Her Majesty the Queen - v. -, 2011 SKPC 040

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 040 Date: March 4, 2011 Information: 31571696 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lee Andrew Shinkewski Appearing: Alicia Hunter For the Crown Garth Bendig For the Accused JUDGMENT H. M. HARRADENCE, J I. INTRODUCTION [ 1 ] The accused, Lee Andrew Shinkewski, is charged in Information 31571696 with the following offence:

On or about the 10 th day of December, 2009, at or near Prince Albert did unlawfully have in his possession a controlled substance included in

Schedule II, to wit: cannabis marihuana in an amount not exceeding three kilograms, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act . [ 2 ] The Crown elected to proceed on this charge by Indictment. It is within the absolute jurisdiction of this Court. On February 4, 2010, a not guilty plea was entered and defence counsel indicated that a Charter application would be made at the trial to exclude evidence on the basis that it was obtained through an unreasonable search and seizure.

In addition he indicated that there would be an argument alleging that the arrest had been unlawful. [ 3 ] The matter proceeded to trial before me on October 12, 2010. Prior to the trial date the defence filed a Notice, dated September 24, 2010, outlining in greater detail their application pursuant to s. 8, s. 9 and s. 24(2) of the Charter . The defence at the start of the trial orally alleged a breach of s. 10(

b) of the Charter in relation to statements given by the accused. As a result counsel agreed that two voir dires would be held. [ 4 ] The first voir dire focused on the alleged breach of s. 8 and s. 9. In this voir dire the Crown called 7 witnesses and introduced 9 exhibits. The second voir dire focused on the admission of statements by the accused. The statements were made at the roadside and the next day at the police station.

A video recording of the statement taken at the police station was introduced at both voir dires : in the first voir dire the statement was introduced as P9; and on the second voir dire the video recording was introduced as P1. The accused testified on the second voir dire regarding the admissibility of the statement he gave. [ 5 ] There was extensive oral and written argument provided by both counsel in relation to the s. 8 and s. 9 voir dire .

Counsel agreed that the outcome of this voir dire would likely be determinative. [ 6 ] I therefore have chosen to give my decision in relation to the first voir dire which focused on the allegation of a s. 8 and s. 9 breach. [ 7 ] I have had the benefit of a transcript and also the benefit of counsels’ able arguments in considering these issues. II. THE EVIDENCE [ 8 ] Sgt. McDonald was in charge of the investigation that led to the arrest of the accused. He has been a police officer since 1995 and at the time of this investigation was a member of the Joint Forces Unit. Sgt.

McDonald was responsible for directing the actions of the officers involved in this investigation. Sgt. McDonald testified during the voir dire . His evidence was direct and clear. I shall summarize it as follows: 1) He was advised by Cst. Bellefontaine that Cst. Bellefontaine was in receipt of confidential information that the individual living at 398 – 28 th Street West would be receiving a shipment of cocaine and marihuana from Saskatoon at his residence on December 10, 2009. The individual living at this residence was not Mr.

Shinkewski, but rather an individual named Sundara who was the primary target of this investigation. 2) As a result of this confidential information surveillance was set up on the primary target at his place of employment and subsequently at his residence, 398 – 28 th Street West. 3) Surveillance indicated that two vehicles attended at the primary target’s residence. One of these vehicles was registered to an individual in Saskatoon. Surveillance followed this vehicle and it headed in the general direction of Saskatoon. The second vehicle was registered to a resident of Regina.

This vehicle was lost in surveillance.

4) Cst. Bellefontaine commenced drafting a search warrant for the residence of the primary target. 5) The vehicle registered to the Saskatoon resident departed the primary target’s residence at 8:22 p.m. A black Jeep arrived at the residence and parked in the driveway at 8:54 p.m. This black Jeep was at the residence for four minutes. It then departed the residence and headed north on 4 th Avenue West. 6) Surveillance was able to obtain a license plate number for the black Jeep. This vehicle was registered to this accused, Lee Andrew Shinkewski. Sgt.

McDonald was aware of three instances of prior confidential information indicating that this accused was implicated in the sale of marihuana. Importantly these three instances are reviewed with Sgt. McDonald in cross-examination: 1) July 15, 2009, “no information confirmed reliable”; 2) July 31, 2009, “no confirmed reliable information”; and 3) September 24, 2008, limited information confirmed reliable apparently not directly linking the accused to the sale of marihuana. [1] Although Sgt.

McDonald had a recollection that this information existed in the police files, it was not until after the arrest of the accused that he determined the questionable reliability of this information. [2] 7) On the basis of all of the information Sgt. McDonald instructed Cst. Issel, who was part of the surveillance team, to stop the black Jeep and arrest the occupant or occupants. Cst. Issel testified he followed the black Jeep. He did not know who was in the black Jeep but he knew it was headed in the general direction of Mr. Shinkewski’s residence.

He testified that initially he was told to arrest the occupant of the Jeep for possession. 8) Sgt. McDonald testified that at the time he instructed Cst. Issel to stop and arrest the individual operating the black Jeep he believed he had reasonable and probable grounds to arrest, given all the information he possessed at the time, including:

a) The confidential information regarding the primary target;

b) The fact that a vehicle from Saskatoon had attended at the residence of the primary target, which confirmed a portion of the confidential information;

c) The confidential information regarding the past activities of this accused. At the time Sgt. McDonald was unaware of the reliability or lack of reliability of this information;

d) The fact that the black Jeep was registered to this accused;

e) The fact that the vehicle was at the residence of the primary target for only four minutes, this being indicative, to Sgt. McDonald, of a drug transaction. 9) Notably Sgt. McDonald acknowledged that he did not know the following information:

a) He did not know if the accused was operating the black Jeep on that day.

b) He did not know who was operating the vehicle – whether the person was male or female.

c) Apparently the surveillance was set up in such a manner that although the police could say the vehicle was at the residence for four minutes, the surveillance was unable to see whether anyone got out of the vehicle, whether anyone got into the vehicle, or whether anything was delivered to the vehicle.

d) Cst. Chester testified at the voir dire . He was the officer actually conducting the surveillance on the residence of the primary target. He knew this accused as they had attended high school together in Prince Albert. He could say no more than the black Jeep arrived, he saw the license plate and reported it, and he saw the black Jeep leaving the residence four minutes later. Cst. Chester

acknowledged in cross-examination the limited nature of his surveillance of the activities surrounding the black Jeep at the target residence:[3] Q. Okay, so you observed the vehicle that’s registered to Mr. Shinkewski arrive at a certain time? A. That’s correct. Q. You observed the vehicle - - A. Leaving. Q. - - registered to Mr. Shinkewski leaving four minutes later, and you indicated the path of travel? A. That’s correct. Q. Okay, but beyond that, nothing more substantive, other than that specific information? A. That’s correct. 10) It is clear from the evidence of Sgt.

McDonald that, in his mind, who was operating the black Jeep was not relevant. Hisbelief was that he had reasonable and probable grounds to arrest the operator, as he indicated at paragraph 73 and 78 of the transcript incross-examination by Mr. Bendig. 11) Acting on the instructions of Sgt. McDonald Cst. Issel stopped the black Jeep at 21:05. He identified the driver as thisaccused and placed him under arrest for possession of drugs. The driver was in fact this accused, Lee Andrew Shinkewski. 12) After the arrest of Mr. Shinkewski, Cst. Issel proceeded to search the black Jeep.

There was a large dog in the vehicle. WithMr. Shinkewski’s assistance Cst. Issel picked up Mr. Shinkewski’s father, who lived very close to the location of the vehicle stop. Theaccused’s father took custody of the dog. After this Cst. Issel proceeded with his search, which he discussed at page 155 of the transcript in his examination in chief:[4] After the dog was gone, I went up to the vehicle, and - - and looked inside it, and on the floorboard, there was, like, a grocery bag with alarge Ziploc freezer bag, with three other bags inside it. And part of that was sticking out.

And then there was another lone bag, byitself. And I opened that up, and observed what appeared to be marihuana. 13) The accused did make certain statements to Cst. Bear at the roadside without the benefit of having been advised of his legalrights and the next day the accused gave a video taped statement, after having been advised of his legal rights, to Cst. Bellefontaine. III. ANALYSIS [9] My colleague, Her Honour Judge Whelan summarizes the law relating to reasonable grounds in R. v. Gunn, [5] in quoting R. v. Chorney:[6] 42] In R. v. Chorney, 2008 ABPC 206 , [2008] A.J.

No. 794 (PC) [sic], the Court wrote: 47 In R. v. Storrey (S.C.C.), (1990), 53 C.C.C. (3d) 316 Cory J., writing for the Court, observed at p. 324: In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. Onthe other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically they are not requiredto establish a prima facie case for conviction before making the arrest. . . . 49 When measuring the reasonable grounds the officer does not only consider evidence that incriminates the suspect but also evidence

that exonerates the suspect. The officer must take into account all information available which the circumstances reasonably permit.Information which the officer has reason to believe may be unreliable may be disregarded: Chartier v. Att. Gen. (Que.), (S.C.C.), [1979] 2 S.C.R. 474 at p. 499; R. v. Golub (ON C.A.), (1997), 117 C.C.C. (3d) 193 (Ont. C.A.) at para. 21. 50 In R. v. Cutherbertson [sic], 2003 ABPC 83 [sic], [2004] 8 W.W.R. 162 (Alta. Prov.

Ct.) I reviewed the jurisprudencerelating to "reasonable and probable grounds" and concluded at para. 47 [sic]: The grounds must be examined from the viewpoint of the knowledge of the peace officer at the time the demand was made. Subsequentactions are of no consequence, nor are the observations of others. The Court examining the reasonable and probable grounds must focusupon the knowledge and understanding of the peace officer who made the demand. That officer's understanding may be based uponhearsay and even a misperception of the actual evidence.

The Court does not look over the shoulder of the officer to see whether or notthe circumstances understood by the officer are true. The Court must weigh the circumstances as understood by the officer to determinetheir reasonableness and probability. It is an error in law to test individual pieces of evidence; rather, the evidence as a whole must beconsidered in determining whether the facts support a standard of objective reasonableness.

Clearly, the determination is dependent uponthe understanding of the officer in the individual circumstances under litigation. 51 The applicant conceded that the investigating officer subjectively believed he had the grounds to arrest, and read a s. 254(3)demand to Mr. Chorney. The issue to be determined is whether a reasonable person, armed with the knowledge of the officer, wouldconclude that the officer had reasonable grounds to arrest Mr. Chorney or to make a demand from him. [Emphasis added.] [10] In this case Cst. Issel relied upon Sgt. McDonald’s instruction to stop the vehicle and arrest the driver. Cst.

Issel testified in cross-examination as follows:[7] Q. Okay, so you indicated that the individual who was operating the vehicle is arrestable for possession of a controlledsubstance? A. yes. Q. Okay. And that’s based upon what Sergeant McDonald advised you of? A. Yes. Q. You didn’t have any personal information to - - to indicate that - - that that was - - that you had reasonable grounds toarrest? A. No. [11] It is permissible for Cst. Issel to rely upon information from another officer in order to effect an arrest. However, in these circumstances the information received by Cst. Issel appears sparse:[8] Q. Okay.

Okay, so Sergeant McDonald, though, directed you that he is arrestable for possession - - that the - - the driverof that vehicle was arrestable for possession? A. Yes. Q. Okay. And possession of - - did he say specifically? A. I don’t recall. I think it was just possession of a controlled substance. Q. Okay. At this point, you don’t know who the driver is; correct? A. Not positively, no. Q. No. I - - I take it, you had your suspicions as to who it was, based upon who the registered - - who the vehicle was registeredto? A. Correct. And where - - yeah, yes. [12] Cst.

Issel acknowledged that the police had suspicions regarding who was operating the black Jeep he was following. Arguably, Sgt. McDonald possessed reasonable grounds to suspect criminal activity. Although this was not the basis for the detention, Ihave considered it. While Sgt. McDonald did have suspicions, given the paucity of the information available to him and its equivocal nature, applying R. v. Mann,[9] R. v. Kang-Brown[10] and particularly R. v.

Simpson[11], I have concluded that these suspicions were notsufficient to form either the reduced reasonable grounds to suspect criminal activity or to meet the standard of credibly based

probability[12] necessary for reasonable and probable grounds to arrest this accused. As was stated recently by Justice Fish in R. v. Morelli[13]: At its highest, the proposed inference might provoke suspicion in some. And, as a matter of law suspicion is no substitute for reasonableand probable grounds to believe … [13] Sgt. McDonald is definitely of the view that he had more than suspicions, as he states in cross-examination, his belief that he possessed reasonable and probable grounds to arrest:[14] Q.

Okay, so is it fair to say that it - - it didn’t matter who was operating that Jeep then, that person would have been arrested? A. Yes. The vehicle stop would have took place, yes. Q. Okay, the vehicle stop would have - - and the person would have been arrested? A. Yes. … Q. Okay, so you would agree that it would - - then it’s - - it’s you who require the reasonable and probable grounds for that arrest;correct? A. Yes. Q. And you believe based upon this vehicle stopping at the residence for four minutes and departing gave you reasonable andprobable grounds to arrest the occupant of that vehicle? A.

That was one of the factors that I considered, yes. Q. Okay. A. However, there was several others that - - as I have mentioned. [14] As indicated Cst. Issel searched the accused’s vehicle incidental to the arrest of the accused. R. v. Nolet[15] recently confirmedthat a warrantless search must be shown to be reasonable, by the Crown: At the heart of this appeal lies the thorny issue of warrantless searches conducted in conjunction with random roadside stops.

Awarrantless search is presumptively unreasonable and contrary to s. 8 of the Charter, which guarantees to everyone “the right to besecure against unreasonable search or seizure”. In the absence of a warrant, the Crown must establish on a balance of probabilities thatthe search was authorized by law, that the law itself is reasonable, and that the manner in which the search was carried out wasreasonable: R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at p. 278, and R. v. Caslake, (SCC), [1998] 1S.C.R. 51, at para. 10. [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. [16] I appreciate that a roadside stop is not a static event and the Court must carefully analyze the totality of the circumstances:[16] Nevertheless, roadside stops sometimes develop in unpredictable ways. It is necessary for a court to proceed step-by-step through theinteractions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police

stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry. [ 17 ] Once Cst. Issel stopped the accused’s vehicle he was able to confirm the identity of the accused. He proceeded as instructed by Sgt. McDonald to arrest the accused, and the accused was placed in the rear of Cst. Bear’s vehicle. I find that the drugs were not in plain view in the accused’s vehicle. Indeed, Cst. Issel was required to make provision for the accused’s dog, prior to searching the vehicle. The search of the vehicle was on the basis of a search incidental to the arrest.

As indicated vehicle stops are not static events. Although I have found that the vehicle stop was not justified as an investigative detention, I have examined the circumstances to determine whether there is anything that developed subsequent to the detention of the accused which would justify the arrest and the search of the vehicle. I am not satisfied that there was any lawful justification for the arrest or the subsequent search. [ 18 ] I have concluded that the arrest was unlawful and therefore contrary to s. 9 of the Charter .

As a consequence of the unlawful arrest the search of the accused’s vehicle was unreasonable and contrary to s. 8 of the Charter . [17] IV. SECTION 24(2) [ 19 ] The purpose of s. 24(2) was recently stated by Mr. Justice Ball in R. v. Turpin : [18] The purpose of ss. 24(2) of the Charter is to maintain the rule of law and the values underlying the Charter . It is not meant to punish police misconduct or to compensate an accused for violation of his or her rights. The objective of ss. 24(2) is systemic. Its focus is long- term, prospective and societal ( R. v.

Grant 2009 SCC 32 , [2009] 2 S.C.R. 353 (S.C.C.) at paras. 67-70 ). The concern is less with the particular case than on the impact over time of admitting evidence obtained by infringing constitutionally protected rights ( R. v.

Morelli , (supra), at para. 108). [ 20 ] With this purpose in mind I am required to consider three factors: [19] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute .

These concerns, while not precisely tracking the categories of considerations set out in Collins , capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence . [Emphasis added.] 1) Seriousness of the Charter Infringing Conduct [ 21 ] This is not an instance where I have a concern regarding the veracity of the police officers who testified. The honesty of Cst. Issel and Sgt.

McDonald leaves no doubt as to what action they took and what they believed justified that action. [ 22 ] In this particular case the police admitted that they did not know who was driving the vehicle prior to the stop. Nor did they know what to arrest the individual for. These factors are not critical. However, what is of significance in my mind is the unexplained absence of evidence arising from the surveillance of the accused’s vehicle at the critical time during the 4 minutes when it was at the target residence.

In addition I find the dated confidential information was relied on more than it should have been, given the Sergeant’s subsequent determination of its questionable reliability. These factors when viewed cumulatively are aggravating and elevate the seriousness of the infringement. 2) Impact on the Charter Protected Interests of the Accused.

[ 23 ] In Grant the Supreme Court of Canada described this avenue of inquiry as follows: [20] This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however highsounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [ 24 ] I recognize that the accused’s expectation of privacy is reduced given this was a search of a vehicle as opposed to a home or his person. It is significant to me that the police proceeded to arrest and search the vehicle of this accused based only on a suspicion.

This, in my view, tends toward the breach having an intrusive effect on the accused’s rights, rather than a fleeting or technical impact. 3) Society’s interest in Adjudication on the Merits. [ 25 ] This aspect involves a balancing of the interests of truth seeking with the integrity of the justice system. As indicated by the Supreme Court in Grant a valid consideration is the seriousness of the charge.

While in this case the charge of trafficking in marihuana could result in penal consequences for the accused, it is my view, having taken into account the totality of the circumstances, that the public interest in ensuring that the justice system is above reproach is paramount and outweighs the public interest in the adjudication of this individual charge on the merits. 4) Balancing the Three Factors [ 26 ] I agree with the comments of Justice McLellan in R. v. McKenzie : [21] There can be no assumption that the interests of society will always be found to side with inclusion of evidence.

To put it another way while the short term effect of inclusion, especially with a serious crime might be positive, it must be balanced against long term negative effects on society’s opinion on the justice system in failing to exclude evidence which results from state breaches of Charter rights. [ 27 ] The balancing of the three factors is not an exercise in mathematical precision. When I consider the three factors in the context of the circumstances of this case it is my conclusion that the marihuana seized should be excluded pursuant to s. 24(2). V.

CONCLUSION [ 28 ] Therefore, on voir dire number one the evidence of finding the marihuana will be excluded as evidence in this trial pursuant to s. 24(2) of the Charter . ________________________ H. M. Harradence, J