Her Majesty the Queen - v. -, 2017 SKPC 37

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 037 Date: June 30, 2017 Information: 90120252 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - David Wayne Maxim Appearing: Rhiannon Rees For the Crown George Combe For the Accused DECISION ON S. 24(2) CHARTER APPLICATION R. GREEN , J I. INTRODUCTION [ 1 ] Mr. Maxim is charged with possession of cannabis marihuana for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act ( CDSA ), at or near Percival on October 10, 2016.

On that day, Cst. Jamie Markham of the Broadview RCMP, who was patrolling with Sgt. Catherine Walter, had a motorist pulled over at the side of the Trans Canada Highway east of Broadview. The officers had their emergency lights on, and when Mr. Maxim did not slow to 60 km/hr while passing their police vehicle, they stopped his vehicle.

[ 2 ] After: (1) speaking with Mr. Maxim; (2) looking at his driver’s licence and vehicle rental agreement; (3) observing Mr. Maxim and his demeanour; (4) looking inside the vehicle; and (5) reviewing the police database regarding Mr. Maxim on the computer in his police vehicle, Cst. Markham detained Mr. Maxim for a drug investigation. Subsequently, Cst. Markham arrested Mr. Maxim for possession of a narcotic. Following the arrest, Cst. Markham searched Mr. Maxim’s trunk and located two suitcases containing a total of forty pounds of marihuana in vacuum sealed packages. Cst. Markham then rearrested Mr.

Maxim for possession of a narcotic for the purpose of trafficking. [ 3 ] Mr. Combe claims that Mr. Maxim’s rights under s. 9 of the Charter were violated because Cst. Markham did not have the requisite legal grounds to detain Mr. Maxim for a drug investigation, and then did not have the requisite legal grounds to arrest him for possession of a substance under the CDSA . As a result, he claims that Mr. Maxim’s rights under s. 8 of the Charter were violated through the unreasonable search of his trunk and seizure of the marihuana which followed his arrest. [ 4 ] Mr. Combe acknowledged that Cst.

Markham had lawful authority under the Traffic Safety Act [1] [ TSA ] to stop Mr. Maxim for not slowing to 60 km/hr when passing the police vehicle. He as well acknowledged that if, contrary to his submission, the arrest of Mr. Maxim was lawful, the officer had lawful authority to search this vehicle as it was incidental to a valid arrest. [2] [ 5 ] As a result, the issues to be determined are:

(1) Whether Mr. Maxim’s right to be free from arbitrary detention and arrest under s. 9 of the Charter and his right to be free from unreasonable search and seizure under s. 8 were violated; and

(2) If any or all of the alleged Charter breaches are established, whether evidence from the search and seizure should be excluded under s. 24(2) of the Charter . [ 6 ] The voir dire proceeded with the Crown calling two witnesses: Cst. Markham and Sgt. Walter. The defence called no evidence on the voir dire . [ 7 ] The defence admitted the curriculum vitae and expert opinion of Cpl. Robert Karaim into evidence (Exhibit P-1), without the necessity of this expert being qualified and testifying at the trial. The conclusion of Cpl. Karaim’s report is that in his opinion, based on the amount of marihuana found in Mr.

Maxim’s trunk and the other circumstances of this case, this marihuana was possessed by Mr. Maxim for the purposes of trafficking. II. BACKGROUND [ 8 ] Cst. Markham stopped Mr. Maxim shortly after 12:00 noon. Upon walking up to the driver’s side window, he spoke to Mr. Maxim and asked for his registration and driver’s licence. Mr. Maxim produced his British Columbia driver’s licence and a rental agreement from Regina for his vehicle. Cst. Markham said Mr. Maxim’s hands were shaking when he handed the documents to him which to him indicated nervousness. Mr.

Maxim said he was coming from Regina and going to Winnipeg to see family. [ 9 ] Despite Mr. Maxim’s speed past the officers of 89 km/hr, Cst. Markham told Mr. Maxim he would only be getting a warning under the TSA for doing so, and took these documents back to his police vehicle where he checked them using his computer. Cst. Markham saw “no huge concerns” for Mr. Maxim on the Canadian Police Information Centre (CPIC) portal, but on the Police Information Portal (PIP) the officer discovered that Mr.

Maxim had been charged with trafficking marihuana in 2011 and was suspected of producing marihuana in 2013. [ 10 ] After these computer checks, Cst. Markham looked at Mr. Maxim’s rental agreement (Exhibit P-2) and noted that the vehicle

was supposed to be back at the rental vehicle outlet in Regina at 10:00 a.m. on October 12, 2016. October 10, 2016 was Thanksgiving Day and Cst. Markham found it odd that Mr. Maxim would be travelling to see friends in Winnipeg on a long weekend and travelling on Monday morning, the last day of the weekend. [ 11 ] In his experience - which included 16 years of policing and four years of patrolling the Trans Canada Highway and being involved in many contraband investigations - Cst. Markham said a short period of travel was consistent with carrying contraband as such transport is done as quickly as possible. Cst.

Markham said he also knew that a rental vehicle is a common way to carry contraband because there is no risk of a personal vehicle being seized by the police. He also considered that Mr. Maxim had an energy drink in his front seat console which he said is a stimulant used to travel long distances with and that Winnipeg was known in police circles to be a destination for drugs. He, as well, noted that Mr. Maxim’s driver’s licence was from Burnaby, British Columbia, which he said is a source point of drugs. [ 12 ] Cst.

Markham, given the totality of his observations and the information he had at that point, detained Mr. Maxim for a drug investigation. He told him he was being detained for this reason, and gave him his rights to counsel and the police warning. He said, during that detention, Mr. Maxim remained calm and did not appear to be surprised by being detained. However, his visible level of nervousness increased. Cst. Markham said he could see Mr. Maxim’s carotid artery in his neck pulsating which suggested to him that Mr. Maxim was very nervous. [ 13 ] After detaining him, Cst. Markham preformed a pat down search on Mr.

Maxim and found a large so-called wad of cash in his pocket, later determined to be $1,040.00 in total. This amount of cash was in his view consistent with payment for drugs. At that point, he arrested Mr. Maxim for possession of a narcotic, gave him his rights to counsel and the police warning. He then placed Mr. Maxim into the prisoner compartment of his police vehicle and searched Mr. Maxim’s vehicle. In the trunk of the vehicle he found two suitcases full of cannabis marihuana, confirmed to be so by two Certificates of Analysis (Exhibit P-4 and P-5). At that point he rearrested Mr.

Maxim for possession of a substance for the purpose of trafficking under s. 5(2) of the CDSA , and read him his rights to counsel and the police warning. [ 14 ] Cst. Markham is the handler of a police dog. That dog was with him this day in his police vehicle. Cst. Markham did not use his dog in this investigation. He said he would only do so in a case when he only suspected that there were drugs in a vehicle, in contrast to this case where he was confident that Mr. Maxim had drugs. He further said thirty minutes passed between the time he stopped Mr.

Maxim and arrested him for possession for the purposes of trafficking, with five minutes occurring between Mr. Maxim’s detention and the arrest. [ 15 ] On cross-examination, Cst. Markham admitted he knew nothing about Mr. Maxim’s background. He said while he was suspicious of the short rental period, it was only one indicator that he used. Cst. Markham said the warning he initially planned to give Mr. Maxim was because he was from out of province and a warning was as good as a ticket for such a person for an alleged traffic violation. [ 16 ] Cst.

Markham further admitted that he did not smell any drugs or alcohol in the vehicle and saw neither of these in the backseat. Nor did he smell anything that could be a masking agent, such as Mr. Maxim smoking. He confirmed that learning Mr. Maxim had recently been charged with trafficking marihuana raised his suspicions. Cst. Markham as well admitted most of the people who are stopped by the police are nervous, but he said that in this case Mr. Maxim was more than the base line level of nervousness that he would expect, with his hands shaking. [ 17 ] In total, Cst. Markham said that, after detaining Mr.

Maxim, the three things that led to his arrest for possession of a narcotic were: (1) the amount of cash he found on him; (2) his throbbing carotid artery; and (3) his demeanor, in that Mr. Maxim did not appear to be surprised after he was detained for a drug investigation. [ 18 ] Sgt. Walter confirmed that she was on the highway with Cst. Markham, that Mr. Maxim passed at a higher rate of speed than 60 km/hr and they subsequently stopped him. After obtaining the travel documents from Mr. Maxim, she returned to the vehicle with Cst. Markham and they discussed the situation. Cst.

Markham said the following about Mr. Maxim to Sgt. Walter: (1) he was travelling for a family visit on the Monday of a long weekend, (2) he had a short turnaround time on his car rental agreement; and (3) he was nervous. Sgt. Walter was as well aware that the computer check on Mr. Maxim showed he had a drug related record. She said Cst. Markham then made the decision to detain Mr. Maxim.

[ 19 ] Sgt. Walter was the exhibit person for this seizure, and took pictures of the vehicle and what was found in it (Exhibit P-3). III. WERE MR. MAXIM ’S RIGHTS UNDER SS. 8 AND 9 OF THE CHARTER VIOLATED? 1. The detention of Mr. Maxim: [ 20 ] In his Charter notice, defence counsel submitted that Cst. Markham did not have lawful grounds to detain Mr. Maxim.

For the reasons that follow, I disagree. [ 21 ] In R v Mann [3] , the Supreme Court of Canada held that “police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary”.

In R v MacKenzie [4] , Moldaver J. said the question to be answered in determining whether a reasonable suspicion exists is: “Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances?” [5] [ 22 ] In this case, I am satisfied that when Cst. Markham detained Mr. Maxim, he had a reasonable suspicion that Mr. Maxim had violated or was violating the Controlled Drugs and Substances Act.

That is because of the totality of his observations and the information he had to that point: (1) the rental vehicle with a short turnaround time; (2) a British Columbia driver’s licence; (3) the explanation of travelling to Winnipeg to visit friends on the last day of a long weekend; (4) the energy drink in his console; (5) the information on PIP that Mr. Maxim had been charged with trafficking marihuana in 2011 and was suspected of producing marihuana in 2013; (6) the destination of Winnipeg which the officer believed to be a common destination for drugs; and

(7) Mr. Maxim’s nervous demeanor. 2. The arrest of Mr. Maxim: [ 23 ] Cst. Markham arrested Mr. Maxim for the possession of a substance under the CDSA without a warrant.

Section 295 of the Criminal Code empowered this officer to arrest Mr. Maxim if he: (1) believed that Mr. Maxim had committed an indictable offence; (2) had reasonable grounds to believe that Mr. Maxim had committed or was about to commit an indictable offence; or (3) found Mr. Maxim committing a criminal offence. Cst. Markham said in this case he was confident that Mr. Maxim had drugs in his possession. Given that s. 8 of the Charter protects against unreasonable search and seizure, the question is whether this officer’s honest believe that Mr.

Maxim was in a possession of a narcotic - which I am satisfied he held - was reasonable. For the reasons that follow, I am not satisfied it was. [ 24 ] In addition to the reasonable suspicion of criminal activity he held in detaining Mr. Maxim, Cst. Markham said three additional factors led to his arrest: (1) the amount of cash he found on him; (2) his throbbing carotid artery; and (3) his demeanor, in that Mr.

Maxim did not appear to be surprised after he was detained for a drug investigation. [ 25 ] In my view the signs of nervousness, on the one hand, and a lack of surprise at detention, on the other, are in a sense contradictory and at the least equivocal. I am satisfied that most people who are detained would be nervous, some decidedly so, and that many would be quiet and would not react. Taken together, I do not accept that these two factors add much to the suspicion the officer held on the detention of Mr. Maxim. [ 26 ] The deciding factor on whether the officer had reasonable grounds to arrest Mr.

Maxim is whether the discovery of a large amount of cash on him elevated his reasonable suspicion to a reasonable belief he had drugs. In the absence of any smell of drugs or any masking agents, or other evidence than already noted, I am not satisfied that the officer had more than a reasonable suspicion Mr. Maxim was in the possession of drugs when he arrested him.

As a result, I am satisfied that his right to be free from arbitrary detention and imprisonment under s. 9 of the Charter and his right to be secure against unreasonable search and seizure under s. 8 of the Charter were violated when the officer arrested Mr. Maxim and searched his trunk.

IV. WOULD ADMISSION OF EVIDENCE RELATED TO THE MARIHUANA BRING THE ADMINISTRATION OF JUSTICE INTO DISREPUTE UNDER S. 24(2)? [ 27 ] Given my finding that Mr. Maxim’s rights under ss. 8 and 9 of the Charter were violated from the point he was arrested by Cst. Markham, the question is whether admitting the cannabis marihuana into evidence at this trial would bring the administration of justice into disrepute, based on a balancing of: (1) the seriousness of the breach; (2) the impact of the breach on the Charter -protected rights of Mr.

Maxim; and (3) society’s interest in the adjudication of the case on its merits. [6] [ 28 ] It is of course serious when a warrantless search of a vehicle is conducted incidental to an arrest that is not subsequently found to be valid and lawful. That said, the Saskatchewan Court of Appeal, in R v Shinkewski [7] , set out a framework within which to consider this issue of seriousness from Grant . In

summary, the Court considered the following factors as relevant to this inquiry:

(1) What degree of fault is to be attributed to the police, including the veracity and honesty of the officer’s testimony?

(2) Was the officer acting in bad faith, and was the Charter -infringing state conduct blatant or an intentional disregard of the accused’s rights?

(3) Was the state misconduct part of a pattern of disregard for Charter rights, part of a systemic problem or borne of a wilful blindness or police negligence? and

(4) Where does the degree of fault on the state for its misconduct fall, on a spectrum ranging from inadvertent to negligent to reckless to willfully blind to flagrant to blatant disregard? [8] [ 29 ] Applying the above framework to this case, I do not accept that Cst. Markham was acting in bad faith or exhibited an intentional or blatant disregard for Mr. Maxim’s rights. Nor do I accept that the officer’s actions were part of a systemic problem or borne of a wilful blindness. While I have found that his grounds for arresting Mr. Maxim supported a reasonable suspicion of criminal activity by Mr.

Maxim but fell just short of a reasonable belief as to this, I do accept the officer’s evidence that in this case he was confident that Mr. Maxim had drugs with him. While using his drug dog to investigate before making this arrest would have clearly established lawful grounds for an arrest, nevertheless I view the officer’s actions, at most, as negligent and falling at the lowest end of the fault spectrum described by the Court of Appeal in Shinkewski . [ 30 ] Regarding the impact of these breaches on the Charter -protected rights of Mr. Maxim, I find this impact to be in the medium range.

That is because: (1) this was a search of Mr. Maxim’s rental vehicle, which undoubtedly meant a reduced expectation of privacy on his

part compared to a search of his home or his body; and (2) the search of his vehicle did not in my view give rise to any issues of bodily integrity or human dignity [9] . [ 31 ] There is no doubt that the third ground of inquiry favours inclusion of the evidence as society’s interest in the adjudication of the case on its merits is clearly supported by considering the relevant and reliable evidence of forty pounds of vacuum sealed marihuana being driven across the prairie towards a large urban centre. [ 32 ] I note that Keene J. dealt with the

interpretation s. 24(2) of the Charter in Duong [10] , a case with some marked similarities to this case. Duong involved a vehicle stop and drug search by this same police officer on Highway #1 near Swift Current, in which fifty pounds of marihuana was found in the vehicle’s trunk. Justice Keene stated that, even if he had found that Mr. Duong was unlawfully detained, he would not have excluded the marihuana. That was because: (1) of the strength of society’s interest in the adjudication of the case on its merits; (2) any impact of such a breach on Mr. Duong’s Charter rights would have been minimal; and (3) the entire length of detention before arrest was only 30 minutes.

[ 33 ] Taken together, and applying the three factors from Grant to the facts of this case as discussed above, I am not satisfied that inclusion of any evidence related to the cannabis marihuana [ 34 ] found by Cst. Markham would bring the administration of justice into disrepute. As a result, I dismiss the defence application under s. 24(2) of the Charter . R. Green, J [1] SS 2004, c T-18.1 . [2] As held by Keene J. in R v Duong , CRM 12 of 2015 (Sask.

QB, unpublished) at para 42. [3] 2004 SCC 52 at para 45 . [4] 2013 SCC 50 . [5] At para 72. [6] R v Grant , 2009 SCC 32 , 245 CCC (3d) 1 at para 72 . [7] 2012 SKCA 63 . [8] These points are summarized from para 31 and 32 of Shinkewski . [9] See Shinkewski at para 35 . [10] Supra , note 2.