Her Majesty the Queen - v. -, 2019 SKPC 33

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 33 Date: June 28, 2019 Information: 991053938 Location: Prince Albert, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gary Vernon Bird Appearing: Ms. Linh N. Le For the Crown Ms. Hilary Peterson For the Accused JUDGMENT S.D. SCHIEFNER, J INTRODUCTION [ 1 ] Mr. Gary Bird stands charged with possession of a weapon for a dangerous purpose and carrying a concealed weapon.

These charges arise as a result of a nasty old meat cleaver that was found secreted in the waistband of his pants when he was searched by police on June 3, 2018. At the time, Mr. Bird was walking in downtown Prince Albert near a shopping mall. Police approached Mr. Bird because a complaint had been received of a man matching his description walking in a nearby area with a knife. [ 2 ] Mr.

Bird takes the position that his detention was unlawful because he was not promptly advised of the reason for it, and further that his arrest was unlawful on the basis that the arresting officers did not have objectively reasonable grounds to believe that he

was committing an offence. Simply put, Mr. Bird argues that his detention and then arrest were arbitrary and thus contrary to s. 9 of the Canadian Charter of Rights and Freedoms . Because his detention/arrest was unlawful, Mr. Bird argues that the concomitant search of his person was also unlawful.

He therefore seeks an order excluding the evidence obtained as a result of his detention/arrest - namely, the nasty old meat cleaver found secreted in the waist band of his pants. [ 3 ] A vo ir dire was conducted during which all evidence of the Crown was tendered. [ 4 ] For the reasons that follow, I find that police had reasonable grounds to first, detain and then arrest Mr. Bird. I dismiss his Charter application because I am satisfied that his detention, his arrest, and the concomitant search of his person were each lawful.

I find that all evidence from the voir dire is admissible at trial. [ 5 ] Finally, having considered and weighed the evidence, I am satisfied beyond a reasonable doubt that Mr. Bird was in possession of a weapon for a purpose dangerous to the public peace and that he was carrying that weapon in a concealed manner. As a result, I find him guilty of counts 1 and 2 of Information 991053938. [ 6 ] The following are my reasons for these various decisions. FACTS [ 7 ] I would like to start with my observation that I found all three of the Crown’s witnesses to be highly credible.

It was clear to me that they were being honest and forthright with the Court. I also found their respective testimonies to be reliable in the sense that all three witnesses displayed a good memory of the events in question and good ability to communicate what they saw to the Court. All three were challenged in cross-examination and their evidence remained cogent and compelling.

i) Evidence from a civilian witness [ 8 ] On June 3 rd of last year, Mr. Matthew Lindsay and his wife were returning to Saskatoon after having been at the Prince Albert National Park. They arrived in Prince Albert about noon and decided to stop for something to eat. They turned off on 12 th Street and began heading east. As they approached the intersection of 12 th Street and 1 st Avenue West, Mr. Lindsay observed two males walking across the street. Their presence in the middle of the street required Mr.

Lindsay to stop his vehicle near the intersection. [ 9 ] As they crossed the street, the two men were approximately five to ten meters directly in front of Mr. Lindsay’s vehicle. Mr. Lindsay had a clear and unobstructed view of the individuals. Mr. Lindsay observed that one of the males was carrying a knife – a large knife – something that looked like a meat clever. This male was wearing a green Roughrider hoody and was holding the knife by the handle with the blade tucked in behind his arm. Mr. Lindsay testified that he could clearly see the knife as the subject crossed the street. [ 10 ] At this point, Mr.

Lindsay felt the situation was dangerous and he (and/or his wife) called police. While Mr. Lindsay was waiting for the light to turn green, he observed the two males interact with a small group of people. Mr. Lindsay observed the male “show” the knife so that the others could see it. While the male did not brandish or wave the knife around, Mr. Lindsay thought the interaction with the others might not have been friendly. This information was also communicated to police. [ 11 ] The light turned green and Mr.

Lindsay drove away. ii) Evidence from attending officers [ 12 ] Constables Banadyga and Burns are both experienced officers with Prince Albert Police Service. They were in uniform, on patrol (in separate marked units), and in the area when Mr. Lindsay’s complaint was communicated by dispatch.

iii) What happened when the officers arrived at the scene? [ 13 ] Constable Banadyga arrived on scene first and he was there within one or two minutes of receiving the information from dispatch. The information communicated by dispatch was that there was a man with a knife, wearing a green Roughrider hoody in the area of 12 th Street and 1 st Avenue and that he was approaching people. [ 14 ] Constable Banadyga observed Mr. Bird wearing a green Roughrider hoody standing outside the doors leading to the food court at the downtown mall. This location was within one block of the described location.

It was just after 12 noon and the officer described the area as busy. Mr. Bird was standing near other men. Cst. Banadyga did not observe a knife. [ 15 ] When Cst. Banadyga exited his vehicle he intended to arrest Mr. Bird for the purposes of investigating the weapons complaint that had come in from Mr. Lindsay. Because it was a weapons complaint, the officer had his conductive energy weapon at the low ready position. [ 16 ] Cst. Burns arrived on the scene immediately after Cst. Banadyga. Cst. Burns did not see a weapon. He did observe Mr. Bird move to stand between two males as the officers approached. Cst.

Burns testified that he felt he had reasonable and probable grounds to arrest Mr. Bird because: he matched the description provided by Mr. Lindsay; because Mr. Bird was the only person wearing a green Roughrider hoody; because Mr. Bird was near the area identified by Mr. Lindsay; and because the officer had arrived within minutes of the complaint having been received. iv) What happened when the officers approached Mr. Bird? [ 17 ] As Cst. Banadyga approached Mr. Bird, he observed that he had his hands in the front pocket of his hoody. Concerned Mr. Bird might be concealing a weapon; Cst.

Banadyga issued a command to “remove your hands from your pockets”. The officer testified that this command was loud and clear. [ 18 ] As Cst. Burns approached he observed Mr. Bird put his hands in the front pocket of his hoody. He heard Cst. Banadyga announce that he had a taser and the command for Mr. Bird to remove his hands from his pockets. [ 19 ] Mr. Bird did not immediately comply. He removed his right hand but did not remove his left. Cst. Banadyga repeated the command. At about the same time, Cst. Burns directed the two other men to “back away”. [ 20 ] Mr. Bird still did not comply.

He removed his left hand from the front pocket of his hoody but then he put it back in. At this point. Cst. Banadyga pointed his taser at Mr. Bird and repeated this command – “remove your hands from your pocket”. Both officers testified that they believed that Mr. Bird was concealing something and, in light of the weapons complaint, they believed it was a weapon and their safety and public safety was at risk.

v) Mr. Bird’s arrest [ 21 ] Upon seeing the taser pointed at him, Mr. Bird removed both hands from his pockets and assumed a submissive stance. Constable Banadyga placed handcuffs on Mr. Bird and informed him that he was under arrest for “possession of a weapon”. Cst. Burns testified that he said the same thing. While neither officer made notes or could recall the precise words they used, both officers were confident that they told Mr. Bird that he was under arrest for possession of a weapon for a dangerous purpose.

Both officers testified that it was their standard and routine practice to summarily explain why someone is being arrested when they are arrested. Both officers testified that they were investigating a weapons complaint – thus they were confident that this was the explanation they had given to Mr. Bird for his arrest. vi) The Search [ 22 ] Once handcuffed, Cst. Banadyga searched Mr. Bird and found a large meat cleaver on the left side of the waist band of his pants. The cleaver had been modified by adding some kind of cord (Cst. Banadyga described it as “para-cord”) to the handle to make it

easier to grip. A plain observation of the knife would indicate it is of little utility for cooking – it is discolored and the handle has been modified. The cleaver was found in the location where Mr. Bird had been holding his hands. ANALYSIS AND CONCLUSIONS

i) Was Mr. Bird “arrested” or “detained” when first approached by Constanbles Banadyga and Burns? [ 23 ] Both officers testified that they believed they had reasonable and probable grounds to arrest Mr. Bird when they first saw him. In my opinion, the officers clearly had sufficient grounds to detain Mr. Bird for investigative purposes. I am also satisfied that they had sufficient grounds to arrest him when they did. The officers’ interaction with Mr. Bird was dynamic and brief. As I will explain it does not make any difference if the officers were initially intending to arrest or merely detain Mr.

Bird because as events unfolded they had sufficient grounds to do both. ii) Was Mr. Bird lawfully detained by Constables Banadyga and Burns? [ 24 ] A police officer has authority to detain at common law for an investigative purpose where, in the totality of the circumstances, the officer has reasonable grounds to suspect a nexus between a particular individual and a recent or ongoing criminal offence.

The officer must have reasonable grounds to suspect a connection between that person and a particular crime and the officer’s grounds for suspecting that connection must be objectively reasonable in the totality of the circumstance know to him/her at the time of detention. See: R v Gonzales, 2017 ONCA 543 , 354 CCC (3d) 572; R v Mann, 2004 SCC 52 , 185 CCC (3d) 308; and R v Grant, 2009 SCC 32 , 245 CCC (3d) 1. iii) Did the officers have reasonable grounds to suspect a nexus between Mr. Bird and the incident described by Mr. Lindsay? [ 25 ] There was a clear and compelling nexus between Mr.

Bird and the incident described by Mr. Lindsay because he matched the description provided by Mr. Lindsay; because Mr. Bird was the only person wearing a green Roughrider hoody visible in the area; because Mr. Bird was near the area identified by Mr. Lindsay; and because the officer had arrived within minutes of the complaint having been received by the police. [ 26 ] I am satisfied that both Officers Banadyga and Burns had lawful authority to detain Mr. Bird for investigation.

In light of the nature of the investigation (weapons complaint), I am also satisfied that pursuant to this investigative detention both officers would have had authority to conduct a “pat-down” search for both their own safety as well as public safety. [ 27 ] Defence counsel argues that Mr. Bird was not lawfully detained by the officers because he was not “promptly” informed of the reason for his detention. The officers candidly admitted that they did not advise Mr. Bird that they were investigating a weapons complaint when they first approached him.

The nature of the complaint they were investigating (person with a knife approaching other people) and seeing Mr. Bird with his hands in his pockets raised a safety concern for the officers – both their safety and the safety of others. The officers testified that their primary concern was ensuring that Mr. Bird was not concealing a weapon. All of their communications with him were focused on that singular issue. [ 28 ] Mr. Bird was not informed of the reason for his detention by the officers until after he was placed in handcuffs and arrested by the officers. The officers’ interaction with Mr.

Bird was dynamic and it transitioned from detention to arrest within less than a minute. Thus I find that the delay in informing Mr. Bird of the reason for his original detention was less than a minute.

[29] In these circumstances, I find that Mr. Bird was “promptly” provided with the reasons for his detention. The delay in doing sowas necessary in all of the circumstances – specifically the compelling safety issues requiring immediate attention by the officers,namely to ensure that Mr. Bird was not concealing a weapon and, if he was, to disarm him of that weapon as soon as possible.Furthermore, the delay was less than a minute. iv) Was Mr. Bird lawfully arrested by Constables Banadyga and Burns? [30] An arrest without warrant is authorized by s. 495 of the Criminal Code. The relevant part of that

section states: A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about tocommit an indictable offence. [31] The appropriate analytical framework for assessing the lawfulness of a warrantless arrest has been articulated in a number ofcases. However, the Saskatchewan Court of Appeal’s decision in R v Shinkewski, 2012 SKCA 63, 289 CCC (3d) 145 [Shinkewski] isparticularly instructive. Paragraph 13 of Shinkewski reads as follows: [13] The legal standard of “reasonable grounds to believe” has been the subject of considerable judicial

interpretation. I do notpropose to review it all; however, I make the following observations from the jurisprudence: (

a) an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objective pointof view – in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there were indeedreasonable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; (

b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities (Mugesera v.Canada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100) or a prima facie case for conviction (R v Storrey)before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” or a hunch (R. v. Morelli,2010 SCC 8, [2010] 1 S.C.R. 253, at para 91; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.)); (

c) an arresting officer must consider all incriminating and exonerating information which the circumstances reasonably permit, but maydisregard information which the officer has reason to believe may be unreliable: R. v. Storrey; (

d) a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion: R. v. Savage,2011 SKCA 65, 371 Sask. R. 283; R. v. Nguyen, 2010 ABCA 146, 477 A.R. 395; and R. v. Storrey; and (e) “…the standard must be interpreted contextually, having regard to the circumstances in their entirety, including the timing involved,the events leading up to the arrest both immediate and over time, and the dynamics at play in the arrest”: R. v. Nguyen, at para. 18; and,context includes the experience and training of the arresting officer: R. v. Nolet, at para 48; R. v.

Whyte, 2011 ONCA 24, 266 C.C.C. (3d)5, at para 31; and R. v. Luong, 2010 BCCA 158, 286 B.C.A.C. 53, at para. 19. [32] In addition, I note that police can rely on grounds formed and communicated by another officer in effecting an arrest. See: R vCornell, 2010 SCC 31 , [2010] 2 SCR 142 at para. 37. However, police cannot rely on facts discovered after the arrest toretroactively validate an otherwise unlawful arrest. Simply put, the grounds for arrest must precede the arrest. See: R v McLelland, 1995ABCA 199 at para. 22; and R v Stephens, 2011 SKQB 342.

For example, the subsequent discovery of the meat cleaver cannot be used tojustify Mr. Bird’s arrest because that was not a fact know to the officers at the time of the arrest.

v) Did the officers subjectively believe that Mr. Bird was carrying a weapon for a dangerous purpose? [33] Both officers clearly believed they had grounds to arrest Mr. Bird initially when they got out of their vehicle. Those groundswere based on the weapons complaint described by Mr. Lindsay (a person with a knife approaching other people); because Mr. Birdmatched the description provided by Mr. Lindsay (male wearing a green Roughrider hoody); because Mr. Bird was the only person

wearing a green Roughrider hoody visible in the area; because Mr. Bird was near the area identified by Mr. Lindsay; and because theofficer had arrived within minutes of the complaint having been received. [34] Because they were responding to a weapons complaint the officers were primarily concerned about their safety and the safetyof the people in the area. In addition, both officers testified that their grounds for arresting Mr. Bird grew as a result of their interactionswith Mr.

Bird – in particular their concern that he appeared to be hiding something under his hoody based on his apparent reluctance toremove his hands from his front pocket and then keep his hands where the officers could see them. vi) Were the beliefs of the officers objectively reasonable under all of the circumstances? [35] The primary argument of defence counsel was that the reasons identified by both Constables Banadyga and Burns forarresting Mr. Bird were not objectively reasonable. Defense argued that the officer needed to take further steps to corroborate the tipthey received from Mr.

Lindsay before they would have had sufficient grounds to arrest Mr. Bird. For example, Defence counsel arguesthat the officers should have informed Mr. Bird that they were investigating a weapons complaint. Doing so would have provided himwith the option to voluntarily comply without being arrested. [36] With all due respect, this argument is flawed in both law and logic. [37] The officers never got a chance to have a conversation with Mr. Bird because Mr. Bird failed to comply with their commandto show his hands.

For reasons of officer safety, if not public safety, the officers were entirely within their authority to direct Mr. Bird toshow his hands and to keep them in plain view as they approached him. I wholly accept Officer Banadyga’s explanation for the need togive clear commands to Mr. Bird and to leave the reasons for those commands until after his hands were visible to the officers. This wasa dynamic and potentially dangerous situation. [38] Irrespective of whether or not the officers had sufficient grounds to arrest Mr.

Bird when they first formed the originalintention to do so (i.e. as they got out of their cars), Mr. Bird’s conduct in refusing to show his hands to the officers provided compellingadditional grounds for his arrest. His actions were consistent with a person concealing a weapon and thus tended to corroborate theweapons complaint that had been provided by Mr. Lindsay. [39] Furthermore, the only practical means for the officers to confirm that Mr. Bird was not carrying a concealed weapon would beto detain and search his person.

At a minimum, a “pat-down” search would have be been required for purposes of officer safety. Thedefence’s position that Mr. Bird’s Charter rights were breached because he ought to have been merely detained and questioned isillusory. First, doing so would have unnecessarily exposed the officers to risk. Second, merely questioning Mr. Bird would have beenineffective at confirming the absence of a weapon. Third, the officers never got a chance to question Mr.

Bird before he providedadditional grounds justifying his arrest. [40] As noted by the Court in Shinkewski, it is important not to examine the facts available to the arresting officers in a piecemealfashion. The facts must be examined contextually and cumulatively particularly when dynamic events are rapidly unfolding. See: R vTodd, 2019 SKCA 36. vii) Are the grounds for arrest viewed at the point the officers first formed their intention to arrest Mr.

Bird (i.e. whenthey got out of their vehicles) or when the actual arrest occurred? [41] An arrest is justified based on a constellation of discernable facts that support an officer’s subjective belief that a person hascommitted or is committing an offence. The reasonableness and sufficiency of those facts (the “grounds”) are examined at the point intime of the arrest and not when the officer originally formed the intention to do so.

This precise question was considered by the SupremeCourt of Canada noted in R v Clayton, 2007 SCC 32 , [2007] 2 SCR 725: [48] The officers’ safety concerns also justified the searches incidental to the detention. The trial judge based his finding thatFarmer’s and Clayton’s s. 8 rights were violated on his conclusion that the decision to search them was made before the officer had theobjective grounds to do so. This, it seems to me, ignores the fact that the relevant time is the time of the actual search and seizure. By that time, the officers had the requisite subjective and objective grounds.

Intention alone does not attract a finding ofunconstitutionality. It is not until that subjective intent is accompanied by actual conduct that it becomes relevant. We wouldotherwise have the Orwellian result that Charter breaches are determined on the basis of what police officers intend to do, or think theycan do, not on what they actually do. The Charter protects us from conduct, not imagination, and even a benign motive may not justify

objectively unreasonable police conduct. (Emphasis added) [ 42 ] Both Constables Banadyga and Burns testified as to their intentions to arrest Mr. Bird when they first observed him (which was a point in time prior to their interactions with him). However, they did not arrest him until after they secured the safety of the scene – by asking and then compelling him to remove his hands from his pockets and keep them in view. Mr. Bird’s conduct during this interaction is part of the constellation of facts that are examined to determine the reasonableness and sufficiency of the officer’s grounds. By the time Mr.

Bird was arrested (and placed in handcuffs), his own conduct was consistent with Mr. Lindsay’s weapons complaint and the officers had clear and compelling grounds to believe that Mr. Bird was in possession of a weapon for a dangerous purpose. [ 43 ] For these reasons, Mr. Bird’s Charter application is dismissed. I am satisfied on a balance of probabilities that Mr. Bird was lawfully detained, then lawfully arrested and then lawfully searched incidental to his arrest.

In all the circumstances, I am not satisfied that he was arbitrarily detained by police on June 3, 2018, or that the officers exceeded their authority. viii) Analysis pursuant to section 24(2) of the Charter [ 44 ] I find no reason to conduct a Grant analysis. All evidence tendered during the voir dire is admissible at trial. ix) Was the knife a weapon? [ 45 ] I accept that Mr. Bird’s meat cleaver was not designed by its manufacturer as a weapon. Its original purpose was undoubtedly for use in the kitchen – a culinary purpose. I also accept that a knife, simpliciter, can have a variety of purposes.

The question I must answer is whether or not Mr. Bird’s meat cleaver fell within the definition of a weapon when he possessed it on June 3, 2018. [ 46 ] The term “weapon” is defined in

section 2 of the Criminal Code . That definition includes anything that is “ used or intended for use (by the person who possesses it) … for the purpose of causing harm to person or property or for threatening or intimidating another person ”. In determining whether anything is being used or intended for use as a weapon, it is necessary to consider the whole of the circumstances. [ 47 ] Mr. Bird was observed jaywalking in downtown Prince Albert with a large meat cleaver tucked under his arm. He was observed showing this object to others.

When arrested by police, the meat cleaver was found secreted in the waistband of his pants. Of particular significance, the knife had been modified by adding some kind of cord to the handle to make it easier to grip. A plain observation of the knife would indicate it has no utility for cooking. It is a nasty thing: it is discolored and the handle has been unprofessionally modified. [ 48 ] There is absolutely no doubt in my mind that Mr. Bird’s cleaver/knife was intended as an object of intimidation if not violence. It clearly would be highly intimidating for any observer, innocent or not. Just seeing Mr.

Bird walking with it was enough for Mr. Lindsay to be concerned enough to call police. [ 49 ] I am satisfied beyond any reasonable doubt that Mr. Bird’s meat cleaver was a weapon when he possessed it on June 3, 2018. Considering all the circumstances, this is the only reasonable inference that can be drawn from the facts proven by the Crown.

x) Was the knife intended for a dangerous purpose? [ 50 ] To obtain a conviction, the Crown must also establish, beyond a reasonable doubt, that Mr. Bird was carrying the meat cleaver for a dangerous purpose on June 3, 2018. [ 51 ] With regard to the element of “danger to the public peace”, it is not necessary for the Crown to prove actual use of the weapon. It is sufficient if the Crown establishes a compelling potential for harm to others or use to threaten or intimidate innocent bystanders.

[ 52 ] Mr. Bird’s dangerous intent in possessing the meat clever can be inferred from the following facts proven by the Crown: that Mr. Bird was walking around in a busy downtown location with it; that he was partially concealing it while walking around; that when he interacted with a group of people, he showed the knife; and that he was concealing it in the waistband of his pants when approached by police. Under these circumstances, I am left with the singular and inescapable conclusion that Mr.

Bird possessed this meat cleaver as a weapon; that he knew that it was capable of threatening or intimidating other; and that he either specifically intended this objective or he was willfully blind to the danger his possession of this object represented to others. [ 53 ] For these reasons, I am satisfied beyond a reasonable doubt that Mr. Bird possessed a weapon, to wit a meat cleaver, for a purpose dangerous to the public peace on June 3, 2018 – being count 1 of Information 991053938. xi) Was the knife concealed? [ 54 ] There is no dispute that the knife was concealed by Mr. Bird.

It was in the waistband of his pants under his hoody. Furthermore, his conduct in being reluctant to remove his hand from the pocket immediately over the knife removes any doubt that he knew it was there and that he intended to keep it hidden from police. [ 55 ] As a result, I also find Mr. Bird guilty of carrying a concealed weapon (without authorization) contrary to s. 90 of the Criminal Code – being count 2 of Information 991053938. Dated this 28 th day of June, A.D. 2019, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J