Photo: File photo

South Okanagan prolific offender has evidence collected against him thrown out by a B.C. Supreme Court judge after finding officers breached his rights

A B.C. Supreme Court judge threw out evidence against a South Okanagan prolific offender, ruling it was collected in violation of his rights.

Andrew Robert Hardenstine was facing nine charges, including illegally possessing a firearm and assaulting a peace officer in relation to an arrest in April 2024. Hardenstine pled not guilty to all counts.

A voir dire — a trial within a trial to determine the admissibility of evidence — took place in Penticton Feb. 18 to 21 and on April 3.

Justice Eric Gottardi ruled that the evidence collected against Hardenstine, including two firearms, seized after a traffic stop in Okanagan Falls, had to be excluded in the case against him.

The initial arrest

According to Gottardi's decision, Hardenstine was not only stopped without cause in the early morning hours of April 5, 2024, but he was also subject to excessive force, being tased ten times by the officers after being roughed up.

Five officers responded to a tip that Hardenstine was meeting to sell two firearms to fund his flight to the United States. Hardenstine was wanted on several outstanding warrants at the time.

Apparently, the caller gave police several different possible locations for the impending meet-up, which changed over time. At 1 a.m., they told police they were meeting Hardenstine at the back of a Centex gas station in Okanagan Falls.

Police observed a truck pull in behind the Centex for a few moments before moving on. Officers later testified that they were going to conduct a traffic stop of the vehicle to confirm if he was inside.

Once Hardenstine was identified as the passenger, two officers approached and opened the passenger door of the vehicle with their guns drawn.

The officers all testified Hardenstine jumped out of the vehicle, punched an officer and was combative and resistant to arrest.

The officers said they all threw strikes, mainly punches, against Hardenstine in response.

But evidence from dash cam footage later showed that Hardenstine was pulled out of the vehicle by an officer and he did not throw the first punch.

The dashcam video showed Hardenstine was engaged in a "struggle with several officers in which there is much pushing and pulling."

At some point, an officer noticed a gun, which was removed from Hardenstine and thrown into nearby grass.

Once Hardenstine was on the ground, held down by four officers, an officer deployed his taser because "he felt nothing was working and he feared bodily harm and death."

Gottardi ruled that officers used excessive force during this interaction.

“While I accept that 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 wrote in the decision.

He also found that there were no "sufficient objective grounds" to stop the vehicle Hardenstine was in given the limited information that the police had, noting it was an "ambiguous location, an ambiguous time and a tipster whose reliability was unknown."

Unlawful search and seizure

Once Hardenstine was secured in handcuffs, paramedics were called to assess him. Hardenstine’s face was noted by officers to be swollen and bloody.

"Throughout the waiting period for the ambulance, there were moans and other clear and obvious sounds of pain coming from Hardenstine," Gottardi wrote, referencing video footage of the arrest.

"Hardenstine was left in the ditch on his side while waiting for the ambulance."

During the 23-minute wait for paramedics, police searched the vehicle, which the judge ruled was done without a warrant and was an additional Charter violation.

Hardenstine was also not read his Charter warnings or given the chance to call a lawyer until he was en route to the hospital.

Gottardi said that since Hardenstine was not lawfully detained, police did not meet the criteria for a search of the Chevy.

"I conclude this was an arbitrary detention and the rights of Hardenstine pursuant to s. 9 of the Charter were infringed. The infringement cannot be saved by s. 1 of the Charter. As noted in a number of cases, the police cannot stop a person driving a motor vehicle for no reason."

Not enough for a stay of proceedings

Hardenstine argued that the number and seriousness of the Charter breaches should render a judicial stay of the entire case against him.

Gottardi said while the breaches are serious, he did not find that they rise to the "level necessary to dictate that a stay of proceedings."

He ruled that all the items seized by police from Hardenstine, the vehicle and the scene of the arrest are excluded from evidence.