R. v. Nour-Eldin

2022 BCSC 730 R. v. Nour-Eldin IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Nour-Eldin, 2022 BCSC 730 Date: 20220505 Docket: 31564 Registry: Vancouver Regina v. Meaz Abdelrahma Nour-Eldin Corrected Judgment: The text of the judgment was corrected at paragraph 150 on January 24, 2023. Before: The Honourable Justice Fitzpatrick Reasons for Judgment (Voir Dire #1) Counsel for Crown: D. Singhal Counsel for Accused: M.J. Swartz Place and Date of Trial: Vancouver, B.C. September 27-28, 2021 and February 16-17, 2022 Place and Date of Judgment: Vancouver, B.C. May 5, 2022 TABLE OF CONTENTS INTRODUCTION.. 3 THE CROWN'S EVIDENCE.. 3 MR. NOUR-ELDIN'S EVIDENCE.. 11 DISCUSSION AND ANALYSIS.. 14 Was the Traffic Stop Lawful?. 14 Was the Accused Detained as a result of the Traffic Stop and/or being Questioned or did this result in a illegal search and seizure of the Accused?. 18 Was the Accused Detained when Asked to Exit the Nissan for a Pat-Down Search, and if so, was the Detention Arbitrary?. 27 Were the Accused's s. 8 Rights Violated in relation to the M&M Container of Drugs? 31 CONCLUSIONS.. 36 INTRODUCTION [1] The accused, Meaz Abdelrahma Nour-Eldin, is charged with three counts: that on June 13, 2017, he was guilty of possession of heroin and fentanyl, cocaine, and methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA]. He has plead not guilty. [2] This voir dire was held to determine the admissibility of certain evidence (drugs and contents of a cell phone) found by the police arising from events following a traffic stop of a vehicle in which Mr. Nour-Eldin was a passenger. [3] Mr. Nour-Eldin advances a number of arguments under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [Charter]. Generally, he argues that the traffic stop was unlawful, that the officer's questioning of him during the traffic stop was unlawful and that he was arbitrarily detained during the traffic stop. He also claims that his Charter rights were violated in relation to the search of a container containing the drugs. On any of these grounds, Mr. Nour-Eldin says that the evidence found by the police should be found inadmissible at trial. [4] The Crown's evidence consisted of the testimony of Cst. Brandon Lapre and Cst. Griffin Gillan, as supplemented by certain agreed facts, photographs and a map of the area near the traffic stop. Mr. Nour-Eldin testified on his own behalf. THE CROWN'S EVIDENCE [5] In June 2017, Cst. Lapre was an officer with the West Vancouver Police Department ("WVPD") and he had been so for about four years, after having previously served with the RCMP for three years. [6] In the early hours of June 13, 2017, Cst. Lapre was on a night shift patrol with a new recruit, Cst. Crystal Nikolai. Constable Nikolai had been a trainee constable for only two months. Both officers were in uniform and travelling in a fully marked police SUV. [7] Shortly before 12:19 a.m., the officers were patrolling the east zone of West Vancouver, just west of Capilano Road in North Vancouver, BC. They were driving south along Capilano Road in order to access the on-ramp to Highway #1 that would lead west into West Vancouver. While stopped in the turning lane, a vehicle - a 2002 grey Nissan Altima (the "Nissan") - passed in front of them coming from the off-ramp of Highway #1 and which then turned south onto Capilano Road. Constable Lapre saw that the driver of the Nissan was a female; he was not sure if he observed any person in the front passenger seat. [8] Constable Lapre's interest in the Nissan was piqued since it was the only vehicle on the road in late hours of the evening. He asked Cst. Nikolai to run the Nissan's license plate on the PRIME database. She did so and a link was displayed. Constable Lapre looked at laptop to see the results of the search. He saw numerous entries; one he recalls specifically indicated that the Nissan was linked to the drug trade in that the registered owner, a 50-year old male, was suspected of registering vehicles under his name for use by others in the drug trade. [9] Constable Lapre decided to follow the Nissan. He turned into the southbound lane on Capilano Road. His interest was further piqued when he could not see the Nissan continuing to drive southbound along Capilano Road, toward Marine Drive. He knew that the Nissan did not have enough time to have reached Marine Drive during the time he could not see the vehicle. As a result, Cst. Lapre concluded that the Nissan had accelerated quickly after its turn onto Capilano Road and turned off the road during the brief time when he had temporarily lost sight of it. Constable Lapre surmised that the driver of the Nissan was trying to evade the police. [10] Constable Lapre was familiar with the area. He quickly determined that Fullerton Avenue was the nearest right-hand turn west of Capilano Road. He did not see the Nissan on Fullerton Avenue so he thought it may have made some quick turns onto a nearby side street. The officers then turned onto Sandown Place, but they did not see the Nissan. The officers continued along Sandown Place and, still not spotting the Nissan, they turned into another side street, McLallen Court, which ends in a dark cul-de-sac after a sharp turn. This neighbourhood, including Sandown Place and McLallen Court, is populated by single family homes. [11] Around 12:21 a.m., the officers spotted the Nissan. The vehicle was parked at the end of the cul-de-sac between two driveways. The vehicle lights were turned off. Constable Lapre stopped the police vehicle in front of the Nissan with its lights flashing and the headlights shining onto the Nissan. [12] Constable Lapre states that his intention was to conduct a traffic stop to make sure the driver was licensed. He also states that he wanted to determine why the driver of the Nissan was driving so quickly down Capilano Road such that she ended up in a random cul-de-sac in the middle of the night. He thought there could be reasons for these unusual actions, such as issues of sobriety, lack of a license or someone being in distress. [13] From this time forward, the various events are captured by the police vehicle dashcam video and audio inside the vehicle. [14] When the police vehicle pulled up, the driver of the Nissan (Tracy Nordwall) was seen opening the driver's door. She was seen fumbling around the area of her feet. Constable Lapre considered that, if there was a reason for the driver of the Nissan to be in this quiet residential neighbourhood, she would have parked and went into a residence. Constable Lapre formed the view that this was also unusual. He thought Ms. Nordwall might also might just be looking for her purse in order to produce the usual documentation. Constable Lapre also wanted to make sure there were no weapons. [15] Constable Lapre's intention was to approach the Nissan to investigate Ms. Nordwall's identity and ask for the usual driver's license and insurance documentation. Also, Cst. Lapre wanted to investigate whether the driver had the registered owner's permission to be driving the Nissan. [16] Constable Nikolai called the WVPD dispatch to report the traffic stop. Constable Gillan was sent to cover the officers on scene. Constable Gillan is also a police dog handler and his dog, Jake, was with him that night. [17] After Cst. Lapre approached the driver's side of the Nissan, he noticed a passenger in the front seat. This was Mr. Nour-Eldin, who was reclined in the front passenger seat. Constable Lapre noted the age disparity between the occupants in that the driver (Ms. Nordwall) was a female in her 40s; Mr. Nour-Eldin was a male in his 20s. [18] In Cst. Lapre's mind, "something didn't fit" in the circumstances including: a vehicle (the Nissan) linked to the drug trade; the Nissan not being driven by the owner; the Nissan being driven very late at night; the driver of the Nissan seemingly trying to evade the police; the Nissan parked in a quiet residential cul-de-sac with its lights off; and, the occupants of the Nissan with a significant age disparity. Constable Lapre states that, in his experience, drug traffickers often work in pairs and drug trafficking can involve weapons. [19] Constable Lapre describes his later questioning of the occupants of the Nissan as calm and friendly. Constable Lapre first asked Ms. Nordwall for her driver's license and insurance documentation. Next, Cst. Lapre asked Ms. Nordwall and Mr. Nour-Eldin if they knew who owned the Nissan, relating to the question as to whether or not the Nissan was stolen. Ms. Nordwall said "Niko" but was unable to say his full name; Mr. Nour-Eldin gave the same answer. Constable Lapre acknowledges that these questions were toward the issue as to whether the Nissan was stolen or not and the answers caused him some concern. [20] Ms. Nordwall retrieved the insurance documents from the glove box. However, she only produced a BC Services card, not a driver's license. [21] The later interactions between Cst. Lapre and Mr. Nour-Eldin were very brief--a matter of a few minutes. Constable Lapre states that he asked questions of the accused because of "many little things" that had occurred and to "make sure we are all safe". He stated that he needed to see if the officers were safe with him. [22] At around 12:23 a.m., after placing Ms. Nordwall's documentation on the Nissan's roof, Cst. Lapre retrieved his notepad. He also then directed Ms. Nordwall to exit the vehicle. He directed her toward Cst. Nikolai who had also by then approached the Nissan. [23] Constable Lapre describes a series of questions and answers from Mr. Nour-Eldin, while the officer was still standing at the driver's side of the Nissan, as follows: Cst. Lapre: "do you have ID?"; Mr. Nour-Eldin: "no, but I'll tell you my name and date of birth" (at which time, Cst. Lapre pulled out his notebook); Cst. Lapre: "have you been in trouble with the police before?"; Mr. Nour-Eldin: "I am under conditions for robbery in Surrey, BC". As that occurred, or immediately afterward, Cst. Lapre began writing Mr. Nour-Eldin's details in his notebook while he was standing at the driver's door. [24] After Ms. Nordwall's failure to produce a licence, Cst. Lapre formed the view that he did not want to deal with Ms. Nordwall such that he had his back to Mr. Nour-Eldin. He cites officer safety concerns, both in respect of himself and his new recruit, Cst. Nikolai. In addition, Cst. Lapre describes that he could not see the area to the right side of Mr. Nour-Eldin while he was sitting in the passenger seat, something that caused him to be concerned about hidden weapons. [25] Following the accused's response, Cst. Lapre became more concerned because he was familiar with the offence of robbery in that it is violent and usually involves weapons. As a result, his intention at that time was to come around to the passenger side of the Nissan and have Mr. Nour-Eldin exit the Nissan and stand so that he could pat him down for weapons. He considered that, afterwards, Mr. Nour-Eldin could stand and watch the police deal with Ms. Nordwall for failure to produce a valid driver's license if he wished; alternatively, if he was not a threat, Mr. Nour-Eldin could return to sit in the Nissan or stand to the side of the Nissan. [26] Constable Lapre intended to let Cst. Nikolai deal with Ms. Nordwall, which he would supervise. In addition, his intention was to run Mr. Nour-Eldin's details through the police database to check on the conditions that Mr. Nour-Eldin had told him about. [27] Constable Lapre has done countless traffic stops. He describes that, many times, people he interacts with refuse to answer his questions. At times, he is asked by persons whom he has questioned whether they have to answer and he responds, "no". He also states that there have been times when he has been dealing with a driver and the passenger exits the vehicle and leaves. On those occasions, if there are no officer safety concerns, Cst. Lapre considers the passenger free to do as they wish. [28] At 12:24 a.m., with his notepad in hand, Cst. Lapre walked around the back of the Nissan and he went up to the passenger side of the Nissan and opened the door. Constable Lapre again confirmed with Mr. Nour-Eldin that he was "on conditions". Constable Lapre asked Mr. Nour-Eldin to "pop out" for a pat down for officer safety. [29] Mr. Nour-Eldin exited the Nissan and, before the pat down, Mr. Nour-Eldin began to turn around. Almost immediately, Mr. Nour-Eldin turned away from Cst. Lapre, stating something to the effect that he "can't since he was breaching his curfew". Mr. Nour-Eldin began quickly running from the scene. [30] The elapsed time from Cst. Lapre's initial interaction with Ms. Nordwall to when Mr. Nour-Eldin fled the scene was approximately three minutes. [31] Constable Lapre states that, if Mr. Nour-Eldin had simply run away, he would not have done anything further with Mr. Nour-Eldin, even though he had been advised of the "conditions". However, given what Mr. Nour-Eldin said to him--that he was in breach of a curfew--Cst. Lapre immediately formed the view that Mr. Nour-Eldin was arrestable for that breach. [32] Constable Lapre gave chase as Mr. Nour-Eldin sprinted down McLallen Court, yelling "stop, police". Constable Nikolai followed. [33] As Mr. Nour-Eldin was sprinting away from the officers, Cst. Gillan and Jake arrived at McLallen Court. Constable Gillan saw Mr. Nour-Eldin running with Cst. Lapre in pursuit. Constable Lapre stopped running and waited for Cst. Gillan to deploy Jake in the chase. Constable Nikolai returned to the police vehicle and the Nissan to deal with Ms. Nordwall. [34] Constables Lapre and Gillan and Jake continued their pursuit of Mr. Nour-Eldin. They followed a fairly circuitous route through nearby houses and backyards. Almost immediately, between two houses on McLallen Court, Jake found a ball cap that Cst. Lapre identified as belonging to Mr. Nour-Eldin. [35] Jake, followed by the officers, continued to follow a scent. The officers were yelling out to Mr. Nour-Eldin to stop, that he was under arrest and that Jake was on his trail. They heard crashing in nearby bushes. Finally, Mr. Nour-Eldin yelled out that he was giving up since he did not wish to be bitten by Jake. The officers saw Mr. Nour-Eldin on a lit porch at a nearby residence on Sandown Place. [36] Constable Lapre arrested Mr. Nour-Eldin for the breach of curfew. After a pat-down search, Mr. Nour-Eldin was found to be in possession of a cell phone and cash. Constable Lapre inspected the cell phone and observed various text messages asking for "100, 80, 70, etc." Constable Lapre verbally advised Mr. Nour-Eldin of his Charter rights; he replied that he wanted to speak to a lawyer. [37] Around 12:33 a.m., the officers walked Mr. Nour-Eldin back to McLallen Court. Constable Nikolai again told Mr. Nour-Eldin that he was being arrested for the breach of a court order and she read him his Charter rights from a card. Again, at 12:34 a.m., Mr. Nour-Eldin said he wished to speak to counsel. [38] Constable Lapre then returned to deal with Ms. Nordwall and the Nissan. When he approached the vehicle, he smelled burnt marihuana. He formed the view that Ms. Nordwall was in possession of marihuana and he verbally advised of her Charter rights. Ms. Nordwall indicated she did not want a lawyer and she consented to a search of her purse. Constable Lapre found a small amount of marihuana--5 grams--which he seized. [39] Around 12:47 a.m., Mr. Nour-Eldin was arrested and re-Chartered for marihuana possession. Again, Mr. Nour-Eldin said he wished to speak to counsel. At 1:04 a.m., the officers departed the scene with Mr. Nour-Eldin. Ms. Nordwall apparently made her own arrangements to leave the scene. The officers had also arranged to tow the Nissan back to the WVPD detachment. [40] While Ms. Nordwall, Mr. Nour-Eldin and the Nissan were being addressed by Csts. Lapre and Nikolai, Cst. Gillan and Jake conducted a search for evidence in the area surrounding the Sundown Place residence where Mr. Nour-Eldin had been found. Jake was instructed to seek out "fresh" human scent. About 15 feet further from where Mr. Nour-Eldin's hat was found (between two houses on McLallen Court where Mr. Nour-Eldin had ran), Jake was observed with a small tubular plastic container for M&M candies. When Cst. Gillan opened the container, he saw a large number (40) of small different coloured baggies, consistent with the retail packaging of illicit drugs. Constable Gillan updated Csts. Lapre and Nikolai on his findings. [41] At 1:07 p.m., while returning to the detachment, Cst. Nikolai arrested Mr. Nour-Eldin for trafficking in drugs and advised him of his Charter rights. Again, he advised that he wanted to speak to a lawyer. At 1:09 a.m., the officers arrived back at the WVPD detachment with Mr. Nour-Eldin and at 1:31 a.m., Mr. Nour-Eldin spoke to counsel in private. [42] Later examination and testing of the 40 baggies found in the M&M container revealed: two orange baggies of methamphetamine (weighing 0.4 grams); 12 black baggies of a mixture of heroin and fentanyl (weighing 1.5 grams); 14 white baggies of cocaine (weighing 2.5 grams); and, 12 blue baggies of crack cocaine (weighing 4 grams). MR. NOUR-ELDIN'S EVIDENCE [43] Mr. Nour-Eldin is 24 years old. He was 20 years old at the time of the traffic stop. He was born abroad and immigrated to Canada in 2000. He grew up in Surrey where he attended grade school. He appears to have taken some courses at BCIT. [44] Mr. Nour-Eldin says that he has had numerous (estimated at 60) encounters with the police in Canada. He recounts specific instances where he or a friend were questioned by the police when they were not doing anything nefarious. More specifically, he says that if he or his friends are asked by the police for their names and that request is refused, the officers threaten obstruction charges to compel the giving of a name. Mr. Nour-Eldin describes circumstances where he or a friend were placed in handcuffs to compel production of a name so that their names could be run on the police database. He also describes a circumstance where he did refuse to give his name to police officers. [45] Mr. Nour-Eldin also introduced his adult criminal record. That record begins almost immediately upon him turning age 19. However, at the end of the day, neither the Crown nor defence placed any significance on Mr. Nour-Eldin's record and in these reasons, I have done likewise. [46] On the day in question, Mr. Nour-Eldin acknowledges that he and Ms. Nordwall were driving so that he could sell drugs. He was put in touch with Ms. Nordwall by someone else in the drug trade who advised that Ms. Nordwall could be his paid driver for that purpose. The cash found on Mr. Nour-Eldin were proceeds from his earlier drug sales. [47] When Mr. Nour-Eldin spotted Cst. Lapre's vehicle as they turned onto Capilano Road, he told Ms. Nordwall to drive in a normal fashion and not speed. He directed her to make the first right hand turn and then park, so as to "let things die down". He wanted to avoid any interaction with the officers. [48] However, once the officers arrived in McLallen Court, Ms. Nordwall panicked when she opened the door and started fumbling around. Mr. Nour-Eldin tried to calm Ms. Nordwall down and directed her to just give Cst. Lapre her license. [49] Once Ms. Nordwall exited the Nissan, Mr. Nour-Eldin said Cst. Lapre's attention turned to him. He says he felt intimidated. Mr. Nour-Eldin says he didn't feel he had a choice but to reply to Cst. Lapre's question as to his name. He claims that only during this voir dire did he learn that he could have refused to answer. [50] When Cst. Lapre asked him about being in trouble with the police, Mr. Nour-Eldin felt that the situation could escalate into something other than checking for Ms. Nordwall's license and insurance papers. Nevertheless, he does acknowledge voluntarily advising Cst. Lapre of his name and date of birth and offering that he was "on probation", no doubt referring to the robbery conditions. [51] As with many aspects of his testimony, Mr. Nour-Eldin gave conflicting evidence as to how Cst. Lapre asked him questions. He first acknowledges that Cst. Lapre addressed him in a calm voice and the officer gave no indication that he would be mistreated if a name was not produced. Rather, Mr. Nour-Eldin refers to getting a "vibe" from the officer that resulted in him feeling intimidated by the officer. He admits that Cst. Lapre never threatened that he would be arrested if he didn't provide his name; rather, Mr. Nour-Eldin says that Cst. Lapre was "building up to where he would put him in handcuffs". At this later stage of his cross-examination, Mr. Nour-Eldin then stated that Cst. Lapre's questioning of him was "aggressive" and that he demanded that his name be provided. Mr. Nour-Eldin also accuses Cst. Lapre of "racially profiling" him as a young black man, instead of focussing on Ms. Nordwall. [52] When Cst. Lapre asked Mr. Nour-Eldin to step out of the Nissan for a pat down, Mr. Nour-Eldin realized he had a problem in that it was turning into a "bigger situation than he could handle". This was particularly so with the drugs in his pocket which he considered would be discovered in the pat down. When Cst. Lapre asked him to get out of the Nissan, he formed the thought "screw it, I'm getting out of there" and then he "bolted". [53] Mr. Nour-Eldin's evidence about the curfew or a "condition" is confusing and his answers changed from minute to minute while under cross-examination. First, he stated that he was never on curfew; then he said that he didn't even think about his conditions or a curfew when he was being asked questions by Cst. Lapre when he was seated in the Nissan; he also said he thought he was on curfew at the time since he had 15 conditions on his probation; finally, he acknowledged that, throughout his interactions with Cst. Lapre, he knew was on a 10:00 p.m. curfew. [54] Mr. Nour-Eldin denied that he told Cst. Lapre that he was breaching curfew as he ran away. In my view, such evidence is not credible, arising generally from the lack of credibility that I have concluded arises from his evidence. In addition, I reject Mr. Nour-Eldin's assertions on this point and accept that of Cst. Lapre's particularly since Cst. Lapre's decision to pursue Mr. Nour-Eldin solely arose from the admission that he was in breach of his curfew as he was fleeing and the later reasons for his arrest. [55] Mr. Nour-Eldin says that he was going at a full run as he sped from the officers, while wearing loose fitting pants and a windbreaker. The phone and the drugs were in his pants' pockets, the money was in his windbreaker. He says that, while running and jumping over a fence, he was trying to keep the things in his pockets. He says that the M&M container fell from his pocket as he ran; he denies discarding the M&M container with the drugs while he was being chased. [56] It was only after he stopped running that he realized his hat and the M&M container with the drugs were not in his pockets. At that time, he asked himself "what did I just get myself into?". DISCUSSION AND ANALYSIS [57] Mr. Nour-Eldin asserts that his Charter rights, under s. 8 (to be secure against unreasonable search and seizure) and under s. 9 (not to be arbitrarily detained or imprisoned), were violated. [58] The broad issues to be addressed include: a) Was the traffic stop lawful? b) Was the accused detained? If so, was the detention arbitrary? c) Did the police "search" the accused arising from the officer's questioning of him while he was seated in the Nissan, and if so, was the search unreasonable, contrary to his s. 8 Charter rights? d) Were the accused's s. 8 Charter rights violated in relation to the M&M container of drugs? In particular, was the M&M container of drugs "seized" or "searched" for the purposes of s. 8, and if so, was the seizure or search unreasonable? [59] As I have set out above, the facts concerning the events at the traffic stop are not contested, save to a limited degree. [60] A factual issue that remains to be determined relate to the nature and content of the interactions between Cst. Lapre and the accused prior to the him mentioning his breach of curfew and fleeing the scene. In addition, the accused's evidence as to the M&M container is challenged and credibility issues arise. Both issues will be addressed in the analysis of the issues below. Was the Traffic Stop Lawful? [61] The accused alleges that the traffic was unlawful from the outset. Alternatively, the accused argues that, if the traffic stop was lawful, he was arbitrarily detained when Cst. Lapre began asking him questions while he was seated in the Nissan, contrary to s. 9 of the Charter. [62] The Crown contends that the traffic stop was lawful because Cst. Lapre's interactions with Ms. Nordwall and the accused were within the bounds of a lawful traffic stop. [63] The police are entitled to stop vehicles and request information from the driver of that vehicle pursuant to the Motor Vehicle Act, R.S.B.C. 1996, c. 318: 73(1) A peace officer may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a peace officer who is readily identifiable as a peace officer, must immediately come to a safe stop. (2) When requested by a peace officer, the driver of a motor vehicle or the person in charge of a motor vehicle on a highway must state correctly his or her name and address and the name and address of the owner of the motor vehicle. (3) A person who contravenes subsection (1) or (2) commits an offence and is liable to a fine of not less than $100 and not more than $2 000 or to imprisonment for not less than 7 days and not more than 6 months, or to both. [64] The accused begins his analysis by referring to R. v. Ladouceur, [1990] S.C.R. 1257. In that case, the Court considered whether a random traffic stop, although a violation of s. 9 of the Charter, could nevertheless be justified under s. 1 of the Charter. At 1287-1288, the Court found that such stops could be justified: Finally, it must be shown that the routine check does not so severely trench upon the s. 9 right so as to outweigh the legislative objective. The concern at this stage is the perceived potential for abuse of this power by law enforcement officials. In my opinion, these fears are unfounded. There are mechanisms already in place which prevent abuse. Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver's licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds. Where a stop is found to be unlawful, the evidence from the stop could well be excluded under s. 24(2) of the Charter. In the result, I have concluded that routine checks are a justifiable infringement on the rights conferred by s. 9. [65] In R. v. Orbanski, 2005 SCC 37 at para. 40, the Court confirmed that the police are acting in the lawful execution of their duties in stopping a driver after observing erratic behavior. [66] The accused argues that the traffic stop was flawed from the outset. He argues that when Cst. Lapre sought out the Nissan, he was essentially undertaking a criminal investigation or that he only suspected that the driver of the Nissan was "up to no good". The accused argues that it was only this aspect that informed the officers' decision to seek out the Nissan and question the driver. He also argues that this was not a truly "random" stop, nor did the officers observe any traffic violation that would justify such a traffic stop. [67] The accused also refers to R. v. Mayor, 2019 ONCA 578. In Mayor, the Court, following, Ladouceur and other authorities, accepted that the police must have a legitimate purpose in mind, although other legitimate purposes may also be present. At para. 8-9, following R. v. Nolet, 2010 SCC 24, the Court also stated that the police may not use a traffic stop simply as a "'ruse' or "pretext'" for a broad and unfounded criminal investigation. [68] Here, I have considered all of the evidence surrounding the reasons for the traffic stop. I accept Cst. Lapre's evidence and find as fact that, when he effected the traffic stop, he did so for a variety of reasons, including: checking the driver's licence and insurance documentation, confirming the lawful possession of the Nissan and investigating the reasons for what he concluded was "erratic" driving behavior, particularly his assessment that the driver had sped down Capilano Road after its turn from the off-ramp. [69] All of the above reasons are legitimate and lawful reasons for a traffic stop in that they were related to the driving of the Nissan: Ladouceur at 1287; Orbanski at para. 41; Nolet at para. 25. [70] I also agree that Cst. Lapre also had other thoughts and suspicions concerning the Nissan, particularly its possible use in the drug trade, arising from his review of the PRIME entry. However, that further aspect of Cst. Lapre's thinking in terms of his interest in the Nissan does not detract from the legitimacy of the reasons to justify the traffic stop in the first place. [71] As stated in Nolet: [37] It is to be expected that RCMP officers patrolling the Trans-Canada Highway are interested in any number of potential infractions including criminal offences as well as provincial matters. It could hardly be otherwise. However, as pointed out by Martin J.A., "[t]he lawful search was not converted into an unlawful or an unreasonable search because the officers, in addition, had the expectation that the search might also uncover drugs": R. v. Annett (1984), 17 C.C.C. (3d) 332 (Ont. C.A.), at p. 335, leave to appeal refused, [1985] 1 S.C.R. v. (note) (S.C.C.) [39] Police power, whether conferred by statute or at common law, is abused when it is exercised in a manner that violates the Charter rights of an accused. This is a better framework of analysis, in my opinion, than the "predominant purpose" test applied here by the trial judge. If the Charter is violated, it makes little difference, I think, that the police had in mind multiple purposes. A valid regulatory purpose, whether predominant or not, would not sanitize or excuse a Charter violation. [41] I agree with Wilkinson J.A. that the question is not "determining which purpose is predominate or subordinate" (para. 85). As long as there is a continuing regulatory purpose on which to ground the exercise of the regulatory power, the issue is whether the officer's search of the duffle bag infringed the reasonable expectations of privacy of the appellants. I do not think that it did, having regard to the totality of the circumstances as they had progressed to the time of that search. [72] See also R. v. Robertson, 2018 ABQB 658 at paras. 43-49; R. v. Woody, 2018 BCSC 2275 at para. 44-47; R. v. Fillery, 2021 BCSC 1858 at para. 38. [73] The evidence here establishes that Cst. Lapre's interactions with Ms. Nordwall, as the driver of the Nissan, were toward his fundamental and primary objective to check her licence and insurance documentation as evidenced by his request for her drivers licence and insurance registration. That process led the officer, upon her failing to produce the former, asking her to stop out of the Nissan for that breach. These were all valid reasons for the traffic stop of the Nissan that she was driving. [74] I find that there is no evidence to support that Cst. Lapre lacked any legitimate reason to complete the traffic stop; I reject the accused's suggestion that it was simply a "ruse" to investigate whether the occupant of the Nissan had any links to the drug trade. [75] That said, the Court must proceed "step-by-step" through the later interactions between Cst. Lapre and the accused to determine whether the officer stayed within his authority during the traffic stop, having regard to the information lawfully obtained during the traffic stop: Nolet at para. 4; Woody at para. 58. Was the Accused Detained as a result of the Traffic Stop and/or being Questioned or did this result in a illegal search and seizure of the Accused? [76] The question is whether the accused was detained as a result of the traffic stop and Cst. Lapre's brief questioning of him. [77] The meaning of "detention" under ss. 9 and 10 of the Charter was discussed in R. v. Mann, 2004 SCC 52: [19] "Detention" has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. ... [78] The principle found in Mann was further expounded upon by the Court in R. v. Grant, 2009 SCC 32 at para. 26 in stating: It is clear that, while the forms of interference s. 9 guards against are broadly defined to include interferences with both physical and mental liberty, not every trivial or insignificant interference with this liberty attracts Charter scrutiny. To interpret detention this broadly would trivialize the applicable Charter rights and overshoot their purpose. Only the individual whose liberty is meaningfully constrained has genuine need of the additional rights accorded by the Charter to people in that situation. [79] The comments found in Grant provide significant guidance in addressing the issue of when questioning by the police can go beyond preliminary or general questioning so as to amount to "detention": [41] As discussed earlier, general inquiries by a patrolling officer present no threat to freedom of choice. On the other hand, such inquiries can escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particular individual. Focussed suspicion, in and of itself, does not turn the encounter in a detention. What matters is how the police, based on that suspicion, interacted with the subject. The language of the Charter does not confine detention to situations where a person is in potential jeopardy of arrest. However, this is a factor that may help to determine whether, in a particular circumstance, a reasonable person would conclude he or she had no choice but to comply with a police officer's request. The police must be mindful that, depending on how they act and what they say, the point may be reached where a reasonable person, in the position of that individual, would conclude he or she is not free to choose to walk away or decline to answer questions. [44] In summary, we conclude as follows: 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors: (a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. (b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. (c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [80] In the companion case of R. v. Suberu, 2009 SCC 33, citing Grant, the Court further discussed when questioning by the police becomes a "detention": [28] As discussed more fully in Grant, in a situation where the police believe a crime has recently been committed, the police may engage in preliminary questioning of bystanders without giving rise to a detention under ss. 9 and 10 of the Charter. Despite a police request for information or assistance, a bystander is under no legal obligation to comply. This legal proposition must inform the perspective of the reasonable person in the circumstances of the person being questioned. The onus is on the applicant to show that in the circumstances he or she was effectively deprived of his or her liberty of choice. The test is an objective one and the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal to the application. However, the applicant's contention that the police by their conduct effected a significant deprivation of his or her liberty must find support in the evidence. [29] The line between general questioning and focussed interrogation amounting to detention may be difficult to draw in particular cases. It is the task of the trial judge on a Charter application to assess the circumstances and determine whether the line between general questioning and detention has been crossed. While the trial judge in this case did not have the benefit of the test refined in Grant, his findings on the facts, supported by the evidence, lead to the view that a reasonable person in the circumstances would have concluded that the initial encounter was preliminary investigative questioning falling short of detention. [81] As is evident from the above case authorities, a detailed consideration of all the circumstances is required toward determining whether any detention occurred. In R. v. Reddy, 2010 BCCA 11 at para. 56, the court stated that "[w]hether any particular encounter gives rise to detention depends on what occurred in that case". [82] It is important to note there has been a shift in the jurisprudence arising from the reasoning of the Supreme Court of Canada in such cases such as Grant and Suberu: see R. v. Robinson, 2021 BCSC 899 at para. 25. In that respect, I agree with the Crown that the reasoning in earlier case law must be considered in that context. In Robinson, Justice Saunders states: [29] Post-Grant, it is clear that a nuanced consideration of the circumstances when a vehicle has been lawfully subject to a traffic stop may lead to a finding that superficial interactions between a police officers and passengers in a vehicle do not amount to detention. [83] The same approach in Robinson--applying the fact-focussed analytical framework in Grant and Suberu, as opposed to what might be contained in previous cases--was adopted in Fillery at paras. 32-36. [84] I agree with the Crown that the accused, as a passenger of the Nissan, was not detained simply by reason of the traffic stop itself. This point is made clear in R. v. Mooiman and Zahar, 2016 SKCA 43 [Mooiman]. As stated at paras. 21-22, only the driver of the vehicle is necessarily detained and generally speaking, a passenger is simply a bystander who is not prevented from simply walking away. See also Grant at para. 37 and R. v. Thomas, 2015 ONSC 7299 at paras. 75-79. [85] The next question is whether the later questioning of the accused by Cst. Lapre amounted to a "detention" within the meaning of the Charter. [86] The accused argues that Cst. Lapre had no lawful authority to ask him questions and compel answers and request identification and his history with the police, which he argues to be entirely unrelated to the traffic stop and to the issue as to whether Ms. Nordwall was licensed and the vehicle insured. He denies having consented to providing any information. The accused argues that, once Ms. Nordwall was removed from the Nissan, the focus of Cst. Lapre's investigation turned to him. He alleges he was detained; he also says that the breach of his s. 8 Charter rights--to be free from unreasonable search and seizure--arose from the questioning and led to his arrest for breach of probation and drug trafficking. [87] The Crown disagrees. [88] The test is objective and the accused bears the onus of establishing that detention occurred: Suberu at para. 28. [89] The Crown refers to many cases, following Grant and Suberu, where general questioning by the police as to the identification of a passenger was found not to amount to a "detention", namely "significant physical or psychological restraint". [90] In R. v. Thomas, 2015 ONSC 7299, the passenger was in a motor vehicle stopped by police when it was noted that the license plate did not appear to relate to the vehicle. The police asked the passenger questions regarding his identification and his relationship with the driver. As a result, the police discovered that the passenger was violating a youth probation order. Similar to the circumstances here, the officer did not consider that the passenger as under an obligation to answer his questions, but he did not advise the passenger to that effect. The passenger was arrested and during a later pat-down search, cocaine was discovered. At paras. 80-102, the Court found that the questions asked of the passenger did not amount to psychological restraint or "detention". [91] In Mooiman, the passenger was also asked for his identification, which was later checked against police databases. As here, Mr. Mooiman voluntary produced that information. At para. 25, the court stated that "a reasonable person in the circumstances of Mr. Mooiman would have understood that the initial encounter with [police] involved preliminary questioning falling short of detention". [92] In Robertson, police stopped a young female driver because the car registered to an elderly man. The driver told police that she was on the way to a convenience store. The passenger was asked where he was going/coming from; he responded that that he was on curfew conditions at the time but that he was on his way to work. Police then asked for the passenger's name, address and date of birth. After the arrest of the passenger for breaching his curfew, the police discovered drugs in his possession. At paras. 39-40, the Court found no detention prior to arrest, given the brief conversation with the accused, the lack of oppression and lack of any "focused interrogation". [93] Here, the accused volunteered his name and date of birth when Cst. Lapre asked if he had identification. [94] In Robinson, Saunders J. found that the traffic stop of a vehicle in which the accused was a passenger did not amount to a detention. In that case, the passenger of a vehicle was asked his name, which was then run in a police database. Police learned that the passenger had a warrant for his arrest, and a search incidental to arrest yielded drugs. At para. 32, Saunders J. found that the circumstances of the traffic stop did not create a psychological detention, as the passenger was not restrained and the officer's presence at the driver's door did not hamper his freedom of movement. Further, as in this case, Mr. Robinson's identity was of no direct relevance, such that, objectively, the questions could not reasonably have been perceived as to be anything other than a casual enquiry. At para. 33, Saunders J. also concluded that questions as to the accused's identity did not amount to an exercise of police powers, such that no detention or search or seizure resulted. [95] In Fillery, Justice Williams stated: [57] To summarize, it is my understanding of the authorities that where the police make a valid traffic stop, the officer is not prohibited from asking or making inquiries beyond the immediate purpose of the stop. A certain level of inquiry relating both to the driver and the passengers is permitted without the circumstances constituting a detention. The matter of asking for identification is an example of a low level of intrusion that falls well short of any basis to find detention. [96] At the outset, I would observe that the evidence of the accused was entirely unsatisfactory, confusing, contradictory and increasingly self-serving as the cross-examination continued. For example, on the point of Cst. Lapre's demeanor, while initially stating that Cst. Lapre was calm, his vacillating evidence later led to the contention that Cst. Lapre was "aggressive". Many of the accused's answers to the Crown were argumentative and included vacillating answers that were clearly intended to avoid the question at hand with whatever self-serving response the accused could think of at the time. [97] I reject the accused's evidence as to his interactions with Cst. Lapre, particularly where he suggests that, in essence, Cst. Lapre had effectively "demanded" this information and that he had "no choice" but to comply. [98] As stated in Grant, the personal characteristics and circumstances of the person must be considered within the factual matrix. [99] In accordance with R. v. Le, 2019 SCC 34 at para. 106, I have also considered the accused's evidence as relevant to the issues in light of the fact that he is a young black man. [100] I accept that the accused had previous encounters with police despite his relative youth. That informs his level of sophistication to some degree. However, I am unable to conclude that the accused is the young unsophisticated person that he contended, particularly with respect to law enforcement. In any event, the accused's own evidence supported that he well knew that he did not have to provide his name and date of birth to the officer. There is no evidence that the accused's race was an issue at all during the traffic stop, particularly from Cst. Lapre's point of view. [101] I also reject the accused's evidence that he perceived Cst. Lapre's actions as threatening given his past experiences as a black person having encounters with the police. I find that the accused made significant efforts to inflate his own negative perceptions of the encounter with Cst. Lapre toward suggesting that he felt threatened or intimidated by Cst. Lapre's actions and words toward him. Simply put, I find the accused's evidence to entirely lack credibility on not only his subjective view of the situation, but also the objective one. [102] In contrast, I find that Cst. Lapre gave an honest and detailed account of the encounter, although, for understandable reasons, his recollection was impaired to a degree by the lapse of time. Nevertheless, Cst. Lapre's recall was assisted greatly by the dashcam video recording. I find that Cst. Lapre's evidence was credible and reliable and where it conflicts with that of the accused, Cst. Lapre's evidence is to be preferred. [103] As stated in Le, the test is objective in terms of what a reasonable person in the accused's shoes would perceive about their ability to leave or not. I find that, when viewed objectively, the accused did not consider that he had no choice but to stay in the Nissan and answer Cst. Lapre's questions. [104] I agree with the Crown that, considering all of the circumstances, the questioning of Mr. Nour-Eldin as to his identification at the traffic stop did not amount to circumstances where he was "psychologically detained". Constable Lapre's questions were very brief and of a general nature and were made in a casual, calm and polite manner. When these questions were asked, Cst. Lapre was at the driver's side of the Nissan and not in close proximity to the accused. At no time did Cst. Lapre block the accused from exiting the Nissan and carry on his way. Constable Lapre did not use any threatening words or undertake any oppressive conduct in his brief interaction with the accused. [105] I find as a fact that the accused voluntarily provided his name and date of birth to Cst. Lapre. I also find as a fact that the accused did so in the hope that nothing would come of it. As stated in Mooiman, at that point, nothing would have prevented him from simply walking away from the Nissan without answering any questions. I reject the accused's assertion that he thought that he didn't have any choice but to stay in the vehicle rather than walk away. [106] I accept Cst. Lapre's evidence that, if the accused had refused to answer any questions about his identity and had simply left the Nissan and walked away, he would have done nothing about it. This is consistent with Cst. Lapre's focus being on Ms. Nordwall and her clear breach in not having a valid driver's license. [107] As was found in Robinson, I find that the accused could only objectively and reasonably have seen Cst. Lapre's request for his ID and other questions as a casual enquiry. [108] The accused also says that the Cst. Lapre's question to him about his previous involvement with the police was sufficient to as to amount to "detention". He points to the reasoning in Thomas, which emphasizes the fact that the police questioning in that case was not about the passenger's criminal history: para. 99. [109] In addition, the accused points to the Court's discussion in Robertson at para. 63, where the Court contrasted the request for identification to confirm the limited identifying information the accused had provided with the facts in R. v. Harris, 2007 ONCA 574. In Harris, the intention of the officer in asking for identification was to access a "wealth of information" about the accused and not for any legitimate police purpose: para. 32. [110] The same analysis as above applies to Cst. Lapre's questions about the accused's previous involvement with the police. As it was when asking for his identification, Cst. Lapre's question was intended to orient the officer to the situation: Suberu at para. 32. A similar analysis was undertaken in R. v. Hendrickson, 2018 BCSC 288 at paras. 23-26, where Justice Devlin concluded that no detention arose as a result of the officer's questions. [111] Constable Lapre's evidence, which I accept, was that he asked the accused about his potential involvement with the police because he wanted to have some idea about "who and what he was dealing with". Again, the basis for that inquiry was driven by the fact that the accused was in a car late at night in very unusual circumstances. [112] Constable Lapre stated that, after the accused volunteered that he was "on conditions for robbery", an offence involving violence, he did not want to have his back to the accused. I find as a fact that the accused volunteered that he was "on conditions for robbery". [113] Constable Lapre's questions to the accused relating to his history with the police had a legitimate police purpose, namely officer safety, in the context of a traffic stop in highly unusual circumstances. I disagree that the accused was singled out in Cst. Lapre's mind for questioning as part of a focussed criminal investigation or interrogation, for the purpose of obtaining information about possible drug activity. The officer's questions were not directed toward any such concerns, including that the occupants, or specifically the accused, may be involved in the drug trade. [114] I consider that the circumstances support that Cst. Lapre was not asking that question about the accused's history with the police as part of undertaking a criminal investigation for a criminal offence. He was asking only general questions in the context of officer safety toward assessing the risks inherent in these very unusual circumstances. That this was Cst. Lapre's motivation in asking that question and dealing with the accused is supported by the fact that the officer's sole intention was to pat down the accused to ensure there was no risk to the officers while they turned their attention to Ms. Nordwall. [115] I agree that the question as to the accused's involvement with police went further than simply asking for identification. However, having considered all of the circumstances, I conclude that there was a valid reason for Cst. Lapre to ask about the accused's history with the police, as it was rationally related to the traffic stop and the issue of officer safety that arose. [116] I conclude that the accused has failed to meet his onus to prove that he was unlawfully detained as a result of the traffic stop or being questioned. [117] For the same reasons as above, I also find that the traffic stop and Cst. Lapre's questioning of Mr. Nour-Eldin did not engage his s. 8 Charter rights: Robinson at para. 33; Robertson at paras 62-65; Thomas at para. 102. Was the Accused Detained when Asked to Exit the Nissan for a Pat-Down Search, and if so, was the Detention Arbitrary? [118] The next question that arises is whether the accused was arbitrarily detained when Cst. Lapre asked him to exit the Nissan for the pat-down search. [119] The Crown submits that it is not. [120] I do not understand the accused to contest the law relevant to this contention. [121] The Crown notes that orders by police officers only amount to detention where there is compliance. The Crown relies on R. v. Nesbeth, 2008 ONCA 579, leave to appeal ref'd [2009] 1 S.C.R. xi (note) (S.C.C.); R. v. Nguyen (19 January 2008), Vancouver 233239-3-C (B.C.P.C.) and R. v. Ratt, 2020 SKCA 19, leave to appeal filed 2021 CarswellSask 288 (S.C.C.). [122] In Nesbeth, police had a very brief conversation with Mr. Nesbeth as he was walking in apartment complex stairwell. Mr. Nesbeth then ran away while police were pursuing and yelling, "stop, police". The court found that there was a demand but the element of compliance was missing. While the police intended to detain Mr. Nesbeth, this intention alone did not mean there was an actual detention. The court stated: [14] Until the respondent was detained, his s. 9 rights were not triggered. When the police chase began, the respondent was not physically detained. Nor, in my view, was he psychologically detained. [16] In this case, while there was a demand: "Stop, police", the element of compliance with the demand was missing. Far from complying, the respondent made it abundantly clear that he had no intention of being detained. While the police obviously intended to detain the respondent after he began to flee, as the court said in R. v. Clayton (2007), 220 C.C.C. (3d) 449 (S.C.C.) at para. 48: "Intention alone does not attract a finding of unconstitutionality". Thus, there was no detention at the start of the pursuit. [123] Nesbeth was followed in Nguyen, where the court found that Mr. Nguyen was not detained when he fled from police. In that case, police observed Mr. Nguyen while they were inside an apartment building. Police saw Mr. Nguyen, who they thought was trespassing and said, "Police" and "Stop." Mr. Nguyen fled and, when doing so, he dropped a bag of white powder. At paras. 48 and 51, the court found that Mr. Nguyen was not detained when the police issued the command because he fled from police before complying. [124] In Ratt the facts were similar to those in Nesbeth and Nguyen, in that the accused had fled when the officers yelled "stop" and advised him he was "under arrest". As in the other cases, at paras. 37-38, the court found that no detention arose because the accused had not submitted or acquiesced to the officers' demands. [125] The last authority I will discuss is Reddy, also the subject of comment in Ratt. In Reddy, the officers asked the accused to step out of the vehicle in order to allow them to check for cell phones and pagers. Mr. Reddy did exit the vehicle and he stood on the curb briefly, as directed by the officers, before fleeing. The court concluded that, although the detention was brief, it had occurred: [61] Those decisions do not assist the Crown. In Nesbeth, Mr. Nesbeth immediately fled the scene on seeing the police. In B.(L.), there was no demand or direction, and no evidence to support a finding that L.B. came and spoke with the officer because he felt compelled to do so. In contrast, in the case at bar Mr. Reddy complied with two directions from Constable Todd: (1) he got out of the Dodge when told to do so, and (2) he went and stood at the curb, where he was told to stand. [62] The only conclusion I can reach on an objective assessment of the facts in this case is that Mr. Reddy was detained. A reasonable person directed by a police officer to get out of a vehicle would not question or challenge the officer's authority, but would comply in the belief that he or she had no other option. That Mr. Reddy did not remain at the curb for very long does not negate the fact that he was detained at the beginning of his encounter with Constable Todd. [126] The Crown argues that Cst. Lapre did not detain the accused when he attempted to get him to exit the vehicle for a pat-down search. The Crown further argues that the accused did not behave in a manner consistent with his detention. I accept that the evidence establishes that the accused had formulated the intention to flee well before he was asked to exit the Nissan. [127] However, in my view, the formulation of that intention at that earlier time does not negate the fact that Cst. Lapre made that demand, and the accused complied, however briefly. I also agree that, when faced with Cst. Lapre's request to exit the vehicle, the accused would have reasonably understood that he that he had no choice but to comply. [128] I conclude that the accused's compliance with Cst. Lapre's demand to exit the Nissan did result in his detention. [129] The Crown then submits that, if the accused was detained briefly when he exited the Nissan, Cst. Lapre had legitimate reasons to detain him, either in order to conduct a pat-down search or conduct an investigative detention. [130] The authorities as to pat-down searches are not controversial, and principally derive from Mann. To protect police in potentially dangerous circumstances, and to balance police responsibilities with individual rights, the law authorizes police to conduct a protective pat-down search in situations where they have "reasonable grounds" to think that their safety or the safety of others is at risk. The decision to search must be reasonably necessary in light of the totality of the circumstances, must be grounded in "objectively discernible facts", and it cannot be simply based on a vague or non-existent concern for safety or to pursue a "fishing expedition": paras. 40 and 43. [131] In R. v. Webber, 2019 BCCA 208 at paras. 63 and 65, the court confirmed that, in this context, the term "reasonable grounds" is used to describe the threshold of "reasonable suspicion", not the higher threshold of reasonable and probable grounds. [132] In assessing whether the officer's subjective concerns were objectively reasonable in the circumstances, the court in R. v. Crocker, 2009 BCCA 388, leave to appeal ref'd [2010] 1 S.C.R. viii (note) (S.C.C.) at paras. 68, confirmed that a consideration of all of the circumstances is required. [133] As regards the traffic stop in question, there is no need for an overt indication of violence to justify a safety search: Crocker at para. 69. The Crown specifically notes here that, in Crocker at para. 63, the court noted a heightened risk often faced by officer when they approach vehicles with unknown occupants. [134] Here, I readily accept that Cst. Lapre had reasonable grounds to be concerned about his and Cst. Nikolai's safety to justify asking the accused to step out of the Nissan for a pat-down search. Specifically, I rely on his evidence that: a) He was aware from the PRIME entry that the Nissan had been linked to the drug trade, an activity often associated with the possession of weapons; b) He was aware that the Nissan appeared to have taken action to avoid detection from the officers, both from its driving pattern and its "blacking out" the car after having parked it on McLallen Court; c) The Nissan was found parked in a residential cul-de-sac that was not well lit; d) The accused had advised that he was on "conditions" or "probation" for robbery, an offence that Cst. Lapre knew involves violence or threat of violence, and often includes the use of weapons; e) Constable Lapre could not see the accused's right hand at the far side of the Nissan when the accused was remaining in the Nissan; f) Constable Lapre was required to assist Cst. Nikolai in addressing Ms. Nordwall's failure to produce a driver's license, when both officers could not undertake that task and also ensure that no threat arose from the accused at the same time; and g) Constable Lapre was responsible for the safety of Cst. Nikolai as a new recruit. [135] I am satisfied that Cst. Lapre's subjective concerns, viewed objectively, are well grounded in the evidence. [136] Accordingly, I conclude that, if the accused was fleetingly detained outside of the Nissan when he exited and before he fled, such detention was justified on the basis of officer safety concerns. The detention was not arbitrary. [137] In light of my conclusion, it is not necessary to consider the Crown's alternative argument that Cst. Lapre was entitled to conduct a pat-down search in connection with an investigative detention. Were the Accused's s. 8 Rights Violated in relation to the M&M Container of Drugs? [138] The accused argues that, in any event, the later search and seizure of the M&M container of drugs was unlawful pursuant to s. 8 of the Charter. He argues that there is no evidence that he intentionally abandoned the container. Alternatively, the accused argues that, in any event, if he discarded it as he ran, he still retained privacy interests in the container. [139] The Crown asserts that the facts support that the accused intentionally discarded the container as he was running. In addition, the Crown argues that, whether the container was inadvertently lost or purposefully abandoned, the accused did not retain any privacy interest in the container. [140] The accused's evidence, as summarized earlier in these reasons, was to the effect that he was trying to keep items, including the M&M container, in his pants pockets as he was running from the officers. He also refers to jumping over fences. He states that he only noticed that the M&M container and his hat were missing when he stopped running. Finally, the accused acknowledges that he was running away because his main concern were the drugs in his pocket. [141] In cross-examination, the accused denied that he had dropped the M&M container when he realized that Jake was on his trail. [142] The Crown and defence agree that the accused bears the onus to establish a reasonable expectation of privacy on the basis of the totality of the circumstances: R. v. Edwards, [1996] 1 S.C.R. 128 at para. 45; Nolet at para. 30. In Edwards at para. 45, the Court sets out certain non-exhaustive factors to be considered as including: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. [143] Abandonment is a question of fact. As stated in R. v. Patrick, 2009 SCC 17 at para. 25, the question is: whether the claimant to s. 8 protection has acted in relation to the subject matter of his privacy claim in such a manner as to lead a reasonable and independent observer to conclude that his continued assertion of a privacy interest is unreasonable in the totality of the circumstances. [144] The accused refers to R. v. Warsame, 2019 BCSC 1075. After a traffic stop, Mr. Warsame, a passenger in the vehicle, exited the vehicle, as he was entitled to. He was observed with a satchel. The police sought out Mr. Warsame to have a conversation. The officer then observed Mr. Warsame in a local restaurant with the satchel. When the officer activated his cruiser lights and parked in front of the restaurant, the officer saw Mr. Warsame drop the satchel on the floor of the restaurant. Mr. Warsame was detained just outside the restaurant. Later examination of the satchel revealed a weapon and ammunition. [145] In Warsame, Justice Iyer addressed the abandonment issue as follows: [32] Crown submitted that Mr. Warsame does not have standing to assert any reasonable expectation of privacy in the satchel because he abandoned it. Abandonment is an issue of fact. The question is whether a reasonable and independent observer would conclude that the continued assertion of a privacy interest is unreasonable in the totality of the circumstances: R. v. Patrick, 2009 SCC 17 at para. 25, which is cited in R. v. Borecky, 2011 BCSC 1573. [33] Situations in which abandonment is found involve unequivocal discarding of the item in question, such as throwing something into the garbage or out of a window or a car. The circumstances in this case are different. Mr. Warsame left the satchel on the floor and went a pace or two out of the restaurant. He did not put it in the garbage can located next to the door. There is no evidence of what his intention was in relation to the satchel and the circumstances do not support an inference of unequivocal discarding. Mr. Warsame has standing to assert a privacy interest in the satchel. [146] The Crown refers to Nesbeth, Hendrickson and R. v. Schirmer, 2020 BCSC 209. [147] In Nesbeth, the accused was found to have thrown his knapsack to the ground as he fled the police: para. 6. At para. 23, the court found that throwing away the knapsack resulted in the accused having abandoned the item. At para. 22, the court stated that an important factor was that the accused had given up the ability to regulate access to the item when he had thrown it away. [148] The discussion of the issue and case law in Hendrickson at para. 41-51 is very helpful in this case. In that case, the accused had, while walking toward the police, intentionally dropped a clear plastic baggie containing drugs on the ground. The Court found no reasonable expectation of privacy, stating: [49] As these cases demonstrate, whether one has a privacy interest is a highly factual inquiry. The present case is closer to L.B. and Nesbeth than to Borecky. In this case there is no express disavowal of ownership as in L.B. nor is there a dramatic flinging away of a bag as in Nesbeth. Mr. Hendrickson voluntarily placed the bag of cocaine on the ground while walking towards Cst. Jones. As in L.B. and Nesbeth, the depositing of the bag on the ground occurs as a result of imminent interaction with police not as a result of an unlawful detention as in Reddy. Nor is this case similar to Borecky where drugs and guns were carefully hidden signalling an intent to maintain control over them. As in Nesbeth, Mr. Hendrickson divested himself of possession and control of the bag and gave up the ability to regulate access when he placed it on the ground in a parking lot in a public area where any passerby could look and see the contents inside. Having considered the totality of the circumstances, I find Mr. Hendrickson's conduct in dropping the bag on the ground in a public parking lot, precluded him from relying on the s. 8 protection. [149] Finally, in Schirmer, similar to this case, a fleeing suspect left his bag containing drugs in a stranger's yard while police were in pursuit. The accused argued that he still maintained a reasonable expectation of privacy since he had hidden it with the expectation of returning to retrieve it later. The accused had no control over who could access the bag and deliberately left the bag in the yard so that police could not find it. At paras. 82-89, the Court found that the bag was not hidden, as claimed. Justice Murray also found that the accused had intentionally divested himself of possession and control of the bag to avoid the police finding it such that he "lost the ability to regulate who had access to it". She found that, in doing so, the accused was precluded from relying on the protection of s. 8 of the Charter. [150] I would note at the outset that I do not consider that the accused's evidence is credible on the issue of whether the M&M container simply inadvertently fell from his pocket or was purposefully thrown away. I acknowledge that no person observed the accused as he ran through the neighbourhood. In addition, none of the officers later asked the accused whether the M&M container was his, as is done in some cases, and he later disavowed any ownership: see R. v. B. (L.), 2007 ONCA 596, as discussed in Hendrickson. [151] Nevertheless, reasonable inferences can be drawn from the known facts. When Mr. Nour-Eldin fled from the scene, he was specifically trying to avoid being found with the drugs. He testified that the M&M container was in his sweatpants pocket and that, while he was fleeing, he was trying to keep things in his pockets. By all accounts, he kept his cell phone in the opposite pant pocket from where the container had been. He also testified that he did not notice that his hat or the drugs were missing until he stopped running. [152] I agree that there is some significance to the fact that Mr. Nour-Eldin's hat and the M&M container were found in close proximity to each other, namely between two houses on McLallen Court. The Crown submits that one possible and reasonable inference is that Mr. Nour-Eldin discarded his hat and did nothing to recover it, or that he intentionally abandoned the hat to change his appearance. [153] I acknowledge that Cst. Gillan did not observe the M&M container until he saw it in Jake's mouth, but I am satisfied on the totality of the evidence that the hat and M&M container were found in close proximity given Cst. Gillan's relative closeness to Jake as the dog continued his search. The drugs were not flung from Mr. Nour-Eldin's pockets as he sprinted down the cul-de-sac; nor was the M&M container found anywhere near the porch of the residence where the officers ultimately came upon him. [154] I conclude that the reasonable inference is that Mr. Nour-Eldin discarded the container as he ran to protect himself from being found with the drugs, which was his primary reason for fleeing from the police in the first place. I conclude and find as a fact that Mr. Nour-Eldin discarded the M&M container as he ran, throwing it or dropping it to the ground toward that objective. [155] The facts set out in Warsame are distinguishable from those here where the accused only stepped away briefly from his satchel--what can be described as a personal item--only for a short while before being detained. I agree with Devlin J. in Hendrickson that the accused's detention also stands as a distinction from the facts in that case and the circumstances here, distinguishing these circumstances from those addressed in Reddy at paras. 86-87. [156] Mr. Nour-Eldin left the M&M container in a yard to which he had no connection or control. I agree that, unlike in Hendrickson, this was not a clear bag where anyone could easily observe its contents. However, leaving aside a possible unsuccessful search by the police, he could only have expected that anyone, including the owners of the property, might come upon the container and either inspect it (and then possibly report it to the police) or just throw it away. This was also not an item of a more personal nature, such as a bag or satchel, that might attract a more elevated level of privacy interests. [157] I reject Mr. Nour-Eldin's counsel's assertion that there may be "other explanations", such as that Mr. Nour-Eldin hid the container so that he could later retrieve it. Based on all the evidence, there is little support for such a theory. Mr. Nour-Eldin gave no such evidence at this hearing. Indeed, considering how quickly Mr. Nour-Eldin fled the scene, with the officers in immediate hot pursuit, I conclude that this scenario does not have an air of reality. There is no evidence that Mr. Nour-Eldin was familiar with the neighbourhood or took the time to consider any place to "hide" the container. At bottom, Mr. Nour-Eldin was trying to get away as quickly as possible and away from the officers but protected his downside by discarding the M&M container with the drugs along the way in case he was caught. [158] In all of the circumstances, I conclude that Mr. Nour-Eldin has failed to satisfy his onus that he had any further reasonable expectation of privacy in the M&M container. As such, no violation of the accused's s. 8 Charter rights arises. CONCLUSIONS [159] I have concluded that none of Mr. Nour-Eldin's Charter rights were breached in the course of the Nissan's traffic stop, his interactions with the officers or in relation to his M&M container of drugs. His application is dismissed. [160] Accordingly, it is unnecessary to consider the Crown and defence arguments under s. 24(2) of the Charter. "Fitzpatrick J."