Docket: CACR 2017 Her Majesty the Queen, as represented by The Director of Public Prosecutions Appellant - v. -, 2012 SKCA 63

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 63 Date: 20120614 Between: Docket: CACR 2017 Her Majesty the Queen, as represented by The Director of Public Prosecutions Appellant - and - Lee Andrew Shinkewski Respondent Coram: Lane, Smith & Caldwell JJ.A. Counsel: Wade E. McBride , for the Appellant Garth V. Bendig , for the Respondent

Appeal: From: 2011 SKPC 40 Heard: January 11, 2012 Disposition: Allowed Written Reasons: June 14, 2012 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Smith Caldwell J.A. I. Introduction [ 1 ] I would allow the Crown’s appeal from the acquittal of Lee Andrew Shinkewski on the charge of possession of marihuana for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. The acquittal followed on a trial which proceeded by indictment before a Provincial Court judge (see: R. v.

Shinkewski , 2011 SKPC 40 ; 230 C.R.R. (2d) 1 ); however, the trial judge erred when he found there had been no reasonable grounds for Mr. Shinkewski’s arrest and, therefore, for the subsequent search of his vehicle. II. Background [ 2 ] The events which led to Mr.

Shinkewski’s arrest began with an informant advising Constable Bellefontaine, a peace officer assigned to the Prince Albert Combined Forces Special Enforcement Unit (“CFSEU”), that an individual named “Sundara” would receive at his residence, in Prince Albert, Saskatchewan, a shipment of cocaine and marihuana from a drug courier who would arrive from Saskatoon on a specific day. On previous occasions the informant had provided information which the constable had determined to be reliable.

Constable Bellefontaine advised the officer in charge of the Prince Albert CFSEU, Sergeant McDonald, of the details of the “tip” and, on that basis, the sergeant established a surveillance team, which included Constable Bellefontaine and other members of the Prince Albert CFSEU, to act under his coordination in conducting surveillance of the Sundara residence. [ 3 ] At approximately 6:00 p.m. on the day identified by the informant, the surveillance team observed two vehicles arriving at the Sundara residence. One was registered to a resident of Saskatoon and the other to a resident of Regina.

The Saskatoon-registered vehicle left the Sundara residence at 8:22 p.m. and was followed by a member of the surveillance team. The Regina-registered vehicle left at 8:35 p.m., but was lost by the surveillance team. Based on the details of the tip and the surveillance team’s observations, Sergeant McDonald believed the occupant(

s) of the Saskatoon-registered vehicle had carried out the anticipated drug delivery. He directed Constable Bellefontaine to start drafting an application for a search warrant for the Sundara residence. This left only Constable Chester in direct surveillance of the residence. [ 4 ] Constable Chester had joined the surveillance shortly after 8:00 p.m. He saw two vehicles arrive at the Sundara residence and depart shortly thereafter. He then observed a third vehicle arrive.

And, at 8:54 p.m., Constable Chester observed a fourth vehicle, a black Jeep, pull into the driveway of the residence, remain there for four minutes, and then back out. From its license plate number, Constable Chester ascertained that the fourth vehicle was registered to Mr. Shinkewski. Constable Chester was not, however, in a position to see who was in Mr. Shinkewski’s vehicle, nor could he see whether anyone had left or entered the vehicle or whether anyone had delivered anything to the vehicle while it had remained in the driveway. After Mr.

Shinkewski’s vehicle left, Constable Chester observed a fifth vehicle to arrive at the Sundara residence and remain in the driveway for six minutes. [ 5 ] Through radio communication, Sergeant McDonald became aware of the information known to Constable Chester. Sergeant McDonald concluded the individual operating Mr. Shinkewski’s vehicle might have attended at the Sundara residence to obtain some of the drugs he believed had just been delivered. Further, Sergeant McDonald was aware of three prior instances where informants had implicated Mr.

Shinkewski in marihuana trafficking; however, the sergeant was not, at the time, aware of the specific details of those tips. He learned subsequent to Mr. Shinkewski’s arrest that none of the tips had been confirmed as reliable. Nevertheless, on the basis of the tip provided to Constable Bellefontaine and the other information known to him at that time, Sergeant McDonald believed he had reasonable grounds to believe whoever was operating Mr. Shinkewski’s vehicle had just taken possession of a controlled substance. Sergeant McDonald therefore instructed the surveillance team to stop Mr.

Shinkewski’s vehicle, to arrest its occupants for possession of a controlled substance and to search them and the vehicle for evidence of that substance. [ 6 ] Acting on those instructions, Constable Issel stopped Mr. Shinkewski’s vehicle at 9:05 p.m. one and a half blocks from the Sundara residence. At this point, the constable did not know who was in Mr. Shinkewski’s vehicle. As he was in plain-clothes, Constable Issel radioed for uniformed police assistance and Constable Bear attended to assist with the stop. When Constable Bear approached the driver’s door of the vehicle he identified Mr.

Shinkewski, whom he had encountered in previous traffic stops, as the operator and sole occupant. He ran SGI and CPIC searches on Mr. Shinkewski and his vehicle, consulted with Constable Issel and then placed Mr. Shinkewski under arrest for possession of a controlled substance. Constable Bear then transported Mr. Shinkewski to the Prince

Albert Police Service police station. [7] As Mr. Shinkewski had a pit-bull terrier with him, Constable Issel did not search the vehicle until Mr. Shinkewski’s father hadarrived to take control of the dog. When he looked into Mr. Shinkewski’s vehicle, Constable Issel saw a grocery bag from which a clearplastic bag protruded. Believing the clear plastic bag to contain marihuana, Constable Issel entered the vehicle to retrieve it, whereuponhe found the grocery bag actually contained three bags of what appeared to be marihuana.

He then found a fourth clear plastic bag whichalso contained what appeared to be marihuana. In all, Constable Issel seized four one-half-pound bags of marihuana fromMr. Shinkewski’s vehicle. [8] When the matter came on for trial, Mr. Shinkewski challenged the admission of the two pounds of marihuana seized from hisvehicle under the Charter on the ground that his right to be free from unreasonable search or seizure had been violated.

He alleged hisarrest was unlawful and therefore gave rise to an arbitrary detention in breach of s. 9 of the Charter and, furthermore, that the policesearch of his vehicle incidental to his arrest was thereby also unlawful resulting in an unreasonable search and seizure in breach of s. 8 ofthe Charter. [9] Searches incidental to arrest are warrantless searches. A warrantless search is prima facie unreasonable and the Crown bears theonus of demonstrating, on a balance of probabilities, that a warrantless search was reasonable (R. v. Buhay, 2003 SCC 30, [2003] 1S.C.R. 631, at para. 32).

The Crown can discharge this onus if, on the facts, the search was authorized by law, the law itself is reasonableand the police carried out the search in a reasonable manner (R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at p. 278).However, the police power to search incidental to arrest is “an established exception to the general rules that warrantless searches areprima facie unreasonable” (R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 84). As such, the reasonableness of the search ofMr. Shinkewski’s vehicle turned on whether the police had arrested Mr.

Shinkewski in accordance with a lawful exercise of policepower. [10] The police power of arrest at issue is found in s. 495(1)(

a) of the Criminal Code: 495.

(1) Arrest without warrant by peace officer – A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about tocommit an indictable offence, As is evident, the valid exercise of the s. 495(1)(

a) police power to arrest without warrant is subject to a mandatory condition precedent:the arresting officer must have “reasonable grounds to believe” the subject of arrest has committed or is about to commit an indictableoffence. [11] In the voir dire held to determine Mr. Shinkewski’s Charter challenge, the trial judge found, in the circumstances, that SergeantMcDonald did not have reasonable grounds to believe Mr. Shinkewski had committed an indictable offence. The trial judge thereforeconcluded Mr.

Shinkewski’s arrest was unlawful and, accordingly, so was the search of his vehicle incidental to that unlawful arrest and,to remedy the Charter breach, the trial judge excluded the marihuana from evidence under s. 24(2) of the Charter. In the result, withoutthe marihuana as evidence, the Crown had no basis upon which to prove the charge of possession of marihuana for the purposes oftrafficking and the trial judge acquitted Mr. Shinkewski of that charge. The Crown now appeals from the trial decision on the groundsthe trial judge erred in concluding Sergeant McDonald did not have reasonable grounds to arrest Mr.

Shinkewski or, alternatively, thatthe trial judge erred when he excluded the marihuana from evidence. III. Arrest Analysis [12] The first question, whether an arresting officer had satisfied the standard of reasonable grounds to believe the subject of an arresthad committed or was about to commit an indictable offence, is a question of law reviewable on the standard of correctness (R. v. Nolet,2010 SCC 24, [2010] 1 S.C.R. 851; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; and R. v. Feeney, (SCC),[1997] 2 S.C.R. 13).

The standard of correctness allows this Court to substitute its own opinion for that of the trial judge where the judgehas, in this Court’s opinion, incorrectly identified the law or come to the wrong legal conclusion (Housen v. Nikolaisen, 2002 SCC 33,[2002] 2 S.C.R. 235). [13] The legal standard of “reasonable grounds to believe” has been the subject of considerable judicial

interpretation. I do not proposeto review it all; however, I make the following observations from the jurisprudence: (

a) an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objectivepoint of view – in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there wereindeed reasonable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; (

b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities (Mugesera v.Canada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100) or a prima facie case for conviction (R. v. Storrey)before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” or a hunch (R. v. Morelli,2010 SCC 8, [2010] 1 S.C.R. 253, at para 91; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.)); (

c) an arresting officer must consider all incriminating and exonerating information which the circumstances reasonably permit, butmay disregard information which the officer has reason to believe may be unreliable: R. v. Storrey; (

d) a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion: R. v. Savage,2011 SKCA 65, 371 Sask. R. 283; R. v. Nguyen, 2010 ABCA 146, 477 A.R. 395; and R. v. Storrey; and (e) “…the standard must be interpreted contextually, having regard to the circumstances in their entirety, including the timinginvolved, the events leading up to the arrest both immediate and over time, and the dynamics at play in the arrest”: R. v. Nguyen, at para.

18; and, context includes the experience and training of the arresting officer: R. v. Nolet, at para 48; R. v. Whyte, 2011 ONCA 24, 266C.C.C. (3d) 5, at para 31; and R. v.

Luong, 2010 BCCA 158, 286 B.C.A.C. 53, at para. 19. [14] After reviewing the evidence in his written reasons, the trial judge found Sergeant McDonald had “arguably” possessedreasonable grounds to suspect criminal activity, but given “the paucity of the information available to him and its equivocal nature”, thesergeant’s suspicions were insufficient to satisfy the standard of “reasonable and probable grounds to arrest” or, and somewhatinconsistently, even that of “reasonable grounds to suspect criminal activity”.

Nevertheless, the trial judge accepted that SergeantMcDonald had subjectively believed he had reasonable grounds to arrest the operator of Mr. Shinkewski’s vehicle. In reaching hisconclusion, the trial judge wrote: [15] When I review the totality of the circumstances I find that Sgt. McDonald’s knowledge fell short of the degree of probabilitynecessary for reasonable grounds to arrest. At the time he formed his belief he did not know who was operating the vehicle and there wasa complete absence of evidence available to him as to what, if anything, took place at the target’s residence. Crucially, Sgt.

McDonaldwas unaware of the tenuous nature of the dated confidential information relating to this accused, making an informed consideration byhim of this information impossible. [15] With respect, the trial judge’s reasons contain errors of law in both the identification of the applicable standard and theapplication of that standard to the facts. [16] First, the standard of “reasonable grounds to believe” does not require that an arresting officer ensure there has been “informedconsideration” of all the information available at the time of arrest before the officer may lawfully effect an arrest.

The standard simplyrequires the arresting officer to consider all incriminating and exonerating information which the circumstances reasonably permit (R. v.Storrey). On this point, the court in R. v. Golub (1997), (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), leave to appealrefused, [1998] 1 S.C.R. ix), said: [18] … Both a justice and an arresting officer must assess the reasonableness of the information available to them before acting.

Itdoes not follow, however, that information which would not meet the reasonableness standard on an application for a search warrant willalso fail to meet that standard in the context of an arrest. In determining whether the reasonableness standard is met, the nature of thepower exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are verydifferent than those which operate on an application for a search warrant. Often, the officer’s decision to arrest must be made quickly involatile and rapidly changing situations.

Judicial reflection is not a luxury the officer can afford. The officer must make his or herdecision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of apolice officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. [emphasisadded.] [17] The circumstances of this arrest were such that Sergeant McDonald was entitled to rely on his imperfect recollection thatMr.

Shinkewski had been tied to marihuana trafficking on three occasions, without pausing to confirm the details, currency or reliabilityof those tips. Certainly, if Sergeant McDonald had had a reason to believe the tips were unreliable or stale-dated at the time he wasdetermining whether he had sufficient grounds to arrest, then it would have been incumbent upon him to disregard the tips or to accordthem less weight in his determination.

Albeit none of the three tips had been confirmed as reliable and albeit each was over a year old,Sergeant McDonald was unaware of this “tenuous nature of the dated confidential information” relating to Mr. Shinkewski and, moreimportantly, the circumstances of this arrest would not reasonably bear waiting for the results of a course of inquiry aimed at confirmingthe reliability and currency of the information Sergeant McDonald recalled. [18] When considering the circumstances of this arrest, it is important to recall that Mr.

Shinkewski was merely a target ofopportunity. “Sundara” was the primary target of the police surveillance. Mr. Shinkewski (or, more accurately, the operator of hisvehicle) and other secondary targets came to the attention of the police because they each made a brief stop at the Sundara residenceclose on the heels of what the police believed had been the delivery of a quantity of marihuana and cocaine to the residence.

Theevolving circumstances of the surveillance and arrests which flowed from it did not reasonably permit a prolonged investigation of thefactors giving rise to Sergeant McDonald’s determination that there were reasonable grounds to arrest the operator of Mr. Shinkewski’svehicle. Rather, the circumstances called for Sergeant McDonald to conduct a direct and honest assessment of all of the facts known tohim at that time, whether incriminating or exonerating. [19] As to judicial review of the sergeant’s conclusion, R. v.

Storrey directs a court to conduct its assessment of the objectivereasonableness of the grounds for arrest from the retrospective viewpoint of a reasonable person placed in the position of the arrestingofficer. Where the circumstances of arrest do not reasonably permit the arresting officer to inquire into the veracity of the informationwhich formed the basis of the grounds for arrest, the law similarly does not permit judicial consideration of any evidentiary shortcomingswhich might come to light or be discovered post-arrest.

An otherwise lawful arrest is not invalidated by the ex post facto discovery ofdeficiencies or defects in the information upon which the police have relied to effect the arrest unless, in the circumstances at play in thearrest situation, the police could reasonably have made inquiries which would have led to the discovery of the deficiencies or defects.

Forthis reason, I find that the trial judge erred in principle by considering an irrelevant factor (i.e., in this case, the actual reliability andcurrency of information was not known to the arresting officer at the time of arrest) in his assessment of the reasonableness of thegrounds for arresting Mr. Shinkewski. [20] I turn now to determine the principle issue in this appeal: Whether there were reasonable grounds to believe Mr. Shinkewski hadcommitted an indictable offence. In this respect, the Crown and Mr. Shinkewski both accept that Sergeant McDonald articulated thefollowing limited grounds for ordering Mr.

Shinkewski’s arrest: (

a) information from a reliable source informing of a forthcoming delivery of cocaine and marihuana to a specific individual at aspecific residence at a specific time by a courier arriving from a specific city; (

b) the arrival of a vehicle consistent with the courier vehicle described by the informant at the identified residence on the day

predicted, suggesting that the anticipated drug delivery had occurred; (

c) shortly thereafter, the arrival at the target residence of a number of vehicles, including one registered to Mr. Shinkewski, each ofwhich remained for only a short period of time; behaviour which, in Sergeant McDonald’s experience as a drug investigator, wasconsistent with individuals picking up or purchasing drugs; and (

d) Mr. Shinkewski had been named in three separate tips as someone involved in marihuana trafficking. [21] While the list is short, the standard of “reasonable grounds to believe” is not met by the number of grounds articulated by thearresting officer; rather, it is the cumulative weight of the grounds articulated which, on an objective basis and when considered incontext, must tilt the balance from “mere suspicion” to a “reasonable suspicion” and then to “reasonable grounds to believe” anindividual has or is about to commit an indictable offence.

And here, as I will explain, there was sufficient objective support for SergeantMcDonald’s subjective belief that the operator of Mr. Shinkewski’s vehicle had committed an indictable offence. [22] Constable Bellefontaine’s informant had informed about an impending shipment of cocaine and marihuana to a specificindividual at a specific residence on a specific day, which shipment would be delivered by a drug courier arriving from a specific city.Constable Bellefontaine had previously established his informant as a reliable source of information.

Most of the details of theinformant’s tip were confirmed by police surveillance on the day in question of the residence and primary target identified by theinformant. While the police had not then confirmed the delivery of drugs, the sequence of events actually observed by the surveillanceteam in this case conformed exactly to the activity anticipated by their reliable informant and, in my view, removed the possibility ofinnocent coincidence (see: R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, per Wilson J., at p. 1172).

In other words, theinformation predicting the commission of a criminal offence by “Sundara” was compelling, was based on a credible source and wascorroborated by the events observed by the surveillance team. This supports the reasonableness of Sergeant McDonald’s belief that ashipment of drugs had been delivered to the Sundara residence. [23] At this point in the circumstances of Mr. Shinkewski’s arrest, the surveillance team observed a number of vehicles arrive at theSundara residence, each of which remained there for only a brief period of time and then left.

While there may be any number of innocentreasons for this behaviour, it was, in Sergeant McDonald’s experience as a drug investigator, behaviour consistent with that ofindividuals attending at a residence to pick up or purchase drugs. This was a factual inference drawn by Sergeant McDonald on the basisof his evaluation of the behaviour against his then 15 years of experience as a police officer and in the context of his objectivelyreasonable belief that a shipment of drugs had just been delivered to the Sundara residence.

Moreover, the inference he drew may bedrawn regardless of who was operating or occupying the vehicles as it is properly drawn from the conduct or behaviour, not the identity,of the actor. The sergeant added to this context the fact the vehicle in question in this case was registered to Mr. Shinkewski and hisrecollection, albeit imperfect, that Mr.

Shinkewski had been named in three separate tips as someone involved in trafficking marihuana. [24] In my judgment, the constellation of these objective factors is such that a reasonable person, standing in the shoes of SergeantMcDonald, could have reasonably believed that the operator of Mr. Shinkewski’s vehicle was unlawfully in possession of a controlledsubstance. The objective factors are not overwhelming, but I am satisfied the factors articulated by Sergeant McDonald meet the standardof “reasonable grounds to believe”. [25] At this juncture I would note Mr.

Shinkewski appropriately conceded that if, on the evidence, there were reasonable grounds toarrest him without a warrant, then the search of his vehicle incidental to the arrest was lawful (see: Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158, at p. 182; and R. v. Caslake, (SCC), [1998] 1 S.C.R. 51, at para. 13). It follows that, ifthe vehicle search was lawful, then the marihuana seized by the police incident to the search is admissible as evidence against Mr.Shinkewski on the charge of possession for the purposes of trafficking. [26] Accordingly, I would allow the Crown’s appeal. IV.

Section 24(2) of the Charter [27] Had I not found the search of Mr. Shinkewski’s vehicle to be lawful, I would have allowed the Crown’s appeal from the trialjudge’s decision to exclude the marihuana from evidence under s. 24(2) of the Charter.

In my opinion, if the facts indeed gave rise to aCharter violation, then the trial judge misconstrued the seriousness of that violation under the framework of analysis set forth in R. v.Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. [28] In reaching this conclusion I am mindful that the standard of appellate review of a trial decision which has relied on s. 24(2) of theCharter is one of reasonableness (R. v. Buhay, supra) and that an appellate court should not second guess a trial judge’s findings orsubstitute its own view just because it would have decided the matter differently (see: R. v.

Duguay, (SCC), [1989] 1S.C.R. 93, at p. 98; R. v. Greffe, (SCC), [1990] 1 S.C.R. 755, at p. 783; R. v. Mellenthin, (SCC), [1992]3 S.C.R. 615, at p. 626; and R. v. Chaisson, 2006 SCC 11, [2006] 1 S.C.R. 415, at para. 7). Nevertheless, where a trial judge has erred inprinciple when conducting a s. 24(2) analysis, the decision will attract appellate intervention (see: R. v. Harrison, 2009 SCC 34, [2009] 2S.C.R. 494, at para. 37; and R. v. Borden, (SCC), [1994] 3 S.C.R. 145, at p. 167; and, with respect to sufficiency ofreasons, see also: R. v. Buhay; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; and R. v.

Feeney (per Sopinka J.)). [29] The starting point for appellate review of a s. 24(2) analysis is R. v. Grant, which sets out three factors for the trial court toconsider when assessing and balancing the effect of admitting evidence on society’s confidence in the justice system: 1) the seriousnessof the Charter-infringing state conduct; 2) the impact of the breach on the Charter-protected interests of the accused; and 3) society’sinterest in the adjudication of the case on its merits. R. v.

Grant also confirms the ultimate question as whether, considering all of thecircumstances, admission of the evidence would bring the administration of justice into disrepute. The trial judge correctly identifiedthese lines of inquiry in his reasons: 1) Seriousness of the Charter Infringing Conduct [21] This is not an instance where I have a concern regarding the veracity of the police officers who testified. The honesty of Cst. Issel

and Sgt. McDonald leaves no doubt as to what action they took and what they believed justified that action. [22] In this particular case the police admitted that they did not know who was driving the vehicle prior to the stop. Nor did theyknow what to arrest the individual for. These factors are not critical. However, what is of significance in my mind is the unexplainedabsence of evidence arising from the surveillance of the accused’s vehicle at the critical time during the 4 minutes when it was at thetarget residence.

In addition I find the dated confidential information was relied on more than it should have been, given the Sergeant’ssubsequent determination of its questionable reliability. These factors when viewed cumulatively are aggravating and elevate theseriousness of the infringement. 2) Impact on the Charter Protected Interests of the Accused. [23] In Grant the Supreme Court of Canada described this avenue of inquiry as follows: This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused.

It calls foran evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of aCharter breach may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused's protectedinterests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however highsounding, are oflittle actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [24] I recognize that the accused’s expectation of privacy is reduced given this was a search of a vehicle as opposed to a home or hisperson. It is significant to me that the police proceeded to arrest and search the vehicle of this accused based only on a suspicion.

This, inmy view, tends toward the breach having an intrusive effect on the accused’s rights, rather than a fleeting or technical impact. 3) Society’s interest in Adjudication on the Merits. [25] This aspect involves a balancing of the interests of truth seeking with the integrity of the justice system. As indicated by theSupreme Court in Grant a valid consideration is the seriousness of the charge.

While in this case the charge of trafficking in marihuanacould result in penal consequences for the accused, it is my view, having taken into account the totality of the circumstances, that thepublic interest in ensuring that the justice system is above reproach is paramount and outweighs the public interest in the adjudication ofthis individual charge on the merits. 4) Balancing the Three Factors [26] I agree with the comments of Justice McLellan in R. v. McKenzie: There can be no assumption that the interests of society will always be found to side with inclusion of evidence.

To put it another waywhile the short term effect of inclusion, especially with a serious crime might be positive, it must be balanced against long term negativeeffects on society’s opinion on the justice system in failing to exclude evidence which results from state breaches of Charter rights. [27] The balancing of the three factors is not an exercise in mathematical precision.

When I consider the three factors in the context ofthe circumstances of this case it is my conclusion that the marihuana seized should be excluded pursuant to s. 24(2) [30] However, in my opinion, the foregoing analysis overemphasises both the seriousness of the alleged Charter-infringing stateconduct in this case and the seriousness of the impact of the asserted infringement on Mr. Shinkewski’s Charter-protected rights. Theinstant circumstances do not call for the exclusion of the marihuana from evidence when assessed under the R. v.

Grant lines of inquiryand balanced to determine the effect of admitting or excluding the evidence on society’s confidence in the justice system. I make thefollowing observations in this respect. [31] First, as to the seriousness of the alleged Charter-infringing state conduct, the trial judge overlooked a relevant factor which ledhim to notionally accord a higher level of severity to the alleged breach than merited in the circumstances. In particular, he did notappreciate the obvious implications of his positive conclusions as to the “veracity” and “honesty” of the officers who had testified beforehim.

This is significant because the degree of “fault” attributed to the police (i.e., the state) guides the analysis under the first line ofinquiry (see: R. v. Grant, at para. 75). A trial judge must ascertain where the alleged infringement falls on the spectrum of severity (see:R. v. Kitaitchik (2002), (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.) at para. 41) so as to properly assess and balancethe effect of admitting or excluding evidence on society’s confidence in the justice system.

In this respect, the trial judge had notedearlier in his reasons that Sergeant McDonald subjectively believed he had had sufficient grounds to arrest the operator ofMr. Shinkewski’s vehicle and to search the vehicle. If so, the sergeant could not have been acting in bad faith when he instructedConstable Issel to arrest Mr. Shinkewski, and it follows that the Charter-infringing state conduct in this case was neither a blatant nor anintentional disregard of Mr. Shinkewski’s rights.

Nor, on the facts, does it seem that the state misconduct in question was part of a patternof disregard for Charter rights, part of a systemic problem, or borne of wilful blindness or police negligence. On the whole of theevidence then, after factoring in the “veracity” and “honesty” of the police, one cannot reasonably conclude that the police acted in badfaith when arresting Mr. Shinkewski.

Nevertheless, an absence of bad faith does not presumptively lead to a finding that the police actedin good faith. [32] By their nature all Charter infringements may be characterised as “serious”, but not all infringements will inevitably have such anegative effect on public confidence in the rule of law that the administration of justice is thereby brought into disrepute.

For this reason,it is important that a trial judge take steps to ascertain and impose a definitive degree of “fault” on the state for its misconduct, whetherthat is labelled “inadvertent”, “negligent”, “reckless”, “wilfully-blind”, “flagrant”, or “blatant disregard”.

As Doherty J.A. noted in R. v.Kitaitchik (at para. 41), “[w]hat is important is the proper placement of the police conduct along that fault line, not the legal labelattached to the conduct.” In this case, the alleged breach appears to fall low on the spectrum of severity because it arose due to theextenuating circumstances of an arrest where time considerations did not allow for “informed consideration” of the information availableto the police and there were gaps in the information available.

In that respect, I am simply persuaded any “fault” also properly falls lowon the spectrum of severity as an inadvertent or unintentional violation. I say this because the spectrum of severity discussed in R. v.Grant and R. v. Kitaitchik and other cases recognises the measure of uncertainty inherent in the assessment of whether or not a legal

threshold of the nature of “reasonable grounds to believe” has been met. The characterisation of the Charter- infringing state conduct in this case as “inadvertent” acknowledges the slippery nature of such legal thresholds and makes allowance for a reasonable degree of error in judgment on the part of the individuals who act on behalf of the state. In my judgment, the admission of evidence discovered through a violation such as may have occurred in this case would not generally serve to undermine public confidence in the rule of law. [ 33 ] My second observation pertains to the impact of the alleged breach on Mr.

Shinkewski’s Charter -protected interests. 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. [ 34 ] The Charter -protected rights engaged in this case are the right to be secure against unreasonable search or seizure (s. 8) and the right not to be arbitrarily detained or imprisoned (s. 9). Addressed in chronological order, the alleged violation of s. 9 would arise only because Mr. Shinkewski was stopped and arrested, and thereby detained, without lawful authority.

Other than alleging a lack of reasonable grounds for arrest, Mr. Shinkewski has not claimed any impropriety on the part of the police in effecting his arrest. He was not, on the facts, detained any longer than might have been expected in the circumstances. His liberty was, nevertheless, entirely restricted for a significant period of time. In these circumstances, I would categorize any violation of his s. 9 Charter right as having a median impact on the interests protected by that right. [ 35 ] Incident to his arrest, the police searched Mr.

Shinkewski’s vehicle and seized his marihuana; if the arrest was unlawful, then this was in violation of s. 8 of the Charter . The Charter -protected interests at issue are Mr. Shinkewski’s right to privacy and human dignity. The marihuana obtained through the alleged breach was found in Mr. Shinkewski’s vehicle (which attracts a lower expectation of privacy) by reason of a relatively non-intrusive search as the marihuana was arguably plainly visible or at least not terribly concealed from public view. The search of Mr.

Shinkewski’s vehicle did not give rise to any issues related to bodily-integrity or human dignity. While Mr. Shinkewski was also subject to a body-search upon his arrest, there were no allegations that the police acted improperly or aggressively in that respect. As such, I would categorize the impact of any breach of Mr. Shinkewski’s privacy and human dignity as minimal or at the low end of the spectrum of severity. [ 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. In this respect, the line of inquiry would seem to be fundamentally biased in favour of the Crown where the evidence in question is inherently-reliable real evidence which is necessary to prove the charge ( e.g. , two pounds of marihuana on a charge of trafficking in marihuana). Yet, in this context, the seriousness of the offence, while somehow still relevant, is now a neutral consideration (see: R. v.

Grant , at para. 84 ) which must not take on “disproportionate significance” (see: R. v. Harrison , at para. 34 ). Moreover, in general terms an accused will rarely be in a position to persuade a court that the public has little interest in a trial on the merits. [ 37 ] Here, the trial judge simply concluded the public interest in ensuring the justice system remained above reproach was paramount and outweighed the public interest in the adjudication of the case on its merits. This conclusory statement was not buttressed other than by a brief reference to the seriousness of the charge against Mr. Shinkewski.

However, the approach set forth in R. v. Grant and R. v. Harrison calls for a more comprehensive analysis. No doubt the public will always have a vital interest in a justice system that is above reproach and, if the marihuana was obtained by reason of a breach of ss. 8 and 9 of the Charter , this necessarily calls into question the integrity of the justice system. Nevertheless, the evidence here, even if obtained through a Charter breach, is highly reliable. Furthermore, to the Crown, on the offence charged, the marihuana is critical evidence which is practically conclusive of Mr. Shinkewski’s guilt.

Moreover, the evidence cannot be said to operate unfairly having regard to the truth-seeking function of a trial; it is what it is. As such, the suppression of this highly-reliable and critical evidence is prima facie contrary to societal interests in truth- seeking and in having the criminal allegations against Mr. Shinkewski adjudicated on their merits. Indeed, I am hard-pressed to imagine a circumstance where the evidence could be more reliable or more critical to the prosecution’s case.

I therefore conclude, under the third line of inquiry, that the reliability of the marihuana and the fact that it is essential to the Crown’s case auger in favour of admission of the marihuana into evidence. [ 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 , 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 ). [ 39 ] Since the purpose of a s. 24(2) analysis, as confirmed and clarified in R. v. Grant , is to determine whether the inclusion of evidence would bring the administration of justice into disrepute, it cannot be that every Charter violation will have such a negative impact on the administration of justice that evidence obtained under the violation must be excluded.

Indeed, the general public may consider the administration of justice to have been brought into disrepute where highly-reliable evidence is excluded on the basis of a minor Charter violation occasioned by good faith conduct on the part of the state or where there has been no deliberate attempt to thwart Charter rights. This is because the integrity of the justice system would be wholly undermined, in the public’s perception , if it routinely excused individuals who have committed criminal offences from criminal liability by reason of a “technicality” involving a minor violation of a Charter- protected interest.

[ 40 ] Here, if the police arrested Mr. Shinkewski and searched his vehicle and person without having reasonable grounds to believe he had committed an indictable offence, then, on the facts as found by the trial judge, the infringement of Mr. Shinkewski’s s. 8 and s. 9 Charter rights was inadvertent and had a minor impact on his Charter -protected interests. Furthermore, the marihuana seized by the state constitutes highly-reliable and critical evidence tendered on a serious charge.

All of these factors weigh the balance in favour of admission of the marihuana into evidence. [ 41 ] On the other hand, the police power to arrest without warrant and to thereby detain an individual is a highly intrusive power which may be exercised on the standard of “reasonable grounds to believe” the individual has committed or is about to commit an indictable offence. Given the potential for intrusion and the standard upon which it may be exercised, it is a power which the state must exercise with all due care and precision.

If the marihuana were admitted as evidence, the court risks condoning the exercise of a police power to intrude into the private lives of citizens on the basis of suspicion of criminal activity. Even if the police only narrowly failed to meet the standard of “reasonable grounds to believe”, that failure still weighs in favour of exclusion of the marihuana as evidence. [ 42 ] The fact the state, in exercising an extraordinary police power, did not meet the burden of proof required as a condition precedent to its exercise is the single most relevant factor pointing to exclusion.

However, while important, this factor is outweighed by the minor nature of the breach and of the intrusion, the reliability of the evidence and its importance to the Crown’s case. On the whole, I conclude the importance of an adjudication of this matter on its merits outweighs the strict maintenance of Charter standards in these circumstances. In sum, had I upheld the trial judge’s finding that the police had arrested Mr.

Shinkewski without reasonable grounds to do so, I would nevertheless have concluded that the long-term repute of the administration of justice would be undermined by the exclusion of the marihuana as evidence in this case, and I would have allowed the Crown’s appeal under s. 24(2) of the Charter . [ 43 ] In the result, I would allow the Crown’s appeal, set aside the acquittal and remit the matter to Provincial Court for a new trial on the evidence. DATED at the City of Regina, in the Province of Saskatchewan, this 14 th day of June, A.D. 2012. “ Caldwell J.A.” Caldwell J.A. I concur. “ Lane J.A. ” Lane J.A.

I concur. “Smith J.A.” Smith J.A.