Docket: CACR1934 Her Majesty the Queen Appellant - v. -, 2012 SKCA 50

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 50 Date: 20120502 Between: Docket: CACR1934 Her Majesty the Queen Appellant - and - Gerard Stephane Joseph Turpin Respondent Coram: Richards, Smith and Ottenbreit JJ.A. Counsel: Douglas G. Curliss, Q.C. for the Appellant James Sutherland for the Respondent Appeal:

From: 2010 SKQB 444 Heard: April 4, 2012 Disposition: Appeal dismissed Written Reasons: May 2, 2012 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Madam Justice Smith The Honourable Mr. Justice Ottenbreit Richards J.A. I. Introduction [ 1 ] Gerard Turpin was driving his motor home on the Trans-Canada Highway. A police traffic stop led to his arrest for possession of stolen property and then to a vehicle search. The search yielded a significant quantity of illegal drugs. Mr.

Turpin was charged with possession of cocaine and marijuana for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (the “ CDSA ”). [ 2 ] The trial judge concluded the search had been unlawful. He found the police had used an avowed concern about whether the motor home was stolen as a pretext for arresting Mr. Turpin and conducting a drug investigation. The trial judge decided Mr. Turpin’s Charter rights had been breached and, as a consequence, he excluded the evidence of the drugs pursuant to his authority under s. 24(2) of the Charter . In the result, Mr.

Turpin was acquitted. The Crown appeals. [ 3 ] As explained below, I conclude that this appeal must be dismissed. The trial judge’s decision turned on his assessment of the credibility of Constable Wilson, the RCMP officer centrally involved in Mr. Turpin’s arrest and the search of his motor home. The standard of review in relation to findings of credibility is deferential and the Crown has not established a basis for overturning the trial judge’s conclusions in this regard.

Similarly, the trial judge’s decision to exclude the drugs from evidence also attracts a deferential standard of review which, in the circumstances at play here, precludes intervention by this Court. II. Factual Background [ 4 ] The relevant evidence was set out in some detail by the trial judge in his reasons for decision. See: 2010 SKQB 444 . The following account of the facts borrows significantly from his work. [ 5 ] On the afternoon of June 13, 2007, Mr. Turpin was driving his older-model motor home in an easterly direction on the Trans- Canada Highway near Caronport, Saskatchewan.

It was a windy day. [ 6 ] Constable Ian Warner, a member of a “roving traffic unit” of RCMP officers, was on patrol with his drug dog Nugget. He saw the motor home weave from the center line of the highway over the fog line on the right-hand side of the driving lane approximately six times. It did not cross the center line and was not speeding. Constable Warner testified that he was concerned the driver might have been drinking and engaged his emergency lights to signal Mr. Turpin to pull over. The motor home decelerated at an appropriate pace and stopped in an appropriate place on the shoulder of the road.

It was then 2:13 p.m. [ 7 ] Constable Warner pulled his police car in behind the motor home and stopped. Before approaching Mr. Turpin, he made an inquiry on CPIC, an electronic database, concerning the British Columbia license plate on the motor home. The inquiry confirmed that the vehicle (or at least a vehicle bearing that plate number) had not been reported as stolen. [ 8 ] Constable Warner then approached the motor home and informed Mr. Turpin that he had been stopped because his vehicle had been weaving. He expressed concern that Mr. Turpin might have been drinking. Mr.

Turpin replied that he had not been drinking and said there was no alcohol in the motor home.

[ 9 ] Constable Warner observed that Mr. Turpin was wearing sunglasses and smoking a freshly lit cigarette. He testified that, in his experience, impaired drivers often light a fresh cigarette in an attempt to mask the odour of alcohol coming from them or from inside of their vehicles. Nonetheless, he did not ask Mr. Turpin to remove his sunglasses or to put out the cigarette. [ 10 ] Constable Warner asked Mr. Turpin to produce his driver’s licence and registration. This was done without difficulty and Constable Warner did not note any indicia of impairment. He did not ask Mr.

Turpin to step out of the motor home so that he could observe his coordination and balance. Nor did he administer any sobriety tests. In his testimony, Constable Warner agreed that he had taken this course of action because he was satisfied there was no basis for suspecting Mr. Turpin was impaired. [ 11 ] Constable Warner also testified that Mr. Turpin was unusually nervous. He based this conclusion on observations that Mr.

Turpin’s hand was trembling as he handed over his licence and registration documents, that he made little or no eye contact, that he looked straight forward and that he spoke in short one or two word answers. He stated that Mr. Turpin’s nervousness was “beyond the typical” observed in highway stops and was “more typical” of cases where he had found a motorist transporting drugs. [ 12 ] After being given the driver’s licence and vehicle registration documents, Constable Warner returned to his police car. Mr. Turpin remained in the motor home.

Constable Warner observed that the documents indicated the motor home was a 1986 model Empress by Triple E on a GMC chassis. They also indicated that it was owned by Mr. Turpin. There was nothing about the vehicle registration which aroused any suspicion. [ 13 ] Constable Warner then used a mobile workstation in his vehicle to conduct a CPIC check on Mr. Turpin by name.

He noted entries for a “take auto without consent” conviction some 22 years earlier and assault and assault a police officer convictions in 1988. [ 14 ] Three minutes after Constable Warner had returned to his police car with the driver’s licence and registration, Constable Darcy Wilson, another member of the roving traffic unit, arrived on the scene. He parked his police vehicle on the road behind Constable Warner and activated its emergency lights. [ 15 ] The two police officers had a brief conversation during which Constable Warner recalled telling Constable Wilson that Mr.

Turpin had a previous conviction for auto theft (not “take auto without consent”) and that he appeared to be nervous. For his part, Constable Wilson testified that Constable Warner had said more and, in particular, had told him that he had not detected any signs of gross impairment in Mr. Turpin, that he had smelled cigarette smoke but no alcohol and that he had not confirmed the registration documents against the vehicle identification number (“VIN number”). [ 16 ] Constable Wilson acknowledged that he never looked at the licence and registration documents which had been produced by Mr.

Turpin, or at the computer screen in Constable Warner’s car. Nonetheless, his evidence was that he decided to “take over the secondary phase which is re-approach the vehicle and confirm the identity of it.” Constable Warner’s evidence was somewhat different. He testified that Constable Wilson decided to check Mr. Turpin for signs of impairment or the smell of alcohol to assess his level of sobriety.

As well, Constable Warner said that it was Constable Wilson who “sort of made the connection for possible stolen vehicle.” [ 17 ] Constable Wilson testified that, as he approached the motor home, he detected a strong odour of “Bounce,” a fabric softener, coming from its interior. He saw this as an attempt by Mr. Turpin to mask the smell of alcohol or drugs. Constable Wilson also expressed the opinion that Mr. Turpin was unusually nervous. He said Mr. Turpin was breathing rapidly and that his carotid artery was “pulsating.” However, he acknowledged in cross-examination that he did not know Mr.

Turpin’s baseline respiratory rate and that he could not actually see his carotid artery. What he had seen was a “fluttering on the side of the neck” which he assumed was caused by “the moving of the blood.” [ 18 ] Constable Wilson testified that he asked Mr. Turpin if he was on any medication and when he had last used liquor or narcotics. Mr. Turpin replied that he had used liquor the previous week and narcotics a long time ago. Constable Wilson said Mr. Turpin became more nervous at the point when he was asked about narcotics use. [ 19 ] Constable Wilson then asked Mr. Turpin how long he had been driving. Mr.

Turpin replied that he was going to stop at the next city. Constable Wilson said that he thought this answer was suspicious. When the question was asked again, Mr. Turpin said he had been driving for 12 hours. He then volunteered that he was travelling from Vancouver to Thunder Bay to visit his sister for a couple of weeks.

[ 20 ] Constable Wilson testified that, in his experience, Vancouver was a source of illegal drugs and Thunder Bay was a destination point for such contraband. He also testified that driving for long hours was consistent with the activities of a drug courier and that he believed it was possible Mr. Turpin had volunteered the story about his sister in an attempt to legitimize a trip which would have otherwise seemed suspicious. That said, he acknowledged that he knew nothing about Mr.

Turpin’s personal circumstances, his sister or his overall travel or holiday plans and that he did not ask about them. [ 21 ] Constable Wilson asked Mr. Turpin if he had any more documents pertaining to the vehicle. Mr. Turpin opened his wallet at this point and showed it to Constable Wilson saying, “No, I gave the other documents to the other officer.” Constable Wilson attached some significance to the fact that, inside the wallet, there were a number of $20 bills which, in his estimation, totalled about $2,000.

He stated that he found it odd for a person to be carrying so much cash. [ 22 ] Constable Wilson then pursued what he described as an investigation into the “true identity” of the motor home. He looked at the VIN number on the plate located on the dashboard of the vehicle. He testified that the plate appeared to be relatively old but that the rivets securing it to the dashboard were shiny and that the area surrounding it was clean.

He stated that, in his experience and training, this could mean that the VIN number plate had been tampered with or changed. [ 23 ] Constable Wilson testified that he then decided to compare the VIN number on the dashboard plate to the VIN number found on the federal safety certification label on the doorpost of the motor home. The doorpost label contained two numbers. The first, found under the heading “VIN,” was different from the number on the dashboard plate. The second number, found on the same label but under the heading “INC. VEH.

VIN.,” was identical to the VIN number on the dashboard plate. [ 24 ] Constable Wilson testified that he misread the doorpost label and did not see the “INC. VEH. VIN.” number. Therefore, he did not recognize that it matched the VIN number on the dashboard plate. [ 25 ] Constable Wilson said that, having misread the label and because of Mr. Turpin’s “nervousness and previous record,” he decided to arrest Mr. Turpin for possession of stolen property. At this point, he had spent one or two minutes with Mr.

Turpin. [ 26 ] On cross-examination, Constable Wilson explained his error as being the result of “inexperience and being in a rush.” He acknowledged that there was no reason for him to have been in a rush, that he was experienced in investigations of this kind and that he had recently completed a course relating to the investigation of stolen motor vehicles. [ 27 ] Constable Wilson went back to Constable Warner’s police car. The two officers had a brief conversation and then returned to the motor home and instructed Mr. Turpin to exit the vehicle.

He was placed under arrest for “possession of stolen property and VIN tampering.” (“VIN tampering” is not an offence known to either the Criminal Code or any statute of Saskatchewan.) Mr. Turpin was advised of his rights to counsel and given police warnings. He stated that he did not wish to contact a lawyer and was placed in the back of Constable Warner’s police car. All of the events to that point had transpired within nine minutes of the initial stop. [ 28 ] It was not until 23 minutes after the initial stop that either Constable Warner or Constable Wilson queried a VIN number on the police computer database.

This occurred at 2:36 p.m. when Constable Warner used his cell phone to call the Regina Communications Centre. The only number mentioned was the number on the dash plate of the motor home. The Communications Centre advised that it would query the license plate and VIN number through the British Columbia License Bureau. [ 29 ] Constable Warner received a response to his VIN number inquiry approximately five minutes later.

He was informed that the motor vehicle had been issued three license plates in the past one and one-half years. (This turned out to be erroneous information in that one plate and two temporary operating permits had been issued.) [ 30 ] Constable Wilson testified that, while Constable Warner was in his patrol car seeking additional information, he had pursued his possession of stolen property investigation by searching the motor home.

He said that he was looking for additional labels, paint colour changes or information that might confirm the true owner and true identity of the vehicle. [ 31 ] Constable Wilson looked under the dash, in the glove compartment, under carpets and in the cupboards. He also checked the VIN

number on the engine block and noted that it was different than the VIN number on the registration. He then asked Mr. Turpin if the engine had been replaced and Mr. Turpin confirmed that this had been done when he had purchased the vehicle one and one-half years earlier. A certificate containing a VIN number for the motor home was also located in a closet.

This examination of the vehicle took an estimated 35 minutes. [ 32 ] In addition to the activities described above, the search of the motor home also involved Constable Wilson opening exterior storage compartments and “trying to find anything that would assist in identifying the true identity of the vehicle.” During the course of the search, Constable Wilson made observations which, according to his testimony, caused him to suspect that “this person was hauling contraband.” Most significantly, he observed fresh black caulking around various external panels of the motor home, non- manufacturer’s wood screws holding the panels together and a panel that looked as if it had been pried back and replaced and secured with caulking.

He also said there was a strong odour of Bounce in the motor home. [ 33 ] Approximately 30 to 35 minutes after Mr. Turpin had been taken into custody and placed in the back of Constable Warner’s police car, Constable Sperlie and his drug dog Levi joined the other police officers. At this point, Constable Wilson informed Mr. Turpin that he was being detained for investigation into suspected transportation of narcotics.

Constable Wilson then instructed Constable Warner to have Nugget search the motor home. [ 34 ] Approximately five minutes later, Nugget showed a positive reaction at a vent near the right rear of the motor home. According to Constable Wilson, that caused him to move from “reasonable suspicion for detention” to “reasonable and probable grounds for arrest.” He then placed Mr. Turpin under arrest for transportation of narcotics and gave him his Charter warnings again. Mr.

Turpin said he did not want to speak with counsel. [ 35 ] At this point, Constable Trent Sperlie joined the other officers in their search of the interior of the motor home. Corporal Kenneth McLaughlin arrived on the scene at 4:00 p.m. The officers discovered various compartments which were ultimately found to contain some 45 kilograms of cocaine worth between $1.1 million and $2.5 million dollars and 262 pounds of marijuana worth between $470,000 and $733,000. [ 36 ] At 4:38 p.m., Mr.

Turpin was “re-arrested” by Corporal McLaughlin for “possession for the purpose of trafficking,” given a Charter warning and advised of his right to counsel. Mr. Turpin said that he wished to speak to a lawyer. He was asked no further questions from that point on and was returned to Moose Jaw where, within about an hour of his arrest, he was able to speak to counsel. [ 37 ] Later, while the motor home was being searched in Moose Jaw, one of the officers assisting in that operation pointed out to Constable Wilson that the VIN number on the dashboard plate of the motor home and the INC. VEH.

VIN. number on the door label were the same. III. The Trial Decision [ 38 ] As noted, Mr. Turpin was charged with possession of cocaine and marijuana for the purpose of trafficking. At trial, he applied for an order excluding the evidence of the drugs found in the motor home on the basis that there had been a violation of his rights under the Canadian Charter of Rights and Freedoms as guaranteed by ss. 8 (unreasonable search and seizure), 9 (arbitrary arrest or detention) and 10 (retain and instruct counsel).

A voir dire was held to assess the merits of his arguments and to determine the admissibility of the evidence. [ 39 ] In the course of his ruling on the voir dire , the trial judge made a number of negative findings about the credibility of Constable Wilson. Most significantly, he concluded that Constable Wilson had not had a reasonable suspicion the motor home was stolen when he arrested Mr. Turpin. Rather, the trial judge found that the arrest had been a pretext to justify searching the vehicle for drugs. In the end, the trial judge concluded there had been violations of both ss. 8 and 9 of the Charter .

He also decided the police had held Mr. Turpin for too long before giving him an opportunity to contact a lawyer and had thereby violated s. 10(

b) of the Charter . [ 40 ] Turning his attention to s. 24(2) of the Charter and the question of whether the drugs should be excluded from evidence, the trial judge worked through each of the considerations mandated by the Supreme Court of Canada’s decision in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353. He then balanced those factors and considered whether, in all of the circumstances, admitting the drugs into evidence would bring the administration of justice into disrepute. Relying significantly on the Supreme Court of Canada’s decision in R. v.

Harrison , 2009 SCC 34 , [2009] 2 S.C.R. 494, the trial judge concluded the evidence should be excluded. As a result, Mr. Turpin was acquitted.

IV. Analysis [ 41 ] The Crown submits that the trial judge erred in deciding as he did. In this regard, it advances a series of alternative arguments aimed at showing there was no violation of Mr. Turpin’s Charter rights. As well, it says that, even if Mr. Turpin’s rights were violated, the evidence of the drugs should not have been excluded. [ 42 ] The Crown’s principal submissions concern s. 9 of the Charter and the question of whether Mr. Turpin was lawfully arrested or detained. Its arguments can be summarized as follows: (

a) Mr. Turpin was lawfully arrested for possession of stolen property; (

b) If Mr. Turpin was not lawfully arrested, he was nonetheless lawfully detained in relation to a suspicion that he was in possession of stolen property; and (

c) If Mr. Turpin was not lawfully arrested or detained with respect to possession of stolen property, he was lawfully detained for highway traffic purposes. [ 43 ] Next, with respect to s. 8 of the Charter , the Crown advances these main points: (

a) The search of the motor home was lawful because it was incidental to Mr. Turpin’s arrest; (

b) If Mr. Turpin’s arrest was not valid, the search of the motor home was nonetheless lawful because it was incidental to a lawful investigative detention; and (

c) Regardless of whether the police had a right to search the motor home pursuant to Mr. Turpin’s arrest or detention, they were entitled (pursuant to their highway traffic authority) to conduct checks for VIN numbers by searching his vehicle. [ 44 ] As for s. 10(

b) of the Charter , the Crown says the trial judge erred because he misunderstood the evidence in relation to when Mr. Turpin asked to speak with counsel and, therefore, erred in his findings about how long Mr. Turpin had to wait before being able to get legal advice. [ 45 ] Finally, dealing with s. 24(2) of the Charter , the Crown argues that: (

a) If there were Charter violations, they were not serious; (

b) Any impact of Charter infringing conduct on Mr. Turpin’s rights was minimal; and (

c) Society’s interests weighed in favour of admitting the evidence. Overall, the Crown submits that a proper balancing of the Grant factors should have led the trial judge to admit the drugs into evidence. [ 46 ] I propose to work through each of these arguments in the order they are recounted above. First, however, it might be useful to comment more generally on an issue relating to the RCMP’s use of a “roving traffic unit” in this case. The Crown says the trial judge wrongly saw the decision to deploy the traffic unit as being somehow suspicious or improper. It suggests this perspective distorted his view of the legal issues at play in this case.

[47] The traffic unit in question comprised Constable Wilson (a seven-year RCMP member stationed in Rosetown), Constable Sperlie (anine-year member stationed in Maidstone), Corporal McLaughlin (an 18-year member stationed in Moose Jaw), Constable Warner (aseven or eight-year member stationed in North Battleford) and Constable Danny Donison (stationed in Moose Jaw). They had beenbrought together for some days in June of 2007 and instructed to patrol the Trans-Canada Highway. [48] All of these individuals were experienced in stops resulting in the recovery of illegal drugs.

In addition, Constable Warner was thehandler of Nugget, one of only two single profile drug sniffer dogs (dogs trained exclusively to locate the odour of drugs) in theprovince. He had also attended the Pipeline Convoy Course, a police program designed to enhance the skills of police officers so as tomake them better able to detect “travelling” criminals. Constable Sperlie was the handler of Levi, the other single profile sniffer dog inSaskatchewan. For his part, Constable Wilson had attended several courses concerning the detection of drug trafficking activity.

Theseincluded the Pipeline Convoy Course, the Pipeline Convoy Instructors’ Course and some advanced courses as well. CorporalMcLaughlin had also attended the Pipeline Convoy Course and had instructed at it. [49] The trial judge recited most of this background in his decision and, as indicated, the Crown suggests that he improperly sawsomething wrong or nefarious in the RCMP’s decision to deploy a traffic unit composed of personnel with these sorts of backgrounds.

Itsuggests that this led the trial judge to improperly characterize the nature of the agenda being pursued by Constable Wilson and hiscolleagues. [50] In considering this concern, it is important to confirm at the outset that, in and of itself, there is nothing improper or untoward aboutthe police deploying traffic officers or units with specialized training, equipment or expertise, including training, equipment or expertiserelating to the detection of drug crimes.

The law does not require police officers involved in traffic work to be blind to the possibilitythat motorists might be involved in a variety of illegal or criminal activities. The Supreme Court made this very clear in R. v. Nolet, 2010SCC 24, [2010] 1 S.C.R. 851: [37] It is to be expected that RCMP officers patrolling the Trans-Canada Highway are interested in any number of potential infractionsincluding criminal offences as well as provincial matters. It could hardly be otherwise.

However, as pointed out by Martin J.A., "[t]helawful search was not converted into an unlawful or an unreasonable search because the officers, in addition, had the expectation that thesearch might also uncover drugs": R. v. Annett (1984), (SCC), 17 C.C.C. (3d) 332 (Ont. C.A.), at p. 335, leave toappeal refused, [1985] 1 S.C.R. v. [51] However, this is not to say that the make-up of a traffic unit of the sort involved in this case must be wholly disregarded in a judge’sfact-finding in relation to the reason for a traffic stop or the bona fides of police actions.

A trial judge attempting to ascertain whether anarrest was a pretext for conducting a drug search is surely entitled to consider, as one part of the full matrix of relevant facts, that thepolice officer who made the arrest was a member of a traffic unit comprising (among other things) the only two single profile drug dogsin the province. That is no more than common sense. [52] The point to remember, however, is that the use of a specialized traffic unit is not itself objectionable. The Charter protects againstarbitrary detentions and unreasonable searches.

So long as these limits on their authority are respected, the Charter does not prevent thepolice from using specialized or specifically-trained traffic units. Nor should it. The public quite properly expects law enforcementpersonnel to use the most effective techniques possible when combating crime. [53] I do not read the trial judge’s decision as revealing a sense that the RCMP’s use of a roving traffic unit in this case was, in itself,somehow improper.

The make-up of the unit and the training of its members was merely one of the multiple background considerationscomprising the context in which the trial judge assessed Constable Wilson’s credibility. In my view, he was entitled to take thesematters into account for that purpose. [54] With this point resolved, it is now appropriate to turn to the specific arguments advanced by the Crown. A.

Section 9 of the Charter – Arbitrary Arrest or Detention [55] Quite understandably, the Crown’s first line of attack is in relation to the question of whether the trial judge erred in finding thatMr. Turpin’s rights under s. 9 of the Charter had been violated. This is a first-order question and it drives this appeal.

[56]

Section 9, of course, provides as follows: 9. Everyone has the right not to be arbitrarily detained or imprisoned. 1. Was the Arrest Lawful? [57] In order for an arrest to be lawful, two conditions must be met. First, the arresting officer must believe he or she has reasonable andprobable grounds on which to base the arrest. Second, those grounds must be reasonable and probable when viewed objectively. TheSupreme Court of Canada explained the governing principles in R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241, at pp. 250-51: …[A]n arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, inaddition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must beable to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need notdemonstrate anything more than reasonable and probable grounds.

Specifically they are not required to establish a prima facie case forconviction before making the arrest. [58] After reviewing the evidence, the trial judge in this case made a number of findings about Constable Wilson which effectivelydetermined the s. 9 issue. Specifically, the trial judge found that the true purpose of Mr. Turpin’s arrest was to facilitate a drug search. He wrote as follows: [59] My review of the evidence satisfies me that the members of the roving traffic unit on duty that day in the Caronport area - that is,Cst. Ian Warner, Cst. Darcy Wilson and Cst.

Trent Sperlie - were there to search motor vehicles suspected of transporting drugs on theTransCanada highway. It also satisfies me that neither Cst. Wilson nor any of the other police officers had a reasonable suspicion that themotor home being driven by the accused was stolen much less that it was carrying drugs.

Finally, it satisfies me that the real purpose ofthe detention and arrest of the accused for "possession of stolen property and VIN tampering" was to search the vehicle for drugs. [emphasis added] [59] The Crown begins its submissions on the s. 9 issue by contending that the trial judge should be taken as having found there were noobjectively justifiable grounds for Mr. Turpin’s arrest. Counsel points, in particular, to para. 59 of the trial judge’s decision where, asnoted above, he said, “[N]either Cst.

Wilson nor any of the other police officers had a reasonable suspicion that the motor home beingdriven by the accused was stolen much less that it was carrying drugs.” It is submitted that this finding only makes sense if it isconcerned with objective grounds for the arrest, i.e. it was Constable Wilson who made the arrest and any assessment of subjectivelyheld grounds would necessarily relate only to his state of mind.

In other words, there would be no reason for the trial judge to havementioned “the other police officers” in para. 59 if he was dealing with the issue of subjective belief. [60] This is not a convincing argument. The trial judge could perhaps have used somewhat more precise language in para. 59 but,considering his judgment as a whole, there is no doubt that he concluded Constable Wilson did not subjectively have reasonable andprobable grounds for the arrest. This is made particularly clear in para. 61 where the judge said: [61] Virtually all of the other observations made by Cst.

Wilson had little if anything to do with the possibility the vehicle was stolen.Rather, they related to what he believed could be "indicators" the vehicle was carrying contraband.

All of this supports an inference thatthe detention and arrest of the accused for possession of stolen property was a pretext to justify a search of the vehicle for illegal drugs.In conducting that search police officers were acting on no more than a hunch based on intuition. [emphasis added] [61] To the same effect, in para. 80, the judge concluded that Constable Wilson’s inability to compare VIN numbers was either “theresult of wilful blindness” or “at least flagrantly negligent”: [80] I have already found that Cst.

Wilson, who made the decision to arrest the accused, did not have reasonable and probable groundsto believe the motor home was stolen. He had not carried out even a cursory investigation into the possibility that it might have beenstolen. His inability to compare the two clearly matching vehicle identification numbers, if not the result of wilful blindness, was at leastflagrantly negligent.

But for that, he would not have arrested the accused because he had no grounds to do so. [emphasis added] [62] Accordingly, I do not accept that the trial judge did no more than decide whether, from an objective point of view, there werereasonable and probable grounds for Mr. Turpin’s arrest.

[ 63 ] But this is not the Crown’s central argument in relation to Mr. Turpin’s arrest. Its real point is that the trial judge made errors in fact-finding which negatively influenced his assessment of Constable Wilson’s credibility and, as a result, tainted his conclusions about Constable Wilson’s subjective beliefs at the time he arrested Mr. Turpin. [ 64 ] Before turning to some of the particulars of the Crown’s submissions on this point, it is important to underline that this Court cannot lightly interfere with the trial judge’s assessment of Constable Wilson’s credibility.

A considerable measure of deference is owed to a trial judge’s findings in this regard. As the Supreme Court of Canada said in R. v. Gagnon , 2006 SCC 17 , [2006] 1 S.C.R. 621: 20 Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [emphasis added] See also: R. v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3 at para. 48 . [ 65 ] That said, I turn now to the five key errors said to have been made by the trial judge in his fact-finding. [ 66 ] First, the Crown stresses the trial judge’s comments about the photographs of the VIN plate on the dash of the motor home.

Constable Wilson testified that the plate itself had appeared to be relatively old but that the rivets securing it to the dash were shiny and the area surrounding the plate was clean. This, according to Constable Wilson, suggested the plate had been replaced and thus raised questions about whether the motor home had been stolen.

At para. 29 of his decision, the trial judge recounted Constable Wilson’s description of the VIN plate and then said, “Those observations were not discernable from a police photograph of the dash plate.” [ 67 ] As the Crown points out, more than one photograph of the dash plate had been put into evidence. The first photograph was Exhibit P-14, photograph AC 03. It was taken by Adrian Cullins, a seasoned RCMP identification expert, shortly after the motor home had been seized and towed to Moose Jaw.

It does not show the rivets as being shiny or, for that matter, reveal that the VIN plate looks older than the rivets. Nor does it show or suggest that the area around the plate was clean. This presumably is the photograph referred to by the trial judge. But as indicated, there were other pictures. Photographs 7, 8, 9 and 10 of Exhibit P-31 were taken by Constable Wilson on the roadside shortly after Mr. Turpin’s arrest. In them, the rivets are shiny.

However, each of the photographs contains white glare, and in some cases considerable white glare, which appears to have been caused by reflections from the flash feature of the camera.

Although there was no testimony one way or the other on the point, it seems that the shininess of the rivets in these photographs might be nothing more than a reflection from the flash. (No glare from a flash is present in Exhibit P-14, photograph AC 03.) I note as well that photograph 9, the only one of the photographs in the Exhibit P-31 series to clearly show the dash surfaces at the edges of the VIN plate, reveals an accumulation of dirt and dust similar to what one might expect to see if the plate had been in place for some time. [ 68 ] It would have been helpful for the trial judge to have commented directly on the Exhibit P-31 photographs.

However, considering both P-31 and P-14, I am unable to say he made a palpable and overriding error in concluding that the photographic evidence did not confirm Constable Wilson’s testimony to the effect the rivets were shiny and the area around the VIN plate was clean.

On the whole of the material before him, the trial judge’s conclusion was one he was entitled to reach and, as a result, is not one which this Court can displace. [ 69 ] Second, the Crown takes exception to comments made by the trial judge in relation to Constable Wilson’s testimony about a “laundry room smell” which the Constable believed to be “Bounce,” a laundry product. On this issue, Constable Wilson testified that he had smelled Bounce when he first approached Mr. Turpin’s motor home and that he had encountered a strong odour of it when searching the vehicle.

By way of contrast, Constable Warner had not encountered such a smell when he first talked to Mr. Turpin after stopping him. Constable Sperlie and Corporal McLaughlin, who were later involved in searching the vehicle, had not detected the smell either. (Constable Warner did testify that, when he was searching the motor home after Mr. Turpin’s arrest, he had smelled a product of this sort.) Against this background, and during the course of his testimony at trial, Constable Wilson produced an aerosol container of Febreze air freshener.

He said he had found it the previous day in the impounded motor home. [ 70 ] At trial, the question of when or if Constable Wilson had smelled Bounce became something of an issue. The Crown suggested that Mr. Turpin had sprayed Bounce or some similar product into the air between the time he had spoken with Constable Warner and the time he spoke with Constable Wilson shortly thereafter. This was said to have explained why the laundry smell had been detected by Constable Wilson but not by Constable Warner.

[ 71 ] The trial judge concluded that, in light of all of the relevant evidence, it was “improbable” that Constable Wilson had detected a scent while standing outside of the motor home, “improbable” that Mr. Turpin had sprayed something inside the motor home and “unlikely” that the aerosol can of Febreze had been in the motor home when it had been searched at the roadside. He explained his reasoning as follows: [65] First, the can of Febreze was brought into the courtroom and sprayed by a police witness. It did not have a strong odour.

June 13, 2007 was a windy day, making it unlikely that a relatively benign scent from inside the vehicle could have been detected as a "strong odour" on the highway outside the vehicle. [66] Second, both Cst. Sperlie and Cpl. McLaughlin testified that they did not detect any odour that could have been a masking agent as they searched the interior of the motor home. As well, none of the police officers detected any odour of drugs to be masked. [67] Third, and most significantly, the vehicle was thoroughly searched after the drugs it was carrying were detected. All of the evidence was carefully catalogued.

All of the items found in the motor home, including the accused's personal possessions and food, were removed from the motor home and placed in bags and boxes. There was no record of any "Bounce", "Febreze", Tide or similar product in any of the various police reports. Given Cst.

Wilson's assertions about the importance of a potential masking odour like "Bounce", it is difficult to imagine that each and every one of the highly trained police officers would have overlooked the presence of a product of that kind during their search. [ 72 ] The Crown takes issue with the trial judge’s reasoning and assessment of the evidence on this point.

It advances a variety of arguments involving the strength of the wind, the times at which the smell was encountered and so forth, all to the effect that the trial judge failed to understand the full implications of the evidence and/or failed to weigh it properly. I find it unnecessary to work through all of the significant factual detail involved in these arguments because, even if the Crown’s submissions on the point have some merit, nothing comes of them. By Constable Wilson’s own admission, the smell of a laundry room-type odour, or any other odour, had nothing to do with his decision to arrest Mr.

Turpin for being in possession of stolen property. Smells were irrelevant to the question of whether he believed the motor home had been stolen. [ 73 ] The third main fact-finding error said to have been committed by the trial judge relates to the

interpretation of the conduct of the police immediately following Mr. Turpin’s arrest. On this point, the Crown says the police were, in fact, looking for VIN numbers in the motor home during the course of their search. I see little strength in this argument. Constable Wilson did testify that he looked for VIN numbers under the hood of the vehicle, under the dash and in cupboards and compartments. Nonetheless, it was not unreasonable for the trial judge to take a different view of the situation.

He made a clear finding that the VIN-related arrest was a pretext for a drug search and, in cross-examination, Constable Wilson acknowledged that drug couriers store contraband in all of the places he had looked: the engine compartment, under the dash and in cupboards and in other interior compartments. As a result, even though the police search did yield additional VIN information, this was not inconsistent with the trial judge’s finding that the search was, in fact, a search for drugs. [ 74 ] The fourth fact-finding error pointed to by the Crown concerns the VIN number on the engine block of Mr.

Turpin’s vehicle. At para. 37 of his decision, the trial judge recounted that, after finding a VIN number on the engine which did not match the VIN number on the registration documents, Constable Wilson had asked Mr. Turpin if the engine had been replaced. According to the trial judge’s

summary of the evidence, Mr. Turpin then indicated that the engine had been replaced when he had purchased the vehicle some one and one-half years earlier. The Crown points out that the detail of the time-line of evidence concerning this sequence of events was as follows: (

a) on finding the “non-matching” VIN number on the certification label affixed to the door of the motor home, Constable Wilson asked Mr. Turpin if anything on the vehicle had been replaced and Mr. Turpin had replied in the negative; (

b) Mr. Turpin was arrested for possession of stolen property and “VIN tampering”; (

c) Constable Wilson then searched the motor home and, in the course of so doing, found (among other things) a VIN number on the engine block that did not match the number on the dash plate or the door of the vehicle; (

d) Constable Wilson advised Mr. Turpin that he was being detained in connection with a drug investigation and the drug dog was dispatched; and (

e) Constable Wilson then asked Mr. Turpin if the engine of his motor home had been replaced and Mr. Turpin explained that he had done just that when he had purchased the vehicle. [ 75 ] In light of this, I agree with the Crown that the trial judge’s narrative does not set out all of the full chronological detail of the exchanges between Constable Wilson and Mr. Turpin about VIN numbers and about the fact or possibility that parts of the motor home had been replaced. However, none of this seems particularly consequential.

Constable Wilson’s discovery of the VIN number on the engine block came only after he had arrested Mr. Turpin. Whatever Mr. Turpin might or might not have ultimately said about the engine having been replaced had no bearing on Constable Wilson’s decision to arrest him or on the critical issue of whether, at the time of the arrest, Constable Wilson subjectively believed he had a proper basis for proceeding as he did. [ 76 ] This is also true of the fifth and final fact-finding problem emphasized by the Crown.

It concerns para. 38 of the trial judge’s decision where, in the course of summarizing the evidence, he said that a certificate containing a VIN number had been located in a closet of the motor home and that the number had matched the VIN number on the dash plate of the vehicle. In fact, the evidence indicates that the number found in the closet did not match the number on the dash plate. The reason for the trial judge’s error on this point is not apparent. But, in my view, it is nonetheless an error of no particular consequence.

This is because the number found in the closet played no role whatsoever in Constable Wilson’s decision to arrest Mr. Turpin and to undertake a comprehensive search of his vehicle. It was discovered only in the course of the search.

[77] In

summary, the Crown’s arguments do not have sufficient strength to warrant overturning the trial judge’s assessment of ConstableWilson’s credibility. 2. Was There a Lawful “Detention” for CDSA Purposes? [78] The Crown also submits that, even if Mr. Turpin’s arrest was unlawful, he was nonetheless lawfully detained on the basis of areasonable suspicion that he was in possession of a stolen motor home. On this point, the Crown refers to R. v.

Mann, 2004 SCC 52,[2004] 3 S.C.R. 59 where the Supreme Court confirmed a police authority to detain an individual where there is a reasonable suspicionthat the individual is involved in criminal activity. “Reasonable suspicion,” of course, represents a lower threshold than the standard of“reasonable and probable grounds” associated with the power of arrest. Accordingly, the Crown’s point is that Mr.

Turpin could havebeen lawfully detained in circumstances which could not sustain a valid arrest. [79] There is obviously a preliminary question here as to whether it is open to the Crown to respond to a Charter argument by advancingsubmissions about what the police might have done (i.e. detain Mr. Turpin) rather than what they actually did (i.e. arrest Mr. Turpin). See: R. v. Whitaker, 2008 BCCA 174; R. v. Charley (1993), (ON CA), 22 C.R. (4th) 297 (Ont. C.A.).

I intend tosimply flag this issue because, no matter how it is resolved, there is a fatal problem with the Crown’s submission. [80] The problem is that, as with the authority of the police to effect arrests, an officer purporting to invoke the power to detain forinvestigatory purposes must subjectively believe he or she has the requisite basis for interfering with an individual’s liberty. See: R. v.Reddy, 2010 BCCA 11, 251 C.C.C. (3d) 151 at para. 67; R. v. Greaves, 2004 BCCA 484, 189 C.C.C. (3d) 305 at para. 33.

In this case,as discussed above, the trial judge specifically found, at para. 59 of his decision, that Constable Wilson did not have a subjectivereasonable suspicion that the motor home had been stolen. Accordingly, he could not have effected a lawful investigative detention. [81] In the result, this line of the Crown’s argument cannot succeed. 3. Was There a Lawful Detention for Highway Traffic Purposes? [82] The Crown’s next argument is that, even if Mr.

Turpin was not lawfully arrested or detained in relation to the possibility of themotor home having been stolen, he was nonetheless validly detained in relation to highway traffic matters. Specifically, as I understandits submission, the Crown says the police were entitled, by virtue of statutory powers concerning traffic and vehicle issues, to detain Mr.Turpin while they searched for VIN numbers. [83] In this regard, the Crown relies on various sections of The Traffic Safety Act, S.S. 2004, c. T-18.1, particularly ss. 278 and 279(2).

These provisions read as follows: 278 No holder of a certificate of registration, registration permit, operating authority certificate or safety fitness certificate and no driveror occupant of a vehicle shall fail, when requested, to furnish any peace officer with any information that the peace officer requires in thefulfilment of the peace officer’s duties pursuant to this Act. 279(1) In this section, “vehicle” includes: (

a) any combination of vehicles; and (

b) the cargo being carried on the vehicle or combination of vehicles.

(2) A peace officer or person appointed by the administrator may order the driver or owner of a vehicle to submit the vehicle to anyexaminations and tests that the peace officer or person considers necessary. …

(5) If, in the opinion of the peace officer or person appointed by the administrator, the vehicle is found to be unfit for transportation,dangerous to passengers or the public or, for any other reason, contravenes this Act or the regulations, the peace officer or person may: (

a) order the driver or the owner of the vehicle to take any steps that are necessary to make the vehicle fit fortransportation or safe for passengers or to eliminate the contravention; and (

b) order that the vehicle be removed from the highway until compliance with this Act and the regulations is established. … [84] I am unable to see how these provisions could have operated to legitimize Mr. Turpin’s roadside detention. As for s. 278, it speaks

to nothing more than a driver’s general obligation to provide certificates of registration and other information. In this case, Mr. Turpin presented his driver’s licence and the registration for the motor home when they were requested by Constable Warner. He also answered all of the questions put to him by Constables Warner and Wilson about the vehicle and his travels. As a result, he complied with whatever obligations were imposed on him by virtue of s. 278. [ 85 ] Section 279(2) appears to be equally unhelpful to the Crown’s position.

On its face, it is concerned with vehicle safety and roadworthiness rather than the sorts of matters in issue here. (This is particularly so when it is read in conjunction with s. 279(5) which speaks of the vehicle being, among other things, found unfit for transportation or dangerous to passengers.) Further, and in any event, s. 279(2) engages only when a driver or owner is ordered to submit a vehicle to examinations or tests. [ 86 ] No demand was ever made that Mr.

Turpin submit the motor home to any “examinations or tests.” Thus, even assuming s. 279(2) could be stretched to include a search of the sort conducted by Constable Wilson and his colleagues, the prerequisite “trigger” for its application was not pressed. Moreover, at least from the time of his arrest and afterward, Mr. Turpin’s detention on the roadside had nothing to do with highway traffic issues. Constable Wilson’s own testimony indicated that he was concerned solely with criminal activity during this time period. [ 87 ] In short, I see no basis on which Mr.

Turpin’s detention can be seen to have been authorized by the terms of The Traffic Safety Act . B. Was the Dog Search Warranted? [ 88 ] As a final point in relation to s. 9 of the Charter , the Crown submits that, by the time the drug dog was deployed, Constable Wilson and the other officers had a reasonable suspicion the motor home was carrying drugs. Because of this, says the Crown, the police were entitled to detain Mr. Turpin for a sniffer dog search in accordance with the authority confirmed in cases such as R. v.

Kang-Brown , 2008 SCC 18 , [2008] 1 S.C.R. 456. [ 89 ] This argument was not pressed by counsel in oral argument and for obvious reason. The question of whether Mr. Turpin’s Charter right to be free from arbitrary arrest and detention is not one which turns on the nature of the facts which had been revealed to the police at the time the dog search was initiated. The dog was brought into action only because of the evidence discovered by virtue of the search undertaken following Mr. Turpin’s arrest.

The trial judge himself recognized that, by virtue of that search, the police had uncovered evidence warranting a reasonable suspicion that the motor home was being used to transport drugs. For example, they had by then discovered the after-market modifications to the vehicle. But the bottom line is nonetheless clear. None of the evidence bearing on the grounds of the dog search is relevant to the question of whether Mr. Turpin was lawfully arrested. In other words, the Crown cannot apply the information acquired by way of an unlawful search to retroactively validate the arrest which led to it.

This sort of boot- strapping, if it were to be followed, would severely compromise the operation of s. 9 of the Charter and the interests it protects. [ 90 ] As a result, I am not persuaded by any of the arguments advanced by the Crown in relation to the question of whether Mr. Turpin’s s. 9 rights were violated. C.

Section 8 of the Charter – Unreasonable Search or Seizure [ 91 ] The Crown submits that the trial judge erred when he found Mr. Turpin’s rights as guaranteed by s. 8 of the Charter had been violated.

Section 8 says this: 8. Everyone has the right to be secure against unreasonable search or seizure. [ 92 ] All of the Crown’s arguments in relation to s. 8 reduce to effectively the same points as it makes concerning s. 9. Simply put, the Crown says the search undertaken by Constable Wilson and his colleagues was not inconsistent with s. 8 because it was incidental to a lawful arrest or, alternatively, was incidental to a lawful detention. Accordingly, its argument is that the search of the motor home was constitutionally valid because it was conducted either (

a) incidental to Mr. Turpin’s lawful arrest, (

b) incidental to a lawful investigative detention, or (

c) pursuant to authority conferred by The Traffic Safety Act . The Crown also says the dog search was lawful because, by the time it took place, the police had a reasonable suspicion the motor home was transporting drugs. [ 93 ] I conclude that none of these arguments can succeed. Let me deal first with the idea that the search was lawfully conducted as an incident of Mr. Turpin’s arrest. The analysis in this regard is very straight-forward. As explained above, there is no proper basis for disturbing the trial judge’s finding that the arrest for possession of stolen property was unlawful. As a result, the search incidental to it was also unlawful.

[ 94 ] Second, I turn to the suggestion that the search was incidental to an investigative detention. The problem with this argument is self- evident. Even if there was a valid investigative detention in relation to suspected drug offences, it would not have carried an entitlement to conduct a full scale search of the motor home. In Mann , supra , the Supreme Court held that the search power incidental to an investigative detention is narrow and limited to a protective pat-down.

Iacobucci J. explained the situation as follows: 45 To summarize, as discussed above, 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 addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner.

In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police.

The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case. [emphasis added] [ 95 ] The search of the motor home which led to the discovery of the drugs in this case was far from a “protective pat-down.” It involved police officers lifting carpet, looking under the dash and the hood of the vehicle and opening cupboards and storage compartments.

It was not undertaken out of concerns for safety and was thus in no way properly incidental to an investigative detention. [ 96 ] Third, let me deal with The Traffic Safety Act issue. It too can be disposed of quite readily. Whatever limited search powers might arguably exist under the Act , they were not engaged here.

The Crown relies principally on s. 279(2) but, as discussed, even assuming that provision applies beyond the realm of vehicle safety and roadworthiness, it engages only if a driver or owner is presented with an order to submit a vehicle to “examinations and tests.” No such order was made here. [ 97 ] Fourth and finally, what of the dog search? Again, the answer to the Crown’s argument is apparent.

While there might have been a reasonable suspicion that the motor home contained drugs by the time the sniffer dog was deployed, that suspicion was built on a platform of evidence obtained by way of the unlawful search of the motor home. As a result, the sniff search cannot have been constitutionally valid. [ 98 ] In

summary, the Crown has established no basis for overturning the trial judge’s conclusion that Mr. Turpin’s s. 8 rights were violated. D.

Section 10(

b) of the Charter – Right to Counsel [ 99 ] The trial judge also found that Mr. Turpin’s right to retain and instruct counsel, as provided by s. 10(

b) of the Charter , was violated. It says this: 10. Everyone has the right on arrest or detention (

b) to retain and instruct counsel without delay and to be informed of that right; [ 100 ] The trial judge said that, when Mr. Turpin had been detained in relation to the investigation of an offence under the CDSA , he had been informed of his right to speak to a lawyer and had requested to do just that. The trial judge found that, rather than transporting Mr. Turpin to Moose Jaw (a distance of 30 kilometres), the police had held him in a car pending the ongoing search of his motor home. Consequentially, the trial judge found that it had not been until one and one-half hours later that Mr.

Turpin was taken to Moose Jaw. Thus, according to the judge, Mr. Turpin had not been given an opportunity to retain and instruct counsel in a timely fashion. [ 101 ] The Crown points out that the trial judge misapprehended the evidence on this point. In fact, Mr. Turpin did not say he wanted to speak to counsel upon being advised that he was being detained for investigatory purposes in relation to a suspected drug crime. Rather, he told police that he did not want to do this. It was not until Mr. Turpin was actually arrested for CDSA offences that he expressed a wish to speak to a lawyer.

Police then refrained from questioning him and, once an initial search of the motor home was completed, Mr. Turpin was driven back to detachment offices in Moose Jaw and given an opportunity to contact counsel. The elapsed time between the arrest and when he spoke to a lawyer was no more than an hour. [ 102 ] Mr. Turpin does not contest this line of analysis or the Crown’s bottom-line position that there was no breach of s. 10(

b) in the circumstances at hand. As a result, I find that the trial judge erred in finding as he did.

[ 103 ] That said, I note as well that this conclusion is of no real consequence to the resolution of the Crown’s appeal. This is because the trial judge himself saw nothing flowing from the s. 10(

b) breach which affected the admissibility of evidence concerning the drugs. He noted that the police had refrained from questioning Mr. Turpin after he had indicated his desire to speak to a lawyer and that there was no causal connection between what he saw as a s. 10(

b) violation and the discovery of the drugs. Further, and no doubt as a consequence, he made no mention of s. 10(b), and placed no significance on it, in the course of his s. 24(2) analysis. E. Section 24(2) of the Charter – Exclusion of Evidence [ 104 ] The final feature of the Crown’s argument is that, even if Mr. Turpin’s Charter rights were violated, the drugs should nonetheless have been admitted into evidence. It says the trial judge was wrong to conclude otherwise. [ 105 ] In order to assess this argument, it is useful to begin by looking briefly at the trial judge’s treatment of the s. 24(2) issue. Section 24(2) reads as follows: 24.

(2) 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. [ 106 ] As noted above, the trial judge began his analysis by considering the factors identified by the Supreme Court in R. v. Grant , supra : (

a) the seriousness of the Charter breach, (

b) the impact of the breach, and (

c) society’s interest in having the case adjudicated on the merits. [ 107 ] As to the first of those considerations, the seriousness of the Charter -infringing conduct, the trial judge concluded that Constable Wilson had showed “a flagrant disregard for Charter requirements.” This, of course, is because he had arrested Mr. Turpin as a pretext for conducting a drug search. In relation to the impact of the breach of Mr. Turpin’s rights, the trial judge assessed the situation as having been “a significant, but not egregious, intrusion on [Mr.

Turpin’s] Charter protected interests” and concluded the breach represented “a flagrant disregard for Charter rights.” He also said there had been a “significant impact” on Mr. Turpin’s liberty and privacy interests. As to the third Grant consideration – society’s interest in the adjudication of the case on the merits – the judge found that such interests favoured the admission of the evidence because there was a large quantity of drugs and the evidence in issue (the drugs themselves) was highly reliable and virtually conclusive of Mr. Turpin’s guilt. [ 108 ] The trial judge then turned, as required by R. v.

Grant , to the task of balancing these three factors and determining whether the admission of the drugs into evidence would bring the administration of justice into disrepute. In this regard, he placed significant reliance on R. v. Harrison . In that case, a police officer in Ontario had activated the roof lights on his patrol car to pull over an SUV which had no front license plate. (In Ontario, the failure to display a front plate constitutes an offence.) Only after engaging his lights did the officer realize that the SUV was registered in Alberta. Nonetheless, he pulled it over.

The driver was unable to produce his driver’s licence and a computer check conducted by the police officer revealed that the driver’s licence was, in fact, under suspension. The officer then arrested the driver for driving while suspended and proceeded to search the SUV “incident to arrest.” He did this ostensibly to locate the missing driver’s licence, even though the licence was irrelevant to the charge of driving while suspended. The search revealed 35 kilograms of cocaine and the driver was charged with possession for the purpose of trafficking.

In its decision, the Supreme Court found the driver’s rights as guaranteed by ss. 8 and 9 of the Charter had been violated and excluded the cocaine from evidence. [ 109 ] In summarizing his reasoning on the s. 24(2) issue, the trial judge wrote as follows: [109] …As in Harrison , the accused in this case is charged with serious offences and the evidence is important and reliable.

However, as in Harrison , those factors are outweighed by the principle that the long term repute of the administration of justice will be harmed by condonation of wilful and flagrant Charter breaches which significantly impact on protected rights. Admitting the evidence in these circumstances would amount to a judicial declaration that in the administration of criminal law, the end justifies the means if the offence is serious and the evidence is reliable. [ 110 ] Accordingly, I find that admitting the evidence would bring the administration of justice into disrepute and that the standards is paramount ( sic ).

For that reason, I find the evidence seized from the motor home on June 13, 2007 must be excluded. [110] It is readily apparent that, in conducting his s. 24(2) analysis, the trial judge was highly alert to, and properly applied, the framework of analysis prescribed by the Supreme Court in R. v. Grant , supra . As a result, his bottom-line decision as to whether the admission of the evidence would bring the administration of justice into disrepute is one which attracts a significant measure of deference.

[ 111 ] This Court may not simply re-weigh the facts or re-assess the evidence and substitute its own view of the proper answer to the s. 24(2) question. McLachlin C.J. and Charron J., writing jointly, explained this as follows in R. v. Grant itself: [86] In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexible than the Stillman self-incrimination test.

We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. [emphasis added] See also: R. v.

Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215 at para. 51 . [ 112 ] With that caution in mind, it is now possible to turn to the specific points raised by the Crown in relation to s. 24(2). First, the Crown says the trial judge misapprehended the seriousness of the offence when he commented that the s. 8 Charter breach (the search) had been compounded by the s. 9 breach (the unlawful arrest). The Crown says the search was simply incidental to the arrest and that, as a result, the ss. 8 and 9 breaches should not have been characterized as they were by the trial judge. I see little substance in this submission.

It is true that Constable Wilson purported to conduct the search of the motor home as an incident of Mr. Turpin’s arrest for possession of stolen property. However, there was no necessary legal connection between the arrest and the search, i.e. Constable Wilson was not obligated to conduct a warrantless search of the motor home simply because he had arrested Mr. Turpin. Accordingly, in the end, the breach of s. 9 (the arrest) and the breach of s. 8 (the search) were legally free-standing violations of the Charter .

Consequently, the overall seriousness of the Charter -offending conduct in this case was greater than if Constable Wilson had simply arrested Mr. Turpin and not conducted a warrantless search of his vehicle or if he had somehow searched the vehicle without arresting Mr. Turpin.

As I read his reasons for decision, the trial judge was saying no more than this and, as a result, his assessment of the situation was entirely reasonable. [ 113 ] Second, the Crown says the trial judge failed to give proper weight to the fact that, even if there were Charter breaches, the police had at least some reason to proceed as they did. This is not a case, says the Crown, where the impugned police action was entirely arbitrary and groundless. In this regard, counsel points to a number of factors which had suggested to Constable Wilson that the motor home was being used to transport drugs: (

a) Mr. Turpin was smoking, a technique sometimes used to mask the odour of drugs, (

b) Mr. Turpin was unusually nervous, (

c) Mr. Turpin was driving from Vancouver, a known point of origin for drugs, to Thunder Bay, a known destination point for drugs, (

d) Constable Wilson smelled “Bounce,” a masking agent, (

e) Mr. Turpin had been driving for 12 hours, a practice consistent with that used by drug couriers, and (

f) Mr. Turpin’s answers to questions posed by Constable Wilson suggested (to Constable Wilson at least) that he was volunteering information to legitimize a trip which might otherwise have looked suspicious. [ 114 ] For my part, I see no suggestion in the trial judge’s reasons that he approached these matters in a way which would warrant the intervention of this Court. All of the points noted by the Crown were canvassed in his decision and, in relation to at least some of them, he either did not accept the police evidence or was skeptical of it.

True, the trial judge did not specifically enumerate all of the considerations referred to by the Crown in the specific context of his s. 24(2) analysis but, in my view, that does not amount to a reviewable error. The judge’s central point, and the lynch pin of his decision, was ultimately quite simple: Constable Wilson arrested Mr. Turpin on a pretext so that he could conduct a drug search. This is the core of the case and the gravamen of the Charter violation. It is unaffected by the fact there might have been some considerations which suggested to Constable Wilson that Mr. Turpin might be transporting drugs.

In this regard, this case is not unlike R. v. Harrison . There, police suspicions about drug trafficking were aroused because of (

a) the “lived-in” look of Mr. Harrison’s vehicle, suggesting he had travelled straight through from Vancouver to Ontario, (

b) the use of a rental car, a practice often employed by drug couriers, (

c) travel at exactly the speed limit, and (

d) contradictory stories from Mr. Harrison and his passenger. None of this was seen by the Supreme Court as diminishing the seriousness of the police conduct to the point where the s. 24(2) balance tipped in favour of admitting the evidence. [ 115 ] Third, the Crown contends that the trial judge misapprehended the seriousness of the Charter breaches when, in his discussion about balancing the Grant factors, he referred to R. v. McKenzie , 2009 SKQB 415 , 342 Sask. R. 281 and said, “…given the comments of McLellan J. in R. v.

McKenzie (supra) ,…the cavalier approach to search and seizure demonstrated by the members of the roving traffic unit may not have been unique to this case.” R. v. McKenzie was a highway stop drug case involving Constables Warner and Sperlie where the trial judge, McLellan J., found there had been insufficient grounds for the police to deploy a drug dog. In the course of his reasons, at para. 47, he had said that it was “quite conceivable that the observations of the accused claimed to have been noticed by Cst.

Sperlie were enhanced after the drugs were located.” However, this decision was ultimately reversed by this Court. See: 2011 SKCA 64 . Our decision was rendered after the trial judge issued his decision in this case. As a result, the Crown says the trial judge misapprehended the seriousness of the police conduct in issue here. [ 116 ] I am not persuaded by this aspect of the Crown’s argument. It is not at all clear that R. v. McKenzie had any influence on the trial judge’s assessment of the seriousness of police conduct. First, in para. 109 of his decision, the passage referred to by the Crown, the trial

judge said no more than that the police conduct he was dealing with “may” not have been unique to this case. He might well have used that language precisely because, at the time he was writing, it was well known that the McKenzie case was under appeal. Second, at para. 100 of his reasons, in the course of discussing the impact of the Charter breach, the trial judge referred to R. v.

McKenzie and specifically said, “I stop short of finding that there was evidence of pervasive systemic abuse by the police officers involved in this case.” [ 117 ] Fourth, the Crown says the trial judge failed to appreciate that this case differs from R. v. Harrison in the important respect that here the original stop of Mr. Turpin was effected for legitimate highway traffic purposes while, in Harrison , the initial stop had been groundless.

There, the police officer had engaged his roof lights on seeing a vehicle with no front license plate but, on realizing no plate was required because the vehicle was from Alberta, had pulled it over anyway because “abandoning the detention may have affected the integrity of the police in the eyes of observers.” The trial judge did not flag this factual difference in his decision but there is no reason to believe he was unaware of it.

In any event, I do not see this factor as being of such significance that, in light of the deference owed to the trial judge’s assessment of the s. 24(2) issue, it can operate as a basis for overturning his decision. The trial judge’s point was not that this case and Harrison are perfect parallels in all respects. Rather, he saw Harrison as something which helpfully informed his assessment of the s. 24(2) issue. [ 118 ] In the end, and bearing in mind the applicable standard of judicial review, the Crown has not demonstrated how this Court can interfere with the trial judge’s assessment of the s. 24(2) question.

V. Conclusion [ 119 ] There is no proper basis on which this Court can set aside the conclusions reached by the trial judge either with respect to the breaches of ss. 8 and 9 of the Charter or with respect to s. 24(2) . The Crown’s submissions invite us to unravel the fabric of the trial judge’s decision, re-examine the evidence, make different findings of fact on key points and then knit the case back together so as to reach a result different than the one reached by the trial judge. This sort of approach is not open to us in light of the governing standards of review. The Crown’s appeal must be dismissed.

DATED at the City of Regina, in the Province of Saskatchewan, this 2nd day of May, A.D. 2012. “Richards J.A” Richards J.A. I concur “Richards J.A.” for Smith J.A. (as per authorization) I concur “Ottenbreit J.A.” Ottenbreit J.A.