HIS MAJESTY THE KING - v. -, 2022 SKKB 212

RESTRICTION ON PUBLICATION: By court order made under subsection 517(1) of the Criminal Code , these reasons shall not be published in any document, or broadcast or transmitted in any way until the end of the trial. KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 212 Date: 20 22 09 21 Docket: CRM-SC-00017-2021 Judicial Centre: Swift Current BETWEEN: HIS MAJESTY THE KING - and - RYAN WILLIAM PIPKE The restriction on publication has been lifted pursuant to the judge’s order of October 18, 2023. Counsel: Curtis Wiebe for the Crown Mervin Nidesh, K.C. for the accused RULING ON PRE-TRIAL APPLICATIONS TOCHOR J.

September 21, 202 2 I. INTRODUCTION 1. Charges against Mr. Pipke [ 1 ] Ryan Pipke faces a trial before a jury scheduled for April 11-14, 2023. The indictment alleges six charges arising out of an incident near his home on June 14, 2020: (

a) without lawful excuse point a firearm at Lois Carr contrary to s. 87(2) of the Criminal Code , RSC 1985, c C-46 ; (

b) without lawful authority intend to provoke fear in Lois Carr, a justice system participant, contrary to s. 423.1(3) of the Criminal Code ; (

c) commit mischief by hitting the door of the vehicle of Lois Carr contrary to s. 430(3) of the Criminal Code ; (

d) use an imitation firearm, to wit: a pellet gun while committing the indictable offence of assault with a weapon contrary to s. 85(3) of the Criminal Code ; (

e) without lawful excuse did use a firearm, to wit: a pellet gun in a careless manner contrary to s. 86(1) of the Criminal Code ; (

f) in committing an assault on Lois Carr did threaten to use an imitation weapon, to wit: a pellet gun contrary to s. 267 (

a) of the Criminal Code . 2. Pre-Trial Applications and Issues [ 2 ] Through the criminal pre-trial and case management process, several issues were identified which must be addressed prior to the commencement of the trial. These issues include: (

a) Whether the Crown has proven beyond a reasonable doubt that the warned statement provided to police by Mr. Pipke is voluntary and therefore admissible;

(

b) Whether Mr. Pipke has established, on a balance of probabilities, a breach of his ss. 7 , 8 , 9 , or 10(

b) Canadian Charter of Rights and Freedoms [ Charter ] rights; and (

c) If any Charter breaches are established, what remedy should be granted pursuant to s. 24(1) or (2) . [ 3 ] In my case management fiat dated July 20, 2022, other issues which require determination before the trial were also identified; these include: (

c) a ruling on whether the complainant – a process server - had lawful authority to be on the property of Mr. Pipke or whether her attendance constitutes a trespass; (

d) whether the qualifications of the Crown’s proposed firearms expert will be admitted; and (

e) whether Mr. Pipke will make any challenges for cause of the jury panel. 3. Brief Background [ 4 ] In a hearing commenced on September 15, 2022, a blended voir dire was held to address (

a) the admissibility of the warned video statement made by Mr. Pipke to police on June 15, 2020, and (

b) Mr. Pipke’s Charter applications for a stay of proceedings and the exclusion of evidence. Other pre-trial and case management issues were also discussed. [ 5 ] During the hearing, counsel and I had some case management discussions which allowed us to considerably narrow the outstanding issues which required determination. I am thankful to both counsel for their significant work in narrowing the issues. [ 6 ] First, with respect to the voluntariness voir dire , after hearing the evidence of the investigating officer, Mr.

Nidesh advised he would make no argument against the voluntariness of the warned video statement provided by Mr. Pipke at the RCMP detachment on June 15, 2020. After hearing viva voce evidence from the investigating officer and hearing no argument from Mr. Pipke against the admissibility of the statement, I ruled the video statement was voluntary and therefore admissible. [ 7 ] Second, with respect to the legal issue of whether the complainant had lawful authority to be on Mr. Pipke’s property at the time of the alleged offence, Mr.

Nidesh advised that, after consultations with the Crown, he would not be making argument on that issue. He advised Mr. Pipke will not argue the complainant was without lawful authority to be on his property, or was a trespasser, at the material time. Therefore, a ruling on this issue was not requested. [ 8 ] Third, with respect to the issue of the firearms expert’s qualifications and testimony, Mr. Wiebe advised he intended to provide the expert evidence by way of a certificate of analyst pursuant to s. 117.13 of the Criminal Code . Mr.

Nidesh advised that he had not been provided with any notice of the Crown’s intention to rely upon such a certificate, and that he would require some time to review the issue and obtain instructions from his client. He also advised he was considering an application for an order permitting him to cross-examine the proposed expert, as well as requiring the expert to testify before the jury. Therefore, this issue will be addressed subsequently at a further case management conference and, if necessary, at a hearing. [ 9 ] Fourth, with respect to whether Mr.

Pipke intends to make any challenges for cause of the jury panel, Mr. Nidesh advised that he did not have the necessary information at this point to come to a decision on this issue. Therefore, this issue will also be addressed at a later date prior to trial. [ 10 ] I also indicated to the parties that once a ruling was made on Mr. Pipke’s Charter applications, I would convene a further case management teleconference to address any outstanding pre-trial issues and the scheduling of any further proceedings. II. CHARTER APPLICATIONS 1. Introduction [ 11 ] While a number of Charter issues are raised in Mr.

Pipke’s notice of application, after the hearing of evidence in the blended voir dire , Mr. Nidesh advised he would narrow the issues which required determination prior to trial. Again, I am thankful for his work in narrowing the issues. [ 12 ] First, Mr. Pipke filed an application under ss. 7 and 10(

b) of the Charter where he submitted a change to his legal jeopardy required police to re-advise him of his right to counsel sometime after he provided his warned video statement. However, in light of Mr. Wiebe’s statement that he would not seek to tender into evidence a verbal statement made by Mr. Pipke sometime after his warned video statement was made, Mr. Nidesh advised he would no longer pursue the Charter challenge on this basis. Therefore, a determination is not required on this applicaiton. [ 13 ] Second, Mr.

Pipke also filed an application under s. 9 of the Charter arguing that his arrest was arbitrary and was not undertaken upon reasonable and probable grounds. However, after the hearing of evidence from the investigating officer in the voir dire , Mr. Nidesh advised he would not pursue this argument further. A determination is therefore not required on this issue. [ 14 ] However, Mr Pipke submits there are two Charter applications that require determination prior to trial: (

a) whether the warrantless seizure of firearms from Mr. Pipke’s home on June 15, 2020, constitutes a violation of his rights under s. 8 of the Charter ; and (

b) whether the seized firearms were unlawfully retained by police contrary to s. 8 of the Charter . [ 15 ] After briefly identifying the onus upon an applicant in a Charter application, I will address each of the

applications. 2.

The Onus on an Applicant [16] At the outset, it is important to note an applicant bears the onus to establish, on a balance of probabilities, thathis Charter rights were infringed: R v Feldman (1994), (BC CA), 91 CCC (3d) 256 at para 21 (QL) (BCCA), affirmed (SCC), [1994] 3 SCR 832. [17] This onus was earlier explained in R v Collins, (SCC), [1987] 1 SCR 265 at 277 [Collins]: The appellant, in my view, bears the burden of persuading the court that her Charter rights or freedoms have been infringed or denied.That appears from the wording of s. 24(1) and (2), and most courts which have considered the issue have come to that conclusion (see R.v.

Lundrigan (1985), (MB CA), 19 C.C.C. (3d) 499 (Man. C.A.), and the cases cited therein, and Gibson, The Law ofthe Charter: General Principles (1986), p. 278). The appellant also bears the initial burden of presenting evidence.

The standard ofpersuasion required is only the civil standard of the balance of probabilities and, because of this, the allocation of the burden ofpersuasion means only that, in a case where the evidence does not establish whether or not the appellant's rights were infringed, the courtmust conclude that they were not. [18] In R v Casement, 2007 SKQB 422 at para 17, 376 Sask R 67 and R v Manitopyes, 2013 SKQB 112 at para 16,416 Sask R 254, the same authorities were relied upon in concluding the onus is upon an applicant.

For a more recent articulation of thisprinciple to the same effect, see: R v Englot, 2020 SKQB 335 at paras 9-10. [19] I turn now to address the two remaining Charter applications. 3. The Seizure of Firearms from Mr. Pipke’s Farm [20] Mr. Pipke argues the attendance by police at his farm on June 15, 2020, and the seizure of his firearmsconstitutes a warrantless search and was unlawful.

He argues there was nothing preventing police from seeking a search warrant beforethey attended his home and seized his firearms, and their failure to obtain a warrant resulted in a breach of his s. 8 rights. [21] However, in response, the Crown submits there was no Charter violation because Mr. Pipke consented to thissearch. [22] Cst. Karcha testified that after Mr. Pipke gave a warned video statement to police at the detachment, he wasreleased from custody upon an undertaking which contained a condition that he not possess firearms. When this condition was discussedwith Mr. Pipke at the detachment, Cst.

Karcha testified Mr. Pipke agreed to turn over his firearms pending a resolution of the chargesagainst him. [23] When advised in the course of his warned video statement that police intended to seize his firearms pending theresolution of his charges, Mr. Pipke paused a moment and then stated: “okie dokie”. [24] Cst. Karcha also testified that Mr. Pipke’s consent was manifest in Mr. Pipke’s subsequent actions. Cst. Karchatestified Mr. Pipke led the police to his farm about 40 kilometres outside of Swift Current, Saskatchewan. Once at his farm, Mr.

Pipkeshowed police where his firearms were located and voluntarily turned them over. [25] Cst. Karcha testified Mr. Pipke was cooperative throughout this time at his farm. Cst. Karcha testified he did notconsider getting a warrant because Mr. Pipke had agreed to the search, led the officers to his farm, and had no hesitation in showingpolice where his firearms were located. Once located, the firearms were immediately given to police. [26] Cst. Karcha was not cross-examined or challenged on this evidence of Mr. Pipke’s consent. Nor did Mr. Pipkedispute this evidence by calling evidence or testifying himself.

The only evidence on this point put forth during the voir dire was fromCst. Karcha. [27] In this regard it is important to note Mr. Pipke was released upon an undertaking which contained a conditionthat he not possess firearms. If he did not take immediate steps to have the firearms removed from his possession, he would have been inbreach of that release condition. Therefore, as Cst. Karcha testified, it was in Mr. Pipke’s interest to have the firearms removed from hishome at that time. [28] However, after considering the evidence in the blended voir dire, I conclude the Crown failed to establish thatMr.

Pipke consented to the search of his home and the seizure of his firearms. [29] As a starting point, the case law makes clear that warrantless searches are prima facie unreasonable and the onusis on the Crown to establish the search was lawful: Collins at p 278; R v Rutten, 2006 SKCA 17 at para 45, [2006] 6 WWR 583 [Rutten];and R v Hoang, 2017 SKQB 160 at para 80, 392 CRR (2d) 197 [Hoang]. [30] Further, when alleging a search occurred with the consent of the accused, the Crown bears the onus ofestablishing the requirements of a valid consent upon a balance of probabilities: R v Sewell, 2003 SKCA 52 at para 30, [2004] 6 WWR694 [Sewell]; R v Luc, 2004 SKCA 117 at para 32, [2005] 1 WWR 253 [Luc]; Rutten at para 36; Hoang at para 82. [31] As pointed out in Sewell at para 17, the Crown must establish compliance with the following six requirementsbefore an accused’s consent to a search is considered valid: [17] The requirements for a valid consent are succinctly outlined in R. v.

Wills (1992), (ON CA), 70 C.C.C. (3d) 529at 546. After considering such cases as R. v. Goldman, (SCC), [1980] 1 S.C.R. 976; R. v. Rosen,

(SCC), [1980] 1 S.C.R. 961; R. v. Dedman, (SCC), [1985] 2 S.C.R. 2; R. v. Debot, (SCC), [1989] 2S.C.R. 1140; this Court’s decision in R. v. Nielsen, (SK CA), [1988] 6 W.W.R. 1; and many other cases Doherty J.A.,speaking for the Ontario Court of Appeal, crafted the test to be used in these cases, in these words: In my opinion, the application of the waiver doctrine to situations where it is said that a person has consented to what would otherwise bean unauthorized search or seizure requires that the Crown establish on the balance of probabilities that: (

i) there was a consent, express or implied; (ii) the giver of the consent had the authority to give the consent in question; (iii) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression,coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course ofconduct requested; (iv) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent; (

v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested, and (vi) the giver of the consent was aware of the potential consequences of giving the consent. [32] The six requirements outlined in R v Wills (1992), (ON CA), 70 CCC (3d) 529 at 546, andthen followed in Sewell, have also been adopted in many other Saskatchewan cases, including Rutten at para 36; Luc at para 31; R vPerello 2005 SKCA 8 at para 16, 257 Sask R 46 [Perello]; R v Santos, 2014 SKQB 5 at para 174, 436 Sask R 1; Hoang at para 82; andR v McMahon, 2018 SKCA 26 at para 79, [2018] 8 WWR 318. [33] Applying the six requirements to the case at bar, I conclude the Crown established on a balance of probabilitiesthat requirements (

i) to (iv) and (vi) have been met. I am satisfied Mr. Pipke had the authority to consent to a search of his home and thathe did so. I am also satisfied that his consent was voluntary and that he was fully aware of the police conduct to which he agreed. [34] With respect to requirement (vi), I am satisfied Mr. Pipke was aware of the potential consequences of giving hisconsent. Since he did not give evidence on the voir dire, I am permitted to consider the circumstantial evidence and make inferences:Perello at para 27.

In this respect, I conclude he was aware the police would seize any firearms on his property and, in light of theinvestigation which he was subjected to earlier that day, I conclude he was aware that anything seized could be used in evidence againsthim. [35] However, I find the Crown failed to establish compliance with requirement (v); that is, it failed to establish Mr.Pipke was made aware of his right to refuse to permit the police to seize firearms without a warrant. [36] There was no evidence called by the Crown to address this issue. Cst.

Karcha, the only witness who testified onthe voir dire, did not speak to this. There was nothing in the evidence to suggest police told him of his right to object to the attendance ofthe police on his farm for the purpose of seizing firearms. There was nothing to suggest Mr. Pipke was aware, by any other means, of hisoption to refuse the police request.

The Crown has not met its evidentiary burden in respect of this requirement. [37] On the basis of this evidence, I find myself in the same situation as the court in Luc, where Bayda, C.J.S.concluded at para. 34: [34] There is nothing to indicate that the passenger was aware of his right to refuse to permit the police to engage in the search, or thathe was aware of the potential consequences of giving the consent. The consent was actually elicited through casual conversation and inno way put the passenger on notice that he was relinquishing a constitutionally protected right.

In the end, the consent was not a validone so as to supercede or extinguish the prima facie expectation of privacy. [38] Similarly, in Rutten at para 44, the court concluded: [44] It is my respectful view that the trial judge failed to consider the requirements for valid consent and the onus of proof on theCrown in this respect. The police in this case did not make even minimal efforts to ensure that the appellant was aware of hisconstitutionally protected right to refuse a search for drugs.

Application of the proper test leads to the conclusion that the consentobtained was not valid and cannot be relied upon to render lawful or reasonable the search for drugs undertaken by the police in theabsence of reasonable and probable grounds to believe that drugs were present in the truck. [39] In light of the examples in Luc and Rutten, and in the context of this evidence, I conclude there was not a validconsent to the search of Mr. Pipke’s home and vehicle. [40] Therefore, I conclude the search for, and seizure of, Mr. Pipke’s firearms on June 15, 2020 was contrary to s. 8of the Charter. 4.

Errors in the Detention Order of the Seized Firearms [41] On this part of his application, Mr. Pipke argues the required Criminal Code procedures for the retention of theseized firearms were not followed and the retention was therefore unlawful and contrary to s. 8 of the Charter. [42] Cst. Karcha testified that, after the firearms were seized from Mr. Pipke’s farm in the afternoon of June 15,2020, he returned with them to the detachment in Swift Current, took pictures of them, and then recorded their seizure in the exhibitsystem.

He also testified that he later completed a Report To A Justice [Report] in accordance with s. 489.1 of the Criminal Code.

[43] Although Cst. Karcha was cross-examined on the contents of the Report, the Report was not tendered as anexhibit in the voir dire. However, a copy of the Report is appended to Mr. Pipke’s notice of application and, during the voir dire, bothCrown and defence referred to this Report. I also note that the testimony of Cst. Karcha included specific references to the material dateswhich are set out in the Report. [44] Mr. Pipke argues two errors are manifest in the Report. First, he argues the date of the seizure of firearms isincorrect; second, he argues the procedures set out in s. 489.1 were not followed.

He therefore argues the retention of the firearms wasunlawful and contrary to s. 8 of the Charter. [45] As set out below, I conclude neither of the alleged breaches arising out of the Report establish a s. 8 violation. (

i) The Error in the Date of Seizure in the Report To A Justice [46] With respect to the first alleged error, the uncontradicted evidence of Cst. Karcha is that he made a mistake byentering the date of May 23, 2020, in the Report instead of June 15, 2020. He further explained that the reason this mistake occurred isbecause he used a previous report, dated May 23, 2020, as a template when preparing this Report. His evidence on this point was notchallenged in cross-examination; nor was any evidence called to contradict his explanation. After hearing Cst.

Karcha’s evidence, Iaccept his explanation and consider this mistake to be an inadvertent typographical error. [47] Case authorities hold that a typographical error, such as the one explained by Cst.

Karcha here, does notautomatically constitute a Charter violation: see, for example, R v Kinash (1994), (SK KB), 126 Sask R 235 (QB)(typographical error in address set out in Information to Obtain Search Warrant); R v Ramlogan, 2018 ONCJ 805 (typographical error inidentifying IP address in Information to Obtain Search Warrant). [48] In these circumstances, I conclude the inadvertent typographical error does not establish a Charter violation.There is no suggestion Mr. Pipke was somehow misled or that his defence to the charges was somehow prejudiced by this error.

Further,on the evidence, I cannot find an indication of anything approaching an ulterior motive or bad faith on the part of Cst. Karcha. As stated,I accept his evidence this was a mistake and nothing more. [49] Therefore, on this branch of Mr. Pipke’s application, I conclude no Charter violation has been established. (ii) Alleged Failure to Comply with s. 490 of the Criminal Code [50] With respect to the second alleged error, Mr. Pipke argues the requirements in the Criminal Code for thedetention of seized exhibits were not complied with.

He argues this case demonstrates a pattern of carelessness in the retention of theseized firearms by police. [51] However, aside from the assertion that the “law was not complied with”, Mr. Pipke does not specify a particularfailure to meet any of the requirements of the Criminal Code. [52] After reviewing the evidence called on the blended voir dire, I conclude the requirements of s. 490 of theCriminal Code were, in fact, met. A review of the Report shows Cst.

Karcha requested an order from the justice that the firearms beretained for the purpose of a criminal investigation; this was in compliance with s. 490(1)(

a) of the Criminal Code. Further, the Reportindicates an order was made by the justice on July 5, 2020, for the continued detention of the seized firearms. The propriety of thejustice’s order is supported by the Information sworn by Cst. Karcha on July 31, 2020. In turn, the justice’s order is in accordance with s.490(2) of the Criminal Code which permits detention of seized items where “proceedings are instituted”. [53] On my reading of the Criminal Code provisions, I can see no basis upon which it can be said the requirementswere not followed. Nor is any such basis identified or argued by Mr.

Pipke. [54] Therefore, on this basis, as well, I conclude Mr. Pipke has not established a violation of his s. 8 Charter rights. III. APPROPRIATE REMEDY [55] Having determined that a s. 8 Charter violation has been established, I turn now to a consideration of theappropriate remedy under s. 24 of the Charter. [56] Mr. Pipke seeks a stay of proceedings or, alternatively, the exclusion of evidence. [57] In these circumstances, I conclude the high threshold for a stay of proceedings has not been met. The crux ofviolation found was that police did not properly advise Mr.

Pipke of his right to refuse to consent to a search of his home and vehicle. Iobserve, however, that in these circumstances, appropriate grounds existed for the laying of charges against him. Further, appropriategrounds existed for Cst. Karcha’s belief that evidence relevant to these charges (a firearm) would be found at his home.

Because of this,appropriate grounds existed for a search. [58] In these circumstances, I do not accept that this is the “clearest of cases” or that the Charter breach in thisinstance illustrates an abuse of process which “irremediably prejudices the integrity of the justice system”: R v O'Connor, (SCC), [1995] 4 SCR 411 at paras 68 and 82.

For these reasons, I dismiss his application for a stay of proceedings. [59] However, I must also consider whether the exclusion of evidence is warranted under s. 24(2) of the Charter and,in that respect, I turn to an examination of the factors in R v Grant, 2009 SCC 32, [2009] 2 SCR 353 [Grant]. [60] The first factor I must consider is the seriousness of the violation. In these circumstances, I am unable tocharacterize the actions of Cst. Karcha as the most serious on the scale of seriousness identified in R v Shinkewski, 2012 SKCA 63 at

para 32 , [2012] 9 WWR 674 [ Shinkewski ]. I also do not consider the actions of police in this instance to be egregious. While police ought to have advised Mr. Pipke of his right to refuse them entry into his home, it is also important to recall Mr. Pipke was then subject to a condition which prohibited his possession of firearms. As Cst. Karcha testified, it was in Mr. Pipke’s interest to have the firearms removed from his home in order to avoid a breach of his release condition. While Mr.

Pipke might have been able to make other arrangements to have the firearms removed from his home, there is no evidence this option was raised by him. That said, I also acknowledge this option was also not raised or explored by police. [ 61 ] I also consider that the evidence seized on this occasion was physical evidence which existed in any event of the breach. It was not conscripted. But for the existence of the release condition which prevented Mr.

Pipke from being in possession of firearms, I might have considered this violation to be in the middle, or the more serious side, of the spectrum of seriousness. [ 62 ] However, in these circumstances, the interactions between police and Mr. Pipke appeared generally respectful and positive. For example, I observed that, during the warned video statement, Cst. Karcha respected Mr. Pipke’s wish to not be questioned about the specifics of what occurred between him and the complainant at the material time. He did not press Mr. Pipke, as he might have been entitled to, for further information.

Further, there was evidence that police drove Mr. Pipke to the bank – at his request – after his release. On the basis of all the evidence, I do not conclude that this Charter violation was part of an overall pattern of disregard for Mr. Pipke’s rights. [ 63 ] In light of the overall circumstances, I consider the Charter breach was inadvertent and I conclude the overall seriousness of this violation to be on the less serious side of the spectrum. [ 64 ] The second factor I must consider is the effect of this breach on Mr. Pipke’s Charter protected interests.

In this respect, I am again guided by Shinkewski at para 33 : [33] … R. v. Grant directs the trial courts to focus the second line of inquiry on the seriousness of the impact of the Charter breach by evaluating the extent to which the breach actually undermined the interests protected by the right infringed. In this sense, the court must determine the impact of a breach and then measure it against yet another spectrum of severity, which ranges from “fleeting and technical” to “profoundly intrusive”. The concern here is with the message sent to the general public by the admission or exclusion of the evidence.

The more serious the impact, the greater the risk admission of the evidence obtained through a breach will bring the administration of justice into disrepute. This is because admission of evidence in the face of a profoundly intrusive violation would serve to engender public cynicism in the workaday value of Charter rights. On the other hand, the less serious the impact, the greater the risk exclusion of the evidence obtained through a breach will bring the administration of justice into disrepute.

This is because the exclusion of evidence in the face of a fleeting and technical violation is more likely to be seen as symptom of systemic impotency which would breed public contempt for the criminal justice system. [ 65 ] Here, I conclude the effect was closer to the side of “fleeting and technical” than to the side of “profoundly intrusive”. To be sure, a violation of Mr. Pipke’s privacy interests in his home must be considered serious; however, it is not considered in the same way as breaches of privacy interests in his bodily integrity or dignity.

As well, it is noteworthy that the evidence seized could have been obtained without the Charter breach. As pointed out above, appropriate grounds existed in these circumstances for a warrant to search his home and vehicle for firearms. [ 66 ] The third factor I must consider is the societal interest in the adjudication of this case on its merits. Here, the court must consider the reliability of the evidence and its importance to the Crown’s case. Shinkewski provides guidance on this factor at paras. 36 and 38: [36] The third arm of the analysis mandated by R. v.

Grant calls for the trial judge to ascertain society’s interest in the adjudication of the case on its merits. It calls for a court to consider factors such as the reliability of the evidence and its importance to the Crown’s case when balancing the interests of truth-seeking against the integrity of the justice system… [ 67 ] Shinkewski also gives important guidance on the exercise of balancing the Grant factors. Importantly, the court highlights the contextual and fact-specific nature of the balancing exercise, at para. 38: [38] This does not end the analysis.

After pursuing the three lines of inquiry set out in R. v. Grant , the court must balance its conclusions and determine whether to exclude the evidence. As the Court noted in R. v. Harrison [ 2009 SCC 34 , [2009] 2 S.C.R. 494 ], the balancing act required by s. 24(2) is qualitative and not capable of mathematical precision. A court cannot simply tally up the checkmarks to see whether the majority of the relevant factors favour exclusion or admission.

The court must weigh the evidence from each line of inquiry to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. In the end, dissociation of the justice system from state misconduct will not always trump the truth-seeking interests of the criminal justice system; but, rather, the Court must assess the long-term repute of the administration of justice ( R. v.

Harrison , at para. 36 ). [Emphasis added] [ 68 ] With the guidance of Shinkewski in mind, I conclude a balancing of the Grant factors weighs decisively on the side of admitting the evidence. [ 69 ] The evidence of the seized firearms is inherently reliable real evidence. It is also important to the Crown case; while I cannot say it is critical to the Crown case, I recognize its potential importance in supporting the anticipated evidence of the complainant.

Moreover, as pointed out by Shinkewski at para 37 : “…the evidence cannot be said to operate unfairly having regard to the truth-seeking function of a trial; it is what it is.” [ 70 ] Further, the charges against Mr. Pipke are serious. The alleged use of a firearm in the commission of an offence receives special attention from Parliament in such matters as bail and sentencing, and generally increases society’s interest in adjudicating this case upon its merits. This interest is also heightened by the fact that one of the charges alleges an intention to provoke fear in a

justice system participant. [ 71 ] When balancing the Grant factors, a trial judge is required to consider the broad impact of admission of the evidence on the long-term repute of the justice system: R v Le , 2019 SCC 34 , [2019] 2 SCR 692 at para 140 ; Grant at paras 69-70 . Here, after balancing the Grant factors in these circumstances, I conclude society’s interest in adjudicating this matter on its merits outweighs the relatively low seriousness of the violation and the relatively low impact of the breach upon Mr. Pipke’s Charter interests.

I conclude the administration of justice would not be brought into disrepute by the admission of the evidence seized from his farm on June 15, 2020. [ 72 ] I therefore dismiss Mr. Pipke’s application for exclusion of evidence pursuant to s. 24(2) of the Charter . IV.

SUMMARY OF ORDERS [ 73 ] After hearing the evidence on the blended voir dire , and after considering the written and oral submissions of counsel, I make the following orders: (

a) the warned video statement provided by Mr. Pipke to the investigating officer on June 15, 2020 at the RCMP detachment is voluntary and admissible; (

b) Mr. Pipke has established a breach of his rights under s. 8 of the Charter by reason of the police failure to comply with all requirements of a consent search; and (

c) Mr. Pipke’s applications for a stay of proceedings under s. 24(1) of the Charter and his application for the exclusion of evidence under s. 24(2) are dismissed. J. M.D. TOCHOR