Her Majesty the Queen - v. -, 2013 SKPC 7

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 007 Date: January 30, 2013 Information: 45144402 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Shawna Macdonell Appearing: S. Wolfe For the Crown I. Mokuruk For the Accused JUDGMENT S. C. CARTER , J [ 1 ] Shawna Macdonell (the accused) is charged with possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . The offence is alleged to have taken place on May 13, 2010, at Prince Albert, Saskatchewan.

The trial took place on October 30, 2012. The evidence was all heard in voir dire , so that the Court would be able to consider and rule upon the following issues: 1. Were there reasonable grounds to arrest the accused?

2. If not, were her s. 8 and 9 Charter rights violated? 3. If so, what is the appropriate remedy, if any? [ 2 ] The facts leading up to the arrest of the accused are fairly brief. Constables Jordan and Dunn had received information from two confidential informants to the effect that two men known to the informants as D. J. and Seth, were selling cocaine in Prince Albert, Saskatchewan. Cst. Dunn considered his source to be reliable because he had experience with this informant on 13 other investigations.

This informant told Dunn that the two men had been at the Marlboro Hotel but were now living at 424 - 22 nd Street East, Prince Albert. The male called D. J. was tall and skinny, while Seth was described as 5'9" and chubby. One of the vehicles used by the men was a white Chevrolet Blazer (the Blazer), with Alberta licence plates. Cst. Jordan’s source of information came from someone he had never heard of or from before. This informant gave information similar to that of Cst. Dunn’s informant. The cocaine was described as being both hard and soft. A cell phone number was given to Cst. Jordan as well.

The Blazer and a red Corsica, with Saskatchewan plates, were observed at the house on 22 nd Street. Based upon the above a search warrant was granted authorizing a search of 424 - 22 nd Street East, as well as a search of the two motor vehicles mentioned. [ 3 ] The warrant was obtained in the dying hours of May 13, 2010. Sgt. Farquhar, who was in charge of the investigation told those who were waiting to enter the house to wait until he, and the other officers with him in a car, found the Blazer. The Blazer was spotted at Lucky’s Bar in the east end of Prince Albert. It was followed and Cst.

Chester, who was seated in the front of the police vehicle, told Sgt. Farquhar, who was seated in the back, that he saw two people come up to the Blazer during a short stop. Cst. Chester and Sgt. Farquhar felt this was consistent with drug trafficking. At 00:50 hours on May 14, 2010, Sgt. Farquhar ordered a patrol car to pull the Blazer over. He instructed the officers that all occupants were to be arrested for possession of cocaine for the purpose of trafficking. 1. Were there reasonable grounds to arrest the accused? [ 4 ] Section 495(1) (

a) 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 an indictable offence. [ 5 ] The precursor to this

section required both reasonable and probable grounds before an arrest could be made without a warrant. Although some Courts determined this to mean that there was now a distinction to be drawn between grounds which were merely reasonable, as opposed to both reasonable and probable, [1] the Supreme Court in R. v. Loewen , [2] laid that debate to rest. [3] Thus despite the wording of s. 495(1) (

a) a peace officer must have both reasonable and probable grounds to properly arrest a person without a warrant to do so. [ 6 ] In R. v. Storrey , the Supreme Court of Canada stated that: [4] ...an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest.

On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest. [ 7 ] Sgt. Farquhar was in charge of the overall investigation. It was his decision to have the Blazer pulled over and to have all of the occupants arrested. There is no doubt that he felt that he had the subjective grounds to do so. The question is whether those

subjective grounds were “justifiable from an objective point of view”. From an objective point of view Sgt. Farquhar had very little. One informant was reliable, but the other no-one had heard of before. The descriptions of D.J. and Seth were generic (tall and skinny, 5'9" and chubby). He had a search warrant which allowed him to search the Blazer. Prior to pulling the Blazer over he was told that during a short stop two people came up to it. How does this amount to objective justification to arrest the accused?

The search of the house had not yet been commenced, which meant that no-one knew if cocaine was there or not. Two people coming up to the Blazer during a short stop may be consistent with trafficking, but it is also consistent with other innocent activities. Vague information and descriptions resulting in a warrant to search a house and the Blazer may have given Sgt.

Farquhar grounds to order the occupants of the Blazer to be detained, but he did not have objectively justifiable grounds to arrest the occupants - particularly the accused who was not part of any of the information or observations that had resulted in the search warrant. 2. Were the Accused ’s s. 8 and 9 Charter rights violated? [ 8 ] The arrest of the accused was, in my view, unlawful, because it was not based upon reasonable and probable grounds. The accused’s s. 9 Charter right was infringed. The subsequent search of her person was therefore also a breach of her s. 8 Charter right. 3.

What, if any, remedy should there be for these breaches? [ 9 ] It is tempting to look at the results of the arrest of the accused, the subsequent search of her person, and the finding of evidence at the house all of which was extremely incriminating to her, to simply say that although there were breaches of her Constitutional rights, a lawful detention would no doubt have brought about the same results. However, the ends should not justify the means. The Grant [5] analysis in this case is as follows: 1) The breaches of the accused’s s. 9 and 8 Charter rights were serious.

The accused was a back passenger in a motor vehicle which the police suspected was involved in trafficking cocaine. No informant told the police that a female was involved, or that a female was even associated with the house for which they had obtained a warrant to search. She could have properly been detained and advised of her s. 10 Charter rights, but not arrested and searched. Arresting her on a suspicion was a serious breach of her Charter right as was the subsequent search. 2) That search of course resulted in cocaine being produced from inside her body. This is damning evidence, if lawfully obtained.

The unlawful arrest and search of the accused resulted in serious consequences to her. Proper observation of Charter rights by the police may be inconvenient, but they exist to protect individuals from unlawful conduct by the state. 3) The state represents our society, which has a vital interest in this case being tried on its merits. Drug addiction, fed by drug trafficking, is a horrible scourge in our city, our Province, and across Canada.

However, society’s interest in this case proceeding to adjudication on its merits does not override the serious breaches and the consequences of those breaches upon this accused. [ 10 ] The arrest of the accused was unlawful. The subsequent search of her person and the statement elicited from her, were obtained in breach of her Charter rights, which breaches have not been saved by the Grant analysis. The evidence obtained from those breaches is therefore excluded and will not form part of the evidence against the accused.

Her statement and the cocaine found upon her person are inadmissible against her in this trial [ 11 ] Dated at the City of Prince Albert, in the Province of Saskatchewan, this 30 th day of January, A.D. 2013. _____________________________________ S. C. Carter, J

[1] See: Gorlewski, Alex, “R. v. Loewen, and Reasonable Grounds for Arrest: The Supreme Court’s overlooked advice.”, [2012] 94 C.R. (6th) 319. [2] R. v. Loewen, 2011 SCC 21 , [2011] 84 C.R. (6th) 215. [3] Ibid, para. 5. [4] R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, at paragraph 17. [5] R. v. Grant, 2009 SCC 32.