Her Majesty the Queen - v. -, 2020 SKPC 34

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 34 Date: September 15, 2020 Information: 991097387 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Bert Brian Gamble Appearing: Mr. Brent Slobodian For the Crown Ms. Rebecca Crookshanks For the Accused DECISION H.M. HARRADENCE , J INTRODUCTION [ 1 ] On July 17, 2019, Prince Albert City Police responded to an alarm call at A.J.’s Confectionary, located at 1202 Branion Drive, on the east side of Prince Albert.

The accused was seen peddling his bicycle at a faster than normal pace in the vicinity of the Confectionary. Police stopped him, arrested him and searched him. Two guns were located, one in the waist of his pants and the other in a backpack he was wearing. Also in the backpack was a quantity of crystal meth, some cash, a scale, ammunition and what the police say is a score sheet of drug transactions, along with two cell phones. As a result of these seizures, the accused is charged with 20 offences.

[ 2 ] By Notice of Motion dated May 5, 2020, the Defence challenges the admissibility into evidence of the guns and the other items found in the backpack. This challenge is based on the police actions in detaining and searching the accused. The Defence alleges that the accused’s rights under ss. 8, 9 and 10(

b) of the Charter were breached and that all the evidence should be excluded as its admission would bring the administration of justice into disrepute contrary to s. 24(2). [ 3 ] The trial commenced on June 11, 2020 with a voir dire examining the claims contained in the Defence’s Notice of Motion. At this voir dire the Crown called four witnesses: Sgt. Bighetty; Cst. Benitez; Cst. Mesenchuk; and Cst. Shultz. The Defence did not call any evidence. At the conclusion of the voir dire counsel filed briefs of law, argument was heard, and I reserved my decision.

FACTS [ 4 ] A police dispatcher received an alarm call reporting a glass break at the A.J.’s Confectionary. Sgt. Bighetty attended the Confectionary. He is a dog handler, with 14 years’ police experience. He attended the location contemporaneously with Cst. Torgunrud. Sgt. Bighetty testified that he was dispatched at 12:59 a.m. and arrived at the Confectionary at 1:02 a.m. On route, Sgt. Bighetty saw a lone male on a bicycle approximately one block from the store. This male stood out to Sgt. Bighetty because he was peddling faster than normal, and he was the only person that was observed in the area.

As a result, the Sergeant alerted other officers by radio who were on route to the scene. [ 5 ] In cross-examination Sgt. Bighetty confirmed that he did not tell the other officers what to do but only provided them with his observations. Sgt. Bighetty testified that he did not see the male at the Confectionary and when he first saw the male, he was approximately one block from the store. Sgt. Bighetty says he and Cst. Torgunrud inspected the Confectionary. It is not a large building. There was no sign of any damage and no evidence of any crime.

He estimated that within a couple minutes of their arrival, the scene was cleared. Cst. Torgunrud radioed the other officers to inform them. In cross-examination Sgt. Bighetty agreed police receive quite a few false alarm calls but calls from confectionaries are generally more real than false. [ 6 ] Cst. Mesenchuk was the third officer to respond to the alarm call behind Sgt. Bighetty and Cst. Torgunrud. Cst. Mesenchuk attended the call with his emergency lights activated but siren off. Like Sgt. Bighetty, Cst. Mesenchuk indicated that this was done for tactical reasons so as not to alert any suspects. [ 7 ] Cst.

Mesenchuk has been a police officer for three and half years. He testified to investigating alarm calls at businesses on virtually every shift as well as seizing weapons, including firearms and bear mace, on an almost daily basis. [ 8 ] Cst. Mesenchuk travelled to the Confectionary along the same route as Sgt. Bighetty – east on 15th Street, south on 6th Avenue East, east on Branion Drive. Within two minutes of receiving the dispatch call, he heard Sgt. Bighetty’ s observations about the male on the bicycle. He testified that within ten seconds, he saw the male. He was in the 900 block of Branion Drive. Cst.

Mesenchuk immediately made the decision to stop the cyclist. He drove his police car on to the wrong side of the road and parked it immediately in front of the male on the bike with his emergency lights activated. Cst. Mesenchuk says he got out of his police car and said to the male, “City Police, I want to talk to you, come talk to me”. [ 9 ] Cst. Mesenchuk testified that his intention at this stage was to question the male: had he seen anything? Where was he coming from? Where was he going to?

The Constable says that it was important to document what the male was wearing just in case there was a video at the scene or there were witnesses to the crime that could identify the suspect. [ 10 ] The male on the bicycle did not stop. Instead, he began making wide S curves. Cst. Mesenchuk testified that he heard other police cars coming and shortly thereafter Cst. Benitez arrived and boxed the male in. Unlike his fellow officers, Cst. Benitez testified that he travelled to the scene with his lights and siren on. [ 11 ] At this point events occurred very quickly, according to Cst. Mesenchuk.

He approached the male and told him he was investigating an alarm call. He asked the male where he was going and why he was taking off. He asked the male his name. The male gave him the name of Brian Gamble and 1994 as his year of birth. When these particulars were searched in the database by the dispatcher at Prince Albert City Police, they came back negative all around. Cst. Mesenchuk immediately concluded that the male had given him a false name. Throughout this encounter Cst. Mesenchuk testified that his suspicion was growing that the male was involved in the call.

The male was headed away from the Confectionary, he would not stop, he provided what Cst. Mesenchuk believed to be a

false name and he was fidgety. Cst. Mesenchuk testified that he did not hear Cst. Torgunrud clear the scene and effectively end the investigation of the alarm call until after the accused had been arrested and searched. [ 12 ] Based on his suspicions, Cst. Mesenchuk made the decision to detain the male. This was within one minute of the male stopping his bike. Cst. Mesenchuk proceeded to do a pat down search. He suspected that the male was concealing a machete on his right hip under his shirt. He proceeded to investigate by lifting the male’s shirt. Cst. Mesenchuk observed the butt end of a firearm.

He said to Cst. Benitez “foxtrot”, which indicated a firearm. [ 13 ] The male, who is the accused in this proceeding, was arrested. He was wearing a backpack which was seized. In the backpack was located another firearm, cell phones, crystal meth, cash and a suspected score sheet. Cst. Shultz testified during the voir dire that in his opinion, the crystal meth was possessed for the purpose of trafficking. [ 14 ] After the accused was arrested and handcuffed, he provided a different name and date of birth.

When this information was searched it was determined that the accused was on probation and allegedly violating a curfew condition. The arrest of the accused occurred at approximately 1:10 a.m. Cst. Mesenchuk agrees that he did not read the accused his legal rights immediately upon detention or arrest. These rights were provided by Cst. Benitez approximately five minutes later. The accused was thereafter taken to police cells. [ 15 ] At cells the accused was lodged. During this process, Cst.

Mesenchuk says he discussed with the accused whether he wished to call a lawyer right away or whether he wished to wait until all the charges were known. He explained to the accused that there were many charges that would be laid against him. Cst. Mesenchuk says the accused agreed to wait. As a result, the accused did not speak to a lawyer until 3:45 a.m., approximately two and half hours after his detention. During this time Cst. Mesenchuk was consulting with a senior firearms officer from Saskatoon to determine the exact nature of the charges.

There was no attempt made by the police to obtain a statement during this time and once the accused had spoken with counsel, he declined to provide a statement. [ 16 ] When Cst. Mesenchuk was asked in cross-examination about the accused’s agreement to delay his access to counsel, he confirmed that there was no notation in his notebook about the accused’s consent to delay his lawyer call. Cst. Mesenchuk was asked generally when the City Police decide to delay a lawyer call.

He responded by indicating that it will depend on factors such as whether further investigation is needed or whether it is a busy night in cells. ANALYSIS a. The Detention [ 17 ] As indicated by Crown Counsel, a consideration of any detention must focus on the principles in R v Ratt , 2020 SKCA 19 .

Relying on R v Le , 2019 SCC 34 , Justice Ryan Froslie indicates two stages of a s. 9 analysis: 1) Was there a detention; 2) Was the detention arbitrary. ( R v Ratt , at para 23 .) The threshold question of whether the accused was detained requires a consideration of two elements to be proven – a command by the police to stop and a submission or acquiescence to that command. ( R v Ratt , at para 37 .) The critical second component of the detention is rooted in the Supreme Court jurisprudence in R v Grant , 2009 SCC 32 , at para 28 : [28] The general principle that determines detention for Charter purposes was set out in Therens : a person is detained where he or she “submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist” [ 18 ] Both counsel agree that the accused was detained.

The timing of the detention is disputed. Defence counsel suggests that a detention occurred immediately when Cst. Mesenchuk drove on to the opposite side of the street and exited his police vehicle requesting the accused stop. (Defence counsel’s brief at para 15.) Crown counsel says that the detention did not occur until after the arrival of Cst. Benitez – at no time prior to this had the accused submitted or acquiesced to the police command to stop. (Crown counsel’s brief at para 37.) [ 19 ] The command component of the detention analysis is satisfied when Cst.

Mesenchuk exits his police vehicle and requests to speak with the accused. The following factors are significant to me in determining the second component, whether the accused submitted or acquiesced to the police command: 1) Cst. Mesenchuk pulled his police vehicle onto the wrong side of the road, in front of the accused, with his emergency lights activated; 2) Cst. Mesenchuk heard the sirens of other rapidly approaching police vehicles; and 3) The accused stopped peddling in a straight line away from the police, slowed his peddling and began to make S curves in the middle of the road.

This context satisfies me of a reluctant acceptance by the accused to his detention. In these circumstances, I am satisfied that the detention of the accused crystalized the moment Cst. Mesenchuk exited his vehicle and spoke to the accused. Given the actions of

the police, I am satisfied that a reasonable person in the position of the accused would accept that he was not free to leave or to decline toanswer questions. (R v Grant, at para 41; R v Suberu, 2009 SCC 33; and R v Le, at para 31.) b. Was the Detention Arbitrary [20] At the time of the accused’s detention there was no nexus connecting him to any criminal activity.

As stated by Cst.Mesenchuk, he decided to stop the accused just in case he was involved in the incident at the Confectionary. [21] The Crown says that an analysis of this detention must include the officer’s training and experience. (Crown brief at para13.) The analysis required is helpfully reviewed and itemized by Madam Justice Jackson in R v Franc, 2016 SKCA 129, at para 36. [22] I agree with the Crown that the officer’s experience is a relevant consideration. An assessment must be made through the lensof the reasonable person standing in the shoes of Cst. Mesenchuk. Having considered the evidence of Cst.

Mesenchuk, I have concludedboth his experience and training were limited at the time of this detention. Cst. Mesenchuk testified to daily weapon seizures. It isimpossible for me to determine the number of seizures or whether these seizures would meet constitutional rigor. Although Cst.Mesenchuk was careful and deliberate in his testimony, his evidence showed that he is youthful and inexperienced. In this circumstance,I have concluded that he was driven by his adrenaline and did not consider the information available to him before he drove on theopposite side of the road and detained the accused.

He was gathering information to satisfy the possibility the accused was involved in acrime at A.J.’s Confectionary. [23] The Crown argues that there was a basis for Cst. Mesenchuk to detain this accused for investigative purposes. I disagree. There is no constellation of factors upon which to draw a reasonable inference that this accused was in any way connected to the alarmcall or any criminal activity at the time of his detention. I find that Cst.

Mesenchuk’ s actions do not satisfy the test of reasonablegrounds to suspect that the accused was implicated in criminal activity. (R v Mann, 2004 SCC 52, at para 34.) The detention of theaccused was not authorized by law. It was arbitrary. (R v Le, at para 124.) c. The Search [24] Ms. Crookshanks submits in her brief that the search of the accused and his backpack violated s. 8 as it flows from thearbitrary detention. She further says that there is a lack of reasonable grounds to justify a safety search. Mr.

Slobodian maintains thatthe detention and search were lawful and conducted in a reasonable manner given Cst.

Mesenchuk’ s experience. [25] As this is a warrantless search the Crown must satisfy the Collins criteria: 1) The search must be authorized by law; 2) Thesearch must itself be reasonable; and 3) The manner of the search must have been reasonable. (R v Collins, (SCC),[1987] 1 SCR 265, R v MacDonald, 2014 SCC 3, at para 29 and R v Mann, at para 49.) I have concluded that the detention wasunlawful in these circumstances and therefore cannot constitute a valid authorization for the search of the accused and his backpack.

These searches were unreasonable and a breach of the accused’s right to be secure from unreasonable search and seizure contained in s.8. (R v Aucoin, 2012 SCC 66, at para 44.) d.

Section 10(b) [26] Throughout his evidence Cst. Mesenchuk demonstrated a lack of understanding of the right to counsel. Firstly, when theaccused was initially detained, he was not provided with his right to counsel until several minutes later, after he had been searched andarrested by Cst. Benitez. This failure demonstrates a lack of understanding of the accused rights when detained for investigativepurposes ( R v Suberu, at para 40-42). Secondly, when the accused was lodged in cells, Cst.

Mesenchuk alleges an agreement to hold offobtaining legal advice until the police have had an opportunity to assemble the various charges. In this context, this delay illustrates alack of appreciation for the immediacy component of s. 10(b). [27] The Supreme Court in Suberu, at para 42, recognizes the concept of immediate access to legal advice leaves little room formisunderstanding. (Crown brief at para 46.) The Saskatchewan Court of Appeal has emphasized this point in two recent decisions: R vMoyles, 2019 SKCA 72, at para 80; R v Lichtenwald, 2020 SKCA 70, at paras 68-69.

[28] Cst. Mesenchuk’ s failure to make any notation about the agreement between he and the accused illustrates a lack ofappreciation of the importance of the accused’s access to a lawyer. It further creates a vacuum around this agreement, leaving anabsence of any evidence to suggest an unequivocal waiver of the accused’s right to legal advice without delay. (R. v Clarkson, (SCC), [1986] 1 SCR 383, at para 18.) I am satisfied that the accused’s s. 10(

b) rights were violated. e.

Section 24(2) [29] Having found that the police conduct violated the accused’s rights contained in s. 8, s. 9 and s. 10(b), I must examine thecircumstances to determine whether the administration of justice would be brought into disrepute by the admission of the seized material(R v Le, at para 139). [30] In this case, the evidence includes two loaded sawed-off rifles and a quantity of highly-addictive crystal methamphetamine. [31] The structure of the 24(2) analysis is contained in the Grant factors: 1) the seriousness of the Charter-infringing 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 merits of thecase. [32] As an initial question, I must decide whether the breach of the accused’s s. 10(

b) rights was connected to the seizure of thefirearms and drugs. The entire course of conduct between the accused and the police must be considered. The

section 10(

b) breach iscontinuous from the initial detention until the accused speaks to Counsel approximately 2 ½ hours later. There is only a brief causalconnection during the accused’s initial detention. Applying a generous approach to the entire chain of events between the accused andthe police, I find that there is a temporal and contextual connection between these seizures and the s. 10(

b) violation. I am satisfied thatthe violation should be considered as part of how the evidence was obtained. (R v Pino, 2016 ONCA 389; R v Lichtenwald, at paras 57-59.) i Seriousness of the Charter Infringing Conduct [33] In assessing the seriousness of the police conduct, the Court is required to place the conduct on a scale of culpability (R vMoyles, at para 83). [34] Cst. Mesenchuk’ s evidence is the focus of this analysis.

In relation to the detention, the Crown argues that the officer’sactions can be reasonably explained as a misjudgment in the face of a rapidly developing situation (Crown brief at para 72). I find thismisjudgment to be significant. It is apparent that Cst. Mesenchuk did not hear Cst. Torgunrud’ s initial radio broadcast that the scenewas cleared and there was no crime committed. According to Sgt. Bighetty, the Confectionary was not large, and it did not take long toclear the scene. I also note that Sgt. Bighetty did not instruct or suggest to Cst. Mesenchuk that the individual on the bicycle bestopped.

I am satisfied that Cst. Mesenchuk reacted to the situation without considering his actions and their effect. His exuberanceresulted from his limited experience and training, and his reaction to a dynamic event. The effect, in my view, was that his conduct fellbelow the standard of care expected of a police officer. On the continuum of culpability, I assess the detention of the accused asnegligent police conduct. In my view, this negligence is of such a significant degree that it favors exclusion of the evidence. [35] In relation to the s. 10(

b) breach, the circumstances suggest a cavalier approach to the immediacy component of s. 10(b). Justice Barrington-Foote in R v Moyles is clear that time matters: [81] The s. 10(

b) right is not the right to counsel. It is the right to counsel without delay. Time matters. That is so regardless ofwhether the accused is treated “respectfully” and whether any evidence is elicited before the right to counsel is implemented. In myview, this breach had a serious impact on the interests protected by s. 10(b). [36] These breaches are troublesome. They are aggravated by the fact that according to Cst. Mesenchuk, while the accused sat inhis cell without the benefit of legal advice, he was discussing the case with a senior firearms officer from Saskatoon.

Furtheraggravation is found, in my view, in Cst. Mesenchuk’ s cross-examination where he agreed that lawyer calls can be delayed by the PrinceAlbert City Police if they are busy or if further investigation is required. The breaches of s. 10(

b) in this context are serious and strongly

favor exclusion of the evidence. ii.

Impact of the Actions on the Charter-protected Interests of the Accused [ 37 ] The Charter -protected interests triggered in this circumstance are the accused’s right to refuse to answer police questions and walk away ( R v Grant , at para 21 ) and the right to counsel without delay. ( R v Suberu , at para 3 ; R v Moyles , at para 80 ; and R v Lichtenwald , at para 68 , particularly in quoting Justice Doherty in R v McGuffie , 2016 ONCA 365 , “… the psychological value of access to counsel without delay should not be underestimated.”) [ 38 ] I find that both interests were compromised by the actions of the police in this case.

The arbitrary detention took place as a result of an alarm call which very quickly was determined not to be a crime. Not only is there no clear nexus between the accused and ongoing criminal activity, there is no evidence of any criminal activity. [ 39 ] The s. 10(

b) breach continued after the seizure of the firearms and drugs and although the accused was treated respectfully, it unnecessarily left him without access to a lawyer at a critical time. [ 40 ] Each of these breaches standing on their own has a serious effect on the accused’s Charter rights. Together, they tend to demonstrate that the admission of this evidence would bring the administration of justice into disrepute. iii. Society’s Interest in Adjudication on the Merits [ 41 ] The evidence seized in this case has all the hallmarks of dangerous criminal activity.

Crudely altered firearms, as shown in the photographs (P-7), together with 6.4 grams of methamphetamine are a dangerous combination. The increased prevalence of both in Prince Albert is evident to the Court. [ 42 ] It is clear that the guns and drugs seized are critical to the prosecution of these charges. This evidence is also reliable. This factor tends to favor the admission of the evidence. ( R v Le , at paras 158-159 .) iv. Final Balancing [ 43 ] The final s. 24(2) balancing is incapable of mathematical calculation or explanation ( R v Grant , at para 86 ).

It involves stepping back and considering the Grant factors in the context of the particular evidence. The serious and dangerous alleged conduct of the accused is a factor. In my view, this factor is outweighed by the failure of the police to observe bright line rules in relation to the accused’s detention and the provision of legal rights without delay. The multiple breaches of Charter -protected rights in this case elevate the negative effect on the administration of justice that would result from admitting the seized evidence.

The ends must not justify the means ( R v Le , at para 160 ). [ 44 ] The material seized, including the two firearms and the crystal meth, will be excluded from evidence at this trial in accordance with s. 24(2) of the Charter . Dated this 15th day of September, A.D. 2020, at the City of Prince Albert, in the Province of Saskatchewan. _________________________ H.M. Harradence, J