Her Majesty the Queen - v. -, 2019 SKPC 72

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 72 Date: December 13, 2019 Information: 90154203 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Karrie Alexandra Roberts & Nicole Terese Daigneault Appearing: Mr. Brent Slobodian For the Crown Mr. Brian Pfefferle For Ms. Roberts Mr. Jock Kriegler For Ms. Daigneault DECISION ON VOIR DIRE H.M. HARRADENCE , J [ 1 ] On May 24, 2017, a vehicle driven by Nicole Daigneault (Daigneault) was stopped by Cst. Ogieglo and Cst. Walker.

There was one passenger, Karrie Roberts (Roberts). After the stop the two females were immediately arrested. The stop and the arrest were at the direction of Cpl. Knodel (Knodel). He had confidential information from Sgt. Dunn, indicating that there was cocaine in the vehicle. [ 2 ] No cocaine was found in the vehicle. Daigneault and Roberts were taken to the Waskesiu RCMP detachment. Knodel made the decision that both females should be strip searched. In the process of the strip search, Roberts surrendered a package containing 28 grams of cocaine.

Roberts and Daigneault were transported to the Hospital in Prince Albert where further searches, including x-rays,

were performed by medical personnel to determine whether any further cocaine was in the body of either female. None was found. [ 3 ] As a result of the seizure from Roberts, she and Daigneault were charged with possession of cocaine for the purposes of trafficking. They elected to be tried by this Court and pled not guilty. [ 4 ] In a lengthy Charter Notice, Daigneault and Roberts alleged that their rights contained in s. 7, 8, 9, 10(

a) and 10(

b) were violated by their arrest and subsequent searches. They seek exclusion of the cocaine pursuant to s. 24(2) of the Charter . By agreement, the evidence was heard in a voir dire . THE EVIDENCE [ 5 ] The Crown called five witnesses, including an expert in cocaine trafficking. The defence did not call any evidence. The lead officer, who made the decision to stop the vehicle, arrest and search the occupants, was Knodel. [ 6 ] At the voir dire , on September 13, 2019, Knodel testified he was a member of the Combined Forces Special Enforcement Unit working primarily in the Prince Albert area.

He had been a police officer for 14 years. He said he had been involved in 45 major drug investigations, and over 100 street level drug investigations, 80% of which involved vehicle stops. He estimated that he had dealt with 25 confidential informants over the course of his career. His belief is that informants are the “bread and butter” of drug enforcement (trial transcript pages 6 & 26). [ 7 ] Knodel testified that in the spring of 2017 he was involved in an investigation into drugs and gangs in La Ronge. This investigation included a number of officers from La Ronge and Prince Albert.

Grant McKenzie was a target of this investigation. McKenzie was believed to be a member of the Kings street gang in La Ronge. His girlfriend was Daigneault. (P-1 – excerpt of Lucille target book.) She was known to drive a black 4-door Grand Prix. [ 8 ] On May 20, 2017, Knodel received some confidential source information from Sgt. Dunn. Knodel could not recall the specifics of that information and made no note of what happened on May 20, 2017. He could not recall where the information came from: “I have no notes of what happened on May 20, that was simply recollection.

So I can’t recall exactly where the information came from, but we did have some source information that she was purchasing drugs again.” (trial transcript page 39) Knodel says that on May 20, 2017, officers saw Daigneault go to a residence of a known drug trafficker in Prince Albert. He says on May 21, 2017, he instructed Waskesiu officers to be on the lookout for Daigneault’s vehicle on the highway back to La Ronge. Cst. Ogieglo says that she made extensive patrols but did not see the vehicle.

Knodel agreed in cross-examination that on May 20, 2017, he did not possess grounds to arrest Daigneault. [ 9 ] On May 24, 2017, as a result of information he received from Sgt. Dunn, Knodel believed he had grounds to arrest: Sergeant Dunn advised me that he had received confidential information that Nicole Daigneault was travelling from Prince Albert to La Ronge, she would be in possession of a large amount of cocaine, she would be riding with Grant McKenzie and she’d be driving a black, four-door car. (trial transcript pages 11-12) [ 10 ] Mr.

Slobodian, Crown counsel, asked Knodel to specify his grounds: So just knowing the history of Nicole Daigneault and that she was a drug trafficker in La Ronge as well as what I observed on May 20th, several days before that, and what’s most importantly in the new information received from Sergeant Dunn that Nicole Daigneault was on her way back to La Ronge with cocaine and then that, of course, would be corroborated if we actually found her travelling from PA to La Ronge, which we did. (trial transcript page 12) [ 11 ] Knodel believed Grant McKenzie would be in the vehicle with Daigneault.

He believed that McKenzie could be violent, and officers should use extreme caution in the vehicle stop. [ 12 ] Knodel gave the blanket direction to Cst. Ogieglo that all occupants of the vehicle were to be arrested. His belief was that the occupants of the vehicle, whether their identity was known or not would be involved in the drug trade:

In my -- in my experience, anybody in that vehicle would have knowledge of the drug trafficking activities for her to drive 1 to Prince Albert and back to La Ronge. Any person -- and at that point I was expecting it to be Grant McKenzie, but my direction to them was to arrest anybody in that vehicle, because, in my experience, anybody who would have been in that vehicle would have knowledge and possibly be assisting her with the drug trafficking or the concealment of drugs. (trial transcript pages 12-13. See also page 33, lines 5 – 12.) [ 13 ] Cst.

Ogieglo testified that on May 24, 2017, at 8:55 p.m. she received a call from Knodel. She was given the year, model and licence plate of a vehicle (2002 black Grand Prix 405 KNA). Also, Cst. Ogieglo was told the vehicle would be travelling northbound on Highway 2. Cst. Ogieglo and Cst. Walker formulated a plan to stop the vehicle and arrest the occupants. This plan took measures to ensure officer safety as she says there was information that there was a handgun and possibly a well-known gang member in the vehicle. (trial transcript pages 44 & 62) [ 14 ] The plan was that Cst. Ogieglo and Cst.

Walker would follow the vehicle north until officers coming from La Ronge met them. Cst. Ogieglo and Walker spotted the vehicle and began to follow it, but the plan changed when the Grand Prix unexpectedly stopped on the highway. At that point, Cst. Walker and Ogieglo, who were travelling in separate police vehicles, immediately stopped and proceeded to arrest the occupants of the Grand Prix. Grant McKenzie was not in the vehicle nor was there a handgun found. [ 15 ] In cross-examination by Mr. Pfefferle, Cst. Ogieglo was clear as to the instructions she received from Knodel: Q Thank you.

Now, your -- your notes make it very clear, and -- and I take it you’d agree with me your memory as well, that you were instructed to immediately arrest the driver and all occupants for a specific offence, that being possession for the purpose of cocaine [sic], correct? A Correct. Q Very specific instructions -- A Yes. Q -- right? A Yeah. Q And you, of course, are relying on another officer’s information. You have to trust -- you’re following orders, right? A Yes. Q The order that you received was to arrest not only Ms. Daigneault, but all occupants, right? A Correct. (trial transcript pages 63-64) [ 16 ] Cst.

Ogieglo testified that she arrested the passenger, Roberts. At that point neither Cst. Ogieglo nor any member of the investigative team, including Knodel, had any information about Roberts. The police did not know who she was. [ 17 ] Cst. Ogieglo agreed that there was nothing in the driving of the vehicle or in the actions of either of the female occupants that contributed to the reasons for the arrest. (trial transcript pages 62 & 66) [ 18 ] Cst. Walker testified that at 9:25 p.m. he arrested the driver of the Grand Prix, Daigneault: Q All right. And so what was your intention at that point?

A So my intention at that point was then to arrest both occupants of the vehicle. Constable Ogieglo -- she pulled up behind me. She then came up to my vehicle on the driver hand side. I exited my vehicle. Constable Ogieglo and I approached this Grand Am -- or Grand Prix,

sorry. I went to the driver’s side and Constable Ogieglo went to the passenger’s side. Q All right. And who did you find in the driver seat? A So I approached the driver side window and I spoke with the driver, who I identified as a female driver. I believe I asked her for her licence. She handed me her Saskatchewan driver's licence and it was -- Nicole Daigneault was the name on the licence and I confirmed the person sitting in the driver’s seat was the person on this licence, Ms. -- Ms. Daigneault. Q All right. And what did you say to her? A I then asked her to exit the vehicle.

She was under arrest for possession for the purpose of trafficking. She was compliant. She exited out of the vehicle. She was handcuffed on the back. We did a cursory search on her for any weapons, nothing was located on her, then she was then placed in the back seat of my police vehicle. Q All right. This cursory search, was that done by yourself? A No, it was done by Constable Ogieglo. (trial transcript page 87) [ 19 ] At 9:33 p.m. Cst. Walker read Daigneault her Charter rights. She replied that she wished to call a private lawyer. Cst.

Walker intended to allow her to make a call at the detachment, but at the scene he proceeded to question her about the contents of the vehicle and her purse. (trial transcript pages 96 – 98) [ 20 ] No cocaine was found after a search of the vehicle or the two females. A cell phone, some white powder determined not to be cocaine by Walker and some cash was seized at the roadside. Both Daigneault and Roberts were taken to the Waskesiu Detachment. Knodel ordered a strip search be performed by Cst. Ogieglo.

Knodel explained the basis for this search as follows: So at that point I knew no drugs had been found, so in my experience and with what we knew about the confidential informant information I believed that it was reasonable and likely that those drugs were concealed in a body cavity in one of the two females that were arrested. Both those females were put into the cells and the water was turned off in order to prevent destruction of evidence. So one of the priorities when you arrest somebody is to give them opportunity to contact counsel as soon as possible.

Unfortunately I couldn’t do that prior to a proper search, to prevent destruction of evidence, so at that point I spoke with Constable Ogieglo, who’s a female member out of Waskesiu/Montreal Lake. I asked her to do a private search of the two females and that I suspected they had drugs hidden in their body cavities… So that was based off of my experience and not finding the drugs in the car.

Had we found drugs in the car, we would not have proceeded with that private search, but not finding any drugs in that vehicle after the cursory search – it was my opinion that, based on my experience, those drugs would most likely be in one of the body cavities of those two females… I had no information that the drugs were going to be hidden inside of a body cavity. I didn’t know that.

That’s based -- that was based off of my experience and throughout the course of my career we’ve had several instances where drugs have been found in body cavities. (trial transcript pages 13-16) [ 21 ] The strip search was conducted by Cst. Ogieglo. Nothing was found when Daigneault was searched. Roberts produced a bag of cocaine from a body cavity prior to Cst. Ogieglo starting the search of her. It is agreed that this bag contained 28 grams of cocaine. (trial transcript pages 49 – 50) [ 22 ] As part of the strip search, Knodel made the decision to suspend the right to counsel of both Daigneault and Roberts.

In cross- examination he explained that this decision was to prevent the destruction of evidence: A That's correct, because, of course, as we all know, when you allow somebody to contact counsel they’re put in private -- in a private room, so it would be so easy just to -- if they have a bag of cocaine in their -- in their body cavity, they can take it out, open it up and throw it throughout the room or -- just distribute it throughout the room into the carpet and it would be gone. There would be no evidence left.

Q Was there -- in terms of the phone room that they’re -- they’re located in in Waskesiu -- there’s a small window to the counsel room, isthere not? A I don't recall. I think there might have been, but I don’t recall for sure. (trial transcript page 28) [23] After the strip search at 10:59 p.m., both females were given the opportunity to call counsel. Daigneault spoke to Legal Aid. (trial transcript pages 29 and 36 – 38) [24] Once the cocaine was seized, Knodel believes he directed both females be transported to hospital in Prince Albert for furthermedical procedures.

He explained that he had a dual purpose for making this decision – the health and safety of the accused and tosearch for evidence: Q And the benefit to using an x-ray would be that you could scan internally in the body to see if there was anything that would stick outon the x-ray that depicted maybe further drugs or anything being stashed; is that right? A Yeah. And that point I become concerned for their -- for their health safety, because if cocaine in a baggie -- now that we had onebaggie of cocaine -- if a bag of cocaine breaks open inside a body cavity and it’s, like, ounce level, like this one was – Q M-hm.

A -- that’s going to be almost immediate death, so at that point I had an obligation -- obviously I was interested in -- in -- if there was anymore evidence, because we expected there to be more -- Q M-hm. A -- but the main priority of that was to make sure that their health and safety was not compromised. (trial transcript page 31) ANALYSIS [25] Confidential source information is essential to the detection, investigation and prosecution of drug and other criminalactivity. Cpl. Knodel testified to it being the “bread and butter” of drug investigations.

Courts have consistently recognized theimportance of source information and have enforced a near absolute privilege for these informers. (R v Barros, 2011 SCC 51, at paras 1and 30) [26] Daigneault and Roberts were arrested without a warrant. An arrest of this nature pursuant to s. 495(1)(

a) of the CriminalCode must be based on a subjective belief which is objectively reasonable. Justice Leurer of the Saskatchewan Court of Appeal recentlyreferred to the requirements of a valid arrest as enumerated in R v Storrey, (SCC), [1990] 1 SCR 241 (see R v Dawad,2019 SKCA 125, at para 44 [Dawad]). A helpful

summary of the parameters of reasonable grounds is provided by Justice Caldwell in Rv Shinkewski, 2012 SKCA 63, at para 13 [Shinkewski]. [27] Daigneault and Roberts were both searched incidental to their warrantless arrest. The Crown is required to show on a balanceof probabilities that the arrest and subsequent search was reasonable: “a warrantless search is prima facie unreasonable and the Crownbears the onus of demonstrating on a balance of probabilities the search was reasonable”. (R v Shinkewski, at para 9.

See also R vCollins, (SCC), [1987] 1 SCR 265, at paras 22-23 and R v Nolet, 2010 SCC 24, at para 21 [Nolet]) [28] When the authority to arrest is challenged, the Crown must provide an evidentiary foundation. The seminal case involvingsource information is R v Debot, (SCC), [1989] 2 SCR 1140 [Debot]. Justice Wilson illuminates three concerns whichare to be assessed cumulatively in determining whether the Crown has satisfied the requirements of reasonable grounds: 1.) was the information predicting the commission of a criminal offence compelling;

2.) was the tip credible; and 3.) was the information corroborated by police information prior to making the decision to search/arrest. ( R v Debot , at p 1168. See also R v Shinkewski , at p 22, R v Pavlik , 2019 SKCA 107 , at para 22 [ Pavlik ] and R v Dawad , at para 46 .) [ 29 ] Cpl. Knodel’s decision to arrest culminates on May 24, 2017, with receipt of the confidential information from Sgt. Dunn. He had other information regarding Daigneault, as will be discussed below, but his evidence is clear that as of May 20, 2017, he did not have the subjective belief that Daigneault was arrestable.

The information he received on May 24, 2017, tipped the balance in his mind. This information was brief. (See above, at paras 9 – 10) [ 30 ] The Crown says that Cpl. Knodel’s experience is relevant when determining whether there was an objective basis to arrest. (trial transcript page 7, lines 15 – 18). I agree. Cpl. Knodel says that he relied on Sgt. Dunn’s experience and used his own experience to formulate grounds for the arrest. (Trial transcript page 12, line 9 – 15.) Cpl.

Knodel does have drug investigation experience which must be considered in an assessment of his grounds. (See R v MacKenzie , 2013 SCC 50 , 423 Sask R 185, at para 62 ; R v Luong , 2010 BCCA 158 , at para 19 ; and Nolet , at para 48 ) [ 31 ] The Crown argues (at paras 50 – 54 of the Crown brief) that Cpl. Knodel’s experience, including his knowledge of Daigneault’s reputation, contributes to the source information such that when viewed as a whole there is an objectively reasonable basis to arrest both females.

The totality of the evidence must be examined to determine whether it satisfies the requirement for reasonable grounds. This includes Ms. Daigneault’s reputation as known to the police, other investigative information, including P-1, and the source information from May 20, 2017, as well as the information from Sgt. Dunn on May 24, 2017. The focus of this examination must be the three criteria articulated in Debot .

Justice Wilson agrees with the Ontario Court of Appeal that it is the totality of the evidence that must meet the standard of reasonableness and the evidence should not be compartmentalized: “weakness in one area may, to some extent, be compensated by strengths in the other two.” ( Debot , at p 1168.) [ 32 ] There is significant detail which is missing from the information provided by Sgt.

Dunn on May 24, 2017: 1.) Is the information from the same source who provided the information on May 20? 2.) What is the basis for the information? 3.) When was the information obtained? 4.) Have the police used this source previously? 5.) Was the source reliable in the past? [ 33 ] Sgt. Dunn did not testify. The Crown is not required to call him as a witness but without his evidence I have no means of assessing his experience other than the general statement provided by Cpl. Knodel. More significantly, I have no evidence on which to assess the veracity or reliability of the source.

Was the source an “untried informant” or an anonymous tip? In these circumstances my ability to assess the credibility of the tip is severely limited by the lack of information regarding the source. ( R v Debot , at p. 1169, R v Dawad , at paras 50 – 52 and R v Pavlik , at paras 26 – 28 & 30 ) [ 34 ] It is important to reiterate that the assessment of the source information must be made from the perspective of Cpl. Knodel. He has considerable experience. He possessed some background and investigational information regarding Daigneault which is of unknown origin.

He was reacting to an ongoing, dynamic drug investigation. An important caveat to this assessment of the evidence is to be mindful that this experience and contextual information must not usurp the function of the reviewing Court.

Madam Justice Neilson in R v Payette , 2010 BCCA 392 , 259 CCC (3d) 178, at para 25 , expresses this caveat in the following manner: While I appreciate the objective reasonableness requirement must be viewed in the light of the investigating officer’s background and experience, deference to an officer’s intuition must not render the objective element of the inquiry meaningless. [ 35 ] There is some corroboration of the information provided by Sgt. Dunn on May 24, 2017. The black Grand Prix is headed north to La Ronge. Daigneault is driving the vehicle.

On a significant point, the observations of the vehicle contradict the source information. Grant McKenzie is not in the vehicle. Unexpectedly, another female, Roberts, is in the vehicle. The police do not know Roberts. [ 36 ] A review of the May 24 source information raises concerns. The information is brief and conclusory. The basis for the

information, whether it is first or second-hand hearsay is unknown. The credibility and reliability of the source is unknown. The extent to which the source information is corroborated is limited and contradicted on a material point. When I consider the totality of the evidence adduced in this voir dire , in light of the three-pronged Debot test, I conclude that the source information falls short of compelling. The evidence does show a need for further investigation, but this evidence alone does not justify an immediate arrest of all of the occupants of the vehicle. [ 37 ] The stopping of the vehicle by Cst.

Ogieglo and Cst. Walker was for the sole purpose of arresting the occupants.

I find the warrantless arrest of Roberts and Daigneault to be unlawful and arbitrary within the meaning of s. 9 of the Charter . ( R v Perello , 2005 SKCA 8 , 257 Sask R 46, at paras 40 – 41 .) For the foregoing reasons I find the arrest in this case was not lawful and therefore the searches cannot be justified by the arrest. ( R v Smith , 2019 SKCA 126 , at para 19 ; R v Fearon , 2014 SCC 77 , 318 CCC (3d) 182, at para 27 ; and R v Mann , 2004 SCC 52 , 185 CCC (3d) 308, at para 37 .) I find the searches of Daigneault and Roberts were unreasonable and violated s. 8 of the Charter . [ 38 ] As part of the searches, Cpl.

Knodel directed Cst. Ogieglo strip search both females. Cst. Ogieglo performed the strip search in a method that respected the privacy of Roberts and Daigneault. The concern with these searches is the basis for them. As indicated in R v Golden , 2001 SCC 83 , 159 CCC (3d) 449 [ Golden ] there must exist reasonable grounds to justify this type of search. Cpl.

Knodel’s grounds for this search are concisely stated in his examination in-chief (see para 20 above). [ 39 ] At paragraph 71 of the Crown brief it is argued that the strip search is justified by the following four factors: It is submitted that the following factors are relevant in assessing whether there were sufficient grounds to justify the strip search conducted: 1. Cpl. Knodel’s extensive experience with investigations involving drugs being hidden or concealed, particularly in respect to those circumstances where a vehicle is being employed. 2.

A pat down search incidental to the arrest of the accused did not result in any drugs being found. 3. Given the quantities expected, Cpl. Knodel directed members to search those areas of the vehicle most often used to conceal drugs at the scene of the vehicle stop. No drugs were discovered as a result of that search. 4. Although no drugs were seized roadside, a cutting agent was discovered in the vehicle. Cpl.

Knodel testified that this discovery was indicia of drug trafficking. [ 40 ] Not only are these factors premised on an unlawful arrest, it is my conclusion that, taken as a whole, they raise suspicion rather than a credibly-based probability justifying a strip search. As Mr. Pfefferle said during oral argument, the basis for the strip search appears to be that no drugs were located in the vehicle.

In these circumstances, this does not amount to reasonable grounds. [ 41 ] After the seizure of the cocaine from Roberts, both females were taken to the hospital (a distance of 50 minutes – Trial transcript at page 77, line 8). Cpl. Knodel testified that he had a dual purpose in ordering this further investigative step: to ensure the safety of the suspects and to discover further evidence. “Multiple purposes cannot validate an unlawful search” ( Nolet , at para 39 ). In this regard there is a suggestion that these procedures were carried out with consent of Daigneault and Roberts.

There is no evidence to suggest a valid consent was obtained. ( R v Arnault , 2019 SKCA 109 , at para 41 .) [ 42 ] I am satisfied that the strip search of both females and their further detention together with the invasive searches conducted at the hospital were unjustified and continued violations of their s. 8 and 9 rights. [ 43 ] In relation to the right of Daigneault and Roberts to contact legal counsel without delay, I note the following. It is clear that the questioning by Cst. Walker of Daigneault after she had asserted her right to counsel at the roadside was inappropriate.

The Crown is not seeking to adduce the results of this questioning at trial. (Crown brief, at para 75)

[ 44 ] Of greater significance is Cpl. Knodel’s decision to suspend the right to counsel of both suspects until after the completion of the strip search. The suspension was brief – approximately 15 minutes. The reason for it is suspect – contact with counsel in private would lead to a potential destruction of evidence (trial transcript page 28, lines 10 – 15). This is an argument which is pursued by the Crown (Crown brief, para 79). Cpl. Knodel cannot remember whether there is a window in the telephone room (trial transcript page 28, at lines 17-19) but Cst.

Ogieglo confirms the existence of a window specifically to monitor lawyer calls (trial transcript page 70, line 41 – page 71, line 3). [ 45 ] Justice Barrington-Foote recognized the importance of the right to counsel being implemented without delay. This is particularly significant in this context where the police were preparing to strip search both individuals: [81] The s. 10(

b) right is not the right to counsel. It is the right to counsel without delay. Time matters. That is so regardless of whether the accused is treated “respectfully” and whether any evidence is elicited before the right to counsel is implemented. In my view, this breach had a serious impact on the interests protected by s. 10(b). ( R v Moyles , 2019 SKCA 72 .) [ 46 ] Despite Cpl.

Knodel’s evidence that “I always give lots of opportunity for the person to cooperate ahead of a strip search and that would be a last resort,” it appears that his decisions were motivated by a sense of urgency which is not justified by the circumstances. He arrived at the detachment at 10:45 p.m. and by 10:59 p.m. both strip searches were complete. (Trial transcript, at pages 9 and 29.) I am unable to accept his explanation that he delayed providing Daigneault and Roberts with an opportunity to contact counsel in order to prevent the destruction of evidence.

I reach this conclusion particularly in light of the evidence of Cst. Ogieglo regarding the observation window in the door of the telephone room. I have concluded that this delay resulted in a violation of the accused’s s. 10(

b) rights. SECTION 24(2) [ 47 ] Having found the searches violate the rights of Daigneault and Roberts, I must conduct a separate analysis to determine whether the admission of the cocaine would bring the administration of justice into disrepute. ( R v Le , 2019 SCC 34 , 375 CCC (3d) 431, at para 139 ) [ 48 ] The Grant analysis involves a consideration of three factors: 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 the adjudication of the case on its merits. a.

The Seriousness of the Charter Infringing Conduct [ 49 ] Justice Caldwell in Shinkewski indicates that the breach should be assessed on a continuum: [32] … For this reason, it is important that a trial judge take steps to ascertain and impose a definitive degree of “fault” on the state for its misconduct, whether that is labelled “inadvertent”, “negligent”, “reckless”, “wilfully-blind”, “flagrant”, or “blatant disregard”. As Doherty J.A. noted in R. v.

Kitaitchik (at para. 41), “[w]hat is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.” [ 50 ] Cpl. Knodel’s actions demonstrates tunnel vision and a willful blindness regarding the rights of the two female suspects. His evidence demonstrated to me a focus on arresting and searching these individuals rather than a willingness to consider all incriminating and exonerating evidence. ( Shinkewski , at para 13 (c).) [ 51 ] As I have indicated, the corroborative evidence is limited and contradictory.

The most glaring illustration is that Grant McKenzie was not in the vehicle as predicted by the source of the information. Instead of reevaluating his directions, Cpl. Knodel is unabated in his determination to effect the arrest and searches. [ 52 ] In this case I have found that the police violated multiple rights of the accused. The seriousness of these infringements is compounded by the Crown’s failure to call Sgt. Dunn ( R v Pavlik , at para 63 ):

While I agree the arresting officers in this case were entitled to rely on another officer’s assessment of the tipster’s credibility, the Court is not so entitled. An individual’s Charter right to be free from arbitrary detention and the Court’s role under our Constitution require that the Court must have the opportunity to critically evaluate the objective reasonableness of the state’s grounds for arrest without a warrant.

As Wilson J. made clear in R v Debot , the Crown may overcome frailties in the evidence supporting an informant’s credibility with evidence of a compelling tip and corroboration of the tip, but the credibility of the tipster nonetheless remains relevant and material to the overall assessment of the grounds for arrest. It will not be necessary to call the police officer who handled the tip in every case; however, the failure to do so in this case isolated the claim of tipster credibility from the Court’s review, thereby rendering null one of the three questions in R v Debot .

While there may have been legitimate reasons for this circumstance (e.g., concerns about maintaining informant confidentiality, etc.), the Crown has not made them known to the Court. [ 53 ] In these circumstances I assess the seriousness of the state conduct as high. It is clear to me that Cpl. Knodel had the experience and training to recognize the shortcomings of the source information; however, he was blinded by his desire to make an arrest and seizure. b. The Effect of the Breaches on Roberts and Daigneault [ 54 ] Roberts was unknown to the police before May 24, 2017.

Daigneault was known as the girlfriend of McKenzie, an alleged violent drug dealer. Both were treated the same: arrested, suspension of rights to counsel, searched, strip searched and then transported to hospital where further searches were performed, including x-rays. No other conclusion can be reached than the effect of the breaches for both Daigneault and Roberts was significant.

In Golden , at para 89 , Justices Iacobucci and Arbour recognized the acute interference with privacy resulting from a strip search: The importance of preventing unjustified searches before they occur is particularly acute in the context of strip searches, which involve a significant and very direct interference with personal privacy. Furthermore, strip searches can be humiliating, embarrassing and degrading for those who are subject to them, and any post facto remedies for unjustified strip searches cannot erase the arrestee’s experience of being strip searched.

Thus, the need to prevent unjustified searches before they occur is more acute in the case of strip searches than it is in the context of less intrusive personal searches, such as pat or frisk searches. c. Society’s Interest in the Adjudication of the Case on its Merits [ 55 ] Cocaine is a hard drug. The evidence suggests that the trafficking in cocaine was a particular problem in La Ronge in the spring of 2017. This factor involves the balancing of the Charter principles with society’s interest in removing hard drugs from the streets. It is my assessment that this case is not close to the line. Cpl.

Knodel’s actions and directions violated the rights of these two female suspects. The evidence presented in this voir dire leads me to conclude that this resulted in both blatant and repeated violations. Given these findings, I do not think that society would tolerate such police conduct for the sake of this prosecution. d. Balancing [ 56 ] In my view all three Grant factors point towards the admission of the cocaine in this case bringing the administration of justice into disrepute. Therefore, I order the cocaine seized from Roberts be excluded from evidence at this trial.

Dated this 13 th day of December 2019 at the City of Prince Albert, in the Province of Saskatchewan. ____________________________ H.M. Harradence, J