A B.C. Supreme Court judge says the Surrey RCMP violated two robbery supects’ Charter rights and as a result has ruled a raft of evidence inadmissible at trial.
The defence argued that the police traffic stop – in Newton near the bus loop – was motivated by racial profiling, the judge noted in her ruling, “and later became a ruse to gather evidence” for the robbery investigation.
The Crown, on the other hand, argued the police stop was motivated by “legitimate traffic and vehicle safety reasons, as well as for the purposes of a valid criminal investigation.”
After a voir dire hearing –which is essentially a trial within a trial where the Crown and defence argue on what evidence should be rejected or considered by the court – Justice Palbinder Kaur Shergill in New Westminster decided to exclude evidence related to what she found to be an unlawful police stop and unlawful search and seizure.
This, she decided, embraced evidence obtained during a police stop in Newton, evidence that the vehicle was driven by Suleiman Mohamed Abdullahi, the identity and description of the passengers, description of the knife, all photographs taken by a constable during the stop and all items seized by police when they searched two residences.
“In my view, the police stop was tainted from the outset,” Shergill noted in her ruling. “Though I am not able to conclude with any degree of certainty that racial profiling occurred in this case,” she said, the evidence led her to a “strong suspicion that this is precisely what motivated” police to initiate the police stop.
“In my view, the allegation of the smell of fresh marijuana emanating from the vehicle was nothing more than a ruse,” she said, that was designed “to legitimize an unlawful police stop” and afford police “the opportunity to gather evidence for the robbery investigation.”
Abdullahi and Ahmed Ali Ismail were each charged with one count of robbery, having their faces masked with intent to commit an indictable offence, unlawful confinement and carrying a weapon for a purpose dangerous to the public peace or for committing an offence.
This was in connection with the robbery of the Ritecare Pharmacy in Surrey on Oct, 10, 2017.
The pair were alleged to be among five masked robbers and the question before the court was their identity.
“In arriving at this conclusion,” Shergill said of her ruling, “I am mindful that this Court has to carefully balance the interest of public safety against the Charter violation. I appreciate that exclusion of the evidence could mean that a potential conviction of a person or persons for robbery and other related criminal conduct, may be lost. However, when all factors are balanced, the harm to the reputation of the justice system which would be engendered by inclusion of the evidence, is far outweighed by the harm that would flow from excluding the evidence.”
Shergill also found that the constable who did the traffic stop “also breached the accuseds’ rights to be informed of the reasons for their detention, by failing to tell them that the reason for the stop was to aid in the robbery investigation.”