Her Majesty the Queen - v. -, 2016 SKPC 3

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 003 Date: January 8, 2016 Information: 44665397 and 44665396 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jason Stuart Cameron Appearing: Grier, K. For the Crown Buchinski, M For the Accused Decision on Voir Dire B. M. Singer , J Introduction [ 1 ] Mr.

Cameron was charged that on August 29, 2014, that he did unlawfully have in his possession a controlled substance to wit: Cannabis Marijuana in an amount not exceeding three kilograms for the purpose of trafficking, contrary to section 5(2) of The Controlled Drugs and Substances Act and a weapon, to wit: a BB Gun, for a purpose dangerous to the public peace, contrary to

section 88 of the Criminal Code . The trial proceeded on both charges.

[ 2 ] The defence alleged a breach of Mr. Cameron’s rights under sections 8 , 9 and 10(

b) of The Charter of Rights and Freedoms . He filed proper notice and asks, that as a result of those breaches that evidence be excluded pursuant to section 24(2) of the Charter . A voir dire was held to determine if the accused rights were breached and if the evidence should be excluded. Facts [ 3 ] Two police officers, Georget and Hindmarsh were on patrol, travelling west on 22 nd Street in Saskatoon, during the early morning hours of August 29, 2014. They pulled up beside two young men who were driving in a red Oldsmobile.

Upon checking the licence plate and learning that the vehicle was registered to a 20 year old woman, the police officers decided to pull it over and determine if the young driver was properly licensed. The officer had encountered situations in the past where unlicensed drivers registered their vehicles to licensed operators in order to avoid detection for driving. They signalled the operator of the Oldsmobile to pull over and he did. [ 4 ] Constable Georget attended the driver’s side.

The police interaction with the driver and passenger is recorded and the Court had the benefit of listening to the conversation between the occupants of the vehicle and the police. The driver of the vehicle was Mr. Fraser-Wilson, he had a learner’s licence and was 16 years of age. The passenger was the accused and he was just 18 at the time. The officer was satisfied with the boys’ explanation, an explanation the Court heard from the video, that they had dropped off the owner of the vehicle and were proceeding to drop one of the boys at his home.

However, while at the driver’s window the officer saw in an opened purse on the back seat an unopened bottle of beer. He also saw what he thought was vomit on the back seat but later learned it was spilled Chinese food.

In addition he saw a back pack between the legs of the passenger in the front. [ 5 ] The officer concluded, without any further questioning or investigation that he had grounds to charge both the driver and passenger with possession of alcohol as both were minors, and he “arrested” them for that offence under The Alcohol and Gaming Regulations Act [ AGRA ] , required them to exit the vehicle and sit on the curb. Though they were detained and arrested, he did not advise them of their

section 10 (

b) right to consult counsel without delay. He asked if there was any more alcohol in the vehicle, which the boys denied, and then without asking for their permission he searched the vehicle. He did not find any more alcohol. [ 6 ] However, when the police officer returned to the vehicle to collect the one bottle of beer, he was suspicious that there might be some alcohol in the backpack. The officer said in situations such as this, it was his practice to pull the occupants out of the vehicle, and search it for more alcohol. He asserted he is authorized to do this, as it was a search incident to an arrest.

He felt justified in searching the backpack as he was of the opinion that “It was pretty common for 16-18 year olds to carry more than one beer and I thought it would be a normal place where there would be more alcohol...” [ 7 ] The officer found in the back pack 64.8 grams of marijuana, in 3 glass jars, a disassembled BB gun, ammunition for the gun, as well as a CO2 cartridge that powers it, two knives, brass knuckles, scales, and plastic bags. [ 8 ] An Agreed Statement of Facts was filed admitting, among other things, that the backpack seized was in possession of the accused and that he had knowledge and control of all the items in it.

Also admitted was that $595.00 cash was seized from the pants pocket of the accused. Issues [ 9 ] The accused seeks the exclusion of all of the evidence seized from the pack as well as from his person pursuant to Section 24(2) of the Charter . He alleges there was breach of Sections 8 and 9 of the Charter and that the additional breach of this

section 10(

b) rights supports that conclusion. [ 10 ]

Section 9 says that everyone has the right not to be arbitrarily detained or imprisoned. [ 11 ]

Section 8 of the Charter simply states that everyone has the right to be secure against an unreasonable search or

seizure.

Section 10(

b) includes the right, upon arrest or detention, to be informed of one’s right to retain counsel without delay. [12]

Section 149 of AGRA authorizes police officers to arrest individuals that they find committing an offence under thatlegislation and section 115(1)(

b) makes it an offense for a minor (an individual under 19 years of age) to possess or consume alcohol. [13] Section 24(2) provides a method of enforcing the guaranteed rights enshrined in the Charter. When a court concludes thatevidence was obtained in a manner that infringed or denied any Charter right the remedy may be exclusion of that evidence; whenhaving regard to all of the circumstances, the admission of it would bring the administration of justice into disrepute. Analysis

Section 8, 9 and 10(

b) of the Charter [14] An arrest made without authority is unlawful and is arbitrary and contrary to

section 9 of the Charter. The Crown argued thatnot every unlawful arrest is arbitrary. Indeed in R v Duguay, Murphy and Sevigny, (1985) (ON CA), OJ No 2492, theOntario Court of Appeal so held. However, in R v Grant, 2009 SCC 32 , 2009 2 SCR 353, McLauchlin (CJ) and Charron, J. heldotherwise, stating at para 54, that while a lawful detention is not arbitrary within the meaning of

section 9;a detention not authorized bylaw is arbitrary and violates

section 9. [15] The statutory authority to arrest a minor for possession of alcohol comes from

section 149 of the AGRA which specifies “Anyofficer may arrest, without warrant, any person whom he or she finds committing an offence against this Act or the regulations”. This issimilar to section 495(1)(

b) of the Criminal Code, which allows a police officer to arrest “a person whom he finds committing a criminaloffence”. Thus it is necessary to determine if in this situation, the officer found Mr. Cameron committing the offense of being a minor inpossession of alcohol. [16] Carter, J. reviewed the elements of the offence of a minor in possession of alcohol in R v H.(J.P.), 1999 Carswells Sask 97. He determined that the Act does not define possession and that the Court must look to the definition in other sources. He referred to theCriminal Code and common law

interpretations of the concept of “possession” to conclude that possession requires knowledge andcontrol [para 5 and 7]. When a minor is present in a vehicle where there is a bottle of beer, he may be or may not be in possession of thatbeer. Something more has to be ascertained before a police officer can arrest a minor for possession of that alcohol. In this case,circumstantially, the beer was not in the accused’s possession. It was seen by the police officer to be in a purse in the back seat of a carowned by a young female, who had loaned the car to the minors so that one of them could be driven home.

Without further investigationit is difficult to find that the police officer had sufficient information, or reasonable grounds to arrest the accused or to reasonablyconclude that the accused was committing an offence. [17] A useful and recent analysis of reasonable grounds to arrest can be found in R v Shinkewski, 2012 SKCA 63 , 2012SJ 376, Caldwell J. At para 13 where the court was dealing with an arrest in an indictable matter for which there are lightly differentrules : 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: 1(

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

b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities (Mugesera v.Canada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100) or a prima facie case for conviction (R. v. Storrey)before making the arrest; but an arresting officer must act on something more than a "reasonable suspicion" or a hunch (R. v. Morelli,2010 SCC 8, [2010] 1 S.C.R. 253, 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.));

1(

c) an arresting officer must consider all incriminating and exonerating information which the circumstances reasonably permit, butmay disregard information which the officer has reason to believe may be unreliable: R. v. Storrey; 1(

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; R. v. Nguyen, 2010 ABCA 146, 477 A.R. 395; and R. v. Storrey; and 1(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, at para 31; and R. v. Luong, 2010 BCCA 158, 286 B.C.A.C. 53, at para. 19. [18] The officer did not have enough information to constitute reasonable grounds to believe that Mr. Cameron was in possessionof that bottle of beer. Had the police officer determined and explained his reasons for suspecting that Mr. Cameron had known that thebeer was in the back seat, the officer might have had grounds. Here the officer ascertained nothing.

He therefore did not have objectivegrounds to arrest the accused as he did not observe the accused, committing an offence under AGRA. [19] The officer, after he wrongly determined that he could charge both minors, arrested them for the charge. As noted, he had theauthority to arrest anyone he saw committing an offence under AGRA, however, here he did not see the accused committing an offenceand it should be noted, that at some point he must have concluded that he did not have sufficient evidence to charge him with thatoffence, as he never did actually charge Mr.

Cameron with being a minor in possession; he did charge the driver. [20] Thus, the accused in this case has satisfied me that his arrest was arbitrary and therefore contrary to his guaranteed right not tobe arrested arbitrarily. [21] Subsequent to the arrest, the police officer searched the vehicle and Mr. Cameron’s backpack and found the contraband, thesubject of his charges. A search of a person or his property is unreasonable, when incident to arrest if it is founded upon an arbitraryarrest.

In R v Mann, 2004 SCC 52 , [2004] 3 SCR 59 the Court said: Absent law to the contrary, individuals are free to do as they please. By contrast, the police may act only to the extent that they areempowered by law. [22] The officer when searching was looking for more alcohol, as he testified, he was searching incident to the arrest of theaccused. As I have determined he was not authorized to arrest the accused, it would follow that the search of his backpack was notauthorized.

While AGRA authorizes the search with a warrant of a conveyance and bags found within, subsequent to arrest, it onlyallows for a search without a warrant in exigent circumstances. Exigent circumstances did not exist in this case. [23] In addition, the officer decided to search the back pack, initially because he believed that “it was pretty common for 16 or 18year olds to carry more than one beer and I thought it would be a normal place where there would be more alcohol concealed”. It waslittle more than a hunch that led him to the backpack and he searched it without permission.

The Crown, therefore has the burden ofshowing that the search was, on the balance of probabilities, reasonable as this was a warrantless search. R v Caslake, 1998 Can LII 838(SCC), [1998] 1 SCR 51. [24] As stated by Gunn, J., in Santos, (supra) at para 246, “The jurisprudence provides that a search incident to arrest can includethe search of a motor vehicle to uncover evidence of the offence”. However, a search pursuant to an arbitrary arrest is unreasonable[Grant, supra] and this search proceeded past a search of a vehicle to the backpack of the accused.

I have determined that the search thatfollowed the arbitrary arrest was unreasonable and contrary to the guaranteed right to be free from an unreasonable search.

[25] Lastly, the police duty to inform an individual of his or her

section 10(

b) right to retain and instruct counsel is triggered at theoutset of an even less restrictive investigative detention. [R v Suberu, 2009 SCC 33 , 2009 SCJ No 33]. There is no doubt it istriggered upon arrest. No rights or police warning were given, as it was not the custom of the police officer to do so for an arrest of aminor for possession of alcohol. This was a breach of the accused’s rights, but in these circumstances not a serious one as the offence ispunishable with only a fine and would have been brief and temporary while the officer issued a ticket.

Should the Evidence be excluded under Section 24(2) of the Charter? [26] All of these breaches occurred after a lawful stop of the vehicle and the police officer seeing a beer bottle in the back seat.While the breaches are numerous, the officer was acting in good faith. He did not take the situation as seriously as he should have as hewas operating under the view that this was only a situation of some young boys possessing beer. He believed he had the power to do ashe did and I do not believe he was acting with any malice, prejudice, or meanness toward the accused.

Even though the officer’s actionswere cavalier, he did have an honest subjective belief that he could arrest the accused for the charge of being a minor in possession ofalcohol. Further he surmised that if the accused had one beer in his possession, he probably had more in his backpack. [27] What he discovered was 64.8 grams of marijuana, scales, packaging, a disassembled BB gun, ammunition, various otherweapons, and almost $600.00 in cash. Possession of these items resulted in the charges before the court. As the items existed whether theofficer breached Mr. Cameron’s rights or not, they were “real evidence”.

However, their discovery and these charges are a direct resultof the breaches. Without this evidence the Crown has no case. [28] In R v Grant, 2009 SCC 32, the Supreme Court held that evidence ought to be excluded as a result of a Charter violation onlyafter the Court has balanced the effect of admitting the evidence on society’s confidence in the justice system.

This analysis has to haveregard for: (1) the seriousness of the breach of the Charter; (2) the impact of the breach on the interests protected by the Charter of theaccused; and (3) society’s interest in the adjudication of the case on its merits. [29] The position of the applicant is that the seriousness of the Charter-infringing behaviour is high. The officer, whether acting ingood faith or not, gave no thought as to whether he had grounds to charge or arrest Mr. Cameron and he gave no thought as to whether hehad the power to search the vehicle or not.

The applicant suggests this points to a flagrant and blatant disregard for the Charter thatought to be considered in any section 24(2) analysis. [R. v. Buhay, [2003] SCC 30] [30] The position of the Crown is that the conduct of the police was not so serious as to have a negative impact of the rule of lawand risk bringing the administration of justice into disrepute.

She further suggests there was no pattern of violations and disregard for theapplicant’s rights. [31] As McLauchlin, CJ and Charron, J said in Grant (supra, at para 72): The first line of enquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring theadministration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for theadministration of justice, efectively condone state deviation from the rule of law by failing to dissociate themselves from the fruit of thatunlawful conduct.... [at 73] ...the concern of this inquiry is not to punish the police or to deter Charter breaches ... the main concern is topreserve public confidence in the rule of law, and its processes. [32] Thus an analysis of the seriousness of the violation, the gravity of the offending conduct, has to determine where on thespectrum the breach lies.

At one end may be a minor unintended or inadvertent breach and at the other end a willful or reckless disregardof a Charter right. I conclude that it did not occur to the officer that an arrest and the search of the vehicle or the backpack for evidenceof a charge under the AGRA entitled Mr. Cameron to the same Charter rights as an arrest or search under the Criminal Code. In this hewas wrong and his usual practice in these situations was wrong.

Ignorance of Charter standards must not be rewarded or encouraged.[Grant at paragraph 75.] Thus, this is not a minor breach that may be forgiven as being inadvertent or unintended, but it is not the mostserious of breaches.

[ 33 ] The second line of enquiry is the impact of the Charter -protected interests of the accused. The Applicant suggests that a brief arrest and detention may not be the most egregious intrusions on the Charter- protected interests of an individual but breaches which deprive a person of their liberty and privacy are still significant. [ R. v.

Harrison, 2009 SCC 34 ] The Crown disagrees and suggests that a search that does not impact on the Applicant’s bodily integrity or human dignity is at the low end of the spectrum of severity of violations. [ Shinkewski (supra) at paras. 34-35.] In Grant [supra] , the Court stated in paragraph 77, “An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not”.

I agree with the Crown’s view that the intrusion was minimal in this case. [ 34 ] Society generally expects that a criminal allegation will be adjudicated on its merits. Would that function of the criminal trial be better served by the admission of the evidence or by its exclusion? Thus evidence that may be unreliable as a result of the breach would be excluded. It does not always follow that reliable evidence should not be excluded, but this court must balance the interests in determining the truth with the integrity of the system. The evidence located in the backpack is essential to the Crown’s case.

It is reliable and real evidence of a serious crime, but the Court must not forget that ...while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. [ Grant para. 84] That being said, and this being real physical evidence, the evidence is reliable and this consideration tends to weigh in favour of admission. [ 35 ] In the case of R v Harrison , 2009 SCC 34 , the Supreme Court reviewed a case of a search where there was real evidence of crime located and there had been several breaches.

The question they asked was “Did it involve misconduct from which the Court should be concerned to dissociate itself?”[at para. 22]. Ultimately, the Court favoured excluding the evidence as the breaches were “brazen”, “flagrant” and “very serious”, and they agreed, “the officer’s determination to turn up incriminating evidence blinded him to constitutional requirements of reasonable grounds.

While the violations may not have been ‘deliberate’, in the sense of setting out to breach the Charter , they were reckless and showed an insufficient regard for Charter rights.” [ 36 ] In the case before me, the officer was dealing with minors in possession of alcohol; he did not consider the constitutional rights of the accused. At each step he thought he had the authority to proceed to the next, and he may have had that authority if he had reasonable grounds to arrest the accused in the first place. His actions proceeded from that mistake, which was an error.

While not brazen or flagrant, it showed a pattern of behaviour on the part of the officer of indifference to the rights of the accused that would have been of little consequence if he had not stumbled upon the contraband located in the back pack. As I have explained, the arrest was unlawful and even had it been lawful, the search under the AGRA was not authorized. A search under AGRA does not permit a warrantless vehicle search, including bags or receptacles in that vehicle, unless there are exigent circumstances.

The search was unreasonable. [ 37 ] I have determined that on balance, the exclusion of the drugs and the weapon into evidence would not bring the administration of justice into disrepute and its admission, in spite of the Charter breaches, would. [ 38 ] The applicant has met the burden of demonstrating that the admission of the evidence found would bring the administration of justice into disrepute and the application is granted. __________________________ B.M. Singer, J