Her Majesty the Queen - v. -, 2016 SKPC 49

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 049 Date: March 30, 2016 Information: 44666304, 43176549 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Sohrab Mohammadian Appearing: Ms. L. Gibb For the Crown Mr. M. Nolin For the Accused JUDGMENT D.A.

LAVOIE , J [ 1 ] The accused stands charged as follows: 1) on or about the 6 th day of May, A.D. 2015, at or near Saskatoon, Saskatchewan did unlawfully have n his possession a controlled substance to wit: cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act ; and 2) on or about the 6 th day of May, A.D. 2015 have in his possession proceeds of property having a value not exceeding five thousand dollars knowing that all or part of the property or proceeds were obtained or derived directly or indirectly from the commission in

Canada of an indictable offence: to wit, trafficking in a controlled substance, contrary to s. 5(1) of the Controlled Drugs and Substances Act , thereby committing an offence, contrary to ss. 354(1) and 355 (

b) of the Criminal Code . [ 2 ] Informations 44666304 and 43176549 arise out of basically the same circumstances, accordingly it was agreed by consent of Crown and defence that they would proceed as a joint trial. Preliminary Matters [ 3 ] Defence filed a Charter notice dated December 4, 2015, setting forth a number of issues. The Court and counsel discussed technical procedural matters.

The final process unfolded as follows with the consent of counsel: 1) the Crown called all its evidence in the context of a voir dire on the Charter issues raised by defence; 2) defence counsel cross-examined each witness as if we were within a trial proper; 3) defence elected to call no evidence on the voir dire ; 4) decision on the voir dire was reserved; 5) all the evidence from the voir dire was applied by consent to the trial proper; 6) defence elected to call no evidence on the trial proper; 7) the matter was adjourned to a subsequent date for counsel to have time to prepare written submissions in argument; 8) on the return date scheduled for argument defence for the first time suggested the Certificate of Analyst was not admissible as a full exhibit because the Crown had not met the requirements of proof of service of Notice of Intention to tender the Certificate as required by ss. 5(1) and (3) of the Controlled Drugs and Substances Act . [ 4 ] The Court rendered a ruling rejecting the defence submissions and allowing the Certificate of Analyst as a full exhibit. 9) the matter then proceeded to final argument. [ 5 ] This decision will deal with the remaining issues raised in both the voir dire and the trial proper in the following order: 1) Was the warrantless arrest of Mr.

Mohammadian in the 7-11 parking lot, and subsequent searches incident to arrest, illegal resulting in a breach of his ss. 8 and 9 Charter rights?

2) If his Charter rights were breached, what is the proper remedy pursuant to s. 24(2) of the Charter ? 3) If there was no Charter breach or s. 24(2) evidence exclusion remedy, then does the evidence prove beyond a reasonable doubt that the drugs were possessed for the purpose of trafficking and was the cash, proceeds of crime? The Facts [ 6 ] The following is a

summary of the evidence forthcoming from the two main investigation police officers. [ 7 ] Constable Cameron Graves indicated he has been a police officer for nine years and been assigned to the Integrated Drug Enforcement Unit for the last five years. [ 8 ] He was the lead investigator in what was described as a street level drug investigation. For some days prior to May 6, 2015 he had received information a couple of times from a long term confidential informant about a male using the street name of Ricky who was trafficking in drugs.

On the date in question he spoke to the informant again, who gave further information as to vehicle licence plate number, vehicle descriptions and description of the male called Ricky, and his activities as follows:

a) SK licence plate #567 JLH;

b) red Town and Country minivan;

c) Ricky was brown skinned, short hair, short beard; and

d) Ricky was trafficking in cocaine. [ 9 ] Officer Graves and his partner, Officer Lynden, did a search of the license plate to determine it was a rental vehicle from Enterprise Rent a Car. From their experience the police officers knew street drug traffickers often used rental vehicles. [ 10 ] As part of their duties they drove around the city to see if they could locate the vehicle. At approximately 6:30 p.m. they were at an intersection coming off Circle Drive onto Warman Road when a red minivan drove past in front of them.

It had a lone male driver who somewhat fit the description of the male named Ricky, that they had received, from the confidential informant. [ 11 ] Officer Graves emphasized that he had been using the confidential informant for some time and the informant had provided valuable, accurate and reliable information in the past. [ 12 ] The officers were able to drive in behind the minivan and confirm the licence plate number of the vehicle.

At that stage they put the vehicle under surveillance and followed it to a shopping center known as Market Mall in the city of Saskatoon, where the vehicle stopped on the north side of the mall. [ 13 ] Shortly thereafter they observed a female walk up to the minivan, she was somewhat looking around, then she entered the front passenger side of the vehicle. She was in the vehicle for approximately 30 to 45 seconds, then exited, looked around, and walked away. [ 14 ] The minivan then drove away. The police officers continued following where it entered the parking lot of a 7-11 convenience

store on the north-east corner of Broadway Avenue and Main Street. Officer Graves’ evidence best describes what happened: The vehicle left the curb. It was - - surveillance was done from Market Mall to Broadway Avenue, and I - - I forget what the cross street is, I think it’s Broadway and Main, there’s a 7-Eleven on the northeast corner. The vehicle pulled in, and the male, the only occupant of the vehicle being the male who matched the description given by the informant, went inside the 7-Eleven store.

So at that time, myself and Constable Lynden, given the long use of this informant and the accuracy that they had, based on that what we had saw, the plate number matching, the vehicle matching, and the description of the male matching, it was decided when he came out that he would be arrested at that time. The male came out, was placed under arrest by Constable Lynden. Pardon me. [ 15 ] The police officers immediately searched the accused and his vehicle incident to arrest and found: a) 3 cell phones;

b) in the console, in plain view, a metal Excel mint container containing 25 spit balls of crack cocaine and 2 spit balls of powder cocaine; c) $745.00 in cash; and

d) a car rental agreement. [ 16 ] Of note, is that within a minute or two of the accused being arrested the black LG cell phone found in his hand started ringing.

Officer Graves answered 8 to 12 calls at the following times: 7:07 p.m., 7:32 p.m., 7:35 p.m., 7:37 p.m., 7:44 p.m., 7:45 p.m., 7:59 p.m. and 8:12 p.m. [ 17 ] Based on his experience, Officer Graves believed all the callers used language often used by purchasers calling a trafficker in a dial-a-dope operation. [ 18 ] Officer Graves described his reasons for arresting the accused at various stages of his testimony as follows: Transcript p 32, lines - 16 - 34 Q Ms. Gibb: Officer, why did you arrest the individual observed on that May 6 th occasion?

A Based on the informant information, knowing the informant is a long-time informant and accurate on numerous occasions and information provided led to numerous search warrants and arrests and seizure of drugs, guns, and money, also our observations that the vehicle plate number, the person driving it matched the description that they were out trafficking cocaine that day. The Court: The vehicle what number? The Witness: The vehicle and plate number. The Court: Okay. The Witness: Like the vehicle description being a red van and also the plate number were correct.

Watching what I believed was a drug transaction north of Market Mall just off Preston Avenue, I believe that person was in further possession of drugs for the purpose of

trafficking them. I believe that what we saw was a drug transaction. Transcript p 43, lines 3 - 15 Q What was the urgency for arresting Mr. Mohammadian? A Well, I’ve been - - I’ve been involved in a lot of investigations that - - that are like this, like a dial-a-dope investigation where this is how it operates. I’ve also spoken with a lot of informants that had prior or previously done - - committed these offences themselves. They’ve divulged some of the ways to avoid police detection and also specifically on two files that I’ve worked on, the person has swallowed the drugs.

So having easy access to them in a small container and also having access to large amounts of water - - when we did stop the vehicle, there was two bottles of water, you know, right beside the drugs, so one thing is to swallow it. That way there’s no evidence and, you know, no charges essentially. So the - - the other thing is also a safe - - we always take into consideration when it’s a safe time to stop somebody. Having someone come out of a store, it’s in a controlled environment. It was a good time and place as well to stop him.

Transcript p 44, lines 24 - 31 Q Now, Officer, at the beginning of the cross-examination, my friend inquired about any other reference to the confidential informant involved. Officer, is there a particular reason that you avoid writing the dates and times that tips are received from informants. A Yes, just anything that - - anything that an informant provides, it’s the information and not in great detail is what’s important, and it’s also that I would note and disclose.

Anything other than that I believe would - - could possibly identify my informants, which based on informant privilege, that’s why it’s not disclosed. Officer Brock Lynden Transcript p 49, lines 36 - 41, page 50, lines 1 - 2 Ms. Gibb: Why did you arrest Mr. Mohammadian that day?

A Paired with information that we had received from the confidential source as well as seeing what is consistent with a drug transaction in my experience - - the female entering the passenger side of the vehicle, the fact that it was a quick encounter that almost seemed preplanned, the fact that she walked away - - we followed him to a secondary location. This was sufficient evidence for us to believe that he was trafficking.

Applicable Law [ 19 ] The applicable provisions of The Canadian Charter of Rights and Freedoms are as follows: s. 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. s. 8 Everyone has the right to be secure against unreasonable search or seizure. s. 9 Everyone has the right not to be arbitrarily detained or imprisoned.

s. 10 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. s. 11 Any person charged with an offence has the right

a) to be informed without unreasonable delay of the specific offence. s. 24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [20] Mr. Mohammadian has the burden of persuading the Court that their Charter rights have been infringed, denied or breached.

The burden shifts to the Crown once the accused has demonstrated that the arrest was a warrantless one and the Crown must then showthat the arrest was reasonable. The standard of proof in both circumstances is on a balance of probabilities. (See: R. v. Besharah(2010), 251 C.C.C. (3d) Sask. C.A., para. 35; R v. Collins, (SCC), [1987] 1 S.C.R. 265 paras. 21, 32 and 33) Further, inR v. MacKenzie. 2013 SCC 49 , [2013] S.C.J.

No. 49 at paras. 44 and 45 the Supreme Court of Canada stated: 44 Manifestly, if the officers were in fact engaged in random traffic stops to check for drugs, their actions would be unconstitutional andamount to a serious abuse of the powers society has entrusted to them. Had the trial judge so found, this would also have tainted theentirety of their evidence and put an end to the matter. There would have been no need for the trial judge to write a decision devoted inthe main to the principles of law governing sniff searches and the meaning of the term “reasonable suspicion”.

A simple rejection of theofficer’s evidence would have sufficed. 45 The allegations underlying such a finding and the ramifications for both the appellant and the officer are serious matters, not to betaken lightly. I accept that there will be cases in which a trial judge refuses to act on an officer’s testimony where the trial judge has realconcerns about the officer’s veracity. See, e.g., R. v. Turpin, 2010 SKQB 444, 365 Sask. R. 67, aff’d 2012 SKCA 50, 393 Sask. R. 184.

In such cases, where the officer’s testimony is crucial, the Crown will have failed to prove on a balance of probabilities that itswarrantless search was reasonable (Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 161; R. v. Collins (SCC), [1987] 1 S.C.R. 265, at p. 278. [21] Section 495(1)(

a) and (

b) of the Criminal Code states: 495(1) A peace officer may arrest without warrant

(

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence; (

b) a person whom he finds committing a criminal offence; or . . . [22] The precursor to this

section required both reasonable and probable grounds before an arrest could be made without warrant. Although some courts suggested this to mean that there was now a distinction to be drawn between grounds that were reasonable, as opposed to both reasonable and probable, the Supreme Court in R. v. Loewen, 2011 SCC 21 , [2011] 84 C.R. (6th) 215 at para.17 stated: . . . an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, inaddition, be justifiable from an objective point of view.

That is to say, a reasonable person placed in the position of the officer must beable to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need notdemonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case forconviction before making the arrest. [23] The test for reasonable grounds to arrest can be summarized as follows (outlined in R. v. Shinkewski (2012), 2012 SKCA 63, 289 C.C.C. (3d) 145 (SKCA) at paragraph 13):

i) The arresting officer must have subjectively reasonable grounds for arresting; ii) Those reasons must also be objectively justifiable from the point of view of someone in the position of the arresting officer; (iii) Although something more than a hunch or a suspicion is required by the arresting officer (R. v. Morelli, 2010 SCC 8 2010SCC 8, [2010] 1 S.C.R. 253, at para 91; R. v. Mann, 2004 SCC 52 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Simpson (ON CA) (1993), 79 C.C.C. (3d) 482 (Ont.

C.A.), he is not required to establish a prima facie case for conviction (R. v.Storrey) or even that it was more likely than not than an offence was committed. (R. v. Mugesera v. Canada (Minister of Citizenship &Immigration), 2005 SCC 40 2005 SCC 40, [2005] 2 S.C.R. 100). (iv) The arresting officer has an obligation to consider all reliable information. (

v) The cumulative effect of the information available to the arresting officer is what is assessed, not each piece in isolation (R. v.Nguyen, 2010 ABCA 146 2010 ABCA 146, 477 A.R. 395; and R. v. Storrey). (vi) The dynamics of investigation and arrest must be considered and appreciated: officers must act quickly in “volatile and rapidlychanging situations:. The information available to the police necessarily may be less than exact or complete. [24] In R. v.

Shinkewski (2012), 2012 SKCA 63 , 289 C.C.C. (3d) 145the Saskatchewan Court of Appeal at paragraphs13, 14 and 15 gave a significant review of the legal standard for “reasonable grounds to believe” when it stated: 13 The legal standard of “reasonable grounds to believe” has been the subject of considerable judicial

interpretation. I do not propose toreview it all; however, I make the following observations from the jurisprudence: (

a) an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objective pointof view - in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there were indeedreasonable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 (S.C.C.);

(

b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities (Mugesera c.Canada (Ministre de la Citoyenneté & de l’Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 (S.C.C.) Or a prima facie case forconviction (R. v. Storrey) before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” ora hunch (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.), at para 91; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v.Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.). (

c) an arresting officer must consider all incriminating and exonerating information which the circumstances reasonably permit, but maydisregard information which the officer has reason to believe may be unreliable: R. v. Storrey; (

d) a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion: R. v. Savage,2011 SKCA 65, 371 Sask. R. 283 (Sask. C.A.); R. v. Nguyen, 2010 ABCA 146, 477 A.R. 395 (Alta. C.A.); and R. v. Storrey; and 2012CarswellSask 406, 2012 SKCA 63, [2012] 9 W.W.R. 674, 103 W.C.B. (2d) 396, 289 C.C.C. (3d) 145, 264 C.R.R. (2d) 11, 399 Sask.

R.11, 552 W.A.C. 11 (e) “. . . the standard must be interpreted contextually, having regard to the circumstances in their entirety, including the timing involved,the events leading up to the arrest both immediate and over time, and the dynamics at play in the arrest”: R. v. Nguyen, at para. 18; and,context includes the experience and training of the arresting officer: R. v. Nolet, at para. 48; R. v. Whyte, 2011 ONCA 24, 266 C.C.C.(3d) 5 (Ont. C.A.), at para. 31; and R. v.

Luong, 2010 BCCA 158, 286 B.C.A.C. 53 (B.C.C.A.), at para. 19. 14 After reviewing the evidence in his written reasons, the trial judge found Sergeant McDonald had “arguably” possessed reasonablegrounds to suspect criminal activity, but given “the paucity of the information available to him and its equivocal nature”, the sergeant’ssuspicions were insufficient to satisfy the standard of “reasonable and probable grounds to arrest” or, and somewhat inconsistently, eventhat of “reasonable ground to suspect criminal activity”.

Nevertheless, the trial judge accepted that Sergeant McDonald had subjectivelybelieved he had reasonable grounds to arrest the operator of Mr. Shinkewski’s vehicle. In reaching his conclusion, the trial wrote: [15] When I review the totality of the circumstances I find that Sgt. McDonald’s knowledge fell short of the degree of probabilitynecessary for reasonable grounds to arrest. At the time he formed his belief he did not know who was operating the vehicle and therewas a complete absence of evidence available to him as to what, if anything, took place at the target’s residence.

Crucially, Sgt.McDonald was unaware of the tenuous nature of the dated confidential information relating to this accused, making an informedconsideration by him of this information impossible. 15 With respect, the trial judge’s reasons contain errors of law in both the identification of the applicable standard and the application ofthat standard to the facts. [25] Three recent decisions, R. v. Chehil, [2013] SCC49; 2013 SCC 49 , [2013] S.C.J. No. 49, S.C.C.; R. v. MacKenzie2013 SCC 50 , [2013] S.C.J. No. 50; [2013] SCC 50; R. v.

Mai Nguyen [2013] SKQB 36 (Popescul, CJQB) in dealing with acentral issue of “reasonable suspicion: as opposed to the more stringent test of “reasonable and probable grounds” as found in this case,clearly set out the “intellectual analytical steps” the Court must follow in assessing the evidence before the Court.

The Court is verycognizant that the tests in those cases were in relation to deploying and using “sniffer dogs”, involving “reasonable suspicion” fordetention, before they would have “reasonable and probable” grounds to make an arrest. [26] However the Court takes direction from those decisions in assessing whether in this case the police had “reasonable andprobable” grounds to effect a warrantless arrest of Mr. Mohammadian. [27] In R. v. Nguyen, Popescul, CJQB at paras. 26 - 32 stated:

[26] In R. v. Kang-Brown , 2008 SCC 18 , [2008] 1 S.C.R. 569, a majority of the Supreme Court of Canada established that the use of a drug detection dog as an investigational tool is reasonable, without prior judicial authorization, provided that the police have grounds to “reasonably suspect: the presence of drugs. Speaking for the majority, Binnie J. defined “reasonable suspicion” as: 75 The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possible engaged in some criminal activity.

A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5 th ) 123 : [T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient.

Instead, to justify such a search, the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment. [p. 125] . . .

What distinguishes “reasonable suspicion” from the higher standard of “reasonable and probable grounds” is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search. [p. 126] “Reasonable suspicion”, therefore, is an articulation of a standard that is used to assess whether a person may possibly be involved in criminal activity.

The reasonable suspicion standard is often contrasted with indiscriminate police conduct that is based merely on a hunch, intuition or speculation, none of which is sufficient to support an objectively based reasonable suspicion. See R. v. Kang-Brown , supra , at paragraphs 26 and 75 - 77 . [27] Since the “reasonable suspicion” standard is lower than the “reasonable and probable grounds” standard, it logically follows that the degree of reliability and the amount of information to establish that lower threshold is lower. This was recognized by our Court of Appeal in R. v.

Savage , 2011 SKCA 65 , 371 Sask.R. 283, where, at paragraph 18, Smith J.A. said: [18] Reasonable suspicion is lower standard and can be established by less evidence, with less probative value, than reasonable and probable cause. [28] Nonetheless, As Binnie J. points out in Kang-Brown , because the search is conducted without prior judicial authorization, the “after-the-fact” judicial scrutiny of the grounds for the alleged “reasonable suspicion” must be rigorous. See also Caldwell J.A. in R. v. MacKenzie , 2011 SKCA 64 , [2011] 12 W.W.R. 102, at paragraph 25 (leave to appeal to S.C.C. granted, [2011] S.C.C.A.

No. 359 (QL), argued in the Supreme Court of Canada on January 22, 2013, and reserved). [29] However, the after-the-fact judicial review must be conducted in a principled fashion which does not amount to second-guessing. The officer’s belief in the existence of a reasonable suspicion ought not be disturbed unless it is unreasonable or not rationally capable of supporting an inference of suspicion. See R. v.

Gunn , 2012 SKCA 80 , 399 Sask.R. 170, at paras. 15-23 . [30] Further, in reviewing the question of whether the police had an objective basis upon which to act, the Court must take into account that the police at the scene are often required to make quick decisions based on available information, some of which may not be complete or exact, in situations that are rapidly changing and potentially volatile. Judicial reflection is not a luxury the police enjoy, and their decisions should not be viewed in the same way as an unhurried decision made after full debate and careful deliberation. See R. v.

Nolet, 2009 SKCA 8 , [2009] 4 W.W.R. 604. [31] Another important consideration is the investigative officer’s training and experience. In some situations, such as drug investigations, the work of the police can be very specialized. The significance of the inferences and deductions that a highly trained and very experienced officer might draw from a particular situation might easily elude the lay person. This concept has been consistently

applied by our Court of Appeal. In R. v. Yeh, 2009 SKCA 112, [2009] 11 W.W.R. 193, Richards J.A. opined: 53 Constable Wilson’s assessment of the situation involving Mr. Yeh must be considered against the background of the now establishednotion that the experience and training of a police officer should be taken into account when the reasonableness of a suspicion isassessed. This is because a fact or consideration which might have no significance to a lay person can sometimes be quite consequentialin the hands of the police. See: R. v. Mouland, 2007 SKCA 105 at para. 26.

This said, it is also clear that, when necessary the courtsmust be prepared to look carefully at what is held out to be “experience” or “training” in order to ensure that the integrity of thereasonable suspicion concept is maintained. See also R. v. Nolet, supra, and R. v. MacKenzie, supra. [32] It further logically flows that the Court, when assessing the situation, ought to step back and consider the totality of thecircumstances, including inculpatory, exculpatory and neutral indicators.

In doing so, however, the Court must assess and appreciate therelevance of the indicators in the context of all of the circumstances, and not in isolation. The fact that an indicator may have an innocentexplanation does not necessarily take away its probative value. In R. v. Savage (Sask. C.A.), supra, Smith J.A. put it this way atparagraph 21: 21 In my view, the trial judge erred in failing to assess or to appreciate the probative value, or the relevance, of the factors cited by theofficers as grounding their suspicion. The test is not whether there might be an innocent explanation.

It is whether the presence of sucha fact enhances or makes more likely the possibility of the crime at issue. In my respectful view, each of the factors relied upon by theofficers was objectively relevant to and logically probative of their ultimate suspicion. [28] In R v Jacques (SCC), [1996] 3 SCR 312, Gonthier J. quoted with approval this observation made byBelleghem J. In R v Marin: The “indicators” are to be seen as a constellation, or cluster, leading or tending to a general conclusion. Looked at individually, no singleone is likely sufficient to warrant grounds for detention and seizure.

The whole is greater than the sum of the individual parts viewedindividually. [29] In R v Bramley and Schiller, [2009] SKCA 49 at para 60, the Saskatchewan Court of Appeal discussed the totality ofthe circumstances test. Although made in the context of discussing an investigative detention, these comments apply equally whenassessing the reasonable grounds for an arrest or search with warrant: [60] I note more generally that there is, of course, no fixed checklist of factors which serve as prerequisites for a reasonable suspicion ofillegal drug activity and which thereby justify a sniffer dog search.

Each case must be considered on its own merits. The reasonablenessof a police officer’s suspicions should be assess through the lens of common sense and practical experience rather than be resort to pre-ordained lists of indicators deemed adequate to justify a search. Perhaps the key general point in this case is that the potential meaningof the factors relied on as the basis for a reasonable suspicion must be assessed for their collective, as opposed to individual,significance. [Emphasis added] [30] The grounds for an arrest can be established circumstantially.

In R v Jacobson (ON CA), [2006] 207CCC (3d) 270, the Ontario Court of Appeal explained that reasonable grounds can be established by inference: 22 . . . the standard ofreasonable grounds does not require proof beyond a reasonable doubt or even proof on a balance of probabilities. If the inference ofspecific criminal activity is a reasonable inference from the facts, the warrant should be issued. [31] Since grounds can be reasonably inferred from the global circumstances, direct evidence is not required.

When faced withcircumstantial information, an arresting officer is entitled to “put two and two together” as set out in R v Charlton, (BCCA):

Even in circumstances where police do not have specific information that an accused is in possession of narcotics, they are entitled to“put two and two together” and conclude that the accused is in possession of narcotics. Thus, where un unknown accused makes a“furtive visit . . . of the fleeting sort which is to be expected when drug trafficking is going on” to a residence being surveilled by policepursuant to an informant’s advice that cocaine was being sold out of the premises, the conclusion that the accused is in possession ofcocaine would meet both tests enunciated in R v Storrey. [32] In R. v.

Chehil, supra, the Supreme Court of Canada at para. 3, 33, 34 and 35, 55 and 62 stated: 3 In my view, there is no need to revise the reasonable suspicion standard. It is a robust standard determined on the totality of thecircumstances, based on objectively discernible facts, and is subject to independent and rigorous judicial scrutiny. As Doherty J.A. saidin R. v.

Simpson (1993), (ON CA), 12 O.R. (3d) 182 (C.A.), at p. 202, the standard prevents the indiscriminate anddiscriminatory exercise of police power. . . . 33 Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of thecircumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regardingreasonable suspicion. As Doherty J.A. found in R. v.

Golub (1997), (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 751,“[t]he officer must take into account all information available to him and is entitled to disregard only information which he has goodreason to believe is unreliable”. This is self-evident. 34 However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seekout exculpatory factors or rule out possible innocent explanations. As was noted in United States v. Sokolow, 490 U.A. 1 (1989), at p. 10(citing Illinois v.

Gates, 462 U.S. 213 (1983), at p. 244, footnote 13), “the relevant inquiry is not whether particular conduct is ‘innocent’or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts:. In conducting this inquiry to ascertainwhether reasonable suspicion was present, the court will assess the circumstances the police were aware of at the time of the execution ofthe search, including those learned after the decision to deploy the sniffer dog was made if there is a delay in deployment, as there was inthis case.

However, it would not be permissible for the reasonable suspicion inquiry to assess circumstances learned after the executionfo the search: ss Kang-Brown, at para. 92. 35 Finally, the objective facts must be indicative of the possibility of criminal behaviour.

While I agree with the appellant’s submissionthat police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, Ido not accept that the evidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specific known criminalact. . . . 55 Once a sniffer dog has delivered a positive indication, the police often seek consent for a verification search. Provided that theconsent is properly sought and obtained, the search will respect s. 8 of the Charter: see R. v. Borden, (SCC), [1994] 3S.C.R. 145.

Alternately, the police may determine that they have the grounds required under the Charter to proceed with a warrantlessarrest, namely reasonable and probable grounds to believe that the accused has committed an offence: see R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, at pp. 249-51. If the arrest is validly made, the police may conduct a search incident to arrest in order tosecure evidence that could be used at the accused’s trial: see Caslake.

That is what occurred in this case, and in the majority of reportedcases dealing with sniff searches occurring post-Kang-Brown in which the police conducted a search to confirm the presence of drugs. . . . 62 The Court of Appeal found that the trial judge erred by looking at each factor individually. In their view, it was not determinative thateach factor, viewed in isolation, was capable of innocent explanation. They found that the circumstances must be looked at in theirtotality, which precludes a divide and conquer approach that finds each factor individually equivocal. [33] In R. v.

MacKenzie, supra, the Supreme Court of Canada reiterated several principles including: 1) The reasonable and probable grounds standard is a more demanding standard than the reasonable suspicion standard.

2) Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. However, that training and experience must not be accepted uncritically. Nor is deference necessarily owed to a police officer’s view of the circumstances. It must be subjected to rigorous judicial review. 3) The analysis of objectively based criteria should be conducted through the lens of a reasonable person standing in the shoes of the police officer. [ 34 ] See also a number of recent decision in relation to grounds for a warrantless arrest and search incident to such arrest. R v Zettler [2015] ONCA 613 R v Herritt [2015] NBCA 33,

(2015) CCC (3d) 325 R v Wu [2015] OJ No 5106 (Ont CA) R v Fountain [2015] ONCA 354 (Ont CA) R v Richards [2015] 323 CCC (3d) Ont CA) R v Aden, Thompson and Omar [2015] SKCA 50 (Sask CA) [ 35 ] Where an arrest and search is warrantless, as in this case, it is presumptively unreasonable. However, if the Crown is able to establish on a balance of probabilities that the police action was authorized by law, that the law itself is reasonable, and the manner in which the search was carried out was reasonable, then the warrantless search will not be found to be unreasonable.

A search incident to arrest, however, must have at its heart a lawful arrest. If the arrest is not lawful, the search is also not lawful. [ 36 ] Accordingly, it is this Court’s responsibility, in the context of Mr. Mohammadian’s Charter application, to assess whether the reasonable and probable grounds standard for a warrantless arrest and search has been met, considering the entire constellation of objectively discernible facts, as assessed through the police officers training and experience. The Court must be ever mindful that this must be subjected to a rigorous, objective judicial review.

Issues and Analysis 1. Did the police officers who ordered and/or made the arrest of Mr. Mohammadian on May 6, 2015, have reasonable and probable grounds to effect such arrest? 2. Did they have the requisite subjective belief, supported by sufficient objective criteria? 3.

If any of his rights were breached then what remedy if any should be accorded to him? [ 37 ] As Officers Graves and Lynden indicated the genesis of this investigation was information from a long standing known, reliable, confidential informant on at least three occasions to the effect: 1) a brown skinned, short hair, short bearded male name Ricky was selling cocaine on the street; 2) he was driving a rental red Town and Country minivan with Saskatchewan license plate 567 JLH;

3) they checked the license plate number and found it to be registered to Enterprise Rent-a-Car, a car rental agency; 4) they located the vehicle on the street in the city of Saskatoon and followed it to Market Mall; and 5) there they observed a female enter and leave the vehicle in a short period of time which is consistent with what they often see in street dial-a-dope trafficking operations. [ 38 ] They followed the minivan to the 7-11 parking lot.

Both officers evidence disclosed that at that stage they clearly had the subjective belief on what they felt was sound evidentiary objective criteria, that they had reasonable and probable grounds to effect a warrantless arrest of Mr. Mohammadian for drug trafficking activity. [ 39 ] Defence carefully cross-examined the police officers then strenuously argued most of the objective criteria relied on by the police had a weak, or neutral, entirely innocent connotation or inference to be drawn. The Court should not individually analyse each fact in isolation.

The Court must look at the entire constellation of events and in the light of two experienced police officers in street drug trafficking activity. [ 40 ] After a careful review of the evidence and jurisprudence, I conclude there were clearly sufficient objective criteria for the individual officers who arrested Mr. Mohammadian, to have reasonable and probable grounds to believe he was involved in street level drug trafficking. I arrive at this conclusion after assessing objectively discernable facts - whether inculpatory, exculpatory or neutral.

In doing so I also take into account the individual and collective experience of the officers involved. [ 41 ] The Court must base its decision on the totality of the evidence. The facts relied on by the police officers were objectively relevant and the conclusions and inferences they drew therefrom were logically probative. [ 42 ] The Court finds there was no breach of Mr.

Mohammadian’s Charter rights and his initial warrantless arrest in the 7-11 parking lot was lawful. [ 43 ] Having found it was a lawful arrest the Court is satisfied that in this scenario, the search of the accused and his vehicle conducted incident to arrest was also lawful. As a result, there was no breach of his Charter rights. All the evidence given by the police officers and items gathered therefrom will be admitted into evidence on the trial proper. [ 44 ] The Court has found on the voir dire aspect of these proceedings there were no Charter breaches.

However, in the interests of clarity for the Crown and the accused, it is appropriate to consider, in the alternative, had there been a breach, whether the items found on the accused, incident to arrest should be excluded pursuant to s. 24(2) of the Charter . [ 45 ] In R v Grant , 2009 SCC 32 , the Supreme Court of Canada held the following factors are to be taken into account on a s. 24(2) evidence exclusion and analysis: 1) the seriousness of the Charter infringing conduct; 2) the impact on the Charter protected interests of the accused; and 3) society’s interest in having criminal matters adjudicated on the merits. [ 46 ] The task continues to be the balancing of individual and societal interest with a view to determining whether admission of the

evidence would bring the administration of justice into disrepute. [ 47 ] Following the R v Grant analysis the Court would not have excluded the evidence seized from Mr.

Mohammadian. [ 48 ] At this stage, the Court must now turn to the issue of whether the Crown has proven possession for the purpose of trafficking and proceeds of crime, beyond a reasonable doubt. [ 49 ] Given the expert’s report filed by the Crown and the expert evidence given by Officer Tryon in the trial proper the Court has no hesitation in finding both of the above matters have been proven beyond a reasonable doubt. [ 50 ] Given the amount of drugs found and the manner of packaging in the accused’s vehicle, the Court is satisfied beyond a reasonable doubt that it was not for personal use but was possession for the purpose of trafficking. [ 51 ] In addition, given the constellation of the total circumstances, the logical inference to be drawn in the absence of any evidence to the contrary, is that the cash found in the possession of Mr.

Mohammadian was derived from the sale of drugs. [ 52 ] The Court finds the accused guilty of the charges set forth in both informations. _______________________ D. A. Lavoie, J