Colour me shocked that our broken firearms prohibition order system failed to stop career criminal Brodie Curtis Young from illegally obtaining a gun and ammunition for it.

That’s bad, but after RCMP constables violated Young’s Charter rights, the entire case against him was tossed out so as not to bring the administration of justice into disrepute.

The July 23, 2020, decision hinged on whether Justice Gary Weatherill believed Constable Rick Marshinew’s testimony about why he chose to pull over the vehicle in which Brodie Curtis Young was a passenger.

He didn’t.

Of greatest concern is Constable Marshinew’s evidence about the reason for the Traffic Stop. He testified that he did not know the Hyundai belonged to Mr. Roberts [a well-known career criminal] before he decided to initiate the Traffic Stop. I have concluded that he decided to stop the Hyundai either knowing or highly suspecting it was Mr. Roberts he was stopping.

Justice Weatherill ruled the traffic stop illegal and ordered all evidence seized and all statements made by the suspect were inadmissable.

Constable Rick Marshinew violated Brodie Young’s constitutional right to be free from unreasonable search and seizure as well as his right to obtain legal counsel immediately.

Because of those two Charter violations, Brodie Curtis Young walked out of court a free man – albeit a free man still, I hope, subject to his preexisting firearms prohibition order.

Backstory

Lake Country RCMP Constable Rick Marshinew is an experienced officer with almost 40 years of service.

At approximately 1:00 am on November 4, 2018, Constable Marshinew saw a white 2004 Hyundai driving northbound on Highway 97 through the centre of Winfield. He decided to conduct a random and routine traffic stop to check for licencing, insurance, and sobriety.

He turned his cruiser around and followed the Hyundai for a short distance but saw nothing of concern. He pulled over the vehicle anyway.

When he turned on the flashing lights of his RCMP cruiser the driver of the Hyundai pulled the vehicle over to the side of the road immediately.

He radioed the licence plate number to dispatch, who confirmed the vehicle was registered to Anthony Roberts, an “unsavory character” with a long criminal history who was well known to Lake Country RCMP. They knew where he lived and knew he was subject to a lifetime firearms prohibition order.

Constable Marshinew asked for backup, something that’s out of the ordinary for a “routine” traffic stop. The two other Lake Country RCMP constables on duty attended the scene within minutes.

Constable Marshinew saw no signs that Mr. Roberts, the driver, was impaired nor were there any vehicle licencing concerns.

At Constable Marshinew’s request, both occupants promptly, politely, and correctly identified themselves to him. Brodie Curtis Young was the passenger.

Then Constable Marshinew stepped over the line.

From R. v. Young, 2020 BCSC 1201:

[13]         Despite Constable Marshinew having seen nothing to indicate Mr. Roberts was impaired in any way and although he agreed he had no grounds to do so, he directed Mr. Roberts to exit the Hyundai. He did so, he testified, because both Mr. Roberts and the accused appeared to be nervous and fidgety and he wanted to separate them. Mr. Roberts complied.

[14]         At some point, either as Mr. Roberts was in the process of exiting the Hyundai or after he was already outside, Constable Marshinew caught a quick glimpse of the accused lean forward and quickly stuff something into his jacket. This movement was referred to during the voir dire as the “stuffing motion”. Constable Marshinew did not see what the object of the stuffing motion was nor indeed whether there was an object involved. Nevertheless, he immediately suspected the accused had a gun. The stuffing motion surprised and startled Constable Marshinew who immediately advised Constable Hutt that the passenger had stuffed something into his jacket.

[15]         Concerned for officer safety, especially since he already knew Mr. Roberts was known to carry weapons, Constable Marshinew reacted quickly. He turned Mr. Roberts over to Constable Hutt, ran around to the front of the Hyundai, pointed at the accused with his left hand, placed his right hand on his service weapon and, in a loud demanding voice, ordered the accused to show him his hands. The accused appeared very scared. Constable Marshinew described that his eyes were “as big as saucers”.

[16]         The accused complied with Constable Marshinew’s demand, showed him his empty hands, but then dropped his hands out of sight. This prompted Constable Marshinew to run around to the passenger door, open it, forcefully eject the accused from the Hyundai, spin him around, and pin him against the Hyundai with his hands on its roof. As he did so, a large cylindrical metal object which turned out to be a barrel-type ammunition magazine (“Barrel Magazine”) fell out of the accused’s coat onto the ground.

[17]         The accused spontaneously volunteered to Constable Marshinew, “It’s only .22 bullets”. At that point, Constable Marshinew believed there was a gun associated with the Barrel Magazine and demanded that the accused tell him where the gun was that went with it. The accused replied that it was in a black bag on the floor of the Hyundai where the accused had been sitting (“Black Bag”). The accused volunteered, “It’s only a .22. I found it”. Constable Marshinew asked the accused if he had a licence for the gun and the accused replied that he did not.

Brodie Curtis Young was arrested and charged with:

• unauthorized possession of a firearm contrary to s. 91(1) of the Code;
• possession of a firearm knowing its possession is unauthorized contrary to s. 92(1) of the Code;
• occupying a vehicle knowing the presence of a restricted, prohibited firearm contrary to s. 94(1) of the Code;
• possession of a prohibited firearm contrary to s. 95(1) of the Code; and
• possession of a firearm while prohibited, contrary to s. 117.01(1) of the Code.

Charter of Rights and Freedoms

At issue are Sections 8, 9, and 10 of the Charter of Rights and Freedoms.

8. Everyone has the right to be secure against unreasonable search or seizure.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
10. Everyone has the right on arrest or detention

• (a) to be informed promptly of the reasons therefor;
• (b) to retain and instruct counsel without delay and to be informed of that right; and
• (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

The Charter guarantees liberty will only be curtailed in accordance with principles of fundamental justice.

From R. v. Young, 2020 BCSC 1201:

[36]         Subject to the foregoing, the police are not entitled to arbitrarily stop vehicles without reasonable and probable grounds to believe the occupants are engaged in criminal activity. They cannot stop a vehicle on a hunch that the occupants might be up to something and they want to search the occupants or the vehicle: R. v. Mellenthin, [1992] 3 S.C.R. 615 at 629.

[37]         I have already stated my finding regarding the reason for the Traffic Stop. It was not a routine traffic stop as Constable Marshinew suggests.

To the contrary, I conclude that Constable Marshinew was on patrol, travelling northbound in Winfield when he saw the Hyundai travelling in the opposite direction and knew or highly suspected that it was Mr. Roberts behind the wheel. He decided to stop the Hyundai and see what Mr. Roberts was up to under the guise of a routine traffic stop. I conclude he was specifically targeting Mr. Roberts.

[38]         Accordingly, the Traffic Stop was initiated for an improper purpose and was a clear violation of the accused’s s. 9 Charter right to be free from arbitrary detention.

[39]         The complicating factor in this case is that the Traffic Stop, which I have determined was illegal, morphed into a further incident that led to the accused’s arrest. If there was no Traffic Stop, there would have been no arrest.

[..]

[48]         For the Statements to be excluded, the accused must prove on the balance of probabilities both that they were obtained by way of an infringement of a Charter right and that their admission could bring the administration of justice into disrepute.

[49]         As mentioned earlier, the Traffic Stop was illegal.

[..]

[61]         I have concluded that the Traffic Stop was an infringement of the accused’s s. 9 Charter rights.

[62]         I have also concluded that the accused’s 10(b) Charter rights were violated when he was not provided access to counsel without delay.

[..]

[67]         Respecting the first Grant factor, in my view, the s. 9 breach was on the higher end of the seriousness scale because the Traffic Stop improperly targeted Mr. Roberts who was simply driving late at night with the accused as his passenger. Constable Marshinew suspected Mr. Roberts was up to no good.

The public should be allowed to go about their business without being randomly and arbitrarily detained under the guise of a traffic stop to check for sobriety, insurance, and licencing.

In my view, what occurred was egregious and deliberate and, if allowed, could lead to serious erosion of public confidence in the justice system. There is a need for the court to disassociate itself from such behaviour.

[..]

[73]         Balancing the Grant factors and considering the totality of the events surrounding the accused’s arrest, the breach of his Charter rights as earlier discussed, it is my view that allowing the Crown to use the evidence obtained as a result would have the effect of bringing the administration of justice into disrepute.

[74]         I conclude that the administration of justice is best served by excluding the Seized Items and the Statements. While there is no debate that a case involving possession of prohibited weapons is serious and the police goal of curbing gun violence is important, this is a case where the officers overstepped. This Court must disassociate itself from this form of state intrusion and not condone it.

[75]         On balance, the importance of maintaining the protections afforded the accused by the Charter outweighs the societal interest in the matter being adjudicated on the merits.

Decision

[76]         It follows that the defence application must be allowed. I rule that the Seized Items and the Statements cannot be admitted at trial pursuant to s. 24(2) of the Charter.