Her Majesty the Queen - v. -, 2013 SKPC 192

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 192 Date: November 21, 2013 Information: 44304529 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Raldo Dwayne Thompson, Mustafa Yousof Omar, Anthony Justin Durrant, Mohammed Adbi Aden Appearing: Andrea Newsham, Lexi Pace For the Crown Ammy Murray For Mohammed Adbi Aden Barb Degenstein For Mustafa Yousof Omar DECISION ON VOIR DIRE D.A.

LAVOIE , J [ 1 ] The four named accused are jointly charged on one Information 44331439 as follows: (1) on or about the 2 nd day of May, A.D. 2012 at or near Saskatoon, Saskatchewan did unlawfully have in his possession a controlled substance to wit: cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act .; (2) on or about the 2 nd day of May, A.D. 2012 at or near Saskatoon, Saskatchewan did have in his possession proceeds of property, to wit: Canadian currency, of a value exceeding five thousand dollars knowing that all or part of the proceeds of the property was obtained

or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to sections 354(1) and 355 (

a) of the Criminal Code . [ 2 ] In addition Raldo Thompson is charged on Information 44331439 as follows: (1) on or about the 2 nd day of May, A.D. 2012 at or near Saskatoon, Saskatchewan did unlawfully traffic in a controlled substance to wit: cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act ; (2) on or about the 2 nd day of May, A.D. 2012 at or near Saskatoon, Saskatchewan did have in his possession proceeds of property, to wit: Canadian currency, of a value not exceeding five thousand dollars knowing that all or part of the proceeds of the property was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to sections 354(1) and 355 (

b) of the Criminal Code . Preliminary Matters [ 3 ] Both Messrs. Omar and Aden gave notice of Charter issues at the commencement of the trial. The Court and counsel discussed technical procedural matters. The final process unfolded as follows with the consent of all counsel: 1. the Crown called all its evidence in the context of a voir dire on the Charter issues raised by Messrs. Omar and Aden; 2. all counsel cross-examined each witness as if we were within a trial proper; 3. Defence elected to call no evidence on the voir dire .

Decision on the voir dire was reserved; 4. all the evidence on the voir dire was applied by consent to the trial proper; 5. all four accused elected to call no evidence on the trial proper; 6. as all the events were so intertwined, it was agreed that the trial on Information ending in #439 against Raldo Thompson would proceed as a joint trial with Information ending in #529. [ 4 ] This decision will deal only with the Charter issues raised within the voir dire in the following sequence: 1. Messrs.

Omar and Aden submitted that their arrests and subsequent searches incident to arrest were illegal resulting in a breach of their ss. 8 and 9 Charter rights; 2. Mr. Omar submitted that his s. 10(

b) rights to counsel were violated subsequent to his arrest; 3. If the Charter rights of either individual were breached, what is the proper remedy pursuant to s. 24(2) of the Charter ? [ 5 ] The trial proceedings to date involved eight days of evidence, resulting in ten volumes of transcript. Followed by two days of verbal arguments supplemented with numerous written briefs.

Facts [ 6 ] The following is a

summary of the evidence forthcoming from some 19 witnesses called by the Crown. [ 7 ] Constable Kelly Tryone, an officer of seven years experience with the Saskatoon Police Service, testified to having been with the Saskatoon Integrated Drug Unit since September, 2010. He was the lead investigator in what was described as a street level drug investigation. As lead investigator he was the affiant of two Informations to Obtain Search Warrants on May 2, 2012.

As the Court interprets the evidence, the essence of the information relied on by the numerous police officers involved in doing surveillance and making arrests on May 2, 2012 commenced in early April, 2012. Around April 7, 2012 the drug unit received information from confidential sources of black males trafficking in cocaine in a dial a dope operation. Around April 27, further confidential source information was received from people who resided at a residence in the 600 block of 33 rd Street to the effect that some black males were selling cocaine out of the residence.

The black males were not the residents at that location, however the actual residents, who were users, were allowing them to traffick drugs from that location. [ 8 ] On April 27 and 28 the police conducted some surveillance on the residence. They observed people coming and going from the residence which they believed was activity consistent with their confidential information of trafficking of cocaine from the premises.

Further information gathered and obtained revealed further trafficking may be occurring from nearby local hotels, including the Heritage Inn and the Riviera Motor Hotel and that one possible target vehicle was a blue Cobalt. [ 9 ] In addition, further confidential information revealed a gold Malibu, bearing Saskatchewan license #289 IHH, was being used and became the second target vehicle. A police check of SGI records disclosed it was registered to Budget Rent-A-Car and rented to a Jason Owusu from April 27, 2012 with a return date of May 4, 2012.

A CPIC check revealed Jason Owusu was an Ontario resident with an Ontario driver’s license and he had been previously charged in Ontario with drug trafficking offences. [ 10 ] It appears the police investigation continued from Friday, April 27, culminating with the significant surveillance and events of Wednesday, May 2, 2012.

On May 2 police undertook a significant surveillance operation involving in excess of 12 police officers, divided into three teams, in excess of ten hours, resulting in numerous arrests. [ 11 ] The evidence reveals the operation commenced with a briefing at around 8:00 a.m. of at least ten officers with drug enforcement and surveillance operations experience varying from two to twenty-seven years. One was an RCMP Special “O” team from Regina whose primary police functions and experience is to gather information through covert surveillance of individuals.

The basic information platform was to locate the two target vehicles of the blue Cobalt and gold Malibu, being used by black males with a possible present home base of the Heritage Inn, or any other possible hotels in that northwest part of the city of Saskatoon. The name Jason Owusu was the only known name of any of the target individuals at that time. Officer Tryone was the team leader, Officer Kuffner was the road boss and Sergeants Dalton and Hoover were overall supervisors with ultimate decision making authority if needed.

It appears two separate radio channels were being used representing Saskatoon City Police and RCMP communications equipment. The four supervising officers went back and forth monitoring channels in order to have as much information possible of how the individual police observations created an overall picture of the connections, activities and possible common enterprise amongst all the target individuals and vehicles. [ 12 ] The following is a

summary of and sequence of events, observations, communications and decision as they unfolded on May 2, 2012. [ 13 ] At 9:30 a.m. Constable Tryon obtained a photo of Jason Owasu, and passed it on to Constable Kuffner, who was acting as the road boss. In his evidence Constable Kuffner did not recollect receiving the said photo. [ 14 ] At approximate 9:05 a.m. Constable Norman indicates the gold Chevy Malibu has been found at the Comfort Inn. (A Google map, Exhibit P-11 was filed showing that all the eventual target buildings of that day were in reasonable proximity to each other in the target northwest area of the city).

[ 15 ] Surveillance then shifts to that hotel. It is noticed that the Malibu is parked outside a room patio door. Shortly thereafter a black Chrysler 200, Saskatchewan license #244 HYX, is seen parking in the same Comfort Inn parking lot. The driver, an unknown black male, goes to the patio door where the Malibu is parked. Shortly thereafter the black male exits the patio door and goes to the trunk of the Chrysler 200. Another black male exits the common hotel doors and gets into the passenger side of the Chrysler and they drive off.

At this stage the Chrysler 200 becomes a third target vehicle for the surveillance operation. Enquiries were made revealing the Chrysler was registered to Thrifty Rent-a-Car and was rented to a Raldo Thompson. [ 16 ] Shortly thereafter, at 11:36 a.m., an officer identified another vehicle, a gold Intrepid, license #554 IFS, with two black males, to be driving slowly toward the Comfort Inn. The Intrepid stopped and the passenger left the vehicle. Another officer radio’s they believe the passenger in the Intrepid is the same passenger who left earlier in the Chrysler 200.

Police followed the Intrepid for some time after it left the Comfort Inn, but surveillance on the Interpid was discontinued at approximately 12:57 p.m. [ 17 ] At 12:15 the gold Malibu left the Comfort Inn occupied by two black males. It was followed to a back alley in the 1200 block between Avenues D and E, a closely populated residential area. One black male got out of the vehicle. No observations were made of what happened with the vehicle and surveillance was lost on the vehicle shortly thereafter. However, the vehicle was picked up again when it was parked in a parking lot at a Denny’s Restaurant.

Of significance is this restaurant is located on the northwest corner at Avenue C and Circle Drive in the city and basically kitty corner to the Riviera Hotel on the southeast corner of Avenue C and Circle Drive. [ 18 ] At 1:20 p.m. the Chrysler 200 also enters the Denny’s parking lot. One black male gets out of the vehicle. Surveillance was set up in that parking lot. At 2:07 p.m. four black males exited Denny’s restaurant. Two got into the Malibu and two got into the black Chrysler. Covert photos were taken of the four males standing on a sidewalk and then of the two Chrysler occupants.

The driver of the Chrysler wore a distinctive New York Yankees baseball cap. It was conceded by defence that this individual was Raldo Thompson. The passenger was a black male wearing a leather jacket and had a distinctive hair style commonly referred to a “cornrows”. Throughout, the evidence discloses there was only one black male ever described as having a distinctive “cornrow” hairstyle and wearing a leather jacket. The evidence also disclosed that sole descriptor fit the identity of Mohammed Aden during the surveillance operation of May 2.

The evidence discloses that the passenger who entered the Chrysler at Denny’s was Mohammed Aden. [ 19 ] The black Chrysler 200 is now followed. It drove south a short distance on Idylwyld Drive to a 7-11 store. The passenger got out and entered the store and exited again a short time later. The vehicle and two black male occupants being Messrs. Thompson and Aden then drove to the back alley of the 1200 block between Avenues D and E. Surveillance was not able to see what occurred in the back alley. [ 20 ] Then at 2:31 the black Chrysler arrived at the Riviera Motel parking lot.

Raldo Thompson and Mohammed Aden exited the vehicle and waited at the southeast door of the hotel. [ 21 ] Of significance is that evidence shows at 1:13 p.m., the same time frame the four black males were at Denny’s, Room 230 at the Riviera was rented out to a person by the name of Omar Hirad.

The police were not aware of this information until approximately 5:00 p.m. however, they testify that the Chrysler 200 arrival now created suspicions and inferences putting the Riviera on the list of target hotels for surveillance. [ 22 ] Concurrent with the Chrysler surveillance information, Constable Kuffner followed the Chevrolet Malibu from Denny’s back to the Comfort Inn. While en route in an easterly direction, Constable Kuffner also observed and met the blue Cobalt target vehicle travelling west on Circle Drive.

The Cobalt then attended to the Comfort Inn, parking in a stall outside the same patio door the Chrysler 200 had parked earlier that day. Surveillance observed the black male drivers of the Cobalt and Malibu, exit their vehicles, walk towards each other, wave from some distance apart, and then turn around, re-entered their vehicles and drive away. [ 23 ] Within a short time frame the gold Chevrolet Malibu and the blue Cobalt arrived at the Riviera Motel. The two black male occupants exit and join Thompson and Aden outside the southeast door of the motel.

An unknown fifth person lets them into this back stairwell door. Continuous surveillance is then maintained at the Riviera. At some point a taxi carrying a black male arrives and the passenger disembarks and enters the Riviera.

[ 24 ] Now just after 4:00 p.m. a series of events and arrests unfold. A black male is observed driving away from the Riviera in the gold Malibu. [ 25 ] At this stage, given all the information gathered since early April in relation to black males trafficking in cocaine, the team leaders make a decision they have reasonable and probable grounds to start arresting the black males who were under surveillance that day. [ 26 ] Officer Peake was tasked to follow the Malibu with a view to observe activities and effect an arrest of the occupant.

The Malibu was observed parked in a back alley behind the Econo Lodge Motel just a few blocks distance from the Riviera. At first a female was observed standing at the passenger window talking to the driver, which evidence establishes was Mustafa Omar. Then the female was seen seated in the Malibu.

At approximately 5:00 p.m. police approached the Malibu in the back alley from opposite directions and arrested Omar and the female passenger for possession of a narcotic for the purpose of trafficking. [ 27 ] Through cross-examination defence brought out the arrest was effected in an assertive manner with the occupants prone to the ground and handcuffed. Mr. Omar was searched incident to arrest and found on his person were a folding pocket knife, two hotel room card keys, one of which was for the Riviera Hotel, two cell phones, a small padlock and $570.00 cash. [ 28 ] A few minutes after 4:00 p.m.

Raldo Thompson was seen driving away from the Riviera in the Chrysler 200. His movements observed and broadcast over the radio and interpreted as being consistent with drug trafficking as follows: - he drove in front of a house on Avenue X. A male exited the house and went to the Chrysler 200, stayed a brief minute and returned to the house; - the Chrysler 200 then went into a back alley behind Avneue X and stayed there just briefly; - the Chrysler 200 then drove to the Westgate Mall, parked near another vehicle, Thompson got out and went into the back seat of a Honda CRV, carrying two females.

He stayed inside just a couple of minutes, and then left. The surveillance officer took covert photos of this event and reported he saw what he believed was cash in the hand of Raldo Thompson as he walked back to his Chrysler 200; - when Raldo Thompson was arrested minutes later he was found to have cash and cocaine in his possession. [ 29 ] Shortly after the arrests of Omar and Thompson were effected and broadcast on the radio the surveillance and arrest of Mohammed Aden transpired.

Sergeant Hoover, was duty sergeant and following the vehicle stop and arrest of Raldo Thompson made the order that all persons associated should be arrested upon leaving the Riviera Hotel. [ 30 ] At 2:00 p.m. Officer Holowach came on shift. She was directed to begin surveillance in this matter. Sergeant Dalton provided her with a brief overview of the situation and she was dropped off to partner with Officer Landry at approximately 3:15 p.m. Neither Holowach nor Landry were shown any photos of anyone. They were directed to the three target vehicles, the hotels and black males.

Through being briefed and monitoring surveillance radio communications they had formed the opinion that trafficking activity was occurring out of the south wing of the Riviera Hotel. [ 31 ] At 4:50 p.m. they were directed to return to the Riviera. They arrived at approximately 5:00 p.m. to conduct general surveillance. They observed Mr. Aden, standing outside the southeast corner of the hotel. At that point Landry informed Holowach that he believed this individual matched the description of the passenger in one of the target vehicles that being a black male, wearing a leather jacket and a “cornrows” hairstyle.

They broadcast this information over the radio and Constable Kuffner replied he recognized the description as matching one he has seen in photographs earlier that day who was a passenger in the black Chrysler 200. Once the description and identity was verified they decided that Mr. Aden was arrestable. They formed this opinion on their own without being directed to arrest Aden. [ 32 ] Their evidence then describes the events as they unfolded. Mr. Aden continued to walk from the Riviera parking lot, west

across Avenue C to the parking lot of the Co-op Home Retail Centre. Having already decided he was arrestable for trafficking, they followed Omar in their vehicle, parking in the Co-op parking lot. Mr. Aden entered the Co-op lumber store, as they parked, a journey of approximately two minutes. [ 33 ] After a minute or two Mr. Aden exited the Co-op store, Holowach and Landry exited their vehicle and ran towards Aden. They both had their police badges in plain view and announced they were police. Holowach stated that Mr. Aden was under arrest.

She stated her subjective opinion and intent that the arrest was for drug trafficking. This had occurred in just ten plus seconds and he had walked approximately 10 metres from the Co-op store entrance. [ 34 ] Mr. Aden stopped upon the officers identifying themselves and looked directly at them. Both officers described at that stage seeing a plume of smoke being exhaled from Mr. Aden’s mouth. They both proferred that it had the smell of burnt marijuana.

Officer Holowach at no time recalls seeing a marijuana joint and at no time was one ever retrieved or discovered by the police. [ 35 ] In any event Holowach then grabbed Mr. Aden’s right hand, while Landry grabbed his left hand. Landry pushed Mr. Aden up against a link fence so the officers could get his hands behind him to place handcuffs on. Mr. Aden then slipped out of his leather jacket, evaded the grasp of the two police officers and ran northbound through the Co-op parking lot and into traffic at the very busy intersection of Circle Drive and Avenue C.

The intersection where Denny’s and the Riviera are kitty corner to each other. Officer Landry continued on foot in hot pursuit. Holowach stopped to pick up the jacket, and then followed. [ 36 ] Mr. Aden ran into traffic and then into the intersection of Avenue C and Circle Drive. At this point he was physically tackled and a takedown occurred. During the chase, an RCMP Special “O” vehicle had parked in the intersection to stop traffic and Office Kuffner arrived on the scene to assist. This foot chase and apprehension took 30 seconds to one minute to elapse. [ 37 ] Mr.

Aden was handcuffed, advised of his reason for arrest and read his rights to counsel and rights to silence. Officer Holowach then turned Mr. Aden’s abandoned jacket over to Officer Kuffner at approximately 5:05 p.m. Mr. Aden was placed in a marked police vehicle for transport to the police station. After ten to fifteen minutes Officer Holowach then left the scene to go back to surveilling the Riviera hotel. Office Kuffner during that time searched Mr. Aden’s jacket incident to arrest. [ 38 ] He also stated that he wanted to determine what was in the pockets of the jacket before putting it in with Mr.

Aden’s property, ultimately to be returned to him. He was checking for weapons and evidence of drug offences. [ 39 ] He then broadcast that he had found a room key card that he believed was for the Riviera Hotel in Mr. Aden’s jacket pocket. [ 40 ] Thereafter Officers Kuffner, Landry, Holowach, Bonstrom-Peake and Sperlie attend to and meet at the Riviera lobby. Officer Kuffner was in possession of the room key he found on Mr. Aden and Officer Sperlie was in possession of a room key found on Mr. Omar. [ 41 ] They presented the keys to hotel staff who confirmed both keys were for room 230.

In addition the staff provided them a print out showing the room had been rented at 1:13 p.m. to a person named Omar Hirad. [ 42 ] At this stage after radio and in person communications it was decided that due to exigent circumstances they should effect an immediate entry of room 230 without a search warrant. All the officers knew that for an hour or more, Officer Tryone had been back at the police station gathering material and drafting an Information to Obtain a Search Warrant for the Riviera Hotel and a residence at 1229 Avenue D North in the city.

However, the police officers determined they could not and should not wait any longer due to exigent circumstances. They had just effected a volatile, highly visible arrest in the middle of an intersection which might be visible from the rooms of the Riviera. They had also just arrested two other target individuals. They did not know who had seen this or what other communications may have occurred as a result. They feared destruction or disposal of any evidence which may be in a Riviera hotel room pending waiting for a warrant, which their experience shows, often happens in these types of investigations.

Also they had concerns for officer safety if they entered the room after any occupants may have been alerted of their pending arrival. Thus they made the decision to make an immediate, exigent warrantless entry of room 230.

[ 43 ] Officers Holowach and Sperlie were the first to enter the room which was unlocked by Officer Kuffner using the key he had found in Mr. Omar’s jacket. They found Anthony Durrant and Omar Hirad lying on the room bed. Officer Kuffner entered the bathroom and found no one in there. However he saw in plain view on the left side of the sink vanity a baggie of what appeared to be a significantly large quantity of crack cocaine.

Photos B and C of Exhibit P-16 represent its location and clear plain view visibility. [ 44 ] Subsequent to their entry, police arrested the two occupants and exited the room without disturbing anything. They guarded the room and did not re-enter until they were in possession of a search warrant later in the evening. [ 45 ] The preceding is the relevant evidence in relation to the grounds the police would have relied on in order to form their reasonable and probable grounds to justify a warrantless arrest of Mohammed Aden, Mustafa Omar and Raldo Thompson on May 2, 2012.

There is significant other evidence which will be reviewed by the Court in its subsequent decision on the trial proper. Facts re: Mustafa Omar s. 10(

b) Right to Counsel [ 46 ] Rights and warnings were read to Mr. Omar at the scene of his arrest and he indicated his understanding of same and he said yes he did want to speak to a lawyer. He was transported to the police station and at 5:24 p.m. a strip search was conducted prior to his being lodged in the cells. Police evidence was to the effect that in order to complete their investigation and ensure that officer safety was not compromised and evidence not destroyed pending getting search warrants and entering the respective buildings that they did not allow Mr. Omar to call a lawyer till all was complete. Mr.

Omar was permitted to call a lawyer at 1:55 a.m. on May 3, 2012. He was unable to reach his lawyer at that hour of the night and did not have a completed lawyer call until 10:09 a.m. on May 3, 2012. Police did not attempt to elicit any evidence from Mr. Omar during that time period.

Applicable Law [ 47 ] The applicable provisions of The Canadian Charter of Rights and Freedoms are as follows: s. 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. s. 8 Everyone has the right to be secure against unreasonable search or seizure. s. 9 Everyone has the right not to be arbitrarily detained or imprisoned. s. 10 Everyone has the right on arrest or detention

a) to be informed promptly of the reasons therefor;

b) to retain and instruct counsel without delay and to be informed of that right; and

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. s. 11 Any person charged with an offence has the right

a) to be informed without unreasonable delay of the specific offence.

s. 24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [48] Messrs. Omar and Aden have the burden of persuading the Court that their Charter rights have been infringed, denied orbreached.

The burden shifts to the Crown once the accused has demonstrated that the search was a warrantless one and the Crown mustthen show that the search was reasonable. The standard of proof in both circumstances is on a balance of probabilities. (See: R. v.Besharah (2010), 251 C.C.C. (3d) Sask. C.A., para. 35; R v. Collins, (SCC), [1987] 1 S.C.R. 265 paras. 21, 32 and 33)Further, in R v. MacKenzie. 2013 SCC 49 , [2013] S.C.J.

No. 49 at paras. 44 and 45 the Supreme Court of Canada stated: 44 Manifestly, if the officers were in fact engaged in random traffic stops to check for drugs, their actions would be unconstitutional andamount to a serious abuse of the powers society has entrusted to them. Had the trial judge so found, this would also have tainted theentirety of their evidence and put an end to the matter. There would have been no need for the trial judge to write a decision devoted inthe main to the principles of law governing sniff searches and the meaning of the term “reasonable suspicion”.

A simple rejection of theofficer’s evidence would have sufficed. 45 The allegations underlying such a finding and the ramifications for both the appellant and the officer are serious matters, not to betaken lightly. I accept that there will be cases in which a trial judge refuses to act on an officer’s testimony where the trial judge has realconcerns about the officer’s veracity. See, e.g., R. v. Turpin, 2010 SKQB 444, 365 Sask. R. 67, aff’d 2012 SKCA 50, 393 Sask. R. 184.

In such cases, where the officer’s testimony is crucial, the Crown will have failed to prove on a balance of probabilities that itswarrantless search was reasonable (Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 161; R. v. Collins (SCC), [1987] 1 S.C.R. 265, at p. 278. [49] Section 495(1)(

a) and (

b) of the Criminal Code states: 495(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence; (

b) a person whom he finds committing a criminal offence; or . . . [50] The precursor to this

section required both reasonable and probable grounds before an arrest could be made without warrant. Although some courts suggested this to mean that there was now a distinction to be drawn between grounds that were reasonable, as opposed to both reasonable and probable, the Supreme Court in R. v. Loewen, 2011 SCC 21 , [2011] 84 C.R. (6th) 215 at para.17 stated: . . . an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, inaddition, be justifiable from an objective point of view.

That is to say, a reasonable person placed in the position of the officer must beable to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need notdemonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case forconviction before making the arrest.

[51] The test for reasonable grounds to arrest can be summarized as follows (outlined in R. v. Shinkewski (2012), 2012 SKCA 63, 289 C.C.C. (3d) 145 (SKCA) at paragraph 13):

i) The arresting officer must have subjectively reasonable grounds for arresting; ii) Those reasons must also be objectively justifiable from the point of view of someone in the position of the arresting officer; (iii) Although something more than a hunch or a suspicion is required by the arresting officer (R. v. Morelli, 2010 SCC 8 2010SCC 8, [2010] 1 S.C.R. 253, at para 91; R. v. Mann, 2004 SCC 52 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Simpson (ON CA) (1993), 79 C.C.C. (3d) 482 (Ont.

C.A.), he is not required to establish a prima facie case for conviction (R. v.Storrey) or even that it was more likely than not than an offence was committed. (R. v. Mugesera v. Canada (Minister of Citizenship &Immigration), 2005 SCC 40 2005 SCC 40, [2005] 2 S.C.R. 100). (iv) The arresting officer has an obligation to consider all reliable information. (

v) The cumulative effect of the information available to the arresting officer is what is assessed, not each piece in isolation (R. v.Nguyen, 2010 ABCA 146 2010 ABCA 146, 477 A.R. 395; and R. v. Storrey). (vi) The dynamics of investigation and arrest must be considered and appreciated: officers must act quickly in “volatile and rapidlychanging situations:. The information available to the police necessarily may be less than exact or complete. [52] In R. v.

Shinkewski (2012), 2012 SKCA 63 , 289 C.C.C. (3d) 145the Saskatchewan Court of Appeal at paragraphs13, 14 and 15 gave a significant review of the legal standard for “reasonable grounds to believe” when it stated: 13 The legal standard of “reasonable grounds to believe” has been the subject of considerable judicial

interpretation. I do not propose toreview it all; however, I make the following observations from the jurisprudence: (

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

b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities (Mugesera c.Canada (Ministre de la Citoyenneté & de l’Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 (S.C.C.) Or a prima facie case forconviction (R. v. Storrey) before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” ora hunch (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.), at para 91; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v.Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.). (

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

d) a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion: R. v. Savage,2011 SKCA 65, 371 Sask. R. 283 (Sask. C.A.); R. v. Nguyen, 2010 ABCA 146, 477 A.R. 395 (Alta. C.A.); and R. v. Storrey; and 2012CarswellSask 406, 2012 SKCA 63, [2012] 9 W.W.R. 674, 103 W.C.B. (2d) 396, 289 C.C.C. (3d) 145, 264 C.R.R. (2d) 11, 399 Sask. R.11, 552 W.A.C. 11

(e) “. . . the standard must be interpreted contextually, having regard to the circumstances in their entirety, including the timing involved,the events leading up to the arrest both immediate and over time, and the dynamics at play in the arrest”: R. v. Nguyen, at para. 18; and,context includes the experience and training of the arresting officer: R. v. Nolet, at para. 48; R. v. Whyte, 2011 ONCA 24, 266 C.C.C.(3d) 5 (Ont. C.A.), at para. 31; and R. v.

Luong, 2010 BCCA 158, 286 B.C.A.C. 53 (B.C.C.A.), at para. 19. 14 After reviewing the evidence in his written reasons, the trial judge found Sergeant McDonald had “arguably” possessed reasonablegrounds to suspect criminal activity, but given “the paucity of the information available to him and its equivocal nature”, the sergeant’ssuspicions were insufficient to satisfy the standard of “reasonable and probable grounds to arrest” or, and somewhat inconsistently, eventhat of “reasonable ground to suspect criminal activity”.

Nevertheless, the trial judge accepted that Sergeant McDonald had subjectivelybelieved he had reasonable grounds to arrest the operator of Mr. Shinkewski’s vehicle. In reaching his conclusion, the trial wrote: [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. 15 With respect, the trial judge’s reasons contain errors of law in both the identification of the applicable standard and the application ofthat standard to the facts. [53] Three recent decisions, R. v. Chehil, [2013] SCC49; 2013 SCC 49 , [2013] S.C.J. No. 49, S.C.C.; R. v. MacKenzie2013 SCC 50 , [2013] S.C.J. No. 50; [2013] SCC 50; R. v.

Mai Nguyen [2013] SKQB 36 (Popescul, CJQB) in dealing with acentral issue of “reasonable suspicion: as opposed to the more stringent test of “reasonable and probable grounds” as found in this case,clearly set out the “intellectual analytical steps” the Court must follow in assessing the evidence before the Court.

The Court is verycognizant that the tests in those cases were in relation to deploying and using “sniffer dogs”, involving “reasonable suspicion” fordetention, before they would have “reasonable and probable” grounds to make an arrest. [54] However the Court takes direction from those decisions in assessing whether in this case the police had “reasonable andprobable” grounds to effect a warrantless arrest of Messrs. Omar and Aden. [55] In R. v. Nguyen, Popescul, CJQB at paras. 26 - 32 stated: [26] In R. v.

Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 569, a majority of the Supreme Court of Canada established taht the use of adrug detection dog as an investigational tool is reasonable, without prior judicial authorization, provided that the police have grounds to“reasonably suspect: the presence of drugs. Speaking for the majority, Binnie J. defined “reasonable suspicion” as: 75 The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” isan expectation that the targeted individual is possible engaged in some criminal activity.

A “reasonable” suspicion means somethingmore than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123: [T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely heldsubjective belief is insufficient.

Instead, to justify such a search, the suspicion must be supported by factual elements which can beadduced in evidence and permit an independent judicial assessment. [p. 125] . . .

What distinguishes “reasonable suspicion” from the higher standard of “reasonable and probable grounds” is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search. [p. 126] “Reasonable suspicion”, therefore, is an articulation of a standard that is used to assess whether a person may possibly be involved in criminal activity.

The reasonable suspicion standard is often contrasted with indiscriminate police conduct that is based merely on a hunch, intuition or speculation, none of which is sufficient to support an objectively based reasonable suspicion. See R. v. Kang-Brown , supra , at paragraphs 26 and 75 - 77 . [27] Since the “reasonable suspicion” standard is lower than the “reasonable and probable grounds” standard, it logically follows that the degree of reliability and the amount of information to establish that lower threshold is lower. This was recognized by our Court of Appeal in R. v.

Savage , 2011 SKCA 65 , 371 Sask.R. 283, where, at paragraph 18, Smith J.A. said: [18] Reasonable suspicion is lower standard and can be established by less evidence, with less probative value, than reasonable and probable cause. [28] Nonetheless, As Binnie J. points out in Kang-Brown , because the search is conducted without prior judicial authorization, the “after-the-fact” judicial scrutiny of the grounds for the alleged “reasonable suspicion” must be rigorous. See also Caldwell J.A. in R. v. MacKenzie , 2011 SKCA 64 , [2011] 12 W.W.R. 102, at paragraph 25 (leave to appeal to S.C.C. granted, [2011] S.C.C.A.

No. 359 (QL), argued in the Supreme Court of Canada on January 22, 2013, and reserved). [29] However, the after-the-fact judicial review must be conducted in a principled fashion which does not amount to second-guessing. The officer’s belief in the existence of a reasonable suspicion ought not be disturbed unless it is unreasonable or not rationally capable of supporting an inference of suspicion. See R. v.

Gunn , 2012 SKCA 80 , 399 Sask.R. 170, at paras. 15-23 . [30] Further, in reviewing the question of whether the police had an objective basis upon which to act, the Court must take into account that the police at the scene are often required to make quick decisions based on available information, some of which may not be complete or exact, in situations that are rapidly changing and potentially volatile. Judicial reflection is not a luxury the police enjoy, and their decisions should not be viewed in the same way as an unhurried decision made after full debate and careful deliberation. See R. v.

Nolet, 2009 SKCA 8 , [2009] 4 W.W.R. 604. [31] Another important consideration is the investigative officer’s training and experience. In some situations, such as drug investigations, the work of the police can be very specialized. The significance of the inferences and deductions that a highly trained and very experienced officer might draw from a particular situation might easily elude the lay person. This concept has been consistently applied by our Court of Appeal. In R. v. Yeh , 2009 SKCA 112 , [2009] 11 W.W.R. 193, Richards J.A. opined: 53 Constable Wilson’s assessment of the situation involving Mr.

Yeh must be considered against the background of the now established notion that the experience and training of a police officer should be taken into account when the reasonableness of a suspicion is assessed. This is because a fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police. See: R. v. Mouland , 2007 SKCA 105 at para. 26 .

This said, it is also clear that, when necessary the courts must be prepared to look carefully at what is held out to be “experience” or “training” in order to ensure that the integrity of the reasonable suspicion concept is maintained. See also R. v. Nolet , supra , and R. v. MacKenzie, supra . [32] It further logically flows that the Court, when assessing the situation, ought to step back and consider the totality of the circumstances, including inculpatory, exculpatory and neutral indicators.

In doing so, however, the Court must assess and appreciate the relevance of the indicators in the context of all of the circumstances, and not in isolation. The fact that an indicator may have an innocent explanation does not necessarily take away its probative value. In R. v. Savage (Sask. C.A.), supra , Smith J.A. put it this way at paragraph 21:

21 In my view, the trial judge erred in failing to assess or to appreciate the probative value, or the relevance, of the factors cited by theofficers as grounding their suspicion. The test is not whether there might be an innocent explanation. It is whether the presence of sucha fact enhances or makes more likely the possibility of the crime at issue. In my respectful view, each of the factors relied upon by theofficers was objectively relevant to and logically probative of their ultimate suspicion. [56] In R. v.

Chehil, supra, the Supreme Court of Canada at para. 3, 33, 34 and 35, 55 and 62 stated: 3 In my view, there is no need to revise the reasonable suspicion standard. It is a robust standard determined on the totality of thecircumstances, based on objectively discernible facts, and is subject to independent and rigorous judicial scrutiny. As doherty J.A. saidin R. v.

Simpson (1993), (ON CA), 12 O.R. (3d) 182 (C.A.), at p. 202, the standard prevents the indiscriminate anddiscriminatory exercise of police power. . . . 33 Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of thecircumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regardingreasonable suspicion. As Doherty J.A. found in R. v.

Golub (1997), (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 751,“[t]he officer must take into account all information available to him and is entitled to disregard only information which he has goodreason to believe is unreliable”. This is self-evident. 34 However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seekout exculpatory factors or rule out possible innocent explanations. As was noted in United States v. Sokolow, 490 U.A. 1 (1989), at p. 10(citing Illinois v.

Gates, 462 U.S. 213 (1983), at p. 244, footnote 13), “the relevant inquiry is not whether particular conduct is ‘innocent’or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts:. In conducting this inquiry to ascertainwhether reasonable suspicion was present, the court will assess the circumstances the police were awre of at the time of the execution ofthe search, including those learned after the decision to deploy the sniffer dog was made if there is a delay in deployment, as there was inthis case.

However, it would not be permissible for the reasonable suspicion inquiry to assess circumstances learned after the executionfo the search: ss Kang-Brown, at para. 92. 35 Finally, the objective facts must be indicative of the possibility of criminal behaviour.

While I agree with the appellant’s submissionthat police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, Ido not accept that the evidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specific known criminalact. . . . 55 Once a sniffer dog has delivered a positive indication, the police often seek consent for a verification search. Provided that theconsent is properly sought and obtained, the search will respect s. 8 of the Charter: see R. v. Borden, (SCC), [1994] 3S.C.R. 145.

Alternately, the police may determine that they have the grounds required under the Charter to proceed with a warrantlessarrest, namely reasonable and probable grounds to believe that the accused has committed an offence: see R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, at pp. 249-51. If the arrest is validly made, the police may conduct a search incident to arrest in order tosecure evidence that could be used at the accused’s trial: see Caslake.

That is what occurred in this case, and in the majority of reportedcases dealing with sniff searches occurring post-Kang-Brown in which the police conducted a search to confirm the presence of drugs. . . . 62 The Court of Appeal found that the trial judge erred by looking at each factor individually. In their view, it was not determinative thateach factor, viewed in isolation, was capable of innocent explanation. They found that the circumstances must be looked at in theirtotality, which precludes a divide and conquer approach that finds each factor individually equivocal. [57] In R. v.

MacKenzie, supra, the Supreme Court of Canada reiterated several principles including: 1) The reasonable and probable grounds standard is a more demanding standard than the reasonable suspicion standard. 2) Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met.

However, that training and experience must not be accepted uncritically. Nor is deference necessarily owed to a police officer’s view of the circumstances. It must be subjected to rigorous judicial review. 3) The analysis of objectively based criteria should be conducted through the lens of a reasonable person standing in the shoes of the police officer. [ 58 ] Where a search is warrantless, as in this case, it is presumptively unreasonable.

However, if the Crown is able to establish on a balance of probabilities that the search was authorized by law, that the law itself is reasonable, and the manner in which the search was carried out was reasonable, then the warrantless search will not be found to be unreasonable. A search incident to arrest, however, must have at its heart a lawful arrest. If the arrest is not lawful, the search is also not lawful. [ 59 ] Accordingly, it is this Court’s responsibility, in the context of Messrs.

Omar and Aden’s Charter applications, to assess whether the reasonable and probable grounds standard for a warrantless arrest and search has been met, considering the entire constellation of objectively discernible facts, as assessed through the police officers training and experience. The Court must be ever mindful that this must be subjected to a rigorous, objective judicial review.

Issues and Analysis [ 60 ] The issues are: 1) Did the police officers who ordered and or made the arrests of Mustafa Omar and Mohammed Aden on May 2, 2012 have reasonable and probable grounds to believe they had committed or were about to commit an indictable offence?

a) The subjective analysis: Did they have the requisite subjective belief?

b) The objective analysis: Were there sufficient objective criteria to support their requisite subjective belief? 2) Were Mustafa Omar ’s s. 10(

b) Charter rights to counsel breached? 3) Were the searches incident to arrest reasonable such that their s. 9 rights were not breached? 4) If any of their Charter rights were breached then what remedy if any should be accorded to them? [ 61 ] The following is a brief

summary of the objective criteria forthcoming from the evidence: 1) In early April the drug unit received information from confidential sources of black males trafficking in cocaine in a dial-a-dope operation; 2) Around April 27, further confidential information was received similar to and supporting the earlier information and this time added details referring to a residence in the 600 block of 33 rd Street; 3) April 27 and 28 covert surveillance confirmed seeing black males and individuals coming and going to and from the residence. The drug unit officers, with years of drug enforcement experience, believed this to be consistent with drug trafficking;

4) Further information suggested two target vehicles, a blue Cobalt and a gold Chevrolet Malibu, licence #289 IHH. Further checks revealed the name Jason Owasu, from Ontario, who had been previously charged with drug trafficking offences. (See: R. v. Mai Nguyen (supra) , paras. 68 and 69) The real gold Malibu was followed to the Heritage Inn on one occasion, supporting an inference from their confidential source that the operation moved from 33 rd Street to a hotel; 5) Surveillance on May 2, found the gold Malibu (which had a rental agreement until May 4)a at the Comfort Inn.

A new vehicle, being a black Chrysler 200 became another target vehicle. It involved black males as well. The activities and interactions of the males coming and going were consistent with drug trafficking and also lead to the reasonable inference that they knew each other and were potentially involved in common activities; 6) Investigation revealed the name Raldo Thompson, also not a usual resident of Saskatoon; 7) The vehicles came and went from the Comfort Inn and made stops such that the police could reasonably infer it was consistent with trafficking.

Subsequent detaining of people at the Comfort Inn revealed the room was being used by a female providing sexual services and not for drug trafficking. However as set forth by the Supreme Court of Canada in Mackenzie and Chehil , at the time one of the reasonable inferences was consistent with drug trafficking; 8) The gold Malibu was followed to the back alley at Avenue D; 9) After 12 noon the gold Malibu and the black Chrysler end up at the Denny’s parking lot.

Four black males are observed leaving Denny’s now confirming that they know each other and are probably involved in activities together; 10) Covert photos of Mr. Thompson and Mr.

Aden are taken which were used as a basis to make further identifications and confirm associations; 11) The black Chrysler was followed and seen making stops capable of a reasonable inference of drug activity; 12) The gold Malibu and blue Cobalt vehicles were seen together in the Comfort Inn parking lot; 13) The black Chrysler and gold Malibu are seen together at the Riviera parking lot; 14) The black male occupants of the two target vehicles are seen entering the Riviera Hotel together; 15) The black Chrysler leaves and is observed making three stops supporting a reasonable inference consistent with drug activity; 16) The gold Malibu is seen making a stop capable of a reasonable inference of drug activity; 17) Mr.

Aden is seen exiting the Riviera. It is confirmed he fits the description of the passenger in the black Chrysler. All this objectively supports a reasonable inference he is associated with the group of black males under surveillance and consistent with probable drug activity; 18) Upon Mr. Aden being physically detained for an arrest he slips out of his jacket and flees.

[ 62 ] Defence counsel skilfully and carefully cross-examined all the surveillance officers and then strenuously argued most of the objective criteria relied on by the police, had a neutral or entirely innocent connotation or inference to be drawn. This is exactly the intellectual exercise that the Supreme Court of Canada stated that the Court must not enter. The Court should not individually analyse each fact to see if it had a neutral connotation or is capable of a neutral or innocent inference or

interpretation. The Court must look at the entire constellation of events. [ 63 ] Further they skilfully analysed each surveillance officer’s minute observations and inferences, separate and apart from the totality of the entire operation which involved constant radio communication. Again the Court must not follow that analytical framework. On the contrary, the Court would be concerned if each officer was able to emulate or recollect exactly what was said or confirmed.

They were in a volatile, fast moving covert surveillance operation. [ 64 ] After careful review of the evidence and jurisprudence, I conclude that there were sufficient objective grounds for the individual officers who arrested Mustafa Omar and Mohammed Aden, and the team leaders who confirmed instructions to arrest those individuals to have reasonable and probable grounds to believe the two individuals were involved in an enterprise of trafficking in drugs. I arrive at this conclusion after assessing the objectively discernible facts - whether inculpatory, exculpatory or neutral.

In doing so I also take into account the individual and collective experience of the officers involved in drug investigations and covert surveillance activities. While it is the duty of the Court to rigorously assess the objective facts, it is not the function of the Court in hindsight to individually dissect single events or inferences. [ 65 ] The Court must base its decisions on the totality of the evidence. The facts relied on by the police officers were objectively relevant and the conclusions and inferences they drew therefrom were logically probative. [ 66 ] In relation to Mr.

Aden’s arrest defence strenuously argued the reasons for arrest, disclosed by Officer Landry in his testimony. Officer Landry proferred how he saw the accused light and smoke what he believed to be a marijuana joint. He then strongly defended his subjective belief and objective grounds for the arrest was because he observed Mr. Aden in possession and smoking a marijuana joint.

Of significance is no other police officer saw a joint and none was found in the immediate vicinity of the jacket loss and flight. [ 67 ] Quite frankly after an objective analysis of his evidence the Court would not be able to find Officer Landry effected a lawful arrest because Aden was seen in possession of a joint. For the arrest of Mr.

Aden to be lawful the Court finds it would have to be based on the subjective belief of Officer Holowach that he was arrestable because she had reasonable and probable grounds he was involved in drug trafficking and possession of drugs for the purpose of trafficking. [ 68 ] As stated above, her subjective belief meets the objective tests to which the Court made a factual analysis. [ 69 ] From the above comments the Court finds the warrantless arrests of both Mr. Omar and Mr.

Aden were lawful. [ 70 ] Next the Court must decide whether the searches incident to arrest were reasonable and thus lawful. [ 71 ] The jurisprudent indicated the police have a wide latitude to search individuals incident to arrest for a number of reasons including but not limited to: 1) ensuring officer safety and safety of the public; 2) to prevent destruction or disappearance of evidence; 3) to find evidence of criminal activity.

[See R. v. Frieburg [2013] MBCA 40 (Man. C.A.)]. [ 72 ] In relation to Mr. Omar the search was reasonable in the circumstances and was a lawful search incident to arrest. [ 73 ] In relation to Mr. Aden, Defence counsel argued there was a heightened expectation of privacy in relation to Mr. Aden’s jacket. Further, once handcuffed there was no longer an issue of officer safety. In that respect Defence conveniently omits the issue of safety before the jacket can be returned to Mr. Omar. Here the search was not invasive. It involved merely checking the pockets of the jacket after Mr.

Omar had abandoned it in an attempt to escape the custody of the police. The Court finds all three above-mentioned reasons for search incident to arrest apply in the circumstances. The search of the jacket was reasonable and lawful incident to arrest. [ 74 ] The Court must now turn to the issue of Mr. Omar’s s. 10(

b) Charter rights to counsel. There is no debate that the police deliberately did not allow him access to a phone until 1:00 a.m. The evidence is there was an ongoing investigation. They were waiting for emergency search warrants to issue for the Riviera Hotel and the Avenue D properties. The police were not sure if they had arrested all the individuals involved in the enterprise. For clear officer safety and prevention of destruction or disappearance of evidence they prevented outside communication of everyone under arrest to ensure they did not contact any other possible associates or cohorts.

During that time they did not attempt to obtain any evidence from Mr. Omar and in fact, did not obtain any evidence from Mr. Omar. The immediacy of the investigation was not complete. [ 75 ] The Court finds the actions of the police in delaying his access to counsel was reasonable in the circumstances. Thus the Court finds the accused has failed to show on a balance of probabilities that his s. 10(

b) Charter rights to counsel were violated. [ 76 ] If the Court is wrong in the above finding, following on R.v. Grant analysis the Court would not have granted a s. 24(2) remedy exclusion of evidence. The evidence in question was already lawfully obtained prior to a s. 10(

b) violation. [ 77 ] The Court has found in this voir dire there were no Charter breaches. However in the interests of clarity for the Crown and the accused, it is appropriate to consider, in the alternative, whether, had there been a breach, whether the items found on both accused, incident to arrest should be excluded pursuant to s. 24(2) of the Charter . [ 78 ] In R. v.

Grant , 2009 SCC 32 , the Supreme Court of Canada held the following factors are to be taken into account on a s. 24(2) evidence exclusion analysis: 1) the seriousness of the Charter infringing conduct; 2) the impact on the Charter protected interests of the accused; and 3) society’s interest in having criminal matters adjudicated on the merits. [ 79 ] The task continues to be the balancing of individual and societal interests with a view to determining whether admission of the evidence would bring the administration of justice into disrepute. 1) Seriousness of Charter infringing state conduct [ 80 ] In this case the police officers did not act on a hunch or a whim.

It had been an investigation since early April 2012. The investigation had been carried out with different intensity at different times. In any event, a significant number of investigative resources were brought in for May 2, 2012.

[ 81 ] The surveillance disclosed a number of observations that could reasonably be inferred as consistent with drug trafficking activity. The information gathered took the matter well beyond a hunch or reasonable suspicion. It was in a fluid, rapidly transpiring environment. Given the unfolding of events and targeted individuals at three or more different locations the police had to make a decision without the luxury of more time. They did so based on their collective experiences. Training and experience are not the governing factors, however they are a factor.

Here there is no evidence of bad faith or deliberate over zealousness. The officers were acting in good faith and any breach would have been the result of a lack of time to further investigate before having to make a decision. 2) The impact on the Charter protected interests of the accused [ 82 ] The impact on Mr. Aden’s interests was not profoundly intrusive. His privacy interest was diminished as a result of his abandoning the jacket prior to the foot chase. [ 83 ] Mr.

Omar was arrested while observed in a situation, from which one could easily infer he was involved in drug activity. [ 84 ] As a result I find the impact of the breach, if any, would have been minimal. 3) Society ’s interest in having criminal matters adjudicated on the merits [ 85 ] The main evidence sought to be excluded are the Riviera Hotel keys found on both individuals. Would the truth-seeking process and trial fairness be compromised by admission of the evidence. The keys are physical, highly reliable evidence. It is not statements given by the accuseds or intrusive bodily physical evidence.

The accuseds had not demonstrated that, in balancing the various factors, the administration of justice would be brought into disrepute by admitting the evidence. [ 86 ] Following the R. v. Grant analysis the Court would not have excluded the evidence seized respectively from Mr. Omar or Mr. Aden. Conclusion [ 87 ] In conclusion the Court finds the arrests and searches of Messrs.

Omar and Aden incident to arrest were lawful and admits as full exhibits the items seized from both of them incident to their arrests. [ 88 ] The next stage of the proceedings will now be argument on the issues arising in the trial proper followed by a decision to be rendered by the Court. “Judge D.A. Lavoie ” D.A. Lavoie, J