Her Majesty the Queen - v. -, 2012 SKPC 164

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 164 Date: October 18, 2012 Information: 30902019 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Stacey Keith Paintednose Appearing: E. Addabor For the Crown V. Harvey For the Accused DECISION RE: VOIR DIRE H. M. HARRADENCE, J I. INTRODUCTION [ 1 ] This accused, Stacey Paintednose, is charged with the following offence: On or about the 31 st day of March, A.D. 2012 at or near Prince Albert, Saskatchewan did not being authorized under the Firearms Act to

carry concealed, a weapon to wit: machete, did carry it concealed, contrary to

section 90 of the Criminal Code . [ 2 ] This matter was set for trial on June 7, 2012, before me. The proceedings at trial were unusual. The Crown called one witness, Cst. Lindsay. During the course of Cst. Lindsay’s evidence the Crown applied to admit a statement of the accused. A voir dire was held and at the conclusion of the voir dire , by agreement, argument was postponed until the conclusion of the trial evidence. After the completion of Cst. Lindsay’s evidence the Crown closed its case. The defence proceeded to call evidence. The accused testified.

At the conclusion of his evidence, counsel for the accused filed several cases and indicated she proposed to argue self-defence, specifically, claiming “prison environment syndrome” was applicable to this charge and these circumstances. Ms. Harvey also indicated that given the evidence she was considering a Charter application. She requested an adjournment to provide Charter notice and further consider her argument. Finally, Ms. Harvey indicated that she was not contesting the admissibility of the accused’s statement.

I inquired as to why she had not indicated her consent instead of proceeding with the voir dire . She responded by saying that she had been informed that counsel could not waive a voir dire in any circumstances. This clearly is not the law. [1] [ 3 ] The matter was adjourned for argument. On the adjourned date Ms. Harvey indicated that she was abandoning the self- defence argument. She was initiating a Charter argument alleging the accused was arbitrarily detained, contrary to s. 9 of the Charter and requesting that the evidence obtained as a result of the detention should be excluded pursuant to s. 24(2). Ms.

Addabor consented to the commencement of a voir dire for the purposes of determining the Charter issue. By agreement the evidence of Cst. Lindsay was applied to the Charter voir dire . The evidence of the accused was not applied. In addition counsel was given the opportunity to call further evidence and declined, however, counsel did agree that they would admit the fact that the accused was detained for 16 minutes prior to Cst.

Lindsay providing him with his legal rights. [ 4 ] This is the decision on the Charter voir dire regarding the admissibility of the evidence obtained as a result of the detention of the accused by Cst. Lindsay. II. THE FACTS [ 5 ] Cst. Lindsay, an officer with approximately three years experience, testified in examination-in-chief as follows: [2] A Yes. It was shortly after three o’clock in the morning, coming down 13th Street -- it would’ve been east towards Central Avenue. And I noticed people walking that were in the downtown area: a male and a female.

The female was, kind of, waving her arms, trying to flag me down at the time, at the corner of 13th and Central there, saying – . . . A Central Avenue, 13th Street. It’s by the Canada building. Female was waving her arms and asking for police to stop. The window was down, kind of reached -- like, leaned out the window a little bit, and she pointed to a group of people that were walking on the sidewalk southbound on Central right by the Canada building. And she goes, “Somebody has a machete.” She pointed to this group of people.

So I immediately pulled the vehicle over, got on the radio, and requested another police cruiser to stop by and assist with my detainment there on Central Avenue. So the male and female continued to walk away. There was a group of people that I had stopped in front of. I don’t remember – recall exactly. There was, like, four or five of them, I believe, carrying alcohol, talking, yelling, swearing, and I was trying to figure out exactly which one had the machete with him. Q Mmhmm. A So I stopped them.

Some of them were extremely intoxicated, so I just, kind of, was trying to figure out exactly who I thought would have it. And the one gentleman who, kind of, went to the back of the group trying to hide himself or conceal himself from being in the front of the group -- so I went at him and, sure enough, that was the gentleman who had the machete on him. By that point, my backup had arrived. Constable Keith and Constable LeBlue. I already had the gentleman who I assumed had the machete on him; I had him in custody.

I was placing him in handcuffs overtop of the flower cement beds in front of the Canada building there. Constables LeBlue and Keith rolled up. I stood the gentleman up and, sure enough, there was a machete that was stuffed in his pant leg. Pulled it out of the pants. I took it into custody, placed it in the back of patrol cruiser. Constables LeBlue and Keith took the male who had the machete in his pants to the cells and he was lodged. That gentleman had ID on him -- photo ID. That was Mr. Paintednose. Q Okay. Did you get a clear look at this person who had the machete on him?

A I’m sorry, could you repeat the question? Q Did you get a clear look at the person who had the machete on him? [ 6 ] Further, Cst. Lindsay had the following exchange with Ms. Harvey in cross-examination: [3] A Mr. Paintednose just had one thing in one hand, I believe, or I can't remember if he had anything in his hand at all or not. But he kind of scooted in behind the two or three people that were standing there, just to, kind of, cover himself. Q Okay. And then on the basis of that behaviour of Mr. Paintednose, that's why you arrested him; is that right?

A That’d be my first sign right there, yeah, trying to hide. Yeah. Q Okay. You -- so what you said is that you assumed that he had the machete? A Because of his reaction, yeah. Q All right. So you then cuffed him -- you arrest -- you arrested him; do I have that? A Well, I tried -- got rid of the other two or three people and got them out of my way and - - Q How did you do that? A Just, kind of, pushed them aside as the other patrol car was cruising up. They continued to walk -- well, tried to walk or stagger out of the way due to their level of intoxication, and grab -- put my hands on Mr.

Paintednose and put him over top of the cement planter area at the Canada building and put handcuffs on him. Q Okay. At this point, you still didn't know if he was the one who had the machete though, right? A Didn’t know. Q Okay. A I hadn't conducted a search. No, we had -- I hadn’t thoroughly searched him yet, so I wasn't confirmed -- couldn't confirm it. Q Okay. So sorry, did you arrest him or just handcuff him? A I handcuffed him at the time -- Q Yeah. A -- waiting for backup to arrive to the scene. I kept my hands on Mr. Paintednose. Q Okay.

A And he was not under arrest at that point until we discovered if he had anything on him. Q Okay. A So we weren't sure. [ 7 ] In re-examination by Ms. Addabor, Cst. Lindsay provided the following explanation for why he handcuffed the accused: [4] A If a gentleman does have a machete or a weapon on him, I do not want loose hands reaching for that weapon for officer safety reasons. So I'll place him in handcuffs before I do conduct my search, yeah. [ 8 ] Cst. Lindsay was able to identify the accused, Stacey Paintednose, as the individual he took into police custody. Based on the evidence of Cst.

Lindsay, I make the following findings of fact:

1) Shortly after 3:00 a.m. on March 31, 2012, Cst. Lindsay, a member of the Prince Albert City Police, was on patrol in the downtown core of Prince Albert. An unknown female flagged him down and pointed to a group of individuals and stated, “Somebody has a machete”. 2) Based on this information Cst. Lindsay got out of his vehicle and approached the group of individuals. Some of the individuals in the group were extremely intoxicated. There is no evidence as to the accused’s sobriety. 3) Cst. Lindsay observed the accused move towards the back of the group. Cst.

Lindsay did not request that the accused or any of the other individuals identify themselves. On the basis of the accused’s movements Cst. Lindsay concluded that he was likely in possession of a machete. 4) Based on this conclusion Cst. Lindsay physically took control of the accused and restrained him over a cement planter. Cst. Lindsay also handcuffed the accused. 5) Once the accused was handcuffed Cst. Lindsay located a machete down the side of the accused’s pant leg. 6) Despite Cst.

Lindsay’s evidence I am not satisfied that the accused was handcuffed for officer safety reasons, rather it is my conclusion that the accused was handcuffed as part of Cst. Lindsay’s de facto arrest procedure. III. ANALYSIS [ 9 ] The Crown says that the search of the accused and the seizure of the machete was permissible as part of an investigative detention. The Crown further says that the physical restraint and handcuffing were necessary to ensure officer safety. The defence alleges that Cst.

Lindsay’s actions were an actual or de facto arrest without reasonable grounds and any search incidental to that arrest is unlawful. [ 10 ] The onus is on the defence to establish a violation of s. 9. However, as the search was without a warrant the basis of this analysis is that the search was unreasonable. As such, the Crown must establish on a balance of probabilities that the warrantless search was authorized by a reasonable law and carried out in a reasonable manner. [5]

a) Defining Investigative Detention and Arrest [ 11 ] The expansion of police powers to include the ability to detain an individual for investigative purposes was confirmed by Mr. Justice Iacobucci in R. v. Mann . Justice Iacobucci defined the necessary limits of an investigative detention in the following terms: [6] The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. [ 12 ] In R. v. Yeh , Justice Richards of the Saskatchewan Court of Appeal differentiates between a hunch and a reasonable suspicion: [7] [44] Significantly, the Supreme Court stressed that a hunch based on intuition gained by experience does not constitute a reasonable suspicion. There must be objective grounds which support the opinion of the police officer.

[13] The defence says that the practical effect of Cst. Lindsay’s actions resulted in an arrest of the accused. The basis for an arrest requires reasonable grounds. The Saskatchewan Court of Appeal considered reasonable grounds in R. v. Shinkewski:[8] [13] The legal standard of “reasonable grounds to believe” has been the subject of considerable judicial

interpretation. I do not proposeto review 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 objectivepoint of view – in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there wereindeed reasonable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; (

b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities (Mugesera v.Canada (Minister of Citizenship & Immigration), 2005 SCC 40 , 2005 SCC 40, [2005] 2 S.C.R. 100) 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 SCC 8, [2010] 1 S.C.R. 253, at para 91; R. v. Mann, 2004 SCC 52 , 2004SCC 52, [2004] 3 S.C.R. 59; R. v. Simpson (ON CA), (1993), 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, butmay disregard 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 , 2011 SKCA 65, 371 Sask. R. 283; R. v. Nguyen, 2010 ABCA 146 , 2010 ABCA 146, 477 A.R. 395;and R. v. Storrey; and (e) “…the standard must be interpreted contextually, having regard to the circumstances in their entirety, including the timinginvolved, 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, 2011 ONCA 24, 266 C.C.C. (3d) 5, at para 31; and R. v. Luong, 2010 BCCA 158 , 2010 BCCA 158, 286 B.C.A.C.53, at para. 19. [14] It is clear to me, based on the findings of fact which I have made that Cst. Lindsay did not possess reasonable grounds toarrest this accused, either on a subjective basis or from an objective perspective. Any seizure based on the power of search incidental toarrest, in these circumstances, would be clearly unreasonable due to the failure of Cst. Lindsay to possess reasonable grounds.

b) Reasonable Suspicion [15] Given Cst. Lindsay’s actions and his use of the word “arrest” in his testimony I am of the view that there was considerableuncertainty in his mind at the time as to whether he was effecting an arrest or an investigative detention. The cause of this uncertaintymay be his relative inexperience, or it may be his reaction to what he took to be an urgent situation. I, after reviewing the circumstances,can find nothing that indicates that it was an urgent situation. [16] The sole issue to be decided is whether, in these circumstances, Cst.

Lindsay had the authority to take the action he did as partof an investigative detention. In order to have this authority, Cst. Lindsay is required to have a reasonable suspicion as it has been defined in Mann and Yeh.[9] [17] The Crown says that Cst. Lindsay had a suspicion that was reasonable. The Crown points to the 2007 Supreme Court of Canada decision in R. v. Clayton.[10] In that case the police were dispatched as a result of a 9-1-1 call stating that there were black malesin the parking lot of a strip club with handguns. Officers set up a road block. One of the cars stopped contained two black males.

Oneof the males appeared nervous. As a result the officers requested that the males step from the vehicle. One of the males did not followpolice direction and shortly thereafter attempted to flee the scene. He was captured and physically restrained. He was in possession of aloaded semi-automatic handgun. It was alleged that the suspect was unlawfully detained.

Madam Justice Abella, on behalf of the Supreme Court, in rejecting this claim, further delineates the test for an investigative detention:[11] 30 The justification for a police officer’s decision to detain, as developed in Dedman and most recently interpreted in Mann, willdepend on the “totality of the circumstances” underlying the officer’s suspicion that the detention of a particular individual is“reasonably necessary”. If, for example, the police have particulars about the individuals said to be endangering the public, their right tofurther detain will flow accordingly.

As explained in Mann, searches will only be permitted where the officer believes on reasonablegrounds that his or her safety, or that of others, is at risk. 31 The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information

known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk. [ 18 ] In this instance Cst.

Lindsay received information that there was a machete possessed by someone in a group of individuals. He was entitled to investigate. His investigation amounted to approaching the group and noting that one individual “went to the back of the group trying to conceal himself”, no one attempted to flee the scene, as in Clayton . Importantly, Cst. Lindsay did not detain the entire group, indeed he pushed them aside, and aggressively detained this accused. I must examine the circumstances to determine how, in Cst. Lindsay’s mind, he differentiated this accused as the person he should detain from the rest of the group.

As indicated Cst. Lindsay says that the only basis for detaining this accused is that he went to the back of the group in what Cst. Lindsay determined was an attempt by the accused to conceal himself. I have concluded that this opinion by Cst. Lindsay is not, to use the words of Justice Richards in Yeh , supported by objective grounds. It is a very subjective process employed by Cst. Lindsay and amounts to nothing more than intuition or a hunch. The fact that this hunch was correct cannot justify an illegal search ex post facto . [12] Based on this intuition or hunch, Cst.

Lindsay proceeded to physically restrain this accused over a cement planter and handcuff him. [ 19 ] In R. v. Grant the Supreme Court discusses police powers in the context of investigating a crime: [13] [38] In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation.

Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel. [39] Effective law enforcement is highly dependent on the cooperation of members of the public. The police must be able to act in a manner that fosters this cooperation, not discourage it.

However, police investigative powers are not without limits… [ 20 ] This discussion is in sharp contrast to the actions of Cst. Lindsay and emphasizes the extent to which his actions were beyond the limits of effective law enforcement. [ 21 ] I conclude that Cst. Lindsay acted precipitously when he detained this accused. I do not believe he possessed a reasonable suspicion in relation to this accused, nor do I believe that his actions were limited to an investigative detention.

As stated in Mann an investigative detention should be brief in duration and does permit a pat down search for officer safety purposes. [14] What occurred in this circumstance cannot be described as of brief duration, nor can it be described as a pat down search. [ 22 ] I am of the view, applying the rationale from Clayton , that this action was not reasonably responsive to the circumstances nor was it, given the risk, no more intrusive of the accused’s liberty than reasonably necessary.

This type of police action was precisely what Justice Iacobucci stated must be guarded against in Mann : [15] 35 Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain.

The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest. [ 23 ] I am satisfied Cst. Lindsay arbitrarily detained the accused contrary to s. 9 of the Charter . The search which was incidental to this detention is unreasonable. c) Section 24(2) [ 24 ] As a result of this detention and search a machete was seized from the accused’s pant leg by Cst. Lindsay. Given my finding

that the detention was arbitrary I must consider whether the machete should be admitted or excluded, applying s. 24(2) of the Charter . Section 24(2) reads as follows: 24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 25 ] The three factors which the Supreme Court in R. v.

Grant directed be balanced by a trial judge in an application for exclusion of evidence are well known: [16]

(1) The seriousness of the Charter -infringing state conduct;

(2) The impact of the breach on the Charter -protected interests of the accused, and

(3) Society’s interest in the adjudication of the case on its merits. [ 26 ] In R. v. Harrison , a companion decision to R. v. Grant , Chief Justice McLachlin describes the balancing of these three factors as follows: [17] [36] The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case.

The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed. [ 27 ] In balancing these three factors, I rely on the guidance provided by Justice Gerein in R. v.

Perpeluk : [18] [30] Yet knowledgeable, informed and right thinking members of society would not maintain that the court’s truth seeking role should always take priority over the rights enshrined in the Charter . Equally society would not suggest that Charter rights should prevail only in minor matters. There comes a time when the rights must be enforced if the justice system is to be seen as fair, objective and above reproach. If it is otherwise, the administration of justice will be brought into disrepute.

In the short term society may be disappointed if the evidence is excluded, but it will be otherwise in the long term when the repute of the justice system will be enhanced. [ 28 ] A decision regarding the admissibility of evidence pursuant to s. 24(2) is contextual. Cst. Lindsay, at the time of this contact with the accused, was an officer with relatively little experience. He was in downtown Prince Albert by himself in the middle of the night. He received information of a potential possession of a machete. There was no sign of imminent danger.

He radioed for backup but chose not to wait for backup to arrive, rather took matters into his own hands. Instead of investigating and making inquiries Cst. Lindsay detained the accused in a manner consistent with a de facto arrest based not on reasonable grounds to suspect, but only on his intuition or hunch. He acted before even asking the accused to identify himself. There was no basis for this arrest or detention and it constitutes a serious breach of the accused’s right to be free from arbitrary detention.

It was not until 16 minutes after this detention that the accused was advised of his rights and thereafter he was taken to the police station. I find that the actions of Cst. Lindsay had a significant effect on the liberty interest of the accused.

Given these findings I am of the view that society’s interest in a trial on the merits is outweighed by society’s long term interest in the repute of a justice system which is above reproach. [ 29 ] The machete seized is excluded from evidence pursuant to s. 24(2) of the Charter . [ 30 ] Dated at the City of Prince Albert, in the Province of Saskatchewan this 18 th day of October, A.D. 2012. ________________________

H. M. Harradence, J