Her Majesty the Queen - v. -, 2019 SKPC 59

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 59 Date: October 18, 2019 Information: 991065227 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - F.K. Appearing: Ms. Maureen Longworth For the Crown Ms. Tumi Odele For the Accused JUDGMENT H.M. HARRADENCE, J INTRODUCTION [ 1 ] On July 31, 2019, I provided oral reasons for my decision in this matter. The following are my reasons in writing. [ 2 ] On September 13, 2018, the accused, F.K., was walking in downtown Prince Albert with Marcus Morin. Morin was known to Prince Albert Police Service as a member of the Terror Squad street gang.

[ 3 ] Constables Shultz and Acorn were in the downtown core in an unmarked police car. Cst. Shultz and Acorn are experienced officers. Shultz has been an officer for eight years and possesses training in firearms. Cst. Acorn has ten years’ experience, the last four years in the specialized drug section. He also has specific training in guns and their concealment. [ 4 ] These two officers observed Morin and F.K. Cst. Acorn identified Morin. Neither officer knew the identity of this youth. The youth was wearing a hat with “2019” inscribed on it. This signaled “Terror Squad” to the officers.

It was determined that there was a warrant outstanding for Morin’s arrest. Cst. Shultz followed Morin and the youth for approximately 15 – 20 minutes. During that time, both Shultz and Acorn concluded that it was possible that Morin had a gun or other weapon stuffed in the front of his shorts. After this surveillance, Cst. Shultz alerted patrol members to arrest Morin immediately. Cst.

Shultz did not ask patrol members to arrest or detain the youth; apparently, neither he nor Acorn gave the patrol members any direction regarding F.K. [ 5 ] Constables Benitez and Norrie arrived in a parking lot where the two males were walking. According to Cst. Shultz, they begin to converse with Morin. Cst. Shultz told them to arrest him immediately. During this arrest Morin was searched and no weapon was found. [ 6 ] Very shortly after the arrival on scene of Constables Benitez and Norrie, Cst. Torgunrud arrived. Without any direction, hesitation or investigation, Cst.

Torgunrud detained and searched this youth. He testified that he was motivated by concern for officer safety (Crown counsel says that this is the over-arching perspective from which Cst. Torgunrud’s actions should be assessed). Cst. Torgunrud found a loaded sawed-off gun in the front of F.K.’s shorts. As a result, F.K. was arrested and charged with the following offences:

(1) Without lawful excuse, use or carry or handle a firearm, to wit: a sawed off .22 caliber rifle, in a careless manner, contrary to section 86(1) of the Criminal Code ;

(2) Have in his possession, a weapon, to wit: a sawed off .22 caliber rifle, for a purpose dangerous to the public peace, contrary to

section 88 of the Criminal Code ;

(3) Not being authorized under the firearms act to carry concealed, a weapon, to wit: a sawed off .22 caliber rifle, did carry it concealed, contrary to

section 90 of the Criminal Code ;

(4) Possess a firearm, to wit: a sawed off .22 caliber rifle, not being the holder of a licence under which he may possess it, contrary to section 91(1) of the Criminal Code ; and

(5) Possess a loaded prohibited firearm, to wit: a sawed off .22 caliber rifle, not being the holder of an authorization or licence under which he may possess the said firearm in that place, contrary to section 95(1) (

a) of the Criminal Code . [ 7 ] Sometime later, F.K. gave a statement to Cst. Shultz admitting possession of the firearm, which he said Morin had handed to him minutes before he was searched. F.K. pleaded not guilty to the charges. [ 8 ] Prior to the commencement of this trial, defence counsel, served and filed a Charter Notice requesting exclusion from evidence of the firearm and F.K.’s statement, on the basis of infringements of her client’s rights contained in ss. 8, 9 and 10(b). [ 9 ] Both counsel agreed to a voir dire to determine the Charter issues.

Constables Shultz, Acorn, Benitez, Norrie, Torgunrud and Carter testified during the voir dire . During argument on the voir dire , counsel requested that I first rule on the detention and search issues prior to considering the admissibility of the statement. THE LAW [ 10 ] The commonlaw power of investigative detention in Canada was confirmed by the Supreme Court in R v Mann , 2004 SCC 52 [ Mann ]. The police are entitled to detain individuals for investigative purposes. As was recently confirmed in R v Le , 2019 SCC 34 [ Le ], not every interaction between police and a citizen is a detention.

Le states, at para 27, “even where a person under investigation is

questioned, that person is not necessarily detained.” [11] In this case, as part of the investigation, Cst. Torgunrud placed his hand on the youth’s shoulder and lifted his shirt. Cst.Torgunrud believed he was detaining F.K.

Considering all of the circumstances, including the presence of four uniformed policeofficers, Morin’s arrest and this youth’s compliant attitude, I agree that F.K. was detained. [12] A detention such as this, in order to be constitutionally compliant, must strike a balance between the rights of individuals towalk the streets free from state interference and the necessary poweers of police to investigate crime. This balance was defined in Mannby requiring the police to have a reasonable suspicion that the subject of the detention was connected to recent or ongoing criminalactivity.

Justice Iacobucci describes this standard at para 34 of Mann: The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution ofthe Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised uponreasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances,informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminaloffence.

Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that theparticular individual is implicated in the criminal activity under investigation.

The overall reasonableness of the decision to detain,however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individualliberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order tomeet the second prong of the Waterfield test. [13] If an individual is detained for investigation; a search is only permitted if an officer believes that his or her safety or the safetyof others is at risk: The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident toan investigative detention.

Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds thathis or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searchesendorses an incidental search in all circumstances: see S. Coughlan, “Search Based on Articulable Cause: Proceed with Caution or FullStop?” (2002), 2 C.R. (6th) 49, at p. 63. The officer’s decision to search must also be reasonably necessary in light of the totality of thecircumstances.

It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.[1] [14] In considering an investigative detention and search it is important that the totality of the circumstances be considered. TheCrown relies on R v Hall, 2006 SKCA 19, a decision of Madam Justice Gerwing in which she, at paras 12 and 32, relies upon theSupreme Court of Canada and the Ontario Court of Appeal’s decision in R v Debot, (1986) (SCC), 30 CCC (3d) 207(Ont CA), [1989] 2 SCR 1140.

I agree, and in this case, I will consider the evidence of all the police officer’s particularly, ConstablesShultz, Acorn and Torgunrud, but also Constables Norrie. Benitez and Carter, and their impressions as argued by the Crown in thewritten material. ANALYSIS [15] The justification for the detention, arrest and search of Morin is not in issue. There was a warrant outstanding for Morin’sarrest. He was arrestable forthwith. He was surveilled prior to his arrest. The observations resulting from this surveillance of Morin arerelevant in the assessment of the validity of F.K.’s detention.

If the totality of the evidence demonstrates a reasonable suspicion of aclear nexus between F.K. and a recent or ongoing criminal offence his detention is valid. [16] Cst. Shultz describes what he saw in a number of ways: 1. Cst. Shultz saw Morin pulling up his shorts and testified that, “it could be that the male is concealing a firearm in his pants” (p T-21). 2. Cst. Shultz indicated that he believed that there was a good chance there was a firearm or another weapon in Morin’s pants (p T-23). 3. Cst. Shultz and Cst.

Acorn believed that there was a possibility that Morin had a firearm in his pants or another weapon and theother male he was with just had a red hat on (p T-24). [17] The red hat has no significance to criminal activity, and it sums up what was known by Cst. Shultz about this youth.

[ 18 ] Cst. Acorn, who was with Cst. Shultz, testified that he believed Morin was concealing something in his pants and thought it was very reasonable that it was a firearm (p T-69). [ 19 ] Both of these officers have been trained and had experience in the detection of concealed weapons, particularly firearms. Both appeared, in their testimony, confident to say that Morin had something, likely a weapon, in the front of his pants. Instead of acting on the warrant immediately, a decision was made to continue surveillance of Morin and this youth.

Any reason for the continued surveillance was not explained. [ 20 ] Cst. Acorn testified that he and Cst. Shultz first saw this youth and Morin at 13:55 hours (p T-71). Cst. Benitez says he arrested Morin at approximately 4:00 p.m. Cst. Acorn also estimates that Morin and F.K. were followed by him and Cst. Shultz for approximately 20 minutes (p T-74). I am uncertain how long the surveillance of this pair lasted, but I am sure it was at least 20 minutes as estimated by Cst. Acorn, likely more. [ 21 ] Cst.

Shultz attempted to explain the delay by saying that the patrol members were busy, and the delay was caused by the other officers being unable to attend when requested. In cross-examination Cst. Shultz said (p T-48, line 20-36): Q Okay. And so you said -- you testified that you formed -- you thought there was a good chance that Marcus had a firearm in his pants? A Yes, I did. Q But he wasn’t arrested right away, correct? A He was not. Q He was followed for a bit before he was arrested? A Yes. Q Okay. So you weren’t concerned, at that point, for your -- any safety, public safety?

A I believe we called -- when we called patrol they were really busy. Q M-hm. A And it took them quite a while to get there, and that’s -- that’s what took so long for them to be arrested. [ 22 ] When I review the totality of the evidence, I am unable to accept this explanation from Cst. Shultz. I believe that given the nature of the questions he was concerned, in hindsight, that this delay would reflect poorly on the public safety justification for the police action. [ 23 ] I think that Cst. Shultz and Cst.

Acorn made the decision to continue surveillance even after they believed Morin had a weapon in an attempt to gather further information. The evidence of Constables Norrie, Benitez, Torgunrud and Carter does not indicate they were delayed by other duties. I do not accept Cst. Shultz’s evidence on this point. What is clear from the evidence is that Morin was the focus of attention by both Cst. Shultz and Cst. Acorn. It is significant to me, taking into account the observations, training and experience of Cst. Shultz and Cst.

Acorn, that the only direction they gave to patrol members was to arrest Morin on the outstanding warrant and on the suspicion that he had a weapon. There is no evidence of a direction by either Cst. Shultz or Cst. Acorn regarding the arrest, detention or search of F.K., other than Cst. Shultz testifying that he did not direct an arrest of F.K. Given that both Cst. Shultz and Cst. Acorn were senior officers with experience and training, the lack of direction to the junior patrol members is significant. [ 24 ] Cst. Torgunrud’s evidence is clear. When he arrived on the scene, Cst. Benitez and Cst.

Norrie were arresting and searching Morin. He did not know whether F.K. had a firearm or not but decided to do a search for officer safety reasons: I got there and due to the fact that we had this information relayed to us over the radio from Constable Shultz that they believed

Constable -- or that Marcus Morin had a firearm in his waistband. I searched Mr. F.K. I just, you know, pat down and lifted up his shirt. Those are for officer safety reasons, I mean, I don’t know if he has a firearm as well. So -- and when I did that, I lifted up his shirt and I observed the handle of what was a sawed-off 22 gun and at that point I put him in handcuffs and advised he was under arrest.

And Constable Carter was close by to me and he retrieved the firearm from his waistband and – (p T-9, line 32-41). [ 25 ] The Crown argues that the search of F.K. must be viewed from the perspective of officer and public safety. The four officers who were involved in arresting Morin and detaining F.K. were relatively inexperienced. Cst. Benitez had 1½ years police experience. Cst. Norrie had approximately two years’ experience as a police officer. Cst. Torgunrud started as a police officer in 2013 and Cst. Carter started as a police officer in 2015.

None of these officers had been told to arrest or detain F.K. but they had been told of the possibility that Morin had a firearm. Cst. Torgunrud reacted to this information and proceeded in the absence of any investigation to detain and search F.K. At that time, none of the six officers present had any information about F.K. and no information that he possessed a weapon at the point of detention and search of F.K. Cst.

Torgunrud did not even know that a weapon was not found on Morin when he detained and searched F.K. [ 26 ] The Crown, in its written submission, relied on two decisions of the Saskatchewan Provincial Court. [ 27 ] R v F.(C.J.) , 2008 SKPC 51 , is a decision involving a detention of a youth. As indicated by Judge Meekma in F.(C.J.) , that youth was approached by police and questioned. It was not until after the police questioned him that he fled and was subsequently detained F. ( C.J. ), at para 31 ). This is critically different from the actions of Cst. Torgunrud.

He did not attempt to question F.K. prior to detaining and searching him. Cst. Torgunrud did not even ask him his name prior to searching him. Cst. Torgunrud had no idea who this youth was and the only possible basis for detaining and searching him was he was walking with Morin, who possibly possessed a weapon or firearm. [ 28 ] The other case relied on by the Crown is R v Weinbender , 2018 SKPC 15 [ Weinbender ]. The Crown referred me to para 29.

The trial judge in Weinbender says that a pat-down search by a police officer of a suspect who has been detained is justifiable as a workplace safety requirement or condition. I find this reasoning unattractive and I decline to follow it.

This approach does not consider the critical balance that is necessary, namely, to properly weigh the rights of a person suspected of a criminal offence against the authority of the state prior to a search based on an investigative detention. [ 29 ] When I review the totality of the evidence, it is my finding that the four uniformed officers were focusing on the concern of a firearm or other weapon and, specifically Cst. Torgunrud, reacted to this concern without considering the limited nature of the evidence or the limits on his ability to detain and search this youth. [ 30 ] The evidence satisfies me that Cst.

Torgunrud was acting on a hunch, at best, when he detained F.K. and immediately searched him. As a result, I find the detention of F.K. was arbitrary and infringed s. 9 of the Charter . In reaching this conclusion, I rely on R v Le , at paras 131 – 133 , which restates the authority to detain for investigative purposes. Section 24(2) [ 31 ] Having found a breach of s. 9 I must conduct an analysis to determine whether the admission of the firearm would bring the administration of justice into disrepute ( R v Le , at para 139 ). [ 32 ] This inquiry is based on three factors: 1.

The seriousness of the Charter infringing conduct; 2. The impact on the Charter protected interests of the accused; and 3. Society’s interest in the adjudication of the case on its merits. [ 33 ] The Supreme Court of Canada in Le recognizes that these factors do not necessarily balance equally. The first two factors, or one of them, may be sufficiently serious to pull toward exclusion ( Le , at para 141).

[ 34 ] In these circumstances I cannot say that Cst. Torgunrud acted in bad faith by detaining and searching F.K. When I examine the totality of the circumstances, I do find that he reacted to the situation without first considering his options. (In this context, Cst. Torgunrud’s reaction was negligent in that his actions fell below the standard of care of a reasonably prudent police officer.) The following factors are of importance to me: 1. Cst. Torgunrud acted on his own without the direction of the senior more experienced officers, Cst. Shultz and Cst. Acorn, who had made the observations initially.

This lack of direction aggravates the serious nature of the infringement by the police. The evidence of Cst. Acorn and Cst. Shultz indicates they knew there was no lawful basis to detain F.K. and did not tell the officers to investigate F.K. before detaining and searching him; 2. Morin was in the process of being arrested. He was the focus of the concern.

He was compliant and there was no indication of a risk to officer safety during his arrest; 3. during the previous 20 or so minutes, while the pair was under surveillance, the unknown youth had not done anything which indicated he was a risk to officer or public safety; 4. Cst. Torgunrud made no attempt to question the unknown youth to obtain his identity, nor did Cst. Torgunrud take any other investigative steps before detaining the youth; 5. Cst.

Torgunrud candidly admitted in his testimony that he had no information as to whether this youth possessed a weapon or not – “I mean I don’t know if he has a firearm as well” (p T9); and 6. this youth did not give any indication of lack of compliance. [ 35 ] Professor Don Stuart, in his book Canadian Criminal Law: A Treatise , describes negligence at page 282 as, in part, not thinking at all or thinking in a certain way when one ought to have been thinking differently. This, to my mind, describes Cst. Torgunrud’s approach. [ 36 ] I find that Cst.

Torgunrud was negligent in his regard and respect for F.K.’s rights. Given the well-settled nature of these rights ( Mann was decided in 2004; see also Le , at para 149) I assess the seriousness of this breach as high. [ 37 ] In relation to the impact of the breach on the interest of this youth, the specific context of this detention must be considered.

There are a number of factors: 1. this is a youth; 2. it was adduced in evidence on September 13 that this youth had no criminal convictions; 3. the youth was detained in custody for at least several hours if not overnight (the evidence is uncertain) and was questioned by police; and 4. the most significant impact, is my finding that this detention was carried out without a lawful basis and in the absence of any grounds ( Le , at paras 156-157). [ 38 ] The Crown has filed the decision of R v Omar , 2018 ONCA 975 [ Omar ]. The Ontario Court of Appeal split on the issue of the admission of a gun and cocaine.

Justice Sharpe with the concurrence of Justice Paciocco concluded that the evidence should not be admitted. Justice Brown, in dissent, would have admitted the evidence.

On May 23, 2019, the Supreme Court over-ruled the Ontario Court of Appeal in vey brief reasons saying the majority allowed the appeal substantially for the reasons of Justice Brown. [ 39 ] In his dissenting reasons, Justice Brown said this: [122] In dealing with the third Grant factor in his s. 24(2) balancing exercise, my colleague states, at para. 56, that “[i]t is also worth recalling that there is no ‘firearms exception’ requiring that guns obtained in breach of Charter rights be admitted into evidence.”

[123] I do not quarrel with that proposition, put that way.

However, I would respectfully submit that to fail to give some recognition to the distinctive feature of illegal handguns – which are used to kill people or threaten them with physical harm, nothing else – and, instead, to treat them as fungible with any other piece of evidence risks distorting the Charter’s s. 24(2) analysis by wrenching it out of the real-world context in which it must operate. [ 40 ] The Supreme Court of Canada in its brief decision in Omar did not specifically endorse these comments and without further guidance it would be unwise for me to speculate as to the future direction of the Court. [ 41 ] In applying Le , I find that the seriousness of the Charter breach and the breaches impact in this context are high.

I understand that society has an interest in the adjudication of these type of cases on their merits but, in these circumstances, I have concluded that to admit the firearm would bring the administration of justice into disrepute given the s. 9 breach. [ 42 ] As a result of my findings, the firearm seized by Cst. Torgunrud will be excluded from evidence. [ 43 ] On August 29, 2019, the Crown decided to call no further evidence and F.K. was found not guilty. Dated this 18 th day of October, A.D. 2019, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ H.M. Harradence, J