Dashcam footage of excessive police force in combination with unlawful grounds for a traffic stop and search have resulted in a key physical evidence being tossed in a case against a prolific South Okanagan offender.
Andrew Robert Hardenstine is facing charges of including illegally possessing a weapon or ammunition to transfer, possessing a prohibited or restricted firearm, possessing a firearm without a licence or registration, occupying a vehicle knowing a firearm is present, possessing a firearm while prohibited, wilfully resisting or obstructing a peace officer, disarming a peace officer and assaulting a peace officer, stemming from his arrest on April 5, 2024.
Before the criminal trial, Hardenstine attended in Penticton court for four days from Feb.18 to 21, for a voir-dire, which can be thought of as a mini trial-within-a-trial. The purpose of a voir-dire is to determine the admissability of certain pieces of evidence or to address potential breaches of Charter rights.
The details of the evidence presented at the voir dire were published on May 12, along with BC Supreme Court Justice Eric Gottardi's reasons for his decision to uphold Hardenstine's Charter challenges.
"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," Gottardi said in his conclusion. "The fortunate fact that their hunch proved correct does not render it lawful by virtue of an ex post facto review."
According to the judgement, on the day of April 5, the RCMP been given a tip from a man later identified as Aaron Brown, initially using a fake name, who said that he had arranged to meet Hardenstine to purchase guns from him and that accused allegedly planned to use the money to flee the country.
At the time, Hardenstine was wanted on warrants for unrelated charges. Those charges resulted in a one-year jail sentence issued on April 25, 2024.
Brown changed the location of the alleged sale about 10 times, didn't give a precise time, a make or model of the vehicle Hardenstine would arrive in, how many people might be in the vehicle, and reportedly displayed a "strong animus toward Mr. Hardenstine," the judgement reads.
The police ended up setting up observations posts around Okanagan Falls where they waited for just five minutes before pursuing a vehicle that briefly pulled in behind the gas station without seeing any details of who or how many people were inside.
After the vehicle left, one of the five responding officers pulled it over, telling the court that officially it was out of road safety concerns. Justice Gottardi had found that the traffic stop that kicked off the evening's proceedings lacked merit, having been done not out of concern for driving behaviour, but purely to determine if Hardenstine was present.
"I find that Const. Poulton’s determination to confirm the presence of their target in the vehicle 'blinded him to the constitutional requirements of reasonable grounds,'" wrote Gottardi. Later on he stated, "In his direct evidence, Cst. Poulton testified that he knew he could not pull the vehicle over simply for the purpose of identifying whether Mr. Hardenstine was in the vehicle."
Despite the officers testifying that Hardenstine had popped out of the stopped vehicle and was aggressive, dash cam footage showed him in the passenger seat with a hat and his head down.
The video shows one of the officers opening the passenger door, and then him and a second officer draw their guns and point them at Hardenstine who doesn't initially move.
The officers reach out, and after a brief struggle in the vehicle, pull Hardenstine out and onto his feet, and from there the struggle intensifies before moving out of frame of the camera.
During the ensuing struggle, one of the officers removes a long gun from Hardenstine's back as he was kicked, punched, kneed in the ribs and around his kidneys and tazed 10 times before being arrested.
"After he was handcuffed, several officers described Mr. Hardenstine’s condition and appearance," said Gottardi. "I accept that his face was bloodied and swollen. I accept that he was in pain through the course of the struggle and after being secured in handcuffs. There is no doubt that he can be heard calling out in pain and moaning, both during the course of his arrest and afterwards."
Gottardi noted that the officers may have had reasonable fear given Hardenstine's physical stature, resistance and possession of firearms, the repeated use of the conductive energy weapon was excessive and knowingly life threatening.
The Justice noted that even if it weren't for the excessive tazing, any force against Hardestine would have been a Charter violation due to the basis for the stop being arbitrary.
"I note that the officers in this case no doubt believed that once they had identified Mr. Hardenstine, the warrants provided the authorization necessary to arrest," said Gottardi. "Here, despite there being legal authorization to arrest in the form of the warrants, the unconstitutionality of the detention renders the arrest unlawful, and therefore any use of force unlawful. But for the arbitrary detention, the arrest would not have been executed."
It took more than 20 minutes for an ambulance to arrive, with Hardenstine left on his side in the ditch, and it was only after he was being treated that the reason for his arrest and right to an attorney were provided to him, which was another Charter violation.
The Justice also threw out the RCMP's search of the vehicle after Hardenstine was arrested, due to having followed as a consequence of the groundless stop and arbitrary detainment.
"The encounter between the police and Mr. Hardenstine demonstrates layers of Charter non-compliance and an overall reckless disregard for Charter rights," Gottardi said. "I have found that the initial stop was a pretext to identify Mr. Hardenstine and that the police knew they had no grounds for an investigative detention after that point. It cannot be said that they honestly believed they had not committed this initial breach."
As a result of the Charter violations, all of the evidence that was seized during and following the arrest and search of Hardenstine and the vehicle were tossed out.
The Justice did not dismiss the charges, which may still proceed to trial without the physical evidence.
Hardenstine's criminal record dates back to 1999, with it being largely uninterrupted except for periods when he was serving jail sentences.
In 2013, he already had 57 previous criminal convictions. He received a three-year jail sentence in that case after the trial suffered delays when his initial defence lawyer asked to be taken off the case following Hardenstine’s interruptions of the judge.
In 2018, he was arrested with a small arsenal of firearms, including multiple pistols, a homemade-style shotgun, a crossbow and numerous rounds of ammunition in addition to drugs.
