R. v. Phoummasak 2013 BCPC 391 – I came upon this interesting case from late last year and thought it was worth posting. If any of you would like to read the full case and can’t find it, send me an email and I will forward it to you. Mr. Phoummasak, the accused, was targeted by the Abbotsford Police Department through information that they had received that he was dealing drugs in an area. As a result of that, this particular area was targeted by undercover officers. It was a bush area bordered on one side by railway tracks and across from the railway tracks there was a chain link fence which blocks off an industrial complex. On the other side was a swampy, low-lying level of bush which included trees, blackberry bushes, and brush, quite dense and, although there may have been a few trails through it, it was basically undeveloped land.
Police surveillance was done in this area. Two plainclothes officers were dispatched to attempt to find the accused and, if possible, to engage in a drug transaction. An officer (Doucette) headed out sometime around three o’clock in the afternoon on November the 21st. The accused was observed on the railway tracks by the officer. Doucette was hiding in the bush area. He observed the accused in black clothes. He was, from the officer’s perspective, some 50 feet perhaps away or even more, wearing black clothing, and carrying a black-and-white backpack. He observed that there were two unknown people, a male and a female, on the train tracks and it would appear that they were involved or seeking to find drugs and looking for Mr. Phoummasak.
The undercover operators engaged with these people. Doucette observed this and observed that there appeared to be some interactions between not only the undercover operators and these unknown people, but it would appear with the accused and the unknown people as well. At some point, Doucette was advised by radio that Mr. Phoummasak was arrestable as a result of what the undercover operators and other officers had seen. Doucette was advised that Mr. Phoummasak was running toward the industrial area and the Superior Propane tank, which was a very, very large tank which the police used in the course of this investigation as a reference point.
Doucette headed up to an area on the railway tracks where he saw the accused come out of a clearing. At that point, Doucette yelled to Mr. Phoummasak, “Abbotsford Police Department. You’re under arrest. Get down on the ground.” Mr. Phoummasak froze. He had his hand on the backpack. He stepped back into the bush. The officer’s opinion was that he thought that Mr. Phoummasak was going to drop the backpack, as he had his hand on the shoulder strap in a fashion that would suggest he was about to dump that off.
Doucette, a few seconds later, saw another officer (Burrows), another member of the Abbotsford Police Department, come to the clearing. He told Burrows that he should be very careful as Mr. Phoummasak was very close. Doucette had not heard at that point any further noise coming from the bush area and so he directed the police to this clearing and further into the brush. He described it as thick dense bush area at least ten feet. He testified that the police had police jackets on, the sort with fluorescent lettering that says “police”. At around five o’clock, Doucette was down in the clearing area and located the black-and-white backpack that he said he had seen over the back of Mr. Phoummasak. He also saw a red light blinking and picked up a cell phone; it was functioning. In fact, that cell phone was determined to having been used at some point in drug transactions.
Doucette said that the police there, Sgt. Jack, who was perhaps the officer in charge, had a discussion about calling the Canine Unit, which would be Diego and Cpl. Scott. Doucette testified that he gave two loud, clear notices to the bush area that the dog was going to be called. He said, “Come out and you won’t be harmed.” From that point until when the Dog Unit arrived, approximately 20 minutes elapsed. It was now 5:30 p.m., November the 21st, and it was getting dark quickly at that time. Cpl. Scott testified he has been a police officer for 16 years. He has been a dog handler for seven. He has had two dogs and his current dog is Diego. He testified that Diego is being retired or perhaps has already been retired and that Cpl. Scott is in the process of training another dog. He said he is the only person who works with Diego, that he has trained at Innisfail, Alberta, which is the RCMP training centre for dogs and this extends to other police forces. He said that Diego has been trained for two general purposes; dual purposes that is, general and narcotics searches. He is trained to search and track and he is also trained to sniff out drugs.
The first thing that he did was he engaged Diego in trying to find some sort of a scent. He received the call while he was in Chilliwack, which is a 20 to 25-minute drive away. He arrived on-scene. He was briefed by the members. He was directed to a specific part of the wooded area. As he testified, this is a wooded area surrounded, if you will, by businesses and stuff but it is low-lying, swampy terrain. He said it looked to him as if it was somewhere around 400-by-200 metres, which is a fairly significant area, if you are calling it a wooded, dense brush. He said that when Diego was first deployed, he was in a harness; he was on a 25-foot line. He testified that this is a very manageable arrangement even in the bush. He commanded Diego to search for a track. Diego did indicate one so he started in the search mode and then he began to track. He believed that this was Mr. Phoummasak’s track because he was told that other police officers had not been in that area as of yet and so he was what he believed on the track of Mr. Phoummasak. He said that Diego began to pursue the track. He had his nose to the ground and he was pulling on the harness which to him is a sign that he has his dog on track; the dog is moving and, in particular, following a track. He said he went through the thick swampy area and he had Diego at that point on a 20-foot length. He said he was accompanied by a Det. Gamboa, the “runner”, who was there for protection of the dog handler.
As a result of Diego following a track, he found a black toque and that was seized. He then continued to track after he found that. He then lost the track. It would appear that the area had been contaminated by the other police officers who had gone in the area, which is what was told to Cpl. Scott. At that point, Diego’s head came up, he stopped pulling on the harness, he circled to try and find the track. The dog was indicating to Cpl. Scott that he was no longer able to track and then he was put into a search mode to try and find either a continuation of that track or a different track. He was removed from his harness. The line remained on him and he was given the command to search. It was very shortly after that that Diego indicated to Cpl. Scott that there was a presence of a human odour. At that point, Diego was under the control of Cpl. Scott. The line remained on him and Diego began to move. Cpl. Scott said that Diego worked the scent uphill towards the railway tracks and it was close to the fence line that separated Superior Propane. There were no lights. He did not have a flashlight. It was getting dark. It was very dense and thick blackberry bushes. There were some trees, there was foliage, there was very little illumination other than moonlight and it was heavily treed, it was very dense.
Cpl. Scott testified that he thought that the source of the scent could be on the other side of the fence. Cpl. Scott did not know where Mr. Phoummasak was. He said that Diego reached a thicket of blackberries, which of course given the thorns would be a difficult place for the police to go into themselves without having to get down on your hands and knees (big concern for officer safety). Cpl. Scott testified that he thought Diego would get up to the fence line. That they would probably be crossing the fence line and having to continue on with the tracking on the other side. However, at that point, Diego went under the blackberries. Diego was about 20 feet away, ducked under the blackberry bushes out of Cpl. Scott’s view completely. He heard Mr. Phoummasak yell out. Diego was not barking. Cpl. Scott pulled Diego back from underneath the blackberries, said there was resistance because Mr. Phoummasak was also being pulled by Diego. Diego did bite him on the upper thigh, causing a single puncture wound.
The accused was charged with two counts of possession of drugs for the purposes of trafficking. The accused raised the issue of whether the deployment of the police dog to the extent that he was bitten by the police dog while hiding from the police was a use of excessive force and brings into play the Charter of Rights and Freedoms such that the appropriate remedy would be either a judicial stay of the proceedings, or at the very least, an exclusion of the evidence that flowed from the use of the police dog, which in this case, would be the finding of the accused in the bush and his, therefore, subsequent identification by the police as the person found in the bush.
I won’t get into all the details of the types of police dog training discussed in this case, or the experts that testified on behalf of the defence or the Crown because it was quite in-depth, but suffice it to say that for the junior members and cadets, the two types discussed were the bark-and-hold (and the net-and-harass which is very close to the bark-and-hold) and the bite-and-hold (called find-and-bite by some agencies). In the end, this is what the Provincial Court Judge decided:
We have a known drug dealer; we have a person who has been evading the police for a period of approximately a half an hour before the dog arrives. The individual had been given an opportunity to present himself to the police and been given an opportunity to surrender with, other than being arrested, no further consequences in terms of physical difficulties. Indeed, he was even given a further 15 minutes while the dog was looking for him where he could have at any time given himself up. The circumstances further being it is dark, it is November, it is a heavily wooded, dense area where the accused was effectively invisible to the police. No one knew if he was armed. I am not suggesting that they knew one way or the other. They just did not know. They did not know anything about where he might go if he got away from the police or what might happen if he got away from the police. That is just a given in the circumstances. Again, as I say, these cases are all distinct. Every single case is distinct. Some may be similar to others but every case is distinct. What subjectively was the situation that Cpl. Scott found himself in and the other officers of the Abbotsford Police Department? Well, subjectively they had what I have indicated which is a known drug dealer, a significant amount of drugs and money found, cell phones found, that clearly observed transaction in their mind that involved the transaction of the hand-to-hand exchange of drugs and money. Further, they had a dark area, an unknown person who they did not know where he was.
Was it reasonable to deploy the dog? Yes. … The issue then is, is what happened when the dog bit Mr. Phoummasak? Subjectively, is that either a reasonable use of force or an unreasonable use of force? From the police perspective, given Cpl. Scott’s evidence that, in his mind, he thought Mr. Phoummasak was not close by, that he could have gone over the chain link fence. Cpl. Scott was simply engaged in the searching and tracing for Mr. Phoummasak and tracking at the point when Diego began to pull on the harness and move in a straight line. Cpl. Scott knew and would have known that Diego actually had some sort of a track.
… When the dog went underneath the bushes, Cpl. Scott, at that point, subjectively, had no indication that Mr. Phoummasak was there. It is not unreasonable for the dog handler to have the dog on a 20, 25-foot lead. The dog was not let go. The dog was not given a command to bite, all of which from an objective perspective, is reasonable conduct on the part of the police. In the dark with Mr. Phoummasak refusing to give himself up, in my respectful view, subjectively, Cpl. Scott was acting well within the bounds of his training. He fit within the standards that have been set across Canada for the use and deployment of a dog such as Diego and, accordingly, in my respectful view, subjectively and objectively he was legitimately engaged in the execution of his duties. He was not exerting any force against Mr. Phoummasak.
… [T]he deployment of Diego with Cpl. Scott was a legitimate police operation. While it is regrettable that Mr. Phoummasak was bitten by the dog, it is a situation that appeared to have been inevitable because of not just the training of the dog, but the fact that Mr. Phoummasak chose to remain hidden. Therefore, I do not find that it is an excessive use of force. …
Firstly, I do not find a Charter breach. If I did, I would rule the evidence admissible and I would decline to enter a judicial stay of proceedings.”