “immediately””. (para. 41, Suberu).

[32]      The Crown submits that the failure to warn on the SkyTrain was reasonable, given the unsteady motion of the train, difficulty hearing, and logistical challenges in handling the Charter card, writing notes of responses, as well as the safety concerns the officers raised.  The Crown acknowledges that the officers breached their obligation once they had Mr. Zanatta off the train on the platform.

[33]      I do not accept that the officers were justified in failing to inform Mr. Zanatta of his right to retain and instruct counsel while still on the SkyTrain for the following reasons:

[34]      The breaches continued on the platform.  The video depicts 38 seconds in which it is apparent that Mr. Zanatta and Constable Chow are conversing, although Constable Chow is outside the scope of the video.  This is much longer than required for the exchange, to which Constable Chow testified. It resulted in Mr. Zanatta’s admission he had a gun in his backpack.

[35]      I find that the officers failed to inform Mr. Zanatta of his rights at the first opportunity.  They further breached his rights by continuing to ask him questions, all contrary to s. 10(b) of the Charter.

[36]      When Constable Chow finally did issue the Charter warning, the Crown admits that they did not facilitate Mr. Zanatta’s request for counsel, immediately.  Instead, they elected to remain on the platform for another 15 minutes because it was warmer there.  In that time, Constable Chow testified that Mr. Zanatta talked about the circumstances of his arrest, his family, his upbringing and the circumstances of his life leading him into criminal activity, all before having had the chance to speak to counsel.

[37]      On the face of it, the search conducted on the platform, appears to be for the purpose of officer safety.  However, in this case Mr. Jessop submits there was much more to the search than a mere pat down for weapons.  Constable Chow went into each of Mr. Zanatta’s pockets and searched them thoroughly.  He removed keys, a vape device, and a soft piece of clothing.  The officer admitted in cross-examination that he was searching to find evidence of further breaches.  Constable Chow’s notes confirm this, as they state “Cst. Chow advised Zanatta that he was detained for breaching his conditions and would be searched to confirm no further breaches”.

[38]      The scope of police powers to search was set out in R. v. Mann, 2004 SCC 52, which confirms the power to conduct a pat-down search incident to an investigative detention.  The decision to search must be reasonably necessary in light of the totality of the circumstances and cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.  The court goes on to note at para. 43, quoting Justice L’Heureux-Dube:

[39]      It appears in this case that the primary purpose of the personal search of Mr. Zanatta was to find evidence of breaches.  This explains the level of detail in searching the contents of all of Mr. Zanatta’s pockets, including having him shake out a piece of clothing in his pocket.  I find that this was not merely a pat down to determine if Mr. Zanatta had readily available weapons that might put the officers at risk.

[40]      Counsel for Mr. Zanatta submits that likewise, the proposed search of the backpack was for the sole purpose of looking for evidence, prior to any Charter warning, as there was no concern for officer safety motivating Constable Chow when he picked up the backpack and alleges he was about to ask for permission to search it.  The pack was safely in the police officer’s possession at the time.  Even so, Constable Chow took the opportunity to ask a further un-warned question, which led to the disclosure about the gun.

[41]      All of this was done, as the officer acknowledged, when there was nothing in Mr. Zanatta’s demeanour that gave Constable Chow a safety concern, as Mr. Zanatta was polite and cooperative, throughout several minutes of conversation on the train, and later on the platform.

[42]      The Crown submits that I should take into consideration that the object of the officers’ search was a handgun, which poses a heightened risk to the safety of the community.  Counsel argues that a proper assessment of reasonable and probable grounds should not focus on the range of questions an officer asked or how much more they could have done in conducting their investigation.  Instead, counsel submits the Courts should assess whether the officer honestly believed in the commission of a criminal offence, and whether the information known to the officer at the time of arrest provided a reasonable basis for that belief, citing R. v. Notaro, 2018 ONCA 449 at para. 34.

[43]      While there are indubitably cases in which such an analyses applies, I find this is not one of those, as it would result in a finding that the end justifies the means.  The Ontario Court of Appeal in R. v. Plummer, 2011 ONCA at para. 76, specifically cautions against such an approach, even where the subject of the search is a weapon.  In any event, in this case, I find that the officer embarked on questioning Mr. Zanatta when he admitted he did not honestly believe an offence was being committed, and he did not have a reasonable basis to believe an offense was being committed.

[44]      In the result, I find that the arrest was the result of the following:

[45]      In the result, I find the arrest to be unlawful.  Consequently, the search of the backpack incident to the arrest was also a breach of Mr. Zanatta’s s. 8 right to be secure against unreasonable search or seizure.