Her Majesty the Queen - v. -, 2021 SKPC 16

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 16 Date: January 29, 2021 Information: 90409801 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Amanda Brianne Fiddler Appearing: Ms. Kristen Hubbard For the Crown Mr. Blaine Beaven For the Accused DECISION F.M. DAUNT , J [ 1 ] Amanda Fiddler stands charged with five weapons offences arising from a search of her vehicle and the seizure of a sawed- off rifle.

She also faces two counts of breaching a release order by being out after curfew and by failing to keep the peace and be of good behaviour. Ms. Fiddler alleges her right to be secure from unreasonable search or seizure has been violated. Because the search was warrantless, the Crown bears the burden of proving it was reasonable. Defence submits the evidence should be excluded. Even if the evidence is not excluded, defence counsel says the Crown had not proven beyond a reasonable doubt that Ms. Fiddler was aware of the presence of the firearm, knowledge being an essential element of each offence.

FACTS [ 2 ] In the wee hours of March 3, 2020, Constables Anderson and Husky saw a vehicle associated with Amanda Fiddler parked in front of the Circle K. The vehicle, a grey Nissan Altima, had no rear licence plate, but did have a temporary permit in the rear window. Police were aware of outstanding arrest warrants for Ms. Fiddler, so they pulled in behind her vehicle. They observed a male exit the passenger side and enter the Circle K. Constable Anderson entered the Circle K to speak to the passenger, Darren Peekeekoot. The officer arrested Mr.

Peekeekoot for outstanding warrants and seized a bag of suspected cocaine from his person. [ 3 ] Meanwhile, Constable Husky had Amanda Fiddler exit the vehicle. He had an unremembered conversation with her before placing her in the back of the police vehicle. She retained the key fob and locked the vehicle. Constable Husky asked if she wanted him to roll up the window for her. She said, “No, just leave it.” He said he needed to get into the car anyway, and so she unlocked it for him. Constable Husky then entered the vehicle, using his flashlight to look around the interior.

From inside the vehicle, he opened the trunk. He exited the vehicle and used his flashlight to search it. He then closed it and returned to the police vehicle, without rolling up the window. [ 4 ] Ms. Fiddler asked Constable Husky if Darren could drive her car home for her. Constable Husky replied, “Yeah, as long as it’s registered.” She asked, “Didn’t you see the permit?” He replied, “I didn’t look at it.” [ 5 ] Constable Husky then started to formally arrest her, telling her the charges contained in the warrants, which included identity theft, taking a motor vehicle without consent, and forgery.

Meanwhile, Darren Peekeekoot approached the police vehicle behind Constable Anderson. Ms. Fiddler asked Darren if he would drive her car home. Constable Anderson replied that no, he had warrants, too. Then she asked if one of the officers could drive it home for her and give the keys to her brother. [ 6 ] Constable Anderson was suspicious that the car was stolen. He did not believe Ms. Fiddler could afford such a vehicle. As well, her warrants related to crimes of dishonesty. A search of the VIN on their system came back negative. That means it had not been reported stolen so did not appear on the CPIC database.

It also means it had never been registered in Saskatchewan, and so did not appear on the SGI database. A vehicle with a temporary permit not previously registered in Saskatchewan would not be included in the SGI database. Ms. Fiddler told the officers she purchased the vehicle in Manitoba, which explained why the VIN for this vehicle did not appear on the officer’s query. [ 7 ] Ms. Fiddler wanted the vehicle taken back to her residence. Constable Husky testified he had to be “one hundred percent” certain Ms. Fiddler was in lawful possession before they would release it back into her custody.

He told her to unlock her car so they could make sure it was legitimate. She told them the permit was visible in the window. The officers said they need to see a bill of sale. She unlocked the car and said it would be in the glove compartment. [ 8 ] While Constable Husky looked in the glove box, Constable Anderson asked her if there was anything else in the vehicle they might find, such as drugs. She replied she was certain there was nothing else in the vehicle. [ 9 ] Constable Husky discovered documents in the glove compartment.

He found a Bill of Sale dated February 7, 2020, from a Winnipeg dealership to Erin Harrison with Ms. Fiddler named as co-purchaser. A Transfer of Ownership from Erin Harrison to Ms. Fiddler was dated February 18, 2020. Two more Transfers of Ownership, one to Ms. Fiddler’s mother and one to Jana Black, were also dated February 18, 2020. The last document in the glove box was a receipt for an eight-day temporary permit from SGI dated February 27 in the name of Jana Black. [ 10 ] Constable Anderson asked Ms.

Fiddler if they would find drugs in the vehicle, because “it looks like Darren’s dealing.” She said they would not. Constable Anderson told her to pop the trunk. He testified they were not looking for drugs, only for ownership documents and maybe a licence plate for the vehicle. He believed the missing licence plate might be found in the trunk and reveal the rightful owner of the vehicle. At no time was Ms.

Fiddler placed under arrest for possession of drugs or for unlawful possession of this vehicle. [ 11 ] After a thorough search of the vehicle, the officers discovered a sawed-off rifle and .22 calibre ammunition under the floor of the trunk, in the spare tire compartment. Ms. Fiddler expressed surprise and denied ownership. The police then arrested her for “a list” of offences related to the firearm and ammunition. They seized the items from the trunk. They also seized the vehicle, which is shown

in the video being towed to the police compound. Ms. Fiddler was not charged with any offence arising from her possession of thisvehicle. [12] In my view, it makes no sense to perform such a thorough search of the trunk of a vehicle to find ownership documentationwhen Ms. Fiddler had already provided it, including a bill of sale. The ownership documents were found where one might expect, in theglove compartment. The police had no reason to believe they would find anything else that would prove to their satisfaction that Ms.Fiddler was in lawful possession of the vehicle.

Rather, the purpose of the search was to discover evidence that Ms. Fiddler wascommitting a crime, any crime. Constable Anderson had just seized suspected cocaine from Ms. Fiddler’s passenger. They were lookingfor drugs or any other contraband they might find. In short, they embarked on a fishing expedition. ISSUES 1. Was this a valid search incidental to arrest? 2. If not, should the evidence be excluded? 3. If not, has the Crown proven knowledge beyond a reasonable doubt? 1. Search Incidental to Arrest [13] Crown counsel concedes there was no valid consent, but submits the search was incidental to arrest.

Both officers testifiedthis was their authority for the search. The leading cases on this issue are Cloutier v Langlois, (SCC), [1990] 1 SCR158 [Cloutier] and R v Caslake, (SCC), [1998] 1 SCR 51 [Caslake]. According to Cloutier, the purpose of a searchincident to arrest must be related to the reason for the arrest. The three main purposes of search incident to arrest are: (1) ensuring thesafety of the police and public, (2) protecting evidence from destruction, and (3) discovering evidence which can be used at the arrestee’strial. Other purposes are potentially valid, but they must relate to the arrest.

In Caslake, the Supreme Court held that the police mustturn their minds to the purpose of the search, and that purpose must be related to the arrest. Police must have a reasonable belief that thesearch will achieve one of those purposes. If the officer searches for a purpose not related to the arrest, that search is not authorized bylaw and violates

section 8 of the Charter of Rights and Freedoms [Charter]. [14] Crown counsel relies on R v McAdam, 2019 SKPC 56 [McAdam], a decision of my brother Judge Schiefner, in which he findsat paragraph 28 that the police “had the authority to investigate other potential offences connected to his arrest and arising out of thefacts associated with that arrest.” He concludes the search of the vehicle for ownership documents was justified as a search incident to awarrantless arrest for dangerous driving. The facts of that arrest, however, are quite different from Ms. Fiddler’s.

In McAdam, thevehicle in question was involved in a high-speed chase which was abandoned for public safety. Soon after, police discovered the vehiclewith Mr. McAdam crouched down in the driver’s seat of that vehicle. Police arrested him for dangerous operation of a motor vehicle. Police searched the vehicle incidental to arrest for safety concerns and to discover ownership of the vehicle, suspecting it was stolen orcontained contraband because of the driver’s recent flight from police. The police were searching for evidence of Mr.

McAdam’s motivein fleeing from the authorities, a purpose rationally connected to the arrest. The search revealed a bag containing ammunition, pieces ofa firearm and a modified hacksaw blade in the back seat. McAdam does not support the proposition that the power to search a vehicleincident to arrest allows police to search for evidence of any other potential offence committed by the arrestee at any time. The judge’sstatement in paragraph 28 must be read in its proper context. In the circumstances of that case, the search for ownership documentationwas rationally connected to the offence for which Mr.

McAdam was arrested. [15] In Ms. Fiddler’s case, however, the officers had no safety concerns. She cooperated fully with the police. She was not actingsuspiciously. She was not trying to hide anything. This arrest was not related to a recent or ongoing crime. Rather, it was for failing toappear in court on previously laid charges. The provenance of the vehicle she was driving was unrelated to the reason for her arrest.

Because they believed her to be the type of person to obtain property dishonestly, police suspected she obtained the Nissan Altimathrough fraud or theft, but they certainly had no grounds to arrest or detain her for any offence relating to that vehicle. The vehicle hadnot been reported stolen, and police had no evidence that her possession of it was unlawful. The police did not purport to detain or arresther for this suspected offence, and neither did they purport to search the vehicle incident to an arrest for any offence in relation to thatvehicle. Constable Anderson had seen that vehicle before outside Ms.

Fiddler’s residence. He did not search it then. He knew such asearch would not be authorized by law. However, both officers believed that, because she was under arrest, their authority to search hervehicle was unfettered. [16] I find the search in this case was not incidental to Ms. Fiddler’s arrest, being unrelated to any valid purpose relating to thearrest. Police also had no authority to seize her vehicle in these circumstances. Ms. Fiddler’s

section 8 right to be secure againstunreasonable search or seizure was violated.

2. Exclusion of Evidence [ 17 ] I turn now to the question of whether the evidence should be excluded pursuant to section 24(2) of the Charter . [ 18 ] In R v Grant , 2009 SCC 32 , 245 CCC (3d) 1 [ Grant ], the Supreme Court of Canada outlined the factors to be considered in deciding whether the admission of evidence could bring the administration of justice into disrepute. The Court must consider the seriousness of the breach, the impact on the Charter -protected interests of the accused, and society’s interest in adjudicating the case on its merits. [ 19 ] Here, I find the breach to be reasonably serious.

The police were unaware of the limits of their search power. This cannot be equated with good faith. They both took the position that Ms. Fiddler was required to prove to their satisfaction that she was in lawful possession of that vehicle. This is backwards. Our law entitles her to possess property without interference unless the police have some lawful basis to take control of it. Certainly, there was no urgency to the issue of how she obtained possession of that vehicle. That could be investigated later by contacting the dealership on the Bill of Sale and asking questions about the transaction.

She was not obliged even to answer questions about the vehicle. Admission of the evidence may send the message that some people, especially those lower on the socio-economic ladder, are not guaranteed privacy rights to the same extent as more advantaged people. [ 20 ] The impact on Ms. Fiddler’s Charter -protected interests is mitigated by the fact that she was otherwise in lawful custody. At most, the search delayed the arrest and remand process by about half an hour. However, the fact she was required to prove her innocence increases the impact of the breach on her.

Admitting the evidence sends the message to Ms. Fiddler that her right to peaceable possession of property means little. The search led to the discovery of a firearm, which drastically increased Ms. Fiddler’s legal jeopardy. However, this does not rise to the level of R v Bulmer , 2005 SKCA 90 , 269 Sask R 137. In that case, Mr. Bulmer was arrested for failing to appear in court in answer to a Traffic Safety Act [1] ticket. After his truck was searched “incidental to arrest,” he faced charges of drug trafficking. Ms. Fiddler, on the other hand, was already facing numerous criminal charges before the breach.

I find the impact on her Charter -protected interests to be moderately serious. [ 21 ] Society’s interest in a trial on the merits is strong in this case. Illegal firearms are too common in this city; their presence on our streets makes everyone less safe. Our local police, quite rightly, are trying their best to get them out of criminal hands and improve public safety. On the one hand, it is important for the Court to send a message that police must achieve this goal through lawful means.

On the other hand, to see a guilty person go free because of a mistaken understanding of search powers would be frustrating to the public. The seized items are crucial to the Crown’s case. Defence counsel argues the firearm seized in this case will be destroyed whether or not it is admitted into evidence, so this factor is neutral in the Grant analysis. I disagree. Getting the guns off the streets is only part of the formula.

Equally important is holding those who commit firearms offences accountable. [ 22 ] On balance, I find the administration of justice would not be brought into disrepute if the items seized are admitted into evidence. 3. Knowledge [ 23 ] Having found the firearm and other items seized are admitted into evidence, the question now is: Has the Crown proven its case beyond a reasonable doubt? [ 24 ] Counts 1 through 5 on the Information each require the Crown to prove beyond a reasonable doubt that Ms. Fiddler knew the firearm was in the vehicle and exercised some control over it.

Crown counsel points to the case of R v Pambrun & Roode , (Unpublished, Prince Albert Provincial Court, Information 33644278, January 19, 2018, Lane, J) [ Pambrun ], where, relying on R v Charles , 2014 SKPC 76 at para 25 , Judge Lane held that finding a prohibited item in a vehicle owned and operated by the accused is prima facie proof of possession. This does not, however, rise to the level of a rebuttable presumption. Crown acknowledges the accused bears no evidentiary burden.

However, Crown counsel submits she presented a case to meet; in the absence of an explanation from the accused, the only inference to be drawn from the evidence is that Ms. Fiddler knew the weapon was in the vehicle. Knowing the weapon was in the vehicle, she exercised control over it by operating the vehicle. The Court should, therefore, convict. [ 25 ] In Pambrun , a gun was discovered under a jacket in the back seat of Mr. Pambrun’s car. The officer who spotted it had no trouble detecting a gun-shaped object underneath the jacket. Judge Lane found Mr.

Pambrun guilty beyond a reasonable doubt because he owned the vehicle, he operated the vehicle, and he can be taken to know the contents of the vehicle. The gun was not so well-hidden

that he might not have known it was there. [ 26 ] In Ms. Fiddler’s case, on the other hand, the firearm was discovered only on a second search of the trunk of the vehicle. It was hidden underneath the floor of the trunk in a compartment that houses the spare tire. There was evidence that others may have had possession of that vehicle between February 7, when she purchased it, and March 4, 2020, when she was arrested. Although knowledge is one rational inference to be drawn from this evidence, it is not the only rational inference.

Another person might reasonably have concealed the firearm in that place without Ms. Fiddler’s knowledge. CONCLUSION [ 27 ] On all the evidence, I am left with a reasonable doubt about Ms. Fiddler’s guilt on Counts 1 through 5 of the Information and I find her not guilty on those counts. She has conceded guilt on Count 7, breaching the curfew condition of her release order, and I find her guilty on Count 7.

Count 8 alleges a failure to keep the peace and be of good behaviour. (Such a condition is not reasonable on a judicial interim release order, according to the Supreme Court of Canada in R v Zora, 2020 SCC 14 , 388 CCC (3d) 1. Nonetheless, she was bound by it.) I have found her not guilty of the substantive offences. I find no other basis for a conviction on Count 8, and I find her not guilty. Dated this 29 th day of January, A.D. 2021, at the City of Prince Albert, in the Province of Saskatchewan. ___________________________________ F.M. Daunt, J