Actions of police under scrutiny at weapons trial
Case focuses on rights of the accused, found with Taser and pot, during search
Sure, Ngandu Tshibangu had a Taser on him when he was searched by Regina police on Feb. 6.
Through his lawyer, Jake Chadi, he admitted it as fact at the outset of a one-day trial held in Regina provincial court Thursday.
Tshibangu stands accused of a number of offences stemming from his arrest on that date, most of which relate to him being in possession of the Taser.
However, the question at trial was not whether he possessed the prohibited weapon. It's about whether police went about finding it in a lawful manner, and in keeping with constitutional rights under the Charter of Rights and Freedoms.
On Feb. 5, just minutes before midnight, Regina Police Service Const. Trent Walker came upon two vehicles travelling one behind the other down Arcola Avenue. When they turned onto Lacon Street, the pickup truck in the rear failed to signal.
The officer, who was the trial's only witness, testified that he stopped the truck (which had a B.C. licence plate), while the van that was ahead sped off.
The officer testified that he observed and learned things that led him to suspect drug trafficking. That included the time of day, vehicles closely following, the truck he stopped being a rental vehicle, the smell of burned marijuana in the cab, the driver's apparent uncertainty in response to simple questions, and police information about the driver's past legal history with trafficking.
What followed happened quickly.
Walker called for more officers and, when they arrived, the truck's driver and a passenger (who police would later determine was Tshibangu) were told they were being detained. Walker said when the men were exiting the vehicle, the driver got his cellphone out, put it on speaker phone and said he was calling his lawyer.
The officer testified that — as the call was in progress — he read the men their rights and warnings. This would include information such as the right to remain silent and the right to speak with a lawyer.
After both men indicated they wanted to speak with a lawyer — and while the phone call with the alleged lawyer was ongoing — Walker questioned them about marijuana in the vehicle and was told there was marijuana in the centre console. The finding of “unstamped” marijuana led to the arrest and subsequent search of Tshibangu, netting a Taser.
Judge Marylynne Beaton posed a number of questions to both Chadi and Crown prosecutor David Belanger while the lawyers made submissions.
“Could he ask that question, once an accused has said I want to speak to a lawyer?” she asked, pertaining to Walker's question regarding the marijuana.
The Crown and defence took different views.
Chadi took the position that all the major steps taken by police following the traffic stop — detainment, arrest and search — were unlawful. He took aim at the officer's stated suspicion, arguing that all of the factors were “absolutely innocuous,” save for whatever information the officer collected about the driver's past legal history with trafficking.
“So, that leaves you with, what? Chicken soup with no chicken, no noodles, just a bunch of salt in it?” the Edmonton-based defence lawyer quipped.
That's what the officer's suspicion amounted to in the “totality of the circumstances,” Chadi submitted.
Belanger took issue with Chadi's characterization of the officer's conclusions. He offered up past cases standing for the proposition that the courts must consider officers need to make decisions at roadside, without the benefit of the insights gleaned by lawyers after the fact.
The prosecutor submitted that the way Walker and his colleagues acted was in keeping with the law.
Both lawyers referenced a 2022 Saskatchewan Court of Appeal case known as “Santos” where the man received an acquittal on appeal after being convicted of cocaine trafficking. That case also turned on constitutional issues. Belanger and Chadi each found similarities or differences that they felt supported their positions in the case at hand.
Ultimately, even if the judge finds there was a breach of Tshibangu's Charter rights through police action, she must still decide whether to exclude the resulting evidence. Should she choose to exclude the Taser as evidence, it would result in an acquittal on the related charges.
To decide this, she must consider three factors that mirror the ones considered by the appeal judges in Santos. They are: the seriousness of the Charter-breaching conduct, the impact to the “Charter-protected interests of the accused,” and “society's interest in adjudication of the case on its merits.”
Chadi argued that the judge should exclude the evidence based on such an assessment while Belanger countered that, should a Charter breach be found, the evidence should be admitted nonetheless.
The prosecutor said “especially in this jurisdiction,” there's a great societal interest in seeing weapons cases judged on their merits.”
“We deal with home invasion, we deal with armed robbery, every single day,” he said.
Beaton reserved her decision and plans to deliver it in May.