2014 SKCA 138 Date:, 2014 SKCA 138

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 138 Date: 2014-12-15 Between: Docket: CACR2366 Her Majesty the Queen Appellant - and - Cassandra Wasilewski Respondent Coram: Lane, Caldwell and Whitmore JJ.A. Counsel: Wade McBride for the appellant Robert Feist for the respondent Appeal: From: Provincial Court Heard: December 15, 2014 Disposition: Appeal allowed (orally) Written Reasons: December 29, 2014 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Caldwell

The Honourable Mr. Justice Whitmore Lane J.A. [ 1 ] The respondent was acquitted, after a voir dire , of a charge of possession of marihuana in an amount not exceeding three kilograms for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19. The information alleged the offence occurred on or about the 5th day of July, 2012 and also charged one Chartier with the same offence.

The trial judge found the police lacked reasonable and probable grounds to arrest the respondent and ruled that, as a direct result of this finding, all evidence obtained from a search of her vehicle incident to arrest, evidence obtained from a search of her cell phone incident to arrest, and a transcript of her interview with the police following her arrest were to be excluded. The Crown appeals the acquittal on a question of law pursuant to s. 676(1) (

a) of the Criminal Code , contending the trial judge erred in finding the arrest was unlawful and, in the alternative, he erred in excluding all of the evidence under s. 24(2) of the Charter . In an oral judgment we allowed the appeal advising counsel brief written reasons would follow. These are the reasons. [ 2 ] For the most part, the facts are not in issue although the respondent stresses the importance of certain events. [ 3 ] In the spring and early summer of 2012, the RCMP were involved in a broad investigation of drug trafficking in the Battleford area.

In May of 2012, undercover police officers were able to purchase marihuana from Chartier. Chartier was known to the police as a drug dealer. He was observed on May 31 being driven by what was thought to be a male driver to the home of one Belyk (also known to be a drug dealer) in a black Volvo SUV. Chartier got out of the vehicle, went into Belyk’s house, made a transaction and carried back to the vehicle what the observing officers believed to be bags of marihuana obtained in a cash exchange. The vehicle was found to be registered to the respondent.

Chartier continued to be under active surveillance. [ 4 ] On July 5, 2012, undercover police were to be supplied with marihuana by Chartier but he told them he first had to “reload” by acquiring more of the drug. His source of supply was Belyk. [ 5 ] On the day of the arrest, the police knew Chartier would be going to Belyk’s house to acquire more marihuana and so set up surveillance of the residence. They saw the same black Volvo SUV driven by a female pull up to the house. Chartier got out of the vehicle and entered the house.

He came out carrying a Wal-Mart shopping bag, which the police believed was full of marihuana. He got into the Volvo SUV, which the police in two vehicles followed and tracked down. When they pulled the vehicle over, the arresting officer opened the door and told the driver, the respondent, she was under arrest for possession of marihuana for the purpose of trafficking. [ 6 ] At the same time, a second police officer approached the passenger side of the vehicle to arrest Chartier. The officer noted a strong odour of marihuana and observed the Wal-Mart bag at Chartier’s feet.

Chartier was holding a cell phone in each hand. He too was arrested. The Volvo SUV was taken back to the RCMP detachment where it was searched and the contents of the shopping bag were confirmed to be marihuana. The cell phone information showed the respondent was in fact associated with Chartier and his marihuana trafficking, the trial judge noting the text messages showed the respondent was “in it up to her armpits.” [ 7 ] The trial judge, in brief oral reasons, reviewed the testimony of the arresting officers.

He noted that, prior to the stop of the vehicle, there was no targeting of the respondent and she had not been on the radar screen of the police in regards to this particular drug investigation. On the May 31 incident, the same vehicle arrived at Belyk’s house but the driver was male and not female. The trial judge found there was ample basis for arresting Chartier. He accepted the respondent’s argument that, in order to have reasonable and probable grounds for her arrest, the arresting officer had to have had something which would impute to her knowledge as to what was in the Wal- Mart bag.

He ruled the arresting officer at the time of the arrest did not have reasonable and probable grounds to make the arrest because the respondent had not been involved in any way, to the arresting officer’s knowledge, with Chartier or with the drug scene. The judge found the arresting officer had nothing on her. This was the basis for his finding the arrest was unlawful. [ 8 ] He then went on to say, “But without a lawful arrest, then everything behind it, in my view, falls. And correct me, if you believe, Mr.

Quon -- you might not agree with my decision, but is that the natural domino effect that -- that falls down through the case?” The prosecutor responded, “Exactly” (T247). There was no s. 24(2) analysis. [ 9 ] The appellant argues the trial judge erred in finding the arrest was unlawful; he erred in excluding all of the evidence under s. 24(2) and his reasons were inadequate. On the issue of the lawfulness of the arrest, the appellant argues the trial judge failed to apply the “totality of the circumstances” test in assessing the existence of reasonable and probable grounds to arrest.

The trial judge relied solely on the absence of evidence of the respondent’s knowledge of Chartier’s criminality and ignored all of the other circumstantial factors. The appellant refers to other circumstantial factors—the previous association of the respondent’s vehicle with Chartier and Belyk, the odour of marihuana, and the fact it would be unlikely for a drug dealer to take an “innocent” to a drug deal. [ 10 ] The trial judge further erred, according to the appellant, by requiring the police to have information about the identity of the respondent prior to arresting her.

The appellant argues the trial judge demanded a higher standard of proof for reasonable and probable grounds, i.e. she had to know marihuana was in the bag. [ 11 ] The respondent contends the trial judge was correct in finding the police lacked reasonable and probable grounds at the time of the arrest.

She says the only information they had was that she was simply present at the time the suspected offence was occurring with respect to Belyk and Chartier and this is insufficient to establish reasonable and probable grounds that she had or was about to commit an indictable offence. [ 12 ] The respondent emphasizes the arrest occurred immediately after the vehicle was stopped and before any effort was made to identify the respondent in order to determine her involvement in the impugned activities. The respondent also notes no evidence was

seized from the vehicle at the time of the arrest. No warrant had been sought to search the respondent’s vehicle as she was unknown tothe police. The respondent also says the trial judge’s statement does not establish with certainty that the respondent ever personally hadknowledge of, or control over, the marihuana. [13] We note the respondent argued in her factum (but did not press the matter on appeal) the Court did not have the jurisdiction to hearthe matter because the issue of whether there was reasonable and probable grounds for arrest is a finding of fact solely within thediscretion of the trial judge.

To be clear, the existence of reasonable and probable grounds for arrest is a question of law and the standardof correctness applies: R v Nolet, 2010 SCC 24 at para 47, [2010] 1 SCR 851. [14] We are all of the view the trial judge erred in law, by focusing only on the immediate circumstances of the arrest, and failing toconsider all of the relevant information the arresting officer had available based on the investigation as a whole.

This Court has set out alist of factors in considering the lawfulness of a warrantless arrest in R v Shinkewski, 2012 SKCA 63, 289 CCC (3d) 145: [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 objective pointof view - in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there were indeedreasonable 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, but maydisregard 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 timing involved,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, 266 C.C.C. (3d)5, at para 31; and R. v. Luong, 2010 BCCA 158, 286 B.C.A.C. 53, at para. 19. [15] Given this error of law, we are of the view a new trial is necessary. As such, we do not need to deal with the s. 24 argument save tosay the trial judge did err in failing to undertake a Grant analysis to decide whether or not the evidence should be admitted. He simplyassumed that, because he found the arrest to be unlawful, the evidence could not be admitted.

Evidence obtained in a breach of anindividual’s Charter-protected rights may still be admissible depending on whether, in all of the circumstances, its admission wouldbring the administration of justice into disrepute. The onus is on the party seeking to have the evidence excluded to convince the trialjudge its exclusion is warranted under s. 24(2): R v Vu, 2013 SCC 60 at para 68, [2013] 3 SCR 657. [16] The appeal is allowed, the respondent’s acquittal is set aside and a new trial is ordered.