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-====== R. c. Abdullah, 2024 BCSC 277 ======
-Original Source: [[https://www.bccourts.ca/jdb-txt/sc/24/02/2024BCSC0277.htm|BC Supreme Court]]
-----
-**SUPREME COURT OF BRITISH COLUMBIA**
-Citation: //R. c. Abdullah//, 2024 BCSC 277
-Date: 20240216 \\
-Docket: X084318 \\
-Registry: New Westminster
-**Rex**
-v.
-**Loukman Abdullah**
-Before the Honourable Justice Edelmann
-**Reasons for Judgment**
-Counsel for the Crown: J.-B. Deschamps; E. Rouleau
-Counsel for the Accused: S. Mandanici
-Place and Date of Hearing: New Westminster, BC \\
-September 12-15, 2023 \\
-December 6-7, 2023 \\
-January 8-9, 12, 2024
-Place and Date of Judgment: New Westminster, BC \\
-Februrary 16, 2024
-**__Introduction__**
-[1] Mr. Abdullah is charged with the possession of firearms. In the present application, he alleges infringements of his s. 8, 9 and 10 rights under the //Canadian Charter of Rights and Freedoms//. He seeks to exclude certain evidence, in particular that of the firearm which underlies the charge against him.
-[2] The relevant underlying facts relate to an RCMP stop of a vehicle which Mr. Abdullah was driving. After a brief interaction, the officers decided to conduct a cursory search. During the search of Mr. Abdullah's person, a firearm fell from his pants. Mr. Abdullah attempted to escape but was arrested shortly afterwards and transported to the police station before released on an undertaking.
-[3] Mr. Abdullah alleges that the police did not have sufficient grounds to justify the initial search. After his arrest, Mr. Abdullah claims that he was not advised of his right to immediate access to an attorney and was not able to fully exercise this right because he was not given access to an attorney who spoke French.
-[4] I will begin with the issue of the stop and arrest before turning to the issue of the right to an attorney.
-**Stop and search**
-[5] 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.
-[6] 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.
-[7] Cst. Branchaud conducted a search of the plate. He learned that the Jeep was registered 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.
-[8] 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. Cst. Hall stopped behind Mr. Abdullah's Jeep. He stated that the reason for the stop was to ensure that the driver was sober. 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. The defense accepts that the initial stop was justified in the circumstances.
-[9] 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 and a passenger Mali Jean. The officers noted that the pair both had freshly-lit cigarettes.
-[10] 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 between himself and Mr. Abdullah.
-[11] Cst. Branchaud started a conversation in French with the passenger Mr. Jean, a black man with long dreadlocks. 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 and answered several questions. Cst. Branchaud said that the answers were evasive and the two occupants of the vehicle seemed nervous.
-[12] Cst. Branchaud did not take notes regarding 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 living with his uncle in Surrey. He picked Mr. Jean up from Burnaby that evening to go to Surrey together.
-[13] 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] Cst. Branchaud said that after speaking to the occupants of the vehicle in French, he decided to search them. He does not remember whether there was a conversation between him and his partner on this subject. Cst. Branchaud does not remember whether his partner told him about the concealed object. He accepted that this would have been an important detail.
-[16] Considering the totality of the evidence, I conclude that Cst. Hall did not see the object in Mr. Abdullah's pants before initiating the search. There are two primary indicators which underlie this conclusion.
-[17] First, Cst. Hall took notes later that night. In these notes, he described having initiated the search to ensure that there were no weapons around Mr. Abdullah's belt. He noted that he immediately saw a bulge in the crotch area. He then shaked Mr. Abdullah's pants. He did not indicate in his notes that he saw the object when Mr. Abdullah while inside the vehicle, a detail which would have been important to note if it was a principal basis for the search. By saying that he immediately saw a bulge during the search, Cst. Hall's notes imply that the bulge was previously not observed.
-[18] Second, if an officer, in particular a member of the Gang Enforcement Team, observed a shape resembling a weapon in those circumstances, it is difficult to understand why a conversation with their partner would be necessary before taking safety measures. Cst. Branchaud testified directly to this effect, saying in that situation he would have immediately initiated a safety search. It is even more implausible that the officers would go to the rear of the vehicle to have a conversation after such an observation. In combination with Mr. Abdullah and Mr. Mali's testimony that the officers did go to the rear of the vehicle, the fact Cst. Hall does not remember whether they did so after his observation of the bulge puts into doubt when exactly he saw the bulge.
-[19] 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.
-**
-Rights - safety searches**
-[20] The essential elements of safety searches were recently summarized in //R. v. Tim//, 2022 SCC 12:
-<blockquote>
-This Court in //Mann// recognized that the police have a common law power to search incident to investigative detention under certain circumstances ... [A] police officer "may engage in a protective pat-down search of the detained individual" when the officer "has reasonable grounds to believe that his or her safety or that of others is at risk" (para. 45). In addition, both the investigative detention and the pat-down search "must be conducted in a reasonable manner" (para. 45; see also //R. v. Clayton//, 2007 SCC 32, [2007] 2 S.C.R. 725, at paras. 20 and 29-31)
-</blockquote>
-[21] In //R. v. Chehil//, 2013 SCC 49, the Supreme Court of Canada confirmed the required threshold for a safety search incident to detention is reasonable suspicion (for a recent discussion of this threshold in our Court of Appeal, see //R. v. Dhillon//, 2023 BCCA 38). This threshold was described in //R. v. Stairs//, 2022 SCC 11:
-<blockquote>
-By contrast, to establish reasonable suspicion, the police require a constellation of objectively discernible facts assessed against the totality of the circumstances giving rise to the suspicion of the risk. This assessment must be "fact-based, flexible, and grounded in common sense and practical, everyday experience" (//Chehil//, at para. 29). In addition, the police must have reason to suspect that the search will address the risk. However, reasonable suspicion is a lower standard than reasonable and probable grounds because it is based on a possibility rather than a probability (//Chehil//, at para. 32)
-</blockquote>
-**Application to the facts**
-[22] Cst. Hall was clear in his testimony that it was him who decided to search Mr. Abdullah. Other than the information discussed in the police vehicle before the stop, he does not suggest that Cst. Branchaud shared any other information, including any details of the French-language conversation with the occupants of the vehicle. Given my conclusion on the question of whether Cst. Hall observed the bulge in Mr. Abdullah's pants, there are only two other possible bases for a safety search: the fact that Mr. Abdullah seemed nervous and his prohibition from possessing weapons.
-[23] The Crown relies on //Dhillon// where the driver's nervous behaviour and a link between the vehicle to a previous assault were considered in the discussion on reasonable suspicion. However, I note that the circumstances observed by the police in //Dhillon//, as enumerated in paragraph 34, also included the driver's startled look when the police passed him in a high crime area, that the driver drove off rapidly in the opposite direction, the driver's confrontational and agitated behaviour which was more marked than nervous behaviour and most notably, that the driver adjusted his body to move his bag away from the officer.
-[24] I am of the view that Mr. Abdullah's prohibition from possession of weapons and nervous behaviour together are not sufficient grounds to justify a safety search. A rule saying that individuals subject to a firearm prohibition may be searched if they seem nervous would have grave repercussions. Cst. Hall testified that many people are nervous during police stops, including average citizens ("soccer moms" as he puts its). He did not distinguish Mr. Abdullah's nervous behaviour from another's nervous behaviour. A prohibition from possessing weapons may be imposed in a wide variety of circumstances, including sexual offences, which would not indicate that the individual poses a threat to police. Furthermore, these prohibitions are long-lasting, effective for a duration between ten years and life. Mr. Abdullah had been subject to this prohibition for four years without any previous indication of breach.
-[25] I therefore conclude that the search was not justified and that Mr. Abdullah's s. 8 //Charter// rights were infringed.
-**Arrest and access to a lawyer**
-[26] Mr. Abdullah fled along Fraser Highway and got stuck while attempting to traverse through dense and thorny shrubbery. He was then handcuffed by Cst. Branchaud who brought him back to the roadway. Cst. Branchaud stated that he was out-of-breath and his focus was on Mr. Jean, who had also fled and hadn't been found yet. He transferred custody of Cst. Lacitis who had arrived as backup.
-[27] Cst. Lacitis indicated that he heard a request for assistance on the radio around 11:30 PM. He responded to the call and arrived at the scene the around 11:31 PM. Cst. Branchaud asked Cst. Lacitis to place Mr. Abdullah under arrest for possession of a firearm and breach of conditions.
-[28] Thus Cst. Lacitis placed Mr. Abdullah under arrest for possession of a firearm and breach of conditions and read him his rights using the force-issued charter card provided by the RCMP. Referring to his notes, Cst. Lacitis said that he started to read Mr. Abdullah's rights at 11:39 PM and finished reading the card and warning at 11:42 PM.
-[29] Continuing to reference his notes, Cst. Lacitis testified to the specifics of his exchange with Mr. Abdullah. After reading the section of the force-issued card relateed to the right to an attorney, Cst. Lacitis stated that he asked the following questions and received the following answers:
-<blockquote>
-Do you understand? Yes.
-Do you want to call a lawyer? Yes.
-What is the lawyer's number? I don't have a lawyer.
-Do you want to call legal aid? Yes.
-</blockquote>
-[30] After reading the formal warning from the force-issued card, Cst. Lactitis((Sic.)) proceeded to ask "do you understand?" and Mr. Abdullah responded "yes". Finally, Cst. Lacitis asked whether Mr. Abdullah wanted to speak to an attorney immediately or in private at a police detachment and Mr. Abdullah responded "at the police detachment".
-[31] Cst. Branchaud stated that he was in the police vehicle during Mr. Abdullah's transportation to the police detachment in order to translate if necessary. He testified that he asked Mr. Abdullah whether he understood his rights and that Mr. Abdullah affirmed that he did.
-[32] Cst. Lacitis stated that he transported Mr. Abdullah to the RCMP detachment in Surrey where he took Mr. Abdullah's fingerprints. At 12:49 AM, he escorted Mr. Abdullah to a private room with a phone to allow him to speak to an attorney. The call concluded at 1:05 AM. Cst. Lacitis testified that he asked Mr. Abdullah whether he spoke to an attorney and Mr. Abdullah said that he did.
-[33] Mr. Abdullah does not remember the entire conversation between himself and Cst. Lacitis at the scene of arrest and denies having been read his rights that night. I prefer the testimony of Cst. Lacitis on this subject. The events in question occurred two years ago and Mr. Abdullah did not take contemporaneous notes. He had multiple other interactions with police in February 2022 aside from those already described so it is not suprising that the details of each encounter would not be particularly clear to him. Cst. Lacitis, by contrast, took detailed and contemporaneous notes during each step of the arrest. Reading of rights is a regular routine for officers of the RCMP and I am not convinced that Cst. Lacitis would have written fake notes to this level of precision and detail.
-[34] At the time of arrest, Cst. Lacitis had seven years of experience with the RCMP, during which time he interacted with many individuals with limited English language ability. He indicated that whenever a person did not speak English, he would try to determine a language that they did understand and try to get an interpreter. These actions did not seem necessary for Mr. Abdullah and Cst. Lacitis did not have any indication that Mr. Abdullah did not understand the rights that were read to him. Because Mr. Abdullah does not remember the entire conversation of that night, I accept Cst. Lacitis' observations that Mr. Abdullah seemed to understand the rights read to him in English.
-[35] Mr. Abdullah testified that the call with the attorney lasted only a minute or two and that he understood little of what the attorney said on the phone. He said that he only understood the phrase "don't talk to the police". Mr. Abdullah did not submit independent evidence on the details of the conversation with the attorney nor on the duration of the call. I prefer the testimony of Cst. Lacitis based on his contemporaneous notes which indicate that Mr. Abdullah was in the phone booth from 12:49 to 1:05 AM. According to his own testimony, Mr. Abdullah did not give any indication to police that he was not satisfied with his access to an attorney.
-[36] The defense places significant emphasis on the initial interaction with Constables Hall and Branchaud to establish Mr. Abdullah's linguistic limitations. I accept that in the circumstances, it would have been preferable to read Mr. Abdullah his rights in French, in particular because there was a Francophone officer at the scene who knew that Mr. Abdullah preferred to communicate in French. However, at the end of the day, the question before the Court is not what the preferable approach was. The only question is whether Mr. Abdullah has established an infringement of his right to an attorney or to be informed to his right to an attorney. In consideration of the totality of the circumstances, I conclude that Mr. Abdullah has not established such an infringement. He was informed of his right to an attorney by Cst. Lacitis and he gave clear indications that he understood. Because he does not remember the conversation that night, I place little weight on Mr. Abdullah's testimony that if he had been read his rights in English, he would not have understood them. In particular, he did not give any explanation for his answers to Mr. Lacitis' questions.
-[37] Mr. Abdullah has also not established that the alleged failure to provide a Francophone attorney constitutes an infringement of his right to an attorney. In contrast to the substantive language rights established for French-language criminal trials, the language rights for access to an attorney fall under the ability to fully exercise that right. Mr. Abdullah did not give any indication to Cst. Lacitis that he did not understand the attorney that he spoke to. Given his previous interactions with Mr. Abdullah, Cst. Lacitis reasonably accepted Mr. Abdullah's statement that was satisfied with his access to an attorney. It follows that Mr. Abdullah has not established an infringement of his s. 10 //Charter// rights.
-**Conclusion**
-[40] For the reasons set out above, I conclude that Mr. Abdullah has established an infringement of his rights under s. 8 of the //Charter// related to the search of his person. However, he has not established a separate infringement of his rights under s. 10. The parties have asked to appear before me to make further submissions on the application of s. 24(2) in the circumstances. I will also hear their submissions in relation to "consequential" breaches which followed the search as the Supreme Court of Canada recently discussed in //R. v. Zacharias//, 2023 SCC 30.
-"Edelmann J."