Her Majesty the Queen - v. -, 2015 SKPC 152

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 152 Date: October 27, 2015 Information: 44333928, 44333929 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Avninder Singh Grewal Appearing: Mr. McBride For the Crown Mr. Patel For the Accused DECISION ON VOIR DIRE D.A. LAVOIE , J [ 1 ] The accused stands charged as follows: Information #44333928 1) on or about the 11 th day of December, A.D. 2013 at or near Saskatoon, Saskatchewan, did unlawfully traffic in a controlled substance, to wit: cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act ;

2) on or about the 11 th day of December, A.D. 2013 at or near Saskatoon, Saskatchewan, did unlawfully have in his possession a controlled substance, to wit: cocaine, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act ; 3) on or about the 12 th day of December, A.D. 2013 at or near Saskatoon, Saskatchewan, did unlawfully have in his possession a controlled substance, to wit: cocaine, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act ; 4) on or about the 11 th day of December, A.D. 2013 at or near Saskatoon, Saskatchewan, unlawfully possess a controlled substance, to wit: cannabis marihuana in an amount not exceeding thirty grams contrary to s. 4(1) of the Controlled Drugs and Substances Act ; 5) on or about the 12 th day of December, A.D. 2013 at or near Saskatoon, Saskatchewan, unlawfully possess a controlled substance, to wit: cannabis marihuana in an amount not exceeding thirty grams contrary to s. 4(1) of the Controlled Drugs and Substances Act ; 6) on or about the 11 th day of December, A.D. 2013 at or near Saskatoon, Saskatchewan, has in his possession proceeds of property, to wit: a 2014 Dodge Ram pickup, of a value exceeding five thousand dollars knowing that all or part of the proceeds of the property was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to ss. 354(1) and 355 (

a) of the Criminal Code ; 7) on or about the 12 th day of December, A.D. 2013 at or near Saskatoon, Saskatchewan, has in his possession proceeds of property, to wit: Canadian currency, of a value exceeding five thousand dollars knowing that all or part of the proceeds of the property was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to ss. 354(1) and 355 (

a) of the Criminal Code ; 8) on or about the 12 th day of December, A.D. 2013 at or near Saskatoon, Saskatchewan, has in his possession proceeds of property, to wit: numerous electronic devices , of a value not exceeding five thousand dollars knowing that all or part of the proceeds of the property was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to ss. 354(1) and 355 (

b) of the Criminal Code . Information #44333929 1) on or about the 12 th day of December, A.D. 2013 at or near Saskatoon, Saskatchewan, did carelessly store a Savage rifle without making it inoperable contrary to s. 117(

h) of The Firearms Act , thereby contravening s. 7(

b) of The Storage, Display, Transportation and Handling of Firearms by Individuals Regulation , contrary to ss. 86(2) of the Criminal Code ; 2) on or about the 12 th day of December, A.D. 2013 at or near Saskatoon, Saskatchewan, unsafely store a Savage rifle without making it inoperable contrary to s. 117(

h) of The Firearms Act , thereby contravening s. 7(

b) of The Storage, Display, Transportation and Handling of Firearms by Individuals Regulations , contrary to ss. 86(2) of the Criminal Code ; 3) on or about the 12 th day of December, A.D. 2013 at or near Saskatoon, Saskatchewan, have in his possession, a weapon, to wit: a sawed-off combination rifle/shot gun, for a purpose dangerous to the public peace, contrary to s. 88 of the Criminal Code ; 4) on or about the 12 th day of December, A.D. 2013 at or near Saskatoon, Saskatchewan, possess a firearm, to wit: a Savage rile, not being the holder of a licence under which he may possess it or a registration certificate for the firearm, contrary to s. 91(1) of the Criminal Code ;

5) on or about the 12th day of December, A.D. 2013 at or near Saskatoon, Saskatchewan, have in his possession a prohibited firearm, towit: a sawed-off combination rifle/shot gun, knowing that it was obtained by the commission of an offence, contrary to s. 96(1) of theCriminal Code. [2] Information #44333928 has some

summary offences and some indictable offences. On February 26, 2014 the accusedelected trial by Provincial Court Judge on all matters. [3] By document dated October 17, 2014, defence filed a Charter notice involving numerous issues including: 1) A Garifoli application; 2)

Section 8 - unreasonable search and seizure (strip search); s. 9 - arbitrary detention; 3)

Section 10(b) - rights to counsel; 4) Section 24(1) and 24(2) - remedies. [4] Then by document dated July 20, 2015 defence filed a supplemental Charter notice in relation to possible lost or destroyedevidence, and a possible s. 24(1) remedy. [5] At the commencement of the trial the Court and counsel discussed technical procedural matters. The final process unfoldedas follows with the consent of counsel: 1. The defence was abandoning the following issues:

a) the Garofoli application based on R v Garofoli, (SCC), [1990] 2 SCR 1421 (SCC);

b) the s. 10(

b) rights to counsel application;

c) the s. 8 unreasonable strip search issue;

d) the

section lost evidence issue with s. 24(1) remedy;

e) the lawfulness of the search of the accused’s truck incident to arrest. [6] In the end, the trial commenced with a voir dire on the issue of whether the police effected a lawful, warrantless arrest of theaccused in the parking lot of a business known as Granada House in the City of Saskatoon. [7] If the said arrest was not lawful thus breaching the accused’s ss. 8 and 9 Charter rights then what would be the appropriate s.24 remedy, if any.

[ 8 ] The trial unfolded as follows: 1) The Crown called all its evidence in the context of a voir dire on the Charter issue raised by Mr.

Grewal; 2) Counsel cross-examined each witness as if we were within a trial proper; 3) Defence elected to call no evidence on the voir dire ; 4) Decision on the voir dire was reserved; 5) All the evidence on the voir dire was to be applied by consent to the trial proper; 6) As all the counts were so intertwined, it was agreed that the matter proceeded as a joint trial on both Informations. [ 9 ] This decision will deal only with the issue raised within the voir dire namely: 1) was the arrest of Mr.

Grewal, and subsequent searches incident to arrest illegal resulting in a breach of his ss. 8 and 9 Charter rights; 2) if his Charter rights were breached, what is the proper remedy pursuant to s. 24(2) of the Charter . [ 10 ] The Court must mention that defence counsel proferred that the accused was not questioning the reliability, veracity, or accuracy of the information the police officers received from confidential informants 1 and 2. [ 11 ] Then the following exchange occurred between the Court and defence counsel: Transcript, page 12, lines 8 - 32 The Court: It’s a simple as that.

Therefore, you’re saying there wasn’t reasonable and probable grounds to make the arrest. So I want to make sure I’m understanding this properly. Therefore, how is Garofoli relevant – a Garofoli Application relevant? Mr. Patel: And perhaps in that sense, it’s not. What I meant to say wen we’re seeking – one thing leads to another – is that the arrest led to the execution or the drafting and the swearing of the ITO and the eventual execution of the search warrant, so if I were to put it, for my mind at least, in very simple terms, it essentially – it would constitute a set of dominos.

The – The Court: And the first domino – Mr. Patel: Yes. The Court: – was the arrest and anything they may have found incident to arrest.

Mr. Patel: Right. And – The Court: And, therefore, if they didn’t have the reasonable and probable grounds to make the arrest, you’re asking for 24(2) exclusion? Mr. Patel: Precisely, yeah. Transcript, page 15, lines 8 - 10 Mr. Patel: Yes, sir. It is essentially just an issue of sufficiency on the grounds. The defence is not challenging the veracity of the source information. The Facts [ 12 ] The following is a

summary of the evidence forthcoming from the two police officers called by the Crown. [ 13 ] Constable Kelly Tryon, has been a member of the Saskatoon Police Service since August, 2006. By November, 2013, at the time of the investigation in this matter he had been on the Integrated Drug Unit for three years. He was assigned to be the lead investigator in this matter, evidencing his considerable experience and knowledge in investigating street level “dial a dope” drug trafficking. [ 14 ] On November 15, 2013, he received information from confidential informant #1 (CU#1) in relation to the accused.

He had been receiving information from CU#1 on different investigations for five plus years. He considered CU#1 to be credible and throughout the years CU#1 had proven to be extremely reliable and trustworthy. Transcript, page 28, lines 38 - 41, page 29, lines 1 - 10 Q All right. Had you used that source previous to this investigation? A Absolutely, Your Honour. In constant contact with that source over that time period, between 2007 and 2013. Still in contact with that source today.

Provides information on various crimes throughout Saskatoon, particularly trafficking and has been used in numerous judicial authorizations, probably six or seven at that time. Q And as a result of the information provided specifically with respect to those judicial authorizations, were you successful in obtaining a warrant and also securing evidence as a result of the excuse of the warrant? A Absolutely, Your Honour.

On each of those occasions where I sought a search warrant, I did receive a search warrant on each of those occasions, and on each of those occasions, we were successful, and the degree of accuracy by the source was considered to be extremely credible. [ 15 ] The information provided by CU#1 is summarised as follows:

Transcript, page 31, lines 15 - 34 Q Can you tell us about the information source one provided to you then, please? A Absolutely. Source number one provided me information that they described this male as an East Indian male with dark skin, build-stocky, selling cocaine in Saskatoon. They told me that that individual sold both hard and soft or commonly referred to as crack cocaine for $40 for a half gram and $80 for a full gram.

This individual known to them as Eric sold that cocaine via dial-a-dope operation, and what that meant to me – and I confirmed with the source – was that in order to purchase cocaine from that person, you needed to dial a phone number, and the source provided me with a phone number. That’s how you would order up your cocaine. This source would deliver to all areas of Saskatoon and listed several apartment building, including an apartment in the 100 block of Avenue O South. The source provided me that this individual was driving a newer black truck and provided me with a license plate number. Q All right.

And with respect to this business that you called a dial-a-dope business, how many hours a day would it be running based upon what your source told you? A The source had told me that that business ran pretty much 24/7. According to that source, you could phone that number at any time, day or night, seven days a week, and that individual would deliver you cocaine. [ 16 ] The phone number provided by CU#1 was 306-880-9601 and the Saskatchewan license plate number was 518 JBC. [ 17 ] Armed with that information Officer Tryon did further background investigations.

Transcript page 32, lines 35 - 41 and page 33, lines 1 - 5 The Court: And the phone number, do you have any knowledge as to or – or investigation as to what type of a phone number it is, regional, location? The Witness: We did, yes, Your Honour. I had Special Constable Gerbrandt look into that for me and provided me with information regarding that. Mr. McBride: And what was that, sir?

A The information from Special Constable Gerbrandts is that it was a cellular telephone registered to an individual by the name of - - I believe it was Eric Chase of 123 Main Street, Saskatoon. [ 18 ] As it turns out further enquiries revealed to Officer Tryon that 123 Main Street was a non-existent address in Saskatoon. [ 19 ] In that respect the exchange between defence counsel and Officer Tryon in cross-exam brings the following explanation to the cell phone number. Transcript page 34, lines 38 - 41

Q That’s fine. So you were given information about this cellphone. You know that it has a particular number. It’s traced back to an individual – well, it’s registered to a person named Eric Chase, and that’s the extent of that information that you have for that phone, correct? Transcript page 75, lines 1 - 41, page 76, lines 1 - 15 A We had an address - - Q Right. A - - 123 Main Street. Q 123 Main Street, okay. Was that – throughout the course of your investigation, was that address ever investigated? A Yes, absolutely, Your Honour.

In fact, that address has probably popped up on about 15 files, maybe more, over the years. It doesn’t exist. I know that from - - Q It does not exist? A – past experience. Q Okay. All right. So you had concerns, I take it? A Absolutely. It – for me, in my experience investigating dial-a-dope operations where we do get – The Court: That address does not exist in Saskatoon; is that what you’re trying to tell me? The Witness: Yes, Your Honour. I apologize. The Court: Okay. I would prefer precision. Continue. A Absolutely.

It’s my experience in the past that person registering cellphones, where you do not need identification to register a cellphone, can give any name and address that they wish. It is very common for person trafficking in illicit substances to register cellphones and fake names and fake addresses to elude police detection. Q Mr. Patel: Right. And essentially that’s something that you know through your experience as a member of a police force that’s involved in drug investigations?

A Yes, I do, Your Honour. Q Yeah. So that’s – it definitely brings forth some – some suspicions that you have and hunches, correct? A Yes, it does, Your Honour. Q Okay. And then it – it thereby compels you, if I were to suggest to you and be fair to you, to carry on the investigation, to look at it a bit further, correct? A Correct. Q Okay.

So at that point, like, I’m talking about this juncture in time in the investigation, the information from the confidential informant, the Special Constable Gerbrandt, you’re – at this point in the investigation, you get – you get an address that does not make any sense, that’s tied back to a phone which you suspect is not to the correct person, correct? A Correct. Q Okay. So that information, in itself, makes you suspicious, correct? A Yes. Q Okay. And you dig in a bit further, correct?

A Yes, I do. [ 20 ] The source had provided information that this person Eric, known to them, delivered cocaine to all areas of Saskatoon and specifically to an apartment building in the 100 block or 102 Avenue O South. [ 21 ] In addition, a check of the licence plate #518 JBC with SGI revealed: 1) it was for a 2014 black Dodge 1500 crew cab; 2) registered owner was Avninder Grewal with an address of 144 - 615 Stensrud Road in Saskatoon; 3) it had been registered on April 6, 2013 and renewed October 26, 2013. [ 22 ] A second confidential source provided information from CI-2 was secured by Constable Nottle of SPS and the following information was provided Constable Tryon: Transcript p. 39, lines 15 - 41: Absolutely.

So the first thing that I always do when I’m receiving information from other police officer is ensure that we’re not talking to the same person, and that can be based on gender or age or something to that effect or initials. I was able to ascertain that this was, in fact, a different person than source one, so that should be noted. I feel that’s imperative. What he was able to tell me is that his source had told him that a man named Eric, a person known to them as Eric, sells cocaine. They sell cocaine for $40 and $80.

He was described to Constable Nottle as a Latino male with a tattoo on his should, and I believe that that the phone was also provided from that source.

. . . . Q And did you get an age for Eric from this - - A Yes. Eric is in his 20s and looks Latino, as described Constable Nottle’s source. [ 23 ] Surveillance was conducted on the residence through the use of a surveillance team that reports back to Constable Tryon, which commenced on December 6, 2013. The following description of the information was provided by Constable Tryon: Transcript, page 45 Q Okay. Can you summarize what you learned as a result of the surveillance team being in place, please? A Absolutely.

They initiated surveillance at the location, advised me that initially there was no lights on at the residence. Eventually, a black Dodge Ram truck did appear at that residence. There was a blond female seen leaving the residence. . . . . So, yeah, the garage door was closed. The house was in darkness. Approximately 9:42 a.m., they observed a black Dodge Ram pull into the driveway. The vehicle was operated by a young male with dark skin, but they were not able to identify who that was at the time, and he walked into the residence. . . . . Q Mr. McBride: All right.

Carefully review what you have at 3.6, and I’ll let you carry on from there. My concern was - - before, sir, that you saw a black Dodge Ram. You said it pulled into a driveway, but you didn’t say where. A The black Dodge Ram truck arrived at the address. It pulled into the driveway of number 144 - 615 Stensrud. The vehicle was driven by a young male with dark skin. They were not initially able to identify the driver and were not able to see which residence he walked into. At 3:10 p.m., surveillance members observed a dark-skinned male exit 144 - 615 Stensrud Road. . . . .

A And opened the door to the black truck parked in the driveway. At that time, he was positively identified as the accused, Mr. Grewal. [ 24 ] Subsequent spot checks were conducted on the residence wherein Sergeant Lenius indicated that the truck was parked on the driveway of the residence on one (1) or possibly two (2) occasions. In cross-examination, it was clear that no further investigation was conducted between December 6 to 11, 2013 as all SPS members, who assumed carriage of this matter, were not working. [ 25 ] Further information relative to Mr.

Grewal’s prior contact with the police were imparted and/or confirmed by Constable Tyron. This information indicated Mr. Grewal had attempted to elude or evade police in a prior interaction. In direct examination, Constable Tyron indicated that this was not his opinion. However, when later describing the arrest of the accused, Constable Tyron stated that part of the reason for “ boxing in ” the accused was potentially due to possible escape from police.

[ 26 ] A criminal record check for the accused was performed with negative results. [ 27 ] On December 11, 2013 the Drug Unit officers were back from days off and Officer Tryon decided to conduct further surveillance on Mr. Grewal. Constable Tryon described activities as follows: Transcript page 47, lines 23 - 40, page 48, lines 1 - 40 Q Okay. So in terms of surveillance that became of significance to you, sir, what was the next date that sticks out? A The most significant would be December 11 th .

That was the date that I had chosen to specifically target that vehicle and the activities that it may be engaged in, as well as the occupant of that vehicle. Q All right. And I’ll ask you to basically walk through that day with us if you don’t mind, please. If you start with the surveillance and move forward from there, please. A Absolutely. So I held a quick briefing with SDES members prior to going out on surveillance. On that day, I remember it was a Wednesday night. We were working night shift. We were short handed. There was four of us working. I directed surveillance.

We weren’t sure where the truck would be, but I did know, relying on the information that had been provided to me from the source and from my background investigation. I kind of split the team. I sent Constable Nottle up to Stensrud Road at about 5:00. I believe, if I remember correctly, it was 5:04 p.m. And I initiated surveillance over on Avenue O South, particularly an apartment building of number 102. That was the information that had been provided to me by the sources. I knew that truck was going to frequent there on occasion.

By shortly – before 7:00, approximately 20 to 7, so 6:40 p.m., after Constable Nottle had told me that he had not seen any lights on at the residence, I directed him to come over to the 100 block of Avenue O South as we only had three people to assist in surveillance at that that location. At approximately 7:04 p.m., a black Dodge Ram truck was observed. I believe it was by Constable Nottle, but it was observed by SDES members pulling into the back alley of 102 Avenue O South. Over the next several minutes, two persons were seen leaving from the backdoor of that apartment building at separate occasions.

A male exited the backdoor, got into the passenger’s side of the truck, and within a short time period, exited the truck, went back inside the apartment building. Q Did you see him do anything while he was in the truck? A No, I did not, Your Honour. Q Okay. A A second individual then exited the apartment building and got into the passenger’s side of the truck and was in there for a short time period and then exited the truck as well. Those type of activities are consistent in my experience with drug trafficking, relying on the information that had been provided to me by the confidential sources.

The vehicle then left there. It proceeded eastbound on 22 nd Street as identified in the surveillance report. It then pulled in to the Granada House restaurant located at 22 nd Street and I believe it’s Avenue I.

Q If I could stop you. So you were able to ascertain a plate while the vehicle was mobile? A I do not recall. I believe that we did, but, again, I’d like to refer to the ITO. I’m not sure if it’s there or not. The Court: Go ahead. The witness: Thank you. A Yes, actually it is in my ITO. The vehicle left the apartment building, and SDES members were able to positively identify the truck as bearing that license plate. It would be -- Transcript, page 49, lines 13 - 20, 30 - 36 Q All right. I’m sorry to interrupt, sir. Carry on from there. You were talking about the Granada House. A Absolutely.

So it went to the Granada House. SDES members observed an unknown female get into the passenger’s side of the truck, and the truck drove - - by this time, it kind of turned through the lot, and it was proceeding westbound through the lot towards Avenue J, but in the parking lot. It was my direction at that time, given the information that I had received previously from confidential sources – Transcript, page 50,lines 1 - 8, lines The vehicle’s proceeding – the black Dodge truck was proceeding at a low rate of speed.

It was my belief that time that that individual in that truck, given all the information that I had been provided earlier and my experience as a police officer, that it was engaged in drug trafficking. I directed SDES members to box in that vehicle and arrest the occupants of the vehicle at that time. . . . . Q Okay. Do you know what became of that person, the passenger? A Absolutely.

So somewhere in between when I turned the corner to get into the parking lot on the north side, I believe it was Constable Nottle had lost sight of the passenger of that truck and she had gotten out near the corner and had walked away. We focused our attention obviously on the truck because that was my primary concern, and that individual eluded us. We don’t know where she went. She disappeared into somewhere. [ 28 ] At that stage Officers Tryon and Lenius boxed in the accused’s truck with their unmarked police vehicles.

They conducted a high risk arrest of the accused with their side arms drawn and then did a search of his person and his truck incident to his arrest. [ 29 ] Lastly, in cross-examination Officer Tryon articulated and summarised the objective investigative and informational process he went through which culminated in his having a subjective belief that he had the grounds to effect a warrantless arrest of Mr. Grewal as

follows: Transcript, page 98, lines 16 - 28 Q Okay. So you see the interaction at the apartment, the way I defined it before; you see the woman get near the passenger’s side door of the vehicle, and the decision’s made essentially to – you have your hunch, and you think there’s drugs in the vehicle, and you’re going to arrest? A No.

All of those things took place, but I’m also relying on all of the information and the accuracy, the degree of accuracy as given by my confidential source, primarily the description of the person driving, the license plate number, the description of the vehicle, and the manner in which they sell drugs. Those things all played into factors in my grounds for arrest. Q Okay. And that was your decision to essentially act on what your belief was, correct? A Absolutely, Your Honour.

Applicable Law [ 30 ] The applicable provisions of The Canadian Charter of Rights and Freedoms are as follows: s. 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. s. 8 Everyone has the right to be secure against unreasonable search or seizure. s. 9 Everyone has the right not to be arbitrarily detained or imprisoned. s. 10 Everyone has the right on arrest or detention

a) to be informed promptly of the reasons therefor;

b) to retain and instruct counsel without delay and to be informed of that right; and

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. s. 11 Any person charged with an offence has the right

a) to be informed without unreasonable delay of the specific offence. s. 24

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [31] Mr. Grewal has the burden of persuading the Court that their Charter rights have been infringed, denied or breached.

Theburden shifts to the Crown once the accused has demonstrated that the arrest was a warrantless one and the Crown must then show thatthe arrest was reasonable. The standard of proof in both circumstances is on a balance of probabilities. (See: R. v. Besharah (2010),251 C.C.C. (3d) Sask. C.A., para. 35; R v. Collins, (SCC), [1987] 1 S.C.R. 265 paras. 21, 32 and 33) Further, in R v.MacKenzie. 2013 SCC 49 , [2013] S.C.J.

No. 49 at paras. 44 and 45 the Supreme Court of Canada stated: 44 Manifestly, if the officers were in fact engaged in random traffic stops to check for drugs, their actions would be unconstitutional andamount to a serious abuse of the powers society has entrusted to them. Had the trial judge so found, this would also have tainted theentirety of their evidence and put an end to the matter. There would have been no need for the trial judge to write a decision devoted inthe main to the principles of law governing sniff searches and the meaning of the term “reasonable suspicion”.

A simple rejection of theofficer’s evidence would have sufficed. 45 The allegations underlying such a finding and the ramifications for both the appellant and the officer are serious matters, not to betaken lightly. I accept that there will be cases in which a trial judge refuses to act on an officer’s testimony where the trial judge has realconcerns about the officer’s veracity. See, e.g., R. v. Turpin, 2010 SKQB 444, 365 Sask. R. 67, aff’d 2012 SKCA 50, 393 Sask. R. 184.

In such cases, where the officer’s testimony is crucial, the Crown will have failed to prove on a balance of probabilities that itswarrantless search was reasonable (Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 161; R. v. Collins (SCC), [1987] 1 S.C.R. 265, at p. 278. [32] Section 495(1)(

a) and (

b) of the Criminal Code states: 495(1) 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 to commit anindictable offence; (

b) a person whom he finds committing a criminal offence; or . . . [33] The precursor to this

section required both reasonable and probable grounds before an arrest could be made without warrant. Although some courts suggested this to mean that there was now a distinction to be drawn between grounds that were reasonable, as opposed to both reasonable and probable, the Supreme Court in R. v. Loewen, 2011 SCC 21 , [2011] 84 C.R. (6th) 215 at para.17 stated: . . . an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, inaddition, be justifiable from an objective point of view.

That is to say, a reasonable person placed in the position of the officer must beable to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need notdemonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case forconviction before making the arrest. [34] The test for reasonable grounds to arrest can be summarized as follows (outlined in R. v. Shinkewski (2012), 2012 SKCA 63, 289 C.C.C. (3d) 145 (SKCA) at paragraph 13):

i) The arresting officer must have subjectively reasonable grounds for arresting; ii) Those reasons must also be objectively justifiable from the point of view of someone in the position of the arresting officer; (iii) Although something more than a hunch or a suspicion is required by the arresting officer (R. v. Morelli, 2010 SCC 8 2010SCC 8, [2010] 1 S.C.R. 253, at para 91; R. v. Mann, 2004 SCC 52 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Simpson (ON CA) (1993), 79 C.C.C. (3d) 482 (Ont.

C.A.), he is not required to establish a prima facie case for conviction (R. v.Storrey) or even that it was more likely than not than an offence was committed. (R. v. Mugesera v. Canada (Minister of Citizenship &Immigration), 2005 SCC 40 2005 SCC 40, [2005] 2 S.C.R. 100). (iv) The arresting officer has an obligation to consider all reliable information. (

v) The cumulative effect of the information available to the arresting officer is what is assessed, not each piece in isolation (R. v.Nguyen, 2010 ABCA 146 2010 ABCA 146, 477 A.R. 395; and R. v. Storrey). (vi) The dynamics of investigation and arrest must be considered and appreciated: officers must act quickly in “volatile and rapidlychanging situations:. The information available to the police necessarily may be less than exact or complete. [35] In R. v.

Shinkewski (2012), 2012 SKCA 63 , 289 C.C.C. (3d) 145the Saskatchewan Court of Appeal at paragraphs13, 14 and 15 gave a significant review of the legal standard for “reasonable grounds to believe” when it stated: 13 The legal standard of “reasonable grounds to believe” has been the subject of considerable judicial

interpretation. I do not propose toreview 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 (S.C.C.); (

b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities (Mugesera c.Canada (Ministre de la Citoyenneté & de l’Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 (S.C.C.) Or a prima facie case forconviction (R. v. Storrey) before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” ora hunch (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.), 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 (Sask. C.A.); R. v. Nguyen, 2010 ABCA 146, 477 A.R. 395 (Alta. C.A.); and R. v. Storrey; and 2012CarswellSask 406, 2012 SKCA 63, [2012] 9 W.W.R. 674, 103 W.C.B. (2d) 396, 289 C.C.C. (3d) 145, 264 C.R.R. (2d) 11, 399 Sask.

R.11, 552 W.A.C. 11 (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 (Ont. C.A.), at para. 31; and R. v. Luong, 2010 BCCA 158, 286 B.C.A.C. 53 (B.C.C.A.), at para. 19. 14 After reviewing the evidence in his written reasons, the trial judge found Sergeant McDonald had “arguably” possessed reasonablegrounds to suspect criminal activity, but given “the paucity of the information available to him and its equivocal nature”, the sergeant’ssuspicions were insufficient to satisfy the standard of “reasonable and probable grounds to arrest” or, and somewhat inconsistently, eventhat of “reasonable ground to suspect criminal activity”.

Nevertheless, the trial judge accepted that Sergeant McDonald had subjectivelybelieved he had reasonable grounds to arrest the operator of Mr. Shinkewski’s vehicle. In reaching his conclusion, the trial wrote: [15] When I review the totality of the circumstances I find that Sgt. McDonald’s knowledge fell short of the degree of probabilitynecessary for reasonable grounds to arrest. At the time he formed his belief he did not know who was operating the vehicle and therewas a complete absence of evidence available to him as to what, if anything, took place at the target’s residence.

Crucially, Sgt.McDonald was unaware of the tenuous nature of the dated confidential information relating to this accused, making an informedconsideration by him of this information impossible. 15 With respect, the trial judge’s reasons contain errors of law in both the identification of the applicable standard and the application ofthat standard to the facts. [36] Three recent decisions, R. v. Chehil, [2013] SCC49; 2013 SCC 49 , [2013] S.C.J. No. 49, S.C.C.; R. v. MacKenzie2013 SCC 50 , [2013] S.C.J. No. 50; [2013] SCC 50; R. v.

Mai Nguyen [2013] SKQB 36 (Popescul, CJQB) in dealing with acentral issue of “reasonable suspicion: as opposed to the more stringent test of “reasonable and probable grounds” as found in this case,clearly set out the “intellectual analytical steps” the Court must follow in assessing the evidence before the Court.

The Court is verycognizant that the tests in those cases were in relation to deploying and using “sniffer dogs”, involving “reasonable suspicion” fordetention, before they would have “reasonable and probable” grounds to make an arrest. [37] However the Court takes direction from those decisions in assessing whether in this case the police had “reasonable andprobable” grounds to effect a warrantless arrest of Mr. Grewal. [38] In R. v. Nguyen, Popescul, CJQB at paras. 26 - 32 stated: [26] In R. v.

Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 569, a majority of the Supreme Court of Canada established that the use of adrug detection dog as an investigational tool is reasonable, without prior judicial authorization, provided that the police have grounds to“reasonably suspect: the presence of drugs. Speaking for the majority, Binnie J. defined “reasonable suspicion” as: 75 The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” isan expectation that the targeted individual is possible engaged in some criminal activity.

A “reasonable” suspicion means somethingmore than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123: [T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely heldsubjective belief is insufficient.

Instead, to justify such a search, the suspicion must be supported by factual elements which can beadduced in evidence and permit an independent judicial assessment. [p. 125] . . .

What distinguishes “reasonable suspicion” from the higher standard of “reasonable and probable grounds” is merely the degree ofprobability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in bothcases, must exist to support the search. [p. 126] “Reasonable suspicion”, therefore, is an articulation of a standard that is used to assess whether a person may possibly be involved in

criminal activity. The reasonable suspicion standard is often contrasted with indiscriminate police conduct that is based merely on a hunch, intuition or speculation, none of which is sufficient to support an objectively based reasonable suspicion. See R. v. Kang-Brown , supra , at paragraphs 26 and 75 - 77 . [27] Since the “reasonable suspicion” standard is lower than the “reasonable and probable grounds” standard, it logically follows that the degree of reliability and the amount of information to establish that lower threshold is lower. This was recognized by our Court of Appeal in R. v.

Savage , 2011 SKCA 65 , 371 Sask.R. 283, where, at paragraph 18, Smith J.A. said: [18] Reasonable suspicion is lower standard and can be established by less evidence, with less probative value, than reasonable and probable cause. [28] Nonetheless, As Binnie J. points out in Kang-Brown , because the search is conducted without prior judicial authorization, the “after-the-fact” judicial scrutiny of the grounds for the alleged “reasonable suspicion” must be rigorous. See also Caldwell J.A. in R. v. MacKenzie , 2011 SKCA 64 , [2011] 12 W.W.R. 102, at paragraph 25 (leave to appeal to S.C.C. granted, [2011] S.C.C.A.

No. 359 (QL), argued in the Supreme Court of Canada on January 22, 2013, and reserved). [29] However, the after-the-fact judicial review must be conducted in a principled fashion which does not amount to second-guessing. The officer’s belief in the existence of a reasonable suspicion ought not be disturbed unless it is unreasonable or not rationally capable of supporting an inference of suspicion. See R. v.

Gunn , 2012 SKCA 80 , 399 Sask.R. 170, at paras. 15-23 . [30] Further, in reviewing the question of whether the police had an objective basis upon which to act, the Court must take into account that the police at the scene are often required to make quick decisions based on available information, some of which may not be complete or exact, in situations that are rapidly changing and potentially volatile. Judicial reflection is not a luxury the police enjoy, and their decisions should not be viewed in the same way as an unhurried decision made after full debate and careful deliberation. See R. v.

Nolet, 2009 SKCA 8 , [2009] 4 W.W.R. 604. [31] Another important consideration is the investigative officer’s training and experience. In some situations, such as drug investigations, the work of the police can be very specialized. The significance of the inferences and deductions that a highly trained and very experienced officer might draw from a particular situation might easily elude the lay person. This concept has been consistently applied by our Court of Appeal. In R. v. Yeh , 2009 SKCA 112 , [2009] 11 W.W.R. 193, Richards J.A. opined: 53 Constable Wilson’s assessment of the situation involving Mr.

Yeh must be considered against the background of the now established notion that the experience and training of a police officer should be taken into account when the reasonableness of a suspicion is assessed. This is because a fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police. See: R. v. Mouland , 2007 SKCA 105 at para. 26 .

This said, it is also clear that, when necessary the courts must be prepared to look carefully at what is held out to be “experience” or “training” in order to ensure that the integrity of the reasonable suspicion concept is maintained. See also R. v. Nolet , supra , and R. v. MacKenzie, supra . [32] It further logically flows that the Court, when assessing the situation, ought to step back and consider the totality of the circumstances, including inculpatory, exculpatory and neutral indicators.

In doing so, however, the Court must assess and appreciate the relevance of the indicators in the context of all of the circumstances, and not in isolation. The fact that an indicator may have an innocent explanation does not necessarily take away its probative value. In R. v. Savage (Sask. C.A.), supra , Smith J.A. put it this way at paragraph 21: 21 In my view, the trial judge erred in failing to assess or to appreciate the probative value, or the relevance, of the factors cited by the officers as grounding their suspicion. The test is not whether there might be an innocent explanation.

It is whether the presence of such a fact enhances or makes more likely the possibility of the crime at issue. In my respectful view, each of the factors relied upon by the

officers was objectively relevant to and logically probative of their ultimate suspicion. [39] In R v Jacques (SCC), [1996] 3 SCR 312, Gonthier J. quoted with approval this observation made byBelleghem J. In R v Marin: The “indicators” are to be seen as a constellation, or cluster, leading or tending to a general conclusion. Looked at individually, no singleone is likely sufficient to warrant grounds for detention and seizure.

The whole is greater than the sum of the individual parts viewedindividually. [40] In R v Bramley and Schiller, [2009] SKCA 49 at para 60, the Saskatchewan Court of Appeal discussed the totality ofthe circumstances test. Although made in the context of discussing an investigative detention, these comments apply equally whenassessing the reasonable grounds for an arrest or search with warrant: [60] I note more generally that there is, of course, no fixed checklist of factors which serve as prerequisites for a reasonable suspicion ofillegal drug activity and which thereby justify a sniffer dog search.

Each case must be considered on its own merits. The reasonablenessof a police officer’s suspicions should be assess through the lens of common sense and practical experience rather than be resort to pre-ordained lists of indicators deemed adequate to justify a search. Perhaps the key general point in this case is that the potential meaningof the factors relied on as the basis for a reasonable suspicion must be assessed for their collective, as opposed to individual,significance. [Emphasis added] [41] The grounds for an arrest can be established circumstantially.

In R v Jacobson (ON CA), [2006] 207CCC (3d) 270, the Ontario Court of Appeal explained that reasonable grounds can be established by inference: 22 . . . the standard ofreasonable grounds does not require proof beyond a reasonable doubt or even proof on a balance of probabilities. If the inference ofspecific criminal activity is a reasonable inference from the facts, the warrant should be issued. [42] Since grounds can be reasonably inferred from the global circumstances, direct evidence is not required.

When faced withcircumstantial information, an arresting officer is entitled to “put two and two together” as set out in R v Charlton, (BCCA): Even in circumstances where police do not have specific information that an accused is in possession of narcotics, they are entitled to“put two and two together” and conclude that the accused is in possession of narcotics.

Thus, where un unknown accused makes a“furtive visit . . . of the fleeting sort which is to be expected when drug trafficking is going on” to a residence being surveilled by policepursuant to an informant’s advice that cocaine was being sold out of the premises, the conclusion that the accused is in possession ofcocaine would meet both tests enunciated in R v Storrey. [43] In R. v. Chehil, supra, the Supreme Court of Canada at para. 3, 33, 34 and 35, 55 and 62 stated: 3 In my view, there is no need to revise the reasonable suspicion standard.

It is a robust standard determined on the totality of thecircumstances, based on objectively discernible facts, and is subject to independent and rigorous judicial scrutiny. As Doherty J.A. saidin R. v. Simpson (1993), (ON CA), 12 O.R. (3d) 182 (C.A.), at p. 202, the standard prevents the indiscriminate anddiscriminatory exercise of police power. . . . 33 Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors.

The totality of thecircumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regardingreasonable suspicion. As Doherty J.A. found in R. v. Golub (1997), (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 751,“[t]he officer must take into account all information available to him and is entitled to disregard only information which he has goodreason to believe is unreliable”. This is self-evident.

34 However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seekout exculpatory factors or rule out possible innocent explanations. As was noted in United States v. Sokolow, 490 U.A. 1 (1989), at p. 10(citing Illinois v. Gates, 462 U.S. 213 (1983), at p. 244, footnote 13), “the relevant inquiry is not whether particular conduct is ‘innocent’or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts:.

In conducting this inquiry to ascertainwhether reasonable suspicion was present, the court will assess the circumstances the police were aware of at the time of the execution ofthe search, including those learned after the decision to deploy the sniffer dog was made if there is a delay in deployment, as there was inthis case. However, it would not be permissible for the reasonable suspicion inquiry to assess circumstances learned after the executionfo the search: ss Kang-Brown, at para. 92. 35 Finally, the objective facts must be indicative of the possibility of criminal behaviour.

While I agree with the appellant’s submissionthat police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, Ido not accept that the evidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specific known criminalact. . . . 55 Once a sniffer dog has delivered a positive indication, the police often seek consent for a verification search. Provided that theconsent is properly sought and obtained, the search will respect s. 8 of the Charter: see R. v. Borden, (SCC), [1994] 3S.C.R. 145.

Alternately, the police may determine that they have the grounds required under the Charter to proceed with a warrantlessarrest, namely reasonable and probable grounds to believe that the accused has committed an offence: see R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, at pp. 249-51. If the arrest is validly made, the police may conduct a search incident to arrest in order tosecure evidence that could be used at the accused’s trial: see Caslake.

That is what occurred in this case, and in the majority of reportedcases dealing with sniff searches occurring post-Kang-Brown in which the police conducted a search to confirm the presence of drugs. . . . 62 The Court of Appeal found that the trial judge erred by looking at each factor individually. In their view, it was not determinative thateach factor, viewed in isolation, was capable of innocent explanation. They found that the circumstances must be looked at in theirtotality, which precludes a divide and conquer approach that finds each factor individually equivocal. [44] In R. v.

MacKenzie, supra, the Supreme Court of Canada reiterated several principles including: 1) The reasonable and probable grounds standard is a more demanding standard than the reasonable suspicion standard. 2) Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. However, that training and experience must not be accepted uncritically. Nor is deference necessarily owed to a police officer’s view ofthe circumstances.

It must be subjected to rigorous judicial review. 3) The analysis of objectively based criteria should be conducted through the lens of a reasonable person standing in the shoes of thepolice officer. [45] See also a number of recent decision in relation to grounds for a warrantless arrest and search incident to such arrest. R v Zettler [2015] ONCA 613 R v Herritt [2015] NBCA 33,

(2015) CCC (3d) 325 R v Wu [2015] OJ No 5106 (Ont CA) R v Fountain [2015] ONCA 354 (Ont CA) R v Richards [2015] 323 CCC (3d) Ont CA) R v Aden, Thompson and Omar [2015] SKCA 50 (Sask CA)

[ 46 ] Where an arrest and search is warrantless, as in this case, it is presumptively unreasonable. However, if the Crown is able to establish on a balance of probabilities that the police action was authorized by law, that the law itself is reasonable, and the manner in which the search was carried out was reasonable, then the warrantless search will not be found to be unreasonable. A search incident to arrest, however, must have at its heart a lawful arrest. If the arrest is not lawful, the search is also not lawful. [ 47 ] Accordingly, it is this Court’s responsibility, in the context of Mr.

Grewal’s Charter application, to assess whether the reasonable and probable grounds standard for a warrantless arrest and search has been met, considering the entire constellation of objectively discernible facts, as assessed through the police officers training and experience. The Court must be ever mindful that this must be subjected to a rigorous, objective judicial review. Issues and Analysis 1. Did the police officers who ordered and/or made the arrest of Mr. Grewal on December 11, 2013, have reasonable and probable grounds to effect such arrest? 2.

Did they ave the requisite subjective belief, supported by sufficient objective criteria? 3. If any of his rights were breached then what remedy if any should be accorded to him? [ 48 ] As Officer Tyrone stated the genesis of this investigation was very similar information from two independent, reliable confidential informants to the effect: 1. A stocky built male with dark skin, named Eric was selling cocaine on the street in a dial a dope operation; 2. He was driving a newer black truck with Saskatchewan licence plate #518 JBC; and 3.

In addition they provided a cell phone number and one of the main selling areas was an apartment block at 102 Avenue S South. [ 49 ] The information was so similar that it had the effect of corroborating and enhancing the accuracy of the source information. [ 50 ] The officers then entered into further investigations to verify the original information and gather further evidence. [ 51 ] They checked out business records for the phone and licence registration records for the truck, revealing the following: 1. The phone registry had a fictitious name and address which is often done by drug traffickers; 2.

The black Dodge Ram truck was registered to Avinder Grewal with an address at 144 - 615 Stensrud Road. Then surveillance on December 6, 2013 disclosed the accused and his black truck being located at the Stensrud address. [ 52 ] Further surveillance was conducted on December 11, 2013 to see if it would provide further possible evidence or objective criteria for the officers in their investigative process. [ 53 ] Their police suspicion was confirmed when the black truck being driven by the accused arrives at the back alley at 102 Avenue O South.

The police officers observed two males exit the back door of the apartment block and briefly enter the passenger door

of the truck, which the police officers believe is consistent with behaviour often seen in street level drug transactions. [ 54 ] Then they followed his truck to the Granada House parking lot where they observed a female enter the truck. This also is behaviour which one can reasonably interpret as being possible drug trafficking activity. [ 55 ] Constable Tryon’s evidence disclosed that at that stage he clearly had the subjective belief on what he felt was sound evidentiary, objective criteria, that he had reasonable and probable grounds to effect a warrantless arrest of Mr.

Grewal for drug trafficking activity. [ 56 ] Defence skillfully and carefully cross-examined Officer Tryon and then strenuously argued most of the objective criteria relied on by the police had a weak, or neutral or entirely innocent connotation or inference to be drawn. He strenuously put forth that this did not give Officer Tryon reasonable and probable grounds to effect a warrantless arrest. The Court should not individually analyse each fact in isolation.

The court must look at the entire constellation of events. [ 57 ] After a careful review of the evidence and jurisprudence, I conclude there were clearly sufficient objective criteria for the individual officers who arrested Mr. Grewal, to have reasonable and probable grounds to believe he was involved in street level drug trafficking. I arrive at this conclusion after assessing objectively discernable facts - whether inculpatory, exculpatory or neutral.

In doing so I also take into account the individual and collective experience of the officers involved. [ 58 ] The Court must base its decision on the totality of the evidence. The facts relied on by the police officers were objectively relevant and the conclusions and inferences they drew therefrom were logically probative. [ 59 ] The Court finds there was no breach of Mr. Grewal’s Charter rights and his initial warrantless arrest in the Granada House parking lot was lawful. __________________ D.A. Lavoie, J