BURST
A B.C. Supreme Court judge has thrown out evidence, including two firearms, seized after an “illegal” Okanagan traffic stop followed by a violent encounter with the armed suspect.
Justice Eric Gottardi said RCMP officers who pulled over a vehicle in which Andrew Hardenstine was a passenger violated his Charter rights several times that night.
The first violation was the April 5, 2024 traffic stop in Okanagan Falls because the officers didn’t have legal grounds to stop the vehicle, he said.
In fact, they were acting on an unsubstantiated tip that had been called into the Penticton detachment saying that Hardenstine was trying to sell two firearms that night so he would have cash to flee to the U.S.
“I conclude this was an arbitrary detention and the rights of Mr. Hardenstine … were infringed,” Gottardi said in the ruling, released Tuesday.
Two of Mounties approached the vehicle and pulled guns on Hardenstine, who had a long history with police and was considered “armed and dangerous.” There was a warrant out for his arrest at the time.
A violent struggle ensued, which the officers all testified Hardenstine started when he lunged at and punched one of the officers.
But Gottardi said dashcam video didn’t support the testimony about how the encounter began. One of the cops used his taser 10 times on Hardenstine, he said.
The officers used excessive force, Gottardi ruled, despite their stated fear and the fact they saw a rifle over the suspect’s shoulder, which they grabbed and threw into nearby bushes.
“While I accept that Mr. Hardenstine was combative and resistive to arrest, I am not satisfied that the decision to deploy the taser on 10 separate occasions was objectively necessary,” Gottardi said.
Once Hardenstine was handcuffed, an ambulance was called and police searched the vehicle, finding the second firearm, “a loaded handgun with magazine on the ground next to a handbag beside the open passenger door of the vehicle,” the judge said.
But despite a 23-minute wait for paramedics, Hardenstine was not given his Charter warnings or the chance to call a lawyer until he was en route to hospital, the ruling said.
“According to the officers, Mr. Hardenstine’s face was swollen and bloody. Throughout the waiting period for the ambulance, there were moans and other clear and obvious sounds of pain coming from Mr. Hardenstine,” Gottardi said.
“Mr. Hardenstine was left in the ditch on his side while waiting for the ambulance.”
Both the delay and the search of the vehicle without a warrant were additional Charter violations, the judge said.
“I have concluded that the state misconduct was serious and had a substantial negative impact on Mr. Hardenstine’s Charter-protected rights. While I accept that the detection of firearms and those who might traffic in them is a serious societal concern, the principles which govern police officers’ legal authority to stop and detain members of the public is well-defined,” Gottardi said.
“At its most basic, the police got a tip of unknown reliability and pulled over the Chevy on a hunch that this might be the car that they were looking for. The fortunate fact that their hunch proved correct does not render it lawful.”
He said that while the firearms charges against Hardenstine would be stayed, the accused still faced other counts that would proceed.
kbolan@postmedia.com