Her Majesty the Queen - v. -, 2017 SKPC 67

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 067 Date: July 28, 2017 Information: 35709700, 35709701 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Daniel Thomas Kossick Appearing: S. Cameron For the Crown D. Piché For the Accused JUDGMENT D.C. SCOTT , J [ 1 ] On August 31, 2016, the accused was charged with the following: 1) Possession of methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act ; 2) Possession of property obtained or derived as the result of crime, contrary to s. 5(1) of the Controlled Drugs and Substances Act ;

3) Breach of undertaking for failing to keep the peace, contrary to s. 145(3) of the Criminal Code ; and 4) Breach of undertaking for possessing non-prescription drugs, contrary to. s. 145(3) of the Criminal Code . [ 2 ] Mr. Kossick brought a Charter application alleging his s. 8 and s. 9 Charter rights were violated and sought exclusion of evidence under s. 24 of the Charter . [ 3 ] In the Charter voir dire , the Crown called as a witness Cst. Aaron Parker and the defence called Cst. Christopher Hobman. [ 4 ] A separate voir dire was entered into to qualify Cpl.

Dalton Marciniuk as an expert witness. [ 5 ] The testimony of Cst. Parker and Cst. Hobman was applied in the trial proper, subject to any exclusions arising from the Charter application. The Crown also called as additional witnesses, Cpl. Marciniuk and Sgt. Grant McMillan. The defence called Mr. David Kossick, father of Daniel Kossick. Background [ 6 ] On August 31, 2016, Cst. Parker was alone on patrol in a marked police vehicle, stopped at an intersection stop sign, facing south, when he observed the accused Mr. Kossick riding a bicycle eastbound on the south side of the intersection. [ 7 ] Cst.

Parker was familiar with Mr. Kossick and was aware that Mr. Kossick was a suspect in relation to a bicycle theft. He radioed to Cst. Hobman, who was the bicycle theft’s lead investigator, to determine if Mr. Kossick was arrestable. Cst. Hobman told Cst. Parker that Mr. Kossick was arrestable for the bicycle theft. [ 8 ] Cst. Parker used his siren to direct Mr. Kossick into an empty parking lot. On approaching him there, Cst. Parker immediately informed Mr. Kossick that he was under arrest for theft under $5,000. Cst. Parker placed Mr. Kossick in handcuffs and searched him incident to arrest. In Mr.

Kossick ’ s left pocket, Cst. Parker found $90 cash (two $20 bills, one $50 bill) and two cell phones, an LG Nexus and a Samsung Galaxy, all of which he returned to Mr. Kossick ’ s pocket. He continued searching and found in Mr. Kossick ’ s right change pocket, a small, plastic baggie containing what he believed to be a controlled substance, later determined to be methamphetamine, weighing 3.82 grams. [ 9 ] After the search, Mr. Kossick told Cst. Parker that he had already been arrested and released in relation to the bicycle theft. Cst Parker searched CPIC and SIMS, and confirmed that Mr.

Kossick had in fact been arrested on August 27, 2016 and released on conditions. [ 10 ] Cst. Parker advised Mr. Kossick he was no longer under arrest for the theft, but was now under arrest for possession of a controlled substance and breaches associated with that possession. He was placed in the patrol car. [ 11 ] From his position in the front seat, Cst. Parker was able to see Mr. Kossick in the rear of the patrol car, grabbing his LG cell phone from his pocket and attempting to manipulate the phone. The officer removed the phone from Mr.

Kossick’s possession and placed it on his duty bag in the front passenger seat.

[ 12 ] While the officer made notes, the cell phone received messages that popped up on the screen. Cst. Parker testified he could read all or partial messages as they were received, without having to touch the phone or press any buttons. [ 13 ] Mr. Kossick’s cell phone continued to receive messages. Cst. Parker believed the messages might be related to the controlled substance found on Mr. Kossick’s person. Once in detention at the police station, the officer viewed those messages and others, and responded to some.

The phone was not locked, but the officer needed to press a button to open the phone and scroll up and down. [ 14 ] Based on the content of the messages, Mr. Kossick ’ s two cell phones, the $90.00 cash and Mr. Kossick ’ s previous history of trafficking, Cst. Parker believed Mr. Kossick possessed the methamphetamine for the purpose of trafficking. As such, Cst. Parker arrested Mr. Kossick for possession for the purpose of trafficking and possession of property obtained or derived from a crime. [ 15 ] Cst. Parker then took the cell phone to the exhibits room where he made notes of the messages he had read.

According to the officer, he only searched the open Facebook Messenger application on the cell phone as well as two incoming phone calls, which he answered. He did not search other areas of the phone. [ 16 ] On January 7, 2017, Cst. Parker obtained a search warrant for the cell phone and the Technological Crimes Unit analyzed the contents of the phone. [ 17 ] Sgt. McMillan of the Technological Crimes Unit of the Saskatoon Police Service conducted an analysis of the LG cell phone seized from Mr. Kossick and prepared an extraction report of his fin dings. The analysis related to pre-arrest messages. [ 18 ] Cpl.

Marciniuk was qualified as an expert witness to testify with respect to certain matters related to drug trafficking. The nature and scope of his testimony was defined in my decision dated April 5, 2017 on the qualifications voir dire . [ 19 ] Mr. David Kossick, father of the accused, testified on behalf of the defence. Issues 1. Were Mr. Kossick ’ s s. 8 and s. 9 Charter rights violated? (

a) Did Cst. Parker have reasonable grounds to arrest Mr. Kossick? (

b) Was the search of Mr. Kossick a lawful search incident to his arrest? (

c) Was the search of Mr. Kossick’s cell phone a lawful search incident to arrest? (

d) Did Cst. Parker possess the necessary grounds to obtain the search warrant for the cell phone? 2. If I find a breach or breaches, what is the appropriate remedy under s. 24(2) of the Charter ? 3. Has the Crown proven each of the charges beyond a reasonable doubt? Discussion 1. Were Mr. Kossick ’ s s. 8 and s. 9 Charter rights violated?

[ 20 ] Mr. Kossick filed a Charter notice December 22, 2016, which was amended on January 10, 2017 and March 3, 2017. [ 21 ] Mr. Kossick argues that because he had been arrested for the bicycle theft on August 27, 2016, his arrest on August 31, 2016, in relation to the same charge, was unlawful and therefore constituted an arbitrary detention, contrary to s. 9 of the Charter . [ 22 ] Further, he argues that the search and seizure of the items from his person, and subsequent search of the cell phone incident to an unlawful arrest, violated his s. 8 Charter rights. [ 23 ] Finally, he argues that if Cst.

Parker unlawfully searched the LG cell phone, the messages found by Cst. Parker could not form the basis of his reasonable and probable grounds to obtain a warrant to search the cell phone more thoroughly. [ 24 ] The Crown concedes that if Cst. Parker’s search of the cell phone constituted a breach resulting in exclusion of those messages, he did not possess the necessary grounds to obtain the search warrant. [ 25 ] Mr.

Kossick seeks exclusion of all evidence obtained incident to arrest and in relation to the search warrant, pursuant to s. 24(2) of the Charter , including the drugs, cash, cell phones, and evidence derived or extracted from the cell phones. (

a) Was Mr. Kossick ’ s arrest on August 31, 2016 lawful? [ 26 ] On August 22, 2016, Cst. Parker had received a service-wide email from Cst. Hobman with attached images of suspects related to a bicycle theft. Cst. Parker recognized one of the individuals as Daniel Kossick, who was known to him. Cst. Parker informed Cst. Hobman of Mr. Kossick’s identity and was told by Cst. Hobman, who was the lead investigator, that he would be laying charges. [ 27 ] On August 23, 2016, Cst. Hobman requested a warrant for Mr. Kossick’s arrest and believes it was issued that day. Cst. Hobman did not inform Cst.

Parker that he would be requesting a warrant. Cst. Hobman had no further interactions with Cst. Parker until August 31, 2016. [ 28 ] On August 31, 2016, upon spotting Mr. Kossick, Cst. Parker decided to radio Cst. Hobman asking if Mr. Kossick was arrestable on the theft. Cst. Parker also ran Mr. Kossick’s name on CPIC and SIMS, but did not take time to refer to those databases. [ 29 ] Cst. Hobman told Cst. Parker that Mr. Kossick was arrestable, meaning he was “able to be arrested” for the charge of theft under $5,000 in relation to the bicycle. Their conversation was brief. Cst.

Hobman did not mention that he had requested a warrant. Cst. Hobman acknowledged that he did not refer to CPIC or SIMS before responding to Cst. Parker. [ 30 ] Cst. Parker testified he did not have time to go into the SIMS system, pull up the file and begin reading through all of the reports. Cst. Parker testified it would have taken him two minutes to search Mr. Kossick’s history on SIMS. [ 31 ] In cross-examination, Cst. Parker acknowledged that according to his notes, he was told by Cst. Hobman that Mr.

Kossick was arrestable, that he “quickly ran Kossick on CPIC and SIMS and then pulled in behind him at Avenue ‘H’ and 22 nd Street West ” . He testified the information was pulled up onto his screen, but he did not read it because he would have to go into different files on SIMS. According to Cst. Parker, there was some urgency because Mr. Kossick was on a bicycle and the officer may have lost sight of the accused or the opportunity to arrest him. However, he also testified that Mr. Kossick was known to the police and that they had addresses for him.

[ 32 ] Relying only on Cst. Hobman’s information, Cst. Parker believed Mr. Kossick was arrestable. It was only after he arrested and searched Mr. Kossick and was told by Mr.Kossick that he had been previously arrested on the bicycle theft, that Cst. Parker referred to CPIC and SIMS and confirmed this to be true. [ 33 ] Cst. Parker also discovered Mr. Kossick was bound by a condition that he “submit to search of his person, residence and vehicle without warrant or reasonable grounds”. Cst. Parker acknowledged that he did not beco me aware of that condition until after Mr.

Kossick had been searched incidental to arrest. [ 34 ] After Cst. Parker confirmed that Mr. Kossick had been previously arrested on the bicycle theft, he informed Mr. Kossick that he was no longer under arrest for that offence but instead was under arrest for possession of a controlled substance discovered when he was searched. [ 35 ] A member of the Saskatoon Police Service since 2013, Cst. Parker is familiar with CPIC and SIMS. According to Cst. Parker, CPIC is available to all police services across Canada. The Saskatoon Information Management System (SIMS) is the Saskatoon Police Service local system.

If someone requests a warrant or if an accused is placed on conditions, that information is recorded on CPIC, so that every police service has access to it. When an officer leaves a report on SIMS, it is available only in Saskatoon. The two databases are linked. [ 36 ] When an individual is charged with an offence, that information is recorded on SIMS and attempts will be made to locate the individual until a warrant is issued. If a warrant is issued it is recorded on CPIC. However, reference to a warrant is removed from CPIC when the warrant is executed and the suspect is arrested.

In this case, on August 31, 2016 Mr. Kossick’s arrest on the bicycle theft would have been recorded on SIMS , but the warrant would have been removed from CPIC, according to Cst. Parker. [ 37 ] This was the first warrant requested by Cst. Hobman, who was a new officer. He testified that at the time of his radio communication with Cst. Parker on August 31, 2016, he did not know that the warrant for Mr. Kossick’s arrest had been executed. The arresting officer had not informed him of such. Neither had Cst. Hobman followed up with regard to the warrant’s status. Cst.

Hobman only learned after his radio conversation with Cst. Parker that Mr. Kossick ha d been arrested on August 27, 2016 in relation to the theft. [ 38 ] Cst. Hobman testified that once the request for a warrant goes through the proper channels it is recorded on CPIC. However, there is nothing in the system to ensure officers are notified when a warrant is executed. It is up to the officer to request notification. [ 39 ] According to Cst.

Hobman, if the requesting officer does not specifically state on the Request for Warrant form that they wish to be notified, that would not occur — it would be up to the officer who requested the warrant to follow up on their own. [ 40 ] Cst. Hobman checked “yes” indicating that he wanted to be notified, but placed Acting Sgt. Vogel’s name beside the box. He acknowledged that by doing so, it could have been interpreted that only Acting Sgt. Vogel should be notified of the warrant’s execution and not Cst. Hobman. He was not notified about Mr. Kossick’s arrest on August 27, 2016. [ 41 ] Cst.

Parker explained that once a charge is laid, the accused can be arrested. If a warrant has not been requested at that point, the SIMS system will indicate they are arrestable. However, without a warrant, CPIC would not show that the accused is arrestable, until such time as there is a warrant. In this case, Cst. Parker testified that CPIC appeared to indicate that no warrant was requested. However, SIMS did indicate that Mr.

Kossick had been arrested on a warrant for the theft. [ 42 ] A detention not authorized by law will be arbitrary within the meaning of s. 9 of the Charter : R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 . [ 43 ] Where the lawfulness of an arrest is in issue on a Charter application, the onus is on the Crown to establish that the

police had reasonable grounds for the arrest. The burden of persuasion is on the Crown to prove the arrest was objectively reasonable: Rv Besharah, 2010 SKCA 2, 251 CCC (3d) 516 [Besharah]; R v White, 2006 ONCJ 147 [White]. [44] In the present case, I am satisfied that Cst. Parker’s belief that Mr. Kossick was arrestable was subjectively reasonable. Heknew Mr. Kossick had been the suspect in relation to a theft and was told by the lead investigator that Mr. Kossick could be arrested. The question is whether Cst.

Parker’s belief was objectively reasonable. [45] In R v Shinkewski 2012 SKCA 63, [2012] SJ No 376 (QL) at para 13 [Shinkewski], the Court of Appeal stated the followingwith regard to “reasonable grounds” for an arrest [some authorities omitted]: [13] (

a) an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objectivepoint of view – in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there wereindeed reasonable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; (

b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities or a prima faciecase for conviction before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” or ahunch; (

c) an arresting officer must consider all incriminating and exonerating information which the circumstances reasonably permit, but maydisregard information which the officer has reason to believe may be unreliable; (

d) a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion; (e) “. . . the standard must be interpreted contextually, having regard to the circumstances in their entirety, including the timinginvolved, the events leading up to the arrest both immediate and over time, and the dynamics at play in the arrest”; context includes theexperience and training of the arresting officer. [46] The Court of Appeal also stated that an otherwise lawful arrest is not invalidated by the subsequent discovery ofdeficiencies or defects in the information upon which the police have relied unless, in the circumstances of the arrest, the police couldreasonably have made inquiries which would have led to the discovery of the deficiencies or defects: Shinkewski, para 19. [47] The defence argues that the Crown has failed to prove that Cst.

Parker’s belief that Mr. Kossick was arrestable wasobjectively reasonable because the information upon which the officer based his belief was not reliable. The defence argues that Cst.Hobman was an inexperienced officer and that Cst. Parker ought to have independently verified Cst. Hobman’s information using CPICor SIMS. [48] It is the Crown’s position that Cst. Parker’s belief was objectively reasonable as it was based upon his previous photographicidentification of Mr. Kossick as the suspect in the theft and the confirmation from Cst. Hobman, the lead investigator, that Mr.

Kossickwas still arrestable. [49] The Crown submits that where an officer relies on mistaken information, there will be no Charter breach unless itwas not objectively reasonable for the officer to have relied on that information. [50] In R v Koziak, 2005 ABQB 278, [2005] AJ No 478 (QL) [Koziak] weapons were seized incident to arrest of theaccused for possession of a stolen vehicle. The arresting officer was incorrectly informed that the vehicle driven by the accused wasstolen.

The court concluded the arrest was lawful, finding that the officer had subjectively reasonable and probable grounds to arrest andthat the grounds were objectively reasonable in light of the information at the time, although in hindsight, the grounds turned out to be

inaccurate. The items seized were incidental to a lawful arrest and therefore admitted in the trial proceedings. [ 51 ] In White , the Court surveyed a number of cases where an officer ’ s arrest was based upon misinformation. In that case, the officer believed the accused was bound by a recognizance of bail containing a condition that required him to be in his residence between 10:00 p.m. and 6:00 a.m. The officer, observing the accused at 3:00 a.m., believed the accused was breaching his recognizance and placed him under arrest.

During a search of the accused, a quantity of cocaine was discovered in the accused ’ s jacket. The information upon which the officer relied with respect to the curfew was out-of-date, having been cancelled five months earlier. The Court concluded the Crown had not established that the arrest was lawful . As the reasonableness of the search depended on the lawfulness of the arrest, the search infringed the accused ’ s rights under s. 8 of the Charter .

However, the Court found there were a number of factors which mitigated the seriousness of the breach and concluded the administration of justice could not be brought into disrepute by admission of the evidence: White , para 4 . [ 52 ] The Court in White held that the burden was on the Crown to provide an evidentiary basis for the conclusion that the information upon which the arresting officer relied was reliable and accurate. [ 53 ] The Court in White questioned the analysis in Koziak , suggesting that the reliability and credibility of the information provided by a fellow officer must be assessed. “ If that information is found to have been unreliable, the fact that the officer who received it did not know that it was unreliable would not insulate the arrest from a finding of objective unreasonableness ” : White para 26 . [ 54 ] However, our Court of Appeal in Shinkewski held that the trial judge in that case incorrectly considered the actual reliability and currency of information which was unknown to the arresting officer. [ 55 ] The question in this case is whether it was objectively reasonable for Cst.

Parker to rely solely on what turned out to be Cst. Hobman’s mistaken information. [ 56 ] The circumstances known to Cst. Parker at the time of arrest are as follows: Mr. Kossick was a suspect in the theft of a bicycle; Cst. Hobman, the lead investigator, told him Mr. Kossick was arrestable on that charge; Cst. Parker was in a patrol car equipped with CPIC and SIMS; it would take two minutes to access information about Mr. Kossick; Cst. Parker observed Mr. Kossick riding in a different direction on a bicycle. Cst. Parker was unaware that Mr.

Kossick had been previously arrested on the theft charge and released. [ 57 ] On its face, it is not objectively unreasonable for an arresting officer to have relied on information from a fellow officer regarding the arrestability of an individual. Subsequent discovery of defects in the information would not invalidate the arrest unless in the circumstances at the time of the arrest, the police could reasonably have made inquiries, which would have led to the discovery of the defects : Shinkewski para 19 . [ 58 ] Cst. Parker explained that he could not have made those inquiries on CPIC or SIMS prior to arrest.

He was unable to use the computer system while driving and it would have taken two minutes to locate the information on the system. He stated there were a number of files that he would have to read and he did not know the file number on the SIMS system. CPIC would not have assisted him. He explained it was faster to contact the lead investigator, who he believed would be more reliable. [ 59 ] Given Cst. Parker ’ s experience, I accept his evidence regarding the operation of CPIC and SIMS. An existing warrant will be recorded on CPIC and SIMS. Once the warrant has been executed, it is removed from CPIC.

However, information about an arrest is recorded on SIMS. [ 60 ] Cst. Parker was able to locate Mr. Kossick’s name on CPIC and SIMS after speaking with Cst. Hobman and prior to pulling over Mr. Kossick. And, once Mr. Kossick explained that he had been previously arrested on the theft, Cst. Parker was able to verify readily that information on SIMS in the patrol car.

[ 61 ] I question whether there was the urgency that Cst. Parker testified to in the circumstances of the arrest. He was concerned that he would lose the opportunity to arrest Mr. Kossick at that time. But, Cst. Parker acknowledged the police service knew of Mr. Kossick and where he resided. [ 62 ] Taking into account all of the circumstances, including the events leading to the arrest, the dynamics at play at the time of the arrest, and Cst. Parker ’ s experience, he was reasonably able to make inquiries which would have led to the discovery of the misinformation provided by Cst.

Hobman. [ 63 ] A reasonable person in the shoes of Cst. Parker, fully aware of the system’s particular idiosyncrises, with information available to him to confirm, and without any real urgency, would have made the inquiries of SIMS to verify the information from Cst. Hobman. [ 64 ] I am not suggesting that in all cases an officer who receives what he believes to be reliable information from a fellow officer should take independent steps to verify the information before making an arrest. That would not be reasonable or practical in many circumstances. In this case, Cst.

Parker could reasonably have done so, by referring to CPIC and SIMS open to Mr. Kossick’s name in his vehicle prior to Mr. Kossick’s arrest. [ 65 ] I am satisfied that Cst. Parker subjectively believed Mr. Kossick was capable of being arrested lawfully. In all of the circumstances, the Crown has not established Cst. Parker’s belief that Mr. Kossick could be arrested was objectively reasonable. Therefore, I find the arrest of Mr. Kossick on August 31, 2016 to have been unlawful. (

b) Was the search of Mr. Kossick ’ s person lawful? [ 66 ] The reasonableness of the search depended on the lawfulness of the arrest. I have concluded that the arrest of Mr. Kossick on August 31, 2016 was unlawful. As such, I find that the search was unreasonable and infringed Mr. Kossick ’ s rights under s. 8 of the Charter . [ 67 ] The search incidental to arrest resulted in the seizure of the methamphetamine, $90 in cash and the LG cell phone. Because the arrest was unlawful, the search of Mr. Kossick ’ s person and the seizure of those items was unlawful. [ 68 ] I will specifically address the issue of Cst.

Parker’s search of the LG cell phone in the patrol car and at the police station , because of the unique nature of cell phone searches . (

c) Was Cst. Parker ’ s search of the cell phone lawful? [ 69 ] Mr. Kossick was arrested for the bicycle theft at 9:07 a.m. Upon searching Mr. Kossick’s person, Cst. Parker found drugs, cash and two cell phones. He returned the cash and cell phones to Mr. Kossick at that time. At 9:18 a.m. he informed Mr. Kossick he was no longer under arrest for theft, but instead for possession of a controlled substance. In the patrol car, the officer observed Mr. Kossick grabbing at his LG cell phone, so Cst. Parker seized the phone. He did so because he did not want Mr.

Kossick to contact anyone while he was in custody. [ 70 ] Cst. Parker placed the phone on top of his duty bag, in the front passenger seat beside him. The phone was unlocked. As Facebook Messenger messages were received on Mr. Kossick’s phone, the off icer testified he could see all or part of the content of those messages without manipulating the phone in any way. [ 71 ] At 9:30 a.m ., Mr. Kossick was booked and allowed to call a lawyer. While in detention, Cst. Parker observed that messages continued to be received on Mr. Kossick ’ s phone.

He believed the messages may have been in relation to the drugs, so he began to read the messages and reply to some of them. To do so, he had to press a button to turn on the phone and scroll up and down.

[ 72 ] After reading those messages, Cst. Parker believed the accused was in possession of the drugs for the purpose of trafficking. He t estified his belief was based on the nature and frequency of the messages, the presence of two cell phones, and Mr. Kossick ’ s possession of a controlled substance and $90 cash and his history. Mr.

Kossick was then charged with possession for the purpose of trafficking and possession of proceeds of crime. [ 73 ] At 10:12 a.m., the officer took the LG cell phone with him to the exhibit room to more thoroughly review the messages on the phone and take notes of what he observed. [ 74 ] Based on the messages he viewed at the police station, on January 7, 2017, he swore an Information to Obtain a search warrant. The warrant was granted and extensive pre-arrest data was extracted from the LG cell phone by the Technical Crimes Unit.

That data was downloaded onto a disc and a hard copy report was prepared. [ 75 ] The defence argues that the search of the LG cell phone by Cst.

Parker in the patrol car and in detention amounted to an unreasonable search and seizure, contrary to s. 8 of the Charter . [ 76 ] The Crown submits that there were three parts to the search of the cell phone incident, to make an arrest in this case: (1) the initial taking of the phone, placing it in the front seat of the police vehicle and viewing the messages in real time as they came up on the screen; (2) at detention, where the officer pressed the button on the phone to search it; and, (3) after a search warrant authorized further search of the cell phone.

The Crown argues that the search done in the patrol car was qualitatively different from the subsequent searches, in that the messages in the patrol car were in plain view. [ 77 ] The common law power to search incident to arrest permits reasonable searches within the meaning of s. 8 of the Charter and is extraordinary because it does not require a warrant or reasonable and probable grounds: R v Fearon , 2014 SCC 77 [ Fearon ], para 45 . [ 78 ] The search of cell phones and computers raises unique privacy interests: R v Vu , 2013 SCC 60 , [2013] 3 SCR 657 . [ 79 ] For the warrantless search of the cell phone to be lawful, it must be incidental to arrest.

The Crown bears the burden of establishing that the search incident to arrest was lawful: Fearon , para 87 . [ 80 ] The standard is not one of reasonable and probable grounds, but rather there must be a reasonable basis for doing what the police did: Fearon , para 22 ; see also R v Aden , 2015 SKCA 59 , 460 Sask R 98 . [ 81 ] In Fearon , the Supreme Court of Canada reviewed and clarified the law with respect to the search of cell phones incident to arrest.

Cromwell J summarized four conditions which must be met in order for the search incident to arrest of a cell phone to comply with s. 8 of the Charter : (1) the arrest must be lawful; (2) the search must be truly incidental to arrest; (3) the nature and extent of the search must be tailored to its purpose; and, (4) the police must take detailed notes of what they examined and how the device was searched: Fearon , para 83 . [ 82 ] In the present case, I have already concluded that the arrest of Mr.

Kossick in this case was unlawful, so the first Fearon requirement has not been met. [ 83 ] The warrantless search of a cell phone must be incidental to arrest. As such, the search must be done promptly upon arrest to serve law enforcement purposes, such as protecting the police, the accused or the public; preserving evidence; and discovering evidence: Fearon para 75 . Only recently sent or drafted messages will have the necessary link to these purposes: Fearon para 76 .

[84] Further, the nature and extent of the search of a cell phone must be truly incidental to the particular arrest for theparticular offence [my emphasis]: Fearon, para 76. [85] A clear link must exist between the arrest and the cell phone search. The police must be able to explain what theysearched and why: Fearon para 76, citing R v Caslake, (SCC), [1998] 1 SCR 51 [Caslake], para 25. [86] The search by Cst. Parker in the patrol car, shortly after arrest, involved viewing complete or partial messages asthey were being received.

The Crown argues those messages were in plain view and that the officer’s conduct did not amount to a searchsubject to the criteria set out in Fearon. However, Fearon does not appear to distinguish between a cursory viewing of cell phonemessages and those requiring some positive act on the part of the officer. For example, both locked and unlocked cell phones engagesignificant privacy interests: Fearon, para 53. [87] It is true that not every search of a cell phone will inevitably result in a significant intrusion, and a brief or cursorysearch may result in a minimal invasion of privacy.

The concern is the potential for broad invasion of privacy that may, but notnecessarily will, result from police search of a cell phone: Fearon para 54. It seems that all warrantless searches of a cell phone aresubject to scrutiny under Fearon. [88] The nature and number of the messages he partially viewed in the patrol car led Cst. Parker to believe they were inrelation to the controlled substance. The initial search in the patrol car was followed up by a more thorough search at the police station,where the officer opened the cell phone and scrolled up and down to review recent messages. Cst.

Parker testified that, at that point, hecontinued to search the cell phone to both preserve and discover evidence of the possession charge. [89] With respect to preserving evidence, Cst. Parker explained that messages received on the Facebook Messengerapplication are not stored on the cell phone, but can be removed from Facebook by the author. As such, he believed there was someurgency to searching the cell phone and recording what he saw. [90] With respect to discovering evidence, Cst.

Parker believed by going into the phone and searching the messagesreceived in the patrol car and in detention, he would receive “further evidence towards the possession”. [91] Yet, at the time of arrest for possession, after finding the cell phones in Mr. Kossick’s pocket, Cst. Parker returnedthe cell phones to Mr. Kossick. It appears, at that point, Cst. Parker did not believe the cell phones would be of assistance in hisinvestigation of the possession charge or that he would find further evidence of possession from the cell phone.

It was only after the cellphone began receiving messages that the officer believed he would discover evidence of possession. [92] Had Cst.

Parker believed there was a legitimate purpose for seizing and searching the cell phone incidental to arrest,to preserve or discover evidence in relation to the possession charge, he would have seized the cell phone at the time of the initial arrest. [93] If the purpose of the search is to discover evidence, there must be some reasonable prospect of finding evidence ofthe offence for which the accused is being charged [my emphasis]: Fearon para 22, referencing Caslake, paras 19-24; and, Fearon para25, referencing R v Nolet, 2010 SCC 24, [2010] 1 SCR 851. [94] The ‘discovery’ purpose must be treated restrictively.

The discovery of evidence, when searching a cell phoneincident to arrest, will be a valid objective only when the investigation will be “stymied or significantly hampered absent the ability topromptly search the cell phone”, for example, to locate other suspects or accomplices. Cell phone searches are not routinely permittedfor the purpose of discovering additional evidence. To be considered truly incidental to arrest, the search must serve an immediateinvestigative purpose: Fearon, para 80. [95] Cst. Parker believed the messages might support the possession charge. He did not indicate whether there was a

[ 95 ] Cst. Parker believed the messages might support the possession charge. He did not indicate whether there was a reasonable prospect of finding evidence of the offence of possession. The officer did explain, however, that once he read the texts in full and attempted to respond to them, that he suspected they were in relation to trafficking. [ 96 ] I conclude that the officer suspected the repeated messages were in relation to trafficking, rather than possession, and that he embarked on an investigation to discover evidence of trafficking before Mr. Kossick was charged with that offence.

He testified that, based on the messages he viewed, along with Mr. Kossick ’ s possession of the methamphetamine and his history of trafficking, he believed that Mr. Kossick was in possession for the purpose of trafficking, not simply to possess it for his own use. [ 97 ] The reasons raised in Fearon for allowing the search of a cell phone incident to arrest were not present here. Mr. Kossick ’ s charge of simple possession did not give rise to concerns about protecting the police, accused or public, preserving or discovering evidence.

It is unclear how the investigation into the possession charge would have been stymied or hampered if the officer were not able to view the cell phone messages. It is more likely that Cst. Parker was searching the cell phone for the purpose of discovering possible evidence of trafficking. Based upon Mr. Kossick ’ s history, Cst. Parker became suspicious that the drugs were for the purpose of trafficking and searched the phone to discover evidence of trafficking. [ 98 ] I conclude Cst.

Parker’s search of the cell phone was not truly incidental to arrest. [ 99 ] A further requirement under Fearon is that the police take detailed notes of what they examined and how they examined it. An officer ’ s record keeping is important to the effectiveness of after-the-fact judicial review. The detailed note taking should include information about the applications searched, the extent of the search, the time of the search, its purpose and duration: Fearon , para 82 .

According to Fearon , “ the obligation [to do so] is a matter of constitutional imperative ” : para 82. [ 100 ] The defence raised concerns about the sufficiency of the note taking by Cst. Parker. The officer’s notes [Exhibit P-1 voir dire ] taken in the exhibit room are reproduced in an Appendix to this decision. [ 101 ] Cst. Parker’s notes refer to the application searched, Facebook Messenger. They also refer to phone messages. The notes include information regarding the sender, the time received, and the content of the messages.

The officer testified he copied the messages verbatim, including abbreviations and misspelled words. Cst. Parker did not record the duration of the search or its purpose. [ 102 ] In R v Millett , 2017 ABQB 9 , [2017] AJ No 5 (QL) , [ Millett ] , the Court held that the Crown was unable to satisfy the criteria set out in Fearon , with regard to photographs from the screen of a locked iPhone 5 seized from the console of a vehicle driven by the accused and of which he was the sole occupant. The police also seized other cell phones found in the vehicle.

Although locked, the iPhone 5 ’ s settings allowed the display on the screen of communications received. In order to read the screen, the police had to depress the “ open ” button and use a thumb to scroll through the information displayed. The Crown failed to prove there was any need to access the phones promptly without a warrant and that the police officer failed to take detailed notes of what he examined and how the devices were searched. The information on the cell phone screen was excluded.

The Court held that because there were no notes recording what was done by the police in relation to the cell phones, it was impossible to assess the severity of the breach of the accused ’ s privacy rights. Therefore, the introduction of the photographs as evidence in the main voir dire would bring the administration of justice into disrepute. [ 103 ] The defence submits that Cst. Parker’s notes were insufficient to meet the Fearon test. The defence argues that Cst. Parker ’ s notes were nothing more than verbatim of what he saw on the screen and likens Cst.

Parker ’ s notes to the screen shot taken by the officer in Millett . [ 104 ] The Crown argues the present case differs from Millett in that Cst. Parker ’ s notes were detailed enough that when combined with his testimony, the Court could conduct a fulsome review of his search. [ 105 ] The Court in Fearon was clear that note taking which includes the purpose for the search is not only important after the fact, but also serves to focus the officer on the question of whether their search of the phone “ falls squarely within the parameters of a lawful search incident to arrest ” : Fearon , para 82 .

This would require recording the purpose of the search at the time the notes were made, rather than explaining the purpose later at a trial.

[ 106 ] Cst. Parker’s notes do not include the purpose for which the cell phone was searched. In any event, his testimony was vague about the purpose of his search in relation to the possession charge. He simply stated that he believed the messages were in relation to the drugs seized. [ 107 ] I conclude Cst. Parker’s notes were deficient in not stating the purpose for the search.

Had he taken the time to specifically consider and state the purpose, it might well have focused his mind on whether his conduct fell within the bounds of a lawful search incident to an arrest for possession. [ 108 ] In all of the circumstances, I find that the Crown has failed to establish that the search of the cell phone meets the Fearon criteria. The search was incident to an unlawful arrest. It is difficult to see how Cst. Parker ’ s search of the cell phone could be considered truly incidental to the arrest as it served no immediate investigative purpose.

Rather, it was undertaken to discover additional evidence of an offence for which the accused was not charged. Although the search was prompt and involved only recently received messages, the officer was unable to explain satisfactorily what further evidence of possession he might find by searching the cell phone at the detachment. Finally, Cst. Parker ’ s notes were deficient in that they did not indicate the purpose of the search. [ 109 ] I find that Cst.

Parker’s search of the cell phone was not truly incidental to the particular arrest for the particular offence of possession of a controlled substance: Fearon , para 76 . Rather, I am satisfied that it was undertaken for the purpose of discovering evidence of trafficking, an offence for which the accused was not charged at the time of the cell phone search. [ 110 ] I therefore find that Cst. Parker’s search of the cell phone amounted to a breach of Mr. Kossick ’ s s. 8 Charter rights. (

d) Did Cst. Parker possess the necessary grounds to obtain the search warrant for the cell phone? [ 111 ] The third aspect of the accused’s Charter application involves the Information to Obtain a Search Warrant, sworn by Cst. Parker on January 7, 2017. Cst. Parker sought a warrant to search the LG cell phone for evidence of drug trafficking more than four months after Mr. Kossick ’ s arrest. This search was not incidental to the accused ’ s arrest. Rather, the search warrant must have been based on Cst. Parker ’ s reasonable and probable grounds.

The search warrant allowed the Technical Crimes Unit to extract extensive data from Mr. Kossick ’ s LG cell phone. That data was downloaded to a disc and a written report was produced. [ 112 ] The defence argues that Cst. Parker did not possess the requisite reasonable and probable grounds to obtain a search warrant. [ 113 ] The Crown concedes that if the original search of the cell phone was an unlawful search, and the original cell phone messages are excluded, then Cst. Parker would not have had the necessary reasonable and probable grounds for the Information to Obtain. [ 114 ] I have found that Cst.

Parker’s search of the cell phone to have been unlawful. Therefore, if I exclude the evidence, the messages found on the cell phone could not support the Information to Obtain the search warrant. 2. What is the appropriate remedy under s. 24(2) of the Charter ? [ 115 ] Mr. Kossick has established on a balance of probabilities that his s. 8 and s. 9 Charter rights were violated. [ 116 ] Mr. Kossick seeks exclusion of the drugs, cash, cell phones and cell phone data, under s. 24(2) of the Charter . The

factors to be considered in a s. 24(2) Charter analysis are the seriousness of Charter -infringing state conduct; the impact of the breach on the accused; and, society ’ s interest in the adjudication of the case on its merits: R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ] . The Court must weigh and balance these considerations to determine whether admission of the evidence would bring the administration of justice into disrepute. Seriousness of the breaches [ 117 ] The unlawful arrest, while not necessarily deliberate, was more than a technical breach.

Although the circumstances of the arrest would have allowed Cst. Parker to do so, he did not make the inquiries that would have led to the discovery of Cst. Hobman’s misinformation. The concern that the officer might lose Mr. Kossick was not justified because the police knew how to locate him. Alternatively, Mr. Kossick could have been briefly detained, rather than arrested, while Cst. Parker confirmed his status. It appears that Cst. Parker chose expediency over diligence, and as such was negligent in ensuring that Mr. Kossick could be lawfully arrested. [ 118 ] The arrest of Mr. Kossick was not random, Cst.

Parker honestly believed the accused was arrestable and there was a basis for his belief. In White , those factors served to mitigate the seriousness of the unlawful arrest. However, in that case the officers also took steps to verify their information; here Cst. Parker started to check SIMS and CPIC, but did not complete that check before the arrest, choosing instead a more expedient approach, unwarranted in the circumstances. [ 119 ] The search of Mr.

Kossick’s person was not inordinately intrusive – the drugs, cash and cell phones were found in the pockets of the accused’s clothing. [ 120 ] The search of the cell phone was incidental to an unlawful arrest. Cst. Parker ’ s initial viewing of the messages in the patrol car involved minimal intrusion. While Cst. Parker ’ s search of the cell phone was done promptly and only in relation to recently received messages, it was undertaken to allow the officer to look for evidence of trafficking, with which the accused was not yet charged. [ 121 ] The discovery of the messages was unlawful.

Therefore, the officer did not possess the necessary grounds upon which to obtain a search warrant. The search of the cell phone by the Technical Crimes Unit was extensive and highly intrusive. [ 122 ] In this case, I have found a number of breaches. The arrest was unlawful and the searches of the cell phone by Cst. Parker were not truly incidental to arrest. Without the messages derived by Cst.

Parker in the patrol car and detention, he did not possess the necessary grounds to obtain a search warrant of the cell phone. [ 123 ] In White , although the Court found an unlawful arrest, the evidence was admitted. [ 124 ] In R v Loewen , 2015 SKPC 124 , 481 Sask R 130 , the Court held that no authority existed for the arrest of the accused in the absence of a subsequent valid warrant. Accordingly, his arrest based upon an invalid warrant violated s. 9.

The Court declined to exclude the evidence, as the officers had acted reasonably, in good faith and without disregard for the accused ’ s rights. [ 125 ] However, multiple breaches compound the seriousness of the breaches. In R v Lauriente , 2010 BCCA 72 at para 30 , 251 CCC (3d) 492 [ Lauriente ], the Court stated: [30] . . . This case involved one investigation in which the police overstepped the law in several instances evidencing a pattern of disregard of Charter rights which the trial judge found to be serious.

She specifically found that each of the individual Charter breaches were serious, albeit not at the extreme end of the range, or reflecting bad faith on the part of the police. If she had considered the

breaches individually, as if they had occurred in a vacuum, or in circumstances which were otherwise unremarkable, she may haveconcluded that the serious remedy of the exclusion of evidence was not warranted; that is, that the admission of the evidence obtainedthereby could not have brought the administration of justice into disrepute. But these breaches did not occur in a vacuum, they occurredin the context of a relatively brief investigation where each step in the investigation followed and built on the prior step, ultimatelyculminating in the obtaining and execution of the search warrant which led to the respondents’ (and Ms. Lauriente’

s) arrest, and thefurther breach of Mr. Catalano’s right to counsel. In my view, the trial judge was entitled to have regard to all of these breaches, both inplacing the seriousness of the individual breaches in context, and, more particularly, in determining whether this pattern of disregard ofthe Charter by the authorities could bring the administration of justice into disrepute. [126] The s. 8 and s. 9 Charter breaches considered individually were not at the most serious end of the range. However, as inLauriente, each breach led to the next. The unlawful arrest led to the search of the accused.

In the patrol car, the seizure of the phonegave Cst. Parker the opportunity to view incoming messages. Viewing those messages motivated Cst. Parker to open the phone and viewfurther messages. The messages derived from a search not truly incident to a lawful arrest formed the basis for the search warrant, whichresulted in a large extraction of data from the accused’s cell phone. [127] Taken together, the breaches are sufficiently serious that they would “undermine public confidence in the rule of law”. As such,the seriousness of the breaches favours exclusion of the evidence.

Impact on the accused [128] The search of cell phones, like computers, raises significant privacy interests, different in nature and extent from the search ofother places: R v Vu, 2013 SCC 60, [2013] 3 SCR 657.

As stated in Fearon at para 51: …cell phones…may have immense storage capacity, may generate information about intimate details of the user’s interests, habits andidentity without the knowledge or intent of the user, may retain information even after the user thinks that it has been destroyed, and mayprovide access to information that is in no meaningful sense “at” the location of the search: Vu paras 41-44 [129] In R v Adeshina 2015 SKCA 29, 457 Sask R 35 [Adeshina], the Court of Appeal acknowledged the significant impact ofa cell phone search on an individual’s Charter-protected rights, because of the substantial privacy interests in the contents of mobiledevices. [130] In assessing the impact of the breaches on the accused’s Charter rights, I take into account that, at the time of his arrest,Mr.

Kossick was subject to a condition that he submit to a search without warrant of his person, vehicle and residence by any policeofficer on demand. The condition did not include the search of a cell phone without grounds or warrant. Mr. Kossick’s reasonableexpectation of privacy in relation to his cell phone is attenuated somewhat by his agreement to be searched without reasonable andprobable grounds. Nonetheless, Cst.

Parker was unaware of the “search on demand” condition. [131] A person who has been lawfully arrested has a lower reasonable expectation of privacy than persons not under lawfularrest: Fearon para 56; R v Beare, (SCC), [1988] 2 SCR 387 at p. 413. [132] Without a lawful arrest, there was not a lawful search incident to arrest. Therefore, the seizure of the cell phone was notlawful. Without the cell phone, Cst. Parker would not have viewed the initial messages. Without those messages, there was no basis forthe search warrant. Mr.

Kossick’s expectation of privacy was significantly effected by the extraction of large amounts of data from hiscell phone. This is not a circumstance where the cell phone search could have been legally conducted in any event: Fearon, para 96; R vCote, 2011 SCC 46, [2011] 3 SCR 215 at para 84. [133] The impact on Mr. Kossick’s Charter rights weighs in favour of exclusion. Society’s interest in adjudication on the merits

[ 134 ] The drugs, cash and cell phones are reliable evidence. Cst. Parker testified his notes of the messages were recorded verbatim and as such are reliable. Cell phone messages extracted by the Technical Crimes Unit for analysis are reliable evidence. That evidence is necessary to the Crown ’ s case. [ 135 ] Possessing drugs for the purpose of trafficking is a serious offence. Society has an interest in having this case adjudicated on its merits. This factor favours admission. Balancing [ 136 ] Balancing these factors, I conclude that the drugs, cash, cell phones and extracted messages should be excluded.

The officer’s unlawful arrest led to an unlawful search of Mr. Kossick, which yielded the methamphetamine, cash and cell phone. The cell phone search was not truly incidental to the arrest. The warrant, which resulted in the extensive extraction of data from the cell phone, was based upon evidence unlawfully found. The balance is in favour of exclusion.

I conclude that admission of the evidence in these circumstances would bring the administration of justice into disrepute. [ 137 ] In Adeshina , where a cursory search of texts on a cell phone was done at the time of arrest and a more extensive search was done by the Technical Crimes Unit months later, the Court of Appeal found the reliability of the cell phone contents, establishing the accused ’ s connection to the drugs, indicated a clear societal interest in having the case adjudicated on its merits.

The cell phone was admitted the evidence after a fresh Grant analysis. [ 138 ] The Court in Adeshina found that the breach was not serious for several reasons including that, at the time, the law under Fearon was unsettled and unclear, the officer honestly but wrongly believed he had the lawful authority to conduct the searches, he acted in a manner consistent with the general policy of the detachment and it was not a deliberate breach. [ 139 ] The circumstances in Adeshina differ from the present case in that the requirements established by Fearon are now clear and have been in place for some time.

Officers in an urban police service will have been instructed in the law with respect to cell phone searches ( see Millett ). Conclusion [ 140 ] I have excluded the drugs, cash and cell phones, along with the data extracted from them. That evidence is necessary for the Crown to prove its case. The remaining evidence on the trial proper is insufficient to establish guilt beyond a reasonable doubt. [ 141 ] On Information ending 700, I therefore find the accused not guilty of possession for the purpose of trafficking.

I find him not guilty of possession of proceeds obtained by the commission of an offence. [ 142 ] On Information ending 701, the alleged breaches arise out of the same circumstances on August 31, 2016. It is alleged the accused was in breach of an undertaking by failing to keep the peace and be of good behavior. It is further alleged that the accused breached an undertaking by possessing alcohol or illicit drugs. Having found the accused not guilty of the offences of possession for the purpose and possession of proceeds of crime, I find the accused not guilty of the breaches. ____________________________

D.C. Scott J APPENDIX 10:12 Facebook Messenger: * [T. H.-J.] “ 0:9:15 AM – Dan ” Then Phone call/Audio message “ 09:17 AM – I need at borrow a couple tools … .Plus I have money ” “ 09:31 AM – Where r u ” “ 09:32 AM. (Call missed) “ 09:33 AM – Why won ’ t u answer me? ” “ 09:33 AM – (call missed) “ 09:34 AM – I Answered “ Busy wat up ” “ 09:37 AM – I need to borrow a couple tools … .. Plus I have money … . the $50 I ’ d owe u for what we talked about.

Plus extra & on top of that ” “ 09:40 AM – I Answered “ need any thing else ” “ 09:41 AM - well I would need the rest of the shit … What u gave me weighted 1.4 ” “ 09:41 AM “ Audio message asking to hurry up “ 09:59 AM – call missed ” 09:59 AM – Audio message Telling him she had $125

For him and to hurry up or she will go elsewhere * [D. H.] “ 08:54 AM Sup bro you good for a game ” 1026 Received 2 phone calls From 306-700-6181 Answered but no answer * Notes are exactly reproduced except for the names of two individuals, whose initials have been placed in [ ].