Two people facing firearms and drug-trafficking charges have been found not guilty after a judge decided police violated their charter rights when arresting them. The judge rejected all physical evidence against them — essentially wiping out the Crown’s case.
Alicia Anwyll and Michael Friesen were charged with four firearms offences, including possession of a loaded prohibited or restricted firearm, and four counts of possession for the purpose of trafficking after police discovered a firearm, ammunition and a large quantity of illegal drugs in a rental car during a traffic stop at a gas station in Saanich.
The pair’s lawyers, Neil Brooks and Nick Acker, argued successfully that all items seized as a result of the traffic stop should be excluded from evidence, because the stop and subsequent arrests and searches infringed on Anwyll and Friesen’s rights to be secure against unreasonable search or seizure and not to be arbitrarily detained.
Excluding the evidence is necessary to avoid damage to the justice system that would arise if unlawfully obtained evidence found as a result of charter breaches was relied on for prosecution, B.C. Supreme Court Justice David Layton wrote in his decision.
“While the offences with which Ms. Anwyll and Mr. Friesen are charged are very serious, and exclusion of the evidence will gut the Crown case, the seriousness of an alleged offence has the potential to cut both ways,” Layton wrote, adding the justice system needs to be “beyond reproach.”
The arrests stemmed from a traffic stop at a gas station at the corner of Douglas Street and Tolmie Avenue on Nov. 5, 2022. A Saanich police officer driving by the gas station noticed a Hyundai Elantra parked just outside the car wash.
According to the ruling, the officer, identified as Const. Verot, said it was common for him to look up the licence plates of stationary vehicles in the area, because it’s an area of high property crime.
Verot looked up the Elantra’s licence plate, even though there was nothing suspicious about the vehicle, and learned it was a rental vehicle that had been mentioned in police files involving a high-level drug trafficker.
He pulled up behind the Elantra before radioing dispatch to say he was going to conduct a traffic stop.
Anwyll lowered the window when Verot approached. The officer asked for her licence and the rental agreement, but Anwyll said she did not have her licence on her. The Crown conceded Anwyll was detained while Verot asked for her name and date of birth to ask dispatch for information on her and discover she was prohibited from driving.
Anwyll argued the stop violated her right not to be arbitrarily detained.
Police may detain an individual in relation to a criminal matter if they have the lawful authority to do so, although they require reasonable grounds for a warrantless arrest.
But the Crown argued Anwyll was detained under the Motor Vehicle Act, which allows officers to stop a vehicle based on an observed infraction, or to make a random stop.
A random stop is arbitrary, but courts have held they are justified if related to “a proper highway-related purpose,” Layton wrote — for example, to check for sobriety, licences, insurance or the mechanical fitness of the vehicle.
The act stipulates that an officer requires “the driver of a motor vehicle to stop,” but Verot never observed Anwyll driving, and therefore had no lawful basis to detain her, Layton said in his decision.
Layton found that Anwyll’s subsequent arrest for driving while prohibited under the Motor Vehicle Act was also a breach of her right not to arbitrarily detained, because Verot would have had to find Anwyll driving the vehicle.
“In cross-examination, Constable Verot readily conceded that on the evidence available to him at the time of arrest it was possible that Mr. Friesen was the one driving the car,” Layton wrote.
After Anwyll’s arrest, Verot opened the Elantra’s centre console to look for her ID and rental documents and found a bag of what appeared to be methamphetamine.
Friesen was arrested for possession of a controlled substance after another officer confirmed CCTV footage showed Friesen as having also been in the vehicle. Police searching him found about $1,500 cash and a single round of live 9-millimetre ammunition.
After being placed in a police car, Friesen appeared to overdose and was revived with Naloxone before being taken to hospital.
A search of the Elantra also turned up a 9-mm Ruger handgun with a magazine containing ammunition, about 400 or 500 grams of methamphetamine, approximately 100 grams of cocaine and about 50 or 60 grams of fentanyl.
Saanich police said in a statement that a charter breach is a serious matter and the department respects the court’s ruling.
The department called Verot “an exemplary officer with an outstanding service record,” adding “Justice Layton, in his ruling, acknowledged Const. Verot’s genuine belief that he was acting within the law and recognized his sincere and credible testimony.”
Saanich police’s legal instruction team will review the decision to integrate recommendations into regular training updates to better prepare officers for similar situations in the future, it said.
Aislin Jackson, a staff lawyer at the B.C. Civil Liberties Association, said she welcomed Layton’s decision to exclude the evidence. There are cases in which police violate rights and evidence is included anyway, which is concerning, because police look to the court for direction on how they can act, she said.
“If the court is letting them get away with unconstitutional conduct, then there’s a risk that that becomes a widespread practice and ends up impacting the rights of hundreds, if not thousands, of people who haven’t done anything wrong,” she said.
The officer who conducted the arrest under the Motor Vehicle Act misunderstood the bounds of his authority, she said. Officers are expected to know the law they are enforcing, but they are not legally trained and it would be unreasonable to expect them to have a lawyer’s understanding of the law, she said.
“So inevitably, there are going to be cases in which the police make mistakes,” Jackson said. “But this level of misunderstanding and actually interfering with people’s liberty based on thinking their authority is broader than it actually is, that’s really concerning. And it’s not something that I think we should accept from our police.”
Jackson said she understands that some people may feel upset about the decision, but she encourages them to focus on demanding higher standards from police.
“This is about what the government, what the state, needs to do in order to legally lock people in a cage, and those standards need to be high,” she said.
A B.C. Supreme Court judge in Vernon recently tossed drug evidence after finding the RCMP committed “numerous and flagrant breaches” of an accused drug dealer’s charter rights.
The court threw out the drug evidence, finding police improperly used a hit-and-run investigation as a “ruse” to ensnare a man for drug trafficking, and they were helped by civil forfeiture officials who filed an “unsupportable” claim to seize the vehicle.
— With files from The Canadian Press
