Her Majesty the Queen - v. -, 2018 SKPC 004

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 004 Date: January 24, 2018 Information: 39125624 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Josef Bretislav Pavlik Appearing: Ms. Cynthia Alexander For the Crown Ms. Rebecca Crookshanks For the Accused JUDGMENT S.D.

SCHIEFNER, J INTRODUCTION: [ 1 ] Josef Bretislav Pavlik stands charged by indictment with eleven counts - ten weapons offences involving various provisions of the Criminal Code and one count of possession of a controlled substance contrary to The Controlled Drugs and Substances Act . Mr. Pavlik and his girlfriend were arrested on December 23, 2016. They were arrested for possession for the purpose of trafficking in a controlled substance when the police received and followed up on a tip from a confidential informant. The weapons offences arise because a loaded, sawed-off shotgun was found in the trunk of Mr.

Pavlik’s girlfriend’s car when it was searched by police following their arrest.

[ 2 ] Mr. Pavlik takes the position that his arrest was unlawful and asserts that the police did not have reasonable grounds to believe that he had or was about to commit an offence. Simply put, Mr. Pavlik argues that his arrest was arbitrary and thus contrary to s. 9 of the Canadian Charter of Rights and Freedoms . Mr. Pavlik also argues that the search that was conducted by police of his girlfriend’s vehicle was unlawful and that he had a privacy interest in that vehicle. As a result, Mr. Pavlik argues that the search of his girlfriend’s car was unreasonable and thus contrary to s. 8 of the Charter . Mr.

Pavlik seeks an order excluding the evidence obtained from the search of the subject vehicle – namely, the shotgun. A voir dire was conducted to hear all evidence of the Crown associated with the arrest of Mr. Pavlik and his girlfriend and the concomitant search of her vehicle (the “ Charter voir dire ”). [ 3 ] After hearing evidence on the Charter voir dire , the Crown called the balance of its evidence. However, a statement had been made by Mr. Pavlik while at the police station and the Crown sought to tender a video recording of that statement as evidence in these proceedings.

As a result, a second voir dire was conducted to hear the statement and the circumstances under which it was given by Mr. Pavlik (the “Voluntariness voir dire ”). [ 4 ] For the reasons that follow, I find that police had reasonable grounds to arrest Mr. Pavlik on December 23, 2016. I have dismissed his Charter application because I am satisfied that his arrest was lawful and because I am not satisfied that his privacy rights were infringed when his girlfriend’s car was searched.

I am satisfied beyond a reasonable doubt that the statement he gave while at the police station was voluntary and thus it is admissible in these proceedings. Having considered and weighed the evidence, I am also satisfied beyond a reasonable doubt that Mr. Pavlik is guilty of counts 1, 3, 4, 5, 9 and 10 of the indictment. I find him not guilty of counts 6 and 11. Finally, I have entered judicial stays with respect to counts 2, 7 and 8. [ 5 ] The following are my reasons for these various decisions. EVIDENCE HEARD DURING THE CHARTER VOIR DIRE : [ 6 ] The Crown called Cst. Daniel Logan, Sgt. Brandon Mudry, Sgt.

Adam Dunn, Sgt. Denis Valmont, and Cst. Brett Henry during the Charter voir dire . [ 7 ] Chronologically, the Crown’s evidence began on December 23, 2016, when Sgt. Mudry of the Prince Albert Police Service received a phone call from a co-worker, Cst. Aaron Anderson. This officer was a member of a special street investigation unit at that time and someone with whom Sgt. Mudry had worked for many years. The call occurred at approximately 8:39 p.m. [ 8 ] Cst. Anderson told Sgt. Mudry that he had received information from a confidential informant that Mr.

Pavlik would be arriving at Bailey’s (a bar in Prince Albert) in about 20 minutes; that he would be in a red car; that the car belonged to Tenille Werminsky; that he and Ms. Werminsky would be together; that they would be selling methamphetamine; and that they would be in possession of multiple ounces of that drug. Sgt. Mudry queried the officer about the reliability of the information he was communicating and Cst. Anderson’s answer was that Mr. Pavlik and Ms. Werminsky were “arrestable”. [ 9 ] Sgt. Mudry testified that he had 16 years of experience as a police officer.

He understood the comment “arrestable” to mean that Cst. Anderson considered the informant to be credible or at least the information to be reliable. Sgt. Mudry trusted the officer’s determination and asked no further questions about the identity of the informant or his/her previous involvements with the police. Sgt.

Mudry testified that it was not his practice to ask for information about the identity of another officer’s confidential informants or the basis upon which that officer made an assessment as to the reliability of his/her source’s information or the prior provision of useful information by that person. [ 10 ] In an effort to independently corroborate the information he had just received from Cst. Anderson, Sgt. Mudry conducted a vehicle search through SGI and learned that a red Ford Fusion was registered in the name of Ms. Werminsky. [ 11 ] Sgt.

Mudry was acting Staff Sergeant that evening, which meant that he was responsible for supervision of patrol officers. At approximately 8:52 p.m., Sgt. Mudry contacted Sgt. Adam Dunn and informed him that Cst. Anderson had received reliable information from a confidential informant.

The information relayed to the officer was that Josef Pavlik would be arriving at Bailey’s in a few minutes; that he would be in a red car (possibility a red Ford Fusion bearing a particular licence plate); that the car belonged to Tenille Werminsky; that they would be together; that they would be selling methamphetamine; and that they would be in possession of multiple ounces of that drug.

[ 12 ] Sgt. Dunn was working with Sgt. Valmont that evening and they drove in an unmarked police truck to Bailey’s. They arrived just before 9:00 p.m. Upon arrival, Sgt. Dunn observed a red car matching the description that had been provided by Sgt. Mudry. It was parked near the east entrance to the bar. Sgt. Dunn testified that he knew the information had come from an informant and that he needed to corroborate the information before acting upon it. Seeing a vehicle matching the description he had been provided at the location he had been told supported the reliability of the information he had been given.

As a result, Sgt. Dunn put out a call on the radio for other officers to assist in investigating the matter further. One of the officers who responded was Cst. Brett Henry, who drove to the north side of the building where another exit from the bar was located. [ 13 ] Sgt. Dunn testified that the plan was to have sufficient officers attend so that all of the entrances/exits to the bar could be covered. At that point, the officers would enter Bailey’s and see whether or not Mr. Pavlik and/or Ms. Werminsky were present. However, before they could do so, Sgt.

Dunn observed the lights of the subject vehicle turn on and the vehicle start to move. [ 14 ] When the vehicle moved, Sgt. Dunn could see the vehicle’s plate and confirmed that it was the vehicle he was looking for. At the same time, Cst. Henry broadcast over the radio that he had observed Mr. Pavlik on the north side of the bar in the parking lot. The subject vehicle was driving toward that same parking lot. At that point, Sgt. Dunn initiated a traffic stop. When the officer approached the vehicle, he observed that Ms. Werminsky was driving. Mr. Pavlik was not with Ms.

Werminsky – rather, he was on the north side of the building. As a result, Sgt. Dunn phoned Cst. Anderson and asked whether or not Ms. Werminsky was arrestable on her own. Cst. Anderson indicated to Sgt. Dunn that she was. As a result, Sgt. Dunn arrested Ms. Werminsky for possession of a controlled substance for the purpose of trafficking. [ 15 ] Cst. Henry arrested Mr. Pavlik for the same offence. In addition, Cst. Henry indicated that he also arrested Mr. Pavlik for an outstanding warrant.

The officer testified that he did not recall any information about the nature of the outstanding warrant but he was confident that Mr. Pavlik was also being arrested for an outstanding warrant. Cst. Henry indicated that he had heard that there was an outstanding warrant for Mr. Pavlik over the police radio when another officer asked dispatch to query Mr. Pavlik’s name. [ 16 ] After reading Mr. Pavlik his rights and cautions, Cst. Henry drove him to the police station. Sgt. Dunn read Ms. Werminsky her rights and cautions and drove her to the police station. Sgt. Dunn also arranged for the transportation of Ms.

Werminsky’s vehicle to the police station so that it could be searched in a controlled environment. [ 17 ] Sgt. Dunn testified that bars, such as Bailey’s, are common places where drugs are sold in Prince Albert. In cross- examination, Sgt. Dunn acknowledged that he did not observe any criminal or illegal activity being conducted by either Ms. Werminsky or Mr. Pavlik. The officer candidly admitted that, without the source information he had received from Cst. Anderson, they would not have had reasonable grounds to believe that either Ms. Werminsky or Mr. Pavlik were engaged in unlawful conduct. [ 18 ] Sgt.

Valmont testified that he participated in the search of Ms. Werminsky’s vehicle while it was at the police station. He testified that he opened the trunk and observed a sawed-off, 12 gauge, shot gun. The officer took photos of the gun as he found it. Sgt. Valmont picked up the gun, checked it for ammunition and found that five shells were in the magazine but no shells were in the chamber. The officer removed the shells, rendered the gun safe, photographed it and the ammunition and then placed both in an exhibit locker. [ 19 ] Cst.

Logan testified that he examined and tested the subject shotgun for both fingerprints and DNA but that no useable fingerprints or DNA were found. The shotgun was sent to the National Forensic Lab and it was confirmed that it was a firearm, that it was a prohibited weapon (because it had been sawed-off), and that the shells contained in it were ammunition. [ 20 ] Finally, Sgt. Mudry testified that he assisted in the search of the subject vehicle and that he found a small bag of what he suspected to be methamphetamine. When he weighed the bag and its contents, the total weight was approximately 0.2 grams.

In cross- examination, Sgt. Mudry admitted that the contents of the bag were not tested or analyzed. [ 21 ] Mr. Pavlik elected to call no evidence on the Charter voir dire . DECISION ON THE CHARTER VOIR DIRE : Did the police have reasonable grounds to arrest Mr. Pavlik? Was his arrest lawful?

[22]

Section 495 of the Criminal Code of Canada sets forth the authority of a peace officer to arrest someone. Generally speaking,three circumstances are described. First – s. 495(1)(a) - when an officer has reasonable grounds to believe that a person has committed oris about to commit an indictable offence. Second – s. 495(1)(b) - when an officer finds someone committing a criminal offence. Third –s. 495(1)(c) - when an officer has reasonable grounds to believe that a warrant of arrest is in force in that particular jurisdiction. [23] I will deal with these three circumstances in reverse order. [24] Cst.

Henry testified as to his belief that there was an outstanding warrant authorizing Mr. Pavlik’s arrest on December 23,2016. The officer indicated that he heard another officer ask his dispatch to query the name Joseph Pavlik and the answer came back thathe was arrestable on the basis of an outstanding warrant. The officer did not know the nature of that warrant but did recall advising Mr.Pavlik that he was being arrested for both possession for the purpose and on the basis of an outstanding warrant.

The officer candidlyadmitted that the primary basis of the arrest was for possession for the purpose and that he arrested Mr. Pavlik because Sgt. Dunndirected him to do so. [25] While I am satisfied that Cst. Henry subjectively believed that a warrant of arrest was in force and that he was thereforeauthorized to arrest Mr. Pavlik on the basis of that warrant, I decline to rely upon s. 495(1)(

c) for the purpose of analyzing the lawfulnessof Mr. Pavlik’s arrest. First, no warrant was tendered before this Court. As a result, I infer that no such warrant was in force onDecember 23, 2016. Second, if Mr. Pavlik was lawfully but erroneously arrested on the basis of a warrant that was not in force, heshould not have been in custody for long – only long enough to discover the error. In my opinion, Mr. Pavlik’s continued detentionwould have been unlawful after the discovery of this error. Sgt. Valmont did not testify as to when he found the gun. However, I inferthat it was found just prior to Mr.

Pavlik’s interview with Sgt. Mudry which occurred soon after midnight. I am satisfied, based on areasonable inference, that it would not or should not have taken until midnight for the police to discover that there was no outstandingwarrant authorizing Mr. Pavlik’s arrest. Therefore, I find that the Crown may not rely upon s. 495(1)(

c) as a basis for his continueddetention at midnight. [26] No officer observed Mr. Pavlik engaging in any criminal activity within the meaning of s. 495(1)(b). While Mr. Pavlik wason conditions that he not be in a place such as Bailey’s - any place where the main purpose is the sale of alcohol - no officer saw him inor exiting the bar. As a result, the Crown may not rely upon s. 495(1)(b). [27] Simply put, based on my assessment of the evidence, the authority for Mr. Pavlik’s arrest and continued detention untilmidnight must be found within the confines of s. 495(1)(

a) of the Criminal Code. [28] It is settled law that for a warrantless arrest pursuant to s. 495(1)(

a) to be lawful, it must be based upon reasonable grounds: Rv Storrey, (SCC), [1990] 1 SCR 241, 53 CCC (3d) 316 [Storrey]. The standard is “credibly based probability” (Baron vCanada, (SCC), [1993] 1 SCR 416, 78 CCC (3d) 510), not proof beyond a reasonable doubt or even a prima facie caseof guilt (Storrey, at pp. 250-51). [29] As noted, Mr. Pavlik has filed a Charter application alleging, inter alia, that his arrest was unlawful. Mr. Pavlik argues thaton December 23, 2016, the police did not have reasonable grounds to believe that he had committed or was about to commit an indictableoffence.

Simply put, defence takes the position that a reasonable person, standing in the shoes of the officers that night, would not havebelieved that reasonable grounds existed to arrest Mr. Pavlik. First, defence notes that the information about and instructions to arrestMr. Pavlik was passed through a chain of police officers, with each officer trusting and relying upon the information provided to themwith little independent corroboration. Second, defence notes that Cst.

Anderson was not called to testify and none of the officers whotestified had any knowledge as to the credibility of the source or the reliability of his/her information. Third, defence notes that duringthe limited time that officers observed Mr. Pavlik and Ms. Werminsky, no conduct was observed by the officers that would have beenconsistent with possession of drugs for the purpose of trafficking or any other unlawful conduct. [30] Because the basis for his arrest was a tip from an anonymous source, Mr.

Pavlik asked this Court to examine the three factorsidentified by the Supreme Court of Canada in R v Debot, (SCC), [1989] SCR 1140, 52 CCC (3d) 193 [Debot], - namely,compelling information, from a credible source, that has been independently corroborated. Relying on these factors and the fact that noillegal conduct was observed by police, Mr. Pavlik asks this Court to conclude that insufficient evidence was tendered by the Crown toeither accept that the officer (who arrested Mr. Pavlik) had a subjective belief that he was arrestable or to objectively conclude that hisarrest was based on reasonable grounds.

[31] This is not the first time police have relied upon a tip received from an informer as the basis for an investigation – nor will itlikely be the last. Some tips come from anonymous tipsters not previously known to or identifiable by police. Sometimes, informationcomes from sources who have been used by police in the past and their information has either proven to be reliable, unreliable or acombination of both.

These individuals are often referred to as confidential informants or sources. [32] In R v Garofoli, (SCC), [1990] 2 SCR 1421, 60 CCC (3d) 161 [Garofoli], the Supreme Court of Canada laiddown guidelines relating to the use of such information in seeking a wiretap – guidelines many courts have found helpful in alsoassessing reasonable grounds for an arrest (as do I). See: R v Goodine, 2006 NBCA 109 , 2009 NBCA 109, 214 CCC (3d) 385[Goodine]. The Court held in Garofoli: (

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. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information [33] In Debot, the Supreme Court articulated three factors for assessing reasonable grounds to arrest when information from aninformant is utilized to justify those grounds – sometimes referred to as the 3 C’s (per Wilson J., at p. 1168). First, is the tipcompelling? This factor reminds the court to examine the information provided.

Is the information sufficiently unique, detailed orprecise so as to exclude the possibility that it has been based on a mere rumour or gossip and the possibility of coincidence? (Debot, perWilson J., at p. 1172). Generally speaking, the more precise and detailed a tip, the more compelling it will be – particularly so if thedetails are personal and not publicly known. The more intimate the details, the more likely it is that the informer is well placed to havereliable knowledge. See: R v Wiley, (SCC), [1993] SCR 263, 84 CCC (3d) 161 [Wiley]. [34] Second, is the source credible?

This factor reminds the court to examine the informant. Is the informer trustworthy and ishis/her disclosure reliable? In coming to these conclusions, the court is to consider the personal circumstances of the informer, theinformer’s prior history of giving information, and the informer’s motivation in giving the subject information. For example, if theinformer is known to police and has given proven reliable information in the past, then the source will likely be seen as more credible.See: Wiley.

On the other end of the spectrum, when an anonymous informer with no prior history provides a tip on a single occasion, theinformation must be sufficiently precise, detailed and unique or more corroborative evidence must be obtained by police to compensatefor the inability of the court to assess credibility of the informer and/or his /her motives. See: Debot, per Wilson J., at p. 1172. [35] Third, is the tip corroborated? This factor reminds the court to examine the extent to which the source information wascorroborated by police.

As noted, a tip from an informant, by itself, is not sufficient to establish reasonable grounds. See: Garolifi. Whilepolice need not confirm every detail of an informant’s tip, there must be enough corroboration to remove the possibility of coincidence.See: Debot. Obviously, greater corroborative evidence is required where the tip is not particularly detailed or where the informer’scredibility cannot be assessed. See: Goodine. [36] It should be noted that these are not three separate tests which must be satisfied by the Crown.

Rather, they represent threelenses through which the Court is asked to analyze the totality of the circumstances. See: Debot. The factors clearly intermingle and aweakness in one area can be compensated by strength in the other two. [37] I am satisfied that the tip received by Cst. Anderson and communicated to other officers was sufficiently detailed to becredible. It was precise as to time, location and persons. Mr. Pavlik was at the location indicated, at the time indicated, with the personindicated, and he arrived by the means indicated.

This level of precision rules out the possibility of mere coincidence and indicates theinformer had some personal knowledge of the activities of both Mr. Pavlik and Ms. Werminsky. [38] Cst. Anderson did not testify and I have limited evidence as to the credibility/reliability associated with the person whoprovided the tip. The officers who testified in these proceedings indicated that it was their practice to maintain the confidentiality ofanother officer’s sources. They did not want to know and did not ask the name of Cst.

Anderson’s source nor his/her possible motive inproviding this particular tip nor his/her prior history, if any, of providing useful information to the police. Rather, both Sgt. Mudry andSgt. Dunn were satisfied by Cst. Anderson’s conclusion that the source was credible and his/her information reliable. For purposes of

these proceedings, I am able only to draw a weak inference that Cst. Anderson’s informant was credible. On a spectrum, this would placethe source information relied upon to arrest Mr. Pavlik more reliable than an anonymous tip but not much. [39] I am satisfied that the police corroborated much of the information they had been provided and all of the “neutral”information provided in the tip. Sgt. Mudry confirmed the aspect of the tip involving a “red car”. At that point, he dispatched officers tothe indicated location to begin surveillance.

While the surveillance did not go as planned in the limited time available to his team, Sgt.Dunn confirmed that a red car was at the indicated location, that the car matched the description of a vehicle registered to Ms.Werminsky, and that both Mr. Pavlik and Ms. Werminsky were present at the subject location and at the time indicated. As noted by theNew Brunswick Court of Appeal in Goodine, there is no general rule that corroborative evidence must include some corroboration ofillegal behaviour.

As noted by the Court in Goodine at para. 20: [20] As I note in the introduction to these reasons, lack of corroboration of the “criminal” aspect of a tip by an untested anonymoussource does not preclude a finding that an arrest based on that tip was lawful, at least where the following circumstances are in play: (1)there is no evidence that an improper motive underlies the tipster’s report; (2) the corroborated “neutral” data would lead a reasonableand dispassionate observer to infer that the tipster is both closely acquainted with the target and privy to the criminal activity beingreported; and (3) that observer would be at a loss to point to any fact-based, as opposed to speculative, justification for the conclusionthat the allegation of criminal conduct is unreliable.

In my view, the issue for trial judges is always whether, having regard to the totalityof the circumstances, sufficient grounds existed to lawfully carry out the arrest. In other words, there is no hard and fast rule; what isrequired is a case-specific determination that reflects an assessment of the totality of the circumstances apparent to the arresting officersat the time they took action. [40] In the totality of the circumstances, I am satisfied, on the balance of probabilities, that Sgt. Dunn had reasonable grounds toarrest Mr. Pavlik. The tip was sufficiently precise to be credible.

The officers confirmed all ‘neutral’ aspects of the tip and those aspectswere sufficient to establish that the tipster was acquainted with the target and created a reasonable inference that he/she was privy to thecriminal activity being reported. The tip involved (and Mr. Pavlik was found at) a location where trafficking in controlled substances isknown to police to occur. In Prince Albert, that includes bars such as Bailey’s. I am satisfied that Sgt. Dunn subjectively believed Mr.Pavlik was arrestable and, in my opinion, that belief was reasonable. [41] Finally, I am satisfied that Cst.

Henry had the right to rely upon the information and direction provided by Sgt. Dunn inarresting Mr. Pavlik. While information was relayed through a chain of officers, I am satisfied it was accurately relayed and corroboratedwhere necessary. I am also satisfied that it was (and often is) operationally necessary for police officers to rely upon informationprovided by fellow officers during the exigencies of an active investigation. For the foregoing reasons, I find that Mr. Pavlik waslawfully arrested on December 23, 2016, by Cst. Henry. Were Mr. Pavlik’s privacy interests compromised when Ms.

Werminsky’s vehicle was searched? Did Mr. Pavlik have areasonable expectation of privacy respecting objects located in her vehicle? [42] Mr. Pavlik’s Charter application alleges that his privacy rights were breached when Ms. Werminsky’s vehicle was searched. [43] The approach to determining whether an individual’s privacy rights are engaged by a search was outlined by the SupremeCourt of Canada in R v Edwards, (SCC), [1996] 1 SCR 128, 104 CCC (3d) 136 [Edwards] at para 45, and R v Belnavis, (SCC), [1997] 3 SCR 341, 118 CCC (3d) 405 [Belnavis] at para 20.

The penultimate question is whether the individualhad a reasonable expectation of privacy that had been violated by an unreasonable search, recalling that the s. 8 right is a personal rightthat protects people and not places. This means the right to challenge the legality of the search in this case depends upon Mr. Pavlik’sestablishing that his personal rights to privacy were violated when Ms. Werminsky’s vehicle was searched. To do this, Mr. Pavlik mustestablish that he personally held a reasonable expectation of privacy in her car.

While this determination must be based on the totality ofthe circumstances, examining the following factors aid in that determination (Edwards, para 45): 1. The presence of the accused at the subject place at the time of the search. 2. Possession or control of the subject property or place by the accused. 3. The ownership of the subject property or place. 4. The historical use of the property or item by the accused. 5. The ability of the accused to regulate access to the property or place, including the right to admit or exclude others from theplace. 6.

The existence of a subjective expectation of privacy on the part of the accused. 7. The objective reasonableness of that expectation.

[ 44 ] Neither Mr. Pavlik nor Ms. Werminsky testified on the Charter voir dire . The only evidence I may rely upon for purposes of Mr. Pavlik’s Charter application is from the officers who testified. From this evidence, I know that Mr. Pavlik did not own the car that was searched but he was a passenger in it. I have no evidence that Mr. Pavlik exercised any degree of control over Ms. Werminsky’s vehicle. I have no evidence of Mr. Pavlik’s historical use of this car or any ability to grant, regulate or control access to it. I do not even have evidence available to me on the Charter voir dire that he and Ms.

Werminsky were in a relationship other than an inference based on them being at a bar together. Finally, I have no evidence that Mr. Pavlik held a subjective expectation of privacy; nor do I have any evidence available to me from which I can infer that he may have held such a belief. [ 45 ] In the totality of the circumstances, I am not satisfied that Mr. Pavlik has demonstrated on the balance of probabilities that his privacy interests were compromised when Mr. Werminsky’s vehicle was searched.

Simply put, there is no evidence available to me to conclude that he had a reasonable expectation of privacy involving this particular location. [ 46 ] Even if I applied evidence heard outside of the Charter voir dire (which would have been an error of law) to find that Mr. Pavlik and Ms. Werminsky were dating, the evidence is that they had only been dating a short period prior to December 23, 2016 – approximately two months. In my opinion, even if I could rely upon the fact that Mr. Pavlik was Ms.

Werminsky’s boyfriend when her car was searched (which I can’t), this additional evidence would not have been sufficient to establish that Mr. Pavlik had a privacy interest in the trunk of Ms. Werminsky’s car. Simply put, the relationship was too new for the Court to infer, on the balance of probabilities, that Mr. Pavlik had regular use of his girlfriend’s car or had any meaningful control over it or had any capacity to grant or regulate access to it. This additional evidence would also have provided an insufficient basis upon which to infer that Mr. Pavlik held a subjective expectation of privacy.

Should evidence found in the subject vehicle be excluded? [ 47 ] For the foregoing reasons, I am not satisfied that Mr. Pavlik has standing to ask this Court to exclude any evidence obtained during the search of Ms. Werminsky’s vehicle. Even if he did, I am not satisfied that his s. 9 rights were breached when he was arrested by Cst. Henry on December 23, 2016, nor were his s. 8 rights breached when Ms. Werminsky’s car was searched. [ 48 ] For the foregoing reasons, Mr. Pavlik’s Charter application is dismissed. All evidence from the Charter voir dire is hereby applied to the trial.

EVIDENCE HEARD DURING THE VOLUNTARINESS VOIR DIRE : [ 49 ] The Crown recalled Cst. Henry and Sgt. Mudry to testify regarding the statement provided by Mr. Pavlik at the police station and the circumstances giving rise to that statement. [ 50 ] Cst. Henry repeated his testimony as to his attendance at Bailey’s on December 23, 2016, and his arrest of Mr. Pavlik in the north parking lot adjacent to that building. Cst. Henry confirmed that he was on patrol on that day, that he was in uniform, and that he was driving a marked police vehicle. Cst. Henry confirmed that he saw Mr.

Pavlik walking in the parking lot adjacent to Bailey’s but that he did not see him either in or exiting the building. Cst. Henry testified that he arrested Mr. Pavlik on the strength of the information that he had received from Sgt. Dunn and that he arrested him for possession of controlled substance for the purpose of trafficking and outstanding warrants. [ 51 ] Cst. Henry testified that, prior to transporting Mr. Pavlik to the police station and while he was in the back of his police cruiser, Cst. Henry read Mr. Pavlik the standard right to counsel and then asked him if he wanted to speak to a lawyer. Mr.

Pavlik said “yes”. Cst. Henry testified that he then read Mr. Pavlik the standard police warnings and then asked him if he understood those warnings. Mr. Pavlik said “yes”. Cst. Henry testified that he had known Mr. Pavlik from prior dealings, that he did not appear to be impaired by drugs or alcohol, and that he did not appear to have any difficulty understanding the officer’s statements, cautions or questions. [ 52 ] Cst. Henry then transported Mr. Pavlik to the police station and permitted him to talk to a lawyer in private. When Mr. Pavlik was done speaking to the lawyer, Cst.

Henry searched him and then placed him into a holding cell.

[ 53 ] In cross-examination, Cst. Henry acknowledged that at the point in time when he arrested Mr. Pavlik and read him his rights and warnings, the gun had not yet been discovered in the back of Ms. Werminsky’s vehicle. [ 54 ] Sgt. Mudry repeated his testimony that he was on duty on December 23, 2016, that he was in uniform, and that he was acting Staff Sergeant. After the shotgun was found, Ms. Werminsky was interviewed by police. She denied any knowledge of the weapon being in her vehicle. [ 55 ] Sgt. Mudry then moved Mr. Pavlik from his holding cell to an interview room. The interview room was recorded.

The video and audio are both clear. [ 56 ] As depicted in the video, Sgt. Mudry starts by telling Mr. Pavlik that “things have changed” as the two enter the interview room. The officer tells Mr. Pavlik that he needs to re-read him his rights and warnings. The officer also tells Mr. Pavlik that everything in the room was being recorded. The officer then informs Mr.

Pavlik that he is being charged with ten gun-related offences; namely, careless storage of a prohibited weapon, possession of a prohibited weapon, possession of a prohibited weapon for a dangerous purpose, occupant in a motor vehicle knowing a prohibited weapon was located therein, possession of a prohibited firearm with ammunition, possession of a weapon obtained by crime, two counts of possession of a weapon while prohibited, and two counts of possession of ammunition while prohibited. [ 57 ] In addition, Sgt. Mudry informs Mr.

Pavlik that he is also being charged with breach of a conditional sentence order for being in a place where the main purpose was the sale of alcohol and finally for being in possession of meth. Mr. Pavlik is seen on the video to be calm, attentive and responsive to what the officer was saying. He is silent until the officer mentions the charge for possession of meth at which point Mr. Pavlik indicates “I didn’t have possession of no meth”. At which point, the officer informs Mr. Pavlik that methamphetamine was found in the vehicle. [ 58 ] Sgt. Mudry then reads Mr.

Pavlik the standard right to counsel given by police. Mr. Pavlik indicates that he understands. When asked if Mr. Pavlik wishes to call a lawyer, he mumbles “no”. Sgt. Mudry then reads the standard police cautions, including that he need not say anything and that everything he does say may be used as evidence. Mr. Pavlik nods his head up and down when asked if he understands what he has been told. [ 59 ] At approximately 12:21 a.m. Sgt. Mudry begins interviewing Mr. Pavlik. [ 60 ] As depicted in the video, the officer starts by telling Mr.

Pavlik “you put a gun in the back of Tenille’s car tonight and then drove up to Bailey’s and now she’s hooked on those charges too.” Mr. Pavlik initially denies putting the gun in the subject car, denies knowing that the gun was in the car, and denies knowing whose gun it is. The officer replies by saying “she’s on the hook for this”. The officer points out that Ms. Werminsky was the person driving the car when the police pulled it over. Mr. Pavlik responds by saying “Whatever … I’ll take the charge then but it’s not mine. I don’t know who it belongs to”. Mr.

Pavlik indicates that several people had been in the car that day. [ 61 ] The officer responds by asking him “ok then tell me about your day”. Mr. Pavlik indicates that he had been to several people’s places that day; the implication being that the gun may have come from someone else. The officer tells Mr. Pavlik that it’s unlikely that someone got into his car with a shotgun and he did not notice. The officer then tells Mr. Pavlik that the police will test the gun and ammunition for fingerprints and DNA and they will be able to tell who touched them. [ 62 ] While Mr.

Pavlik initially denies knowing about the gun, his answers begin to change during the interview as the officer reminds him that the gun was found in Ms. Werminsky’s vehicle and that eventually the police will figure out who touched it. Mr. Pavlik’s admissions start when he says that, while they drove up to Bailey’s together, she didn’t know about the gun. Later in the interview, Mr. Pavlik indicates that he got the gun from “Carlyle’s” (sp) earlier that day – in the morning, that he put the gun in the back of Ms.

Werminsky’s car, that she was not present when it happened, and that he forgot that it was there when they went to Bailey’s that night. Mr. Pavlik tells the officer that he got the gun for protection from gangs in the city because they are “terrorizing” people. [ 63 ] Mr. Pavlik tells the officer that he does not want Ms. Werminsky to get in trouble. Sgt. Mudry responds by saying that he does not want her to get in trouble either.

[64] Sgt. Mudry then asks Mr. Pavlik to describe the gun. Mr. Pavlik indicates that it was “silver” - “painted”. The officer asks ifMr. Pavlik had painted the gun and he answers “that’s how I got it”. The officer then asks if Mr. Pavlik paid for the gun or if someonejust gave it to him. Mr. Pavlik answers “I didn’t steal it”. Finally, the officer asks if he loaded the gun and how many shells were in it.Mr. Pavlik responds by saying he didn’t know anything about shells in the gun. [65] Near the end of the interview, Mr.

Pavlik summarizes what he was saying about the gun; namely, that the gun was his, that heneeded it for protection, that Ms. Werminsky didn’t know anything about it, that he put the gun in her car, that he was “careless”, andthat it shouldn’t have been there when they went to the bar. [66] The interview ended at approximately 12:37 a.m. [67] Mr. Pavlik elected to call no evidence on the Voluntariness voir dire. DECISION ON THE VOLUNTARINESS VOIR DIRE: Has the Crown proven beyond a reasonable doubt that the statement made by Mr. Pavlik to Sgt.

Mudry was voluntary? [68] At common law, a statement made by an accused to a person in authority is inadmissible unless it is proven to be voluntary.The leading case on the question of whether a warned statement given to police is voluntary is R v Oickle, 2000 SCC 38, 147 CCC (3d)321 [Oickle]. [69] Simply put, a confession is not admissible if it is made in circumstances that raise a reasonable doubt as to its voluntariness. The Court must apply a contextual approach and consider the statement of the accused with regard to all of the circumstances of itsmaking.

Consideration must be given to the personal circumstances of the suspect including his/her level of sophistication, theinfluences of being held in custody, the effects of questioning – particularly prolonged questioning, and the accused’s relative experiencewith the justice system. In Oickle, a majority of the Supreme Court identified four grounds for ruling a statement made to a person inauthority inadmissible on the basis of voluntariness; namely, where the judge has a reasonable doubt the statement was not voluntary dueto: (

a) threats or promises made to the suspect; (

b) oppressive circumstances surrounding the taking of the statement; (

c) the lack of an operating mind on the part of the suspect; or (

d) police trickery “so appalling as to shock the community”. [70] The Crown bears the burden of proving beyond a reasonable doubt that no threat, promise, inducement or coercive tacticswere used by any person in authority to undermine the voluntariness of the statement under review.

As noted by the court in R v White,2002 SKQB 73, 216 Sask R 224: [4] The burden of proof that a confession is voluntary rests on the Crown and will “... rarely, if ever, be discharged merely by proofthat the giving of the statement was preceded by the customary warning and an expression of opinion on oath by the police officer, whoobtained it, that it was made freely and voluntarily”: Sankey v. The King (1927), (SCC), 48 C.C.C. 97 (S.C.C.) at p. 101;Monette v. The Queen (1956), (SCC), 114 C.C.C. 363 (S.C.C.).

Where the evidence adduced by the Crown is exhaustivein respect of everything that was said to the accused by persons in authority and it discloses no threats or inducements, then the statementis likely to be found voluntary. The only way available to the Crown to prove such a negative proposition is to produce evidence ofeverything that was said to or in the presence of the accused and all the circumstances relevant to the making of the statement. In the caseat bar, the Crown complied with that procedure. [71] After the police found the shotgun in the trunk of Ms.

Werminsky’s car, the nature of the investigation changed. Mr. Pavlikwas taken to an interview room and was advised that things had changed. Sgt. Mudry read him the new charges and read him all requiredpolice cautions. Mr. Pavlik indicated he understood. Sgt. Mudry again advised him of his right to counsel but this time he declined tospeak to a lawyer.

[ 72 ] Throughout the interview, Sgt. Mudry’s tone and demeanor towards Mr. Pavlik was calm, polite and respectful. He was also blunt and unwavering in his description of the jeopardy to which Mr. Pavlik and Ms. Werminsky were exposed. In my opinion, the words used by Sgt. Mudry to describe this jeopardy were accurate. The officer never said or implied that he would drop the charges against Ms. Werminsky if Mr. Pavlik confessed. [ 73 ] The interview was approximately 17 minutes in length. During the interview Mr. Pavlik was polite and responsive with the officer.

His answers indicated that he clearly understood all questions put to him. The change in his demeanor indicated that Mr. Pavlik understood the jeopardy he was placing himself in by giving information to the officer. Finally, his accurate description of the gun – “painted” “silver” – demonstrated that Mr. Pavlik had personal knowledge of that weapon. [ 74 ] Having reviewed Mr. Pavlik’s statement, I see no evidence of threats or promises made by Sgt. Mudry or any other person in authority. No form of police trickery was used. Neither the circumstances of the interview nor the techniques used by Sgt.

Mudry were oppressive. I am satisfied that Mr. Pavlik had a clear operating mind when he told the officer that the shotgun in the truck of Ms. Werminsky’s car was his, that he put the gun in her car earlier in the day, that he felt he needed it for protection, that he was “careless”, and that it should not have been there when he and Ms. Werminsky went to the bar. Finally and although not disputed by Mr. Pavlik, I note that the Crown called all persons in authority who dealt with Mr.

Pavlik during his arrest, when he was being transported to the police station, and while he was at the police station. [ 75 ] In the totality of the circumstances, I am satisfied beyond a reasonable doubt that these statements made by Mr. Pavlik – and all other statements he made during the interview - were voluntary. As a result, the warned statement provided by Mr. Pavlik to police is admissible evidence in these proceedings. EVIDENCE HEARD OUTSIDE OF THE TWO VOIR DIRES : [ 76 ] The Crown called Tenille Werminsky to testify. [ 77 ] Ms. Werminsky testified that Mr.

Pavlik was her boyfriend and that they went to Bailey’s on the evening of December 23, 2016. They took Ms. Werminsky’s car and she parked near the east entrance of Bailey’s. Once there, they got out of the car and went in the bar. Ms. Werminsky testified that at some point during the evening Mr. Pavlik left the bar, gave a friend and his wife a ride home, and returned to Bailey’s. [ 78 ] Ms. Werminsky testified that she and Mr. Pavlik did not leave the bar together. She left out the east entrance and Mr. Pavlik left through another door. Ms.

Werminsky testified that, when she got to her car, it was her intention to drive home. For reasons not explained, she and Mr. Pavlik were not going home together. [ 79 ] Ms. Werminsky confirmed that she was stopped by police and arrested in the parking lot. She denied seeing or having any knowledge of a gun in her vehicle. She also denied seeing or having any knowledge of drugs in her car. [ 80 ] Mr. Pavlik elected to call no evidence on the trial. DECISION ON THE TRIAL : [ 81 ] Having applied the evidence from the Charter voir dire to the trial and having found that the statement made by Mr.

Pavlik to police to be admissible, I am satisfied beyond a reasonable doubt that the Crown has proven counts 1, 2, 3, 4, 5, 7, 8, 9, and 10 in the indictment - but not counts 6 and 11. [ 82 ] Mr. Pavlik’s evidence as to when he got the gun, how he got the gun, and why he got the weapon was clear and precise, as was his evidence that he placed it in the back of Ms. Werminsky’s car earlier in the day and that he was careless in not removing it before they went to the bar. I am satisfied beyond a reasonable doubt that Mr. Pavlik had possession of this weapon; that he put it where

it was found; and stored it in the manner in which it was found. I am also satisfied beyond a reasonable doubt that the gun was a firearm,that it was a prohibited weapon (because it had been sawed-off), that it was loaded, and that the shells contained in it were ammunition. [83] As to count 1, there was no dispute that the shotgun found in Ms. Werminsky’s car on December 23, 2016 was stored in acareless manner. It was loaded, it was not encased, and no trigger lock was affixed. [84] As to count 2, there was no dispute that Mr.

Pavlik was not the holder of a licence authorizing him to possess a prohibitedweapon in the form of a sawed-off shot gun. [85] As to count 3, based on the modification made to the shotgun and the circumstances under which that firearm was stored, Iam satisfied beyond a reasonable doubt that it was possessed for a dangerous purpose. [86] As to count 4, I am also satisfied based on Mr. Pavlik’s statement that he was an occupant in a motor vehicle in which he hadpreviously placed a firearm. [87] As to count 5, I am satisfied beyond a reasonable doubt that Mr.

Pavlik possessed a loaded prohibited firearm withoutauthorization. I reject Mr. Pavlik’s statement to police that he did not know the gun was loaded. It is improbable in the extreme thatsomeone who got a sawed-off shotgun for protection did not notice or care whether the gun was loaded. I am satisfied beyond areasonable doubt that Mr. Pavlik did know the gun was loaded and that he acquired that knowledge either when he took possession of itor very soon thereafter. [88] As to count 6, no evidence was tendered to indicate that the shotgun was stolen.

As a consequence, this count has not beenmade out. [89] As to counts 7, 8, 9 and 10, I am satisfied beyond a reasonable doubt that on December 23, 2016, Mr. Pavlik was subject totwo different orders made pursuant to s. 109 of the Criminal Code prohibiting him from possession of both firearms and ammunition. [90] With respect to count 11, the Crown acknowledged during the trial that it had not proven this count. [91] Finally, I must address the rule against multiple convictions as set forth by the Supreme Court of Canada in R v Kienapple, (SCC), [1975] 1 SCR 729, 15 CCC (2d) 524.

I am satisfied that count 2 is subsumed within and duplicated by count 5,that count 7 is duplicated by count 9, and that count 8 is duplicated by count 10. As a consequence, I enter judicial stays of counts 2, 7and 8. CONCLUSION: [92] For the foregoing reasons, I find Mr. Pavlik guilty of the following counts in the indictment: Count 1 - careless storage of a prohibited weapon contrary to s. 86(1). Count 3 - possession of a prohibited weapon for a purpose dangerous to the public peace contrary to s. 88(1).

Count 4 - being an occupant in a motor vehicle knowing a prohibited weapon was located therein contrary to s. 94(1). Count 5 - possession of a loaded prohibited firearm contrary to s. 95(1)(a). Count 9 - possession of a prohibited firearm while prohibited from doing so contrary to s. 117.01(1). Count 10 - possession of ammunition while prohibited from doing so contrary to s. 117.01(1). Dated this 24th day of January, A.D. 2018, at the City of Prince Albert, in the Province of Saskatchewan.

__________________________ S.D. SCHIEFNER, J