SUPREME COURT OF BRITISH COLUMBIA
Citation:R. c. Abdullah,
2024 BCSC 749
Date:
Docket: X084318
Registry: New Westminster
Reasons for Judgment - s. 24(2)
Counsel for the Crown:
E. Rouleau
M.B. Rankin, K.C.
Counsel for the Accused:
S. Mandanici
T.M. Arbogast, K.C.
Place and Date of Hearing:
Vancouver, BC
March 11, 12 and 14, 2024
Place and Date of Judgment:
Vancouver, BC
May 1, 2024
Introduction
[1] Mr. Abdullah is charged with the possession of firearms. In the present motion, he seeks the exclusion of evidence under section 24(2) of the Canadian Charter of Rights and Freedoms. In February, I issued my decision regarding certain alleged breaches. In particular, I concluded that the initial search of Mr. Abdullah during the stop was a violation of his section 8 Charter rights. The parties proceeded to make submissions on the application of section 24(2).
[2] The Supreme Court of Canada recently summarized the relevant analysis under s. 24(2) in R. v. Tim, 2022 SCC 12:
[74] Section 24(2) of the Charter is triggered where evidence is "obtained in a manner" that violates an accused's Charter rights. A s. 24(2) inquiry examines the impact of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term, based on three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused's Charter-protected interests; and (3) society's interest in the adjudication of the case on the merits. A court's task is to balance the assessments under these three lines of inquiry “to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute” (Grant, at para. 71; see also Le, at paras. 139-42).
[74] Le paragraphe 24(2) de la Charte entre en jeu lorsque des éléments de preuve ont été « obtenus dans des conditions » qui violent les droits garantis par la Charte à la personne accusée. L'analyse requise aux fins d'application du par. 24(2) examine, sur la base de trois questions, l'effet à long terme de l'utilisation d'éléments de preuve obtenus en violation de la Charte sur la confiance du public envers le système de justice. Ces trois questions sont : (1) la gravité de la conduite étatique attentatoire à la Charte; (2) l'incidence de la violation sur les intérêts de l'accusé protégés par la Charte; et (3) l'intérêt de la société à ce que l'affaire soit jugée au fond. Le rôle du tribunal consiste à mettre en balance le résultat de l'examen de chacune de ces questions en vue de « déterminer si, eu égard aux circonstances, l'utilisation d'éléments de preuve serait susceptible de déconsidérer l'administration de la justice » (Grant, par. 71; voir aussi Le, par. 139-142).
[3] I begin with a general overview of the interaction between Mr. Abdullah and the officers during the stop, search and eventual arrest. I continue with the issues most relevant to the analysis under s. 24(2).
Facts
[4] On February 25, 2022 at around 11:18 PM, Constables Hall and Branchaud, members of the Surrey Gang Enforcement Team, were on patrol in the city of Surrey in an unmarked vehicle. The Gang Enforcement Team's mission is to increase public safety by removing gang members and violent individuals from the public. They also focus on drug, human and weapon trafficking.
[5] The officers were stopped at the intersection of Old Yale Road and 132nd Street when they observed a Jeep Grand Cherokee nearly leave the roadway before turning left in front of them. Cst. Hall, who was driving, made a U-turn to folllow the vehicle. Cst. Branchaud, who was in the passenger seat, estimates that it took 20 seconds to make the U-turn and approach the rear of the vehicle to read the license plate.
[6] Cst. Branchaud conducted a search of the plate. He learned that the Jeep was registered in Quebec to Loukman Abdullah, who had been prohibited from possessing firearms since 2018 and was required to have an immobilizer installed in his vehicle. He relayed this information to Cst. Hall.
[7] Cst. Hall judged that the vehicle was exceeding the speed limit while following it but did not note the speed indicated on his own speedometer. He followed the vehicle for between four to six minutes before activating his police lights and stopping the vehicle near the intersection of Fraser Highway and 138th Street. He said that it took six minutes to effectuate the stop because he had to catch up to the vehicle then find an appropriate location for the stop.
[8] The two officers exited their vehicle. Cst. Hall approached the driver side of the Jeep and Cst. Branchaud approached the passenger side. The Jeep had two occupants. The driver Mr. Abdullah was an Arab man of average height and the passenger Mali Jean was a tall, black man with long dreadlocks. The officers noted that the pair both had freshly-lit cigarettes.
[9] Cst. Hall said that he informed the driver, in English, of the reason for the stop and asked for his driver's license and registration. Mr. Abdullah presented his driver's license with which Cst. Hall was able to confirm his identity. Cst. Hall asked a few questions of Mr. Abdullah but noted that the two had difficulty understanding each other. He does not remember the questions which he asked but recalls that the verbal interaction was not very long due to the language barrier.
[10] At the same time, Cst. Branchaud had a conversation in French with the passenger. Cst. Branchaud asked Mr. Jean why they were there and where they were going. Cst. Branchaud saw the driver look at him and then the officer asked Mr. Abdullah whether he spoke French. Mr. Abdullah responded in the affirmative.
[11] According to Cst. Branchaud, he asked some questions to determine why Mr. Abdullah was in British Columbia. He then asked other questions about their plans on the night in question. He did not take any notes on the details of the questions and answers and the Crown accepts that his memory was not very good in this area. In particular, Cst. Branchaud recalls that Mr. Abdullah said that he lived in Burnaby and was going to see a friend in Surrey. Mr. Jean and Mr. Abdullah both testified that it was Mr. Jean who had been living in Burnaby for several years. Mr. Abdullah had recently arrived from Quebec and was staying with his uncle in Surrey. He picked Mr. Jean up from Burnaby that evening to go to Surrey together to visit some friends. The officers were of the view that the answers were evasive.
[12] Cst. Branchaud said that he then told the occupants that their nervousness "made him nervous" and explained to them that they were being detained for "officer safety". He said that he had decided that a search of the occupants of the Jeep was justified because of the firearms prohibition, the evasive responses, the nervous behaviour of the occupants and the fact that they had lit cigarettes.
[13] Cst. Hall's version of events was remarkably different from that of Cst. Branchaud. Cst. Hall did not understand anything said in French but noted that during the interaction, Mr. Abdullah seemed stressed, specifically noting Mr. Abdullah's trembling hands and wavering voice. He said that he saw a bulge in Mr. Abdullah's pants near the zipper. He described the bulge as protruding and as having a sharp edge which was not natural at that location. In cross-examination, he indicated that he thought that the shape resembled a weapon.
[14] Cst. Hall said that he and Cst. Branchaud then had a discussion, during which they decided to conduct a brief safety search based on Cst. Hall's belief that their was something concealed in Mr. Abdullah's crotch area and his nervous behaviour. He does not remember where they were when they had this discussion. He does not remember whether they were behind the vehicle or perhaps inside their police vehicle. Mr. Abdullah and Mr. Jean both testified that the officers went to the rear of the vehicle after the initial interaction but before the search.
[15] Initially, Cst. Branchaud said that there was no conversation with his partner about a safety search before ordering it. When it was put to Cst. Hall that there was a conversation, he said that maybe there was a look or quick word between them. Cst. Branchaud was clear that it was him who ordered the safety search of the two individuals after the conversation in French. Cst. Branchaud did not remember if Cst. Hall told him that he saw a bulging object in Mr. Abdullah's pants. He accepts that this would have been an important detail.
[16] In my decision on the alleged breaches, I concluded that Cst. Hall had not seen the object in Mr. Abdullah's pants before conducting the search. I also concluded that the other grounds cited to justify the search were not sufficient in the circumstances.
[17] Cst. Branchaud informed the two occupants in French that they were being detained for officer safety and ordered them to exit the vehicle. They cooperated with the order. Cst. Hall conducted the search of Mr. Abdullah on the driver's side. He directed Mr. Abdullah to place his hands on the vehicle. He began the search by shaking the pants around the waist. He was able to hear and feel something fall along the pant legs. According the Cst. Hall, the search last fewer than twenty seconds. Mr. Abdullah then fled and started running along Fraser Highway. Cst. Hall shouted in English that he was under arrest ("you are under arrest") and began pursuing him. A dark-coloured pistol fell from Mr. Abdullah's pants.
State conduct
Stop and interrogation
[18] Each officer testified to independently finding necessary grounds to initiate a search of the occupants. The Crown does not rely on the grounds expressed by Cst. Branchaud to justify the search and I conclude that they were not sufficient for more or less the same reasons I came to this conclusion on Cst. Hall's grounds. Before continuing with the issue of state conduct, it seems appropriate to me to more closely examine the context of the interaction between Cst. Branchaud and the occupants of the vehicle.
[19] Given that the vehicle nearly left the roadway, I accept the parties' position that the officers had sufficient grounds to stop the Jeep as a matter of road safety.
[20] On the other hand, I am not convinced that the main reason for the stop was to conduct an inquiry into the sobriety of the driver. If the main reason for the stop was the near-incident, I find it difficult to understand why Cst. Hall didn't activate the police lights when they were approaching the vehicle to read its plate. It seems to me that if the incident were so serious that two members of the Gang Enforcement Team had to conduct an investigation into possible drunk driving, they would have stopped the vehicle immediately in place of following it for 4 to 6 minutes, during which time they conducted research and had a discussion.
[21] The fact that the officers had another reason to stop a vehicle does not necessarily render a road stop arbitrary (R. v. Kaddoura, 2009 BCCA 113). However, the police power to stop a vehicle for road safety reasons does not confer upon them the right to interrogate the occupants or the right to search the vehicle to prove the commission of other offenses (R. v. Kaddoura, 2009 BCCA 113 at para. 18 and R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 SCR 615).
[22] It seems more likely to me that it was only after they obtained the information from the computer that they decided to stop the vehicle. Mr. Abdullah had a criminal record and was subject to a firearms prohibition. At least for Cst. Branchaud, these were the principle concerns. The road stop presented them an opportunity to investigate the occupants of the vehicle and their activities. From the start of the investigation, their emphasis was not on sobriety but on the occupants' other activities.
[23] Notably, neither of the officers were interested in the presence of an immobilizer in Mr. Abdullah's vehicle. Cst. Branchaud stated that one of the goals of the stop was to verify that he was not in breach of his conditions. If they officers were not interested in the presence of an immobilizer, the only condition that Cst. Branchaud could have been referring to was the weapons prohibition.
[24] It is not clear whether Cst. Branchaud understood that the occupants of the vehicle were detained when they were being interrogated. In particular, he alleged that the passenger was free to leave or refuse to answer the questions even though he was clear that no one informed him of these rights. When an officer was outside the door of the vehicle and asking him questions, it is difficult to see how the passenger could have had the impression that he could leave.
[25] Similarly, even if Cst. Branchaud alleges that the passenger could have refused to answer the questions, he was of the view that Mr. Abdullah had to asnswer as the driver by virtue of the highway code (Motor Vehicle Act). Cst. Branchaud's perspective is again problematic. First, Cst. Branchaud said that it was not him but Cst. Hall who conducted the investigation under the highway code. Cst. Branchaud was not clear on the status of the road safety investigation when he asked his questions and did not seem very interested in it.
[26] More importantly, Cst. Branchaud's questions were not clearly relevant to a road safety investigation regardless of who was conducting it. He was interested in the activities of the two occupants of the vehicle. Questions about Mr. Abdullah's activities earlier that night, in particular whether he consumed any alcohol, would have been more relevant to a road safety investigation. By contrast, it is difficult to see the relevance of Mr. Abdullah's presence in British Columbia or his intentions later that night, in particular details about names of the people he was going to see or their addresses. These questions were clearly not asked in the context a road safety investigation and but instead were presumably in the context of the wider scope of the Gang Enforcement Team.
[27] Other than the initial grounds for the stop, Mr. Abdullah's situation is comparable to the situation described in Mellenthin:
It has been seen that as a result of the check stop the appellant was detained. The arbitrary detention was imposed as soon as he was pulled over. As a result of that detention, it can reasonably be inferred that the appellant felt compelled to respond to questions put to him by the police officer. In those circumstances it is incumbent upon the Crown to adduce evidence that the person detained had indeed made an informed consent to the search based upon an awareness of his rights to refuse to respond to the questions or to consent to the search. There is no such evidence in this case. In my view the trial judge was correct in her conclusion that the appellant felt compelled to respond to the police questions. In the circumstances it cannot be said that the search was consensual.
On a vu que le contrôle routier a entraîné la détention de l'appelant. La détention arbitraire a été imposée dès qu'il a rangé son véhicule sur le côté de la route. En raison de cette détention, on peut raisonnablement déduire que l'appelant s'est senti obligé de répondre aux questions de l'agent de police. Dans ces circonstances, il appartient au ministère public de prouver que la personne détenue a effectivement donné un consentement éclairé à la fouille tout en connaissant son droit de refuser de répondre aux questions ou de consentir à la fouille. En l'espèce, il n'y a aucune preuve en ce sens. À mon avis, le juge du procès a eu raison de conclure que l'appelant s'est senti obligé de répondre aux questions de la police. Dans les circonstances, on ne saurait dire que la fouille était consensuelle.
[28] I am conscious of the distinction highlighted by the Court of Appeal in Kaddoura between arbitrary detentions during a check stop and a detention grounded by a road safety infraction. This distinction has little impact on the analysis of limits of an interrogation during a stop.
[29] According to Cst. Branchaud, the so-called evasive answers formed the basis for the search. It is clear that Mr. Abdullah was detained during Cst. Branchaud's questioning. Cst. Branchaud did not inform him that the questions were not for the purposes of a road safety investigation and that he did not have an obligation to answer. It seems to me that this occurred by virtue of the fact that the officer himself was of the view that he could conduct a wider interrogation as soon as he found a pretext to stop the vehicle for.
[30] He clearly stated that the question of sobriety was for Cst. Hall. Cst. Branchaud did not know the state of Cst. Hall's investigation when he ordered the search of the occupants of the vehicle. Considering Cst. Branchaud's testimony in its entirety, he left the distinct impression that he was conducting a general investigation and was looking for reasons to justify a search of the occupants of the vehicle. His interactions were not those of an officer who was ensuring that a road safety investigation would proceed safely.
Cst. Hall's testimony
[31] During his testimony, Cst. Hall placed emphasis on the driver's sobriety and attempted to give the impression that this was the only reason for the stop. He said that the focal point of his investigation evolved over the course of the conversation with the occupants of the vehicle. Even if I accept that an investigation may evolve, it seems to me that Cst. Hall was not completely frank in his description of the officers' motivations. As set out above, it is not by itself problematic to have other motivations during a road safety investigation as long as their actions are limited by the law of the road safety investigation. The more troubling issue is the failure to frankly divulge their underlying motivations to the court. This is in marked contrast to the situation in Kaddoura where the officer was very transparent about the directives he received. I have already found that Cst. Hall's testimony on his observations of an object protruding from Mr. Abdullah's pants before the search were not reliable.
[32] As noted by the court in R. v. Harrison, 2009 SCC 34
[26] While not part of the Charter breach itself, this is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed, "the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority" (para. 160).
[26] Même si cet élément ne fait pas partie intégrante de la violation de la Charte, il s'agit, compte tenu de la nécessité que les tribunaux se dissocient d'un tel comportement, d'un facteur qu'il convient de prendre en compte lors de l'examen de la première question de l'analyse requise par le par. 24(2). Comme la juge Cronk l'a fait remarquer, [TRADUCTION] « l'intégrité du système judiciaire et la fonction de recherche de la vérité des tribunaux sont au cœur de l'analyse de l'admissibilité fondée sur le par. 24(2) de la Charte. Peu d'actes ne portent plus directement atteinte à ces objectifs qu'un témoignage trompeur livré en cour par une personne en situation d'autorité » (par. 160).
The search of Mr. Abdullah
[33] For the reasons set out above, I conclude that a major motivation for the stop of Mr. Abdullah's vehicle was the anti-gang mission and not solely that of a road safety investigation. This motivation informed their actions on the night in question from the start of the interaction and the nature of the questions posed by Cst. Branchaud which were contrary to the rights of the occupants of the vehicle. I am convinced that the decision to search the occupants in violation of their rights under the Charter was also informed by the same considerations. The constables approached the interaction looking for grounds to justify a search instead of trying to safely conduct a road safety investigation. Summary searches play an important role in ensuring that officers can perform their work safely. However, attempting to use the rubric of security to conduct a search for other ends undermines not only the rights of the searched individuals but also public support for the legitimate role of genuine safety searches.
Impact on Mr. Abdullah's interests
[34] As noted in R. v. Harrison, 2009 SCC 34, being stopped and searched by the police without justification has a real impact on his legitimate expectations of liberty and privacy. Even though the stop of Mr. Abdullah was initially justified, he was then subjected to an interrogation and a search of his person which were not justified. Like the court in Harrison, I conclude that deprivation of liberty and privacy which occurred during the unconstitutional interrogation and search constitutes a serious infringement, though not the most extreme, of the rights guaranteed to the appellant by the Charter.
[35] I have heard detailed submissions on the application of R. v. Zacharias, 2023 SCC 30. The parties agree that the arrest of Mr. Abdullah resulted from the unauthorized search and would be a factor to consider in the context of the impact of the breaches on his interests. The parties diverge as to the extent to which the principles in Zacharias apply. I have concluded that the issue of "consequential" breaches would not be decisive in the present file. For reasons set out in the rest of my decision, I would exclude the evidence obtained during the search while not giving significant weight to consequential breaches. Although I thank the parties for their able submissions on this subject, I conclude that it would be more appropriate for this Court to consider the issue of the application and scope of Zacharias in detail when that issue is decisive.
Interest in the adjudication of the case on the merits
[36] Possession of firearms poses a real danger in the Greater Vancouver region. There is no question that the public has a marked interest in that the matter be decided on the merits. The evidence on file is reliable and it seems that there is little question that Mr. Abdullah was in possession of the weapon in question, despite his own testimony.
Conclusion
[37] Using a stop that would otherwise be justified as pretext to interrogate and search the occupants of a vehicle is not only an attack on the rights of the targetted individuals but would also undermine the respect of the public of necessary police actions to ensure road safety. Furthemore, the officers failed to present their different motivations frankly before the court so that it could play its constitutional role.
[W]hile the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. (Harrison para.34)
[M]ême si le public a un intérêt accru à ce que les litiges soient jugés au fond lorsque l'infraction reprochée est grave, le public a aussi un intérêt vital à ce que le système de justice soit irréprochable, particulièrement lorsque l'accusé encourt de lourdes conséquences pénales. (Harrison para.34)
[38] In consideration of the facts and the factors in their entirety, I conclude that the usage of the obtained evidence would bring the administration of justice into disrepute.
"Edelmann J."