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--- bc:r._c._abdullah_2024_bcsc_749 [2026/06/26 00:18] – created - external edit 127.0.0.1
+++ bc:r._c._abdullah_2024_bcsc_749 [2026/08/21 22:34] (current) – victorzhou
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 [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.
+[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 follow 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.
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 [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.
+[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 there 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.
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 [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.
+[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 to Cst. Hall, the search lasted 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__**
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 [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).
+[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 offences (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.
+[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 principal 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.
+[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 the 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.
+[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 answer 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.
+[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 of a road safety investigation 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//:
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 [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.
+[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.
 [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.
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 **__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.
+[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 targeted individuals but would also undermine the respect of the public of necessary police actions to ensure road safety. Furthermore, the officers failed to present their different motivations frankly before the court so that it could play its constitutional role.
 <blockquote>
 [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)