Her Majesty the Queen - v. -, 2016 SKPC 8

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 008 Date: January 28, 2016 Information: 38979192 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - April Eva Roberts Appearing: Dan Heffernan For the Crown Angus McLean For the Accused DECISION ON V OIR DIRE F.M.

D AUNT , J [ 1 ] April Eva Roberts stands charged that on October 16, 2014 she did unlawfully have in her possession a controlled substance to wit: methamphetamine, for the purpose of trafficking, contrary to Section 5(2) of The Controlled Drugs and Substances Act . [ 2 ] Defence served a Charter notice on Crown counsel, which, unfortunately, was never filed with this Court. Nevertheless, Crown and Defence called evidence on the voir dire and fully argued the evidence relating to potential violations of sections 8, 9, and 10(a).

Counsel advanced arguments for and against exclusion of the evidence under section 24(2).

FACTS [ 3 ] Constable Adam Parenteau testified for the Crown. April Roberts testified for the Defence. Much of Ms. Roberts’s evidence differed remarkably from that of Constable Parenteau. After considering both testimonies, I found Ms. Roberts not credible. I cannot reconcile some of her evidence with that of the officer without concluding that one of them is lying for no apparent reason. With some exceptions, explained below, I generally prefer the evidence of Constable Parenteau where it conflicts with that of Ms.

Roberts. [ 4 ] Constable Parenteau says at 2:55 a.m. he was “dispatched to” 939 17 th Street West as the result of a complaint that a person was trying to get in the house. No description of the suspect was given. It is unclear what the officer means by “dispatched to,” because other officers attended that address in response to the complaint. Constable Parenteau was in the area, known as the West Flat, in a marked police vehicle. He saw a car parked at Buddy’s Grocery, at 903 17 th Street West, in the same city block as the subject of the complaint. A male was seated in the car.

Another male and a female were walking away from the vehicle. He did not specify the direction in which they were walking. [ 5 ] Ms. Roberts testified that she was walking home, which was also toward the address noted in the complaint and toward other police vehicles that had responded to it. I accept her evidence on this point. Except for the time of night and proximity to the complaint, there was nothing suspicious about the behavior of the three suspects. Neither Ms.

Roberts nor her companion was agitated or intoxicated, for example. [ 6 ] Believing he had a reasonable suspicion that these people were involved in the complaint, the officer called out to the two pedestrians. He does not recall exactly what was said, but he did not tell them they were under arrest or detained for investigation. He thinks he said they were “possibly involved in a B&E.” [ 7 ] Ms. Roberts testified that Constable Parenteau did not tell them the reason they were stopped. Because of the officer’s memory lapse, I accept her evidence on this point. [ 8 ] Constable Parenteau asked Ms.

Roberts and her companion what they were doing there and where they were going. He does not recall their response. In cross-examination, he admitted that the response was irrelevant to him, because “criminals lie.” He had never met Ms. Roberts before this occasion. [ 9 ] I accept that Ms. Roberts told him they were going home and that she lived just behind the house where the complaint originated. [ 10 ] The officer did not ask them if they were involved in the complaint, or whether they had seen anyone trying to get in to 939 17 th Street West.

Rather he asked their names so he could check CPIC to see if they were on conditions or wanted on warrants. He did not specify how this information might help him further the investigation of the original complaint. He made no further inquiries into the status of the original complaint. He sought no information from the officers who did attend to the address in question. He did not ask if there was now a description of the suspect.

Constable Parenteau felt he had grounds to arrest them for breaking and entering into 939 17 th Street West, although Crown counsel suggested otherwise in direct examination. [ 11 ] He did not arrest them for that offence, however. The CPIC check revealed a warrant for the arrest of April Roberts, for failing to appear in court to answer to the

summary conviction charge of joyriding. The original complaint all but forgotten, Constable Parenteau placed Ms. Roberts under arrest for taking a motor vehicle without consent and for failing to appear. He placed her purse in the trunk of the patrol vehicle. He read her rights and warnings and transported her to the police station. [ 12 ] On arrival, Ms. Roberts was searched and placed in a cell. Her purse was also searched.

Conceding that there was likely no evidence to be found therein relating to failing to appear in court or to joyriding, Constable Parenteau says he was searching for weapons or possibly needles that could inadvertently poke someone handling the purse the next day when they took her to court, if her purse accompanied her to court. [ 13 ] Inside her purse he found a sunglasses case. Inside the case was a pipe of the sort used to smoke crystal meth. Next he found a digital scale. He opened it up to make sure it was functional. He found 14 empty small baggies, which he called “dime baggies.”

Next, he found a cell phone. (He did not search this cell phone.) Then he found a small silver “purse bag.” Inside the bag was aflashlight. Inside the flashlight was a white baggy. Inside the baggy were two smaller baggies. Inside one of those baggies wasmethamphetamine. Inside the other baggy were six smaller baggies, each containing methamphetamine. [14] As for the original complaint, Constable Parenteau is unaware of the result of the investigation. He is unaware if anyone elsewas arrested or charged with any crime arising out of the incident.

LAW [15] The relevant sections of the Charter are: 8 Everyone has the right to be secure against unreasonable search or seizure. 9 Everyone has the right not to be arbitrarily detained or imprisoned. 10 Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; 24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [16] The burden of proof is on Ms. Roberts on a balance of probabilities.

However, where there is a warrantless search, such ashere, the burden shifts to the Crown to show the search was reasonable, i.e., it was authorized by law; the law itself is reasonable; andthe manner of search was reasonable. R v Collins, (SCC), [1987] 1 SCR 265. ISSUES 1. Was there a detention? 2. If so, were sections 9 and 10(

a) violated? 3. Was there a violation of s. 8? 4. If a violation is found, should the evidence be excluded? ANALYSIS 1. “Detention” [17] Crown counsel submits there was no detention within the meaning of sections 9 and 10 of the Charter. Rather, this was oneof those police-citizen interactions short of detention contemplated by R v Suberu, 2009 SCC 33. Thus, sections 9 and 10 are notengaged. However, Constable Parenteau’s evidence makes it clear that he himself meant to detain Ms. Roberts.

He suspected she wasinvolved in a “B&E.” He outlined his grounds for detention: the proximity to the location and the time of night. Indeed, he believed hehad grounds to arrest her. In his mind, Ms. Roberts was not free to leave. Had she walked away, he would have arrested her withoutwarrant. She was not, in fact, free to leave. The officer was not asking preliminary, exploratory questions. He did not ask Ms. Robertswhether she knew anything about the complaint. Her reply would be irrelevant to him; he would not believe anything she said. It is truehe did not physically restrain Ms.

Roberts or tell her she was detained. However, I find Ms. Roberts submitted to the deprivation ofliberty because she reasonably believed she had no choice but to comply. R v Therens, (SCC), [1985] 1 SCR 613.

[ 18 ] Under these circumstances, I find Ms. Roberts was detained within the meaning of sections 9 and 10 of the Charter . 2. Sections 9 and 10(a) [ 19 ] Having found there was a detention and that Constable Parenteau did not inform Ms. Roberts of the reason for her detention,

section 10(

a) was violated. However, the question remains: was the detention arbitrary? [ 20 ] If there was a valid investigative detention, as outlined in R v Mann, 2004 SCC 52 , then the detention was not arbitrary. As stated in Mann : 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. [ 21 ] Constable Parenteau says he had reasonable grounds to suspect that Ms. Roberts was involved in a B&E. Dispatch gave him very little information with which to work.

The officer concluded that the offence of break and enter had been committed, but that is not clear based on the complaint. “A person trying to get into the house” could entail many different scenarios, some criminal and some not. Constable Parenteau did not know if the complainant knew the person. He did not know if the person was male or female. He did not know if the person lived at that residence but had been locked out. He did not have a description of the suspect.

Maybe the complainant was describing a criminal offence, but without further information, the officer could not reasonably believe that an offence had occurred. [ 22 ] Similarly, his information was that “a person” was trying to get in the house. Not two people. Not three people. He had no indication that a vehicle was involved. Ms. Roberts did not act suspiciously. She was not furtive. She co-operated and answered the officer’s questions. She did not argue or protest. She was walking toward the scene of the occurrence, not away from it, as though to escape.

She explained her presence in the neighbourhood. [ 23 ] Furthermore, to find a valid investigative detention, I must first find the officer was actually investigating the complaint. His actions do not support such a finding. Although he says he was “dispatched to” a certain address, he did not attend it. He did not speak to the complainant or ask for information from other officers who did. He did not say that he informed these officers he had detained two suspects. The questions he asked of Ms. Roberts were not to further the investigation.

Rather, they were the sort of generic questions officers ask of anyone to see if they have been drinking or are otherwise up to no good. [ 24 ] The officer did not believe anything Ms. Roberts had to say would aid in the investigation because “criminals lie.” Constable Parenteau had never before met April Roberts. At this point, he had no idea whether or not Ms. Roberts was a criminal.

If he based this belief on other observations about her appearance or her neighbourhood, he did not articulate them. [ 25 ] I find that the officer asked her name, not to further the investigation, but to find a reason to arrest her. He had no reason to believe a warrant for her arrest needed executing, nor that she was subject to conditions. This was no more than a fishing expedition and did nothing to further the investigation into the original complaint. I do not believe the officer was investigating anything in particular.

Rather, the recent complaint was a coincidence which the officer used as a pretext to detain Ms. Roberts without reasonable grounds.

[26] The detention was made without reasonable suspicion. It therefore does not meet the criteria for an investigative detention. Ifind Constable Parenteau violated Ms. Roberts’s

section 9 right not to be arbitrarily detained. 3. Unreasonable Search or Seizure [27] Because the search was without warrant, the burden shifts to the Crown to justify it. Crown counsel submits the search wasincident to a valid arrest on a warrant. This gives the officer the power to search incidental to arrest. He may search for evidence relatedto the reason for arrest. He may also conduct a safety search. In R v Caslake, (SCC), [1998] 1 SCR 51, the SupremeCourt of Canada states: [19] As L’Heureux-Dubé J. stated in Cloutier [Cloutier v.

Langlois, (SCC), [1990] 1 S.C.R. 158], the three mainpurposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at thehands of the arrestee or others, and the discovery of evidence which can be used at the arrestee’s trial. The restriction that the searchmust be “truly incidental” to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest.Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objectiveaspects to this issue.

In my view, the police must have one of the purposes for a valid search incident to arrest in mind when the search isconducted. Further, the officer’s belief that this purpose will be served by the search must be a reasonable one. . . . . [21] … This Court cannot characterize a search as being incidental to an arrest when the officer is actually acting for purposes unrelatedto the arrest. That is the reason for the subjective element of the test.

The objective element ensures that the police officer’s belief that heor she has a legitimate reason to search is reasonable in the circumstances. [22] Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there mustbe some reasonable prospect of securing evidence of the offence for which the accused is being arrested.

For example, when the arrest isfor traffic violations, once the police have ensured their own safety, there is nothing that could properly justify searching any further (seeBelnavis, supra [(1996), (ON CA), 107 C.C.C. (3d) 195 (Ont. C.A.), aff'd (SCC), [1997] 3 S.C.R.341]). [28] To be a valid search incident to arrest, it must truly be incident to the arrest and related to the reason for the arrest. Here, noevidence of the crime of failing to appear in court would likely be found in Ms. Roberts’s purse. Similarly, evidence she had taken amotor vehicle on some unspecified date was unlikely to be uncovered.

This was not a search incident to arrest. [29] The other police power to search can be independent of the reason for arrest. A safety search may be conducted even withoutarrest or detention. That power, though, is limited. In R v MacDonald, 2014 SCC 3, the Court states at paragraph 41: But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled.

In my view,the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safetysearches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the highprivacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable groundsthat 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).

The legalityof the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v. Tse, 2012SCC 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 a vagueconcern for safety. Rather, for a safety search to be lawful, the officer must act on “reasonable and specific inferences drawn from theknown facts of the situation” (Mann, at para. 41). [emphasis added] [30] At the time of the search, Ms. Roberts was safely separated from her purse and its contents.

If there were a weapon, she hadno access to it. No “imminent threat” justified a search for weapons. Similarly, the officer had no reason to believe she might have aneedle in her purse. Indeed, this is a “vague concern for safety.” If a needle were in the purse, the surest way to get poked is to rootaround in said purse. It is therefore difficult to believe the officer’s stated purpose in performing the search. Nothing was poking out ofthe sunglasses case. There was no reason to open it. He should not have discovered the meth pipe. Similarly, the silver purse bag andthe flashlight within posed no danger.

If the digital scale and empty baggies piqued the officer’s curiosity, he might have applied for awarrant. However, without the results of the more thorough searching of packages within packages within packages, no warrant couldissue. The interaction between Constable Parenteau and Ms. Roberts began with a fishing expedition, and ended with an archaeologicaldig. This search was not truly incidental to arrest, nor was it reasonably necessary for public or officer safety. Thus the search was notauthorized by law, violating Ms. Roberts’s right to be secure against unreasonable search or seizure. 4. Grant Analysis

[31] Would inclusion of the evidence obtained in violation of the Charter bring the administration of justice into disrepute?

According to the Supreme Court of Canada in R v Grant, (2009) 2009 SCC 32 , 245 CCC (3d) 1, the Court must balance threecompeting considerations: 1) the seriousness of the Charter-infringing state conduct (admission may send the message that the justicesystem condones serious state misconduct); 2) the impact of the breach on the Charter-protected interests of the accused (admission maysend the message that individual rights count for little); and 3) society’s interest in the adjudication of the case on its merits.

Theanalysis must focus on maintaining the integrity of and public confidence in the justice system in the long term. [32] Ms. Roberts is a First Nations woman living in the West Flat in Prince Albert. A similar neighbourhood in another city mightbe called the Hood. In the case of a First Nations person, I am mindful of systemic factors percolating throughout our society which canaffect how First Nations people perceive the administration of justice. Systemic discrimination results in First Nations experiencingmore frequent and more intrusive interactions with agents of the state than the general population.

First Nations people are part of thepublic which must have confidence in the administration of justice for it to work properly. As Ms. Roberts said on the stand, “Ifanyone’s walking here, do you just pull them over and search them?” Although she should have known there was a warrant for herarrest, I believe this reflects how she perceives the incident. This is the very perception the justice system must strive to put to rest. Thiscourt does not condone this sort of exploratory and casual infringement of civil liberties. [33] I find the breaches serious. Ms.

Roberts had nothing to do with the matter purportedly being investigated; she was in thewrong place at the wrong time. It is troubling that this officer believes he could have arrested her on an invalid hunch. On the otherhand, crystal meth is a problem in this city. Society has a strong interest in prosecuting those who would traffic it. However, Ms.Roberts was not the target of a drug investigation. Nothing in the evidence suggests she is a major player in the drug scene or involved ina criminal organization.

While society has an interest in adjudication on the merits, in the case at bar, I find that the impact of the breachon Ms. Roberts’s Charter-protected interests outweighs that interest. Admission of the evidence would send the message that thisconduct is condoned by the courts and would do nothing to prevent an innocent person from undergoing similar treatment in the future. [34] I therefore exclude the results of the search of the purse. [35] Dated this 28th day of January, A.D. 2016, at the City of Prince Albert, in the Province of Saskatchewan. ______________________ F.M. Daunt, J