Her Majesty the Queen - v. -, 2020 SKPC 8

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 8 Date: February 14, 2020 Information: 991086264 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mustafe Hussein Appearing: Mr. Daniel Arnot For the Crown Mr. Christopher Koban For the Accused DECISION ON VOIR DIRE F.M. DAUNT , J INTRODUCTION [ 1 ] Mustafe Hussein stands charged that he did, on or about the 3 rd day of April, 2019: 1. Unlawfully have in his/her possession a controlled substance included in

Schedule 1 to wit: cocaine, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act ;

2. Unlawfully have in his/her possession proceeds of property having a value not exceeding $5000.00, knowing that all or part of theproperty or proceeds was obtained or derived directly or indirectly from the commission in Canada, of an indictable offence, to wit: possession for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act, thereby committing anoffence, contrary to Sections 354(1) and 355(

b) of the Criminal Code. [2] On April 3, 2019, members of Prince Albert’s Integrated Street Enforcement Team [ISET] executed a search warrant at theresidence of Louisa Dorion. They arrested Ms. Dorion and the accused, Mr. Hussein, who now challenges the validity of that warrantand his arrest. He alleges his

section 8 and 9 Charter rights were violated. He seeks exclusion of all evidence obtained in violation ofthose rights. FACTS [3] Shortly before 9:00 a.m. on April 3, 2019, Constable Jonathan Wilde received a tip from a confidential source that an“unknown black male is selling crack from Louisa Dorion’s place” and that Louisa Dorion lives in block “C” of Tamaron Square. Constable Wilde had been involved in a search of a previous residence of Louisa Dorion. That search yielded cash, a digital scale, “drugpackaging material,” and 32.6 grams of crack cocaine.

On April 3, 2019, Constable Wilde checked CPIC and learned Ms. Dorion wassubject to release conditions, including a residence clause. Her apartment number at Tamaron Square was specified in her undertaking. His investigation complete, Constable Wilde quickly assembled a search team. Constable MacDonald was called in to work early. Constable Wilde briefed him, as well as Constable Chester and Constable Williams. [4] While Constable Wilde prepared the Information to Obtain a Search Warrant [ITO], Constable Chester went to TamaronSquare and spoke to the building manager.

He obtained a key to the apartment, in case a warrant was issued. Constable Wilde presentedthe ITO to a justice of the peace and the warrant was issued at 9:37 a.m. At 10:00 a.m., the four members of the search team lined up inthe hallway outside of Apartment 108C. The officers attempted a no-knock entry. (Although Constable Chester testified there was aknock, no other witness mentioned this, and I do not accept his evidence on this point). [5] Constable MacDonald, at the front of the “stack,” tried the key provided by the building manager, but it failed to open thedoor.

While he was crouched down, fumbling with the lock, the door was opened from the inside. Mr. Hussein stood there with a pieceof pizza in his hand, looking shocked at the sight of several police officers gathered outside the door. While the police announced“Police, search warrant,” Constable MacDonald walked Mr. Hussein backwards down the hallway and forced him down to the kitchenfloor in a move described as an “awkward bear hug.” Constable Wilde assisted Constable MacDonald in handcuffing Mr. Hussein. Constable MacDonald “patted down” Mr.

Hussein and discovered $250.00, an Alberta driver’s licence, and a bag of crack cocaine in hispockets. These items were seized. [6] Louisa Dorion was found sitting on the couch in the living room. Both she and Mr. Hussein were formally arrested forpossession of cocaine for the purpose of trafficking, read their rights and warnings, and taken to the Prince Albert police station. Thepolice then searched the residence, discovering only a cell phone and charger, which were also seized.

The entire case for the Crownrelies on 35.2 grams of crack cocaine, $250.00 in cash, an Alberta driver’s licence and two dated text messages on the cell phone, neitherof which was sent or received in Saskatchewan, neither of which can be attributed to Mr. Hussein with any degree of certainty. The cellphone itself is only tenuously connected to Mr. Hussein. The Technological Crime Report contains evidence of multiple users of thephone. ISSUES [7] Defence alleges that Mr.

Hussein’s right to be free from unreasonable search or seizure, and his right to be free from arbitrarydetention, have been infringed. [8] A search is reasonable if it is authorized by law, the law itself is reasonable, and the manner of search is reasonable (R vCollins, (SCC), [1987] 1 SCR 265). The Crown contends the searches of the apartment and Mr. Hussein’s person wereauthorized by the search warrant and by the police power of search incident to arrest. Defence contends the warrant was issued withoutreasonable grounds. It is therefore invalid and Mr. Hussein’s

section 8 right to be secure against unreasonable search or seizure has beenviolated. [9] Apart from the cell phone, the evidence relied on by the Crown was seized from Mr. Hussein’s person during a search

incident to arrest. Defence contends the arrest was also unlawful, being based on the same grounds used to issue the warrant. Ittherefore violated Mr. Hussein’s right to be free from arbitrary detention. A detention is not arbitrary if it is authorized by law, the lawitself is reasonable, and the manner of detention is reasonable. The detention cannot exceed the scope of the lawful authority (R vGonzales, 2017 ONCA 543, 354 CCC (3d) 572 [Gonzales]; R v Mann, 2004 SCC 52, 187 Man R (2d) 1 [Mann]; R v Grant, 2009 SCC32, 245 CCC (3d) 1 [Grant]). The power of arrest contained in

section 495 of the Criminal Code requires the police to possessreasonable grounds to believe the accused has committed or is about to commit an indictable offence. If the police arrested Mr. Husseinwithout reasonable grounds, or his arrest was otherwise unlawful, then his

section 9 right not to be arbitrarily detained or imprisoned hasbeen violated. [10] The issues can thus be framed as follows: 1. Was the warrant issued without reasonable grounds, thereby violating Mr. Hussein’s

section 8 right to be secure againstunreasonable search or seizure? 2. Was the arrest of Mr. Hussein made without reasonable grounds, thereby violating his

section 9 right to be free from arbitrarydetention? 3. If so, could admission of the evidence obtained in violation of the Charter bring the administration of justice into disrepute? ANALYSIS

Section 8: Unreasonable Search or Seizure a. Standard of Review: Search Warrant [11] When a confidential informer provides a tip to police, a justice considering authorizing a search must ask herself threequestions: 1. Is the information compelling? 2. Is the informer a credible source? 3. Did the police sufficiently corroborate the information? (R v Debot, (SCC), [1989], 2 SCR 1140 [Debot]) The justice must consider the “totality of the circumstances” and not treat these issues as separate tests. Strengths in one area maycompensate for weakness in another. (Debot; R v Garofoli, (SCC), [1990] 2 SCR 1421 [Garofoli]). As Sopinka J.states in Garofoli at para 68: (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tipfrom an informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to “the totality of the circumstances”. There is no formulaic test as to whatthis entails. Rather, the court must look to a variety of factors including: (

a) the degree of detail of the “tip”; (

b) the informer’s source of knowledge; (

c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources.

The reviewing judge, with the benefit of hindsight, must be careful not to include information discovered after the fact to bolster the evidence contained in the ITO. Sopinka continues: (iii) The results of a search cannot, ex post facto , provide evidence of the reliability of the information. [ 12 ] Keeping those criteria in mind, the test on review is not whether the reviewing judge would have issued the warrant. The standard of review is whether the issuing justice, acting judicially, could have issued the warrant based on “reliable evidence that might reasonably be believed” ( R v Araujo , 2000 SCC 65 ).

If the ITO contains evidence the justice could find to be credible, reliable, compelling, and corroborated, and the evidence supports a reasonable belief that an offence has been committed and evidence of that offence will be found, the warrant is facially valid ( R v Morelli , 2010 SCC 8 , [2010] SCR 253). The issuing justice can make reasonable inferences from the facts averred but may not fill in evidentiary gaps ( R v Vu, 2013 SCC 60 , [2013] 3 SCR 657). The reviewing judge must defer to the decision of the issuing justice even if, on the same evidence, she would reach a different conclusion. b.

Could the justice, acting judicially, have issued this warrant based on this Information to Obtain a Search Warrant? [ 13 ] Constable Wilde had been a police officer for about five years and a drug investigator for 14 months when he prepared the ITO. The ITO comprises 26 paragraphs, all of which are “boilerplate” clauses, many of which are irrelevant to this investigation, except the following paragraphs: 7.

a) Informant “A” has provided confidential information to Cst. Wilde [1] 15 times since December 2018. Informant “A” has been used to obtain two judicial authorization [ sic ]. Information from Informant “A” has resulted in charges being laid under Controlled Drug [ sic ] and Substances Act and the Criminal Code . Informant Informant [ sic ] “A” is providing information for the [ sic ] financial compensation, but has not been provided any finical [ sic ] compensation for this information. … . 10.

On January 30, 2019 myself and members of ISET executed a CDSA search warrant on Louisa Dorion’s residence of 1082 8 th Street East for an unknown black male. Abdishakur Shil and Louisa Dorion were arrested and charged with possession for the purpose of trafficking crack cocaine. I was designated the exhibit officer for the search and as a result i [ sic ] seized the following: a. $1,480.00 in Canadian Currency; b. Functioning digital scale; c. Drug packaging material; and d. 32.6 grams of crack cocaine. 11. On April 3, 2019 I spoke with Informant “A”. Informant “A” told me: a.

An unknown black male is selling crack from Louisa Dorion’s place; b. Louisa Dorion lives in block “C” of Tamron [ sic ] Square. 12. On April 3, 2019 I ran Louisa Dorion on CPIC, which showed her to be on an undertaking for possession for the purpose of trafficking. Dorion’s condition’s [ sic ] state she is to reside at block “C” 108 1401 28 th Street East, Prince Albert, Saskatchewan. [ 14 ] Paragraph 7, quoted above, includes this boilerplate

preamble: 7. In this Information to obtain, I make reference to information provided to police officers by a Confidential Informant, and referred to as Informant “A”. I know the identity of this informant. All information provided, unless otherwise stated, is first-hand information, and I am not aware of any time where this Informant provided information that was false. Details on whether or not the informant listed in this document has or does not have a criminal record, along with details of the criminal records if they do exist, is included in the attachment to this document and is referred to as Exhibit “A”. If it is ordered that the contents of this sworn document be

disclosed pursuant to the provision of the Criminal Code, I believe that Exhibit “A” must be removed in its entirety and not disclosed inorder to prevent the identity of the confidential informant from becoming known. This informant wants their identity to remainconfidential and is not willing to testify. [15] There is no Exhibit “A,” redacted or otherwise. “First-hand information” is not defined in the document. [16] Garofoli requires this court to examine the indicia of reliability of the tip, including the degree of detail of the tip and theinformer’s source of knowledge.

In this case, the issuing justice could have inferred from the boilerplate Paragraph 7 that Informant “A”relayed information within his or her personal knowledge. In the totality of circumstances, however, that inference is not reasonable, aswill be seen. [17] First, it is highly unlikely that the informant used the term “unknown black male.” People do not talk like that. Rather,“unknown black male” is police-speak for whatever the informant did say. At best, it is a paraphrase. At worst, it is a sanitized versionof a racial epithet.

Certainly, a racist informant in this context is not credible, as any observations made would be filtered through a lensof stereotypes and biases. The issuing justice was not privy to the words the informant used. Rather, the justice received onlyConstable’s Wilde’s impression of the informer’s allegation. [18] Second, this person is not willing to testify in a court of law. Confidential informers enjoy a special privilege in our system. Their identity is jealously protected because they are crucial to the detection and enforcement of drug offences.

However, as noted in Rv Lewis (1998), (ON CA), 122 CCC (3d) 481 (Ont CA), cited with approval in R v Pavlik, 2019 SKCA 107 [Pavlik],“The risk of false allegations is particularly significant when the tipster is shielded by an absolute and impenetrable anonymity”. Inassessing the reliability of the tip, the issuing justice knows only that this person is not prepared to swear to the truth of the statement,whatever that statement was. A person might not want to testify for many reasons. In this document, no reason is given. This doesnothing to ensure the credibility or reliability of the informer.

Certainly, fabrication remains a distinct possibility, especially when noconsequences flow from a falsehood. [19] Furthermore, the absence of detail in the tip undermines the claim of first-hand knowledge. The information is so vague, itcould not be within the personal knowledge of the informant, despite the Paragraph 7 default position, “first-hand information”. Informant “A” did not know this person’s name, not even a nickname, could give no description of him, and did not know the apartmentnumber or even which floor it was on. [20] The tip itself lacks specificity.

It is indistinguishable from mere rumour or gossip. It describes no specific transaction, past,present, or future. While a justice could infer from the use of the present tense “is selling,” that the information is current, a justiceapplying the correct test could not find the tip to be credible, reliable, or compelling. To have confidence in the reliability of the tip, theissuing justice would need details such as how long this “selling” has been transpiring, amounts or frequency of transactions, how thisperson communicated with his customers or advertised his wares.

A reliable tip might include details about the habits of the occupantsof the apartment, a description of their clothing or appearance, and information about the source of the informer’s knowledge beyond theboilerplate “first-hand information.” [21] Garofoli requires the issuing justice to look for indicia of the informer’s reliability, including information about pastperformance. In this case, the justice could not find the tip to be reliable based on the sparse information about the informant’scredibility contained in paragraph 7 of the ITO.

This informant had a relationship with the police of four months at most. The tipster ismotivated by financial gain. He or she refuses to testify. Apart from these facts, the issuing justice had no information that might shedlight on this person’s credibility and reliability. The informant may be a drug user and may have committed crimes of dishonesty. Thesource of the tipster’s information is a mystery.

The person may have been in custody, may have been offered some compensation forthe information, either a future monetary benefit conditional on charges being laid, or some non-monetary advantage, such as freedom orwithdrawing charges. The ITO sheds no light on those issues. Although the affiant is unaware of any past information that proved to befalse, that is a far cry from proven reliability.

The ITO does not allow the issuing justice to make an independent assessment of thecredibility or reliability of Informant “A”. [22] The tip was not credible and far short of compelling, so corroboration was crucial before a warrant could be properly issued inthis case. Unfortunately, the tip was not corroborated. Regarding the relevance of the previous search at Ms. Dorion’s former residence,the information given is sparse. It is impossible to determine the strength of the case against Ms. Dorion. The paragraph includes noevidence to indicate whether Ms.

Dorion was aware of these items, or what her involvement might have been in any offence. Paragraph10 contains no information about the “unknown black male” in that case, other than his name. Furthermore, before applying for a searchwarrant in this case, Constable Wilde did not investigate Abdishakur Shil’s current location to determine whether he might be the “unknown black male” in the April 3rd tip.

[ 23 ] Constable Wilde did not swear he believed the “unknown black male” in this case to be the same “unknown black male” arrested during the previous search. Nor could he, given the paucity of detail in the informant’s tip. “Black male” is a category, not a description. The phrase “unknown black male” is so broad as to encompass every single member of that race and gender, from babe in arms to aged invalid, from bearded to clean shaven, from long-haired to pink-haired to bald, from wheelchair-bound to able-bodied. While Prince Albert may not be the most cosmopolitan of cities, neither is it homogeneous.

We are the third largest city in Saskatchewan. We have several industries. We have an Arts Centre. We host sports tournaments. We welcome refugees and immigrants from all over the world. “Black males” live here, work here, and visit here. [ 24 ] In the quest for corroboration, the prior search of Louisa Dorion’s previous residence is of little value in assessing this new allegation about a possibly different person in a different home at a different time. [2] Police made no attempt to discover anything current to corroborate this informer’s tip.

They did not investigate at all. [ 25 ] A single, uncorroborated tip from an informer of recent acquaintance is wholly inadequate to ground an invasion of privacy into a person’s home. One sentence from Garofoli tends to be overlooked in these analyses, but it bears repeating: “[E]vidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds”. Here, apart from the informer’s tip, police sought no further material evidence. As evidenced by the numerous typos and mistakes, Constable Wilde took little time to draft his ITO.

Given the speed with which the warrant was authorized, the issuing justice had little time to consider whether the ITO contained information which was credible, compelling, or corroborated. The tip came in shortly before 9:00 a.m. By 9:37 a.m., Constable Wilde had concluded his investigation, assembled and briefed his search team, written a 26-paragraph legal document, drafted a warrant, presented it to the justice of the peace, and received a signed search warrant.

Why this matter was treated with such urgency was not explained either in the ITO or in evidence. [ 26 ] Whenever police are considering applying for a search warrant, and whenever a justice is considering issuing one, red flags should be raised whenever the grounds depend on a single tip from a person who will not swear to the truth of it. [ 27 ] Defence filed several cases in support of their position: R v Williams , 2019 ONCJ 708 , R v Morrison , 2015 ONSC 4453 , R v Gilmour , 2017 ABQB 735 , R v Uppal , 2017 ABQB 373 , R v McKay , 2017 SKPC 53 [ McKay ], and R v Veilleux (21-May-2019), Prince Albert, Information 991068710 (Sask Prov Ct).

In all those cases, police had more specific information than in this case, yet warrants were found invalid, or reasonable grounds not established. [ 28 ] In support of their position, Crown filed R v Bissky , 2018 SKCA 102 , 369 CCC (3d) 315 [ Bissky ]. In Bissky , the ITO included tips from two separate informers whose evidence corroborated each other, both with “first-hand” or “personal” knowledge. “First-hand knowledge” was defined in the ITO. However, the case itself does not enumerate the specific grounds upon which the justice issued the warrant.

Rather, using a deferential standard, the Court of Appeal found the trial judge had applied the correct test in reviewing the ITO, and deferred to his finding that there was evidence upon which the issuing justice could have granted the warrant.

In deciding the standard of review, Madam Justice Jackson, J.A. states at paragraph 14, “since I cannot clearly state I would have come to the same conclusion as the reviewing judge, it is necessary to determine for this Court what standard of review should be applied to the reviewing judge’s decision”. [ 29 ] In this case, I find the Information to Obtain does not disclose reliable evidence that might reasonably be believed, and the warrant is invalid on its face, being issued without reasonable grounds. Unless some other authority can be found, the search was not “authorized by law” and violated

Section 8 of the Charter . The only possible sources of authorization come from the Controlled Drugs and Substances Act, SC 1996, c 19 [ CDSA ] or from the common-law power to search incident to a lawful arrest. [ 30 ] Section 11(5) of the CDSA authorizes the search of any person found in the place set out in the warrant, if the officer has reasonable grounds to believe they have on their person any controlled substance or other thing set out in the warrant. In this case, the only thing “set out in the warrant” was “cocaine”. This search power is dependent on the officer having reasonable grounds.

In this case, the only ground other than that contained in the ITO was that Mr. Hussein “fit the description” given by the informant. So, of course, would every other black male in the city, as discussed above. Furthermore, this power is dependent upon a valid warrant. Here, the warrant was invalid, and so was any search of Mr. Hussein’s person pursuant to the authority found in section 11(5) . [ 31 ] The power to search incident to arrest depends upon a lawful arrest. I shall consider that in the next section, Arbitrary Detention.

Section 9: Arbitrary Detention [32] As stated above, a detention is not arbitrary if it is authorized by law; the law itself is not arbitrary; and the manner ofdetention is reasonable. The detention cannot exceed the scope of the lawful authority (Gonzales; Mann; Grant). An arrest withoutwarrant is authorized by

section 495 of the Criminal Code. Subsections 495(1)(

b) and (

c) do not apply in this case. Rather, the arrestingofficer relies on subsection (a), the relevant portion of which states:

(1) A peace officer may arrest without warrant (

a) a person … who, on reasonable grounds, he believes has committed or is about to commit an indictable offence. [33] The officer must have a subjective belief that the person has committed an indictable offence, and that belief must be foundedon grounds which are objectively reasonable (R v Storrey, (SCC), [1990] 1 SCR 241).

A police officer can rely onanother officer’s grounds when arresting a suspect, but that officer’s grounds must be reasonable (Pavlik). [34] Without a warrant, an officer cannot enter a private residence to arrest a person, absent exigent circumstances as defined insection 529.3 of the Criminal Code. An officer unlawfully in a dwelling house is a trespasser, rendering the arrest unlawful (R v Delong(1989), (ON CA), 47 CCC (3d) 402 (ONCA); R v Feeney, (SCC), [1997] 2 SCR 13). [35] Here, before they entered the apartment, not much discussion occurred among the officers regarding the decision to arresteither Ms.

Dorion or the “unknown black male”, nor of the specific grounds for those arrests. Rather, ISET’s common practice whenexecuting a CDSA search warrant is to arrest all occupants found in the place to be searched, according to Constable Wilde’s testimony. However, Constable MacDonald, the officer who arrested Mr. Hussein, testified that he formed his own grounds to arrest Mr. Husseinspecifically.

He based his grounds on the informer’s tip relayed by Constable Wilde, the fact the apartment they entered was the apartment referenced in the ITO,[3] and the fact that the person who opened the door “matched the description” of the person alleged tobe selling crack. Furthermore, when the door to the apartment opened, Constable MacDonald could not see anybody else in the unitapart from the “unknown black male” on the other side of it. [36] As discussed above, the information in the ITO was insufficient to ground a search of the residence.

It was similarlyinsufficient to justify an arrest of anyone found inside the residence. Debot itself is a case about a warrantless arrest, and the same “threeCs” – credible, compelling, and corroborated – apply. Furthermore, Mr. Hussein could not “match the description,” because nodescription was ever provided. As discussed above, when every member of a race and gender “fits the description,” it is no descriptionat all. Moreover, Constable MacDonald could not see anyone else in the apartment because he had not yet entered it when he decided totake Mr. Hussein to the ground.

Rather, any view of the inside was blocked by Mr. Hussein and the layout of the suite. In short,Constable MacDonald did not have reasonable grounds to arrest Mr. Hussein. [37] In addition, because the warrant was invalid, the police were not lawfully on the premises, rendering the subsequent arrestunlawful. The fact that Mr. Hussein opened the door does not alter the reality that the police were trespassers. The door was opened inresponse to Constable MacDonald trying to unlock it from the outside. The police certainly were not invited into the residence. Observations of Mr.

Hussein’s race and gender were gathered in violation of his privacy rights. Even if that is incorrect, I find noreasonable grounds existed, even with the observation that the person who opened the door had dark skin. [38] The arrest being invalid, the search incident to that arrest was not lawful. The arrest violated

section 9 of the Charter, and thesubsequent search of Mr. Hussein’s person violated

section 8. Neither the arrest nor the subsequent search of Mr. Hussein’s person was“authorized by law”. 3. Section 24(2) Analysis: Could admission of the evidence bring the administration of justice into disrepute? [39] Where evidence is obtained in a manner that infringed or denied Charter rights, and it is established that admitting thatevidence could bring the administration of justice into disrepute, the court must exclude it to comply with section 24(2) of the Charter ofRights and Freedoms.

The Supreme Court of Canada in Grant directs the court to consider three factors in assessing whether admittingsuch evidence might bring the administration of justice into disrepute: (1) the seriousness of the Charter-infringing state conduct (admission may send the message that the justice system condones

serious state misconduct); (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rightscount for little; and (3) society’s interest in the adjudication of the case on its merits. If the first and second factors strongly favour exclusion, the third will rarely tip the balance toward admissibility (R v McGuffie, 2016ONCA 365 at para 63). The Court must attempt to strike an appropriate balance between the legitimate goals of law enforcement andthe right of citizens to be free from unwarranted state interference.

Seriousness of the breaches [40] Privacy and liberty are the most precious rights we enjoy in a free and democratic society. The state must leave us aloneunless a certain threshold is met, high enough to justify state intrusion into our private lives. Constable Wilde testified that he hasparticipated in over 100 searches and has himself drafted between 30 and 40 ITOs. It is a rational inference that the bulk of thosesearches occurred after February 2018, when he became a drug investigator.

If the ITO before this Court is typical of thoseinvestigations, it is disturbing to think so many private homes might have been searched in such a short time on such insubstantialevidence. [41] In assessing the seriousness of the breach, one factor to consider is the availability of other investigative techniques policecould have used to avoid the breach (R v Kokesch, (SCC), [1990] 3 SCR 3 [Kokesch]). Here, police did not useinvestigative techniques lawfully available to them, such as undercover purchases, surveillance, or interviewing potential witnesses.

AsSopinka J. states at page 29 of Kokesch, “Where the police have nothing but suspicion and no legal way to obtain other evidence, itfollows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally”. Here, before theITO was sworn, the entire investigation did not require Constable Wilde to leave his desk. [42] While violating Mr. Hussein’s rights, the police also violated Louisa Dorion’s rights. Police acted on an informer’s tip aboutsomeone else committing an offence. The tip did not allege Ms.

Dorion committed a crime herself or participated in any way in theactivities of the “unknown black male”. Although charges against her in this case were stayed by the Crown, the fact her home wasraided, and she also was arrested without warrant and without reasonable grounds exacerbates the seriousness of the state conduct in thiscase. [43] Also troubling is the prospect that a justice of the peace would grant a CDSA search warrant, which often involves violentunannounced entries into private homes, based on so little evidence of such low quality.

Although it is desirable to have a good workingrelationship with the local police, it is crucial to our democratic system that community justices of the peace maintain independence fromthem. The decision to issue a warrant lies with the justice alone. Before authorizing such a profound breach of privacy, they have a dutyto consider whether the evidence rises to the level required by the Canadian Charter of Rights and Freedoms. They must turn theirminds to whether the information is credible, compelling, reliable, and, most importantly, corroborated.

Where there is only one singleinformer, police and justices alike must proceed with extreme caution. It is better for the system as whole if these sorts of breaches areprevented early, rather than remedied later in a costly and time-consuming court process. [44] Further troubling is the evidence that ISET routinely arrests everyone they find in a residence without really consideringwhether those arrests are justified or necessary. If this evidence is admitted despite the Charter breaches, the police may receive themessage that the Court condones routine breaches of the right to liberty.

Rather, they need to know that a tip from an informer is thebeginning, not the end, of an investigation. Police have a duty to investigate further. They need to ask follow-up questions, to gathermore specific information. They need to explore other, less-intrusive investigative techniques, such as surveillance. They must at leastattempt to uncover some material corroborating evidence, over and above address and vehicle information. They might need to talk toother sources, to learn about the target of their investigation.

They need to investigate who lives in the residence they want to search,find out if children might be harmed by a violent entry, or pets might interfere. [45] In this case, there was no urgency to warrant such a hasty investigation. No hostage was tied up in a closet waiting to berescued. No one was in danger. In this case, both ISET and the justice who issued the search warrant were required to take more time,to be more thorough.

[ 46 ] The breaches are serious and systemic. Pavlik , McKay and Veilleux are all Prince Albert cases where evidence was excluded after ISET conducted searches based on an informant’s tip. The grounds for the warrant and for the arrest were paper-thin. The entry into the apartment, although not the worst this Court has seen, was unannounced and violent. The law in this area is not new. Debot was decided in 1989, Garofoli in 1990. Subsequent cases have restated the same test for the sufficiency of an arrest or search warrant based on an informer’s tip.

Our local police, especially ISET, being a specialized unit, should know that one vague uncorroborated tip cannot provide grounds for either a search warrant or a warrantless arrest. This case shows either an ignorance of Charter standards, or a wilful disregard for them. Either way, the police cannot be said to be acting in good faith. This aggravates the seriousness of the breach. [ 47 ] This factor weighs in favour of excluding the evidence. Impact on the Charter -protected interests of the accused [ 48 ] The violations impacted Mr. Hussein’s rights to liberty and privacy.

Both rights are fundamental to our way of life. Mr. Hussein was in a private home, minding his own business, eating a piece of pizza, when he was taken to the ground, searched, arrested, and taken into custody, the most serious restriction on liberty our law allows. He was arrested on April 3, 2019, and not released from custody until April 18, 2019. He has been on restrictive conditions since his release, including a clause that he submit to warrantless searches of his person and vehicle. Although bail conditions are not incarceration, they, too, restrict liberty.

Some might say this was all justified after the fact because cocaine was found. However, according to the evidence, police would have arrested him and taken him into custody regardless. Both he and Ms. Dorion were arrested and taken to Prince Albert Police Service cells before the search commenced, as is ISET’s usual practice. Finding contraband is not a prerequisite to this policy of detention. [ 49 ] The impact on Mr. Hussein’s Charter -protected interests was profound. This factor favours exclusion of the evidence.

Society’s interest in adjudication on the merits [ 50 ] The evidence seized is reliable and crucial to the Crown’s case. On the other hand, although the evidence is strong on a charge of possession of cocaine contrary to section 4(1) of the CDSA , the evidence that the possession was for the purpose of trafficking is weak, given the standard of proof beyond a reasonable doubt. No indicia of trafficking were found on Mr. Hussein’s person or in the residence. The amount of cocaine itself is not so great that an intent to sell is the only rational explanation.

The two text messages upon which the Crown case relies are ambiguous. Furthermore, neither message can be proven to emanate from the accused. The statement from the confidential informer that “an unknown black male is selling crack” is inadmissible hearsay. If the evidence seized in violation of the Charter is admitted, a conviction on either count is unlikely. Nevertheless, this factor weighs moderately toward inclusion of the evidence. CONCLUSION [ 51 ] Here, the breaches are serious and systemic, the impact on the accused great, and society’s interest in adjudication on the merits only modest.

On balance, I find admission of the evidence would bring the administration of justice into disrepute. All items seized on April 3, 2019 are excluded from evidence. Dated this 14 th day of February, A.D. 2020, at the City of Prince Albert, in the Province of Saskatchewan. ______________________ F.M. Daunt, J