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Drugs, guns found after driver makes legal U-turn in Chilliwack not admissable, judge rules

Officer who thought all U-turns are illegal pursued driver leading to several charter breaches
The new Abbotsford Law Courts. (John Morrow/ Abbotsford News file)

A prolific offender caught with drugs and guns in a vehicle in Chilliwack is likely off the hook thanks to confusion over the legality of a U-turn.

Daniel Jacob Cluett faced numerous drug trafficking and firearms charges after a traffic stop on April 3, 2019, but the officers involved in Cluett’s detention violated several sections of the Charter of Rights and Freedoms, according to a BC Supreme Court judge.

Chilliwack RCMP officer Const. Erich Kern was searching for a stolen vehicle on First Avenue the night of the incident two years ago, when he saw a westbound Toyota Camry make a U-turn.

“At that time, Cst. Kern understood all U‑turns to be illegal,” Justice Robert Jenkins wrote in his ruling.

The problem is, U-turns are only illegal under certain circumstances, so everything that followed was based on a mistaken legal premise.

Kern followed the Camry, lost it, then later found it on Margaret Avenue in front of an apartment building. He ran the plates, spotted Cluett walking towards the building and told him he wanted to talk to him about a U-turn.

He then asked to see a driver’s licence and when Cluett said he didn’t have one, Kern asked if he was prohibited from driving, an arrestable offence.

Cluett admitted he was prohibited. Kern arrested him and handcuffed him, but the officer did not provide a Charter warning nor advise Cluett of his right to remain silent and retain counsel.

Two more officers arrived to assist Kern, Const. Kyle Toole and Const. Zachary Leheniuk.

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The judge wrote in the facts of the case that the officers testified that Cluett wanted to get to the Toyota, and at one point ran for the car but was taken down by Leheniuk and Toole.

In the process of writing a ticket for an illegal U-turn (which was not illegal) Kern discovered Cluett was prohibited, which meant the vehicle would be impounded.

Const. Toole asked Cluett about illegal drugs seen in a baggie in the car, Cluett responded it was heroin for personal use. Further searches of the vehicle turned up methamphetamine, fentanyl, approximately $40,000 in cash, and two semi-automatic pistols.

As part of the trial, a voir dire (trial within a trial) was launched with Cluett alleging several breaches of his charter rights, specifically sections 7, 8, 9, 10(a) and 10(b).

Sections 7 and 10 are essentially about the right to remain silent and the right to counsel. Section 8 is the right to be secure against unreasonable search and seizure, while section 9 protects Canadians from arbitrary detention.

Justice Jenkins ruled that between Kern and Toole – who were both new Mounties at the time – they violated all of the charter rights as claimed by Cluett.

“I have established … how there was no justification for the initial detainment of Mr. Cluett. He committed no wrong when making a U‑turn on a quiet, empty road,” Justice Jenkins ruled. “Had he not been detained, none of the following arrests, unlawful searches, or other breaches would have occurred.”

Since sections 7 and 10 were violated, anything Cluett said to self-incriminate was excluded by the judge. And since sections 8 and 9 were violated, the drugs, money and guns found in the vehicle were excluded.

“Mr. Cluett’s freedom and privacy have been seriously curtailed with his arrest and subsequent detention,” Justice Jenkins rule.

“All items seized in the searches of the Toyota may not be placed in evidence at the trial of this matter. Similarly, any admissions or statements made by Mr. Cluett prior to and after his arrest are not admissible at trial.”

The oral decision in the voir dire – a trial within a trial – came in BC Supreme Court in Abbotsford on July 27 but a written decision was released this week.

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