R. v. Kalturnyk, 2014 MBPC 24

R. v. Kalturnyk Citation: 2014 MBPC 24 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) S. Silver, for the Crown ) - and – ) ) Ksamil Kenneth Kalturnyk ) M. Walker, for the Defence ) ) ) Judgment delivered: July 9, 2014 B. CORRIN, P.J. Introduction – The Incident [ 1 ] This is a Decision with respect to a voir dire . The issue is whether or not the accused’s rights under

section 9 and

section 8 of The Charter of Rights and Freedoms were violated by police officers at the time of his detention and arrest on March 25, 2013. It is the accused’s position that certain items that were seized at such time were seized in violation of his rights and should be excluded pursuant to section 24(2) of the Charter . [ 2 ] The accused is charged with possession of a weapon, a knife, for a purpose dangerous to the public peace pursuant to

section 88 of the Criminal Code ; carrying a concealed weapon, a knife and an ASP baton, pursuant to

section 90 of the Criminal Code; possess break and enter instruments, a glass punch, pursuant to

section 351 ; and unauthorized possession of a prohibited weapon pursuant to section 91(2) of the Criminal Code . [ 3 ] The circumstances relating to this matter as communicated to the court by the only witness testifying at the voir dire, Constable Darren Pederson of Winnipeg Police Service, are as follows. [ 4 ] On March 25, 2013, at approximately 4:30 a.m., Constable Pederson and his partner, Constable Tighe were dispatched to attend to 1102 - 53 Stadacona Street, in Winnipeg.

The reason for the dispatch as related by Constable Pederson was that he had been told that a male caller had telephoned police and stated that he wanted police to come and assess whether “he is public enemy number 1”.

Constable Pederson advised the court that it was what the police call a “well-being call” as opposed to a criminal complaint. [ 5 ] Constable Pederson told the court that he knew from prior professional experience that 53 Stadacona Street was a government building that houses people with mental health issues. [ 6 ] Upon arrival at the immediate vicinity of the apartment complex, Constable Pederson saw the accused crossing the street, going towards 53 Stadacona Street and not away from the building. Constable Pederson testified that he observed the accused dust snow off a sign.

He also related that the accused appeared to do some digging in the snow in the immediate area of the sign. Constable Pederson testified that he thought the accused’s behavior was somewhat reflective of possible mental instability and decided to spot check the applicant in relation to the well-being call i.e. that this might be the un-named male who had asked police to come and assess whether he is “public enemy number 1”. [ 7 ] Constable Pederson testified that he and his partner exited their marked police car and approached the accused.

He testified that the accused’s body language at this point was “paranoid” and “nervous”. He went on to testify that he and his partner engaged the accused in conversation asking him where he was going. Constable Pederson advised court that the response was to the effect that he was on his way to 7-11 to purchase food but did not have any money. Constable Pederson testified that he then asked Mr. Kalturnyk if he had any weapons and the accused replied “only a small knife”.

At this point Constable Pederson recollected that he and Constable Tighe had been at the scene for probably not more than one minute. [ 8 ] The accused was then escorted to the police cruiser with each officer holding one of his arms. Constable Pederson testified that prior to entering the vehicle he observed something bulky in the accused’s hoodie pouch. It was at this point that the officers decided to do a pat down search for officer’s safety.

On cross-examination, Constable Pederson conceded that he had never asked the accused what if anything was in the hoodie pouch, or to show it to him, that he and his partner had just proceeded to an immediate search and recovered the knife, an ASP Baton and what was described as a glass punch. At this point the officers placed the accused under arrest for three of the four charges before the court. The accused was then placed in handcuffs and read the standard police caution and

rights to counsel. Constable Pederson told court that the accused was then placed in the cruiser car and a second cruiser dispatch wasrequested to assist so he and Tighe could attend suite 1102. After this unit arrived, at 4:52 a.m., Constable Pederson went to such suiteand spoke with two persons who confirmed that the phone number recorded by dispatch was related to their suite but that they did notknow who had called police. Constable Pederson disclosed that he discerned that these two residents appeared to have mental healthsymptoms.

The Constables returned to their cruiser at 5:05 a.m. and drove the accused to the east district station. Constable Pedersontestified that the accused was mumbling and talking nonsense enroute. No details of same were provided to the court. [9] The court was told that the accused was released at 8:22 a.m. because the officers felt that he did not present as a danger tohimself or anyone else. Constable Pederson told court that the accused in his opinion, did not require medical examination under TheMental Health Act.

On cross examination court learned that there was a 7-11 store approximately 2 blocks east of 53 Stadacona. Atsuch time, Constable Pederson also confirmed that they had determined the accused’s residence to be 155 Mighton Avenue, some 2blocks from 53 Stadacona [10] On cross-examination, Constable Pederson further acknowledged that the only information about the caller provided bydispatch was that such person was a male and the call appeared to emanate from suite 1102 at 53 Stadacona Street.

He conceded that hehad been given no other description respecting the caller’s identity, i.e. no name, age, dress or information respecting threateningbehavior or weapons. He also conceded that he had never asked the accused if he resided or had been at suite 1102 prior to questioninghim about the weapons or if he was the “public enemy number 1” caller; that he had just asked the accused where he was going and thenafter receiving the 7-11 response, whether he had any weapons.

As previously mentioned, Constable Pederson also conceded that he hadnot asked the accused why he possessed the knife or where it was on his person or to show him the knife after the accused responded tohis question.

He further conceded that he did not preface his question about the weapons with the advice that the accused did not have toanswer and was free to walk away at any time. [11] There was no evidence before the court that the accused was anything but cooperative with the police officers during theirinteraction with him. [12] The Crown argued that there were grounds for the detention and that the search that followed was not tainted as it was forofficer safety. The Law [13] It is the accused’s contention that he was arbitrarily detained pursuant to

section 9 of the Charter at the time that he wassearched by the two Constables. [14] In R. v. Mann, (2004) 2004 SCC 52 , 3 SCR 59, at para 34, the Supreme Court of Canada recognized the police powerof investigative detention. This power was described as follows: “34. The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. Theevolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premisedupon reasonable grounds.

The detention must be viewed as reasonably necessary on an objective view of the totality of thecircumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-goingcriminal offence. Reasonable grounds figures at the front-end of such an assessment underlying the officer’s reasonable suspicion thatthe particular individual is implicated in the criminal activity under investigation.

The overall reasonableness of the decision to detain,however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individualliberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order tomeet the second prong of the Waterfield test.” [15] The common law power of investigative detention exists in circumstances other than the investigation of just criminal offences.

As recognized by the Supreme Court in Mann, “police powers” are recognized as deriving from the nature and scope of police duties,including, at common law, “the preservation of the peace, the prevention of crime, and the protection of life and property”. [16] However, the police power of investigative detention in the course of performing their duties is not unlimited as stated atparagraph 35 in Mann: “Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they arenot empowered to undertake any and all action in the exercise of that duty.

Individual liberty interests are fundamental to the Canadianconstitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carteblanche to detain. The power to detain cannot be exercised on the basis of a hunch nor can it become a de facto arrest”. [17] An investigative detention can in certain circumstances give rise to a right to perform a non-invasive search for officer safety.

In Mann, the Supreme Court also determined that an officer can do a protective pat down search of an individual detained for aninvestigative detention where the officer has reasonable grounds to believe that his or her safety or that of others is at risk. At paragraph40 Justice Iacobucci said: “The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat down search incident toan investigative detention.

Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds thathis or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searchesendorses an incidental search in all circumstances: See S. Coughlin, “Search Based on Articulable Cause: Proceed with Caution or Full Stop?” (2002) 2 CR (6th) 49, at page 63. The officer’s decision to search must also be reasonably necessary in light of the totality of thecircumstances.

It cannot be justified on the basis of a vague or a nonexistent concern for safety. Nor can the search be premised uponhunches or mere intuition.” (underlining mine) [18] As was noted in R. v. Suberu,

(2009) SCC 33, at paragraphs 22-23, not every interaction between police investigators andindividuals can be construed as a detention necessitating full cooperation with the police. McLachlan CJC and Sharron J.’s remarks are

enlightening in this respect: “While a detention is clearly indicated by the existence of physical restraint, or a legal obligation to comply with a police demand, a detention can also be grounded when police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choose whether to cooperate with police . As discussed more fully in Grant

(2009) SCC 32, this is an objective determination made in light of the circumstances of an encounter as a whole. However, this latter understanding of detention does not mean that every interaction with the police will amount to detention for the purposes of the Charter . Even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police. This Court`s conclusion in Mann

(2004) SCC 52, that there was an ``investigative detention`` does not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes . . .`` (underlining mine) ``General inquiries by a patrolling officer present no threat to freedom of choice. On the other hand, such inquiries can escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particular individual. Focussed suspicion, in and of itself, does not turn the encounter into a detention.

What matters is how the police, based on that suspicion, interacted with the subject. The language of the Charter does not confine detention to situations where a person is in potential jeopardy of arrest. However, this is a factor that may help to determine whether, in a particular circumstance, a reasonable person would conclude he or she had no choice but to comply with a police officer`s request.

The police must be mindful that, depending on how they act and what they say, the point may be reached where a reasonable person, in the position of that individual, would conclude he or she is not free to choose to walk away or decline to answer questions .`` Grant at para 41 (underlining mine ) [ 19 ] In Grant, the Supreme Court also summarized the factors to be considered by courts in determining whether detention has occurred. These are as follows: 1. Detention under s. 9 and 10 of the Charter , refers to a suspension of the individual`s liberty interest by a significant physical or psychological restraint.

Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct, that he or she had no choice but to comply; 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

a) the circumstances giving rise to the encounter as would reasonably be perceived by the individual; whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence, or, singling out the individual for focussed investigation.

b) the nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and, the duration of the encounter.

c) the particular characteristics or circumstances of the individual where relevant, including age, physical stature, minority status and level of sophistication. [ 20 ] The court recognizes that the onus in this matter is on the applicant to show that in the circumstances of the encounter he was effectively deprived of his liberty of choice, in this case his right to remain silent and not incriminate himself and be free of warrantless search.

As is mentioned in paragraph 28 of Suberu ( supra), the test is an objective one and the failure of the applicant to testify as to his perceptions of the encounter is not necessarily fatal to his application. It is sufficient if the applicant’s contention that police conduct effected a significant deprivation of his liberty finds support in the evidence that is before the court.

Analysis [ 21 ] The purpose of s. 9 of the Charter is to protect individual liberty from unjustified state interference. [ 22 ] I am not satisfied that Constable Pederson was being forthright in his testimony respecting his motivation in this matter; that his questioning of Mr. Kalturnyk regarding possession of weapons was principally intended to illicit information from him as part of an exploratory investigation related to his dispatch call. If this had been the case, he would obviously have inquired as to whether Mr. Kalturnyk had made the well-being call to police before asking if he possessed any weapons.

I am also of the view that even if Pederson had subjectively perceived Kalturnyk as possibly being the person who he had been dispatched to speak to about the enigmatic call to 911, the mere fact that the accused was walking on the street towards 53 Stadacona Street is hardly an objective basis for such suspicion. This is particularly so since Kalturnyk was not related to have done anything indicative of his being the caller, for instance, flagging down the police cruiser by waving his arms for example.

I concede that my view of Pederson’s testimony may have been different if Constable Tighe had also been put on the stand and had credibly corroborated Constable Pederson’s testimony. However, for reasons unknown such was not the case. [ 23 ] The court is of the view that the accused was effectively illegally detained when the officers precipitously asked him if he had any weapons, that Pederson seems to have been on a “fishing expedition” when he posed this question and while the Crown is correct that there was no legal obligation for Mr. Kalturnyk to respond to this question, neither constable told Mr.

Kalturnyk that he was not obliged to answer, that sanctions could not flow from his failure to cooperate. It is my view that a reasonable person in such circumstances would feel psychologically detained and that he had no recourse but to comply with questioning and that of course is exactly how Kalturnyk reacted, confirming that he possessed a knife. I once again observe that there is nothing before this court suggestive of the encounter being related to assistance respecting the well being dispatch or the maintaining of general order.

The questioning in my opinion was simply opportunistically intended to elicit information that could form the basis for an officer safety search incident to investigative detention a police power that is only incident to some lawful investigative detentions. I once again emphasize that I do not accept that Constable Pederson reasonably suspected Mr. Kalturnyk of imminent or on-going criminal behavior

which was capable of forming a basis for even asking him if he was in possession of weapons at this point in time, because there was no objective reason to perceive him as being a threat to his safety. Put another way, I do not accept Crown counsel’ contention that the presenting circumstances provided objective grounds for reasonable articulable suspicion of criminal activity on Mr. Kalturnyk’s part. As a consequence, I find that Constable Pederson and Constable Tighe did not have reasonable grounds to question and search Mr. Kalturnyk in the manner they did. At best, Mr.

Kalturnyk was detained on the basis of Constable Pederson’s inchoate hunch, not on objectively reasonable suspicions from known facts. Accordingly, I find a

section 9 infringement of Mr. Kalturnyk’s right not to be arbitrarily detained as per Grant at para 33. The warrantless search incident to such detention was therefore not authorized because such was not conducted in a reasonable manner given the absence of any threat imminent to the officer. As a result, I also find a

section 8 breach. The seizures of the knife, the ASP baton and the glass punch are therefore unlawful in this case. [ 24 ] Having come to such a conclusion I wish to emphasize that I am not suggesting that it is in any way inherently objectionable for police officers to speak to citizens while in the course of their patrol duties.

This case is specifically focussed only on the rights of persons so approached to make informed choices whether to speak to law enforcement authorities in the context of their right to be free of self-incrimination in circumstances where a state authority’s reasons for suspicion are unsupported by objective factual evidence, i.e. are unreasonable suspicions in the context of the presenting facts.

Individual liberty involves a citizen’s right to make an informed choice about whether to walk away from or speak to the police, (see para 20 of Grant) and in any event, investigative detention cannot become a de facto arre st. (see Mann at para 35 ) Section 24 (2) Inquiry [ 25 ] Having found that the seizures were unlawful, I must now turn to an inquiry pursuant to section 24(2) of the Charter . The decision of the Supreme Court in Grant (supra) provided a revised framework for determining when evidence obtained in breach of the Charter should be excluded under s. 24(2).

In this framework defence argued that this 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. That the court therefore must be mindful that unexplained admission may convey the impression that the justice system condones serious state misconduct; 2. The impact of the breach on the Charter-protected interests of the accused.

That the Supreme Court cautioned that seemingly uncritical admission may send the wrong message to the public – that individual rights count for little; and 3. That society’s interest in the adjudication of the case on its merits should not nessessarily trump the protection of the accused’s rights. The Seriousness of the Charter Infringement. [ 26 ] The first line of inquiry involves the court evaluating the seriousness of the state conduct that led to the breach. State conduct which results in a Charter violation varies in seriousness from minor or inadvertent to serious and deliberate.

The more serious or deliberate the breach the greater the need for the court to disassociate itself from the conduct by excluding the evidence. Extenuating circumstances such as the need to preserve evidence may serve to reduce the seriousness of the police conduct.

While good faith on the part of the police may attenuate the seriousness of such a breach, negligence, willful blindness or outright ignorance of the Charter standards cannot be equated with good faith and must not be rewarded or encouraged. (see Grant para 75) This incident was really a de facto arrest based on a pretext of an investigative detention.

And it must be remembered that the police had no information of any crime being committed in this neighborhood on the morning in question. [ 27 ] The court is of the opinion that the circumstances of the breach did not involve any urgency or danger to life, safety or property. As such, I am of the view that the questioning followed by a search of the accused’s person in the presenting circumstance, not being related to an actual or reasonably apprehended offence or preventive officer safety issue, was a serious breach.

It also goes without saying that any search of a person’s body is by definition quite intrusive and therefore, in almost all cases, always a serious breach. Charter Protected Interests [ 28 ] As to the second line of inquiry, the impact of the breach on the Charter protected interests of the accused; the court notes that the rights not to be arbitrarily detained and free from unreasonable search of one’s person are basic, sacrosanct and fundamental to a free and civil society.

The court therefore agrees with defence counsel that the lack of any reasonable legally recognized foundation for the detention and subsequent frisk search and the intrusion of bodily privacy are serious violations in the context of this line of inquiry. In particular, the court observes that these violations occurred in circumstances where the search in question was more a warrantless search than a search involving officer safety. As such, Constable Pederson and Tighe were essentially reaping the rewards of a de facto arrest made without reasonable and probable grounds.

The search would never have occurred if not the unlawful detention and direct questioning which illicited information about Mr. Kalturnyk being in possession of a knife. Society’s Interest in Adjudication [ 29 ] The third line of inquiry is more problematic as the evidence in question in this case is all real evidence. In other words, the Charter breach does not impact on its reliability. The three items are what they are. There is no nexus between the Charter breach and the reliability of the evidence per se.

On the other hand while the charges are serious, they are certainly far from the most serious category of offences and citizens cannot profit long term from officers’ violating rights on a regular basis. [ 30 ] Defence reminded the court that such was also the case in the Mann decision ( supra ) and noted the comments of Iacabucci, J. at paragraph 57 in such respect: “...Regardless, evidence which is non-conscriptive and essential to the Crown’s case needs not necessarily be admitted: Buhey, supra at para. 71.

Just as there is no automatic exclusionary rule, there can be no automatic inclusion of the evidence either. The focus of the inquiry under this head of analysis is to balance the interests of truth with the integrity of the justice system. The nature of the

fundamental rights at issue, and the lack of a reasonable foundation for the search suggest that the inclusion of the evidence wouldadversely affect the administration of justice”. (underlining mine) [31] Further, as the Supreme Court said in R. v.

Buhay (2003) 2003 SCC 30 , 1 S.CR. 631, at para 59, an officer’ssubjective belief that the accused’s rights were not affected does not make the violation less serious, unless his belief wasreasonable...good faith cannot be claimed if the Charter violation is committed on the basis of a police officer’s unreasonable error orignorance as to the scope of his authority. [32] I am of the view that on balance that admission of the evidence to further the adjudication of this case on its merits isoutweighed by the courts obligation to disassociate itself from this particular infringement of the accused’s rights as to do otherwisewould , in my opinion, bring the administration of justice into disrepute in the sense that the general public might conclude that thecourts were disposed to condone the bending of the rules by police authorities in the sense that the ends justified the means.

It is thecourts view that such a perception might well breed a certain justifiable cynicism and distrust in the courts obligation to be independentand above the fray, so to speak. [33] Accordingly, having made the mandated inquiries, I concur with the accused that the items seized should be excluded fromevidence pursuant to s. 24(2) of the Charter. “ORIGINAL SIGNED BY:” B. CORRIN, P.J.