Her Majesty the Queen - v. -, 2020 SKPC 52

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 52 Date: November 26, 2020 Information: 991122560 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kevin George Ackegan Appearing: Ms. Andreanne Dube For the Crown Mr. Dale Blenner-Hassett For the Accused RULING ON CHARTER APPLICATION H.M. HARRADENCE , J [ 1 ] On February 26, 2020, Prince Albert City Police stopped a vehicle in which Kevin Ackegan was a passenger. Cst.

Parenteau had information from a confidential source that Kevin Ackegan was in possession of guns. Ackegan was arrested. Both he and the vehicle were searched. Firearms, ammunition, drugs and money were found. As a result, Ackegan faces 30 charges. He has plead not guilty and the trial is scheduled to begin November 30, 2020. [ 2 ] Counsel on behalf of the accused, Mr. Blenner-Hassett, has filed a notice of application requesting that the evidence seized be excluded based on violations of s. 8 and s.9 of the Charter .

There are two issues: 1) Does this accused have standing to challenge the search of the vehicle? 2) Did the police have reasonable grounds to arrest and search, without warrant, this accused on the authority of s. 495(1)(a)?

STANDING [3] The Crown relies on R v Belnavis, (SCC), [1997] 3 SCR 341, in questioning whether the accused, as apassenger in the vehicle, has the right to challenge the validity of the search. [4] The ability to challenge a search is determined on an assessment of whether the applicant has a reasonable expectation ofprivacy in the vehicle or the items seized. There is a useful list of factors included in para 20 of the Belnavis decision. As discussedbelow, this accused was seen by police surveillance moments before his arrest and seizure, loading bags into the vehicle.

The vehiclewas stopped and searched moments later. Firearms were located in the bags. The ownership of the vehicle and the identity of the femaledriver are unknown. I am satisfied, when considering the totality of the circumstances, that this accused had a reasonable expectation ofprivacy in the bags that were seized. THE ARREST & SEARCH [5] The authority to arrest an accused without a warrant is contained in s. 495(1)(

a) of the Criminal Code. The police officerauthorizing the arrest must have reasonable grounds to believe an offence is being committed. The phrase “reasonable grounds” hasbeen extensively defined and interpreted.

The seminal decision in this context is R v Debot, (SCC), [1989] 2 SCR 1140[Debot]. [6] Where the basis of the grounds is information from a confidential informant, the Debot inquiry contains three factors: 1.) Was the information predicting the commission of a criminal offence compelling; 2.) Where the tip originated from a source outside of the police, was the source credible; 3.) Was the information corroborated by police investigation prior to making the decision to conduct the search/arrest. [7] It is emphasized in Debot that each factor does not form a separate test: weakness in one area may, to some extent, becompensated by strength in either of the other two. [8] The reasonable grounds standard and the Debot inquiry have been thoroughly canvassed by the Saskatchewan Court ofAppeal: R v Shinkewski, 2012 SKCA 63, at para 13; R v Chapman, 2020 SKCA 11 [Chapman]; R v Pavlik, 2019 SKCA 107 [Pavlik]; Rv Dawad, 2019 SKCA 125; R v Protz, 2020 SKCA 115 [Protz]; and R v Todd, 2019 SKCA 36. [9] The starting point of the analysis of a warrantless arrest and search is the presumption of unreasonableness (R v Nolet, 2010SCC 24, at para 21.) The burden of proof is on the Crown to establish reasonableness on a balance of probabilities as stated by JusticeKalmakoff in R v Chapman, at paras 50 and 51: [50] … Warrantless searches reverse the burden; they are presumptively unreasonable and can only be justified if they areauthorized by a reasonable law and carried out in a reasonable manner.

The Crown bears the burden of establishing the reasonableness ofa warrantless search on a balance of probabilities. [51] …In a case such as this, where the arrest upon which the Crown relies to justify a search conducted incident to it is subject toa s. 9 challenge, the Crown carries the burden on both of the overlapping s. 8 and s. 9 claims and must prove that the arrest was lawful… [10] Reasonable grounds has two components – the officer must have a subjective belief that an offence is being committed andthe belief must be objectively reasonable. In this case, Cst.

Parenteau is the officer who received the confidential information anddecided to arrest the accused. The defence is not challenging Cst. Parenteau’s subjective belief. The focus of the inquiry is whether thatbelief was reasonable. Justice Ottenbreit in R v Protz, at para 41, provides useful guidance to trial judges:

[41] In assessing whether reasonable grounds existed, the trial judge must ask “whether the inference drawn by the arrestingofficer was a reasonable one to have made at the time of arrest based on the circumstances known to the officer at that time” (Todd atpara 29). The trial judge must examine the “indicators” of criminal activity as a constellation, or cluster, leading or tending to a generalconclusion. If the conclusion is objectively reasonable, the arrest will be lawful. [11] Cst. Parenteau has been a Prince Albert Police Officer for seven years.

He has used confidential informants since the start ofhis career. In January 2020 he was assigned to the Integrated Crime Reduction Team. This team investigates crimes involving gangs,guns and drugs. [12] On February 26, 2020, at 8:00 a.m., he received information from a source over the telephone. He knows the source and hasreceived information from that individual before. On this date, the information received was that Kevin Ackegan was at 874 14th StreetWest and had possession of guns. The information was that the source had seen Kevin Ackegan in possession of guns at that address. Cst.

Parenteau testified that he had received information from the source on eight occasions. On three occasions charges had been laidand on one occasion a conviction had resulted. Cst. Parenteau testified that the source does have a criminal record which includes crimesof dishonesty and also that the source was paid for the information provided on February 26, 2020. [13] In 2017 Cst. Parenteau arrested Ackegan as part of a traffic stop. Ackegan was charged with possession of a firearm andplead guilty to the charge according to Cst. Parenteau.

Subsequently, Ackegan was arrested for breaching his parole by associating withknown gang members. At the time of the arrest, Cst. Parenteau was told that Ackegan was a member of the street gang Terror Squad. On February 26, 2020, Cst. Parenteau did not possess further or current information regarding Ackegan’s membership in street gangs. [14] With the information received by Cst.

Parenteau, the police conducted surveillance of the residence where Ackegan wasbelieved to be. (There was some confusion at trial regarding the address, but I am satisfied that surveillance was conducted on theaddress provided by the source.) [15] Cst. MacDonald was one of the officers who conducted the surveillance. He testified he watched the residence forapproximately 3 hours. At 11:20 a.m. Kevin Ackegan came out of the residence and began loading bags into a vehicle. Both Cst.Parenteau and Cst. MacDonald testified that, in their experience, guns can be concealed in bags. [16] During the surveillance, Cst.

Parenteau confirmed, by doing a CPIC inquiry, that Kevin Ackegan was prohibited frompossessing firearms. [17] Cst. MacDonald testified that after several bags were loaded into the back seat and the trunk of the vehicle at the suspectresidence, an unknown female drove the vehicle away with Ackegan as a passenger. [18] The vehicle was driven a few blocks before it stopped at another residence. At this point, Cst. Parenteau testified that hebelieved he had reasonable grounds and he informed Cst. MacDonald to arrest Ackegan. After the arrest of Ackegan, Cst.

Parenteaudrove the vehicle to the police station where a search revealed guns in bags and a variety of drugs, ammunition and a cell phone. [19] Crown counsel, Ms. Dube, argues that the search of the vehicle is justified as a search incidental to the lawful arrest ofAckegan. She relies on R v Caslake, (SCC), [1998] 1 SCR 51, at paras 15 – 25, maintaining that the search of thevehicle in this context was a search for evidence incidental to arrest. [20] Mr.

Blenner-Hassett does not take issue with the search being incidental to the arrest, rather the defence focused on thereasonableness of the officer’s belief to arrest. Mr. Blenner-Hassett’s cross-examination of Cst. Parenteau was brief – only asking twoquestions which focused on the identity of the confidential informant.

The informant’s identity in this context should not be disclosedand the Court has a role to ensure that confidentiality is maintained (R v Barros, 2011 SCC 51 , [2011] 3 SCR 368, at paras 1and 35). [21] Relying on R v Debot, the defence maintains that the tip in this case was nothing more than a bald accretion which cannotform the basis of reasonable grounds. This argument is addressed by Justice Caldwell in R v Pavlik at para 29: [29] As noted, the reviewing court first asks whether the information provided by an informant is compelling by considering its detail

and precision and its source (i.e., how the informant acquired the information) to assess whether the information has the character of something more than “mere rumour or gossip” or of “bald conclusory statements” ( R v Debot at 1168–69). Justice Wilson found the tipster’s information in R v Debot was compelling based on its specificity, particularly as it related to the criminality it alleged would occur and as to the source of the information.

Critically, when assessing whether the tip in R v Debot was compelling due to its specificity, Wilson J. had significant regard for factors such as the reputation of the suspect with the police and other information known to the police that might be seen as enhancing the plausibility of the criminality alleged in the tip. [ 22 ] In reviewing the officer’s belief, it is important to look at the totality of the circumstances. I accept that Cst. Parenteau had the following information when he made the decision to arrest: 1.) Information from a source that the accused was in possession of guns.

The information was current and was firsthand – the source actually saw what was reported; 2.) Some indication of past credibility of information provided from the source, mixed with the fact that the source had been paid and had previous convictions for dishonesty; 3.) Three hours of surveillance which corroborated that Ackegan was at the residence and he was loading bags into the trunk and rear seat of a vehicle; 4.) Investigative experience by the police indicating that guns have been concealed in bags; and 5.) Personal knowledge of Ackegan’s history with illegal firearms and association with known gang members. [ 23 ] Critically, Cst.

Parenteau’s belief does not need to be accurate or the only inference available. Justice Kalmakoff, in R v Chapman at para 59 , summarized the test: [59] A belief does not need to be correct in order to be reasonable; reasonable grounds can be based on an officer’s belief that certain facts exist, even if that belief turns out to be mistaken: Shinkewski ; Gerson-Foster; Kossick; R v Churko , 2014 SKCA 41 at para 5 , 433 Sask R 317; R v Valentine , 2014 ONCA 147 , 316 OAC 302; R v Robinson , 2016 ONCA 402 , 336 CCC (3d) 22.

Furthermore, the inference drawn by the officer need not be the only inference that may be drawn from the available information, or even the most compelling one, as long as it is a reasonable inference to have drawn.

The presence of other plausible, innocent explanations for police- observed behaviour does not automatically negate reasonable grounds to believe: R v Gunn , 2012 SKCA 80 , [2013] 1 WWR 495; R v Ha , 2018 ABCA 233 , at para 34 , 363 CCC (3d) 523 [ Ha ]. [ 24 ] Recognizing that there is no checklist which must be met before reasonable grounds can be established, I find a number of factors persuasive of a strong connection between Ackegan and the illegal possession of firearms. ( R v Chapman at para 66 .) The source information is firsthand knowledge. The tip is not based on rumor or gossip.

The source has some indicators of past reliability. The source identified the address where Ackegan was located. While there is not an overwhelming amount of information provided, I find the tip to be credible and compelling. Of significance to me is that the tip is corroborated by Cst. Parenteau’s knowledge of the accused’s history and reputation ( R v Pavlik at para 32 ) and by the surveillance. [ 25 ] Cst. Parenteau did not react immediately to the information provided by the source. Rather he proceeded to investigate and corroborate before he made his decision to arrest.

When I examine the evidence in totality, I am satisfied that Cst. Parenteau’s belief has been established to be objectively reasonable. [ 26 ] In these circumstances, I find that the arrest and search of this accused and the vehicle was reasonable and lawful. There is no violation of s. 8 or s. 9 of the Charter . The application is dismissed. Dated this 26th day of November, 2020, at the City of Prince Albert, in the Province of Saskatchewan. ____________________________ H.M. Harradence, J