Her Majesty the Queen - v. -, 2015 SKPC 124

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 124 Date: August 25, 2015 Information: 43173881 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Derek James Loewen Appearing: S.W. Jordan For the Crown D. J. Song For the Accused DECISION ON VOIR DIRE Q.D. AGNEW , J [ 1 ] The accused, Derek James Loewen, had the misfortune to be in the wrong place at the wrong time; or, rather, in the wrong company.

Through a series of unfortunate subsequent events, he was arrested on the basis of a warrant which was originally non- existent and then, when it came into existence, was invalid. As a result of his arrest and detention on that warrant, a search of his person revealed a significant amount of money and illegal drugs, leading to his current charges. [1] The accused has brought a number of Charter challenges, seeking the exclusion of the evidence of such money and drugs. I heard those challenges on a voir dire , and agreed to give my decision prior to the trial proper. This is that decision.

Facts [ 2 ] On September 13, 2013, the accused was a passenger in a truck being driven by another person. The truck was speeding, and came to the attention of Constables Smith and Thorsteinson of the Saskatoon Police Service, who were on patrol in a marked police car. They pulled the truck over, and Cst. Smith found that the driver was known to him from prior criminal involvement. He also asked the accused for his name and identification, which the accused provided. Cst.

Smith acknowledged that he requested this information from the accused with the intention of checking his name on CPIC, the national information system used by police forces to indicate persons who have outstanding warrants for their arrest, are on conditions, etc. [ 3 ] Cst. Smith passed the identity information for both driver and passenger over to his partner, Cst. Thorsteinson, who performed checks via the computer in the police car. The driver was found to have a warrant against him, but valid only in Alberta. The accused was found to be a serving prisoner, on parole.

CPIC also showed him to be on certain conditions, and gave a number for the National Monitoring Centre (“NMC”), which deals with persons on parole. Cst. Thorsteinson called that number, to confirm the accused’s status and conditions. He was told that the accused was on condition, among others, to have no contact with “known criminals”. Cst. Thorsteinson advised that the driver of the truck in which the accused was a passenger was in fact a “known criminal”. At that point, apparently after consultation with a supervisor, the person on the phone advised Cst.

Thorsteinson that NMC was going to issue a warrant for the accused’s arrest, and directed Cst. Thorsteinson to take the accused into custody. [ 4 ] Cst. Thorsteinson is an experienced officer. He was a peace officer for over 18 years. He has encountered this type of situation before, involving paroled prisoners and NMC. His past experience is that NMC issues the warrant “immediately” (because they do not require judicial authorization), and that it is typically faxed to the Saskatoon police station within an hour. He also testified that the practice is to act on the promised warrant immediately.

The evidence is clear that, at the point of arrest of the accused, neither officer believed the warrant then to be in existence; rather, they both expected that it would be prepared forthwith, and that a faxed copy would be physically present at the police station shortly - within the hour, by Cst. Thorsteinson’s experience. Cst. Thorsteinson testified that NMC told him that it would be issued within a half-hour, during his telephone call with them during the vehicle stop. [ 5 ] Cst.

Smith accordingly arrested the accused for breach of his parole conditions, searched him for weapons and put him into the police car. He also searched the accused’s wallet, finding a significant amount of cash. The accused was then transported to the police station, where he was booked in, and a further search performed. During the period of his transportation, and possibly more than once, the accused told the officers that he believed his parole had expired. The officers did not take any steps to check this statement. [ 6 ] At the police station, the accused was searched again by detention staff.

This was pursuant to a general policy that all prisoners going into detention are to be searched. That search resulted in a bulge being found in the area of the accused’s groin. The accused was asked what it was, and he responded that it was cocaine and MDMA. As a result, he was given what could be referred to as a strip search, although at no point did he have all of his clothing off - he was allowed to replace certain articles of clothing before removing others. Two ball-shaped bags of powder, one of white powder and the other of brown, were removed by the accused from his underwear.

Nothing else was found in the search. [ 7 ] At the station, the warrant documentation arrived from NMC. Cst. Thorsteinson began reviewing the documents, but testified that he had not gotten to the warrant itself when he had to deal further with the accused. According to the officers’ testimony, which I have no reason to disbelieve, neither of them looked closely at the warrant until after the drugs had been found. Cst. Thorsteinson had not yet read the warrant itself by the time of the strip search, although he had found it in the papers and showed it to the accused.

It seems that none of the persons involved actually read the warrant prior to discovery of the drugs. [ 8 ] As a result, none of them were aware that the warrant was invalid on its face. [ 9 ] The warrant states that the accused was on statutory release commencing September 7, 2012 and ending September 10, 2013. The warrant is dated September 13, 2013, or three days after the accused’s statutory release had expired. Apparently someone at NMC eventually noticed this little problem, because shortly after the strip search was over, a call was received from NMC stating that the warrant was invalid.

The accused was then informed that he was no longer in jeopardy on that matter, but of course he was charged with the current offences.

[ 10 ] The accused had in his possession 28.3 grams of cocaine, 28.1 grams of methylenedioxymethcathinone and $1,615.00 cash. [ 11 ] The evidence did not disclose when the accused was arrested in anticipation of the warrant, but he was subsequently given his rights and warnings at 3:35 a.m. The drugs were found at 3:49 a.m., and he was arrested for the current offences at that time. At 4:07 a.m., Cst. Thorsteinson advised Cst. Smith that the NMC warrant had been cancelled.

The Agreed Statement of Facts filed by counsel specifies that the warrant was “sent” (by which I understand was forwarded to and received by the Saskatoon Police Service) at 5:57 a.m. Eastern Daylight Time, being 3:57 a.m. Saskatoon time as of that day. I note that the warrant also states on its face, “Date and Time Produced 2013/09/13 05:23”. If the latter figure is Eastern Daylight Time, it would have been 3:23 a.m. Saskatoon time.

This timeline is potentially important, since it implies that the warrant was in fact in existence at the time the accused was arrested on it, albeit that it was not yet in the hands of the Saskatoon Police Service. However, there is no evidence linking the times as set out on the warrant with the times as recorded by Cst. Smith; that is, there is no evidence as to whether or not those times were synchronous or, if not, by how many minutes they were apart. There are three data points which are particularly difficult to reconcile:

(1) Cst. Thorsteinson’s recollection of reading some part of the warrant package before the strip search; (2) the evidence that the drugs were found at 3:49 a.m., during the strip search; and (3) the Agreed Statement of Facts specifying that the warrant was sent by NMC at 3:57 a.m. [ 12 ] It is impossible to determine with precision when the warrant was issued, versus when the accused was arrested. There is certainly no doubt but that the officers believed, at the time of the arrest, that the warrant did not yet physically exist.

Based on their past experience with NMC warrants, I conclude that they were likely correct. Issues [ 13 ] The accused has raised several allegations of Charter breaches, and seeks to exclude all evidence against him. The allegations of breach are: (

i) being asked his name . The accused asserts that, as he was merely a passenger in the vehicle, the police had no right to ask his name or to ask for identification from him. By so doing, he suggests, they breached his right to be free from arbitrary detention, contrary to s. 9 of the Charter ; (ii) checking his name on CPIC . The accused’s position is that doing so constituted an unreasonable search, contrary to s. 8 of the Charter ; (iii) learning of his parole from the CPIC check and thereafter arresting him .

The argument here is that the two breaches above tainted the arrest based upon them: exclusion of the facts derived from the breaches of ss. 8 and 9 would make the arrest of the accused invalid. The accused does not specify which

section he believes this violates separate from (ii), above, but I suspect from his argument that it is intended to be s. 9, freedom from arbitrary detention; (iv) arresting him in anticipation of a warrant not then in existence . This is an allegation that the police violated s. 9 of the Charter again; (

v) operating on the basis of an invalid arrest warrant . Again, it is not clear but this appears to be an allegation of s. 9; (vi) searching the accused at the time of the arrest . The accused argues that this search was unreasonable, and therefore contrary to s. 8, as it was “not truly incident to arrest”; (vii) searching the accused at detention . The accused says that there were no subjective grounds for this search, contrary to s. 8; (viii) strip searching the accused . The accused argues that since this search was not related to the reason for his arrest, namely the

alleged parole violation, it was unreasonable and contrary to s. 8; (ix) obtaining information from the accused prior to him having a reasonable opportunity to contact counsel . The accused’s position is that questions about the contents of his wallet, and asking him about the bulge found in his pants which resulted in the strip search, should not have been asked before he was given an opportunity to contact a lawyer, contrary to s. 10(b). Analysis [ 14 ] I will review each of these allegations of breach in turn. (

i) being asked his name [ 15 ] The accused argues that being asked to provide his name and identification constituted an arbitrary detention. He cites R v Harris , 2007 ONCA 574 [ Harris ], in support of this proposition. In Harris the accused, similarly to the accused in the present case, was the passenger in a vehicle which was pulled over by the police. There, as here, there was no question but that the police had the authority to pull the vehicle over and to demand identification from the driver.

In Harris , unlike here, the officer saw a movement which he thought might be a move toward a weapon; the officer therefore directed all occupants to keep their hands in his sight, which they did. [ 16 ] Importantly, it was on this basis - the direction to keep his hands in sight - that both the trial judge and the Ontario Court of Appeal concluded that Mr. Harris had been detained, by being under psychological constraint [2] . As a result, Mr. Harris was detained at the time that the officer asked for his name. I note that this conclusion, as to Mr.

Harris’ psychological state, seems to have been reached by both the trial judge and the Ontario Court of Appeal in a complete vacuum of evidence as to his actual psychological state: that is, both courts seem to have been able to determine Mr. Harris’ state of mind notwithstanding a complete dearth of evidence on the point. [ 17 ] There are, then, two significant distinctions between the situation in Harris and the one before me. The direction to the accused to keep his hands in sight, which was the critical fact in Harris , is lacking here.

Also lacking is the ability, apparently possessed by those other courts, to peer into the mind of the accused. I am not prepared to conclude from the evidence which I have heard that the accused before me felt any degree of psychological constraint. [ 18 ] There is, so far as I know and both counsel agree, no obligation on a passenger in a vehicle to identify themselves or otherwise interact with the police on a routine traffic stop (absent, of course, any other cause). The accused, like every other person, is presumed to know the law; that includes, presumably, this aspect of it.

It follows that when the police asked him his name, he is presumed to have known that he was not required to provide it.

Equally, there is nothing to prevent the police from asking him his name, albeit that they cannot, without more, take anything from his refusal to give it. [ 19 ] Accordingly, the police were entitled to ask the accused’s name; he was entitled to give it or to withhold it; he was not under any compulsion when he gave it; when he gave it, therefore, he did so voluntarily; therefore, no Charter breach arises. [ 20 ] I accept that the officer asked the accused for his name with the intention of checking his name on CPIC, a point which I will deal with in the next section. (ii) checking his name on CPIC [ 21 ] As indicated above, I accept that Constable Smith obtained the accused’s name for the specific purpose of running it on CPIC, in order to learn if there were any outstanding warrants against him or any other reasons for which further interest should be taken in the accused.

[22] The accused suggests that checking his name on CPIC constituted an unreasonable search, again citing Harris. The Court inHarris similarly found that the officer obtained Mr. Harris’ name in order to run a CPIC check on him. [23] The analysis in Harris on this point proceeds explicitly on the basis that Mr.

Harris was detained at the time he was asked for his name.[3] That is not the case in the situation before me. [24] Apart from that point, I have considerable difficulty in following the reasoning of the Ontario Court of Appeal in finding thatthe search of a police database, by police officers, was somehow a violation of the accused’s right to be free from unreasonable search. [25] As I understand the reasoning,[4] it proceeds by analogy with R v Mellenthin, (SCC), [1992] 3 SCR 615[Mellenthin].

In that case, a police officer at a valid traffic stop questioned the accused about the contents of a gym bag in the back ofthe accused’s car. The answers to those questions eventually led the officer to seize the bag and search it, discovering narcotics withinit. The Supreme Court of Canada concluded those questions were improper, as there was no reason to suspect the presence of anythinguntoward in the bag. [26] Any analogy breaks down under sufficient scrutiny; this one, however, seems to break down immediately. In Mellenthin, theofficer was questioning the accused.

In the case before me, the questions were not being asked of the accused; rather, they were asked ofCPIC. To my mind, there is a clear difference between questioning the accused and consulting a police database. [27] As a further point of distinction, I note that much of the information referred to on CPIC in both the case before me and inHarris is of public record: convictions, sentences, and release conditions, to name the types specifically of interest both in the presentcase and in Harris. How a police review of public information constitutes an unreasonable search of the accused escapes me.

Had Cst.Smith been present for the accused’s parole hearing and recalled the terms of that parole, would he have had to pretend he did not know? How is his recollection any different from finding the same information in a database?

It may simply be a failure on my part, but I amunable to follow how a search of, or knowledge of, publicly-available information constitutes an unreasonable search of the accused. [28] The Ontario Court of Appeal, still on this point, states that there is no difference between the police learning this information through CPIC and learning it by questioning the accused about his criminal record, terms of bail, etc.[5] The Court of Appeal argues thatsuch questioning would be a violation of the accused’s right to silence and therefore, by analogy, so is learning this information via CPIC.[6] [29] It seems to me, with the greatest of respect, that this analogy too is fatally flawed.

The most significant difference can be seenwithin the wording of the analogy itself: if the police demand and receive information from the accused, then they are violating his rightto silence; if, however, they find it through some other mechanism, not involving questioning the accused, then the accused hasremained silent, exactly as he is entitled to do, and the police have not violated his right to do so. [30] I am not aware of any rule of Canadian law that police must turn a blind eye to information that they obtain from a third-partysource, simply because they might have obtained the same information by improperly questioning the accused; yet this is the logicalconclusion of the rule proposed in Harris.

That decision is not binding on me, and I find its reasoning unpersuasive. [31] I do not find that the accused has made out this allegation of breach. (iii) learning of his parole from the CPIC check and thereafter arresting him [32] The accused argues that the police cannot validly arrest him when their grounds arise from information tainted by Charter

breaches; specifically, the breaches referred to in points (

i) and (ii), above. As I have found that there were no such breaches, this argument fails. (iv) arresting him in anticipation of a warrant not then in existence [ 33 ] I have found, as noted above, that at the time the accused was arrested for a parole violation, the warrant for his arrest was not yet in existence, although a decision to issue it had been made by that point.

No judicial act is required for the issuance of such a warrant; accordingly, it was reasonable for the officers here to believe that such a warrant would in fact be issued and, based on past experience, that it would be issued shortly - within perhaps 30 to 60 minutes.

Nonetheless, the warrant did not exist at the time the accused was purportedly arrested on its authority. [ 34 ] The Crown has argued that the police had authority to arrest the accused in any event, separate and apart from the warrant. [ 35 ] There are many parole violations which will constitute separate criminal offences, for which the normal arrest provisions of the Criminal Code would apply. In such circumstances, the current issue would not arise. However, the parole violation alleged here is not a criminal offence - having contact with a known criminal is not, in and of itself, a crime.

There was therefore no basis to arrest the accused for that mere association. Nor is there any free-standing authority under the Corrections and Conditional Release Act [7] to arrest a person found violating their parole. The authority to arrest for parole violation under that Act is found in ss. 137(2) and 137.1. I will examine each in turn. [ 36 ] Subsection 137(2) reads as follows:

(2) A peace officer who believes on reasonable grounds that a warrant is in force under this Part or under the authority of a provincial parole board for the apprehension of a person may arrest the person without warrant and remand the person in custody. [ 37 ] Counsel have not directed me to any caselaw specifically on this point, nor have I located any myself. I am left with Parliament’s wording, which is clearly in the present tense: “that a warrant is in force” (emphasis added).

I do not have to consider whether or not the officers here had reasonable grounds to believe the warrant was in force: I have found as a fact that neither Cst. Smith nor Cst. Thorsteinson actually believed that it was in force at the time of the arrest. Section 137(2) cannot, therefore, be relied upon to support the arrest. [ 38 ]

Section 137.1 reads as follows: 137.1 A peace officer may arrest without warrant an offender who has committed a breach of a condition of their parole, statutory release or unescorted temporary absence, or whom the peace officer finds committing such a breach, unless the peace officer (

a) believes on reasonable grounds that the public interest may be satisfied without arresting the person, having regard to all the circumstances including the need to (

i) establish the identity of the person, or (ii) prevent the continuation or repetition of the breach; and

(

b) does not believe on reasonable grounds that the person will fail to report to their parole supervisor in order to be dealt with according to law if the peace officer does not arrest the person. [ 39 ] This

section allows for arrest without warrant unless the arresting officer reasonably believes that arrest is not required. On the face of it, this seems to mean that a subjective and objective analysis is required only where the officer does not arrest a parolee etc. found violating their parole. That is, the “reasonable belief” provisions only grammatically come into play after the peace officer has made a decision not to arrest. On the plain grammatical reading of the section, an officer who arrests without warrant under this

section is not required to consider (

a) or (b); but if he or she does actually consider (

a) or (b), then their conclusions must be reasonable. In other words, an arrest could be made without any thought to (

a) or (b); it is only if the arresting officer actually considers (

a) or (

b) and does not arrest the parolee that the reasonableness of their decision becomes subject to scrutiny. If this

interpretation is correct, the only time the issue would arise would be when the officer chose not to arrest, and in such a situation, there would presumably be no one who would be challenging the reasonableness of the decision. [ 40 ] Accordingly, although this

interpretation of the provision is grammatically correct, I cannot conclude that it is what Parliament intended. It therefore seems to me that a proper reading of s. 137.1 requires an arresting officer to consider whether or not arrest is reasonably necessary on any of the enumerated grounds. [ 41 ] This means that where, as here, the arresting officers do not turn their minds to whether or not the arrest is reasonably necessary, the door opens for a challenge as to the validity of the arrest. The officers here did not do so. Had the arrest been pursuant to s. 137.1, therefore, it would have been problematic.

As the officers were not acting pursuant to s. 137.1, there was no requirement for them to consider its provisions. This being the case, however, the arrest cannot be saved by s. 137.1. [ 42 ] I accordingly find that the accused’s rights under s. 9 of the Charter , freedom from arbitrary detention, were violated. [ 43 ] The accused also argues that the arrest was objectively unreasonable because the officers did not take into account the accused’s statements that his parole had expired. I do not find any merit to this suggestion.

Firstly, it appears that such statement or statements occurred after the arrest, so it is not information which the officers could have taken into account in deciding whether or not to arrest the accused.

Secondly, I do not accept as a general proposition that an accused who has been arrested for breaching conditions can require the police to undertake further checks to confirm that those conditions are still in effect, when their normal procedures tell them that they are. [ 44 ] Circumstances will determine each situation, of course, and there may well be situations in which such a course of action would be appropriate. This is not such a situation.

Here, the constables had not only seen an entry on CPIC, they had actually spoken directly by telephone with someone at NMC whose job it presumably is to know whether or not conditions are in effect. That person had apparently then gone to speak with someone else specifically about the accused’s situation. The police could reasonably expect that those facts were more reliable than the accused’s claim that he was no longer on conditions. I do not accept that the accused could, simply by stating that he thought his conditions had expired, require the police to call NMC back and ask, “Are you sure?” (

v) operating on the basis of an invalid arrest warrant [ 45 ] The warrant issued by NMC was invalid on its face. Reading it makes it clear that the accused’s parole had expired before the warrant was issued. However, this information was not known to any of the Saskatoon officers dealing with the accused, at any significant point in their dealings with him. I find that they believed, originally, that a valid warrant was about to be issued and, subsequently, that a valid warrant had in fact been issued. I find that those beliefs were reasonable at the time.

The invalidity of the warrant was not discovered until after the drugs had been found. The police accordingly acted on the basis of what they reasonably believed to be a valid and (eventually) existing warrant. [ 46 ] I have dealt above with the fact that the warrant was not in existence until after the arrest. Had it been otherwise, the invalidity of the warrant might well affect the validity of the arrest: a valid arrest on the basis of an invalid warrant seems like it might be problematic. As it is, however, I do not have to decide this issue, and I decline to do so.

[47] Given that the police reasonably believed that they were acting under a valid warrant, I do not see that the fact that they werewrong gives rise to a separate Charter breach. (vi) searching the accused at the time of the arrest [48] The accused objects to the search conducted by Cst. Smith at the time of the arrest. Prima facie, the search is invalid because,as I have found, the arrest was improper.

"No search, no matter how reasonable, may be upheld under this common law power [ofsearch incident to arrest] where the arrest which gave rise to it was arbitrary or otherwise unlawful": R v Stillman, (SCC), [1997] 1 SCR 607, at para 27. [49] I will examine this issue further, however, as it is relevant to the analysis mandated in R v Grant, 2009 SCC 32 [Grant], whichI will later perform with respect to the breaches I find. [50] The common-law power to search incidental to arrest is set out in R v Caslake, (SCC), [1998] 1 SCR 51 atparagraph 19: . . . the three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence fromdestruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee's trial.

The restrictionthat the search must be "truly incidental" to the arrest means that the police must be attempting to achieve some valid purpose connectedto the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective andobjective aspects to this issue. In my view, the police must have one of the purposes for a valid search incident to arrest in mind when thesearch is conducted. Further, the officer's belief that this purpose will be served by the search must be a reasonable one. [51] Cst.

Smith testified that he searches every person he puts into his vehicle. He also testified that such searches are to ensurethat the person has no weapons or escape tools. [52] I take judicial notice of the incidents which have appeared in the news media over the last several years, including veryrecently, involving peace officers being attacked or killed in the line of duty, often in circumstances where such an attack might well nothave been expected. Policing is a high-risk occupation, and its practitioners are entitled to take reasonable steps for their safety. I do notconsider Cst.

Smith’s policy, in preparation for putting people in his vehicle, of searching them for weapons or escape tools to beunreasonable. A person in the back of a police vehicle is, of necessity, both behind the driver and in close proximity to them.

Theofficer is inherently in a position of vulnerability Whether or not all officers take that same position is not something known to me, noris it necessarily relevant: different officers may choose to assume more or less degrees of risk without any of them being therebyunreasonable. [53] However, this justification does not seem to extend to the contents of the accused’s wallet. While it might be that a weapon orescape tool could be secreted there, the same could be said of any number of unlikely places on the accused which Cst.

Smith apparentlychose not to search: the soles of the accused’s shoes; the inside of his belt; inside his socks or underwear. Further, if there was such a concern, it would havebeen obviated by Cst. Smith keeping the wallet rather than leaving it with the accused. As Cst. Smith did in fact retain control of thewallet, it is clear that he did not have to be concerned that the accused might have access to any weapon or tool which might have beenconcealed in it.

I am unable to conclude that the search of the wallet was incidental to arrest, and accordingly I find that this breach hasbeen made out. (vii) searching the accused at detention [54] The same reasoning applies regarding the search at detention as did the search at roadside. Notwithstanding that a cursorysearch had been made at roadside, a policy of search at the police station seems reasonable to me. Roadside searches must, of necessity,

be cursory - it is an uncontrolled environment, potentially with traffic in close proximity and often with many other demands on officers’attention. The level of detail of such a search, and whether or not a search is performed at all, will be a matter of individual officers’discretion A more thorough search, under more controlled circumstances, is not unreasonable, particularly where the person will or maybe held for a longer period of time, interacting with other officers and detainees, or alone in rather dismal circumstances.

A policy ofsearching everyone is of assistance in ensuring the safety of officers and staff, other detainees, and the accused personally. [55] I find no Charter breach in this regard. (viii) strip searching the accused [56] Upon detecting a suspicious bulge in the accused’s groin area, a strip search was instituted. Despite the language apparentlyused by the police, and the fact that at no point were all of the accused’s clothes off, for the purposes of this analysis I am satisfied to usethat description.

Again, in light of the location of the bulge and the accused’s disclosures (see below), a search of this level wasjustified. Even had the accused not answered, the finding of the bulge would have justified a more intensive search to find what theaccused might have had in his pants or underwear. [57] Accordingly, I do not find a Charter breach arising from this search. (ix) obtaining information from the accused prior to him having a reasonable opportunity to contact counsel [58] The accused’s specific complaints in this regard are that, prior to him having an opportunity to speak with counsel,

(1) Cst.Smith asked the accused about the contents of his wallet, and

(2) Cst. Matieshin asked him about the bulge in his groin area. The law isclear that police officers are not to attempt to obtain incriminating statements (or other self-incriminatory evidence, such as breathsamples) from an accused person until that person has had a reasonable opportunity to speak with counsel. See, for example, R vProsper, (SCC), [1994] 3 SCR 236 [Prosper] at paragraph 34. [59] With respect to the first complaint, regarding questions about the contents of the wallet, the issue is moot.

Although theevidence shows that the accused was asked why he had the money, I have reviewed both my notes and the recording of the voir dire, andI cannot find any point in the evidence where the accused’s answer is given. That is, I am not aware of what statement, if any,incriminating or not, was given by the accused. Typically in a Charter breach of this nature, the remedy is exclusion of the accused’sstatement; since there is no statement, there is nothing to exclude.

If, on the other hand, the accused made no statement, then theofficer’s attempt was in vain and any Charter breach (by attempting to elicit information and being met by silence) did not in fact resultin a breach of the accused’s right to silence. [60] With respect to the second complaint, when Cst. Matieshin asked the accused about the bulge in the accused’s groin area, theaccused responded that it was cocaine and MDMA. It is important to note, however, that the rule against police questioning does not saythat they cannot speak to the detainee, or even that they cannot ask questions.

The prohibition is on attempting to obtain incriminatingevidence. The key question here is what the purpose was of Cst. Matieshin’s question. [61] According to Cst. Matieshin, his question was for officer safety: he was searching the accused for weapons; upon finding thebulge, he immediately secured the accused’s hands so that if it was a weapon, the accused would be prevented from grabbing for it; andonly then did he ask what it was. Upon being told it was cocaine and MDMA, Cst. Matieshin felt it again, to see if the feel of it wasconsistent with what the accused had said. [62] I accept Cst.

Matieshin’s statements as to the intent of his question. The sequence of events outlined just above is perfectlyconsistent with his explanation. Furthermore, it is clear from the evidence that Cst. Matieshin’s job was to search detainees beingbrought into the detention area; there is no suggestion that his work involved attempting to obtain incriminating statements from them.

Finally, asking the accused about a suspicious bulge seems reasonable in the context of a search: there may be a simple, innocuousexplanation; also, if a search is required, then as a matter of officer safety (and the detainee’s safety) it may be important to know if thereare any sharp edges or points or other matters of concern before proceeding with the search.

[ 63 ] Accordingly, as there was no attempt to obtain an incriminating statement, the rule set out above from Prosper does not apply. [ 64 ] Separate and apart from the above matters, it is clear on the evidence that a search was almost certainly going to occur, once the bulge had been found, whether or not the accused had responded as he did, or even if no such question had been asked. It is difficult to conceive of a situation in which no further search would have taken place. In that sense, then, the accused’s response is irrelevant, as the drugs would inevitably have been found on such a search.

Even if I concluded that there had been a breach, and excluded the accused’s response from evidence, it would have no practical effect. Grant Analysis [ 65 ] As indicated above, I have found breaches of Charter rights with respect to the arrest in anticipation of a warrant (point (iv) above), and the search of the accused’s wallet at the time of arrest (point ( vi ) above). [ 66 ] The Supreme Court of Canada, in Grant , laid out a conceptual framework for courts to follow in analysing whether or not to exclude evidence in response to Charter breaches.

The fundamental question is whether or not the admission, or exclusion, of the evidence would bring the administration of justice into disrepute, in the eyes of a reasonable person, informed of all relevant circumstances and the values underlying the Charter .

It is the long-term reputation of the administration of justice which is the question, not the reaction to the instant case. [8] The Court’s analysis is to proceed via three tests: (1) the seriousness of the Charter -infringing state conduct (admission may send the message that 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. [9] I will examine each of these in turn, with respect to each breach that I have found.

Re: Arrest in Anticipation of Warrant (1) seriousness of the Charter-infringing state conduct [ 67 ] As indicated in Grant , the Court is to look at “the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter ”. [10] This includes not just the severity of the conduct, [11] but also whether it demonstrated a wilful or reckless disregard for Charter rights, [12] whether the conduct was part of a systemic problem, [13] or on the other hand whether there was good faith on the part of the police officers, [14] or whether the breach was merely technical or the result of an understandable mistake. [15] [ 68 ] In the matter before me, the accused was “arrested” by police when they had no power to do so.

There was no warrant for his arrest, nor was he found committing any crime. On the other hand, the officers acted properly in checking to see if the accused was in breach of his parole conditions, were told that he was and were told that a warrant was going to be issued forthwith. In the circumstances, including their past experience with NMC, it was reasonable for them to expect that the warrant would be issued within the hour or less. [ 69 ] It is, to put it mildly, troubling when agents of the state take someone into custody when they do not have the legal authority to do so.

It appears that the police followed their usual practice here, which is also troubling. However, they acted in good faith, on instructions from NMC to take the accused into custody, and not wilfully disregarding the accused’s rights: they were wrong, but not deliberately so. (2) impact of the breach on the accused ’s Charter-protected interests

[70] Under this test, the question is the extent to which the breach actually undermined the protected interests.[16] The accused,like everyone else, has the right to be left alone by the police except in specific circumstances. None of those circumstances applied inthe present case.

On the other hand, it is not the case that the officers would not have had proper authority even if they had waited: theevidence is clear that the warrant was in fact issued, within a matter of minutes, so had the officers waited until they receivedconfirmation that the warrant had issued, the question of a Charter breach would not even have arisen.

Had they simply followed theaccused for a few minutes, for example, they would have been able to arrest him on the warrant without any question arising about theirpower so to do (leaving aside the invalidity of the warrant on its face, a matter dealt with elsewhere in these reasons). Accordingly,although the arrest without authorization is of concern, the actual impact on the accused was relatively minor. (3) society’s interest in adjudication on the merits [71] It is always the case that society would like to see criminal allegations tried on the basis of their merits.

This has the effect ofpunishing the guilty while exonerating the innocent. However, society also has an interest in upholding Charter rights.

Further, asCromwell J. noted in R v Côté, 2011 SCC 46 , [2011] SCJ 46, if the first two branches of the Grant analysis show seriousviolations, then the factors on the third branch such as the seriousness of the offence, the reliability of the evidence and the importance of that evidence to the Crown’s case should not be determinative.[17] I have not found that to be the case here in any event. (4) conclusion [72] Weighing all of the above factors together, I am not satisfied that the improper arrest justifies exclusion of any evidence.

Re: Search of Wallet (1) seriousness of the Charter-infringing state conduct [73] As noted above, a search incident to arrest is prima facie invalid if the arrest is unlawful. That is not, however, the end of theanalysis. In this case, although the arrest was unlawful and the search not required by the arrest, I cannot say that examining thecontents of an arrested person’s wallet is necessarily unreasonable.

It is commonplace in this Court to find persons charged with giving afalse name to police, for example; checking their claimed name against identifying papers in their wallet after a valid arrest will notalways be excessive. Furthermore, it must be remembered that the police believed that they were acting properly: this was not a flagrantor deliberate flouting of Charter rights.

I accordingly believe this breach to be of a minor degree of seriousness. (2) impact of the breach on the accused’s Charter-protected interests [74] For non-bodily physical evidence, this question is typically one of the accused’s privacy interests.

Thus, to use the examplesreferred to in Grant, an illegal search of a house is a more serious breach than is an illegal search of an automobile, because of the correspondingly higher expectation of privacy.[18] In the instant case, the accused might well have a certain expectation of privacyregarding the contents of his wallet: in all likelihood, it is on his person and under his direct control much of the time. On the other hand,I have no evidence with respect to that; it might well be that he is typically careless with the location of his wallet, constantly misplacingit.

Further, while a certain amount of information can be gleaned from the typical contents of a wallet, it is likely to typically beidentification-related for the most part. As indicated above, that is not automatically objectionable. Additional information might befound in credit-card numbers, but I am not sure what use might be made of those without further investigations by police, whichthemselves might be subject to Charter scrutiny.

In most situations, the amount of money in a wallet will not be something which areasonable person, informed of Charter reasoning and values, will automatically consider to attract a high degree of privacy.

Accordingly, although the impact is not trivial, neither is it overly serious. (3) society ’s interest in adjudication on the merits [ 75 ] I repeat my comments above with respect to this heading. I recognize of course that exclusion of the money found in the wallet will likely have the effect of forcing an acquittal with respect to one of the charges against the accused. Further, the evidence is highly reliable. (4) conclusion [ 76 ] With respect to the search of the wallet, although it was a breach, it was a minor one, made illegal largely by virtue of the fact that the arrest was unlawful.

I have found that breach to have been a relatively minor one, albeit more serious than the resulting wallet search. Balancing all of the above factors as required by Grant , I am not prepared to exclude the evidence of the wallet contents. [ 77 ] Separate from the individual breaches themselves, I have also considered whether or not the cumulative effect of the two breaches should give rise to a different result than I have decided appropriate for them each individually. I have concluded that a different result is not warranted in this case.

The breaches are connected; they are not of a significant scale either separately or in aggregate; and I cannot say that their total effect is so much greater than their individual effects that the result should be different. Conclusion [ 78 ] I accordingly decline to exclude any of the Crown’s evidence from the voir dire , and apply it all to the Crown’s case at trial. ________________________ Q. D.

Agnew, J [1] The charges are that he did, on or about September 13, 2013, at or near Saskatoon, Saskatchewan: (1) unlawfully have in his possession a controlled substance, namely cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act ; (2) unlawfully have in his possession a controlled substance, namely methylenedioxymethcathinone, an analogue of methylenedioxymethamphetamine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act ; (3) have in his possession a sum of money, the property of unknown persons, of a value not exceeding $5,000.00 knowing that all or part of the proceeds of crime was obtained or derived directly or indirectly as the result of the commission in Canada of an offence punishable by indictment, contrary to ss. 354(1) and 355(

B) of the Criminal Code . [2] See paragraphs 22 and 23. [3] See paragraphs 34, 37 and 38. [4] See paragraphs 35 through 37. [5] See paragraph 39. [6] See paragraphs 39 and 40. [7] SC 1992, c 20 . [8] Grant , paras 67 and 68 .

[9] Grant , para 71 . [10] Para 73. [11] Grant , para 72 . [12] Grant , para 74 . [13] R v Harrison , 2009 SCC 34 [ Harrison ] at para 25 . [14] Grant , para 75 . [15] Harrison , para 22 . [16] Grant , para 76 . [17] See para 88. [18] Para. 113.