Her Majesty the Queen - v. -, 2011 SKPC 140

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 140 Date: September 13, 2011 Information: 24425519, 24425587, 24430465 Location: Spiritwood, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dallas Sebastian Schira Appearing: Michel Piche For the Crown Si Halyk, Q.C. and Ian Wagner For the Accused DECISION ON VOIR DIRE D.J. O’HANLON, J [ 1 ] On September 2, 2011, I gave my decision in North Battleford Provincial Court with written reasons to follow.

This is the written decision on the voir dire . [ 2 ] Dallas Schira is charged as follows: On Information Number 24425519 he is charged that he did on or about March 28, 2010, at Spiritwood, Saskatchewan, commit public

On Information Number 24425519 he is charged that he did on or about March 28, 2010, at Spiritwood, Saskatchewan, commit public mischief in that with intent to mislead, he caused Constable Michael Young, a peace officer, a police constable of the Royal Canadian Mounted Police, to continue an investigation by reporting that the offence of theft of motor vehicle contrary to s. 334 of the Criminal Code had been committed when it had not been committed, contrary to s. 140(1) (

c) of the Criminal Code . This Information was sworn March 31, 2010, at Spiritwood, Saskatchewan. [ 3 ] On Information 24425587, Mr. Schira is charged that he did on March 28, 2010, near Spiritwood, in the Province of Saskatchewan, while his ability to operate a motor vehicle was impaired by alcohol, operate a motor vehicle, contrary to s. 253(1) (

a) and s. 255(1) of the Criminal Code . This Information was sworn June 12, 2010, at Spiritwood, Saskatchewan. [ 4 ] On Information Number 24430465, Mr. Schira is charged that he did on March 28, 2010, at Spiritwood, in the Province of Saskatchewan: Count #1: Commit public mischief in that, with intent to mislead, he caused Constable Michael Young, a peace officer, a police constable of the Royal Canadian Mounted Police, to continue an investigation by reporting that the offence of theft of motor vehicle contrary to s. 334 of the Criminal Code had been committed when it had not been committed, contrary to s. 140(1) (

c) of the Criminal Code . Count #2: That he did while his ability to operate a motor vehicle was impaired by alcohol, operate a motor vehicle, contrary to s. 253(1) (

a) and s. 255(1) of the Criminal Code . Count #3: That he did with intent to defraud Saskatchewan Government Insurance (SGI), cause damage by fire to a truck the property of Dallas Schira, contrary to s. 435(1) of the Criminal Code . This Information was sworn on March 3, 2011, at Spiritwood, Saskatchewan. FACTS [ 5 ] On the morning of March 28, 2010, the Spiritwood R.C.M.P. were dispatched to a report of a burning vehicle on the Ranger grid road northwest of Spiritwood, Saskatchewan.

At approximately 9:00 a.m., Constable Young, of the Spiritwood Detachment, arrived at the location approximately 3.5 miles north of the major highway running westward from Spiritwood to Glaslyn, Saskatchewan. There he found a maroon Chevrolet truck in the west ditch still in flames. The truck had hit a power pole, and the power line was down across the grid road. Constable Young took photos of the truck, the scene and footprints he located on the gravel road immediately adjacent to the maroon truck. These photos are Exhibit P1 on the trial of the matter.

The constable determined that the truck fire was not caused by the downed power line, as the line had not fallen near the truck. No explanation or opinion was ever provided as to the cause of the fire. [ 6 ] The constable left the scene at approximately 9:41 a.m. and proceeded to the Spiritwood R.C.M.P. Detachment. Once at the detachment the constable did a check on the vehicle licence and determined the owner of the vehicle to be the accused, Dallas Schira. The constable decided at that point to wait and see if the truck would be reported stolen, or whether it would be reported as a motor vehicle accident.

The constable did not attempt to contact the owner of the vehicle, Dallas Schira. [ 7 ] Early that afternoon, Dallas Schira attended the Spiritwood R.C.M.P. Detachment and met with Constable Young. Very shortly after arriving at the detachment, Mr. Schira was shown into an interview room where he was to provide a statement. The interview room was equipped with audio video equipment and the entirety of this statement was captured on video. The DVD of the statement is Exhibit P2 on the voir dire .

The transcript prepared from the recording constitutes Exhibit P3 on the voir dire . [ 8 ] It is apparent from the beginning of the statement that Dallas Schira had attended at the R.C.M.P. Detachment to report his truck as stolen. Prior to entering the interview room, he had already been advised that his truck had been destroyed by fire. Early conversation shows Mr. Schira questioning the extent of the damage to his truck and contents. Approximately the first 13 minutes of the video are taken up with Dallas Schira explaining how his truck was stolen from the Spiritwood arena the night before.

He also details what he believes to have been in the vehicle at the time of the alleged theft. At approximately 14:13 on the video, the tenor of the interview changes markedly. It is apparent at that point that Constable Young is no longer treating the statement as a stolen vehicle report, but, rather, he is investigating a possible criminal offence or criminal offences.

[ 9 ] Shortly after this change in tenor, Constable Young leaves the interview room for approximately 21 minutes. Shortly after his return, he effectively tells Dallas Schira that he has reasonable and probable grounds to believe he has committed the criminal offence of public mischief.

At that point, I am satisfied that Dallas Schira was being detained for investigation of possible criminal offences. [ 10 ] Instead of ensuring Dallas Schira’s Charter rights were complied with at that point, Constable Young seized Dallas Schira’s shoes and continued questioning him in an effort to gain information pertinent to his investigation. After telling Dallas Schira he was now investigating possible fraud and arson charges, the constable offered Mr. Schira an opportunity to end the matter by telling the constable what really happened.

At that point, Dallas Schira immediately tells the constable he would like to talk to a lawyer. Instead of granting this request, the constable tells Mr. Schira that he is not charging him at that point and then continues to try to elicit information from him. When Dallas Schira does not immediately take the opportunity to start to advise the officer of the information being sought, Constable Young becomes obviously agitated. Shortly thereafter he arrests Mr. Schira for fraud and arson and begins to give him his Charter rights. While doing so, he advises Mr.

Schira that he may not necessarily be arrested, and he even goes so far as to say he may not be charged. [ 11 ] The statement continues for approximately another 14 minutes. Towards the end of this period of time, the constable advises Mr. Schira that he will be referring the information to the prosecutor to determine if charges are warranted. The tenor of the discussion at this point is amicable between Constable Young and Mr. Schira. However, towards the end of the interview, this changes and the constable ends up forcibly arresting and handcuffing Mr. Schira.

He then removes him from the interview room and lodges him in cells. There will be further discussion of this later on in this decision. [ 12 ] After lodging Mr. Schira in cells, the constable testified that he walked back through the office area where police officers prepare their reports, and there he found Mr. Schira’s Blackberry cell phone lying on the floor out of its holster. He picked the Blackberry up, and in doing so touched a button that displayed a recent text Mr. Schira had sent to his wife. The text stated, “Busted”.

The constable testified that he took this as an admission of guilt and, therefore, scrolled through other information on the cell phone. He then decided to seize the phone and send it to the technology unit of the R.C.M.P. for extraction of information. This was later done, without first attempting to obtain a warrant to do so. [ 13 ] A great deal of information was extracted from Dallas Schira’s Blackberry cell phone by the R.C.M.P. technology unit. All of this information was put on a DVD, and some of it was played during the voir dire at the trial of this matter. Two videos taken from Mr.

Schira’s Blackberry cell phone were very damning to the accused. The first of these videos shows Mr. Schira driving his vehicle at night. As he is driving along, he holds his Blackberry cell phone in his right hand and video and audio tapes himself behind the wheel. This video is noted as video number 20 on the Blackberry cell phone. The accused actually identifies himself by name as he is driving down the road. He states that he is driving as fast as he can and that he is going to total off the Chevy tonight. He goes on to say, “You have been a great truck, the ultimate truck”.

He then states that he is a little drunk and he tells the Chevy truck that “I love you”. After which he states, “It is now time to burn you”. He indicates that the Chevy truck now has 322,000 kilometres on it and he says goodbye to the truck. This video then ends. [ 14 ] On the second video noted as video number 21 on the Blackberry cell phone, Mr. Schira advises at the beginning that he has now arrived on the Ranger grid road and he is on his way to burn the Chevy. He then comments he cannot keep the Chevy truck as it is worth too much totalled off. Mr.

Schira then indicates that there are two cars following him and he is going to pull over to allow the second car to go past. He then pulls over and calls to somebody in the vehicle immediately behind him. He refers to this person as “Travis”. The video ends shortly after that. [ 15 ] In both of the videos, it is apparent that Dallas Schira is under the influence of alcohol. In fact, at one point Mr. Schira takes a drink, probably from a beer bottle.

He also states on the first video that he is a little drunk right now. [ 16 ] Also contained on the DVD provided by the R.C.M.P. technology unit are a number of emails. These emails are both sent and received by Dallas Schira on March 28, 2010. These messages begin just after 1:44 a.m. At 1:55 a.m. the message reads, “Don, the bitch wouldn’t burn, were [sic] on our way home”. At 2:05 a.m. the message reads, “It’s done, were [sic] on our way home”. The next message three minutes later states, “Burnt”.

Several more messages are shown on the cell phone during the early morning hours, then late the next morning and early into the afternoon, there are further emails. Some of the emails are sent or received when Mr. Schira is at the police detachment. At 14:22 hours the email reads, “At the cop shop”. Then just after 14:54 hours the email reads, “Busted”.

[ 17 ] The videos and emails contained on Dallas Schira’s Blackberry cell phone clearly show that he drove his Chevy vehicle down Ranger road for the purpose of setting it on fire and destroying it. ISSUES [ 18 ] Prior to the trial of this matter, notice was served on the Crown and the Court that the accused would be seeking exclusion of the statement obtained by Constable Young, exclusion of his shoes, which were seized at the R.C.M.P. Detachment, and exclusion of the information obtained from his Blackberry cell phone, including the videos and emails.

In seeking the exclusion of this evidence, counsel for the accused alleges violations of his Charter rights as enumerated in ss. 7, 8, 9 and 10. They further give notice that it is their submission that the admission of this evidence would bring the administration of justice into disrepute under ss. 24(1) and 24(2) of the Charter . They further allege that the officer knowingly seized privileged communications between spouses in contravention of s. 4(3) of the Canada Evidence Act and the common law. Dallas Schira’s Statement To Constable Young. [ 19 ]

Section 10 of the Charter of Rights states as follows: 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. [ 20 ] Dallas Schira voluntarily attended the R.C.M.P. Detachment to report his Chevrolet truck stolen. Shortly after arriving at the R.C.M.P. Detachment, Constable Young places Mr. Schira in an interview room equipped with audio video recording equipment. At the beginning of the statement, Dallas Schira is present in the interview room by himself. At 13:58:32, which is the time shown on the video on the DVD, Constable Young enters the room.

Shortly after sitting down, Constable Young indicates that it is March 28, 2010, and the time, according to his watch, is 1:55 p.m. Consequently, it appears that his watch is about three minutes slower than the time recording on the video. Later on in the statement, the officer again records the time and it appears that his watch is approximately two minutes earlier than the time shown on the DVD video. Regardless of whether it is two or three minutes’ difference, it is an important factor that will be referred to later in this decision. [ 21 ] As previously stated, Dallas Schira had attended the R.C.M.P.

Detachment to report a stolen vehicle. Approximately the first 13 minutes of the video are taken up with Dallas Schira explaining the theft of his vehicle from the Spiritwood arena the night before. [ 22 ] At 14:13 on the video, Constable Young questions Dallas Schira as to whether or not his friends would give the same story to the police. Very shortly thereafter, in fact, within seconds, the constable leaves the interview room and closes the door. Approximately three and a half minutes later, the constable returns and immediately asks Dallas Schira to show the officer the bottom of his shoes.

The officer then asks Dallas Schira to have his wife bring him another set of shoes. It should be noted at this point that the officer knew that Dallas Schira had already had communication with his wife during the interview via the cell phone in Mr. Schira’s possession. The officer then leaves the interview room once again and is absent for approximately 21 minutes. Upon his return at 14:38 on the video, Constable Young indicates that the time on his watch is 14:36. [ 23 ] The tenor of the discussion that follows between Constable Young and Dallas Schira has changed markedly at this point.

Very shortly after returning to the room, Constable Young advises Mr. Schira that he was being given the opportunity to assure the officer that everything he has said is the absolute truth. The officer then starts to explain the charges of obstruction and public mischief. Once again, the officer asks Dallas Schira to provide his shoes and Mr. Schira does so. The officer then shows him the soles of the shoes and compares them to photographs of impressions made in the road close to where the truck had been located burning in the ditch.

[ 24 ] At 14:40:20, the officer states, “Kay, here is your chance, don’t bullshit me. Okay? I’m giving you your chance to take yourself out of this”. The officer then goes on to state, “I, right now...suspect...I have reasonable, probable grounds to believe...that you were the one that ended up taking that vehicle. Okay?” The officer continues shortly thereafter and states, “And smashed it. Okay?” [ 25 ] From this point on, Dallas Schira is no longer providing a stolen vehicle complaint to the officer, but, rather, he is being questioned as a suspect in a criminal investigation.

In fact, when the officer made the above statement, he was effectively telling Dallas Schira he had reasonable and probable grounds to believe Schira had committed the criminal offence of public mischief. Constable Young then advises Mr. Schira that he is seizing his shoes as part of the investigation and he continues questioning Schira in an effort to gain information pertinent to that investigation. Constable Young then tells Mr. Schira that he is now investigating a possible fraud and a possible arson. He then tells Dallas Schira, “I am giving you a chance on an out here, Dallas.

Okay?” Shortly thereafter the officer goes on to state, “I’m giving you the opportunity and this is where it will end. Unfortunately you’re without a vehicle”. Constable Young then states, “Otherwise what’s gonna happen, is I will continue on with this investigation and working on a fraud...arson...and special investigations unit with SGI will also be involved”. [ 26 ] Mr. Schira then states immediately (at 14:41:36), “I’d like to talk to a lawyer now”. Instead of granting Dallas Schira’s request to speak to counsel, Constable Young states, “I’m not charging you right now”.

Dallas Schira then replies, “I know but...”. Constable Young replies, “I’m giving you the oppor...”, to which Dallas Schira states, “...you’re trying to”. Constable Young says, “No, I’m not. I told you what will happen”. [ 27 ] At this point, the officer has advised Dallas Schira that he has reasonable and probable grounds to believe that Mr. Schira had made a misleading statement to the R.C.M.P. and that he had destroyed his own vehicle. Also, the officer had seized Mr. Schira’s shoes and advised him that he could be facing charges of fraud, arson, obstruction and public mischief. [ 28 ] Instead of allowing Mr.

Schira’s request to speak to a lawyer, the constable continued to try to elicit information from Mr. Schira. When Mr. Schira did not take the opportunity immediately to start to advise the officer of the information being sought, Constable Young stated to Dallas Schira, “Don’t lie to me”. He went on to state, “Don’t start with this or I’ll...right now I’ll end up informing you of your...your rights, okay?” Mr. Schira then asks the officer if he could walk away from the incident. I take this to mean that Mr. Schira was asking if he could simply leave and bring an end to the matter.

The constable advised him that he could not and he then advised Mr. Schira that he was arresting him for fraud and arson. It was only then the constable advised Mr. Schira of his right to counsel. Mr. Schira, who was obviously distraught at this point, tells the officer he shouldn’t have done it, and that he was sorry for wasting the officer’s time. Mr. Schira’s cell phone then sounds and the officer continues to give Mr. Schira his Charter rights. Mr. Schira states, “Kay, I was driving”. Constable Young states as follows: You were driving the truck? So I need to continue on with your Charter here, okay?

Just because I Charter you doesn’t necessarily mean you’re gonna be arrested. All it is is we are now going from a witness statement to a warned statement. Okay? [ 29 ] Very shortly thereafter, the constable states, “I’m not saying that we’re going to end up charging you”. The constable then tells Dallas Schira that his shoes are seized and that he is arresting him. He goes on to say that just because he is arrested doesn’t mean that he will be charged. [ 30 ] The statement continues for approximately another 14 minutes.

Towards the end of this time, the constable has advised Dallas Schira that he will be referring the information to the Crown prosecutor to determine if charges are warranted. He does, however, continue to question Mr. Schira, and at one point takes it upon himself to tell Mr. Schira not to report the matter to SGI as he had been drinking when he was driving his vehicle. This results in a verbal disagreement between Mr.

Schira and Constable Young, with Dallas Schira insisting he was not driving intoxicated. [ 31 ] When the disagreement arises, the constable loses his temper and forcefully arrests Dallas Schira by pulling him out of his chair, forcing his arms behind his back and handcuffing him. The constable then pushes Mr. Schira toward the door of the interview room. Upon exiting the interview room, Constable Young states, “Don’t fuck with me. You’re going to get lodged in cells”. Dallas Schira and the constable exited the interview room at 14:57:22 as the time indicated on the video.

This would have been a time of 14:54 or 14:55 on the officer’s watch.

[32] At 14:58:49 Constable Young can be heard speaking with Dallas Schira’s wife, Allyson Schira. The constable is speaking ina loud and aggravated fashion. He tells her that her husband is under arrest for public mischief and burning their truck. Mrs. Schira isheard to respond that Dallas Schira was at home. Constable Young tells her that Dallas Schira had admitted everything to him on tape. He went on to say that Dallas Schira would be charged with arson, public mischief and resisting a police officer.

At 15:00 hours on thevideo, Constable Young states to Allyson Schira, “I don’t know because right now we have some other calls that we gotta take, so I’lldeal with him after that. Kay. I’ll be releasing him on a straight promise to appear. Okay? But unfortunately you both are out of a truckand anything else that was in the truck. Kay?” [33] Dallas Schira is then booked into the R.C.M.P. cells and a prisoner report, known as a C-13, is completed by ConstableYoung.

Was Dallas Schira arrested or detained? [34] It is obvious from Constable Young’s conduct on that date that he had suspicions regarding Dallas Schira even prior to Mr.Schira attending at the R.C.M.P. Detachment. After Constable Young had returned to the detachment from the burning vehicle, heestablished who the owner of that vehicle was. He made no effort to contact Dallas Schira, but rather decided to wait to see if the vehiclewas reported stolen, or if a motor vehicle accident was reported.

In any event, when Dallas Schira first attended at the R.C.M.P.Detachment and was escorted into the interview room, I am satisfied that he was not detained at that point. At the beginning of thestatement, it is arguable that Constable Young was only taking a stolen vehicle report. In any event, I am not satisfied on a balance ofprobabilities that Dallas Schira was initially arrested or detained. At 14:13 on the video, it is evident the constable’s focus is beginningto shift towards an investigation of Dallas Schira.

As stated earlier, it is at this point where Constable Young asks Dallas Schira if hisfriends would support his story. The constable then leaves the room for several minutes and, in doing so, closes the door to the room. Upon his return he asks to view Dallas Schira’s shoes and is allowed to do so. Constable Young then asks Dallas Schira to have his wifebring him another set of shoes. The officer once again leaves the interview room and again closes the door behind him, leaving DallasSchira in the interview room.

Approximately 21 minutes later when he returns, the officer shows Dallas Schira the bottom of his shoesin comparison to the photographs of the impressions made on the road. He then effectively advises Dallas Schira that he has reasonableand probable grounds to believe he has committed public mischief. It is at that point that the officer should have immediately readDallas Schira his rights to counsel and the police warning. He should then have allowed Mr. Schira to contact counsel. Instead of doingthis, the constable holds out a promise and an inducement to Mr. Schira. He further tells Mr.

Schira that if he does not make anadmission to the officer, he would continue to investigate him for various criminal offences. Dallas Schira states at that point that hewould like to talk to a lawyer now. [35] I am satisfied at that point, Dallas Schira was detained. There was effectively a restraint on his liberty both in terms of hiscontainment within the interview room and in terms of the comments made by Constable Young. Constable Young had decided that acrime had been committed and Dallas Schira was the perpetrator of that crime.

Further, Constable Young had stated to Dallas Schira hehad reasonable and probable grounds to believe Schira had committed an offence. Consequently, many of the criteria listed in the casesof R. v. Moran (1987), (ON CA), 36 C.C.C. (3d) 225 (Ont. C.A.), and R. v. Voss (1989), (ON CA),50 C.C.C. (3d) 58 (Ont. C.A.), have been met. I am, therefore, satisfied that Dallas Schira had been detained at that point.

Was Dallas Schira informed promptly of the reasons for his arrest or detention and his right to retain and instruct counselwithout delay? [36] As I stated earlier, immediately after Constable Young made a promise to Dallas Schira, Dallas Schira stated that he wouldlike to talk to a lawyer now. Instead of granting his request to speak to counsel, the officer went on to tell him he wasn’t being chargedright away and therefore presumably he did not require the services of a lawyer. [37] Shortly after ignoring or denying Dallas Schira’s request to speak to a lawyer, the officer threatened Mr.

Schira with chargesunless he provided the information the officer wanted. It was only at that point Dallas Schira began to make inculpatory statements, andit was only after that the officer felt the need to advise Schira of his right to retain and instruct counsel without delay. [38] Even though it may be possible to argue that Dallas Schira was advised of the reasons for his detention, as the officer hadthreatened him with many charges, an argument cannot be sustained that he was promptly informed of his right to retain and instruct

counsel without delay. I am satisfied the officer did not want Mr. Schira to contact counsel until after he had elicited inculpatoryinformation from him. For that reason, when Dallas Schira told the officer he wanted to speak to a lawyer, even before being advised ofthis right, the officer did not allow him to do so. I am satisfied the officer had a duty to inform Dallas Schira of his rights to counsel evenbefore Schira requested to speak to a lawyer.

Consequently, at the very least, when Dallas Schira requested to speak to a lawyer theofficer had a duty to refrain from attempting to elicit further evidence from Mr. Schira and to allow him to contact counsel immediately:R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233; and R. v. Ross, (SCC), [1989] 1 S.C.R. 3. [39] Since the officer did not refrain at that point from attempting to elicit further evidence from Dallas Schira, I am satisfied thatMr. Schira’s right to retain and instruct counsel without delay was infringed.

Should the evidence be excluded under s. 24(2) of the Charter of Rights and Freedoms? [40] Section 24(2) states: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rightsor freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances,the admission of it in the proceedings would bring the administration of justice into disrepute. [41] The Supreme Court decision in R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, requires an assessment to be madeon s. 24(2) applications to assess and balance the effect of admitting the illegally obtained evidence on public confidence in the integrityof the justice system having regard to the following three factors: (1) the seriousness of the state action; (2) the impact on the accused’s Charter-protected interests; and (3) society’s interest in having an adjudication on the merits. [42] With regards to the seriousness of the state action, I am satisfied the constable flagrantly and wilfully violated Dallas Schira’sright to retain and instruct counsel immediately.

The officer held out promises and inducements and even threats in an effort to elicitfurther information from Mr. Schira. Constable Young had no immediacy or extenuating circumstances that required him to violateDallas Schira’s rights. There was no need to preserve evidence, nor was there good faith on the part of the officer. Also, as will be seenlater in this decision, there was misleading in-court evidence from Constable Young about other aspects of his investigation.

Althoughthat evidence provided by the constable may not form part of this breach, it adds to the seriousness of the violation and increases theneed for the Court to disassociate itself from this conduct: R. v. Harrison, 2009 SCC 34 , [2009] 2 S.C.R. 494, at para. 26. [43] Under the second heading of inquiry, I am satisfied that the breach of Dallas Schira’s rights to counsel was very serious. Theconstable not only disallowed Mr. Schira to contact counsel, he held out promises, inducements and threats in an effort to elicit moreinformation from Mr. Schira.

Had he complied with Dallas Schira’s request to contact counsel immediately, no further informationwould have been obtained by the constable. Consequently, to admit the evidence obtained after the breach would breed public cynicismabout the value and availability of Charter protection: R. v. Grant, supra, at paras. 76 to 78. [44] Under the third line of inquiry, I must consider whether the exclusion of the evidence would run counter to society’s interestin having an adjudication on the merits. In considering this, I am satisfied that the seriousness of the violation is the primaryconsideration.

In this case, society’s interest in preserving Charter-protected rights outweighs the societal interest in having anadjudication on the merits. [45] I, therefore, exclude Dallas Schira’s statement from the point he requested, and was denied, contact with counsel. Inexcluding this portion of the statement, I am aware that all incriminating evidence contained in the statement is excluded.

Exclusion of Dallas Schira’s shoes . [ 46 ] I need not make a determination with regard to the admissibility or exclusion of Dallas Schira’s shoes, as the Crown did not tender them as an exhibit on the voir dire or the trial of this matter. Although they were referred to on several occasions during the statement, the mere reference to them provides no incriminating evidence against Dallas Schira.

The information obtained from Dallas Schira’s Blackberry cell phone. [ 47 ] In considering whether the evidence obtained from Dallas Schira’s Blackberry cell phone is admissible in evidence, I must consider whether his right to be secure against unreasonable search and seizure under s. 8 of the Charter was violated. [ 48 ] In order to determine this, I must look at all of the circumstances surrounding the seizure of Mr. Schira’s Blackberry cell phone. As already stated in Constable Young’s evidence on the voir dire , he testified that after he had placed Mr.

Schira in R.C.M.P. cells, he was walking back through the area where the officers’ desks are located and he found Mr. Schira’s Blackberry cell phone lying on the floor not in its holster at that time. He further testified that he picked up the cell phone and, in doing so, touched a button that caused an email to appear on the screen. Constable Young testified the email said, “Busted”. He checked the time of that email and found that it had been sent by Mr. Schira during the time he was in the interview room with the constable.

The officer took this as an admission of guilt and, therefore, decided to scroll back through other emails on Mr. Schira’s phone. He did this even though he knew there was correspondence between Dallas Schira and his wife, Allyson Schira, on that cell phone. [ 49 ] On examination-in-chief by the Crown prosecutor, Constable Young stated that had the phone been in Mr. Schira’s possession when he was lodged in cells, it would have been placed in his effects and noted on the C-13, prisoner report. This report is Exhibit P4 on the voir dire . The officer stated that this was not done because at the time that Mr.

Schira was booked into cells, the phone was not in his possession. In fact, after booking him into cells, it was the officer who stated that he went back to the office area and found the phone lying on the floor. Simply put, I do not believe the officer. The C-13 shows Mr. Schira being lodged into cells on March 28, 2010, at 14:59 hours, some four to five minutes after the constable had forcibly removed Dallas Schira from the interview room. At that time, noted in his effects are a cell phone, hat, keys, wallet and watch. The officer did not go and find the cell phone after lodging Mr. Schira in cells.

Instead, the evidence is conclusive that the cell phone was put in Mr. Schira’s effects upon his being booked into cells. The officer did not book him into cells, remove his effects, complete the C-13 and then go find the phone elsewhere in the detachment, scroll through the emails, return to the cell area, and include the cell phone in the personal effects noted on the C-13, and then have Dallas Schira sign the C-13 all within four to five minutes. A close listen to the audio, which continues after Dallas Schira is removed from the interview room, is important in this determination.

Also relevant to this finding is the fact that Constable Young was conversing with Allyson Schira at 15:00 hours, as noted on the video. This would have been 14:57 or 14:58 on the officer’s watch. In other words, it would have been one to two minutes before the officer had signed off on the C-13 document. [ 50 ] It should be noted as well that Constable Young placed the Blackberry phone, case and battery in an exhibit bag. He then dated the exhibit bag March 28, 2010, at 15:00 hours. This is one minute after the completion of the C-13 document.

The officer had not had time to go and find the cell phone in the central area of the detachment, determine that it contained possible evidence of a criminal offence, speak with Allyson Schira, and then place it in an exhibit bag, seal the bag, date and initial it. Had the officer found the cell phone in the central area of the detachment, he would not have included it in the personal effects listed on the C-13 document, just as he did not include Mr.

Schira’s shoes in the personal effects, even though there is a box specifically designated for “shoes” under personal effects. [ 51 ] Further evidence of the above is contained in the video itself. Prior to the officer handcuffing Dallas Schira in the interview room, Mr. Schira had placed his Blackberry cell phone in the holster, which forms part of Exhibit P5 on the voir dire . The cell phone slides into this holster and a strap goes over top of the cell phone holding it in the holster. The strap is magnetic and attaches to the front of the holster. The cell phone fits very snugly into this holster.

The video shows that Dallas Schira had placed the cell phone in that holster and had it in his hands, along with his keys and his wallet, when the constable forcefully handcuffed him behind his back and pushed him out of the interview room while he was still holding these items. On all of the evidence, I am satisfied that Dallas Schira’s cell phone did not fall out of the holster en route to the cell area. Instead, the constable took it upon himself to view the contents of the cell phone after it had been placed in Mr.

Schira’s personal effects. [ 52 ] Several other inconsistencies in the officer’s evidence must also be detailed here. Firstly, on both examination-in-chief and

[52] Several other inconsistencies in the officer’s evidence must also be detailed here. Firstly, on both examination-in-chief andcross-examination, the constable was asked if he lost his temper immediately prior to handcuffing Mr. Schira. To everyone’s surprise,including the prosecutor’s, the officer denied losing his temper. It is troubling to think the behaviour depicted on the video could beanything but a loss of temper. Dallas Schira was sitting somewhat casually in his chair as the officer was preparing to release him. Before doing so, the constable was ensuring he knew where to find Mr.

Schira to serve him with a summons should the Crown laterrecommend charges. At that point, Dallas Schira made a statement contradicting the officer, and the officer’s reaction only has to beviewed on the video to know with certainty that the officer’s emotions had gotten the better of him. The resulting arrest and handcuffingof Mr. Schira was forceful and unnecessary. [53] Further inconsistencies are shown when the officer states different reasons for arresting Mr. Schira. At one point he stated hehad arrested the accused in order to further his investigation.

At another point he stated that he had arrested Dallas Schira as Mr. Schirahad begun to pump his fists and the officer considered that to be a combative stance. Simply put, this is not true. Mr. Schira was seatedin a chair when the officer sprang to his feet, lost his temper, forcefully stood Mr. Schira up and placed handcuffs on him from behind. At no point in the video is Mr. Schira seen pumping his fists. [54] At another point in his testimony, the officer stated that he had arrested and handcuffed Mr. Schira for officer safety, as Mr.Schira had pulled away from him and began to pump his fists.

Again, this is contrary to the evidence contained in the video. The officeralso stated that he herded Mr. Schira into the cell area in order to contain him. Any right-thinking person viewing the video could notpossibly come to this conclusion. Instead, it was evident that the officer’s loss of temper is what caused him to forcefully remove Mr.Schira from the interview room, uttering the words, “Don’t fuck with me”, and then forcefully removing him to the cell area. [55] With regard to the officer’s assertion that he had lodged Mr.

Schira in cells in order to further his investigation, the officer’sown evidence contradicts this. It is obvious from the video that another call had come in from the Pelican Lake First Nation requiringofficers to attend. In his evidence it was almost as if Constable Young felt that this was a justification for lodging Mr. Schira in cells. Ifthe officer was in a hurry to attend at a serious and perhaps violent incident on the Pelican Lake First Nation, it was obvious that hecould have released Mr. Schira immediately, and done so in a more expeditious fashion, as opposed to arresting him.

In fact, prior tolosing his temper, the officer stated that he was going to be releasing Mr. Schira and referring the information to the Crown prosecutor. Even after placing Mr. Schira in a cell, Constable Young can be heard telling Allyson Schira that he would deal with Dallas Schira afterdealing with his call. He goes on to tell her that he will be releasing Dallas Schira on a straight promise to appear. [56] In his evidence, Constable Young stated to the Crown prosecutor, “I can honestly state as soon as I was done on Pelican LakeFirst Nation, I returned back and dealt with the accused”.

The officer goes on to advise that he took Mr. Schira out of the cells upon hisreturn to the detachment, and when Mr. Schira did not want to speak to the officer any further, he was fingerprinted, photographed andreleased on a promise to appear. This evidence shows that the officer did not arrest Mr. Schira and place him in cells for purposes offurthering his investigation as he did nothing further on the investigation while Dallas Schira was in custody. [57] On the whole of the evidence, I am satisfied Constable Young took it upon himself to remove Dallas Schira’s Blackberry cellphone from Mr.

Schira’s personal effects and look through it for evidence. He did this without first obtaining a search warrant. It is,therefore, presumed to be an unreasonable search and seizure: Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145. [58] Even though the Crown and Constable Young suggested, in the alternative, that Dallas Schira’s Blackberry cell phone wasseized incident to arrest, for the reasons already stated, I am satisfied that was not the case.

Should the evidence obtained from Dallas Schira’s Blackberry cell phone be excluded under s. 24(2) of the Charter? [59] I am satisfied on a Grant analysis, the evidence obtained from the unreasonable search and seizure of Dallas Schira’sBlackberry cell phone must be excluded. On the whole of the officer’s actions, the seriousness of the violation is extreme and theadmission into evidence of the information obtained from the cell phone would bring the administration of justice into disrepute.Effectively, the evidence was obtained through egregious police misconduct.

Privileged communications between spouses in contravention of s. 4(3) of the Canada Evidence Act and the common law. [60] Even though I have already decided to exclude all of the information obtained from Dallas Schira’s Blackberry cell phone, Iwould state as well that the emails between Dallas Schira and his wife, Allyson Schira, would be excluded from evidence on the basis ofa violation of s. 4(3) of the Canada Evidence Act as it is tantamount to an intercepted private communication between spouses and is,therefore, inadmissible in evidence at the insistence of the Crown: R. v.

Lloyd, (SCC), [1981] 2 S.C.R. 645. Was Dallas Schira arbitrarily detained or imprisoned contrary to s. 9 of the Charter and should a stay of proceedings be grantedunder s. 24(1) of the Charter? [61] Given my findings with regard to the evidence thus far, and given that the Crown has conceded that they have no furtherevidence to provide on the trial of the matter, an analysis under these sections shall not be conducted. CONCLUSION [62] The statement provided by Dallas Schira to Constable Young will be excluded from evidence on the trial from the pointwhere Mr.

Schira is denied the right to immediately contact counsel. Also, all of the information obtained from Dallas Schira’sBlackberry cell phone will be excluded from evidence on the trial of the matter. [63] During the trial of this matter the Crown admitted they had no further evidence to call on the trial. Consequently, with theexclusion of the bulk of the accused’s statement and the evidence obtained from his Blackberry cell phone, there is no evidence tosupport convictions on any of the charges before the Court. ____________________________________ D. J. O’Hanlon, J