Shea Joseph Slaunwhite Applicant v. Her Majesty the Queen Judge: The Honourable Justice Patrick J. Murray, 2019 NSSC 407

SUPREME COURT OF Nova Scotia Citation: R. v. Slaunwhite , 2019 NSSC 407 Date: 20190927 Docket: 475348 Registry: Port Hawkesbury Between: Shea Joseph Slaunwhite Applicant v. Her Majesty the Queen Judge: The Honourable Justice Patrick J. Murray Heard: April 8 and May 9, 2019, in Port Hawkesbury, Nova Scotia Written Decision: September 27, 2019 Counsel: Robyn Fougere for the Applicant Wayne MacMillan for Her Majesty the Queen By the Court: Introduction [ 1 ] This is my decision on a Charter Application filed by the Accused, Shea Slaunwhite. The Applicant alleges violations of s.7, 8, 9 and 11(

d) of the Charter . [ 2 ] Mr. Slaunwhite has been committed to stand trial in the Supreme Court. The matter is scheduled for trial before a judge sitting with a jury on November 12, 13 and 14, 2019. [ 3 ] The charter hearing was held on April 8, 2019 in the Supreme Court at the Port Hawkesbury Court House.

Overview [ 4 ] The Applicant, Shea Joseph Slaunwhite, is charged with one count of trafficking Hydromorphone and one count of possession of Hydromorphone for the purpose of trafficking contrary to s. 5(1) and s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c. 19 (“ CDSA ”), respectively. [ 5 ] The charges result from a traffic stop on Highway #19 at the intersection of the Strathlorne Scottsville Road, conducted by Corporal Chatele Eagan, Constable Robert Freer and Constable Trevor Arsenault of the Royal Canadian Mounted Police, Inverness Detachment, on July 21, 2017. [ 6 ] On July 21, 2017, Constable Darren Legere, from the Port Hawkesbury Street Crime Enforcement Unit, received source information that a man by the name of Shea Joseph Slaunwhite was in possession of Hydromorphone pills for the purpose of trafficking.

Source “A” said the Applicant was approximately 30 years old and had a goatee. Source “A” said that the Applicant would be travelling in the Inverness area, in a gold 2008 Chevrolet Impala. [ 7 ] Cst. Legere testified he has known Source “A” for approximately 3 years. Cst. Legere has spoken with Source “A” on the telephone or has met in person on numerous occasions. He stated that Source “A” does not have a criminal record and is not currently charged with Criminal Code offences. Further, Source “A” does not have any occurrences related to public mischief or perjury. [ 8 ] Cst.

Legere testified that Source “A” provided information that is consistent with police investigation in CDSA matters. He stated that Source “A” has provided information where controlled drugs and substances were seized as a result of his information on 13 occasions. Source “A” has been paid a financial award on 10 occasions. [ 9 ] As a result of the information received, Cst. Legere asked the on-duty members of the Port Hawkesbury, Inverness and Weycobah RCMP detachments to be on the lookout for the subject vehicle. [ 10 ] At approximately 20:30 Cst. Arsenault observed a gold Impala approach the traffic stop, Cst.

Arsenault asked the lone male driver for his license. Cst. Arsenault identified the driver as the Applicant by his driver’s license.

[ 11 ] Cst. Arsenault placed the Applicant under arrest for possession for the purpose of trafficking. Cst. Arsenault advised the Applicant of his Charter rights and the police caution. Cst. Arsenault searched the Applicant incidental to his arrest and placed him in the police vehicle. [ 12 ] Cst. Arsenault testified he and the other officer(

s) searched the Applicant’s vehicle and found a pill crusher in the front seat with one pill. Upon opening the trunk, Cst. Arsenault noted a white plastic Bell Aliant bag containing Hydromorphone pills in two sizes, 24 mgs. and 4 mgs. He did not say how many but said he would have counted them as part of the exhibits. Issues [ 13 ] The issues before the Court are as follows:

a) Were the Applicant’s rights under s. 7 & 11(

d) of the Charter violated or infringed?

b) Were the Applicant’s rights under

section 8 & 9 of the Charter breached?

c) Should a Stay of Proceedings be granted pursuant to s. 24(1)?

d) Should the evidence obtained as a result of the search of the Applicant’s person and vehicle be excluded under s. 24(2) of the Charter ? The Applicant’s Position Disclosure Issue – s. 7 & 11(

d) of Charter [ 14 ] The Applicant states that the Crown has failed to meet its disclosure obligations by not providing information that was relied upon to effect the arrest of Mr. Slaunwhite on the date of the alleged offence. Past Conversations [ 15 ] Firstly, the Applicant argues that Cst. Legere has conversations with Source “A” prior to July 21, 2017. However, the officer has no specific recollection or notes in relation to these past conversations, but admitted that this information formed part of his grounds in determining that Mr.

Slaunwhite was “arrestable”. [ 16 ] The Applicant therefore argues that Cst. Legere failed to preserve the fruits of the investigation by neglecting to record the specifics of conversations he had with Source “A” prior to July 21, 2017 regarding Mr. Slaunwhite. Multiple Sources – Cpl. Kuchta [ 17 ] The Applicant submits there is a further breach by the Crown of its duty to disclose relevant evidence, involving Cpl. Curtis Kuchta, who according to Cst. Legere had been receiving information from other sources in relation to Mr.

Slaunwhite. [ 18 ] Paragraphs 6 – 9 of the Applicants post charter hearing brief states: 6. At the Charter hearing however, Constable Legere testified that Corporal Kuchta had been gathering source information from other sources in relation to Mr. Slaunwhite. He testified he relied on this information in forming his grounds to have Mr. Slaunwhite arrested July 21 st , 2017; however, he testified that he could not recall what information Corporal Kuchta had shared with him. 7.

Constable Legere acknowledged that he prepared disclosure, and he agreed that there was no mention of Corporal Kuchta in the package he prepared to be disclosed to the Defence. 8. The Charter Hearing was the first place at time that the Defence became aware that Corporal Kuchta had any involvement in this file. [ 19 ] The Applicant points to other problem areas in the Crown’s testimony at the hearing. Cst. Legere testified that this information was “stored in his memory”. [ 20 ] The Applicant argues that Cst. Legere attempted to say that Cpl. Kuchta’s sources were reliable, indicating if Cpl.

Kuchta was dealing with them, he likely thought them to be reliable. [ 21 ] The Applicant objected to Cst. Legere presenting evidence on behalf of Cpl. Kuchta who was not called to give evidence. My ruling on this point is contained later in my decision. [ 22 ] The Applicant submits that this lack of information has compromised the Accused’s right to make full answer and defence and his right to a fair trial. [ 23 ] Accordingly, the Applicant argues that there has been a violation of Mr. Slaunwhite’s s. 7 and s. 11(

d) Charter rights and that the appropriate remedy is an Order for a Stay of Proceedings, given the issue of “lost evidence”, as it relates to Source Information received from Source “A” by Cst. Legere prior to July 21, 2017. [ 24 ] The Applicant also asks for a stay of proceedings given the non-disclosure of the involvement of Cpl. Kuchta and the information provided to him, which he shared with Cst. Legere. The Defence argues there has been no disclosure of this information, which would have impacted Mr.

Slaunwhite’s defence. [ 25 ] The Applicant further alleges a breach of s. 8 and 9 of the Charter respectively, claiming that Mr. Slaunwhite was arbitrarily detained without reasonable grounds to effect his arrest, resulting in the search and seizure being unreasonable and thus a violation of

both of these sections. The Crown’s Position [26] The Crown submits that the Applicant’s rights were not violated as a result of this traffic stop. Cst. Arsenault was within hisauthority to arrest the Applicant pursuant to s. 495(1)(

b) of the Criminal Code. The Crown submits that the arrest was lawful and that itdid not violate

section 9 of the Charter. [27] Furthermore, the Crown submits that the search of the Applicant was incidental to his arrest and therefore lawful. His rightsunder

section 8 of the Charter were not violated. [28] The Crown submits that if the Court decides that there was a violation of the Applicant’s rights, the evidence obtained as aresult of the arrest and subsequent search should not be excluded from the proceedings because having regard to all the circumstances,admitting this evidence would not bring the administration of justice into disrepute. [29] There is no dispute as to the Crown’s duty to disclose and preserve relevant evidence in its possession.

However, the Crownrespectfully submits that the issue in this case is not that of the lost evidence or failure to preserve evidence. [30] The Crown disagrees with the Applicant in characterizing Cst. Legere’s Source Debriefing Reports and/or Handler’s Notes as“lost evidence”, while indicating that such information would be protected by informer privilege. [31] Consequently, the Crown submits that there is no breach of the Applicant’s s. 7 and 11(

d) Charter rights and therefore, theApplicant’s request for a stay of proceedings under s. 24(1) should be denied. Onus of Proof [32] The Applicant bears the burden of proving that a breach of sections 7 and 11(

d) occurred, which guarantee an accused a right tomake full answer and defence and a right to a fair trial. [33] Further, the Applicant has the burden of proving he was arbitrarily detained or imprisoned pursuant to

section 9 of the Charter: R v. Suberu, 2009 SCC 33 at paragraph 28. [34] The Applicant has the burden of proving the charter breach in relation to ss. 8, and that it is entitled to the remedies sought,such as a stay of proceedings under s. 24(1). [35] These burdens are on a balance of probabilities. [36] The Applicant also has the burden of establishing, on a balance of probabilities, that excluding the evidence from theproceedings against him under s. 24(2) of the Charter is an appropriate remedy for any breach of his Charter rights: R v.

Collins, (SCC), [1987] 1 SCR 265 at paragraph 30. [37] There are evidentiary burdens which the Crown must also meet. For example, when a warrantless arrest and a warrantlesssearch have been made the Crown has the burden of establishing on a balance of probabilities that there were reasonable grounds tomake an arrest and that the search was reasonable. The Crown says this was a search incident to arrest and therefore, the Crown has theburden to establish that it was valid. Ruling on Objection – April 8, 2019 Charter Hearing [38] Applicant’s counsel objected to evidence of Cst.

Legere given at the charter hearing in relation to conversations he had withCpl. Kuchta who had also received source information separate from Source “A”. [39] The evidence of Cst. Legere as to whether Cpl. Kuchta considered his sources reliable is not admissible because Cst. Legerecannot speak to that issue on Cpl. Kuchta’s behalf. [40] The evidence of Cst. Legere about conversations he had with Cpl. Kuchta in regard to “multiple sources and multiple targets”, isadmissible, because hearsay evidence is generally admissible on a voir dire to determine reasonable grounds for arrest.

Analysis – Sections 7 and 11(d) [41] Cst. Legere testified that he kept notes of all relevant evidence. He appeared to recognize the importance of fulfilling the dutyof disclosure. [42] In regard to past conversations with Source “A” there was nothing he could act on and did not write these down. He testifiedMr. Slaunwhite was known to their units and that this knowledge came from multiple sources, including those with whom Cpl. Kuchtawas the primary handler. They were speaking with multiple sources about multiple targets, said Cst. Legere. [43] Cst.

Legere was adamant however, that the relevant information he received regarding Mr. Slaunwhite, was from Source “A” onJuly 21, 2017. [44] This is affirmed by his evidence that only debriefing reports he had about Mr. Slaunwhite in the source file were those on datein question. [45] I conclude from Cst. Legere’s evidence, that the past conversations he had with Source “A” and those he had with Cpl. Kuchtaprovided background information. That is how Mr. Slaunwhite became known to their units.

Beyond that, the information was“nothing he could act on” and not of sufficient relevance to warrant the preparation of briefing notes.

[46] Cst. Legere had no recollection of those conversations beyond that they concerned Mr. Slaunwhite and others. They weredescribed by him as casual conversations. His evidence was, he recorded all relevant information. Caselaw – Police Notes [47] In R v. AGB, 2011 ABPC 190, the court addressed extensively the issue of police notes, their purpose related to disclosure andother purposes. [48] In R v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, the ruling was that police had a duty to disclose all relevantinformation.

There are several paragraphs in AGB, that discuss the context of police notes, and instances when such notes areunavailable. [49] In AGB the court stated at paragraphs 52 and 53 in relation to the keeping of notes by a police officer: 52. In R. v.

Peterson, 2008 MAQB 127 the court ruled (at paras.73-4): No one should minimize the importance of "careful, accurate, and contemporaneous" note-taking for police officers [see Report of theAttorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (Ontario Ministry of theAttorney General, 1993 at 465, Recommendation No. 26 with respect to disclosure (Chair: The Honourable G.

Arthur Martin)].Nonetheless, it should not be overlooked that the compilation of police notes made at or near the time of a particular incident, is for thepurposes of refreshing a police officer's memory — a memory which, when called upon in court, is expected to provide an accurate andreliable account respecting what was observed and why certain actions may have been taken. Given their important but still limited purpose, these notes ought not to become determinative reference points for judging whether theCrown has met its appropriately high standard for disclosure.

Even if I accept in this regard that the "disclosure requirements afterStinchcombe cannot be thwarted by making less accurate or less comprehensive notes" (see Report of the Attorney General's AdvisoryCommittee on Charge Screening, Disclosure, and Resolution Discussions, supra, at p. 465, Recommendation No. 26), it does notfollow that a failure to make complete notes pursuant to a standard of perfection will generate a fertile ground for claiming an inability tomake full answer and defence.

And further (at para.77): To transform a police officer's notebook into a document requiring everything the court and defence counsel would have ideally liked itto contain, risks imposing an expectation that is not only unrealistic, but also indifferent to the more limited purpose for which policeofficers keep notes. 53. The prosecution’s duty to disclose requires that the accused be provided with all relevant information in the possession of theprosecution.

This includes information recorded in notes made by a police officer in the investigation of charges against the accused.Nevertheless, failure by the police to gather or record information in those notes does not ipso facto violate the duty to disclose. Theaccused’s Charter, ss.7 and 11(

d) rights will only be implicated: (

a) where the accused demonstrates that an omission from police notes(whether mala fide or negligent) prevents her from making full answer and defence to the charges; or (

b) the police have elected not togather or record relevant information in order to evade their duty to disclose. [50] In AGB, the court referred to the case of R. v. Wickstead, (1996), (ON CA), 106 C.C.C. (3d) 385 (Ont. C.A.)in which the Court considered whether the prosecution had failed in its duty to disclose when defence had been supplied only with apolice officer’s incomplete

summary of a witness’s information. The trial judge issued a stay of proceedings noting that the full contentof the witnesses information was “lost” because of the police officers failure to fully record the information provided by that witness. (Paragraph 46) [51] The court in AGB summarized the decision in Wickstead as follows: 47. Goodman J.A. identified the issue for determination in the following terms (at para.40): The most important ground relied upon by the trial judge for ordering a stay of proceedings was the "lost" evidence.

It was referred to as"lost" evidence because it related to statements made by persons to Constable Irwin which in some cases he did not record at all and inother cases he recorded only in part. He did not recall everything that was said by such persons. 48.

The court noted that neither Crown nor defence counsel were able: “ ... to provide this court with any Canadian authority wherein astay was granted for the failure of investigating police officers to record conversations with important witnesses.” In addition, GoodmanJ.A. noted that (at para.44), “There is no evidence to suggest that Constable Irwin [the investigating officer] failed to record, with respectto any of the witnesses interviewed by him, any relevant information other than that disclosed to the defence prior to the commencementof the trial or during the trial proper or on the voir dire and motion for a stay or that he intentionally failed to disclose any information tothe defence for the purpose of prejudicing the respondent's right and ability to make full answer and defence.” 49.

In the end, the appeal court allowed the Crown’s appeal from the judicial stay and ordered a new trial. In doing so, particular notewas made of the fact that the information said to have been ‘lost’ had not compromised the accused’s ability to make full answer anddefence. Decision – s. 7 & 11(d) – Disclosure Issue [52] Turning to the circumstances involving Mr. Slaunwhite, I have some difficulty with the term “lost evidence”, as it applies to thismatter. [53] The evidence of Cst. Legere was that he recorded all relevant evidence. There are aspects of his evidence that call into question

whether there is additional relevant evidence. Here I am referring to his testimony when he was asked whether he corroborated any ofthe information he received from Source “A”. [54] He indicated that similar evidence was received from different sources and this amounted to corroboration in his view. If heconsidered the evidence worthy of corroboration that would suggest there was something material or significant in the information itself. [55] Having considered the evidence of Cst. Legere and Cst.

Arsenault, there is little doubt that the focus of the investigation forthese offences was on the tip received on July 21, 2017, the date of the offences. Cst. Legere testified to this. He did indicate thatinformation stored in his memory contributed to the grounds for arrest, but the weight of the evidence taken in the proper context showsthat the grounds for the arrest rise or fall on the July 21, 2017 tip from Source “A”. [56] In addition, this is not merely a question of non-disclosure of information, it is non-disclosure of information involving aconfidential informant.

I have not been persuaded that the non-disclosure here amounts to a breach when one considers the entirecircumstances. [57] I recognize there has been an admission that this information had some impact overall on the officer’s decision to arrest andthus, goes to the grounds. While it played a part, I would suggest, according to the officers evidence, that it was minimal. [58] In extraordinary circumstances the loss of a document may be so prejudicial to the right to make full answer and defence that itimpairs the Accused’s right to receive a fair trial.

I am not satisfied that such exceptional circumstances exist in this case. (See §18.143 The Law of Evidence in Canada, 4th Ed., Sopinka, Lederman & Bryant; R v. La, (SCC), [1997] 2 S.C.R. 680) [59] In the result, I find that the officers failure to keep notes of each conversation with Source “A” and with conversations with Cpl.Kuchta does not amount to a violation of Mr. Slaunwhite’s s. 7 rights or impede his right to a fair trial under s. 11(

d) in thesecircumstances. Lawful Arrest – s. 9 Charter [60] The police actions here were based on a tip from a source that Cst. Legere had been familiar with for several years. The tipitself contained a fair bit of detail. [61] The key to whether an arrest is lawful, is whether the police had reasonable grounds to make the arrest. (s. 495 of the C.C.C.) [62] In assessing the lawfulness of an arrest there is a two part test.

The arresting officer must have both: 1) a subjective; and 2) anobjective belief that a person is or has committed an offence; in this case the offences of possession for the purpose of trafficking inhydromorphone. [63] It is normally described as a person looking through the lens of the police officer in question, with his or her knowledge andexperience in crime investigation, and in this case related to trafficking in controlled substances. [64] An arrest must have a credible basis that amounts to more than mere suspicion or speculation.

The encounter with the Accusedshould constitute more than mere coincidence when the facts are viewed objectively. [65] In this case, the police were relying on the tip received from Source “A”, who had in the past proven reliable, according to theevidence of Cst. Legere of the RCMP. Information from a single source, can contribute to or form reasonable grounds if sufficient theindicia of reliability is present. Source “A”, according to the officer, had been consulted on a weekly basis and sometimes more than thatover a 3 year period.

Seizure of controlled substances had resulted from Source “A”’s involvement on 13 occasions, and the Source hadreceived compensation on at least 10 occasions. The officer testified the informant has not in the past been charged with perjury ormischief. [66] The officers had the Accused’s full name, a description of his vehicle, the type of controlled substance, the general area inwhich he would be travelling, and that he would be travelling. In addition, the source provided a description of the Accused, and hisapproximate age, 30. [67] In this case, the arrest was made by Cst. Arsenault.

He testified he knew the name, and the description of the vehicle, and thatMr. Slaunwhite, once identified, was arrestable for controlled substance offences. He knew approximately where and when Mr.Slaunwhite would be travelling and thus the check stop was set up by the police, to check vehicle traffic but also to watch for him and hisvehicle. [68] Relying on the information that Cst. Legere provided, Cst. Arsenault arrested the Applicant for possession for the purpose oftrafficking and testified that he informed him of the reason for his arrest. Defence Position on the Arrest of Mr.

Slaunwhite [69] The Applicant submits that Mr. Slaunwhite’s arrest was unlawful; that he was arbitrarily detained; that the search of his vehiclewas unlawful; and that all evidence should be excluded in accordance with the provisions of s. 24(2) of the Charter. [70] Under s. 495 of the Criminal Code, an officer may arrest without a warrant, a person who, on reasonable grounds, he or shebelieves has committed an indictable offence. [71] The Defence also argues that the officer (Cst.

Legere) relied on previous conversations with Source “A”, but had no recollectionof what information was provided, nor when they occurred. [72] Further, the police had no information regarding past conversations, no information regarding the conversations with Cpl.

Kuchta and did not attempt to corroborate the information they did receive. [73] The Defence submits therefore, that the information received was insufficient to create reasonable grounds for Mr. Slaunwhite’sarrest. [74] In R v. MacDonald, 2015 NSSC 297, at para. 27 (citing R v. Loewen, 2011 SCC 21 , 2011 S.C.C. 21), the Defendantframes the issue as follows: If the arrest was unlawful, the detention of Mr. Loewen violates s. 9 of the Charter. In that case, the search cannot have been incidentalto arrest, and hence would violate s. 8 of the Charter. The first question is therefore whether the arrest was unlawful. [75] In MacDonald, Arnold, J., referred to the following

summary taken from R v. Storrey, 1 S.C.R. 241, as to proper grounds forarrest. 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, to be justifiable from an objective point of view. That is to say, a reasonable personplaced in the position of the officer must be to conclude that there were indeed reasonable and probable grounds for arrest. On the otherhand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically they are not required toestablish a prima facie case for conviction before making an arrest. [76] The Applicant’s focus is on the information relied upon by the police, the particulars which have not been disclosed inevidence. There was however, detailed information disclosed in the tip that was relied upon by police. [77] In R v. Wallace, 2016 NSCA 79, our Court of Appeal discussed in its analysis the existence of a single source and the factorsreferred to in R v. Garofoli (1988), (ON CA), 41 C.C.C. (3d) 97 at paragraphs 40, Beveridge, J.A. stated: 40.

The reference to “…evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probably grounds” islimited to circumstances where the tip is nothing more than a bare conclusionary statement unsupported by details, demonstratedreliability, or other police work. [78] In the present case, while the source of the informer’s knowledge is not known, the degree of detail and indicators of his pastperformance and reliability are known. On the day in question, July 21, 2017 several aspects of the source’s information were confirmedprior to the arrest.

These include the Applicant’s first and last name, the vehicle description, the location and time of his travel. [79] Previous to this, multiple sources were used to confirm the Applicant’s involvement in controlled substances, in casualconversation. On this basis the Defence argued that the Applicant’s

section 7 and 11(

d) Charter rights were violated, which I havepreviously ruled upon herein. The Applicant puts forward a similar argument, with respect to whether the police had sufficientinformation to make a lawful arrest, claiming that they did not. [80] In R v. Palmer, 2018 ONCA 974, the Ont. CA, stressed that it was the totality of the circumstances and not a piece mealanalysis that is required in the assessment of the reliability on the source information and the reasonableness of the arrest. It is wellaccepted that the Debot (R v.

Debot, (SCC), [1989] 2 S.C.R. 1140) factors of credible, compelling and corroboratedinformation are not pre-conditions, and that weakness in one area may be made up for by strength in another. [81] In R v. Sun News Lal, (BCCA), the court dealt with facts bearing some similarly to the present case. Theinformation provided described a unique vehicle within the vicinity of an area believed related to certain crimes, which area wasmentioned in the tip.

The court concluded the information was sufficiently reliable to exclude coincidence as a possibility, and wassufficient to form the basis for reasonable suspicion that the driver might be engaged in criminal activity. [82] In Sun News Lal, the court discussed the degree of detail of a tip, stating that the context may be so detailed that it carries withit a degree of reliability. 31. I add this. Content alone may sometimes carry a degree of reliability.

An example is provided by the Gates case, supra, where aanonymous tipster provided information which was so detailed that it could reasonably be inferred only a close associate of the suspectsmight know of it. When examined in the context of the circumstances such detail might be enough to provide sufficient reliability for astop. It will depend on the facts of each case. [83] While it depends on the facts of each case, the details when examined in the context of the circumstances, may be sufficient toestablish reliability for a stop.

Decision – s. 9 Charter – Arbitrary Arrest and Detention [84] My impression of the evidence at the charter hearing is that the degree of detail in the past conversations, including those Cpl.Kuchta had with his sources was minimal and provided background. [85] On the facts before me, the information described by the Applicant as “lost evidence” does not rise to the level of compromisingthe integrity of the trial or the Accused’s right to make full answer and defence. [86] I am satisfied on the totality of the evidence that the officer’s encounter with Mr. Slaunwhite was based on more than merecoincidence.

This officer had experience in investigation of controlled substances, and with informants both by phone and in person. Hewas the primary handler for Source “A” and at times would be dealing with a number of informants ranging from two to ten. [87] I acknowledge that there is no evidence of how the informant obtained this information. However, based on the detail providedby Source “A”, combined with the evidence of past reliability, and the overall context, I find the information from source “A”, in totality,

amounts in to more than a conclusory statement. [88] The details of this tip and the circumstances leading to the arrest are somewhat compelling. As was the case in Palmer, theinformation was very current, with the stop and subsequent arrest occurring with hours of the information being received.

Prior to thearrest certain of these details were confirmed, including the date, time, description of the vehicle and other factors, including theApplicant’s name, and general location. [89] It can reasonably be inferred from the degree of detail, that the information came from a someone close to the situation whenexamined in context, as was expressed in Sun News Lal. [90] Cst. Legere had built up a relationship with the source.

Based on the history and past dealings, he was confident the informationhe received was accurate. [91] Based on all of the above, I am satisfied the officers had reasonable grounds to effect the arrest and that as a result, it was notarbitrary and therefore not contrary to

section 9 of the Charter. [92] I turn now to consider whether the search incident to arrest was reasonable pursuant to

Section 8 of the Charter.

Section 8 – Unreasonable Search and Seizure [93] A search conducted without a warrant is presumptively unreasonable. The burden is on the Crown to prove that it was lawful,on a balance of probabilities. 35. For the search to be lawful, the Crown must establish on a balance of probabilities that the search was authorized by law, that thelaw itself is reasonable, and that the manner in which the search was carried out was reasonable. (R v. Collins, (SCC),[1987] 1 S.C.R. 265) [94] An exception is the common law power to conduct a search incident to arrest.

However, there are still requirements to be metfor such a search to be valid. The search must be truly incident to the arrest. It must be connected to it by some reason. A search maybe valid if a police officer subjectively and objectively believes that the search will lead to the discovery of evidence connected to thearrest. (Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158) [95] Each case will stand on its own facts.

If the search is conducted pursuant to a lawful arrest, for an appropriate purpose, and inan appropriate manner then it is valid pursuant to s. of the Charter. [96] The three common purposes in assessing reasonable grounds for a search incident to arrest are: 1) ensuring the safety of policeand the public; 2) the protection of evidence from destruction at the hands of the arrestee or others; and 3) the discovery of evidencewhich can be used at the arrestee’s trial. (R v. Caslake, (SCC), [1998] 1 S.C.R. 51, Cloutier; and R v. Murphy, 2018NSSC 19 at paragraph 55) [97] Turing to the facts before me, Cst.

Legere testified he passed along the information he received from Source “A” to severaldetachments, including the Inverness Detachment. [98] Cst. Arsenault testified that the information he received included the name of Mr. Slaunwhite and a description of the vehicle. He also knew that Mr. Slaunwhite was arrestable as that is what Cst. Legere stated. [99] The Applicant argues that the only information Cst. Arsenault had was Mr. Slaunwhite’s name and a description of the vehicle.

In this regard, it is the totality of the circumstances must be considered. [100] In Sun News Lal the court held that police officers may rely on information provided to them by another officer who hadgrounds to believe an individual is arrestable. The Crown must however, establish that the officer’s information that was relied upon bythe arresting officer was in fact, reliable or worthy of acting upon. (Paragraph 22 of the Crown’s brief, re: R v. Sun News Lal, atparagraph 24) [101] Cst. Arsenault stated on cross-examination that he had not before encountered Mr.

Slaunwhite and was relying on the informationthat he received from Cst. Legere, that the Applicant was arrestable. Having found that the arrest was lawful I shall determine whetherthis was a valid search incident to arrest. [102] Cst. Arsenault testified when he stopped the vehicle he identified Mr. Slaunwhite by name and the vehicle matched thedescription given by Cst. Legere. [103] Cst. Legere had passed along the source information that the Applicant was in possession of substances, hydromorphone pills forthe purpose of selling them. [104] Cst. Arsenault testified that he asked Mr.

Slaunwhite to pull his vehicle to the side of the road for safety and to continue theinvestigation. He proceeded to conduct a search of the Applicant and the vehicle pursuant to the arrest. Decision on s. 8 – Whether search reasonable? [105] In these circumstances, I am satisfied that Cst.

Arsenault had reason to believe that the Applicant would be in possession ofcontrolled substances, on his person or in his vehicle. [106] There was clearly a connection between the arrest and the search which was to secure the Applicant, and to discover and preserveevidence that had been contained in the information received from the source, which Cst. Legere concluded was reliable.

[ 107 ] I find the search to be truly incidental to the arrest of Mr. Slaunwhite and that it did not exceed the limits on search incidental to an arrest. [ 108 ] Objectively, the evidence of both officers together explains the reasons for the search as it related to the arrest, as well as the purpose at the time the search was carried out by Cst. Arsenault and the other officers. [ 109 ] There is no suggestion that the manner in which the search was carried out by the officers was improper.

The Constable advised the Applicant that he was under arrest for possession for the purpose of trafficking. [ 110 ] In the result, I find the search incident to the arrest was valid and as a result there has been no breach of

section 8 of the Charter as alleged by the Applicant. (See R v. Nolet , 2010 SCC 24 and also R v. Hiscoe , 2013 NSCA 48 , at pars. 29 -59.) Section 24(2) – Charter Exclusion of Evidence and Stay of Proceedings [ 111 ] Having concluded there has been no violation or infringement of the Charter provisions in ss. 7, 8, 9 or 11(

d) there is not a need for me to consider exclusion of the evidence under section 24(2) or whether a stay of proceedings is appropriate under s. 24(1). Conclusion [ 112 ] In considering this matter, which involved the exercise of police powers, I have attempted to apply common sense, flexibility and everyday experience to my assessment under the Charter provisions. (See R v. Canary , 2018 ONCA 304 ) [ 113 ] Respectfully, the Charter Application is dismissed. Murray, J.