Her Majesty the Queen - v. -, 2014 SKPC 88

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 088 Date: April 11, 2014 Information: 44406868, 33385305 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cody James Cruickshank Appearing: S. Jordan For the Crown M. Nolin For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused is charged on two Informations dated October 10, 2013, with the following:

a) possession of cocaine for the purpose of trafficking, contrary to s. 5(2) Controlled Drugs and Substances Act ;

b) possession of hydromorph-contin for the purpose of trafficking, contrary to s. 5(2) Controlled Drugs and Substances Act ;

c) possession of marijuana not exceeding 30 grams, contrary to s. 4(1) Controlled Drugs and Substances Act ;

d) possession of property obtained by crime, to wit $685.00 cash contrary to ss. 354(1) and 355 (

b) of the Criminal Code of Canada ; and

e) possession of stolen property, to wit: Rolex watch, the property of Birks, contrary to s. 355 (

a) of the Criminal Code of Canada . [ 2 ] Defence counsel concedes that all elements of the offences charged have been proven by the Crown, subject to a determination of any alleged Charter breaches and corresponding s. 24(2) applications to exclude the evidence obtained in relation to the subject offences. II ISSUES [ 3 ] The accused alleges the following Charter breaches for determination:

a) Sections 7 and 15 - the accused maintains he was detained solely on the basis of racial profiling;

b) Section 9 - arbitrary detention, based upon the officer having no reasonable grounds to detain and arrest;

c) Section 8 - unreasonable search and seizure, in that there were no reasonable grounds to effect searches of the accused comprised of the initial pat-down for weapons or the subsequent search of the accused’s pockets for illicit drugs. [ 4 ] The Court would like to thank both counsel for the excellent written briefs submitted in support of their respective positions.

III DETERMINATION Sections 7 and 15 - Charter - Racial profiling [ 5 ] Racial profiling, as the name implies, involves the illegitimate practice of targeting individual members of an identifiable group based solely on race or colour on the premise that members of such group have a greater propensity to commit criminal activity. [1] In this particular case, Defence counsel posits that Mr. Cruickshank was stopped initially by the police as he was a native male simply walking in a high risk crime area, and for no other reason. The Crown position is quite the opposite, being that Mr.

Cruickshank was a well-known gang member and drug trafficker whose appearance and location at this time merited investigative detention. [2] [ 6 ] For the reasons that follow, the Court is of the view that the accused was not stopped and detained on the basis of racial profiling but rather for the legitimate purpose as articulated by the Crown:

a) on the offence date, October 10, 2013, the Saskatoon Police were engaged in “Project Focus” centering primarily on a core neighbourhood area in Saskatoon known to be proliferated by local street gangs encompassing, inter alia, 17 th Street West to 23 rd Street West. The accused was stopped while walking in this area on 22 nd Street West;

b) Project Focus was an operational plan designed to defuse an extreme threat of gang violence involving lethal weapons, including

firearms;

c) there had been a recent shooting of a local gang member from the Sask Warriors, alleged to have been carried out by members of the street gang known as the Terror Squad;

d) a huge amount of reliable information had been received by the Saskatoon Police indicating that tensions were extremely high between the two gangs, as well as the Native Syndicate which appeared to be siding with the Sask Warriors;

e) information received by the police included the very real threat that retaliation was going to be effected by the Sask Warriors and Native Syndicate against the Terror Squad;

f) pursuant to recent search warrant seizures from the Sask Warriors, many and varied weapons had been recently confiscated, including knives, machetes, bear spray and firearms;

g) further information had been received by the police that trips were being planned and made by known gang members to obtain firearms;

h) as a consequence of this high alert situation, police were maintaining a very high visibility in the core neighbourhood, including increased numbers of patrol, identifiable police vests and marked patrol cruisers. Part of this process included “street checking” known gang members in the core neighbourhood to ascertain whether weapons were being carried;

i) while on patrol in this area, officers Gresty and Lemaire spotted the accused walking alone on 22 nd Street. He was an individual who was well-known personally by both officers to be a member of the Terror Squad and, through enormous amounts of intelligence information gathered by the police, he was known to be a drug trafficker for the Terror Squad;

j) the accused was dressed totally in Terror Squad gang colours (black and white) in what appeared to be an open and defiant display of his Terror Squad gang affiliation;

k) both officers are members of the police unit involved in gang membership and crime and as such were well familiar with gang clothing and mannerisms;

l) the accused stopped when called by his given name “Cody”;

m) a bulky object of some weight was observed to swing in Mr. Cruickshank’s jacket pocket when he was approached by the police; [ 7 ] It is in this backdrop and context that the officers testified they stopped Mr. Cruickshank. Both officers were of the view that there was a very strong likelihood Mr. Cruickshank would be armed, given the highly charged atmosphere at the time, the fact that he was walking alone, without any other gang members, and was very openly displaying his Terror Squad affiliation. In all the circumstances, the Court finds the officers had a reasonable belief that Mr.

Cruickshank was carrying a weapon and that he ought to be checked for same. Therefore, the allegation that racial profiling was the basis to effect the stop and search simply has not been made out on the facts, rather, just the opposite.

b) Arbitrary Detention

[ 8 ]

Section 9 of the Charter protects individuals in our society from being detained arbitrarily by peace officers, that is, without lawful reason. The powers to arrest and detain, by peace officers as defined under s. 495 of the Criminal Code , include arresting without warrant anyone who has committed an indictable offence or, on reasonable grounds, is believed to have committed or about to commit an indictable offence. [3] In R. v.

Mann , supra , the Supreme Court held that investigative detention, based upon reasonable grounds to suspect criminal activity, is lawful. [4] [ 9 ] For the same reasons summarized above in dismissing the allegation of racial profiling, the Court finds that the lawful threshold to detain was met and the detention was therefore not arbitrary.

c) Unlawful Search and Seizure [ 10 ]

Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure. Two areas of concern have been identified by the Defence relating to Mr. Cruickshank. The first relates to the pat-down search for weapons upon initial detention and subsequently, the more comprehensive search of Mr. Cruickshank’s clothing and inner pockets resulting in drug and contraband seizure. [ 11 ] Dealing with the initial pat-down search, the reasons for wanting to check Mr. Cruickshank for weapons have been canvassed.

Additionally, the officers stated that they had observed a bulky object of some weight appeared to be swinging in one of Mr. Cruickshank’s jacket pockets. Therefore, a pat-down search for weapons was conducted for public protection and officer safety reasons. According to police testimony, this was effected quickly over the body of Mr. Cruickshank, was not intrusive, and did not include a search of any inner pockets.

The bulky item noted by the police appeared to be consistent with that of several cell phones rather than a weapon. [ 12 ] In R v Collins , the Supreme Court held that warrantless searches (as was the case here) are reasonable if authorized by law, the law itself is reasonable and the search was carried out in a reasonable fashion. [5] Pat-down searches were specifically referred to in R v Mann , supra , and more recently in R v MacDonald . [6] In Mann the Court held at para. 45 : To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary.

In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. . . This position was endorsed in MacDonald at paras. 41 - 44 . [ 13 ] The second search ancillary to the pat-down was effected after the accused was placed under arrest for possession of an illicit drug.

In this regard, Constable Gresty testified that as he was leaning in to conduct the pat-down search, he detected the odour of fresh marijuana, emanating from the accused. When he questioned the accused about this he was told that he had just smoked some marijuana however, Constable Gresty reiterated that he was smelling the odour of fresh and not burnt marijuana. [ 14 ] Our Court of Appeal in R v Janvier [7] at para. 44 stated: [44] The smell of raw marijuana is a sensory observation of the presence of raw marijuana, just as the sight of marijuana is.

The smell of burned marijuana is a sensory observation of marijuana having recently being smoked. The latter, unlike the former, is not the offence that gives grounds for arrest without a warrant. [ 15 ] Based on the officer’s detection of raw marijuana, this would afford him the grounds to effect the arrest pursuant to s.

495(1)(

b) of the Criminal Code, supra, in that the accused was found “committing a criminal offence”. [16] Once the accused was placed under arrest, he was given his rights and warnings and thereafter searched incidental to arrest. The drugs found thereafter were retrieved from Mr. Cruickshank’s inner coat pocket. The Court finds in the circumstances that thissearch was authorized by law and was reasonable in the manner and extent that it was carried out. [17] The Court finds that neither of these searches violated

section 8 of the Charter and this argument fails accordingly. IV CONCLUSION [18] The Defence has admitted that all the elements of the four counts of Information #44406868 and the one count of Information#33385305 relating to the possession of the stolen Rolex watch have been proven by the Crown. As no Charter breaches have beenestablished, determination of whether such evidence should be excluded under s. 24(2) of the Charter is not warranted. The accused isaccordingly found guilty of all counts on both Informations. ________________________ R.D. Jackson, J [1] R v Brown, (ON CA), [2003] O.J.

No. 1251, 64 O.R. (3d) 161; R v Richards (1999), (ON CA), 26 C.R. (5th) 286 (C.A.); R v Steelem, 2010 ONSC 233. [2] See R v Mann, 2004 SCC 52; R v Greaves 2004 BCCA 484; R v Thompson ONSC 5284. [3] S. 495(1) A peace officer may arrest without warrant (

a) A person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about tocommit an indictable offence; (

b) A person whom he finds committing a criminal offence; or (

c) A person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in PartXXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. [4] See para. 45 [5] (SCC), [1987] 1 S.C.R. 265 [6] 2014 SCC 3 [7] 2007 SKCA 147