Her Majesty the Queen - v. -, 2015 SKPC 58

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 058 Date: April 20, 2015 Information: 24490678 Location: La Ronge _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gilbert Charles McCallum Appearing: Mr. Brent Slobodian For the Crown Mr. Peter Abrametz For the Accused JUDGMENT R.J. LANE , J [ 1 ] Gilbert Charles McCallum is charged on Information #24490678 that on or about the 28 th day of April, A.D. 2013 at La Ronge, in the Province of Saskatchewan did: Count #1: possess a substance included in

Schedule II to wit cannabis marihuana in an amount not exceeding 3 kilograms for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act ; and Count #2: possess a substance included in

Schedule II to wit cannabis resin in an amount not exceeding 3 kilograms for the purpose of

trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act . These are indictable offences however Provincial Court has absolute jurisdiction. [ 2 ] The Crown was represented by Mr. Brent Slobodian and the accused was represented by Mr. Peter Abrametz. Mr. Abrametz, on behalf of the accused, served notice of his intention to seek an order excluding all seized evidence that resulted from an unlawful, warrantless arrest that violated ss. 8 and 9 of the Charter of Rights and Freedoms .

He sought exclusion of that evidence pursuant to s. 24 of the Charter of Rights and Freedoms on the following grounds: 1. That the applicant accused was arrested without reasonable and probable grounds to believe that any offence had been committed; and 2.

That the applicant accused and his motor vehicle were subjected to a search subsequent to the arrest, and the search was conducted without reasonable and probable grounds to believe that an offence had been committed. [ 3 ] The requested relief is a finding that the search and seizure was unreasonable, was a violation of ss. 8 and 9 of the Charter of Rights and Freedoms , and that the evidence obtained thereby should be excluded as a result pursuant to s. 24 of the Charter of Rights and Freedoms . [ 4 ] Mr. Abrametz indicated that the accused requests a voir dire be conducted in relation to this application.

The said voir dire commenced in La Ronge, Saskatchewan on May 8, 2014. The Court ordered exclusion of Crown witnesses from the courtroom except when testifying. [ 5 ] The first Crown witness was Constable Josh Martin.

He testified that at all relevant times he was posted at La Ronge, Saskatchewan and had been a member of the RCMP for 10 years. [ 6 ] Constable Martin said that on April 27, 2013, he received information from a confidential source that the accused would be driving to La Ronge that evening somewhere around midnight or shortly thereafter in the early morning of April 28, 2013 with a substantial quantity of cannabis marihuana. The source indicated what type of vehicle the accused would be driving, who would be accompanying the accused, and the expected time of arrival to La Ronge.

As the source indicated that there would be a significant quantity of marihuana involved and the source was adamant that this was happening, Constable Martin decided to act quickly and he met with Constable Matt Kenny of the La Ronge RCMP Detachment. [ 7 ] Constable Martin indicated that he took steps to try to verify as much of the information provided by the source as he could.

He went on the RCMP database, known as PROS, and created a link and was able to get a licence plate number on the car he expected that the accused would be driving. [ 8 ] Constable Martin was in an unmarked police vehicle and travelled south of La Ronge on Highway #2.

Constable Kenny was positioned a short distance north of Constable Martin with the plan being that Constable Martin would notify Constable Kenny when the suspect vehicle drove past him so that Constable Kenny, who was in a marked police vehicle, could conduct a traffic stop. [ 9 ] Constable Martin testified that he had received information from this particular source before and that he had talked to this source previously. He stated the source was adamant that the accused was coming to La Ronge with a significant quantity of marihuana. [ 10 ] At that point in the trial it appeared to Mr.

Abrametz that there may be some disclosure that he had not yet received and at the request of the defence, the trial was adjourned to June 5, 2014 at 10:00 a.m.

[ 11 ] On the return date of June 5, 2014, I, as presiding judge, was unable to attend due to health reasons and as I was seized with the matter, this was then adjourned to November 6, 2014 for continuation of the trial. [ 12 ] Constable Martin continued to testify on November 6 and repeated the information he had received from the confidential source. He elaborated on the description of the car that the accused would be driving and it was a grey/silver 2002 Chrysler.

He testified he was able to ascertain from the RCMP database that a 2002 Chrysler car was registered to the accused. [ 13 ] The source said that the accused would be transporting anywhere from two ounces of marihuana to several pounds of marihuana in this grey or silver Chrysler car. Constable Martin also testified that the source indicated the accused would be travelling with his family, namely his spouse, Kathleen Lavallee. [ 14 ] Constable Martin said that he received the original information from the confidential source at approximately 11:00 p.m. on April 27, 2013.

He was able to locate a police file on the accused that showed the make, model and licence plate number of the accused’s vehicle. The Saskatchewan licence plate was 890 IBT. [ 15 ] At 12:30 a.m. the vehicle Constable Martin was looking for passed him as he was stopped on the roadside of Highway #2 and he immediately notified Constable Kenny who was approximately two to three kilometres north. Constable Martin testified that as the vehicle drove past him, he believed he got part of the licence plate number and advised Constable Kenny.

The traffic stop was initiated by Constable Kenny and Constable Martin approached the scene at or near the same time. Constable Martin approached the passenger side of the Chrysler car and saw Kathleen Lavallee in the front passenger seat. There were children in the vehicle and one of them was crying so Ms. Lavallee asked if she could tend to the child and Constable Martin indicated that would be fine. [ 16 ] Constable Kenny arrested the accused and Constable Martin arrested Ms. Lavallee, both for possession for the purposes of trafficking and for trafficking. Ms.

Lavallee and the children were placed in the back seat of Constable Martin’s car. Constable Martin observed Constable Kenny conduct a search of the car and Constable Martin became aware of the presence of a significant amount of cannabis marihuana in the trunk. [ 17 ] Constable Adele Breen, who was also on site, handed two cell phones, one of which belonged to Ms. Lavallee, to Constable Martin. Constable Martin drove Ms. Lavallee and the children to La Ronge and the children were dropped off at a house on New Fairchild Reserve. At the detachment, Ms.

Lavallee was given an opportunity to call a lawyer by Constable Martin. She then used the washroom and after that, Constable Martin commenced a warned interview of Ms. Lavallee. [ 18 ] Constable Martin testified that the next morning he helped Constable Kenny catalogue the contents of the black backpack that was located in the trunk of the Chrysler car.

Constable Martin then proceeded to present to the Court numerous exhibits as follows: P-1: photograph book; P-2: cell phone (colour) from purse; P-3: Black LG phone; P-4: 1.1 grams package of suspected cannabis marihuana; P-5: 2.2 grams package of suspected cannabis marihuana; P-6: 2.0 grams package of suspected cannabis marihuana; P-7: 1.2 grams package of suspected cannabis marihuana; P-8: vial and contents; P-9: 0.4 gram package of suspected cannabis marihuana; P-10: small amount of cannabis marihuana in large pill bottle.

[ 19 ] Constable Martin testified that he sent to an RCMP forensic lab for analysis Exhibits P-4 through P-10. He testified that the Exhibits P-4 through P-8 were analysed in an RCMP lab November 18, 2013 and Exhibits P-9 and P-10 were analysed at an RCMP lab December 1, 2013, and all exhibits were found to be cannabis marihuana and cannabis resin. [ 20 ] Constable Martin testified that he served the accused with Notice of Intent and with the Certificate of Analyses for the exhibits on two separate dates: 1. Exhibits P-3 to P-8 served on December 18, 2013; 2.

Exhibits P-9 and P-10 served April 28, 2014. [ 21 ] The Certificate of Analyses and Notice of Intent to use the test results for Exhibits P-4 through P-8 were entered as Exhibit P- 11 and the Certificate of Analyses and Notice of Intent for Exhibits P-9 and P-10 were entered as Exhibit P-12. [ 22 ] In cross-examination, Constable Martin was asked if he had stated that there was no audio-video of the arrest of the accused and his answer was “I don’t recall”. Likewise he could not recall when the audio-video of the arrest of the accused and Ms. Lavallee was given to the Crown.

He testified that his uniform was not equipped with a microphone. [ 23 ] When asked by Mr. Abrametz as to what time he made notes regarding the conversation with the confidential informant, he stated that it was approximately 30 minutes after the conversation. He testified that the source indicated the accused would be coming into La Ronge very soon - between 11:00 p.m. and 2:00 a.m., so he did not have time to make notes of his conversation until he was parked on the side of Highway #2 south of La Ronge awaiting the arrival of the accused. [ 24 ] Mr.

Abrametz asked Constable Martin if the confidential source said that the name of the person bringing the marihuana was either Gilbert McCallum or Gilbert Ratt. It is clear that that must have been what the source said because that was contained in the notes of Constable Martin. [ 25 ] Constable Martin acknowledged that the source said the car windows, particularly the back window, was tinted when in fact it was not. Constable Martin said that the source indicated that Mr. McCallum would be travelling with his family and that turned out to be the case. At this point in the trial Mr.

Abrametz indicated that he was going to ask his “trial questions” as he planned to admit the voir dire evidence for trial purposes. He questioned Constable Martin on whether or not plastic is a good medium that would hold fingerprints. Constable Martin indicated that he did not see any fingerprints and that the plastic vials were not submitted for forensic examination. [ 26 ] Mr. Abrametz then questioned Constable Martin as to whether he had generated an Intelligence Report.

Constable Martin said that he had made notes of his conversation with the source but did not recall if he did an Intelligence Report stating that he doesn’t always prepare an Intelligence Report in these circumstances. Constable Martin indicated that the notes of his meeting with the source are not disclosed and are kept separate. The notes disclosed to the defence were those Constable Martin prepared the 20 to 40 minutes after the phone call from the source while he was sitting on the side of the highway waiting for the arrival of the accused. [ 27 ] Constable Martin indicated in response to Mr.

Abrametz’s question that it was possible the source had said the person bringing the marihuana was known by two different surnames. Constable Martin indicated that this was not at all uncommon in the north for people to actually be known by two different surnames. I simply observe that from my 35 plus years of experience in the criminal courts in the north, it is rather common for people to go by more than one surname. [ 28 ] At this point Mr. Abrametz objected to Constable Martin’s refusal to disclose the notes he had made with the meeting he had with the source. Mr.

Abrametz wanted to know if these notes on 8 1/2" by 11" paper could be edited to conceal the identity of the source and then disclosed. Court then adjourned to November 13, 2014 to consider relevant case law on the issue of disclosure of such notes.

[29] Court reconvened on November 13, 2014 where I ruled that the Supreme Court of Canada in R v Leipert (1997), (SCC), 1 SCR 281 had very clearly set out the rather significant limitations on such disclosure, mostly out of concern that even theslightest detail may be enough to help identify the source. I ruled that based on R v Leipert as referred to, those notes were notdisclosable to the defence. I dismissed his application for a disclosure order. By way of further comment, I have considered thearguments of Mr.

Abrametz on what he describes as less than timely disclosure by the Crown, and I find that there is no Charter breachon failure to disclose by the Crown. The matter was then adjourned to November 27, 2014, for continuation of the trial. At that time,the Court also ordered that the testimony of the Crown expert on possession for the purpose of trafficking and on such matters as drugjargon, pricing, packaging, transporting, usage and consumption of cannabis marihuana and cannabis resin could be heard by video link. [30] Mr. Abrametz continued to cross-examine Constable Martin on November 27, 2014.

He asked Constable Martin as towhether Constable Martin had seen Mr. Abrametz’s letter asking if any audio-video existed and if so, that he wanted it disclosed. Constable Martin acknowledged that either he had seen the letter or Mr. Slobodian of the Crown office had told him of the letter and therequest. Constable Martin testified that he tasked a constable in the La Ronge detachment to try and find the recording and to extract it. He indicated that initially he wasn’t even aware it existed.

He learned of the recording of the police stop of the accused on Highway #2south of La Ronge, just before the first trial date, which was January 9, 2014 (that trial was adjourned based on the discovery of theaudio-video). [31] In cross-examination Constable Martin acknowledged that although the confidential source had provided information before,it had never led to an arrest or a conviction. At that point in the trial, the Court replayed the recorded evidence of Constable Martin fromMay 8, 2014, when he stated “I had received information from that source one time before. I believe the source to be accurate.

Thesource was adamant. I believed we should act on it. I have received information from that source since then and I maintain contact.” Constable Martin was asked if in his disclosure had he qualified that he had never received information from that source that led to anarrest or a conviction and he indicated that he had not. He said he took what information he could get from the source about Mr.McCallum and tried to corroborate it as quickly as he could, believing that Mr. McCallum’s arrival in La Ronge was imminent.

He wasagain asked why, in his disclosure, that he did not indicate that the source had never provided information that led to an arrest orconviction. He replied essentially that he never addressed in his mind that very question. [32] The second Crown witness was Constable Matt Kenny, a member of the RCMP currently stationed at Canoe Narrows,Saskatchewan, however at all material times previously was stationed at La Ronge, Saskatchewan. Constable Kenny’s involvementlargely mirrored that of Constable Martin.

He stated that on April 27, 2013, he began his shift and that Constable Martin informed himthat he had received intelligence that the accused Gilbert McCallum would be bringing a shipment of marihuana to La Ronge in a greycar some time between midnight and 1:00 a.m. on April 28, 2013. He stated that they checked the Saskatchewan Government Insurance(SGI) database and learned that in fact a grey car was registered to Gilbert McCallum. He described how Constable Martin positionedhimself to the south of Constable Kenny and advised Constable Kenny when the suspect vehicle went by him.

Constable Kenny drovein behind the grey car and engaged his emergency lights just after 12:00 midnight the morning of April 28, 2013. He observed that thelicence plate was the same as the search on the SGI database had disclosed. He pulled the grey car over and waited for Constable Martinto arrive. [33] He approached the driver’s side of the grey car and asked the driver for his driver’s licence, which was produced andconfirmed that the driver’s name was Gilbert McCallum, the accused in these proceedings. In the car also was his wife Kathleen andtwo young children.

He observed the car to be messy and smelled like perfume. He also noted several air fresheners hanging from theemergency brake and he observed the accused appeared nervous and his hands were shaky on the steering wheel. He asked the accusedto step away from the vehicle as he did not want to effect the arrest in the presence of the children. [34] He was asked when he formed the grounds to arrest the accused and he replied that he did once most of the intelligence thatthey had received was consistent with what he saw on the scene of the stop.

In addition, he observed the nervous reaction of the accusedand the presence of air fresheners. [35] He gave the accused rights to counsel and a police warning. The accused did not wish to speak to a lawyer at that point. Constable Kenny indicated he then searched the trunk of the car and found a backpack and all of the exhibits that have been entered inthe trial by Constable Martin. When asked why the presence of air fresheners was significant to him, he testified that he had seen similarcases in La Ronge, two of which were drug seizures, and the driver of the car behaved in a similar fashion to Mr.

McCallum, plus thepresence of air fresheners in a messy car were the same in most cases. Air fresheners, he stated, would have the ability to mask the scentof cannabis marihuana.

[36] He indicated then that he later took a warned statement from the accused and at that point the Crown embarked on a voir direto determine the voluntariness and the admissibility of the statement the accused gave to Constable Kenny. [37] Constable Kenny was the sole Crown witness on the voir dire. He testified that he interviewed the accused some 19 hoursafter the arrest. He took the accused to the interview room at 9:00 p.m. on April 28, 2013. At the voir dire the Crown tendered a videorecording of the interview.

Constable Kenny testified that he transported the accused after the arrest to the La Ronge detachmentarriving at about 1:00 a.m. He acknowledged that there were likely other officers in the detachment prior to, and when he commencedhis interview with the accused at approximately 9:00 p.m. that same day. A video recording of the interview was tendered as evidence inthe voir dire. [38] Constable Kenny advised that the accused acknowledged that he had talked to a lawyer earlier in the day, a lawyer named“Peter” (presumably Mr. Abrametz).

In the video the accused was told he did not have to say anything, and that anything he did saycould be used against him. He was also told that if any other police officer had spoken to him since the arrest he was to disregard whatthat officer said. The accused in the video recording acknowledged that Constable Kenny had not threatened him and had in fact treatedhim with respect. [39] In cross-examination, Mr.

Abrametz asked Constable Kenny if at the beginning of the interview that he had asked the accusedif the accused had spoken to any other officers and the accused’s reply was “Yeah well” but Constable Kenny did not question theaccused further after that statement by the accused.

The video entered as an exhibit on the voir dire confirms that indeed the accused didsay “Yeah well”. [40] Constable Kenny confirmed that the accused would have spoken to other officers during the day between the time of arrestand the time of the interview at 9:00 p.m. if for no other reason, to facilitate the accused speaking to his lawyer. Constable Kennyindicated that an officer, whose identity was unknown to him, had facilitated a phone call to the lawyer by Mr. McCallum some timeduring that day. [41] At the conclusion of the voir dire Mr.

Abrametz argued that the decision out of the Saskatchewan Court of Queen’s Bench byMr. Justice Maher in R v Wilkinson (2011), SJ No 346 had a very similar factual foundation. In that case there was a 17½ hour delaybetween the arrest of the accused and the taking of the statement of the accused while the accused was in continual police custody. Inthe present case the delay while the accused was in continual police custody was 19 hours.

In Wilkinson as well as the case at bar, noevidence was tendered by the Crown as to which police officer facilitated the phone call to the lawyer nor was there any evidence as towhat may have been said by the police officer during the time leading up to the phone call. [42] Mr. Justice Maher in R v Wilkinson above ruled the statement inadmissible in that in his view, the Crown had failed to provevoluntariness beyond a reasonable doubt given the absence of the accused’s interactions with the police during the intervening 17½hours, particularly the interaction that led to the phone call to a lawyer.

The Saskatchewan Court of Appeal upheld Mr. Justice Maher inR v Wilkinson (2013), 2013 SKCA 46 , SJ No 259. [43] I find that the Crown in the case at bar has likewise failed to prove the voluntariness of the statement of Mr. McCallumbeyond a reasonable doubt for the same reasons as Mr. Justice Maher and as the Saskatchewan Court of Appeal.

Thus, the statement ofthe accused and the video recording of it in this case is inadmissible as evidence in this trial. [44] The Crown’s final witness was Constable Brock Lynden, a member of the Saskatoon Police Service Integrated OrganizedCrime North, who testified by video. [45] I ruled that Constable Lynden was qualified as an expert who could provide opinion evidence in the area of possession for thepurpose of trafficking and regarding drug jargon, pricing, packaging, transporting, usage and consumption of cannabis marihuana andcannabis resin.

The Crown had served Notice of Intention to produce his CV as well as his written report. The Crown tendered theNotice of Intention and CV as Exhibit P-21 and the Notice of Intention and Report as Exhibit P-22.

[46] Constable Lynden described that with respect to cannabis resin, there was approximately 60 grams. A heavy user of cannabisresin would use one gram per day. That is, the amount of cannabis resin found in the possession of Mr. McCallum was the equivalent ofa 60 day supply. This, according to Constable Lynden, is possession for the purposes of trafficking. He described that if this was forpersonal use, one would expect to find with it such items as aluminium foil and a tube used to inhale the smoke from the burning resin.

None of this was found, so in his view, this was possession for the purposes of trafficking rather than personal possession. [47] With regard to the cannabis marihuana, the volume was much greater. There was roughly four, one-half pound bags of thisproduct which in his view had a street value of between $7,800.00 and $10,240.00. Constable Lynden testified that cannabis marihuanaproperly stored in a cool, dark and sealed condition loses its potency over time such that after six months it may be only half as strongand very quickly becomes worthless.

He testified that a heavy user would consume one gram per day so in this instant there were 905grams which would be about a three year supply. His opinion was that possession of this volume of cannabis marihuana could only befor the purpose of trafficking. In fact, Mr. Abrametz conceded at trial that this volume would be possession for the purpose oftrafficking. [48] The Crown closed its case at this point and defence indicated that no evidence would be called on the voir dire and if thisproceeded to trial, no evidence would be called on the trial either.

Analysis of Charter issues [49] The two issues before the Court regarding the question of whether there was a breach of Mr. McCallum’s Charter rights are: 1. That the applicant/accused was arrested without reasonable and probable grounds to believe that any offence had been committed; 2.

That the applicant/accused and his motor vehicle were subjected to a search subsequent to their arrest and the search was conductedwithout reasonable and probable grounds to believe that an offence had been committed. [50] Did the RCMP have reasonable and probable grounds to believe that any offence had been committed and likewise was thesearch of the accused and his vehicle conducted in the absence of reasonable and probable grounds? [51] The accused argues that the information from the confidential source came from someone who had never providedinformation to Constable Martin that had resulted in either a charge or a conviction.

The argument goes that in the absence of anyevidence as to the reliability of the confidential source, the most that Constable Martin and Constable Kenny could have is a meresuspicion as opposed to reasonable and probable grounds. Clearly, in law, a mere suspicion is not the same as reasonable and probablegrounds and the arrest and search in these circumstances would be a Charter breach. [52] The Supreme Court of Canada held in R v Storrey (1990), (SCC), 1 SCR 241 at pgs. 250 - 251: An arresting officer must subjectively have reasonable and probable grounds upon which to base the arrest.

Those grounds must, inaddition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must beable to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need notdemonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case forconviction before making the arrest. [53] The Crown has referred to a decision of the British Columbia Court of Appeal in R v Jir, 2010 BCCA 497.

In that case, notonly had the informant never provided information that had resulted in any arrest or conviction, the source was anonymous. The Courtheld that it is the totality of the circumstances that must be examined. It went on to suggest that in cases where the information providedto the police comes from a untested source, the Court, in determining reasonable and probable grounds, must examine “the degree ofdetail provided by the tipster, information as to the tipster’s source of knowledge, and indicia of the tipster’s reliability, includingconfirmation of some of the information provided”.

It is important to note that only information known at the time of the arrest is

relevant to the assessment of reasonable and probable grounds. [ 54 ] In the case at bar, the confidential source provided the following information: 1. Gilbert McCallum or Gilbert Ratt was driving from Prince Albert to La Ronge with a large amount of marihuana. Indeed, Gilbert McCallum was stopped on Highway #2 south of La Ronge - the highway that is most commonly used by the public for travel between Prince Albert and La Ronge (in fact, it is the only paved highway from Prince Albert to La Ronge); 2. That Mr. McCallum or Mr. Ratt would be driving a silver or grey car with a tinted back window.

The accused was indeed stopped while driving a silver/grey Chrysler; 3. That he would be accompanied by his spouse, Kathleen Lavallee. In fact the accused was accompanied by Kathleen Lavallee; and 4. That he would arrive between approximately 11:00 p.m. on April 27, 2013 and 2:00 a.m. April 28, 2013. The accused did drive by Constable Martin on Highway #2 just south of La Ronge at 12:30 a.m. [ 55 ] Mr. Abrametz properly set out the inconsistencies in the information provided by the confidential source as follows: 1. The windows of the grey/silver car were not tinted; 2. Mr.

McCallum’s surname, on his driver’s licence, is in fact McCallum and not Ratt. There is no evidence before the Court whether the accused goes solely by McCallum or uses McCallum and Ratt interchangeably as so many people in northern Saskatchewan do; and 3. There were two children in the car besides Mr. McCallum and Ms. Lavallee. [ 56 ] So what did Constable Martin and Constable Kenny do to try to verify as much of the source information as possible in the very short number of minutes they had before departing for Highway #2? [ 57 ] Constable Martin testified that he tracked down a police file on Mr.

McCallum that gave the make, model as well as the licence number on the car that he would be driving as Saskatchewan licence plate 890 IBT. [ 58 ] Constable Kenny testified that the Saskatchewan Government Insurance database showed a grey car registered to Mr. McCallum. He also observed during The Traffic Safety Act stop of Mr. McCallum’s vehicle, that the plate number on the vehicle matched the information they had received from the Saskatchewan Government Insurance database. [ 59 ] As for the inconsistencies, I hold the following: 1. No tinted window - in my view this is of minimal significance; and 2.

Two children in the car - what is most important in my view is that Mr. McCallum was driving the car as Constable Martin was told to expect. Also of some importance is that Kathleen Lavallee was also an occupant of the car. That is exactly what Constable

Martin was told to expect. [60] I hold that the information from the confidential source that was confirmed upon the stop and before the arrest gave ConstableMartin and Constable Kenny the reasonable and probable grounds that an offence had been committed. The consistencies previouslyreferred to are the very thing that the British Columbia Court of Appeal in R v Jir, supra, was referring to when it stated: “Includingconfirmation of some of the information provided.” [61] In my view, the fact that Mr.

McCallum was driving a grey car with Kathleen Lavallee as an occupant, at the time he wasexpected to arrive, gave Constable Kenny reasonable and probable grounds to arrest the accused and then to search the accused and hiscar. [62] Constable Kenny testified that other observations he made such as the presence of multiple air fresheners, the messy car andthe nervous reaction of the driver, may have convinced him even more strongly that he had reasonable and probable grounds, but if thisis all he had it would not be in my view, reasonable and probable grounds. [63] As stated by the Saskatchewan Court of Appeal in R v Shinkewski, 2012 SKCA 63 : The legal standard of “reasonable grounds to believe” has been the subject of considerable judicial

interpretation. I do not propose toreview it all; however, I make the following observations from the jurisprudence: (

a) an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objective pointof view - in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there were indeedreasonable grounds for the arrest: R v Storrey, (SCC),

(1991) SCR 241 (SCC); (

b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities (Mugesera cCanada, Ministre de la Citoyennetè & de l’Immigration), 2005 SCC 40 (2005) 2 SCR 100 (SCC) or a prima facie case forconviction (R v Storrey) before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” or ahunch (R v Morelli, 2010 SCC 8 , [2010] 1 SCR 253 (SCC) at para. 91; R v Mann, 2004 SCC 52 , [2004] 3 SCR 59; Rv Simpson (1993), (ONCA), 79 CCC (3d) 482 (Ont. CA). (

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: R v Storrey; (

d) a reviewing court must view the evidence available to an arresting officer cumulatively, not in piecemeal fashion: R v Savage, 2011SKCA 65 , 371 Sask R 283 (Sask CA); R v Nguyen, 2010 ABCA 146 , 477 AR 395 (Alta CA); and R v Storrey, 2012Carswell Sask 406, 2012 SKCA 63 , 2012 9 WWR 674 103 WCB (2d) 396, 289 CCC (3d) 145, 264 CR (2d) 11, 399 Sask R 11552 WAC 11; (e) “ . . . the standard must be interpreted contextually having regard for the circumstances in their entirety, including the timinginvolved, the events leading up to the arrest, both immediate and over time and the dynamics that play in the arrest”: R v Nguyen, at para.18; and, context includes the experience and training of the arresting officer: R v Nolet, at para. 48; R v Whyte, 2011 ONCA 24 266 CCC (3d) 5 (Ont.

CA), at para. 31; R v Luong, 2010 BCCA 158 , 286 BCAC 53 (BCCA) at para. 19. [64] I am satisfied beyond any doubt that Constable Kenny and Constable Martin subjectively believed that Mr. McCallum wascommitting an offence and could be arrested, and that a warrantless search of the vehicle could be conducted, and a search of his personcould be conducted incidental to arrest. [65] Once again, the Court must look at the totality of the circumstances to find whether reasonable and probable grounds toperform a warrantless search existed. The Supreme Court of Canada in R v Debot (1989), (SCC), 2 SCR 1140 held:

There are at least three concerns which must be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of the criminal offence compelling? Second, where a “tip” originating from asource outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to makingthe decision to conduct the search? I do not suggest that each of these factors form a separate test.

Rather, I concur with Martin, JA’sview that the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one area may, to some extent, becompensated by strengths in the other two. [66] In my view, where Constable Martin and Constable Kenny’s evidence of objective reliability of a relatively untestedconfidential source is lacking, this is compensated for by the onsite observations that corroborated the confidential source’s information.

This was done prior to the arrest and prior to the search. [67] Further, in my view, the constables tried, in the few minutes between when Constable Martin received the information andwhen they had to be on Highway #2, south of La Ronge, to corroborate what they could: 1. Checked the Saskatchewan Government Insurance database and confirmed that Gilbert McCallum had a grey/silver Chryslerregistered in his name. 2. Located a police file on Mr.

McCallum that confirmed that he either had registered in his name or owned a grey Chrysler Cordoba. [68] This also adds strength to justify the warrantless search, addressing the second concern that the Supreme Court of Canadareferred to in the above quote. [69] In conclusion I find that the Crown has established reasonable and probable grounds for the arrest, search and seizure. Therefore, I conclude that Mr.

McCallum’s Charter rights have not been infringed. [70] If I am wrong on this conclusion, an analysis as set out in R v Grant, 2009 SCC 32 must be performed. [71] In short, the three stage inquiry is as follows: 1. Nature of police conduct - the more severe or deliberate the state conduct is, the greater the need for the Court to preserve publicconfidence and to ensure the state adheres to the rule of law. 2. Evaluation of the extent to which the breach actually undermined the interests protected.

The more egregious the breach, thegreater the need to seriously look at excluding the evidence to protect the repute of the administration of justice. 3. To determine whether the truth seeking function of the trial process is better served by excluding or admitting the evidence. TheCourt will examine the reliability of the evidence. Nature of the police conduct [72] There is no doubt that Constable Martin and Constable Kenny subjectively believed that an offence was being committed. If Iam wrong on whether objectively they had reasonable and probable grounds for this belief, what have they done?

They have performeda Traffic Safety Act stop, were able to confirm much of the information from the confidential source, then concluded they had reasonableand probable grounds. They then searched the trunk of the vehicle. Not an invasive personal search. Simply a search of the trunk of thecar. I would categorize this as somewhere between blameless and inadvertent conduct and thus not so serious that the admission of theevidence will bring the administration of justice into disrepute. This was motivated by urgency and to prevent the loss of evidence. There simply was no time to obtain a search warrant.

Evaluation of the extent to which the breach actually undermined the interest protected by the infringed right [ 73 ] The Charter protected rights in this case are to be secure from unreasonable search or seizure under s. 8, and the right to not be arbitrarily detained or imprisoned under s. 9. As set out in R v Shinkewski , supra , a search of a vehicle is not nearly as invasive as the search of a home. In short, the expectation of privacy is lower where the search is of a motor vehicle. While Mr.

McCallum was subjected to a body search incidental to arrest, there is no suggestion of aggressive or inappropriate behaviour by the police. In addition, Constable Kenny was very sensitive to the children in the car and ensured that they did not see the arrest. This is the type of police behaviour that quite frankly should be applauded. As in Shinkewski , I view the impact of this breach on Mr. McCallum’s privacy and human dignity as minimal. [ 74 ] Insofar as the impact on Mr. McCallum of the arrest and detention is concerned, he was detained in custody and deprived of liberty for some time.

The endorsements on the court file show that he was released on an undertaking on May 2, 2013, so he was in custody for approximately five days, but his detention was not unduly prolonged. He appeared on April 29, 2013 when a Bail Verification Report was ordered. He next appeared and was released on May 2, 2013, which was the next possible court day that court sat in La Ronge. However, as the Saskatchewan Court of Appeal held in Shinkewski , this violation of his s. 9 Charter rights has a median affect on those protected interests.

Is the truth seeking function of the trial process better served by the admission or exclusion of the evidence ? [ 75 ] The seriousness of the offence is relevant but must not bear disproportionate significance. In this case, the evidence discovered and seized was real physical evidence. Ironically, the amount of cannabis marihuana discovered in this case is the same as the two pounds that the Saskatchewan Court of Appeal referred to in Shinkewski . In this case the evidence is highly reliable. The evidence is not only highly reliable, but critical to the Crown’s case. The evidence established that Mr.

McCallum possessed two pounds of cannabis marihuana plus some cannabis resin. The only remaining question is if the Crown can prove beyond a reasonable doubt that it was possession for the purpose of trafficking. [ 76 ] Finally, the Court must balance its conclusions and make a determination on whether or not to exclude the evidence. It is the impact on the repute of the administration of justice that must be ascertained. In Shinkewski at para. 39 the Court said: [39] Since the purpose of a s. 24(2) analysis, as confirmed and clarified in R. v.

Grant , is to determine whether the inclusion of evidence would bring the administration of justice into disrepute, it cannot be that every Charter violation will have such a negative impact on the administration of justice that evidence obtained under the violation must be excluded. Indeed, the general public may consider the administration of justice to have been brought into disrepute where highly-reliable evidence is excluded on the basis of a minor Charter violation occasioned by good faith conduct on the part of the state or where there has been no deliberate attempt to thwart Charter rights.

This is because the integrity of the justice system would be wholly undermined, in the public ’s perception , if it routinely excused individuals who have committed criminal offences from criminal liability by reason of a “technicality” involving a minor violation of a Charter -protected interest. [ 77 ] I believe that if the RCMP did not have objectively reasonable and probable grounds to arrest Mr. McCallum or to perform its searches, it was inadvertent by the police at worst and have a low-end or minor impact on Charter protected rights.

Plus, the evidence is highly reliable and is critical to the case for the Crown. [ 78 ] I would conclude that it is more important that the case be tried on its merits than strict adherence to Charter standards. I believe that there would be an undermining of the long term repute of the administration of justice if this evidence was excluded. Conclusion [ 79 ] So once all the evidence is examined, it has, in my view, been proven beyond a reasonable doubt that Mr. McCallum was

[ 79 ] So once all the evidence is examined, it has, in my view, been proven beyond a reasonable doubt that Mr. McCallum was driving a car registered in his name, had control of that car, and that in the trunk of that car was two pounds of cannabis marihuana, together with 60 grams of cannabis resin. There is no onus of proof on Mr. McCallum nor does he have to testify, however, in the circumstances a prima facie case of possession of the aforementioned cannabis has been made out beyond a reasonable doubt by the Crown.

I agree with the opinion of Constable Lynden that the cannabis marihuana was possessed for the purpose of trafficking. With respect to the cannabis resin, were it not for the presence of two pounds of cannabis marihuana, I might have felt that the Crown had failed to prove that a 60 day supply of cannabis resin for a heavy user was more than personal use. However in the circumstances, I am convinced beyond a reasonable doubt that it too was possessed for the purpose of trafficking. As such I find Mr. McCallum guilty on both counts. ______________________ R.J. Lane, J