His Majesty the King - v. -, 2023 SKPC 6

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 6 Date: January 6, 2023 Information: 991150718, 991153514 Location: Prince Albert _____________________________________________________________________________ Between: His Majesty the King - and - Justin William Ryan Charles Appearing: B. Slobodian For the Crown L. Richardson For the Accused DECISION ON VOIR DIRE F.M. DAUNT , J I. INTRODUCTION [ 1 ] Mr. Charles is charged with several drug and weapon offences allegedly occurring on January 8, 2021, when police executed a warrant to search for evidence of possession of firearms at a private residence in Prince Albert. The warrant was issued pursuant to

section 487 of the Criminal Code . The accused challenges the validity of that warrant and a subsequent warrant for the search of Mr. Charles’s cell phone. He also says his arrest was without reasonable grounds, and so was arbitrary. He asks the court to apply section 24(2) of the Canadian Charter of Rights and Freedoms [ Charter ] to exclude the evidence obtained as a result of breaches of his

section 8

and

section 9 Charter rights. [2] A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner of search is reasonable(R v Caslake, (SCC), [1998] 1 SCR 51). In this case, Mr. Charles argues the warrant is not valid because it was issuedwithout reasonable grounds to believe that he had committed firearms offences and that evidence of those offences would be found at theresidence. He therefore alleges that the search was not “authorized by law.” Defence counsel takes no issue with the reasonableness ofsection 487 of the Criminal Code.

Regarding the manner of search, because of R v Cornell, 2010 SCC 31, [2010] 2 SCR 142 defencedoes not rely on the police decision to conduct a no-knock entry to prove a breach of

section 8. Rather, she submits the manner of entryis relevant to the section 24(2) analysis on whether to exclude evidence obtained. [3] After the evidence portion of the trial was concluded but before argument, counsel discovered that the Affiant had not signedthe Information to Obtain [ITO], although the Commissioner for Oaths properly completed the jurat. Defence counsel submits this isfatal to the legality of the warrant.

Crown counsel submits that the jurat is evidence that the Affiant swore the contents to be true, andthe failure of the Affiant to sign is a technical defect that does not invalidate the warrant. I have read the Supplemental Submissionsfiled by the Crown, and I agree that the proper thing to do would be to allow the Crown to re-open its case to lead evidence as to whetheror not Constable Mesenchuk was administered the oath and swore the contents of the ITO to be true.

However, given the tortuous routethis case has already taken, and given my findings on the merits of the ITO, it will be unnecessary to call further evidence. II. FACTS [4] The Affiant, Constable Mesenchuk, was a member of the Prince Albert Street Enforcement Team [SET], as it then was.Their focus is street level drug trafficking, gangs, and firearms. Although they sometimes assisted with Major Crimes or the unit thatinvestigates higher-level organized crime, their investigations tend to be fast-moving and of short duration. Their mandate is to disruptstreet-level trafficking and gang activity.

Their targets are not criminal kingpins but tend to exist lower down the food chain, so to speak. [5] Constable Mesenchuk has been a police officer since 2016. He joined SET in November of 2020, one or two months beforethe investigation into Justin Charles commenced. Although they received some information about Mr. Charles in December of 2020,SET started investigating Mr. Charles in earnest for firearms offences in early January 2021. Constable Mesenchuk was the handler forInformant C. Shortly before he joined SET, Constable Mesenchuk became familiar with Mr.

Charles, who was the victim of a shootingin October of 2020. This was Constable Mesenchuk’s first time drafting an ITO. [6] According to the ITO, on December 12, 2020, Informant A told Constable Cloutier that Justin Charles sellsmethamphetamine. Informant A had been dealing with Constable Cloutier “since 2020.” This informant had been used in one priorjudicial authorization leading to arrests and the seizure of drugs and weapons.

This informant’s motivation is community betterment. [7] On December 31, 2020, Informant B told Constable MacDonald that Justin Charles has multiple firearms in his house, and he lives on 7th Street East. Informant B reiterated the firearms allegation on January 5, 2021. Informant B had been giving informationto Constable Brennan “since 2020.” No evidence was presented to the Court or the issuing justice whether any of that time occurredbefore December 31.

Informant B wanted money for the information but had not yet received any. [8] On January 6, 2021, Informant C told Constable Mesenchuk that Justin Charles has multiple firearms at his house, sells methamphetamine, and lives at 462 7th Street East. Informant C had been active “since 2020.” In the ITO, Constable Mesenchuk didnot say how much of 2020 he had been dealing with Informant C.

Given that Constable Mesenchuk was not involved in SET beforeNovember 2020, likely not long. [9] On the same day, although he did not believe he yet had sufficient grounds, Constable Mesenchuk started drafting an ITOand Warrant to Search Mr. Charles’s residence. The warrant was drafted under the Criminal Code rather than the Controlled Drugs andSubstances Act, SC 1996, c 19 [CDSA] because the focus of the investigation was the potential possession of firearms.

Constable Mesenchuk continued “plugging information into it” as the investigation continued through January 7th and 8th, 2021. [10] On January 7, 2021, Informant D told Constable Wilde that Justin Charles lives at 462 7th Street East, sells methamphetamineand cocaine, has multiple firearms at his house, and has recently been shot. Informant D had been active “since 2020.” This informant’sinformation “has led to two judicial authorizations, which has resulted in charges being laid under the Criminal Code and the ControlledDrugs and Substances Act.

Information has also resulted in the seizure of firearms.” Constable Mesenchuk knew Mr. Charles had beenshot in October 2020. He adds that Mr. Charles also had a firearm in that incident, but no charges were laid.

[ 11 ] On January 7, a CPIC check showed Mr. Charles to be prohibited from possessing firearms. It also revealed a lengthy criminal record, including a conviction for assault with a weapon from 2010, and for unauthorized possession and careless storage of a firearm in 2017. Although the entire record was included in the ITO, those are the only convictions relevant to an investigation into the possession of firearms. The record also included one recent and two dated convictions for simple possession of a controlled substance. Constable Mesenchuk also searched Mr.

Charles on the Versadex RMS system and discovered a caution flag “known to possession [ sic ] firearms.” [ 12 ] SET conducted intermittent surveillance on the named residence on January 7 and January 8, 2021. On the afternoon of January 7, surveillance commenced at 3:12 p.m. Police observed Mr. Charles leave the residence and drive away in a Ford Fusion registered to someone else. Forty-five minutes later, they saw him re-enter the target residence. Constable Mesenchuk inserted this information into the draft ITO and added the Ford Fusion to the draft warrant. Police saw Mr.

Charles exit and re-enter the residence once more that afternoon, although that information was not included in the ITO. Neither was the information that Constable MacDonald observed others entering and exiting the residence during his surveillance. At 6:56 (Surveillance Log) or 6:57 (ITO) p.m., surveillance ceased. At that point, police did not know if Mr. Charles was still in the residence. [ 13 ] On January 8, surveillance recommenced at 11:41 a.m. At 12:43 p.m., police observed Mr. Charles getting out of the passenger side of a 2014 Chevrolet Cruze and entering the residence. They noted the licence number.

Constable Mesenchuk discovered the vehicle was registered to a woman who lived at a different address. He plugged this information into the ITO. Because the Ford Fusion was no longer at the residence, Constable Mesenchuk removed it from the draft warrant but added the Chevrolet Cruze. The Surveillance Log contains a note at 12:47 p.m. to the effect that the JP was on the way and SWAT had been called. (Constable Mesenchuk denies calling the SWAT team before the justice signed the search warrant.) [ 14 ] Constable Mesenchuk completed the ITO.

He did not sign it, but gave it to Sergeant Mudry for review and to sign as Commissioner for Oaths. Sergeant Mudry then called the justice of the peace to come to the police station to sign the warrant. Constable Mesenchuk testified it took the justice about 20 minutes to arrive. At 1:04 p.m., 21 minutes after the last surveillance observation, the warrant was signed by the justice of the peace, authorizing police to search between the hours of 1:00 p.m. and 9:00 p.m.

The warrant authorized police to search the residence and the Chevrolet Cruze for firearms, ammunition, methamphetamine, and cocaine, although the ITO itself requests permission to search the residence only. [ 15 ] The police began to execute the warrant at 2:07 p.m. Constable Mesenchuk wanted to perform a “dynamic entry,” a euphemism for a process whereby police knock down the door with a battering ram, then swarm into the residence with guns drawn, shouting commands. He was overruled. Instead, the SWAT team was enlisted to effect entry using a “call and surround” procedure.

The SWAT team arrived with a military-style armoured vehicle and bullhorns. SET officers went door to door in the neighbourhood, telling residents to stay inside and take cover for their safety. Police then shouted on the bullhorns telling the occupants to exit the residence. Meanwhile, pepper spray was deployed into the house, in effect smoking everyone out. Twelve people exited the residence. SWAT members then informed them they were all under arrest and handcuffed them. [ 16 ] Constable Banadyga was responsible for the formal arrests.

He told each detainee the reason for their arrest and read them their rights. He performed the first formal arrest at 2:25 p.m. At 2:35 p.m., Constable Banadyga arrested Mr. Charles for possession of a weapon, possession of a prohibited firearm, possession for the purpose of trafficking cocaine and possession for the purpose of trafficking methamphetamine. Three others were arrested for the same offences. Everyone else was arrested for firearms offences. The dozen or so detainees were searched and transported to the police station, where they were processed, given access to counsel, and questioned.

Once the residence was cleared, SET members entered the residence and began the search. [ 17 ] Constable Banadyga did not personally have grounds to arrest but was directed to do so by Constable Mesenchuk. The grounds for arresting Mr. Charles were the same grounds contained in the ITO, as no further evidence had yet been found. Everyone else was arrested for firearms offences, apparently on the shaky grounds that they were in a residence where police believed firearms were present. When the house was cleared, SET members entered and conducted their search. III.

STANDARD OF REVIEW [ 18 ] The test on review is whether the issuing justice, acting judicially, could have issued the warrant based on “reliable evidence that might reasonably be believed” (R v Araujo , 2000 SCC 65 , [2000] 2 SCR 992 [ Araujo ]).

If the ITO contains evidence the justice could find to be credible, reliable, compelling, and corroborated, and the evidence supports a reasonable belief that an offence has been committed and evidence of that offence will be found in that place, the warrant is facially valid, assuming other statutory criteria have been met ( R v Morelli , 2010 SCC 8 , [2010] 1 SCR 253 [ Morelli ]). The issuing justice can make reasonable inferences from the facts

averred but may not fill in evidentiary gaps (R v Vu, 2013 SCC 60, [2013] 3 SCR 657). The reviewing court must defer to the decision ofthe issuing justice even if, on the same evidence, they would reach a different conclusion. [19] A portion of the ITO, “Appendix A,” has remained sealed. Neither Crown nor defence applied to unseal it. It containsinformation which may bear on the issuing justice’s decision to grant the application. However, it has been excised to protect theidentity of the confidential informants.

On review, therefore, this Court must decide whether the remainder is sufficient to sustain thewarrant. [20] Here, much evidence was tendered detailing the investigation before the warrant was issued. Fish J. in Morelli, gives a usefulsummary of the task of the reviewing court, including the proper use of amplification evidence, starting at paragraph 39: [39] Under the Charter, before a search can be conducted, the police must provide “reasonable and probable grounds, established uponoath, to believe that an offence has been committed and that there is evidence to be found at the place of the search” (Hunter v.

SouthamInc., (SCC), [1984] 2 S.C.R. 145, at p. 168). These distinct and cumulative requirements together form part of the“minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure” (p. 168). [40] In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, atpara. 54 (emphasis in original)).

The question is not whether the reviewing court would itself have issued the warrant, but whether therewas sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that anoffence had been committed and that evidence of that offence would be found at the specified time and place. [41] The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, “the reviewing court must exclude erroneous information” included in the original ITO (Araujo, at para. 58).

Furthermore, thereviewing court may have reference to “amplification” evidence — that is, additional evidence presented at the voir dire to correct minorerrors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberateattempts to mislead the authorizing justice. [42] It is important to reiterate the limited scope of amplification evidence, a point well articulated by Justice LeBel in Araujo.

Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that wasnot initially supported by reasonable and probable grounds.

The use of amplification evidence cannot in this way be used as “a means ofcircumventing a prior authorization requirement” (Araujo, at para. 59). [43] Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct “some minor,technical error in the drafting of their affidavit material” so as not to “put form above substance in situations where the police had therequisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made” such errors (para.59).

In all cases, the focus is on “the information available to the police at the time of the application” rather than information that thepolice acquired after the original application was made (para. 59). [21] Amplification evidence is of limited use, therefore, to bolster the credibility or reliability of informants, for example. Theissue is whether the ITO placed before the justice, as excised, after amplification of technical errors on review, is sufficient to justifyauthorizing a warrant to search. IV.

MEANING OF “REASONABLE GROUNDS” [22] SET targets suspects low in the criminal hierarchy, conducts investigations of short duration, and does its best to get guns anddrugs off Prince Albert streets – a laudable goal. However, police must meet the same standards, whether the residence to be searched isa middle class home in the suburbs or a seedy crack house, whether investigating a mob boss or a street-level trafficker. Although SET’stargets are low-level, the standard to be met is not lowered accordingly.

The minimal constitutional standard for a search of a privateresidence is reasonable and probable grounds to believe an offence has been committed and that a search of the place will reveal theparticular evidence sought. Where the belief is grounded on an informer’s tip, Sopinka J says this in R v Garofoli, (SCC), [1990] 2 SCR 1421 at p 1456: (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip froman informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this

entails. Rather, the court must look to a variety of factors including: (

a) the degree of detail of the "tip"; (

b) the informer's source of knowledge; (

c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. [23] In R v Protz, 2020 SKCA 115, 393 CCC (3d) 438 [Protz] Mr. Justice Ottenbreit gives a useful

summary of the law relating towhat constitutes reasonable grounds based on a tip from a confidential informant. The case deals with grounds for a warrantless arrest,but the principles are the same. Beginning at paragraph 43: [43] Where a decision to arrest is based on information provided by confidential informants, courts must explore three lines ofinquiry: the compelling nature of the information, the credibility of the informant, and the corroboration of the information provided[Debot factors].

Justice Wilson explained this inquiry as follows in Debot at 1168: In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search.First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a“tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by policeinvestigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test.

Rather, Iconcur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one areamay, to some extent, be compensated by strengths in the other two. [44] The persuasive weight of source information will vary depending upon the Debot factors.

The Debot factors are not to beexamined in isolation and the test is not to be applied formulaically (R v Garofoli, (SCC), [1990] 2 SCR 1421 at 1457).It is the totality of the circumstances that determines whether the information substantiates reasonable grounds for arrest: “it is notnecessary that all three conditions of the Debot test be entirely satisfied, as a weakness in one component can be overborne by strengthsin others” (R v M. (M.R.), (SCC), [1998] 3 SCR 393 at para 84).

The totality of the circumstances provides theimportant contextual information as “what is suspicious in one context may tend to be neutral or exculpatory in a different setting” (R vDawad, 2019 SKCA 125at para 57, 381 CCC (3d) 557 [Dawad]). [45] The first Debot factor concerns the compelling nature of the information.

The court will look at the level of detail and precisionof the tip: “the degree to which a confidential tip is compelling is a function of its detail” (Dawad at para 59). [46] The “more detail a tip includes the more compelling it will be, and this is particularly so if the tip includes information notpublicly known” (Steve Coughlan & Glen Luther, Detention and Arrest, 2d ed (Toronto: Irwin Law, 2017) at 106 [Detention andArrest]).

This factor also involves an examination of how the informant purports to have acquired the information; that is whether theinformation was obtained first-hand or through hearsay (R v Pavlik, 2019 SKCA 107at para 29, 380 CCC (3d) 417 [Pavlik]). [47] The information cannot simply be in the form of “bald conclusory statements” and must be more than “mere rumour or gossip”(Debot at 1168–69).

However, this does not mean that the Crown is “required to show that the detail and precision of a tip ‘excludes’ or‘rules out’ the possibility of mere rumour or gossip or of coincidence” (Pavlik at para 32, emphasis in original). [48] Dated information is less compelling, as is more general information (R v Holmes, 2019 BCCA 138at para 38 [Holmes]) andinformation in the public domain (R v Chioros, 2019 ONCA 388at para 19, 436 CRR (2d) 104). [49] No individual piece of information may be compelling but the information looked at in totality may meet the “compelling”criterion (Holmes at para 38). [50] The second Debot factor concerns credibility.

An assessment of this factor involves scrutiny of the informant. The informant’scriminal record, particularly if this involves perjury or crimes of dishonesty, is a relevant consideration as is the existence of outstandingcharges or investigations pending against the informant (Pavlik at para 43). [51] The history of the informant’s tips is also relevant in assessing credibility, such as whether these previous tips had containedreliable information (R v Lowe, 2018 ONCA 110at para 55, 358 CCC (3d) 423).

The length of the relationship between the informantand the police officer involved can enhance credibility as can the volume of tips provided during the relevant period (Dawad at para 60).Further, a tipster’s credibility is increased if the previous tips related to the same type of offence as the current information (R vWhyte, 2011 ONCA 24at paras 21–22, 266 CCC (3d) 5). [52] The informant’s reason or motivation for offering the tip is also relevant (Detention and Arrest at 107). [53] Credibility must be established either on the testimony of the officer dealing with the informant or some other evidence(Pavlik at para 43). [54] The lack of evidence about an untried informant can be overcome on the balance of the Debot test if the information provided in

the tip is sufficiently precise and corroborated (R v Dhillon, 2016 ONCA 308at para 33, 335 CCC (3d) 144). [55] The third Debot factor concerns corroboration.

This factor does not require the police to substantiate each aspect of the tip in theirsubsequent investigation and surveillance “so long as the sequence of events actually observed conforms sufficiently to the anticipatedpattern to remove the possibility of innocent coincidence” (Debot at 1172). [56] Corroboration evidence need not confirm illegal activities (R v Caissey, 2008 SCC 65, [2008] 3 SCR 451, affirming 2007 ABCA380, 227 CCC (3d) 322; and R v Lewis (1998), (ON CA), 122 CCC (3d) 481 at para 22 (WL) (Ont CA)).

However,while there is no general requirement “to corroborate any criminal activity, or any activity that, although not illegal, could be viewed asreasonably anticipatory to illegal activity”, a lack of this evidence can, depending on the totality of the circumstances, undermine thecase for an objectively reasonable grounds for arrest (Pavlik at para 37). [57] The criminal record of a suspect can often provide corroboration although “the cogency of the criminal record depends on itssimilarity to the criminal activity alleged by the tipster and the age of the record” (R v MacDonald, 2012 ONCA 244at para 23, 290OAC 21). [58] Corroboration may, depending on the circumstances, be provided from “confirmation of neutral data” (R v Al-Amiri, 2015NLCA 37at para 29, 328 CCC (3d) 266). [59] Information from multiple informants can be corroborative inter se (R v Saunders, 2003 NLCA 63at para 15, 181 CCC (3d) 268,aff’d 2004 SCC 70, [2004] 3 SCR 505). [24] Protz relates to grounds for a warrantless arrest, where police often must act quickly and make decisions in the heat of themoment.

This is not so when applying for prior judicial authorization, which necessarily takes time. Also, when applying for a searchwarrant, the Affiant has a duty to make full and frank disclosure (Morelli, Araujo). They must include relevant information, even if itundermines or contradicts the grounds for the search. V. ANALYSIS A. Warrant to Search the Residence [25] The purpose of this warrant was to allow police to search a specific residence to discover evidence of two offences, possessionof a firearm for a dangerous purpose, and possession of a firearm while prohibited.

They sought permission to search for drugs asevidence of the commission of the firearms offences. The ITO must therefore be analyzed to see if it reveals grounds to believe thosefirearms offences have been committed. “Firearm” is defined in the Criminal Code. To meet the definition, it must be operable orreadily adaptable for use as a firearm. None of the tips speak to the functionality of these “multiple firearms.” Furthermore, the elementsof any offence involving possession include knowledge and control over the thing possessed. None of the tips afforded any evidence thatMr.

Charles had handled the firearms, used them in any way, or even that he knew they were there, apart from the vague verb “has.” [26] The warrant authorized the search of the residence for firearms, ammunition, methamphetamine, and cocaine. The ITO mustreveal grounds to believe those items would be found at that place. Three of the four informants said Mr. Charles “sellsmethamphetamine.” None of them linked that assertion to the residence to be searched. None of these tips afforded evidence eithercocaine or methamphetamine would be found at that residence.

Insofar as the warrant authorized a search for cocaine andmethamphetamine, it was issued without grounds. Furthermore, no evidence, either from the informants or police, was placed before thejustice to justify a search of the Chevrolet Cruze, a vehicle Mr. Charles did not own and was never seen driving. That portion of thewarrant is clearly invalid. [27] The warrant also authorizes a search for ammunition. None of the tips mention ammunition. In the ITO, ConstableMesenchuk does not profess a belief that ammunition will be found at the residence.

He does not provide an opinion that, where firearmsare found, the presence of ammunition is likely. While an issuing justice may make reasonable inferences, they may not makeevidentiary leaps. The authorization to search for ammunition was granted without reasonable grounds. [28] The warrant is invalid as it relates to a search for cocaine, methamphetamine, or ammunition because the ITO contains noevidence upon which the justice could conclude those items would be present in that residence at the time of the search.

Regarding theauthorization to search for firearms, the quality of the informers’ tips must be assessed to determine whether Constable Mesenchuk’sbelief they would be found in the residence was objectively reasonable. Informant A asserted only that Mr. Charles sellsmethamphetamine. Apart from being a “bald conclusory statement,” the information is dated and provides no grounds to believefirearms would be found at the target residence. The analysis will focus, then, on the evidence of Informants B, C, and D.

1. Was the information credible? [ 29 ] The ITO at paragraph 6 contains a boiler-plate clause saying that the informants are independent of each other and the information they provided is all “first-hand information.” As defence counsel points out, this is substantially the same boiler-plate clause as was used in R v Hussein , 2020 SKPC 8 , which was also a Prince Albert SET case. Paragraph 6 is obviously in the template into which Constable Mesenchuk was plugging information.

Constable Mesenchuk testified that he began drafting the ITO on January 6, before all the tips had come in, and certainly before Informant D, who had the most prior involvement as an informer, had given their tip. This is concerning, because paragraph 6 also includes the statement that the informants are independent of each other. [ 30 ] The sub-paragraphs relating to each informant contain no assertion of personal or first-hand knowledge, as we see in R v Bissky , 2018 SKCA 102 , 369 CCC (3d) 315 [ Bissky ] for example, where the informants “claimed” first-hand knowledge.

Here, in paragraph 6, the Affiant makes the conclusory statement that the informants possess first-hand information, without stating a reason for that conclusion. It does not say the informants asserted personal knowledge. It does not say the informants told their handlers the source of their information so the handler could conclude the information was within the informant’s personal knowledge. The tips themselves contain no detail upon which one could infer the informants were relaying first-hand information.

Without some indication of the basis of the informant’s knowledge, the conclusory categorization of “first-hand information” fails to support the credibility or reliability of the tip. [ 31 ] In the same ITO, Constable Mesenchuk asserts at paragraph 2 that he has personal knowledge that the information contained in the document is true. However, most of the information is hearsay, double hearsay, gleaned from police databases, or observed by other officers. Constable Mesenchuk could not have “personal knowledge” of the truth of it.

All he could properly aver is that he accurately reproduced this information from other sources. “Personal knowledge” and “first-hand information” mean the same thing (see Bissky ). The ITO contains no indication any of the informants personally observed Mr. Charles in possession of firearms. [ 32 ] All informants have a history of limited duration, having been active only “since 2020.” This investigation commenced in earnest at the very beginning of 2021.

While I understand the need to limit information to protect the identity of the confidential informants, the Affiant still has a duty to provide full and frank disclosure. Constable Mesenchuk had been a member of Prince Albert SET only since November of 2020, making it unlikely he had dealt with Informant C for more than two months. That information was not included in the ITO. The length in days or months of the other informants’ acquaintance with handlers was certainly relevant information the issuing justice needed to assess the credibility of the tips.

Furthermore, saying “since 2020” could inadvertently mislead the justice, leaving the impression of a longer relationship. [ 33 ] The informant’s motive is also relevant in assessing credibility. Informants B, C, and D wanted money for their information. None of them had been paid. On the voir dire , testimony from the handlers showed that, generally, informants are not paid unless their information results in arrests or seizure of contraband. However, that information was not included in the ITO.

The issuing justice could not know whether or not the informants were told they would not be paid if their information was false. [ 34 ] Also relevant to credibility is whether the informant has a criminal record, especially for crimes of dishonesty. That information remains sealed in Appendix A. The ITO under review is thus devoid of that relevant information. [ 35 ] The issuing justice must be also able to assess the informants’ reliability. Informants B and C had never been tested.

Informant D’s tips were included in two prior judicial authorizations, “which has resulted in charges being laid under the Criminal Code and the Controlled Drugs and Substances Act . Information has also resulted in the seizure of firearms.” While D’s information may have been used on prior authorizations, and those investigations as a whole bore fruit, the clause does not assert that Informant D’s particular information was proven to be accurate or reliable. [ 36 ] In short, all the informants are of short acquaintance and of unproven reliability.

The ITO is devoid of facts that could allow the issuing justice to conclude any individual informant was credible or reliable. 2. Was the information compelling?

[ 37 ] The second Debot criterion is whether the information was compelling. This is related to the detail of the tip, but also the currency of the tip. Informant B said Mr. Charles lives on 7 th Street East and has “multiple firearms” at his house. This was about a week before the search, so was a bit dated. Three days before the search the same informant said Mr. Charles had “firearms” at his house, saying nothing about an address. This information was a bit more current but devoid of detail. Informant C said Mr. Charles had “multiple firearms” at his house and sells methamphetamine.

This informant provided a specific address. Again, the tip is devoid of detail. Informant D gave a specific address, said Mr. Charles sells methamphetamine and cocaine, has “multiple firearms” at his house, and has recently been shot. As stated above, the selling of drugs is not linked to the residence. Informant D also said Mr. Charles had been shot in October. This said nothing about whether Mr.

Charles currently possessed a firearm in his residence. [ 38 ] Unlike Bissky and R v Herzog , [Prince Albert, September 10, 2021, Information 991114541, Sask Prov Ct, Lubyk J., unreported], which both dealt with CDSA warrants, this ITO does not contain tips about a specific activity by a specific person at a specific place. None of the tips involving selling drugs were linked to Mr. Charles’s residence. Regarding the focus of the investigation, the firearms, the informers said he “has” them. There is no activity involved in “has.” The tips contained no information about Mr.

Charles doing anything with the firearms. [ 39 ] None of these tips give even basic information about the firearms themselves, such as what kind or how many. “Multiple” simply means more than one. The tips do not say where in the residence these firearms might be found, or how they are stored, or provide evidence that the firearms are functional or easily adapted to become functional. They furnish no evidence that Mr. Charles had both knowledge of the “multiple firearms” and control over them, that is, that he “possessed” them within the meaning of the Criminal Code .

The issuing justice could not conclude any individual tip was compelling. 3. Was the information corroborated? [ 40 ] Corroboration does not necessarily have to come from a police investigation. Confidential informants can corroborate each other.

However, as stated by our Court of Appeal in R v McElroy , 2009 SKCA 77 at para 35 , 337 Sask R 122 “the weaker the police knowledge in relation to a civilian informant's credibility, and the fewer details supplied, the greater the need for corroboration by the police.” Without some level of detail in the tips, moreover, it is impossible for the issuing justice to assess the adequacy of the corroboration. [ 41 ] Only Informant D alleged Mr. Charles sold cocaine. That allegation was not corroborated by other informants or through investigation. Three of the informants alleged Mr. Charles sold methamphetamine.

None of the surveillance details included in the ITO corroborated this through police observations, such as short duration meets or multiple people coming to the residence. Although one officer testified he observed several people coming and going from the residence, that information was not included in the ITO and the issuing justice could not consider it. [ 42 ] The ITO did not contain sufficient corroboration of the tip that Justin Charles lived at that specific address. SET observed him exit the residence once and enter the residence twice, according to the ITO, both during the day.

They did not know where he spent his nights. They did not conduct a title search to learn who owned the property or who might hold a lease. Available databases, such as SGI, or their own police records, were not checked. Utility records may have afforded evidence of occupancy. The surveillance conducted fell far short of establishing residency. From the evidence, I conclude the purpose of the surveillance was not to corroborate the informants’ tips, but only to ensure Mr. Charles was physically present in the residence when the search warrant was executed. [ 43 ] Three informants said the same thing, that Mr.

Charles has multiple firearms at his house, which could compensate for the lack of detail in the tips. However, it is troubling that Informants B, C, and D all used the term “multiple firearms.” Unless they are all police officers, it is strange that they would not use more common terms, such as “guns,” “rifles,” or the like. If they did, in fact, all use the same term, this increases the likelihood that the information comes from rumour or gossip spreading among acquaintances. The only rational inference, though, is that the informants did not use those words.

Rather, either the handler or the Affiant has paraphrased the informants’ tips, possibly to help protect their identity. If this is the case, the Affiant should say so to fulfill his obligation to make full and frank disclosure. [ 44 ] The practice of paraphrasing an informant’s tip poses several dangers. First, an Affiant may cherry-pick information, omitting relevant information that does not support the officer’s belief, or that contradicts what another informant says. Second, when they paraphrase, they may choose more corroborative language than the tip perhaps deserves.

Third, the Affiant may interpret what the informant says to conform with what others have said, when the meaning might be ambiguous. For example, when the informant says “a closet full of heaters,” the Affiant decides they really mean “multiple firearms.” But the informant may not mean that. It is up to the issuing justice to decide whether any inconsistencies are too great to constitute corroboration, or whether they are relatively minor. And

finally, at its worst, the practice may mislead the justice by disguising serious inconsistencies between the informants that may diminish the value of the evidence offered to support the search warrant. The vaguer the statement, the easier it is to find corroboration. Specific information is more credible and more compelling, but more difficult to corroborate. [ 45 ] While informant tips may corroborate each other inter se , as has been found in other cases, on this ITO as drafted, I find the degree of detail so low as to be the likely product of gossip or rumour.

Although paragraph 6 includes the assertion that the informants are independent of each other, testimony established only that the police have systems in place to ensure the informants are all different people. It is not asserted that they do not know each other. Given the small pool of likely informants, it is quite likely they do know each other. While the ITO need not rule out the mere possibility of gossip or rumour, it should contain enough detail to negate an apparent likelihood of such. Here, these tips are too vague to alleviate the concern. The fact there were three of them is not enough in this case.

That is the thing about gossip and rumours; they get around. [ 46 ] The individual tips were not corroborated sufficiently to allow the issuing justice to conclude they were credible and reliable, that Mr. Charles had probably committed the offences alleged, or that the firearms sought were likely to be in the residence to be searched. 4. Totality of the Circumstances [ 47 ] Other evidence was included in the ITO that has a bearing on whether the warrant was properly issued.

Justin Charles has a criminal record, including one conviction for careless storage and unauthorized possession of a firearm from several years before this. He had been shot about three months earlier, and police say he also had a firearm in that incident, but no more information about it is included in the ITO. No charges were laid against him at that time, although he was prohibited from possessing a firearm. The system flag “known to possess firearms” is little more than reputation evidence. It is likely duplicate information related to his prior firearms convictions or to the shooting incident.

These facts are evidence of propensity, which is allowable in a warrant application, but insufficient to lend credence to the informer’s tips, the true basis for issuing the search warrant. These facts do not raise the totality of the circumstances to the level of credibly-based probability required for issuing a search warrant. [ 48 ] According to Debot , strengths in one area may overcome weaknesses in another, but weaknesses in all three areas do little to establish the proper grounds. A building may have four support beams, but if they are all weak, the building will collapse.

I understand the need not to reveal information that may tend to identify a confidential informant, but the ITO must be specific enough to allow the issuing justice to determine whether the information is credible, compelling, and corroborated or whether it is unbelievable, unreliable, or contradicted.

These tips, taken individually or together, are too vague to allow the justice to properly assess the evidence. [ 49 ] In sum, I find that, based on the ITO as amplified on review, but with Appendix A excised, the issuing justice, acting judicially, could not have properly issued the warrant to search the residence in question. B. Arbitrary Detention [ 50 ] An unlawful arrest is necessarily arbitrary and violates

section 9 of the Charter (see R v Grant , 2009 SCC 32 at para 54 [ Grant ] and R v Loewen , 2011 SCC 21 , [2011] 2 SCR 167). Under

section 495 of the Criminal Code , an arrest is not lawful unless the officer deciding to arrest believes on reasonable grounds that the accused has committed an indictable offence. Constable Mesenchuk relied on the same grounds for arresting Mr. Charles as he submitted in the ITO to justify the search warrant. As discussed above, the grounds were insufficient. The arrest was unlawful and violated Mr. Charles’s right to be free from arbitrary detention guaranteed by

section 9 of the Charter . [ 51 ] Furthermore, Constable Banadyga arrested Mr. Charles for, among other things, possession of a prohibited weapon. At the point of arrest before evidence was discovered, police had no grounds to believe any particular firearm found would be a prohibited firearm. Mr. Charles was prohibited from possessing firearms, so the offence should properly have been possession of a firearm while prohibited. Mr. Charles was arrested for the wrong offence. This was not purposeful. Miscommunication between Constable Mesenchuk and Constable Banadyga resulted in an arrest for the wrong offence.

However, the whole of the arrest was unlawful because it was made without reasonable grounds.

C. Warrant to Search Cell Phone [ 52 ] Mr. Charles was searched incident to arrest, and police seized a cell phone. The arrest was unlawful, and the search incident to it violated Mr. Charles’s

section 8 right to be secure against unreasonable search or seizure. Based on the previous ITO and the items found during the search, police applied for a warrant to search the cell phone for evidence of possession of cocaine and methamphetamine for the purpose of trafficking. Because the first warrant has been found to be invalid, and his arrest unlawful, the cell phone was not lawfully seized by police. The ITO for the second warrant is based on information obtained through a breach of Mr. Charles’s Charte r rights and could not have been lawfully issued. The search of the cell phone was thus conducted in violation of

section 8 of the Charter . VI. GRANT ANALYSIS [ 53 ] I turn now to the question of whether the evidence should be excluded pursuant to section 24(2) of the Charter . The test is whether admission of the evidence could bring the administration of justice into disrepute. The Supreme Court of Canada in Grant directs the court to consider three factors in conducting its analysis: 1) the seriousness of the breach; 2) the impact of the breach on the Charter -protected interests of accused; and 3) society’s interest in trial on the merits. 1.

Seriousness of the breach [ 54 ] A search of a private home by agents of the state is one of the most intrusive invasions of privacy allowed in a free and democratic society. In this case, rather than knock and announce, state their purpose, request entry, and show the occupant the search warrant (as is generally required), police chose a more violent method of entry. When Constable Mesenchuk was drafting his ITO, he was hoping for a “dynamic entry,” which would involve a battering ram and lethal weapons drawn.

He was over-ruled, and police chose instead to assault the occupants of the house, whoever they might be, with a non-lethal weapon, pepper spray. Enough pepper spray was deployed that, later, during the search, one constable had to leave several times to get some air. Police in effect terrorized the neighbourhood by bringing in a military-style armoured vehicle and blasting orders through bullhorns, telling residents to shelter in place. The operation must have resembled urban warfare. [ 55 ] Apparent breaches of the rights of others exacerbates the seriousness of the breach.

For example, the police had no grounds to arrest the other occupants of the house, but they did so anyway. Constable Mesenchuk added the Chevrolet Cruze to the search warrant without grounds. The registered owner of that vehicle had a reasonable expectation of privacy in the vehicle. She was not a target of the investigation, and the police had no grounds to believe firearms or drugs would be found in the vehicle. The warrant to search that vehicle was authorized, and the vehicle searched, in violation of her right to be secure from unreasonable search or seizure.

The police did not attempt to ascertain who else might be in the residence before deploying pepper spray. These factors expand the scope of the breaches, increasing their severity. [ 56 ] Minimum constitutional standards must be met before the state may legally intrude on the privacy of a citizen. Here, these standards were not met, and the level of intrusion was great. This was not a technical breach. To conduct such a violent entry with a complete disregard for the rights, not only of Mr. Charles, but of all twelve occupants of the house, weighs in favour of excluding the evidence obtained as a result. 2.

Impact on the Charter -protected interests of the accused [ 57 ] The corollary to the above is that Mr. Charles was in a private residence that became the scene of a violent home invasion.

He was pepper-sprayed and ordered to go outside in January in Saskatchewan. He was arrested, searched, and questioned by police. His liberty has been curtailed ever since, either through release conditions or remand in custody. He is currently in custody awaiting this decision. This factor also weighs in favour of exclusion. 3. Society’s interests in a trial on the merits [ 58 ] This factor usually weighs in favour of including the evidence, as it does in this case. The evidence is crucial to the Crown’s case. However, that does not mean a conviction is inevitable if the evidence is admitted.

While the Crown’s case appears strong, some evidentiary problems have arisen, such as how the key to the lock on the gun case was found. The ITO for the search of the cell phone contained some evidence Mr. Charles no longer lived at that address, undermining the Crown’s case for possession. Through his counsel, Mr. Charles also asserts he is prepared to make full answer and defence to the charges. If the ultimate outcome were an acquittal on the evidence, it would serve both society’s interest and Mr. Charles’s interest in being found not guilty on the merits of the case.

However, just as a conviction is not guaranteed, neither is an acquittal. [ 59 ] On the other hand, while the charges are serious, there is no allegation of violence. The guns were found unloaded, safely stored in a locked case in the basement. A small amount of cocaine, methamphetamine, and cash were seized, small enough to make a case for personal use, certainly not large enough to support finding a high-end trafficking operation. [ 60 ] While this factor supports admitting the evidence, I find it is outweighed by the seriousness of the breaches and the impact on Mr. Charles’s Charter -protected interests. VII.

CONCLUSION [ 61 ] In conclusion, I find Mr. Charles has established, on a balance of probabilities, that his rights pursuant to sections 8 and 9 of the Charter were violated on January 8, 2021. Balancing the Grant factors, given the seriousness of the breach and the impact on the accused, I find inclusion of the evidence in this case would bring the administration of justice into disrepute. All evidence gathered following the issuance of the first search warrant is excluded. [ 62 ] I want to thank Mr. Slobodian and Ms. Richardson for their excellent work on this difficult case.

Dated this 6 th day of January, 2023, at the City of Prince Albert, in the Province of Saskatchewan. ______________________ F.M. Daunt, J