Her Majesty the Queen - v. -, 2015 SKPC 100

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 100 Date: June 25, 2015 Information: 24469018 Location: Meadow Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tyson Myette Appearing: Gerald Perkins For the Crown Ian Mokoruk For the Accused JUDGMENT M. MARTINEZ , J Introduction [ 1 ] On February 16, 2012, a confidential informant told R.C.M.P. Constable Kyle Fehr, that Tyson Myette and Chris Durocher were in a taxi at a certain location in Meadow Lake, Saskatchewan, and that they possessed cocaine.

Acting on this information, Constable Fehr located the cab and followed it for a short period. Ultimately, he arrested Mr. Myette for possession of cocaine for the purpose of trafficking and another officer arrested his companion. [ 2 ] When Constable Fehr searched Mr. Myette, he found 7 small packages of crack cocaine and $188.27 in cash on his person. Another constable searched Mr. Durocher and found an unopened box of plastic sandwich bags hidden in his clothing. An expert

testified that crack cocaine traffickers use corners cut out of such bags to package crack cocaine for sale. Subsequent searches of Mr.Durocher’s cell phone and home revealed additional evidence consistent with trafficking in crack cocaine. Consequently, Constable Fehrcharged Mr. Myette with possession of cocaine for the purpose of trafficking and possession of cocaine. [3] Mr. Myette’s trial began with a voir dire in which the prosecution called all of its evidence and Mr. Myette asked me toexclude from his trial the evidence found subsequent to his arrest. Mr.

Myette argued that I should exclude the evidence becauseConstable Fehr infringed two of his rights protected under sections 8 and 9 of The Canadian Charter of Rights and Freedoms, namely: o the right to be secure from unreasonable search and seizure, and o the right not to be arbitrarily detained or imprisoned. [4] Mr. Myette submits that his arrest was arbitrary as Constable Fehr did not have reasonable and probable grounds to arresthim. He argues that because his arrest was arbitrary the search incident to his arrest was not reasonable.

The Crown countered that thearrest was lawful, or if it was not, I still should not exclude the evidence found by the constable as Mr. Myette’s rights were not seriouslyinfringed and society has a significant interest in seeing drug traffickers prosecuted. [5] The following is my decision on Mr. Myette’s application. Did Constable Fehr have reasonable and probable grounds to arrest Tyson Myette? [6] A warrantless search following a lawful arrest is reasonable. A search resulting from an unlawful arrest almost always isnot. For this reason, the first issue I must decide is whether Constable Fehr’s arrest of Mr.

Myette was legally justified. [7] Constable Fehr arrested Mr. Myette without a warrant. A police officer may arrest a person without a warrant if the officerbelieves, on reasonable grounds, that the person is about to commit or has committed an indictable offence [Criminal Code, RSC 1985, cC-46, s 495(1)(a)]. [8] Reasonable grounds to believe that a person has committed or is about to commit a crime means more than a mere suspicionbut does not mean that the officer must be certain.

Reasonable grounds means that, when viewed objectively, the officer’s grounds forarrest were sufficient to support a belief that the person probably committed a crime or is about to commit a crime; see: R v Storrey,[1990] 1 SCR 241 at p 250, ; R v Mouland, 2007 SKCA 105 at para 22; R v Gunn, 2012 SKCA 80 at para 7 and 8,[2013] 1 WWR 495. [9] Constable Fehr says that he had reasonable grounds to believe Mr. Myette was about to commit the indictable offence oftrafficking in cocaine. The basis for his belief was information he received from a confidential informant.

Information from aconfidential informant that a certain person is carrying on a criminal activity can constitute reasonable grounds for making an arrestwithout warrant, if: a. the informant is credible, b. the information provided by the informant is compelling, and c. the police corroborated the information by investigation before arresting the individual. [R v Debot, (SCC), [1989] 2 SCR 1140, at p 1186, per Wilson J.] [10] A confidential “tip” lacking these characteristics is nothing more than a conclusory statement which cannot constitute thereasonable grounds needed to support a warrantless arrest [R v Debot, (ON CA), 30 CCC (3d) 207, at , at p 7-8 (ONCA)].

[ 11 ] The factors described by Madam Justice Wislon in Debot must be assessed as a whole. None is more important than the other. However, weakness in one factor can be offset by strength in another: “I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.” [ Debot at p 1186] [ 12 ] The main indication that an informer is reliable is their past performance as an informer.

In this case, I find that it was reasonable for Constable Fehr to believe his informant was reliable based on the informant’s history with the local police detachment. Constable Fehr testified that his confidential informer was involved in “drug activity” in Meadow Lake and on several previous occasions had given confidential information to the R.C.M.P. relevant to other drug investigations. On those occasions the informant corroborated other information known to the local detachment. In addition, about a month before Mr.

Myette’s arrest, information provided by this informant led to the arrest of an individual for possession of crack cocaine. [ 13 ] The next question is whether the information provided to Constable Fehr was compelling. In this context, “compelling” means the cogency of the information and the detail contained in it.

For example: Was the information based on first-hand observation or gossip and how much detail was there for the police to verify through surveillance? [ Debot at p 1168-69 (SCC)] [ 14 ] Constable Fehr testified that the confidential informant told him that Tyson Myette and Sheldon Durocher were driving around Meadow Lake in a cab, that they were at a certain location in Meadow Lake, and that they had cocaine, but he or she did not say who had the cocaine or that either of the men was selling cocaine.

Further, the officer did not say whether the informant told him that the information was based on first-hand knowledge or something he or she heard from someone else. [ 15 ] The informant’s conclusory statement did not implicate Mr. Myette in cocaine trafficking and could not form the basis of reasonable and probable grounds to arrest him for that offence. However, the information was enough to raise suspicion about Mr. Myette and Mr. Durocher’s actions and police surveillance might provide the additional evidence needed to arrest Mr.

Myette. [ 16 ] Constable Fehr followed up the “tip” he received by driving his marked police vehicle to the location identified by the informant, which was outside a local bar. There he saw Mr. Myette and Mr. Durocher in a cab. He then followed the cab to see where it went and what stops it made along the way. [ 17 ] From the bar, the cab drove to a grocery store where it parked while Mr. Myette went into the store. Minutes later Mr. Myette returned to the taxi. The officer did not see whether Mr. Myette was carrying anything when he came out of the grocery store.

Staying well back, Constable Fehr followed the taxi when it left the grocery store. Because he was staying well back, he lost sight of it for a couple of minutes but soon found it stopped in a car dealership’s parking lot. [ 18 ] Constable Fehr did not see the cab stop anywhere other than the grocery store and the car dealer’s parking lot. [ 19 ] Instead of continuing to watch the taxi, Constable Fehr almost immediately arrested Mr. Myette for possession of cocaine for the purpose of trafficking. Consequently, he arrested Mr. Myette only on what the confidential informant told him.

That very limited information did not implicate Mr. Myette or his companion in drug trafficking. The constable’s surveillance did not reveal anything that could reasonably be construed as involving either of the men in drug trafficking. [ 20 ] Objectively, this information did not support the officer’s belief that Mr. Myette or his companion probably were intending to sell crack cocaine. For this reason I find that the officer did not have reasonable grounds to arrest Mr. Myette and that the arrest contravened Mr. Myette’s right to be free from arbitrary detention and imprisonment.

Should the evidence found subsequent to Mr. Myette’s arrest be excluded from the trial? [ 21 ] Before deciding whether to exclude the evidence resulting from Mr. Myette’s arrest, I must weigh the seriousness of the officer’s Charter -infringing conduct and its impact on Mr. Myette, against society’s interest in seeing this case go to trial: “…When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on

society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission maysend the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interestsof the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication ofthe case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry todetermine whether, considering all the circumstances, admission of the evidence would bring the administration of justice intodisrepute.” [R v Grant, [2009] 2 SCR 353, 2009 SCC 32, at para 71]

(1) How serious was the Charter-infringing state conduct? [22] State conduct that infringes a person’s Charter-protected rights varies in seriousness. An inadvertent or minor infringementusually will not result in exclusion of evidence at trial. On the other hand, a reckless disregard for an individual’s Charter rights may: “State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained throughinadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law.

At the other end of thespectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect onthe public confidence in the rule of law, and risk bringing the administration of justice into disrepute.” [Grant, at para 74] [23] Constable Fehr honestly believed he had reasonable grounds to arrest Mr. Myette. There was no improper motive in hisactions. Rather, Constable Fehr was relatively inexperienced (about two years as a member of the R.C.M.P.) and this was the first drug-related investigation in which he took the lead.

In my opinion it was this lack of experience that caused him to effect an arrest before hehad reasonable grounds to do so. Had the constable watched the cab a little longer, perhaps he would have seen someone meet it at thecar dealer’s lot and maybe the officer would have seen something resembling a drug transaction, such as a hand-to-hand exchangebetween one of the men in the cab and the person who met them. Such an observation may have provided the reasonable groundsneeded to arrest the men. Instead, he acted hastily and breached Mr.

Myette’s right to be free from arbitrary detention. [24] In my opinion, a groundless arrest and search of an individual is at the higher end of the spectrum of Charter-infringingconduct as the right to be free from arbitrary detention and unreasonable search and seizure are key rights of every individual in a freeand democratic society.

(2) What was the impact on Mr. Myette of the Charter-infringing conduct? [25] An arrest is not an insignificant infringement of a person’s freedom. The impact on Mr. Myette has been profound and long-lasting. Not only was he arrested, handcuffed, and held in police cells, he was not released from custody for five days. The conditions ofhis release included a curfew from 9 p.m. until 8:30 a.m., and prohibited him from consuming alcoholic beverages and possessing a cellphone. Those or similar restrictions remained in place until his trial.

(3) What is society’s interest in seeing this case adjudicated on its merits? “Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant tothe s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of theevidence, or by its exclusion. This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are broughtto trial and dealt with according to the law”: R. v.

Askov, (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20.” [Grant at para79] However: “The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of theadministration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offencecharged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the

accused are high.” [ Grant at para 84] [ 26 ] If I exclude the evidence found by the police after arresting Mr. Myette, the prosecution’s case must fail. [ 27 ] Trafficking in crack cocaine is a serious crime and a significant problem throughout the country and certainly in Meadow Lake. Society expects to see drug trafficking cases prosecuted and decided on their merits. On the other hand, society also expects that police officers will not arrest someone simply because they suspect that the person has done something illegal.

Rather, society expects that police officers arrest only those people whom they have good reason – reasonable grounds – to arrest. Conclusion [ 28 ] The Court must take the long view in these situations. The seriousness of the crime and society’s interest in seeing such crimes prosecuted cannot overshadow a serious infringement of Charter -protected rights. To decide, after the fact, that evidence of even a serious crime found as a result of a significant infringement of a person’s rights, trumps those rights, would diminish if not extinguish the value of those rights.

Reasonable members of society expect the Court to protect their Charter rights and in the circumstances of this case “would be offended by the unlawful arrest, detention, and search of the accused, and would not expect this court to condone such conduct.” [ R v Powell , 2013 ONSC 4169 at para 52 , per Henderson J.] [ 29 ] For the reasons described above, I find that the administration of justice would be brought into disrepute if I admitted the evidence found in the searches subsequent to Mr. Myette’s unlawful arrest. _________________________ M. Martinez, J