KAMLOOPS - A Supreme Court judge has overturned a decision to acquit a Kamloops man of eight gun-related charges, after finding the police officer who questioned him was just doing her job.
Charles Gerald Patrick will be back before the courts after Supreme Court judge Gregory Fitch ruled the original trial judge erred in acquitting the man of several firearms offences.
Patrick was arrested during a traffic stop in Kamloops in December 2013. Supreme Court judge Hope Hyslop acquitted Patrick of all of his charges after a Voir Dire hearing in November.
Hyslop ruled that Patrick's rights were violated when investigators searched and seized items from him at the traffic stop, which led to an "incomplete warrant" to search his Westsyde home.
But on Feb. 3, judge Gregory Fitch for the B.C. Court of Appeal ruled that Hyslop erred when suggesting Patrick's rights were violated during the traffic stop. A new trial will be held for three charges instead of the eight he was originally charged with.
In the early morning hours of Dec. 11, 2013 Cpl. Kelly Butler activated her emergency lights and stopped Patrick's SUV which was being driven on a dimly lit street. Three other large men were passengers in the vehicle and Butler was alone at the time.
She stopped the SUV because she recognized the licence plate and was aware of a complaint that someone was attempting to register the vehicle in the name of a person whose identity had been stolen.
Butler testified she was concerned for her safety, after seeing a passenger who appeared to have been assaulted and questioning the people in the vehicle about a passed out man inside the SUV. No one seemed to know who the man was or what was wrong with him.
She felt uneasy and requested back up. Butler then asked Patrick to step out of the vehicle. She noticed a "bulge" on his right shoulder and asked if he had anything on him.
Patrick admitted he had a shotgun and another officer seized it from him. He was taken to the Kamloops RCMP detachment for further questioning.
Hyslop originally ruled that Patrick's rights were violated when Butler asked if he had anything on him and what it was. She questioned Butler's belief that her safety was at risk.
"None of (the occupants) initiated any action that would cause any of the police officers present to be concerned for officer or public safety," Hyslop said.
Fitch says in his written decision that police obtained a search warrant for Patrick's home, where they seized two stolen firearms and ammunition. During the trial, Hyslop questioned Butler over whether she had reasonable concerns for her safety, which led to the roadside search.
"In any event, the judge found that the questions Cpl. Butler asked (Patrick) at the roadside and the response those questions elicited constituted an infringement of (Patrick's)... rights," Fitch said.
Patrick didn't have the opportunity to speak with a lawyer until he arrived at the Kamloops detachment, about 40 minutes after the roadside search. Hyslop originally ruled that Patrick's rights were violated when he wasn't able to speak with a lawyer at the time of his arrest.
"Corporal Butler’s reasons for not providing a cell phone to Mr. Patrick in the back of the police car were that he could not have a private conversation, the phone could be broken, he might call others, and his handcuffs would have to be released to operate a telephone," Hyslop said. "Despite the availability of a cell phone, Mr. Patrick was not offered one so that he could contact counsel. l have concluded that Corporal Butler had no intention of offering a cell phone to Mr. Patrick to contact counsel. She was unaware that her Charter obligation was to permit Mr. Patrick to contact counsel “without delay”."
She also ruled that his rights were violated when police executed an "error-ridden" search warrant at Patrick's home.
"I am of the view that the trial judge erred in law in her analysis of whether Cpl. Butler’s subjective belief that her safety was at risk was objectively reasonable," Fitch said. "I am also of the view that she erred in law in concluding that Cpl. Butler could not ask the respondent any questions preliminary to or in the course of executing a protective pat-down search."
Crown took no issue with that ruling and Fitch agreed that the search warrant for the home was not complete. Fitch said he would partially grant Crown's appeal, which would mean a new trial on the three charges stemming from the original traffic stop. A new trial date has not yet been set.
After the search of Patrick's Westsyde home, Kamloops RCMP displayed some of the items seized during the search.
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