Facts
Mr. Hardenstine was wanted for arrest on several outstanding warrants, and in the evening of April 4, 2024, police received a tip from an individual who said he knew Mr. Hardenstine’s whereabouts. The caller advised police that Mr. Hardenstine had agreed to sell him two firearms and that Mr. Hardenstine intended to use the sale proceeds to leave the jurisdiction. The caller gave police a false name, changed the location of the alleged sale several times, and did not provide police with any details about the type of vehicle Mr. Hardenstine would be driving. The officer who took the call initially believed the caller was lying; however, despite the officer’s reservations about the informant, the detachment was briefed on the call.
At approximately 1:30 a.m., four officers positioned themselves near a gas station where the sale was meant to take place. The officers observed an older vehicle pull in behind the gas station, stop for a moment, then leave. The officers were unable to see the occupants of the vehicle and decided to initiate a traffic stop for the purpose of confirming whether Mr. Hardenstine was in the vehicle. During trial, when the officer who initiated the stop was asked why he initiated it, he stated: “… obviously because we can’t just stop to ID people, I stopped the vehicle for road safety”.
When the senior officer walked up to the vehicle, he was able to identify Mr. Hardenstine on sight. He opened the passenger door and advised Mr. Hardenstine that he was under arrest but did not say what for. Mr. Hardenstine resisted arrest, and a physical altercation ensued between Mr. Hardenstine and all four officers. The officers punched Mr. Hardenstine in the head, face, and body, delivered knee strikes to his ribs and kidney area, and deployed a conducted energy weapon to Mr. Hardenstine’s lower back 10 times.
The officers were ultimately able to complete the arrest and conduct a search of Mr. Hardenstine and his vehicle. The officers found two firearms and ammunition. After the search, when Mr. Hardenstine was with paramedics, one of the officers advised Mr. Hardenstine of the reasons for his arrest, read him his rights from a charter card, and asked if he wanted to speak with a lawyer.
At trial, Mr. Hardenstine applied to have all the evidence seized during his arrest excluded on the basis that his Charter rights were violated. Among other things, Mr. Hardenstine argued the vehicle stop was an unlawful detention contrary to s. 9 of the Charter, and the officers’ use of force was excessive and violated his s. 7 right to security of the person.
Unreliable Information Cannot Justify Investigative Detentions
Without a lawful basis, a random traffic stop presumptively violates s. 9 of the Charter, which protects individuals from arbitrary detention.
The Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA] provides authority for two types of traffic stop: (1) a stop based on an observed traffic infraction or violation; and (2) a random stop to enforce traffic or vehicle safety laws. The latter type is arbitrary but is justified under s. 1 of the Charter so long as the actions of police fit within the pressing and substantial objective of promoting traffic safety. In this case, based on the officers’ testimony, the Court found that the traffic stop was not conducted pursuant to the MVA. Rather, it was a “pretext” to further investigate the police tip about Mr. Hardenstine provided by an informant.
Police have common law authority to detain an individual for an investigative detention. However, the officer must subjectively believe they have reasonable suspicion when they detain the person, and the grounds for detention must be objectively reasonable in the circumstances.
In this case, the officer’s evidence was that “… obviously because we can’t just stop to ID people, I stopped the vehicle for road safety”. Based on this evidence, the Court concluded that at the time of the detention, the officer did not subjectively believe he was exercising his common law power to detain the vehicle to investigate a particular crime. Therefore, the stop was an unlawful violation of s. 9 of the Charter.
The Court went on to conclude that even if the officer truly believed he had reasonable suspicion to detain the vehicle, the belief would not have been objectively reasonable because the officers were investigating an unreliable tip, given by an individual who gave a false name, and changed his story several times. The Court noted that initially, the officer who took the call believed the informant was lying. The Court held that on balance, there were insufficient objective grounds to justify the traffic stop in the circumstances, and the stop was a breach of Mr. Hardenstine’s s. 9 Charter right against arbitrary detention.
The Court went on to conclude that because the initial detention was unlawful, it tainted the subsequent arrest and search of Mr. Hardenstine. Police have a common law power to search for an incident to arrest where (1) the person is lawfully arrested; (2) the search is truly incident to arrest; and (3) the search is conducted reasonably. Here, the Court held that police could not rely on an identification of Hardenstine – obtained through unconstitutional arbitrary detention – to ground a lawful arrest. Therefore, Mr. Hardenstine was not “lawfully arrested” and the first precondition of a lawful search was not met. The arrest and search were therefore unlawful and a further breach of Mr. Hardenstine’s Charter rights.
Excessive Use of Force
The Court went on to consider whether the officers’ use of force against Mr. Hardenstine was lawful, or whether it was an unjustified breach of his s. 7 right to life, liberty, and security of person.
Section 25 of the Criminal Code provides legal authority for police to use “elevated” force –meaning force that is intended or likely to cause death or grievous bodily harm, including serious hurt, pain or injury. In all cases, the degree of force an officer may use to complete an arrest, or prevent a suspect from escaping custody, must be proportionate, necessary, and reasonable. Due to the highly stressful and often dangerous nature of police efforts, courts are careful not to hold police to an exacting “after-the-fact” standard. In considering whether a use of force was reasonable, courts will consider, among other things:
- whether the arrestee is resisting arrest and/or failing to comply;
- the relative height, weight, and size of the officer and the arrestee;
- the urgency of the situation;
- the time available for the officer to react;
- any information that informed the officer’s belief that the arrestee was a threat;
- whether the officer believed that the arrestee was armed;
- the relative number of officers involved; and
- the alternatives to force that were available to the officer.
In this case, the Court noted that pursuant to s. 25(4) of the Criminal Code, a lawful arrest is a precondition to the use of elevated force. Having found that Mr. Hardenstine’s arrest was unlawful, the Court could have ended its analysis here. However, the Court went on to consider the circumstances.
The Court accepted the officers were afraid, and that their fear was reasonable in the circumstances. The officers knew Mr. Hardenstine was considered armed and dangerous and had a history of fleeing from police. One of the officers noticed a gun during the struggle and called out “gun, gun”. The Court held that while the use of force by the officers was “close to the line”, what pushed it over the line as “excessive” was the use of the conducted energy weapon. Based on the taser log, each of the ten deployments was separated by “a mere one or two seconds”, which called into question whether there was an objectively reasonable possibility that the officer “could have been actively assessing the need to continue deploying” it. The Court held that the “lack of any clear efforts on the part of [the deploying officer] to pause and re-assess the necessity of a further deployment in this case borders on reckless”.
TAKEAWAYS
The Hardenstine decision serves as a cautionary tale against placing too much weight on unreliable police tips. In Hardenstine, while the officers were able to locate, identify, and arrest the correct individual, they placed too much weight on an unreliable tip, and did not have objectively reasonable grounds to lawfully detain the suspect. As a result, the subsequent arrest, search, and use of force against Mr. Hardenstine were unlawful, breached his Charter rights, and resulted in the exclusion of the evidence against him.
This decision also serves as a reminder to officers that when using elevated force, they must continue to assess the situation and determine whether the continued use of elevated force is necessary. While police are not held to an exacting standard based on the benefit of hindsight, they are not authorized to use reckless force against a suspect.
If you require additional information or further assistance, please contact David McKnight and Naomi Krueger.
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