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(KIM ANDERSON / iNFOnews.ca)

A Kelowna man who was set to go to trial for charges related to a 2018 traffic stop where he was found in possession of a .22 calibre gun and its ammunition is off the hook.

Brodie Curtis Young was charged with, among other things, unauthorized possession of a firearm, occupying a vehicle while knowing of the presence of a restricted, prohibited firearm and possession of a firearm while prohibited after a November 2018 road stop.

Young’s lawyer, Jordan Watt, successfully contested the seizure of the items in the car and the collection of statements his client made in its aftermath and Young was found not guilty of all the charges levied against him.

Ultimately, Justice Gary Weatherill said the complicating factor in the case was the traffic stop, which he deemed illegal.

If there had been no illegal traffic stop there would have been no discovery of the guns and ammunition and no arrest.

The officers in this case, he said, "over-stepped" and if he'd allowed the Crown to use the evidence obtained as a result of that, it would bring the administration of justice into disrepute

Weatherill laid out the events of Nov. 4, 2018 and how he reached that conclusion in a written decision released today, Aug. 18. In it, he explained that Lake Country detachment’s Const. Rick Marshinew was alone in his marked police cruiser driving northbound on Highway 97 in Winfield shortly after 1 a.m. when he saw a Hyundai driving southbound on Highway 97.

The Mountie decided to conduct a random and routine traffic stop of the car to check for “licensing, insurance, and sobriety.”

“He turned his cruiser around and followed the Hyundai for a short distance,” Weatherill said.

“He did not observe anything of concern. He activated his emergency lights and the Hyundai promptly pulled over and stopped at the side of the highway.”

Const. Marshinew then radioed the Hyundai’s licence plate to his dispatch officer and requested Const. Grebe to attend for backup.

“Dispatch confirmed that the Hyundai was registered to an Anthony Roberts with whom Const. Marshinew was quite familiar,” Weatherill wrote.

“Indeed, Roberts was known by the Lake Country RCMP to be an unsavoury character with a lengthy criminal history including a conviction for robbery and wearing a mask.”

The Lake Country RCMP knew where he lived and officers made a point of keeping an eye on the man who was the subject of a lifetime weapons prohibition.

In addition to an overall understanding of Roberts, Const. Marshinew had recently engaged in an unsuccessful car chase with him, perhaps heightening his awareness of the local criminal.

“Const. Marshinew exited his cruiser and approached the Hyundai. He checked its rear door by tugging on its handle to ensure there would be no surprises,” Weatherill said.

“On his way to the driver’s side door, he also shone his flashlight into the rear and back seat of the Hyundai looking for signs of potential threats. He engaged in a conversation with Roberts who was polite and accommodating.”

Both men identified themselves when asked to do so and Const. Marshinew noted no signs that Roberts might be impaired.

“There were also no licencing concerns,” Weatherill said. “He noted, however, that both occupants appeared more nervous and fidgety than Const. Marshinew was used to seeing while conducting typical traffic stops. He questioned in his mind if the two were up to something criminal.”

Const. Marshinew testified his decision to conduct the traffic stop had nothing to do with suspecting it was Roberts behind the wheel.

“(Const. Marshinew) says that it was not until dispatch confirmed the Hyundai was registered to Roberts that the recollection of Roberts’ firearms prohibition and fleeing from a traffic stop months earlier came back to mind,” Weatherill wrote, adding later he was dubious of this claim.

Const. Hutt was nearby when the car was pulled over and overheard Const. Marshinew’s request that Constable Grebe attend for backup and decided to drive to the scene.

Const. Hutt exited his Tahoe and positioned himself behind Const. Marshinew who was at the driver’s window.

“He, too, recognized the Hyundai from prior dealings with  Roberts and knew of  Roberts’ significant criminal history,” Weatherill wrote. “He knew he had to be extra vigilant when dealing with him.”

Const. Marshinew said there was nothing to indicate Roberts was impaired in any way and although he agreed he had no grounds to do so, he directed Roberts to exit the Hyundai.

He did so, he testified, because both Roberts and Young appeared to be nervous and fidgety and he wanted to separate them. 

Roberts complied.

In the process of getting out, Const. Marshinew saw Young lean forward and quickly stuff something into his jacket.

“This movement was referred to during the voir dire as the ‘stuffing motion,’” Weatherill wrote.

Const. 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 and advised Const. Hutt that the passenger had stuffed something into his jacket.

“Concerned for officer safety, especially since he already knew Roberts was known to carry weapons, Const. Marshinew reacted quickly,” Weatherill said.

“He turned Roberts over to Const. 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. Const. Marshinew described that his eyes were ‘as big as saucers’.”

Young complied with Const. Marshinew’s demand, showed him his empty hands, but then dropped his hands out of sight. This prompted Const. 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 fell out of the accused’s coat onto the ground,” Weatherill said.

“The accused spontaneously volunteered to Const. Marshinew, ‘It’s only .22 bullets.’ At that point, Const. 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.”

Young then told him it was in a black bag on the floor of the Hyundai where the accused had been sitting. He claimed he’d “found it.”

Marshinew asked the accused if he had a licence for the gun and the accused replied that he did not.

Meanwhile, Const. Hutt handcuffed Roberts, secured him at the rear of the Hyundai, and moved to the passenger side. He saw the barrel magazine lying on the ground.

Const. Marshinew immediately arrested Young for unlawful possession and storage of a firearm and handed the accused to Const. Hutt who handcuffed him and took him away to his police vehicle.

Once there, Const. Hutt re-arrested the accused and provided him with both a Charter warning and a police warning. Following Constable Hutt’s Charter warning, the accused stated that he wished to speak to a lawyer.

Constable Marshinew retrieved the black bag from the passenger floor and placed it on the hood of his cruiser. When it was searched they found tools, personal belongings, other paraphernalia, a firearm later determined to be a Ruger .22 calibre semi-automatic, a “banana” clip and clear plastic clip, both almost fully loaded with .22 calibre ammunition.

He also determined that the barrel magazine was nearly fully loaded with .22 calibre ammunition.

Const. Hutt eventually left the scene with Young and drove to the Kelowna RCMP detachment, about 35 minutes or so after the arrest.

After the paperwork was done, Young was released on a promise to appear while Roberts was not ticketed or charged and was allowed to leave the scene in the Hyundai at 2:15 a.m. All told, the officers were at the scene for about one hour.

“Ultimately, the issue boils down to the admissibility of the seized Items which are real evidence and essential to the Crown’s case. There are no reliability issues with regard to the seized Items that militate in favour of their admission,” Weatherill said. “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.”

Weatherill concluded 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,” the judge said.

“This court must disassociate itself from this form of state intrusion and not condone it. 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.”

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