Her Majesty the Queen - v. -, 2022 SKPC 14

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 14 Date: March 29, 2022 Information: 90423185 Location: Meadow Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - Barry Shane Opikokew Appearing: Jeffrey E. Summach For the Crown Owen B. Griffiths For the Accused DECISION ON VOIR DIRE M.E. TOMKA , J BACKGROUND [ 1 ] Mr.

Opikokew was charged with possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 . [ 2 ] At trial, the Crown called the first of two witnesses. The first was Constable Brody Cameron, the investigating officer. After completing the cross-examination of Constable Cameron, defence advised that a constitutional issue arose from the testimony and an

adjournment was requested to file the necessary notice. [ 3 ] The defence claimed the search that led to the finding of a mesh bag containing cocaine was in breach of s. 8 of the Charter . [ 4 ] The Court heard argument as to whether the Charter notice should be summarily dismissed and how the Charter application should proceed if allowed. After hearing argument, the Court allowed the Charter issue to proceed by way of a voir dire . [ 5 ] On the voir dire , the Crown recalled Constable Cameron and a drug expert. [ 6 ] This is the Court’s decision in relation to the Charter voir dire .

FINDINGS OF FACT [ 7 ] The Court’s findings of facts from the evidence on the voir dire are as follows: At approximately 2:00 a.m. on February 22, 2021, Constable Cameron saw Mr. Opikokew driving a four-door sedan, a Pontiac Grand Prix, to the 7-11 in Meadow Lake, Saskatchewan. Constable Cameron was familiar with Mr. Opikokew and believed him to be on a driving prohibition. As a result, Constable Cameron took steps to confirm that Mr. Opikokew was a prohibited driver. Upon confirming his suspicion, Constable Cameron arrested Mr. Opikokew for driving while prohibited. He handcuffed Mr.

Opikokew and secured him in the back of his police vehicle. Following, Constable Cameron returned to Mr. Opikokew’s vehicle to turn if off as it was parked and still running in front of the 7-11. When Constable Cameron went to turn off the vehicle, he saw an open alcoholic beverage can in the cupholder located between the front driver and passenger seats and he also saw a box of alcohol on the floor of the front passenger area of the vehicle. After turning off the vehicle, he went back to his police vehicle and awaited backup. When his backup arrived, Constable Cameron returned back to Mr.

Opikokew’s vehicle to seize the alcohol he had seen in plain view. After opening the front passenger side door of the vehicle, he seized the alcohol. While doing so, he also saw a pile of things in the back of the vehicle. He then opened the back passenger door to search for more alcohol.

Once he opened the back door, he spotted a soft camo gun case behind the passenger’s seat. He lifted it up and it had weight to it and thought there may be a gun in it but was not sure it was a gun. He knew from past dealings with Mr. Opikokew that he was subject to a firearms prohibition, so he opened up the camo bag to see what was inside. He found a rifle. Once the rifle was secure, he continued to search the vehicle for other weapons and ammunition.

During this continued search, after finding the rifle, Constable Cameron went back to the front of the vehicle and seized and opened a black mesh bag that was hanging from the steering column. Constable Cameron believed there might have been ammunition in the mesh bag so he opened it. He discovered three Kinder eggs with drugs in them. The search of Mr. Opikokew’s vehicle was a warrantless search. ISSUES [ 8 ] The Charter issues raised were as follows: 1. Was the warrantless search by Constable Cameron which led to the finding of the evidence contained in the black mesh bag a violation of Mr.

Opikokew’s s. 8 Charter rights? 2. If the search breached s. 8 of the Charter, should the drug evidence be excluded? 1. Was the warrantless search by Constable Cameron which led to the finding of the evidence contained in the black mesh bag a violation of Mr. Opikokew’s s. 8 Charter rights?

Crown Argument [9] The Crown argues that the circumstances of this particular arrest were dynamic and the purposes for the search changed asthe search progressed based upon the situation as it presented itself to Constable Cameron. They argue the warrantless search wasauthorized by law and reasonable in the circumstances. [10] The Crown argued the police had impounded the vehicle pursuant to The Traffic Safety Act, SS 2004, c T-18.1 [TSA] and hada duty and obligation to secure its contents. Further, they argue, the search was lawful under The Alcohol and Gaming Regulation Act,1997, SS 1997, c A-18.011 [AGRA].

Lastly, they argue the police were entitled to search this vehicle incidental to arrest specifically as asafety search or for preserving evidence. LAW [11]

Section 8 of the Charter states: Everyone has the right to be secure against unreasonable search or seizure. [12]

Section 8 protects people, not places, against unjustified intrusions on their privacy interests (Hunter et al. v SouthamInc., (SCC), [1984] 2 SCR 145 at 159 [Hunter]; R v Gomboc, 2010 SCC 55 , [2010] 3 SCR 211 at paras 17,75). Warrantless Search [13] A warrantless search or seizure is presumptively unreasonable (Hunter). [14] The party seeking to justify a warrantless search bears the onus of rebutting the presumption by establishing that the searchwas: (

i) authorized by law; (ii) the law itself is reasonable; and (iii) the manner in which the search or seizure takes place is reasonable. (R v Collins, (SCC), [1987] 1 SCR 265 at 278; R v Caslake, (SCC), [1998] 1 SCR 51 at paras 10-11[Caslake]) [15] The Court of Appeal in R v Smith, 2019 SKCA 126 [Smith], thoroughly reviewed the common law relating to warrantlesssearches at paras. 10-51. [16] What can be gleaned from Smith is as follows:

1. There are three recognized police powers of search without a warrant: - search incident to arrest (Cloutier v Langlois, (SCC), [1990] 1 SCR 158) - search incidental to investigative detention (R v Mann, 2004 SCC 52, 185 CCC (3d) 308) - and safety search (R v MacDonald, 2014 SCC 3, [2014] 1 SCR 37 [MacDonald]). 2. The police have power to search a lawfully arrested person and to seize anything in his or her possession or immediatesurroundings to guarantee the safety of the police and the accused, prevent the prisoners escape or preserve evidence against the arrestedperson (Smith, para. 15) 3.

The Supreme Court of Canada has expanded the common law power to search incidental to arrest beyond pat down searches of theperson being arrested in several types of circumstances (Smith, para. 17); 4. A lawful search incidental to arrest is limited to a search that is truly incidental to the lawful arrest in question. (Caslake, paras.19-25). 5.

In determining whether a search incidental to arrest is reasonable, a subjective and objective test must be applied to the officer’sstated purpose for the search. (Caslake, para. 21); [17] In Smith, Caldwell JA says: [46] To return to core principles, the power of search incident to arrest is an exception to the general principle that a warrantlesssearch is prima facie unreasonable (and therefore in violation of s. 8 of the Charter) and to the requirement of reasonable grounds tosearch.

As such, the common law power is an exceptional policing tool and its exercise must be limited to searches “truly incidental” tothe arrest in question. As Lamer C.J.C. noted in R v Caslake, reviewing courts must consider the motives of the police for the timing andplace of the arrest and the relationship in time and place between the arrest and the search.

That is, the search must be limited to areasand things both spatially and causally connected to the arrest in question—a search is not incidental to an arrest when the police areacting for purposes unrelated to the arrest. [18] The Supreme Court of Canada in R v Caslake at para. 25 states: [25] In

summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common lawdoctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that thesearch must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulatedin Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose,why they searched. They do not need reasonable and probable grounds.

However, they must have had some reason related to the arrestfor conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance donot automatically preclude a search from being incidental to arrest, but they may cause the Court to draw a negative inference.

However,that inference may be rebutted by a proper explanation. (Emphasis added) Vehicles [19] Vehicles are legitimately the objects of search incident to arrest, as they attract no heightened expectation of privacy thatwould justify an exemption from the usual common law principles, but the search of the vehicle still must truly be incidental to arrest. (R v Tosczak, 2010 SKCA 10 at para 15, 343 Sask R 295). [20] Other important decisions in relation to search of a vehicle incidental to arrest are R v Nolet, 2010 SCC 24, [2010] 1 SCR 851and Caslake.

Crown Onus [21] As there is no question the search of the vehicle was warrantless, the onus shifts to the Crown to prove the search was lawfuland reasonable. [22] The only evidence before the Court to justify the search arises from the testimony of Constable Cameron on the voir dire. Assuch, some comment on the testimony of Constable Cameron is warranted. [23] Regarding his testimony, it was clear to the Court, Constable Cameron was trying to be forthright and honest.

He takes hiswork seriously and is well-intentioned. [24] However, during his testimony, the Court became concerned about the reliability of his testimony. His testimony on the voirdire at times was inconsistent on important parts of the search in question. For example, he admitted on cross-exanimation to notrecalling the sequence of steps upon which the rifle was found, and this was inconsistent with his examination in-chief where heappeared clear on the process the rifle was found. Further, he admitted in cross-examination that he did not recall or was unclear whetherMr.

Opikokew was arrested for the firearm offence prior to Constable Cameron finding the mesh bag despite testifying in-chief that oncehe found the firearm, he arrested Mr. Opikokew.

These inconsistencies, along with admissions of some memory issues regarding thatnight, led to reliability concerns regarding his testimony. [25] This is not to say that the Court does not have sympathy for the position Constable Cameron was put in, considering he had totestify on both the trial and the voir dire, and the Court does recognize the arrest in question happened some time prior to his testimony.However, the inconsistencies in his testimony adversely impact the reliability of his evidence on the voir dire, making argumentsjustifying the reasonableness of the search difficult.

Was the search of the vehicle authorized by law?

Section 160 of The Traffic Safety Act [26] Constable Cameron testified that he intended to have Mr. Opikokew’s vehicle towed to a local tow yard as it was in a publicplace that would adversely impact a private business. (T 74 - Line 1-15) Constable Cameron vaguely referenced having to secure itemsof value in the vehicle because it was going to be towed. (T 129 - Line 14-23) [27] Despite the Crown’s argument, Constable Cameron did not clearly testify that he was towing the vehicle pursuant to the TSAunder s.

Section 160 of the TSA allows the police to seize and impound a vehicle when the operator is arrested for driving whileprohibited. [28] Indeed, Constable Cameron did not reference the provisions of the TSA in his evidence, nor did he provide any testimonythat he followed the necessary notice procedures under s. 160 of the TSA.

Certainly, had such evidence been before the Court, it mayhave justified an inventory search of the vehicle. (See: R v Ahmed, 2019 SKCA 47 at para 19, [2019] 10 WWR 99, R v Russell, 2018BCCA 330, 365 CCC (3d) 481 R v Nicolosi (1998), (ON CA), 127 CCC (3d) 176 (Ont CA), R v Wint, 2009 ONCA52 (leave to appeal to the SCC denied)). [29] Based on the evidence before it, the Court sees the Crown’s argument relating to the TSA as an attempt to reverse-engineer thereason for the search.

Even if that was not the case, without some clearer reliable testimony or further evidence relating to the issue ofimpounding the vehicle, the Court is not convinced that Constable Cameron’s search of the vehicle or seizure of any items was pursuantto any duty or obligation under s. 160 of the TSA. The search and seizure of the mesh bag containing the drugs therefore cannot bejustified on that basis.

Section 109 of The Alcohol and Gaming Regulation Act, 1997

[ 30 ] The Crown has also argued that Constable Cameron’s search of the vehicle and eventual discovery of the mesh bag containing drugs is lawful under the authority of AGRA . Essentially, they rely on the open alcohol in the cupholder and on the passenger floor to justify the search of the entire vehicle. [ 31 ] The relevant provisions of AGRA are: Vehicles 109(1) Subject to subsection (2), no person by himself or herself, his or her employee or agent shall have or keep or consume or give beverage alcohol in a vehicle. (2) Subsection (1) does not render it unlawful: (

a) to have beverage alcohol in a vehicle for the purpose of transporting the beverage alcohol from the place at which it was lawfully obtained to a place where it may be lawfully had, kept or consumed or from that place to another place where it may be lawfully had, kept or consumed; or (

b) to have, keep, consume or give beverage alcohol in a vehicle for which the authority has issued a special use permit. Search without warrant 153(1) In this

section and in

section 154, “ exigent circumstances ” means circumstances in which an officer has reasonable grounds to believe that the delay necessary to obtain a warrant pursuant to

section 151 and 152 would result in danger to human life or safety or the loss, removal or destruction of evidence.

(2) Subject to subsection (3), an officer may exercise any of the powers mentioned in subsection 151(2) or 152(3) without a warrant issued pursuant to that

section if the conditions for obtaining the warrant exist and there are exigent circumstances. (Emphasis added) Search with warrant re conveyance 152(1) In this

section and in

section 154, “ conveyance ” includes a vehicle, aircraft, boat or other means of transport.

(2) A justice may issue a warrant to search a conveyance named in the warrant and seize anything that may be evidence of an offence against this Act or the regulations on the oath of an officer that there are reasonable grounds to believe that: (

a) an offence against this Act or the regulations has occurred; and (

b) evidence of an offence is likely to be found in the conveyance.

(3) An officer with a warrant issued pursuant to subsection (2) may: (

a) enter and search any conveyance named in the warrant; (

b) open and examine any trunk, box, bag, parcel, closet, cupboard or receptacle that he or she finds in the conveyance named in the warrant; (

c) seize anything that may be evidence of an offence against this Act or the regulations; and (

d) seize and remove any beverage alcohol and the containers in which it is found. [ 32 ] The Court accepts that Constable Cameron had a right to turn off the vehicle that was left running in the 7-11 parking at 2:00 a.m. as its operator had been arrested. Certainly, there is a public safety issue to a vehicle left outside a commercial business in such circumstances. [ 33 ] Furthermore, when Constable Cameron opened the driver’s door to shut off the vehicle and observed in plain view open alcohol in the cupholder and the case of alcohol on the front passenger floor, those items were properly seized under the plain view

doctrine. [ 34 ] However, the plain view doctrine describes a seizure power not a search power. See: R v Jones , 2011 ONCA 632 , 278 CCC (3d) 157. As such,, the right to seize the alcohol that was in plain view in the front compartment of the vehicle cannot be used to justify a further search of the vehicle for more alcohol pursuant to either the plain view doctrine or AGRA . [ 35 ] The Court finds, as a fact, that Constable Cameron opened the back door of the vehicle to search for more alcohol.

Although Constable Cameron testified he had “seen a pile of things” in the back of the vehicle, there was no reliable evidence that he saw any alcohol in the back seat, that he saw any weapons or that he even saw any other contraband prior to opening the back door and searching the back seat compartment of the vehicle. [ 36 ] The Court refers to the following testimony: T 87 Q Okay. When you -- when you opened up that -- when you opened up that 33 passenger door, did -- did you see anything else that would cause you concern? 34 A There was a pile of things in the back seat. There was stuff in the back seat.

So 35 when I opened the door -- and the reason I went around to the passenger side 36 was it was easier to lift out a case from that side than to reach over – 37 38 Q Yes. 39 A -- and -- and pull it over the centre console. So I go around and I'm -- I'm looking 40 to see if there's anyone, any danger, any wires hanging, anything just -- a dog, a 41 cat, you know, some -- something that might cause harm. I see this pile. I know T 88 1 that frequently cases of -- of -- of liquor, beverage alcohol, is in the back 2 passenger side on the floor, within reach of the driver.

So I'm scanning, I see 3 that, I open the door on the front passenger side, I see the case of alcohol. I know 4 there's alcohol in the front and it's open, so I opened the back door, and I see the 5 rifle case . T-92 29 Q Okay. So is it fair to say that you don't really remember how you came upon the 30 rifle case? 31 A I remember finding the rifle in the back passenger side of that vehicle. 32 33 Q Yes. 34 A I do recall that. 35 36 Q Yes. But -- but you can't remember the process as to how you found it?

37 A No. [ 37 ] As Constable Cameron opened the back door to look in the back compartment of the vehicle to search for more alcohol, the question becomes is a warrantless search of the rear portion of the vehicle for items not in plain view lawful under AGRA . [ 38 ] The preconditions for a warrantless vehicle search under AGRA include the requirement that there must be grounds for obtaining a warrant and that there are exigent circumstances ( s. 153 of AGRA ). [ 39 ] AGRA does not give the police authority to conduct a warrantless search of an entire vehicle because they discover open alcohol in the cupholder of the vehicle or on the passenger’s floor in front of the vehicle where there are no exigent circumstances. [ 40 ] There was no evidence of exigent circumstances justifying the continued search for alcohol in the back of the vehicle.

Further, Constable Cameron was not investigating a drinking and driving offence at the material time. Therefore, based on the circumstances of this case there is no justification for the continued search of the vehicle under AGRA once the alcohol that was in plain sight was seized. Search Incidental to Arrest [ 41 ] The Crown also argued that the search of the vehicle was incidental to arrest. Mr. Opikokew was lawfully arrested for driving while prohibited.

In order to justify the search under the common law power search incidental to arrest, the Crown must show the vehicle search was truly incidental to the lawful arrest. [ 42 ] Given Mr. Opikokew was arrested for driving while prohibited and not for a drinking and driving offence or a weapons offence, the Court finds that search of the vehicle for the purposes of preserving evidence related to the lawful arrest is not justified. The Court finds there was no evidence to suggest Constable Cameron was involved in any search to preserve evidence related to the offence Mr.

Opikokew was lawfully arrested for and thus a search of the vehicle was not reasonable on preservation of evidence grounds. [ 43 ] As a result of inconsistent or contradictory evidence the Court has found, as a fact, Constable Cameron did not arrest Mr. Opikokew for any firearms offences prior to continuing any search of the vehicle after seizing the rifle. As such, the continued search for ammunition or other weapons without an arrest for related offences is not incidental to the lawful arrest of Mr.

Opikokew for driving while prohibited. [ 44 ] As indicated prior, the search up to the point of seizing the alcohol was lawful and reasonable.

In issue is whether any physical search beyond the front compartment after seizing the alcohol was lawful and reasonable. [ 45 ] As the Court has found the search beyond the point Constable Cameron seized the alcohol in the front of the vehicle was not authorized as an inventory search, nor was it a proper search under AGRA , nor was it undertaken to preserve evidence of the driving while prohibited offence, the only argument left for the Crown to justify the continued search of the vehicle and the eventual discovering of the mesh bag and drugs is that the search was based on safety concerns incidental to arrest.

Search Incidental To Arrest: Public and Officer Safety Concerns [ 46 ] Caldwell JA in Smith (para. 25 ) opined that that search based on safety concerns may not extend to items beyond the possession of the detainee. He said at para. 25: [25] While the Supreme Court in R v Stillman expanded the police power of search incident to arrest to include a search for items of evidence not in the immediate possession of the detainee, I am not persuaded the expanded power reaches far enough to cover searches for the purpose of officer or public safety.

In R v Stillman , the justification for expanding the search power was to enable police officers to discover and preserve evidence related to the reasons for arrest. That justification does not, on its face, extend to a search for items not in the possession of a detainee for the purpose of police or public protection. In Stanley A. Cohen, “Search Incident to Arrest: How Broad an Exception to the Warrant Requirement?” (1988) 63 CR (3d) 182 at 186, the author wrote:

The power to search incident to arrest should be among the recognized subcategories falling within the feasibility exception, but restrictions as to its actual ambit must be clearly delineated so as to remain consistent with Southam . Without this power, effective law enforcement would be an impossibility.

The assumption should be that, once a limited external search has been conducted for such justifiable purposes as the protection of the officer, the onus should be on the police to show circumstances of sufficient importance or exigency to justify a wider, more intrusive search without a warrant. [ 47 ] Further, at para. 50, Caldwell JA says; [50] Moreover, I emphasise that ancillary police powers will often provide a lawful basis for a search when there are concerns respecting officer or public safety.

If there are reasonable grounds to believe a detainee’s purse contains something dangerous to a police officer or the public, the police have the power to conduct a safety search for those items ( R v MacDonald ). The police may also conduct a lawful warrantless search of a purse in exigent circumstances (s. 487.11).

Of course, these ancillary powers require a higher level of knowledge or suspicion on the part of the police than that required under a search incent to arrest; but then, the power to search incident to arrest is an extraordinary exception to the general principle that a search without warrant is unlawful.

To put it another way, where a search is reasonably necessary to eliminate an imminent threat to the safety of the public or the police, or where an officer has a reasonable suspicion a search is necessary to prevent imminent bodily harm or death, the police already have the power to lawfully conduct the search. (Emphasis added) Subjective Test: Safety Concern [ 48 ] Constable Cameron testified to generalized safety concerns related to the location where Mr. Opikokew was arrested.

His safety concerns were elevated as he was at the 7-11 in Meadow Lake at 2:00 a.m. and there had been several incidents involving firearms in the area in the past. There was some vague reference by Constable Cameron that he may have at some point been concerned that someone was in the vehicle with Mr. Opikokew or someone may have potentially been meeting him at the 7-11. Although it was unclear, Constable Cameron may have been suggesting he continued to search the vehicle after seizing the alcohol in order to alleviate the safety concern that someone or something dangerous was in the vehicle.

Objective Test: Safety Concern [ 49 ] The Court finds there was no objective safety concern that would justify the search of the vehicle. At the material time, Mr. Opikokew was secured by handcuffs in the back of Constable Cameron’s police vehicle. Constable Cameron had not identified any passengers in the vehicle at the time he initially saw Mr. Opikokew driving, he had not identified any sign of passengers when he went to turn off the vehicle or when he went back to seize the alcohol despite the vehicle being a smaller four door sedan.

In addition, Constable Cameron had not identified any passengers while he waited in his vehicle for his back-up to arrive. [ 50 ] Instead, his evidence was that despite it being 2:00 a.m. at the 7-11 in Meadow Lake, Constable Cameron decided it was safe enough for him to go back to vehicle to collect evidence of a minor provincial offence, the “open alcohol”. This act of going back to the vehicle and seizing alcohol seemingly contradicts any notion of true safety concerns. [ 51 ] In addition, there was no evidence of weapons or drugs on Mr.

Opikokew’s person after Constable Cameron arrested him and performed a pat down search. As such, there was no basis to believe Mr. Opikokew would have drugs or weapons in the vehicle. [ 52 ] The Court concludes that the search of Mr. Opikokew’s vehicle from the point Constable Cameron seized the alcohol and before he opened the back door was reasonable and arguably lawful. However, any search and resulting seizure after that point has not been justified and is not authorized in law or reasonable based on the evidence in the voir dire . Therefore, Mr.

Opikokew’s s. 8 Charter rights against unreasonable search and seizure have been violated. 2. If the search breached s. 8 of the Charter, should the drug evidence be excluded? [ 53 ] Once a breach of a Charter -protected right has been established, the Court must determine if the evidence obtained from the breach should be excluded because the admission of the evidence would bring the administration of justice into disrepute.

[ 54 ] Section 24(2) of the Charter reads: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Grant Analysis [ 55 ] The three factors the Court is to consider in a s. 24(2) Grant [1] analysis are: - the seriousness of the breach; - the impact of the breach on the Charter -protected interests of the accused; and - society's interest in the adjudication of the case on its merits. Seriousness of the Breach [ 56 ] In Grant the Court noted as follows: [73] This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach.

The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes.

In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter . [ 57 ] In considering the seriousness of this Charter breach, the Court does not believe Constable Cameron was acting in bad faith. Instead, he was dealing with the circumstances as they were presented to him to some extent.

Constable Cameron testified that he was concerned with Mr. Opikokew’s Charter rights during the arrest. However, it is disconcerting to the Court that when asked which Charter rights he was concerned with, Constable Cameron failed to mention Mr. Opikokew’s s. 8 Charter rights. Given this, it was also concerning, but not surprising, that Constable Cameron testified he was not aware that a warrantless search was prima facie unlawful and unreasonable.

This testimony of the officer, along with the Court’s concerns about the reliability of his evidence, elevates the breach in this particular circumstance to the higher end of the continuum. Certainly, the police must be aware that they need to justify warrantless searches incidental to arrest and can be expected to articulate reliably and accurately the reasons for the search.

The police must be cognizant that when performing searches of vehicles there is no blanket authorization to search a vehicle incidental to arrest and they should be prepared to justify the reasons for a warrantless vehicle search that is presumed unlawful. [ 58 ] In this particular case, the Court finds the breach of Mr. Opikokew’s s. 8 Charter rights to be serious, weighing on the side of excluding the evidence of the black mesh bag and its contents.

Impact of the Breach [ 59 ] On the second branch of the test, in Grant , the Court stated: [76] This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of

a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protectedinterests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are oflittle actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [60] Mr. Opikokew did not testify at the voir dire so the Court does not have his subjective view of the impact of the Charter-infringing conduct.

However, Grant at para. 78, invites the Court to consider an objective view: “An unreasonable search that intrudeson an area in which the individual reasonably enjoys a high expectation of privacy…is more serious than one that does not.” [61] As Kalmakoff JA found in R v Chapman, 2020 SKCA 11, 386 CCC (3d) 24 even though Mr. Opikokew had a lowerexpectation of privacy in his vehicle than he would have had in his home, it is the Court’s view that the breach in this case had a seriousimpact on Mr.

Opikokew’s s. 8 Charter rights. [62] The impact of this breach is significant, in part due to the fact that there were several steps in the warrantless search that wereunreasonable, and that it was only after several steps in the unreasonable search that the mesh bag containing the drugs was discovered. As such, this branch of the analysis weighs in favour of exclusion of the evidence. Society’s Interest in Adjudication on the Merits [63] The Court in Grant explained the third branch of the inquiry as follows: [79] Society generally expects that a criminal allegation will be adjudicated on its merits.

Accordingly, the third line of inquiry relevantto the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of theevidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are broughtto trial and dealt with according to the law": R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20.

Thus the Courtsuggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence onthe repute of the administration of justice, but the impact of failing to admit the evidence. … [81] ...The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels thesuspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence.

The admission ofunreliable evidence serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth. Conversely,exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfairfrom the public perspective, thus bringing the administration of justice into disrepute. [Emphasis mine] … [83] The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry.

LikeDeschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence ofquestionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case againstthe accused.

Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration ofjustice where the remedy effectively guts the prosecution. [Emphasis mine] [84] It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. Indeed,Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society's interest in itsprosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cutboth ways.

Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how peopleview the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus. As pointed outin Burlingham, the goals furthered by s. 24(2) "operate independently of the type of crime for which the individual stands accused"(para. 51). And as Lamer J. observed in Collins, "[t]he Charter is designed to protect the accused from the majority, so the enforcementof the Charter must not be left to that majority" (p. 282).

The short-term public clamour for a conviction in a particular case must notdeafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interestin seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that isabove reproach, particularly where the penal stakes for the accused are high. [64] The drug evidence is reliable evidence, and it is necessary evidence for the Crown to be able to prove its case.

Exclusion ofthis evidence will gut the Crown’s case and in essence would not allow the case to be further adjudicated on its merits. [65] There is no doubt that there is a high public interest in seeing drug cases prosecuted to the full extent possible. Therefore, the

last branch of the Grant analysis weighs in favour of admitting the evidence. Impact upon the Public Confidence in the Administration of Justice [ 66 ] The balancing of the Grant factors requires both a short and long-term view of the justice system, and the public’s perception of the administration of justice. In the circumstance of this case, the Court concludes the balancing of all the factors leads to the necessity of excluding the evidence of the mesh bag and its contents. CONCLUSION [ 67 ] The Court finds: -There has been a breach of Mr.

Opikokew’s s. 8 Charter rights as they relate to the search of his vehicle leading to the seizure of the mesh bag and its contents. -The evidence being the mesh bag and its contents are excluded under s. 24(2) of the Charter . ________________________________ Tomka, J