Her Majesty the Queen - v. -, 2014 SKPC 199

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 199 Date: December 10, 2014 Information: 31082232 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kevin Seida Appearing: Mr. Alan McIntyre, Q.C. For the Crown Ms. Joelle Graham For the Accused DECISION ON CHARTER VOIR DIRE D. KOVATCH , J BACKGROUND [ 1 ] Kevin Seida is charged with three criminal offences. It is alleged that all of these offences occurred between May 27, 2011 and June 16, 2011, both dates inclusive.

He is charged with conspiring together with other named individuals to traffic in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act and s. 465(1) (

c) of the Criminal Code . He is also charged with trafficking in cocaine for the benefit of or at the direction of or in association with a criminal organization contrary to s. 467.1(2) of the Criminal Code . He is also charged with trafficking in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act . The

history of these charges before the Court is a rather tortured one. I need not get into that history at this time. After electing trial by the Court of Queen’s Bench and then re-electing a trial by this Court, the trial began on July 21, 2014. By agreement, the Crown immediately entered a Charter voir dire . I now must determine whether the accused’s rights under s. 8 or 10(

b) of the Charter have been breached, and if so, whether a remedy is available. THE EVIDENCE ON THE VOIR DIRE [ 2 ] Three witnesses were called by the Crown, the last of which was Cst. Blair Moncrieff. I will begin by reviewing her evidence in the interest of understanding the evidence as a whole and the issues before the Court. [ 3 ] Cst. Moncrieff testified that she began with the RCMP in 2003. She was stationed at various points around Saskatchewan. In 2008, she was moved to the CFCU Unit in Regina. This unit was to investigate criminal organization offences. It dealt with a lot of drug trafficking offences.

She was involved in this unit in 2011, when she was called by and asked to assist the Moose Jaw police. She assisted in gathering and compiling information that would be used to make an application for a judicial authorization to intercept private communications. On May 25, 2011, the Honourable Mr. Justice Gerein of the Saskatchewan Court of Queen’s Bench, granted that authorization. The authorization authorized the interception of “all private oral communications and telecommunications, and all radio based telephone communications taking place among six named individuals”.

One of those named individuals was the accused Kevin Seida. [ 4 ] Cst. Moncrieff described the process for intercepting and monitoring these telecommunications. She filtered out calls that had no evidentiary or pertinent information. Other calls that had evidentiary and pertinent information were then transcribed. The transcriptions were returned to her so that she could review and ensure that the transcriptions were accurate. She then compiled a report to Crown counsel. The report to Crown counsel was entered as an exhibit on the Charter voir dire .

It contains, among other things, approximately 75 pages detailing and providing a narrative of intercepted communications pursuant to the authorization mentioned above. Cst. Moncrieff would use some of this information to direct other officers in the surveillance of Mr. Seida and other individuals. She would then receive reports from the officers involved in surveillance which was used as part of the general information. Cst.

Moncrieff detailed these hearsay reports in the report to Crown counsel placed in an exhibit before the Court. [ 5 ] In the intercepted communications, the individuals involved would not speak of cocaine or other drugs by name. They would attempt to use a jargon or code to disguise their intent and actions. In the report to Crown counsel, the constable would recite what was said, and give her

interpretation as to what was actually being said. [ 6 ] It would take a great deal of time and effort to recite all of the information that had been gathered from the various sources by Cst. Moncrieff. I need not go into that. Suffice it to say that there can be no doubt that Cst. Moncrieff had reasonable and probable grounds to believe that on June 7, 2011, a group headed up by Jeremy Rousseau and including the accused, would travel to Calgary to purchase approximately 10 ounces of cocaine.

Further, that this group would travel to Calgary and back to Moose Jaw in two vehicles, and that one of those vehicles would be owned and operated by the accused, Kevin Seida. Cst. Moncrieff had reasonable and probable grounds to believe that later in the day on June 8, 2011, Kevin Seida would be transporting in his vehicle a substantial quantity of cocaine. I note that defence counsel made no argument that Cst. Moncrieff did not have the reasonable and probable grounds that I have detailed here. [ 7 ] On the basis of this information, Cst. Moncrieff was in contact with Sgt. Ken Walkden and Cpl.

Bruce Halbauer of the RCMP stationed at the Swift Current Detachment. She briefed the two officers of the situation. She told the two officers that she had reasonable and probable grounds to believe that these two vehicles, including the vehicle owned and operated by the accused, would be driving from Calgary to Moose Jaw and transporting cocaine. She asked/directed that the RCMP pull over and search both of these vehicles. She testified that she was attempting to protect the integrity of the operation, and so she directed the two RCMP officers to “look for their own grounds”.

She testified that she didn’t want to give the officers too much information from the wiretaps and the surveillance so that the officers wouldn’t accidentally make a disclosure to the accused that would jeopardize the project. [ 8 ] No one elaborated upon protecting the integrity of the project. However, I assume this to mean that Cst. Moncrieff did not want to reveal that they were tapping the conversations of these individuals or had them under surveillance, in case the search of these vehicles revealed nothing.

If the fact of wiretaps or surveillance were revealed to accused persons and the search of the vehicles revealed nothing, so no charges could be laid, the individuals involved would cease operations and the project would essentially be at an end.

[ 9 ] Sgt. Walkden testified as to his background with the RCMP and in particular of his background in drug investigations. He testified that on June 7, 2011, he received a telephone call from Cst. Moncrieff and was advised of the matters related above. He brought Cpl. Halbauer into the group, and they had a full briefing session on the morning of June 8. At that time, they were advised that the two vehicles would be travelling from Calgary to Moose Jaw later in the day of June 8. He stated that they were advised to protect the integrity of the operation, and thus they were to “look for their own grounds”.

One of the first steps that he and Cpl. Halbauer took was to do a computer check on the various individuals, including the accused, Kevin Seida. By this, they ascertained that Mr. Seida had outstanding warrants for his arrest issued under The Traffic Safety Act of Saskatchewan. They decided they would use this information to effect the arrest. [ 10 ] Sgt. Walkden testified that around 10:00 p.m., he was stationary on the TransCanada Highway, eastbound lanes, approximately 20 kilometres west of Swift Current. He saw the accused’s vehicle and pulled up behind it.

The accused’s vehicle slowed to about 85 kilometres per hour while being followed by Sgt. Walkden. The sergeant said this might indicate that the accused was nervous. The sergeant activated his emergency equipment and pulled over the accused’s vehicle. The sergeant had the accused produce his driver’s licence and registration to confirm it was the accused, Kevin Seida. After a brief “computer check”, the sergeant advised the accused of the warrant under The Traffic Safety Act , and placed the accused under arrest. It was around this time that Cpl. Halbauer also arrived at the scene. When Sgt.

Walkden advised the accused that he was under arrest, he also immediately advised the accused of his rights to counsel and gave him the police warning. [ 11 ] Moments later, Sgt. Walkden advised that he smelled some marihuana from the vehicle, and advised the accused that he was being detained pending an investigation under the Controlled Drugs and Substances Act . He again advised the accused of his rights and again the accused indicated he did not wish to consult counsel. [ 12 ] Sgt. Walkden then asked the accused if he smoked any weed and the accused said “yes”. At this time, Sgt.

Walkden advised the accused that he was under arrest for possession of marihuana and again advised of his rights. The sergeant then advised the accused that they would search the vehicle incidental to arrest. They did search the vehicle and in the trunk of the vehicle found five Milk to Go bottles. In the Milk to Go bottles were vacuum sealed bags. The Milk to Go bottles and vacuum sealed bags were seized. It was later ascertained that the bags contained 152 grams of cocaine. It was admitted that one gram of cocaine sells for $80.00 to $100.00 on the street. [ 13 ] Cpl. Halbauer also testified.

In most respects his evidence simply confirmed the evidence of Sgt. Walkden. At the roadside, while Sgt. Walkden dealt with the accused, Cpl. Halbauer took a number of pictures of the accused’s vehicle, the Milk to Go containers, etc. A photo book containing these pictures was introduced as an exhibit during the evidence of Cpl. Halbauer. [ 14 ] The defence called no evidence on the voir dire . DEFENCE ARGUMENT [ 15 ] The defence argues that all evidence obtained from and after the stop of the accused’s vehicle should be excluded as the accused’s Charter rights were breached.

The accused argues that the police officers, and in particular Sgt. Walkden, required reasonable and probable grounds to conduct this warrantless search and that Sgt. Walkden did not have these grounds. Accordingly, s. 8 was breached. [ 16 ] The defence also argues that the accused’s right to retain and instruct counsel was violated. The defence argues that the officers admitted that they would stop the accused’s vehicle and search the accused’s vehicle in any event.

The statements that they were stopping and arresting for a warrant under The Traffic Safety Act or for a CDSA investigation or for possession of marihuana were all a ruse. By the police falsely stating the basis of the detention and investigation, the accused was deceived and didn’t appreciate the jeopardy he was in. As a result, he did not immediately exercise his right to counsel. In the words of defence counsel, when the accused was finally advised that he was under arrest for trafficking in cocaine, he immediately asked to speak to counsel, and “this speaks volumes”.

The defence also argues that this breach of s. 10(

b) affects the search, and renders all of the evidence obtained at the roadside

inadmissible. ANALYSIS 1. Have the accused’s rights under s. 8 of the Charter been violated? [17] In making this argument, defence counsel placed considerable emphasis upon things that were said by Sgt. Walkden at theroadside. She of course points out that everything said by Sgt. Walkden was a ruse. The accused wasn’t detained because of a warrantunder The Traffic Safety Act. No one smelled marihuana. The accused wasn’t arrested for possession of marihuana, and the vehiclewasn’t searched incident to that arrest. She says that the Crown and the police officers must be bound by what Sgt.

Walkden said at theroadside, and Sgt. Walkden did not have reasonable and probable grounds to arrest or to search the vehicle. [18] I accept that Sgt. Walkden did not personally have reasonable and probable grounds to arrest or search and that the policepresented a ruse or misinformation to the accused. However, in my view this does not establish a breach of the accused’s rights contraryto s. 8 of the Charter. The courts dealt with two very similar situations in R v Hall, 2006 SKCA 19 [Hall] and R v Debot,[1989] 2 SCR 1140, (SCC) [Debot]. Both of those cases involved facts very similar to the case at bar.

In both of thosesituations, another officer was in charge of the investigation of the accused. The officer in charge obtained information that the accusedwould be involved in a drug transaction, and be transporting drugs back to a particular community. In both cases, the officer in chargedirected other police officers to stop and search the accused’s vehicle. In both cases, the courts determined it was the officer in chargeand directing the investigation that must have reasonable and probable grounds, and not the officer at the roadside.

At paragraph 50 ofthe majority decision in Debot, the Court stated: The police officer who must have reasonable and probable grounds for believing a suspect is in possession of a controlled drug is the onewho decides that the suspect should be searched. That officer may or may not perform the actual search. If another officer conducts thesearch, he or she is entitled to assume that the officer who ordered the search had reasonable and probable grounds for doing so. Ofcourse, this does not prove that reasonable grounds actually existed.

It does make clear, however, that the pertinent question is whetherSergeant Briscoe and not Constable Birs had reasonable and probable grounds. [19] This same paragraph was quoted in the Hall decision. [20] In the Debot case, the majority decision held that the police had reasonable grounds to arrest and search incidental to arrest. Thus, there was no breach of s. 8 rights. Justices Wilson and Sopinka wrote on the relationship between an otherwise valid search and abreach of the accused’s right to counsel, contrary to s. 10(

b) of the Charter. (I will discuss this issue shortly.) Most importantly,regarding s. 8 of the Charter all five justices agreed that “the real evidence” obtained from the search, ie. location and seizure of thedrugs, was admissible and would not bring the administration of justice into disrepute. [21] Applying these cases to the case at bar, it is my determination that the issue is not whether Sgt. Walkden had reasonable andprobable grounds, but whether Cst. Moncrieff had reasonable and probable grounds to direct the stoppage of the vehicle and the search.

I have already stated based upon her evidence and the details of the wiretap and surveillance evidence that she had such reasonable andprobable grounds. Accordingly, it is my view that there was not a breach of s. 8 of the Charter. [22] I would hasten to add that the Debot decision has a real air of practicality or street sense about it. I say this for two reasons. Firstly, often, there are multiple officers involved in a search. This is particularly the case in drug cases or searches of some kind ofindustrial plant or farm.

Is it practical to expect that each and every officer involved with such a search will be intimately involved withthe details of the investigation and thus have reasonable and probable grounds for their activities? Or, is it more practical to expect thatone or two operating minds in the investigation will have such intimate knowledge of the details, and they will have reasonable andprobable grounds and direct other officers to act as their agents? I think the latter.

Secondly, and perhaps more importantly, on its face,s. 8 of the Charter does not protect against a search by a particular police officer who does not have reasonable and probable grounds. Itprotects against unreasonable search and seizure. In this case, it has been established that there was a reasonable basis for that search,even though Sgt. Walkden wasn’t intimately involved with the investigation and apprised of the details supporting that reasonable searchand seizure.

2. Is there a violation of s. 10(

b) of the Charter? If so, does it render the search unreasonable or render the evidence from thesearch inadmissible? [23] I am of the view that by their ruse and by presenting false information to the accused, the police officers did breach theaccused’s rights under s. 10(

b) of the Charter. In the Debot case, the majority of the Supreme Court clearly indicated that an accusedperson being subjected to a search and seizure, had the right to be immediately advised of his rights to counsel, and to consult thatcounsel. The Court emphasized that it was important that an accused person be advised by counsel as to how to respond and deal withthe police as they conducted that investigation. In the recent case of R v Taylor, 2014 SCC 50 [Taylor], at paragraph 21, theCourt spoke of the purpose of s. 10(

b) of the Charter. It stated: The purpose of the s. 10(

b) right is “to allow the detainee not only to be informed of his rights and obligations under the law but, equallyif not more important, to obtain advice as to how to exercise those rights”: Manninen, at pp. 1242-43. The right to retain and instructcounsel is also “meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”: R. v. Suberu,2009 SCC 33 , [2009] 2 S.C.R. 460, at para. 40.

Access to legal advice ensures that an individual who is under control of thestate and in a situation of legal jeopardy “is able to make a choice to speak to the police investigators that is both free and informed”: R.v. Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310, at para. 25. [24] In this case, defence counsel stated that the accused did not consult counsel when he didn’t know his true jeopardy, butimmediately upon being apprised of the true jeopardy wished to speak to a lawyer. She said “this spoke volumes”. I agree with her onthis point.

I would conclude that in this case, the police officers falsely portrayed the jeopardy that the accused was in, and because ofthat false sense of security, he chose not to exercise his right to counsel. In short, the false information or false sense of security servedto frustrate the true purpose of s. 10(

b) of the Charter right, as set forth in the Taylor decision. [25] In the Debot case, the Court also found there was a breach of the accused’s s. 10(

b) rights. Four of the five justices concludedthat only in exceptional cases would a breach of the s. 10(

b) right to counsel affect the validity of an otherwise valid search. MadamJustice Wilson opined that a breach of s. 10(

b) could render a search unreasonable. She then concluded that the s. 10(

b) breach shouldnot result in exclusion of the evidence of the search under s. 24(2) of the Charter, and stated: The evidence produced by the search conducted following the denial of the appellant’s s. 10(

b) rights was approximately one ounce ofspeed. It was real evidence the existence of which was totally unrelated to the Charter violation. Unlike an incriminating statement itwas not engendered by conscripting the appellant against himself. Its admission would not render the trial unfair. [26] As a result, and again applying the Debot decision, I would conclude that the s. 10(

b) breach does not affect the validity of thesearch of the vehicle. It does however prevent the admission of any statements made by the accused to the police officers, following hisdetention at the roadside. CONCLUSION [27] The accused was not subjected to an unreasonable search and seizure. The evidence obtained through the search of thevehicle is validly obtained and fully admissible. [28] There was a breach of the accused’s rights contrary to s. 10(b).

As a result, any statements made by the accused to policeofficers following his detention at roadside are inadmissible. [29] I will now set a date for resumption of the trial. [30] Dated at the City of Moose Jaw, in the Province of Saskatchewan this 10th day of December, 2014.

D. Kovatch, J