Her Majesty the Queen - v. -, 2011 SKPC 167

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 167 Date: Octobe r 28, 2011 Information: 24360480 Location: Swift Current, SK _____________________________________________________________________________ Between: Her Majesty the Queen - and - Troy Ernest Swanson Ms. Jodie A. Lacelle For the Crown Mr.

Glenn Verdurmen For the Accused Note: An Order has been made pursuant to s. 517(1) that the evidence taken, the information given or the representations made and the reasons given or to be given shall not be published in any document or broadcast or transmitted in any way before such time as, if a preliminary inquiry is held, the accused is discharged or, if the accused is tried or ordered to stand trial, the trial has ended. DECISION AS TO JUDICIAL INTERIM RELEASE L.A. MATSALLA , J [ 1 ] A bail hearing was conducted in this case on Wednesday of this week.

This is the decision arising out of that hearing. [ 2 ] Mr. Swanson is facing charges that between December 1, 2009 and March 30, 2010, he did: 1. import cocaine into Canada contrary to s. 6(1) of the Controlled Drugs and Substances Act (“ CDSA ”),

2. possess cocaine for the purpose of trafficking contrary to section 5(2) of the CDSA , 3. being a member of a criminal organization, knowingly participate with Brock Ernest Palfrey and Tyler Alvin Nicholson or others to import cocaine for the benefit of that organization contrary to

section 467.13 of the Criminal Code (“ CC ”) and, 4. conspire with Brock Ernest Palfrey and other persons to import cocaine contrary to section 6(1) of the CDSA and section 465(1) (

c) of the CC . [ 3 ] Section 515(6)(a)(ii) and (

d) of the Code specify that the accused must show cause why his detention in custody is not justified. The onus on the accused is to satisfy the onus on a balance of probabilities [1] . Section 515(10) sets out the grounds that are to be considered when the Court is examining the issue. The

section reads as follows: For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in Court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including; (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [ 4 ] Mr. Swanson was on bail prior to his arrest on the above charges. It is alleged that on March 26, 2010, he did: (

a) possess cocaine for the purpose of trafficking contrary to section 5(2) of the CDSA , and (

b) conspire with Brock Ernest Palfrey and other persons to possess cocaine for the purpose of trafficking contrary to section 5(2) of the CDSA and section 465(1)(

c) of the CC . After a bail hearing was held on April 14, 2010 at this judicial centre, he was released on a recognizance that required that he deposit cash bail in the amount of $75,000.00 with the Court and that he comply with numerous strict conditions. Since the order was made, he has successfully applied on a number of occasions to vary the recognizance. To date he has not been convicted of violating any of the provisions of that court order. The Defence [ 5 ] Mr. Swanson is 25 years old. He is the father of a five year old daughter who resides with her mother.

He lives with his girlfriend in Vernon, British Columbia and has a job waiting for him in Alberta. Letters of reference have been filed on his behalf from a number of persons including immediate and more distant family members, a co-worker and friends. The letters indicate that the writers have known Mr. Swanson for various periods of time. All of the letters refer to his positive character traits and his close relationship with his daughter. A number of persons including his mother travelled to Swift Current to be present at the bail hearing. Clearly he has numerous people who support him.

His family had arranged for his cash bail in April of last year and it has been his mother who has monitored him while he has been subject to the recognizance. All in all it appears that the accused is a responsible member of society who seeks to live a normal life. The Crown

[ 6 ] It is evident that subsequent to the bail hearing in the spring of 2010, the investigation into his activities continued resulting in his recent arrest in Vernon, British Columbia and his appearance in this Court. The Crown submits that the present charges arise as a result of the arrest of one Tyler Alvin Nicholson in the state of Montana in the United States who provided information implicating Mr. Swanson in incidents that commenced in December of 2009. [ 7 ] The same Mr. Palfrey referred to above faces the same charges as those facing Mr.

Swanson and he, too, was released in 2010 on a similar recognizance respecting similar charges as those faced by Mr. Swanson at that time. [ 8 ] Based on interviews conducted by investigating officers with Mr. Nicholson, the Crown takes the position that there is evidence that the same Mr. Palfrey had controlled and directed a criminal organization committed to the acquisition in the United States and the distribution in Canada of cocaine and the sale or exchange of cannabis marihuana and the illicit drug, MDA, in the United States. Mr.

Palfrey apparently had contacts in the United States from whom he could obtain cocaine and he instructed Mr. Nicholson to make purchases of the drug and to deliver the same to him and others, including Mr. Swanson, to locations along the Canada/U.S. border. He also was in a position to obtain large quantities of marihuana and MDA in Canada and to have the drugs delivered to locations in the United States. The parties communicated with one another using encrypted messages. The objectives of the operation were achieved as a result of considerable planning and forethought.

Once drugs were brought into Canada, at least three persons, including Mr. Swanson, transported the drugs across three provinces. [ 9 ] Mr. Swanson first became involved on December 15, 2009 when Mr. Nicholson at the instance of Mr. Palfrey obtained 100 kilograms of cocaine and delivered the same to a remote

section of the border where Mr. Palfrey transferred the illegal substance into Canada using a wheelbarrow. On December 31, Mr. Swanson crossed the border into the United States from British Columbia operating a vehicle that had a false compartment. He delivered the vehicle to a location in Las Vegas before returning to Canada. Mr. Nicholson then used the same vehicle to transport narcotics to the border. [ 10 ] In February of 2010, Nicholson told investigators that he used the truck to deliver 100 kilograms of cocaine to Mr. Palfrey and Mr. Swanson at another remote

section of the border where they tried, without success, to carry the drugs across the border using snowshoes and a rescue sled. After buying a snowmobile in Moose Jaw in this province they returned to retrieve the substance and to bring it into Canada. It was later discovered that the snowmobile, snowshoes and sled were kept by Mr. Nicholson in a storage shed in Great Falls, Montana where they were recovered by authorities. [ 11 ] During the latter part of February, Mr. Nicholson advised investigators that Mr.

Palfrey provided him with instructions to pick up 141 kilograms of cocaine in Los Angeles, California and deliver the substance to Mr. Palfrey and Mr. Swanson near a point along the border. Mr. Nicholson then took possession of the snowmobile and 40 pounds of cannabis and he then delivered the cannabis to a location in Montebello, California. [ 12 ] Then in March of 2010, Mr. Palfrey told Mr. Nicholson to obtain 40-50 kilograms of cocaine by exchanging cannabis for cocaine at the rate of seven pounds of cannabis for one pound of cocaine. Some 50-80 kilograms of cocaine was given to Mr. Swanson. Once again Mr.

Nicholson received further instructions in March to obtain 35-40 kilograms of cocaine in Los Angeles, California and to deliver it to another border location. It is not clear who took delivery of the cocaine but there is no evidence that Mr. Swanson was involved on that occasion. [ 13 ] Later in March, Mr. Nicholson was to obtain 40-50 kilograms of cocaine in Seattle in exchange for 40 pounds of cannabis. He transported the drugs using the vehicle with the secret compartment. He delivered the cocaine to Mr.

Swanson who provided him with the cannabis which was then taken to Montebello, California. [ 14 ] Yet later in the same month, Mr. Nicholson picked up 100 kilograms of cocaine in Montebello, 31 kilograms of cocaine in Hollywood and 20 kilograms of cocaine in Seattle. He also purchased a buggy in Redding, California. The cocaine was taken to Plentywood, Montana and then carried across the border in the buggy where it was delivered to Mr. Palfrey and Mr. Swanson. A total of 151 kilograms of cocaine was involved. Mr. Palfrey used a Global Positioning System to arrange the meet at the border, and then he and Mr.

Swanson, operating separate vehicles, drove to Moose Jaw and then in a westerly direction on Highway No. 1. Mr. Swanson was arrested east of Swift Current, carrying the cocaine in his vehicle. Mr. Palfrey was subsequently arrested. It is this incident that resulted in the charges that they faced in March of 2010 and for which the recognizance, referred to above, was ordered. As a result of the

incident, Mr. Nicholson abandoned his vehicle in California, flew to Vancouver and then proceeded to Vernon. The buggy was found in the storage unit maintained by Mr. Nicholson. [ 15 ] While the Crown alleges that 450 kilograms of cocaine was imported into Canada during the time frame specified in the information, only 151 kilograms was seized. The value of the cocaine varied from $35,000.00 - $50,000.00 per kilogram. The total value, then, if calculated on a per kilogram basis, was between $15,750,000.00 and $22,500,000.00.

The value of cocaine on the street if sold at the one gram level could mean that the total value of the cocaine was between $36,000,000.00 - $45,000,000.00 and, if diluted, the value would have been between $52,000,000.00 - $62,000,000.00. [ 16 ] Both Mr. Swanson and Mr. Palfrey have been committed to stand trial on the earlier charges and it is expected that the trial will be conducted in October of 2012. Argument [ 17 ] The Defence argues that the Crown’s case against Mr. Swanson rests entirely on the statements provided to the authorities by Mr. Nicholson.

He has not been charged with any offence and he is not in custody. There is no corroboration of the information that he has provided to the authorities. Furthermore, only 151 kilograms of cocaine was seized. There is no evidence as to what may have happened to the remaining 300 kilograms that it is alleged was imported into Canada. Counsel argues that the latter cocaine is “theoretical cocaine”. [ 18 ] The Defence submits that Mr. Swanson has strong ties to British Columbia and that he has not failed to comply with any requirements placed upon him by this Court.

He is not likely to commit any criminal offences and since the offences now before the Court do not involve firearms or violence, Mr. Swanson has shown that he ought not to be detained on the tertiary ground. [ 19 ] The Crown, however, submits that Mr. Swanson is part of a sophisticated and organized criminal group and that he made numerous trips to pick up drugs in large quantities that likely brought extremely lucrative returns.

The course of conduct supported by a criminal organization points to the potential repetition of criminal behaviour. [ 20 ] It is clear that the wrongdoing alleged in this case includes the illegal activity alleged by the Crown in March of 2010. However, while the charges that Mr. Swanson faced at that time are serious in themselves, the charges that are now before the Court (particularly as set out in counts 1, 3 and 4) allege a different kind of illegal activity conducted in a much more sophisticated manner with assistance from other persons including the accused for the benefit of a criminal organization.

Whether detention is necessary to ensure his attendance in Court. [ 21 ] The seriousness of the charge and the consequences to the accused if convicted enter into the consideration of the question. As Gary Trotter notes in his text, The Law of Bail in Canada [2] : The rationale is that a very serious charge with a severe penalty will provide greater motivation for the accused to flea the jurisdiction and to avoid facing a trial. Our Court of Appeal has often said that trafficking in cocaine is a grave offence [3] and is such a serious offence as to draw a sentence of imprisonment [4] .

Furthermore, the Court has pointed out that there is a significant impact upon society of the distribution of cocaine when it said this: This Court and many others, have long since taken judicial notice of the fact that cocaine is a pernicious drug with an insidious effect on

society. Those who permit the drug to circulate in our community cause untold hardships [5] . [ 22 ] The evidence that the Crown proposes to bring against Mr. Swanson points to his active participation. He was not a mere courier acting in an isolated instance. All indications point to Mr. Swanson as an associate of Mr. Palfrey who was the driving force behind the operation. He made a conscious decision on many occasions to leave British Columbia, to enter the U.S. for the purpose of furthering the objective of the organization and to come to Saskatchewan on many occasions for the purpose of assisting Mr.

Palfrey to bring drugs into this province. In fact it may not have been possible for Mr. Palfrey to take delivery of the drugs without the assistance of Mr. Swanson. The evidence that the Crown proposes to call has a significant degree of cogency. [ 23 ] Over a relatively short period of four months, 450 kilograms of cocaine was brought into this country. It seems to me that it would be naive to suggest that the cocaine was meant for some other purpose than for distribution for profit. Lamer J. commented on the importation of hard drugs in a decision rendered in 1987.

He said this: Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs.

Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of cold-blooded non-users), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude. [6] [ 24 ] In the case of R. v. Smith [7] , our Court of Appeal dealt with a case of trafficking and exportation of significant amounts of marihuana across Saskatchewan’s borders to the United States through the efforts of a criminal association.

The Court noted that the scheme in which the accused participated was the “most extensive scheme for the trafficking and exporting of marihuana that this province has yet encountered”. [8] The circumstances in that case pale in comparison to the cocaine importation operation that is the subject of this hearing. In Smith the subject of the enterprise was a soft drug however there was evidence that on two occasions large amounts of cocaine were purchased in the United States.

The accused was, in all other respects, a responsible father and husband however he was motivated by greed to become involved in a criminal operation on an unprecedented scale. He received a six year sentence after the Court reviewed the range of sentences in Canada for similar offences. There are cases in which sentences of twelve years in jail have been upheld [9] . Clearly, then, the consequences to Mr.

Swanson if convicted would be a significant jail sentence that would likely exceed six years and could result in a jail sentence of twelve years or more. [ 25 ] The point has been made by counsel for the Defence that in the Smith case the accused was released.

I have examined the history of that case and it is apparent that the accused was released on a charge of conspiracy to possess marihuana for the purpose of exportation as a result of a review conducted in Court of Queen’s Bench on October 4, 2002. [10] Then, on October 28, 2002, an information was sworn charging five counts including two counts of conspiracy, one count of possession for the purpose of trafficking, a count of possessing the proceeds of crime and a count of participating in a criminal organization (s. 467.11).

A preliminary inquiry was conducted on May 12 and 13 of 2003 and the accused was committed to stand trial on all charges including a “criminal organization” charge. The Crown preferred a number of indictments on January 12, 2004, February 8, 2005 and April 22, 2005. The Crown attempted on numerous occasions to review bail but encountered problems with jurisdiction. The Court of Appeal decision dealing with sentencing comprehensively sets out the circumstances which differ considerably from the circumstances put before Judge Gerein - on October 4, 2002.

The case is not an appropriate precedent to put forward in support of bail. [ 26 ] Letters of reference describe Mr. Swanson in glowing terms. He is close to his daughter and his parents are supportive of him. Just as Mr. Smith, above, it appears he was a responsible person to family and friends yet with Mr. Palfrey he was otherwise. I take little comfort in the suggestion that he has been a responsible citizen in Vernon, British Columbia when his criminal activity has shown otherwise. He does not have a connection to any particular residence.

He has successfully sought to vary the recognizance to which he is presently subject so as to allow him to effectively maintain two residences in Vernon, British Columbia (one with his girlfriend) and, more recently, another residence in Grande Prairie, Alberta in order that he may obtain employment.

It is evident that he is capable of significant mobility both to and from the United States and to and from British Columbia. [ 27 ] Even though he has respected the recognizance that he is subject to, the seriousness of the new charges and the potential consequences as well as the circumstances satisfy me that he has not established that his detention is not justified on the primary ground.

This conclusion ends the matter however I propose to consider the remaining grounds as well. Whether detention is necessary for the protection and safety of the public having regard to the circumstances including anysubstantial likelihood that he will, if released from custody, commit a criminal offence or interfere with the administration of justice. [28] The term “substantial likelihood” has been held to mean “substantial risk”[11]. [29] The strength of the Crown’s case is but one of the factors to consider.

The presumption of innocence must not be disregarded since the burden of proof has been reversed only at the bail hearing stage[12]. Furthermore, detention is justified only if such detention is “necessary”, that is, the mere possibility that a person may engage in illegal activity if released is insufficient to permit detention[13]. Inthis case, there is no evidence that the accused has, since December of 2010, continued any involvement with a criminal organization.There is no indication that he has maintained contact with Mr. Palfrey, Mr.

Nicholson or any other persons involved in criminal activity.It appears that he is seeking work in Alberta. He has shown that his detention in custody is not justified for the protection or safety of thepublic. Whether his detention is necessary to maintain confidence in the administration of justice having regard to all the circumstancesincluding: (

a) The apparent strength of the prosecution’s case, (

b) The gravity of the offence, (

c) The circumstances surrounding the commission of the offence, including whether a firearm was used, and (

d) The fact that the accused is liable on conviction for a potentially lengthy term of imprisonment. [30] Mr. Justice Hill in R. v. James[14] succinctly described the considerations that must enter into a decision on this ground when hesaid, at paragraph 22: The guiding principles informing application of the tertiary ground may be summarised as follows:

(1) The tertiary ground continues to apply to all persons seeking judicial interim release: R. v. B.S., 2007 ONCA 560, at para. 10.

(2) That said, the circumstances in which recourse is made to the tertiary ground to deny bail “may not arise frequently”: R. v. Hall(2002), 2002 SCC 64 , 167 C.C.C. (3d) 449 (S.C.C.) at 463 – with denial of bail on this ground only in limited circumstances; R.v. Heyden (2009), 2009 ONCA 494 , 252 C.C.C. (3d) 167 (Ont. C.A.) at para. 21; R. v. LaFromboise (2005), (ON CA), 203 C.C.C. (3d) 492 (Ont. C.A.) at para. 23.

(3) The overarching consideration in applying s. 515(10)(

c) of the Code is the effect of release on public confidence in the administration of justice: R. v. Mordue (2006), (ON CA), 41 C.R. (6th) 259 (Ont. C.A.) at para. 25.

(4) The public confidence perspective ignores the excitable and irrational citizen (R. v. White (2007), 2007 ABQB 359 , 221C.C.C. (3d) 393 (Alta. C.A.) at para. 18) but rather the confidence of a reasonable, informed and dispassionate public: R. v. Dhillon,[2002] O.J. No. 3451 (C.A.) at para. 28. The reasonable member of the community is one properly informed of the philosophy of therelevant legislative provisions, Charter values, and the actual circumstances of the case: Hall, at 466; White, at para. 17-8. Awareness ofthe presumption of innocence (B.S., at para. 16) and the prohibition against punishment through pre-trial custody before a fair trial(White, at para. 17) are required.

(5) No one of the four enumerated factors in s. 515(10)(

c) is determinative: Mordue, at para. 31. The Court is obliged to consider thecombined effect of the factors in the context of all the circumstances: Mordue, at para. 31; B.S., at para. 10, 16. [31] An explanation of the ambit of s. 515(10)(

c) was provided by the Supreme Court of Canada in R. v. Hall[15]:

Section 515(10)(

c) sets out specific factors which delineate a narrow set of circumstances under which bail can be denied on the basis of maintaining confidence in the administration of justice. As discussed earlier, situations may arise where, despite the fact the accused is not likely to abscond or commit further crimes while awaiting trial, his presence in the community will call into question the public’s confidence in the administration of justice.

Whether such a situation has arisen is judged by all the circumstances, but in particular the four factors that Parliament has set out in s. 515(10)(c) – the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for lengthy imprisonment.

Where, as here, the crime is horrific, inexplicable and strongly linked to the accused, a justice system that cannot detain the accused risks losing the public confidence upon which the bail system and the justice system as a whole repose. and then the Court outlined the test at paragraph 41: At the end of the day, the judge can only deny bail if satisfied that in view of these factors [the factors identified in s. 515(10)(c)] and related circumstances a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice. (

a) The apparent strength of the prosecution ’ s case [ 32 ] The Defence argues that Mr. Nicholson is an accomplice and so in an effort to save himself he is implicating other persons. Corroborative evidence, it is said, is necessary and there is no such evidence here. While the argument requires consideration, it must be remembered that the evidence of an accomplice can also be true and that corroboration is not required, in law, to enable proof of the offences. This proceeding is not a trial and so the evidence before me has not been tested.

At the trial of these allegations the Crown will be required to prove the offence beyond a reasonable doubt. [ 33 ] Mr. Nicholson has not been charged nor is he in custody and so there have been no legal consequences to him arising out of his involvement in this case. The concern of the Defence is as to his veracity, however the Crown’s evidence in respect of the investigation that resulted in the seizure of 151 kilograms of cocaine is supported by police evidence and is entirely consistent with the course of conduct described by Mr. Nicholson prior to the seizure.

Indeed, while it may be possible to attack some of Mr. Nicholson’s evidence it will be difficult to discount all of it or even most of it. It seems to me that the Crown’s case is a strong one. (

b) The gravity of the offence [ 34 ] The distribution of cocaine is a scourge that is impacting the lives of many people, and the reports are replete with cases involving the drug. Sentencing cases are increasing. The courts of this country, including our Court of Appeal, have recognized that possession and trafficking of cocaine even in small amounts by individuals must result in very firm sentences and that the amount of the drug will impact on the extent of the sentence.

That said, the involvement of organized crime to facilitate the importation of such huge quantities of that same drug into this province and for distribution in this country is a startling and troubling development. Nothing more need be said about the gravity of these offences that has not already been said. (

c) The circumstances surrounding the commission of the offences [ 35 ] This is an unprecedented case. I am not aware of any case in which cocaine has been imported into this province (and perhaps even into this country) by taking advantage of the sparse population along a province’s boundary with the United States and the lightly defended nature of that border. The accused saw an opportunity to take advantage of this situation and to move significant amounts of cocaine repeatedly into Saskatchewan with no apparent difficulty over a short period of time.

It was a large sophisticated venture that required the involvement of many people in both countries. Mr. Swanson, who otherwise appeared to be living a normal life, was in fact closely connected with Mr. Palfrey. It bears repeating that it cannot be said that he was but a follower who simply transported illegal goods. (

d) The fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment

[36] This factor has been examined in some detail above. There can be no doubt that a significant jail sentence will likely be imposedif Mr. Swanson is convicted of the charges presently before the Court. [37] Briefly, the following circumstances are in the forefront: (

a) the Crown’s case is strong although credibility will be an issue at trial as is usually the case, (

b) the offences are extremely serious, (

c) the offences were not committed in a spontaneous manner but were carefully planned and executed and required significantfinancial resources and personal contact in two countries in order to succeed, (

d) the result was the importation of a huge quantity of a destructive drug that was obtained and distributed solely for the purpose ofobtaining huge profits, (

e) Mr. Swanson does not have a criminal record and he has portrayed a persona for family and friends that, in reality, is inconsistentwith his involvement in a serious criminal enterprise, (

f) the operation took advantage of the sparse population in rural Saskatchewan and the less stringent nature of border securitybetween Canada and the United States. [38] After examining the circumstances and considering the factors set out in s. 515(10)(c), I believe that this is a case in which arational and reasonable member of the community, taking into account the presumption of innocence, Mr. Swanson’s right to a fair trialand the purposes of the bail provisions, would lose confidence in the administration of justice if Mr. Swanson was to be released.

Putanother way, I must conclude that such a member of society would have a shaken confidence in the administration of justice (as well asthe courts and the system of bail) if Mr. Swanson was to be released. Conclusion [39] For all of the reasons that I have set out above, I have concluded that Mr. Swanson has not established on balance that hisdetention is not justified on the first ground. Although unnecessary, I have also concluded that he has not satisfied me that his detentionin custody is not justified on the third ground. I must order that he be detained in custody. ____________________________ L.A.

Matsalla, J [1] R. v. Bray (1983), (ON CA), 2 C.C.C. (3d) 325 (Ont. C.A.) [2] Carswell, Second Edition, 1999 at page 126. [3] R. v. Patryluk (2002), 2002 SKCA 33 , 217 Sask. R. 309 at para. 13 [4] R. v. McGinn (1989), (SK CA), 75 Sask. R. 161 (C.A.) [5] R. v. K.J.P., 2002 SKCA 7, at para. 40 [6] R. v. Smith, (SCC), [1987] 1 S.C.R. 1045 at 1053 [7] 2008 SKCA 20 , [2008] S.J. No. 97 [8] At para. 2 [9] R. v. Kenyon, 2009 CarswellMan 501, R. v. Overacker, 2005 CarswellAlta 956

[10] [2002] S.J. No. 566 [11] R. v. Link (1990), 1990 ABCA 55 , 105 A.R. 160 (Alta. C.A.) [12] R. v. Braun, (SK CA), [1994] S.J. No. 312 (C.A.) [13] R. v. Morales, (SCC), [1992] 3 S.C.R. 711 [14] [2010] O.J. No. 2262 [15] 2002 SCC 64 , [2002] 3 S.C.R. 309 at para. 40