Through detention, questioning, arrest and search, police violated the constitutional rights of Ngandu Tshibangu, according to Judge Marylynne Beaton.
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A man who faced charges relating to possession of a Taser when searched by Regina police has been found not guilty on all counts.
Ngandu Tshibangu had the prohibited weapon on him, as alleged, when he sat as a passenger in a truck pulled over by Regina Police Service (RPS) Const. Trent Walker just minutes before midnight on Feb. 5.
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He admitted it through his lawyer, Jake Chadi, at the outset of his one-day trial that ran in Regina provincial court on April 26.
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But the case hinged, in large part, on whether police discovered the Taser in a lawful manner. The defence argued that it was not, on multiple fronts.
Judge Marylynne Beaton found police breached a number of Tshibangu’s constitutional rights under the Charter of Rights and Freedoms.
Walker pulled the truck over after the driver failed to signal at a turn. He testified he had reasonable suspicion that the driver and passenger were involved in drug trafficking.
His stated grounds included: the time of day, the truck closely following another vehicle, the truck 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.
“The grounds on their own, other than the drug trafficking charge, were innocuous and not remarkable, especially since cannabis is now legal,” the judge noted.
The previous drug charge, along with the other factors, did not “tip the scale” to establish reasonable suspicion under the law, she said.
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Since the officer’s rationale did not pass the test for reasonable suspicion, he didn’t have grounds to detain the men, thereby breaching Tshibangu’s right against arbitrary detention, Beaton concluded.
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As well, the fact that Walker continued to question the men after they had asked to consult with a lawyer was “not proper,” the judge said, noting this violated Tshibangu’s right to retain and instruct a lawyer without delay.
After questioning, police found there was cannabis in a Ziploc bag in the vehicle, and proceeded to arrest the men. During a search, the Taser was found. The judge said evidence did not establish that possession of the marijuana was illegal, and the “constellation of factors” did not amount to reasonable grounds to believe Tshibangu had committed an indictable offence.
“Therefore any search incidental to arrest was contrary to Section 8 of the Charter,” the judge said, referring to the section that protects Canadians against unreasonable search and seizure.
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Notwithstanding these breaches of Tshibangu’s rights, the judge still needed to conduct an analysis of whether the evidence procured through these breaches — in this case the Taser — should be admitted as evidence in the trial.
“The question to be answered is whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute,” she said.
Ultimately, she ruled that the evidence of the Taser had to be excluded, and as a result there was no longer any evidence to support a conviction.
“I therefore find Mr. Tshibangu not guilty of all of the charges,” she said.
Tshibangu smiled as he left the courtroom.
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