Her Majesty the Queen - v. -, 2016 SKPC 134

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 134 Date: October 19, 2016 Information: 39123206 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Montana Devin Primeau Appearing: Randi Arnot For the Crown Angus McLean For the Defence _____________________________________________________________________________ DECISION H.M. HARRADENCE , J _____________________________________________________________________________

[ 1 ] On February 10, 2015, just after 1:00 p.m., Constable Horace Ratt, a member of the Prince Albert City Police, received a dispatch to be on the look-out for a silver Chevy Impala. A complaint had been made to the police that the vehicle was driven by Terrance Yew, a parole violator. [ 2 ] Shortly after becoming aware of this dispatch, Constable Ratt stopped a Chevy Impala driven by this accused, Montana Primeau (Primeau). Although Primeau did provide his name and date of birth, he did not have any identification.

Constable Ratt further detained Primeau and required him to sit in the back of the police vehicle. As part of this detention in the police vehicle, Constable Ratt searched Primeau. As a result of his pat down search, as well as questioning Primeau, Constable Ratt seized eighteen separate packages of cocaine weighing between .3 and .7 grams each.

These packages were located in Primeau’s right front pants pocket. [ 3 ] While Primeau was seated in the police vehicle, Constable Ratt conducted a computer search which informed him that Primeau did not possess a driver’s licence, and established that Primeau was not the parole violator. [ 4 ] Primeau was subsequently charged with possession of cocaine for the purposes of trafficking. He entered a not guilty plea. By letter dated November 26, 2015, Mr.

McLean advised the Court and Crown that the defence would be seeking the exclusion of the cocaine as a result of the detention and search of the accused which the defence maintains was contrary to s. 8 and s. 9 of the Charter . [ 5 ] By agreement of Counsel, a voir dire was conducted to determine the admissibility of the cocaine. THE PRINCIPLES OF INVESTIGATIVE DETENTION [ 6 ] Police can detain an individual for an investigative purpose only if, based on the totality of the circumstances, there exist reasonable grounds for an officer to suspect a recent or ongoing criminal offence.

This police power is an intrusion on individual liberty and must not be used as a carte blanche authority to detain nor should it be exercised on the basis of a hunch. The Supreme Court decision in R v Mann , 2004 SCC 52 [ Mann ], articulates both the police power and its limitations: 34 The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds.

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.

The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test. 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. [ 7 ] The importance of balancing the competing interests is identified by Justice Iacobucci in the paras 1 and 15 of Mann : 1 This appeal presents fundamental issues on the right of individuals to walk the streets free from state interference, but in recognition of the necessary role of the police in criminal investigation.

As such, this case offers another opportunity to consider the delicate balance that must be struck in adequately protecting individual liberties and properly recognizing legitimate police functions. 15 As stated earlier, the issues in this case require the Court to balance individual liberty rights and privacy interests with a societal interest in effective policing. Absent a law to the contrary, individuals are free to do as they please. By contrast, the police (and more broadly, the state) may act only to the extent that they are empowered to do so by law.

The vibrancy of a democracy is apparent by how wisely it navigates through those critical junctures where state action intersects with, and threatens to impinge upon, individual liberties. [ 8 ] As a result of the decision in Mann , investigative detentions have been permitted in a variety of contexts including police road blocks ( R v Clayton , 2007 SCC 32 ) and to allow sniffer dogs to search for drugs ( R v Chehil , 2013 SCC 49 [ Chehil ] and R v MacKenzie , 2013 SCC 50 [ MacKenzie ]). The crux of this assessment centers on the question of whether the detention is reasonably

necessary given the totality of the circumstances presented to the individual officer. In R v Aucoin, Justice Cromwell described the testas follows at para 39: [39] Accepting, as the trial judge did, that Constable Burke was concerned about the appellant walking away, I am nonetheless of theview that in the context of this case, in order to justify securing the appellant in the back seat — knowing that this would also entail apat-down search — detaining the appellant in that manner had to be reasonably necessary.

In other words, the question to be asked iswhether there were other reasonable means by which Constable Burke could have addressed his concern about the appellantdisappearing into the crowd, short of doing what he did.

If there were other reasonable means to ensure the appellant would not flee thescene, then detaining him in the police cruiser could not be said to be reasonably necessary and would thus have constituted an unlawfuldetention within the meaning of s. 9 of the Charter: Clayton, at para. 20. [9] While reasonable grounds to suspect is something less than reasonable grounds to believe, these grounds must be based onobjectively discernable facts which are subject to judicial scrutiny. The approach is fact specific, flexible and grounded in everydayexperience.

It must be based on the constellation of factors which comprise the totality of the circumstances including exculpatory,neutral and equivocal information. In R v Chehil, Justice Karakatsanis states, at para 33: 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. [10] In R v Franc, 2016 SKCA 129, Justice Jackson identifies seven factors which apply to the assessment of the genericprinciples of a reasonable suspicion.

Justice Jackson refers to them as Chehil principles and lists them in para 36 as follows: [36] In R v Chehil, 2013 SCC 49 , [2013] 3 SCR 220 [Chehil], the Supreme Court of Canada addressed reasonablesuspicion in the context of investigative detention. These are generic principles that apply equally to the assessment of whether the policehave a reasonable suspicion that trafficking is occurring in a designated location so as to avoid a finding of entrapment. The Chehilprinciples are as follows: (a) “[r]easonable suspicion must be assessed against the totality of the circumstances.

The inquiry must consider the constellation ofobjectively discernible facts that are said to give the investigating officer reasonable cause to suspect” (at para 29); (

b) the constellation of factors will not ground reasonable suspicion where they merely amount to a “‘generalized’ suspicion” (at para30); (

c) factors that may “go both ways” by themselves may not support reasonable suspicion, but do not preclude reasonable suspicionarising when they form part of the constellation of factors (at para 31); (d) “reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors” (at para 32); (e) “[e]xculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors” (at para 33); (

f) the “obligation of the police to take all factors into account” does not require the police to further investigate or seek exculpatoryfactors or rule out possible innocent explanations (at para 34); and (

g) when conducting an “inquiry to ascertain whether reasonable suspicion was present, the court will assess the circumstances thepolice were aware of at the time of execution of the search” (at para 34). Of the Chehil principles, the issue most frequently encountered is the determination of whether the “constellation of factors” grounds“reasonable suspicion” or is no more than a “generalized” suspicion or a hunch. THE PRINCIPLES OF A SEARCH AS PART OF AN INVESTIGATIVE DETENTION

[11] In Mann, Justice Iacobucci recognizes the limited ability of a police officer to search as a consequence of an investigativedetention where reasonable grounds exist: 45 …where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engagein a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonablemanner.

In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on thedetained individual to answer questions posed by the police. The investigative detention and protective search power are to bedistinguished from an arrest and the incidental power to search on arrest… [12] The power to conduct a safety search is commented upon by my colleague, Her Honour Judge Daunt, in R v Roberts, 2016SKPC 8.

Judge Daunt relies upon R v MacDonald, 2014 SCC 3, at para 41, where Justice LeBel indicates: [41] But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. Inmy view, the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity ofsafety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police.

Given thehigh privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonablegrounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see also para. 45). Thelegality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v.Tse, 2012 SCC 16 , [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of avague concern for safety.

Rather, for a safety search to be lawful, the officer must act on “reasonable and specific inferences drawn fromthe known facts of the situation” (Mann, at para. 41).

THE PRINCIPLES APPLIED [13] In examination in-chief, Constable Ratt provided the following explanation for stopping the accused’s vehicle: A Based on the information provided by dispatch as the parole violator a vehicle was pulled over matching the description provided bythe complainant as far as the parole violator, same make, model of vehicle, two occupants, I was advised there was two occupants fromthe initial complaint and then made the vehicle stop and trying to confirm if it was the subject of interest. Q Okay. And what happened then when you pulled the vehicle over?

A When I made the vehicle stop I approached the driver, asked for driver’s licence, registration. The driver didn’t provide any driver’slicence so I had to confirm who this person is, so there was no identification provided. (Trial Transcript – page T9, line 29-38) Q Okay. Now, when -- when you are taking steps to identify this person and you said determine whether or not this was the paroleviolator or whether or not this person had a driver’s licence, what steps did you take and why?

A I spoke to the driver, the driver provided name, date of birth, no identification, no photo ID to confirm, so he was asked to exit thevehicle and then I asked him to have a seat in the patrol vehicle. Q And -- and why is that, what was -- what was in your mind at the time? A If he was the parole violator there’s a flight risk as well.

Based on my experience there’s a high chance of flight risk when the paroleviolator is under arrest. (Trial Transcript – page T11, line 1-11) [14] Constable Ratt acknowledged in cross-examination that several facts relating to the vehicle driven by Primeau wereinconsistent with the facts available to him from his dispatcher. These inconsistencies can be summarized as follows: • The suspect parole violator, Terrance Yew, was 42 years of age. He was wearing a red and black Polaris jacket and blacksweatpants according to the information which the dispatcher possessed. Primeau was age 21 at the time he was stopped.

ConstableRatt could not recall what Primeau was wearing.

• Terrance Yew’s passenger, according to the dispatch information, was female. The passenger in the vehicle driven by Montana Primeau, was a male. • The dispatch information specified the vehicle driven by Yew bore licence plate 014 IQJ. The vehicle driven by Montana Primeau had its licence plate covered with snow. When Constable Ratt eventually cleared the snow, it revealed a different licence plate number 869JPY. [ 15 ] In R v McGuffie , 2016 ONCA 365 [ McGuffie ], at paras 56 and 57 , Justice Doherty relying on Aucoin , states: [56] Aucoin is also instructive.

In that case, the officer chose to place the accused in the rear of his police cruiser and to conduct a pat down search as a prelude to doing so. Moldaver J. explained that in the circumstances, detention in the cruiser was unlawful rendering the pat down search preliminary to that detention unlawful and contrary to s. 8 .

He explained, at para. 44: Because detaining the appellant in the back of the cruiser would have been an unlawful detention – given there were other reasonable means by which Constable Burke could have addressed his concern that the appellant might flee – it cannot constitute the requisite basis to support a warrantless search.

Therefore the pat-down search was unreasonable within the meaning of s. 8 …. [Citations omitted.] [57] In the present case, the detention of the appellant in the back of Constable McDonnell’s cruiser was unlawful and on the reasoning in Aucoin cannot provide a basis for the warrantless search of the appellant’s person. [ 16 ] I am satisfied that the sole purpose for Constable Ratt stopping the accused’s vehicle was to investigate whether he was the parole violator, Terrance Yew. Based on Constable Ratt’s evidence, I conclude that at the moment he stopped the vehicle he did not have the details of Mr.

Yew and his vehicle but these details were readily available to him by inquiring with his dispatcher. When he testified at the trial, Constable Ratt had a copy of what he referred to as the “dispatch ticket”. This dispatch information, had he inquired at the time, would have clearly indicated to him that he had stopped a vehicle which was not related to the dispatch. Also of significance to me is that once Primeau was placed in the rear of the police vehicle, Constable Ratt conducted a computer search, while at the roadside, which confirmed that Primeau was not the parole violator.

Constable Ratt testified in examination in-chief as follows: Q Okay. And you indicated that the accused had given you a name? A Yes. Q And do you recall what that name was? A Yes, Montana Primeau. Q Okay. And what happened when you went to then verify who he was? A Just confirm with our system as far as our local computer system, I checked with date of birth, the name and date of birth did match up as far as the information provided. Q Okay. So was the accused the -- the parole violator?

A He was not. (Trial Transcript – page T12, line 14-26) [ 17 ] My conclusion is that Constable Ratt did not delineate the important limitations of an investigative detention. He immediately decided to detain and search rather than investigate. While his initial stopping of the vehicle was appropriate as an investigative detention, the subsequent detention in the police vehicle was not reasonably necessary in these circumstances. [ 18 ] Primeau did provide his name and birth date to Constable Ratt and did cooperate.

Constable Ratt possessed no more than a vague hunch that Primeau was the parole violator based exclusively on the similarity of the vehicle. In these circumstances there was no reasonable basis to believe Primeau was a flight risk or needed to be detained in the police vehicle. There were other reasonable means available to this officer. A computer search from his vehicle, as he eventually did, would have eliminated the necessity of the further detention and search. I find that by placing Primeau in the rear of the police vehicle, Constable Ratt arbitrarily detained Primeau in violation of s. 9.

[ 19 ] In McGuffie , Justice Doherty recognizes that if an investigative detention is unlawful, “a safety search said to be justified on the basis of that detention must also be unlawful and contrary to s. 8” (at para 55). [ 20 ] What transpired in this case is described by Constable Ratt as follows: Q And so that being the case when -- when you asked the accused to sit in the rear of the police car what occurred?

A I asked him to exit the vehicle, he complied, walked towards the vehicle, any time we detain people, deal with them, place them in the rear of the vehicle we have to, for our personal safety and if there’s any flight risks we have to deal with that, any weapons we have to search them prior to placing him in the patrol vehicle. Q Okay. And what occurred when you -- or did you then conduct a search?

A Yes, on the exterior of the truck prior to placing him into the patrol truck, we searched, did a search -- exterior search of the clothing, felt a bulge in the pants pocket and asked if it was weed and he voluntarily stated that it was coke and that -- Q Okay. And before putting someone in a police car what -- what precautions do you take? A We have to handcuff, search, we have to search for any weapons, any things that would cause harm to us.

Quite often we deal with people who carry needles as well and other weapons as well. (Trial Transcript – page T11, line 13-31) [ 21 ] In this case, there were not reasonable grounds to justify a safety search. I am further satisfied that Constable Ratt’s objective in conducting this search went beyond the narrow scope of a safety search.

Although the justification for the search was the detention, it is my view that by questioning Primeau, Constable Ratt was not limiting himself to safety concerns. [ 22 ] In the circumstances of this case, I find that the detention of Primeau in the rear of the police vehicle infringes his right to be free from arbitrary detention contrary to s. 9 of the Charter . I also find that the search incidental to this detention is contrary to s. 8 of the Charter .

SECTION 24(2) [ 23 ] As a result of the findings of breaches of s. 8 and s. 9, a s. 24(2) analysis is necessary to determine whether the cocaine should be admitted or excluded from evidence. The Grant inquiry involves an examination of three factors:

a) the seriousness of the Charter infringing state conduct;

b) the impact upon the Charter protected interests engaged by the breach; and

c) the societal interest having criminal matters adjudicated on their merits. [ 24 ] This inquiry is summarized by Justice Caldwell in R v Wasilewski , 2016 SKCA 112 , as requiring an examination on all of the circumstances: In rough

summary, this framework calls for trial courts to assess "all the circumstances", balancing individual and societal interests arising under these three lines of inquiry, to gauge whether the admission of illegally-obtained evidence would bring the administration of justice into disrepute (at para 71). On the whole of it, the Court in R v Grant said: ...

As a general rule, however, it can be ventured that where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused's protected interests, the trial judge may conclude that it should be admitted under s. 24(2). On the other hand, deliberate and egregious police conduct that severely impacted the accused's protected interests may result in exclusion, notwithstanding that the evidence may be reliable. THE SERIOUSNESS OF THE CHARTER INFRINGING CONDUCT

[ 25 ] The limitations on police powers to detain for the purposes of an investigation were first recognized by the Supreme Court in 2004. Although I find Constable Ratt to be a truthful witness, in these circumstances, I am of the view that he acted too quickly without first considering the circumstances. Objective facts such as the licence plate number of the parole violator’s vehicle, and the computer search conducted by him after Primeau’s detention were reasonably available to him and would have assisted him to determine whether Primeau’s detention was reasonably necessary.

Instead, Constable Ratt forged ahead acting on a hunch only. I am satisfied that Constable Ratt did not appreciate the fundamental significance of limiting his detention. [ 26 ] There was no urgency in this case. However, I have concluded that Constable Ratt’s haste exposes his lack of understanding or a willful blindness to the established requirements of an investigative detention. [ 27 ] Given the importance of individual liberty as recognized by Mr.

Justice Iacobucci in Mann , it is my conclusion that Constable Ratt acted too quickly without first considering this limitation on his powers to detain and search. The Crown, in argument, refers to the Aucoin decision of Justice Moldaver. Justice Moldaver recognizes, in that case, that the accused was detained initially because of a licence plate violation, not for an investigative purpose. In this case, Primeau was detained for an investigative purpose and only as a result of this detention was it determined that he was an unlawful driver.

On the basis of this alleged regulatory infraction, neither a detention nor a search of the accused could be justified. [ 28 ] As a result, it is my finding that the seriousness of the breach was elevated due to the rapid detention and search combined with the failure to consider the totality of the circumstances.

THE IMPACT UPON THE CHARTER PROTECTED INTEREST ENGAGED BY THE BREACH [ 29 ] In R v Harflett , 2016 ONCA 348 [ Harflett ], Justice Lauwers recognizes the reduced expectation of privacy which applies to vehicles: 47 The case law has consistently held that drivers have a reduced expectation of privacy in their vehicles: see Caslake , at para. 15; Nicolosi , at para. 9. However, a reduced expectation of privacy does not mean that an unjustified search is permissible.

As stated by McLachlin C.J. in Harrison , "[a] person in the appellant's position has every expectation of being left alone - subject, as already noted, to valid highway traffic stops": Harrison, at paras. 31-32. 48 As Iacobucci J. noted in R. v. Mann , 2004 SCC 52 , [2004] 3 S.C.R. 59, at para. 56 , the impact of even a minimally intrusive search "must be weighed against the absence of any reasonable basis for justification". There was no justification for Constable Sinclair's inventory search.

I am satisfied the second Grant factor also militates in favour of the exclusion of the evidence in this case. [ 30 ] In assessing the impact of this breach, it is evident that it was entirely avoidable. Further investigation would have informed the officer and prevented his unjustified intrusion on the liberty of the accused. This breach, in my view, was neither technical nor minor. Justice Doherty in McGuffie refers in strong language to the profound impact of this type of breach on the accused’s liberty: 79 … The appellant’s arbitrary detention effectively negated his personal liberty.

Not only was he in imprisoned, but he was imprisoned in a manner that left him vulnerable to further police misconduct. The police took advantage of the appellant’s arbitrary detention to unlawfully search the appellant. That conduct led directly to the discovery of incriminating evidence.

The strong causal connection between the denial of the appellant’s liberty, the unconstitutional search of his person, and the subsequent obtaining of the incriminating evidence speaks to the profound impact of the breaches on the appellant’s Charter -protected interests. [ 31 ] In this case I find that the evidence was not legally obtainable. This is a significant difference from the facts of Wasilewski where Justice Caldwell indicates that the evidence in that case would have been available with a search warrant.

SOCIETAL INTERESTS IN THE MATTER BEING ADJUDICATED ON THE MERITS [ 32 ] Clearly, the exclusion of the cocaine, in this case, ends the prosecution. Society has a compelling interest in detecting and punishing the illegal possession of a hard drug such as cocaine. This is a factor which weighs in favour of the admission of the evidence. This factor does not trump the other two, nor should it be used to “systematically require the admission of reliable evidence obtained in plain disregard of an accused Charter rights”, as explained by Justice Lauwers in R v Harflett at para 54 .

CONCLUSION [ 33 ] I am satisfied that when all of the circumstances of this case are examined in the context of the Grant analysis, the admission of the cocaine would bring the administration of justice into disrepute. The seriousness of the breach and the severity of its impact on Primeau’s liberty interest out-weigh society’s interest in having this individual charge adjudicated on its merits. The evidence is therefore excluded in accordance with s. 24(2) of the Charter . Dated this 19 th day of October, A.D. 2016, at the City of Prince Albert, in the Province of Saskatchewan. ________________________ H.M. Harradence, J