R v Kossick, 2018 SKCA 55

Court of Appeal for Saskatchewan Docket: CACR3004 Citation: R v Kossick , 2018 SKCA 55 Date: 2018-07-18 Between: Her Majesty the Queen Appellant And Daniel Thomas Kossick Respondent Before: Caldwell, Herauf and Ryan-Froslie JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Herauf The Honourable Madam Justice Ryan-Froslie On Appeal From: 2017 SKPC 67 , Saskatoon Appeal Heard: January 17, 2018 Counsel: Wade E. McBride and Stacey Cameron for the Appellant David A. Piché for the Respondent Caldwell J.A. I.

Introduction [ 1 ] Following a trial ( R v Kossick , 2017 SKPC 67 ), a Provincial Court judge acquitted Daniel Thomas Kossick on charges of: (

a) possession of methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19; (

b) possession of property obtained or derived as the result of crime, contrary to s. 5(1) of the Controlled Drugs and Substances Act ; (

c) breach of undertaking for failing to keep the peace, contrary to s. 145(3) of the Criminal Code , RSC 1985, c C-46; and (

d) breach of undertaking for possessing non-prescription drugs, contrary to. s. 145(3) of the Criminal Code . [ 2 ] In a voir dire , the judge found the police had violated Mr. Kossick’s ss. 8 and 9 Charter rights and excluded certain evidence pursuant to s. 24(2) of the Charter . In the trial proper, the judge found the remaining evidence insufficient to establish Mr. Kossick’s guilt beyond a reasonable doubt and entered acquittals accordingly. The Crown appeals against the acquittals, contending the judge erred in finding Charter breaches and by excluding evidence. [ 3 ] I would dismiss the Crown’s appeal.

I am not persuaded the judge erred in reaching the conclusion that the police had breached Mr. Kossick’s Charter rights in the circumstances of this case. Further, given the deferential standard of appellate review of a s. 24(2) analysis, I am also not persuaded to interfere with the judge’s decision to exclude the evidence obtained through the Charter breaches. II. Background [ 4 ] On the morning of August 31, 2016, Constable Parker of the Saskatoon Police Service was patrolling in a marked police vehicle. While stopped at an intersection, he saw Mr. Kossick riding a bicycle. Constable Parker recognised Mr.

Kossick from previous interactions with police. Constable Parker was also aware that Mr. Kossick was a suspect in a recent bicycle theft. [ 5 ] Constable Parker recalled an August 22, 2016, service-wide email from Constable Hobman about a bike theft. The email had attached images of suspects, including Mr. Kossick. Upon viewing the attachments, Constable Parker had told Constable Hobman that one of the suspects was Mr. Kossick. Constable Hobman then told Constable Parker that charges would be laid against Mr. Kossick for theft and, in fact, Constable Hobman requested a warrant for Mr.

Kossick’s arrest the next day. Constable Parker had no further involvement with the matter and did not know that Mr. Kossick had been arrested on August 27, 2016, and released on conditions shortly thereafter. Four days later, when Constable Parker saw Mr. Kossick at the intersection, he radioed Constable Hobman to find out whether Mr. Kossick was subject to being arrested. Constable Hobman said he was. Constable Parker did not consult any police record or database to confirm that. [ 6 ] Constable Parker waited in his patrol vehicle until he could proceed through the intersection.

He then made a left-hand turn to travel in the same direction as Mr. Kossick. At this point, Constable Parker ran Mr. Kossick’s name on the electronic databases installed in his patrol vehicle, namely, the Canadian Police Information Center database [CPIC] and the Saskatoon Information Management System database [SIMS]. CPIC is a national service that indicates whether there is a warrant outstanding for an individual or if an individual is subject to any release conditions. SIMS is a local system that contains detailed histories of contacts between the

Saskatoon Police Service and individuals. SIMS also indicates whether a warrant has been executed or if a suspect has been arrested. These two databases are linked together. Both were installed on the computer in Constable Parker’s patrol vehicle. [ 7 ] Constable Parker followed Mr. Kossick for a short time and then engaged his siren and directed him into an empty parking lot. Although he ran Mr. Kossick’s name, Constable Parker did not read or review the information about Mr. Kossick on CPIC or SIMS prior to arresting him. [ 8 ] Promptly upon detaining him, Constable Parker informed Mr.

Kossick that he was under arrest for theft under $5,000, placed him in handcuffs and searched him incident to that arrest. In Mr. Kossick’s pockets, Constable Parker found $90 cash, two cellphones and a baggie of methamphetamine weighing 3.82 grams. The officer seized the methamphetamine and returned the cash and cellphones to Mr. Kossick’s pocket. [ 9 ] After the search incident to arrest, Mr. Kossick informed Constable Parker that he had already been arrested and released in relation to the bike theft. Constable Parker then consulted CPIC and SIMS. SIMS confirmed Mr.

Kossick had been arrested on August 27, 2016, in relation to the bike theft. Accordingly, Constable Parker advised Mr. Kossick that he was no longer under arrest for the theft, but was now under arrest for possession of a controlled substance and for breaching his conditions of release. He placed Mr. Kossick in the backseat of the patrol vehicle. [ 10 ] While in the patrol vehicle, Constable Parker observed Mr. Kossick pick up one of his cellphones and begin manipulating it. Constable Parker took that cellphone from Mr. Kossick and placed it atop his duty bag on the front passenger seat. While Mr.

Kossick’s cellphone was on the passenger seat, Constable Parker observed it receive several messages. He did not have to touch the cellphone to see the message notifications. [ 11 ] At the police station, Constable Parker again observed the cellphone receiving messages. The nature and number of messages led Constable Parker to believe they were related to the methamphetamine he had seized from Mr. Kossick. Constable Parker then opened Mr. Kossick’s cellphone by pressing a button and he scrolled up and down to view the content of the messages. Constable Parker even responded to two of them. After placing Mr.

Kossick in cells, Constable Parker went to the exhibit room to make notes about what he had observed on Mr. Kossick’s cellphone. While there, Constable Parker answered two incoming calls and listened to audio messages on Mr. Kossick’s cellphone. [ 12 ] Based on the content of the messages and the fact Mr. Kossick had had two cellphones, $90 cash and a baggie of methamphetamine, Constable Parker formed the belief that Mr. Kossick had been in possession of methamphetamine for the purpose of trafficking. Accordingly, Constable Parker arrested Mr.

Kossick for that offence and for possession of property obtained or derived from a crime. [ 13 ] Later, on January 7, 2017, Constable Parker obtained a search warrant for the cellphone he had examined previously. Sergeant McMillan, of the Saskatoon Police Service Technological Crimes Unit, analysed the contents of Mr. Kossick’s cellphone and prepared an extraction report. The analysis related to pre-arrest messages. [ 14 ] At Mr. Kossick’s trial, the Crown sought to adduce expert opinion evidence of Corporal Dalton Marciniuk on matters related to the methamphetamine trade and use.

Corporal Marciniuk had prepared two reports on the use of and trafficking in methamphetamine and his

interpretation of the messages and conversations recorded on Mr. Kossick’s cellphone. Accordingly, the judge held a voir dire to ascertain Corporal Marciniuk’s expert qualifications and the nature and scope of his expertise ( R v Kossick , 2017 SKPC 66 ). In the result, the judge accepted Corporal Marciniuk as an expert on several aspects of methamphetamine trade and use, but limited the scope of his qualified expertise. [ 15 ] As preliminary matters, Mr.

Kossick had alleged his first arrest (for bike theft) by Constable Parker had breached his s. 9 Charter rights and that the searches (of his person and phone) incident to that arrest had breached his s. 8 Charter rights. Under s. 24(2) of the Charter , Mr. Kossick sought exclusion of the evidence obtained thereby, namely, the drugs, cash, cellphones and data extracted from the cellphones. In a second voir dire , the judge addressed Mr.

Kossick’s Charter arguments, finding the first arrest unlawful thereby breaching s. 9 of the Charter , and she concluded the searches incident to that arrest had violated s. 8 of the Charter . Furthermore, the judge determined the searches of Mr. Kossick’s cellphone had not complied with the requirements set down in R v Fearon , 2014 SCC 77 , [2014] 3 SCR 621. [ 16 ] Under s. 24(2) of the Charter , the judge characterised Constable Parker’s conduct as negligent and highly intrusive. She found the search of the cellphone had significantly impacted Mr.

Kossick’s Charter rights and determined the number of Charter breaches had contributed to the seriousness of the state conduct. Although the impugned evidence was integral to the Crown’s case and understanding that the offence of possession for the purposes of trafficking is a serious offence, the judge concluded the proper balance called for exclusion of the evidence. In the judge’s assessment, the remaining evidence was insufficient to establish Mr. Kossick’s guilt beyond a reasonable doubt and so she acquitted him of all charges. [ 17 ] The Crown now appeals against the acquittals. III.

Standard of Review [ 18 ] The Crown’s right to appeal against an acquittal on an indictable offence is limited to questions of law alone ( Criminal Code , s. 676(1)(a)). Further, the Crown must satisfy the appellate court that the error of law had a material bearing on the acquittal: R v Graveline , 2006 SCC 16 at para 14 , [2006] 1 SCR 609. [ 19 ] A judge’s application of the Charter raises a question of law: R v Ramos , 2011 SKCA 63 at para 19 , 371 Sask R 308.

A judge’s finding of fact is entitled to deference; however, the application of a legal standard to the facts to establish a Charter violation is subject to the correctness standard: R v Shepherd , 2009 SCC 35 at para 20 , [2009] 2 SCR 527.

[20] The standard of review applied to a judge’s s. 24(2) analysis is narrow and deferential. Absent an error in principle or where itis clear the trial judge made an unreasonable finding, an appellate court will generally not intervene in a judge’s decision to excludeevidence: R v Grant, 2009 SCC 32, [2009] 2 SCR 353; R v Buhay, 2003 SCC 30, [2003] 1 SCR 631; R v McMahon, 2018 SKCA 26; R vKoma, 2015 SKCA 92, 465 Sask R 188; R v Turpin, 2012 SKCA 50, 393 Sask R 184. IV. Issues [21] The Crown’s appeal raises issues as to whether the judge erred by: (

a) finding the arrest was unlawful; (

b) finding the searches were unreasonable; (

c) excluding evidence; and (

d) failing to admit expert evidence. V. Analysis A.

Section 9 of the Charter–arrest [22] As the warrant authorising Mr. Kossick’s arrest had already been filled, his arrest by Constable Parker was a warrantlessarrest. As such, the Crown bore the burden of proving at trial that Constable Parker had reasonable grounds to arrest Mr. Kossick. Thismeans the Crown had to establish that Constable Parker had held the subjective belief that Mr.

Kossick was subject to an arrest warrantor was otherwise arrestable and had to show that this subjectively-held belief was objectively reasonable. [23] Here, after reviewing the evidence, the judge was satisfied Constable Parker had subjectively believed he was acting lawfullywhen arresting Mr. Kossick. However, the judge concluded Constable Parker’s belief was not objectively reasonable in thecircumstances. In reaching this conclusion, the judge wrote: [44] In the present case, I am satisfied that Cst. Parker’s belief that Mr. Kossick was arrestable was subjectively reasonable. He knewMr.

Kossick had been the suspect in relation to a theft and was told by the lead investigator that Mr. Kossick could be arrested. Thequestion is whether Cst. Parker’s belief was objectively reasonable. [45] In R v Shinkewski, 2012 SKCA 63 [at para 13, 289 CCC (3d) 145] [Shinkewski], the Court of Appeal stated the following withregard to “reasonable grounds” for an arrest [some authorities omitted]: [13] ... (

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 or a prima faciecase for conviction before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” or ahunch; (

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; (

d) a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion; (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”; context includes the experienceand training of the arresting officer. [46] The Court of Appeal also stated that an otherwise lawful arrest is not invalidated by the subsequent discovery of deficiencies ordefects in the information upon which the police have relied unless, in the circumstances of the arrest, the police could reasonably havemade inquiries which would have led to the discovery of the deficiencies or defects: Shinkewski, para 19. [24] Applying the identified principles, the judge undertook to determine whether, in the circumstances, Constable Parker couldhave reasonably made inquiries that would have led him to discover the defect in Constable Hobman’s advice.

She summarised thecircumstances of the arrest as follows: [56] The circumstances known to Cst. Parker at the time of arrest are as follows: Mr. Kossick was a suspect in the theft of a bicycle;Cst. Hobman, the lead investigator, told him Mr. Kossick was arrestable on that charge; Cst. Parker was in a patrol car equipped withCPIC and SIMS; it would take two minutes to access information about Mr. Kossick; Cst. Parker observed Mr. Kossick riding in adifferent direction on a bicycle. Cst. Parker was unaware that Mr. Kossick had been previously arrested on the theft charge and released. …

[59] Given Cst. Parker’s experience, I accept his evidence regarding the operation of CPIC and SIMS. An existing warrant will berecorded on CPIC and SIMS. Once the warrant has been executed, it is removed from CPIC. However, information about an arrest isrecorded on SIMS. [60] Cst. Parker was able to locate Mr. Kossick’s name on CPIC and SIMS after speaking with Cst. Hobman and prior to pulling overMr. Kossick. And, once Mr. Kossick explained that he had been previously arrested on the theft, Cst.

Parker was able to verify readilythat information on SIMS in the patrol car. [25] Taking into account all of the circumstances, but particularly the lack of urgency and Constable Parker’s experience, thejudge found Constable Parker could have reasonably reviewed the SIMS database and would then have discovered the correctinformation about the warrant. On this basis, the judge found Constable Parker’s subjective belief was not objectively reasonable and,therefore, that the arrest was unlawful: [63] A reasonable person in the shoes of Cst.

Parker, fully aware of the system’s particular idiosyncrasies, with information availableto him to confirm, and without any real urgency, would have made the inquiries of SIMS to verify the information from Cst. Hobman. [64] I am not suggesting that in all cases an officer who receives what he believes to be reliable information from a fellow officershould take independent steps to verify the information before making an arrest. That would not be reasonable or practical in manycircumstances. In this case, Cst. Parker could reasonably have done so, by referring to CPIC and SIMS open to Mr.

Kossick’s name inhis vehicle prior to Mr. Kossick’s arrest. [26] In challenging this finding, the Crown asserts correctly that the police can make a valid, warrantless arrest based on erroneousinformation; but, that broad statement is not without qualification.

As the judge well understood, police reliance on erroneousinformation may be considered objectively reasonable “unless, in the circumstances at play in the arrest situation, the police couldreasonably have made inquiries which would have led to the discovery of the deficiencies or defects” in that information: R v Shinkewski,2012 SKCA 63 at para 19, 399 Sask R 11; see also R v Charles, 2012 SKCA 34, 393 Sask R 19. [27] However, the Crown submits the trial judge erred by relying solely on R v Shinkewski for the legal test to assess objectivereasonableness.

The Crown says the decision in World Bank Group v Wallace, 2016 SCC 15, [2016] 1 SCR 207, creates an exception tothe general principles set out in R v Skinkewski. In particular, the Crown refers to the following statement in World Bank Group vWallace: [123] When assessing a subfacial challenge [to a warrant], it is important to note that affiants may not ignore signs that other officersmay be misleading them or omitting material information.

However, if there is no indication that anything is amiss, they do not need toconduct their own investigation [authorities omitted]. [Emphasis added] The Crown argues the foregoing statement supports the conclusion that Constable Parker was entitled to rely on incorrect informationfrom Constable Hobman without taking any further steps because Constable Parker had no indication anything was amiss with whatConstable Hobman had told him.

On this basis, the Crown says Constable Parker’s subjective belief was objectively reasonable and,therefore, the judge erred when she concluded otherwise. [28] However, I do not agree that the exception in World Bank Group v Wallace applies in the circumstances at hand. In WorldBank Group v Wallace, the Supreme Court of Canada was dealing with a very different circumstance than determining the objectivereasonableness of a warrantless arrest.

There, the Court was determining the proper threshold for an O’Connor application (R vO’Connor, (SCC), [1995] 4 SCR 411) made in support of a Garofoli application (R v Garofoli, (SCC),[1990] 2 SCR 1421) that challenged the reasonableness of a wiretap authorisation under ss. 185 and 186 of the Criminal Code. The Courtsummarised the statutory preconditions for a valid warrant in those circumstances as follows: [118] In this case, the authorization was sought under ss. 185 and 186 of the Criminal Code. The statutory preconditions arestraightforward.

Granting an authorization must be in the best interests of the administration of justice (Criminal Code, s. 186(1)(a)).This means that there must be reasonable grounds to believe an offence has been committed and that information concerning the offencewill be obtained (Duarte, at p. 45).

Other investigative procedures must also “have been tried and have failed”, be “unlikely to succeed”,or the matter must be urgent “such that it would be impractical to carry out the investigation of the offence using only other investigativeprocedures” (Criminal Code, s. 186(1)(b)). [29] The question in World Bank Group v Wallace called for a legal analysis that differs notably from that of whether reasonablegrounds existed to justify a warrantless arrest.

Furthermore, the actual focus of the Supreme Court decision was on the threshold for anO’Connor application that had been made in support of a Garofoli application. For the O’Connor application to succeed in that context,the applicant must satisfy the court that the third-party documents sought support an inference that “the affiant knew or ought to haveknown of the errors or omissions” in the information to obtain [ITO].

If the third party documents sought are incapable of supporting thisinference, then they are irrelevant on a Garofoli application. [30] The Supreme Court explained in World Bank Group v Wallace that, if the requested third-party documents could show only apossibility that the ITO was erroneous, then the O’Connor application must fail because the sought-after information would not besufficiently relevant to the issue of the validity of the wiretap authorisation in a sub-facial Garofoli challenge.

It was in this context thatthe Supreme Court stated that an affiant is entitled to rely on information from another officer unless something is amiss. That is, thestatement merely clarified the evidentiary threshold that an applicant must meet to establish the relevance of third-party documents in anO’Connor application. [31] Given the specific and narrow focus of the Supreme Court’s analysis in World Bank Group v Wallace, I am not persuaded thestatement at paragraph 123 of its reasons can be stretched to apply to the facts of this case, i.e., to determine the objective reasonablenessof a warrantless arrest.

Furthermore, the Crown could not provide any case law to support its submission in this regard. In fact, in

subsequent jurisprudence, the courts seem to have narrowly applied the ratio of World Bank Group v Wallace in the context of O’Connoror Garofoli applications. See, as examples: R v Paryniuk, 2017 ONCA 87 at para 47, 134 OR (3d) 321; R v Bennett, 2017 ONCA 780;O’Reilly c R, 2017 QCCA 1283 at para 127; R v McKay, 2016 BCCA 391; see also: R v Merritt, 2017 ONSC 1508.

As such, I find thetrial judge did not err by failing to apply the ratio in World Bank Group v Wallace in her assessment of the objective reasonableness ofConstable Parker’s subjective belief. [32] With the question of law settled, the key difficulty with the Crown’s argument against the finding of an unlawful arrest is thatthe judge found the circumstances had reasonably permitted Constable Parker to inquire into the veracity of the information he hadreceived from Constable Hobman, which had formed the basis of the grounds for arrest.

Frankly, I can find no flaw in the judge’s findingthat the circumstances reasonably allowed Constable Parker the time to verify the information he had received from Constable Hobman. [33] Unlike in R v Shinkewski, the “evolving circumstances” giving rise to Mr. Kossick’s arrest did not preclude Constable Parkerfrom inquiring into the reliability of Constable Hobman’s advice. Constable Parker had the means to do so and, in fact, had started downthat path by keying Mr. Kossick’s name into SIMS just before he pulled him over. The information about Mr. Kossick on SIMS wasreadily-accessible and correct.

Constable Parker was an experienced police officer who was very familiar with CPIC and SIMS.However, he did not access or read the information about Mr. Kossick available on SIMS until after he had arrested him. [34] Finally, the circumstances of Mr. Kossick’s arrest did not require Constable Parker to make a quick decision on theinformation he had been told. The judge addressed this in more particular terms. She questioned Constable Parker’s testimony to theeffect that he could not have made inquiries on CPIC or SIMS prior to arresting Mr. Kossick. She observed that Constable Parker knewMr.

Kossick and knew where he lived—i.e., knew where to locate him if he were to avoid arrest—leading her to conclude there was noreal sense of urgency in the arrest. Furthermore, Mr. Kossick was on a bike and Constable Parker was in a patrol vehicle. ConstableParker testified that, after seeing Mr. Kossick, he took the time to call Constable Hobman. He then waited to proceed through theintersection and followed Mr. Kossick. At this time he typed Mr. Kossick’s name into SIMS and was able to do so without losing sightof him. Constable Parker then followed Mr.

Kossick “on the street until he was able to make a stop with him in a safe place.” OnceConstable Parker saw an empty parking lot, he signalled Mr. Kossick to pull over into it and Mr. Kossick complied with his commands. [35] Given the facts found by the judge, I can find no reversible error in her conclusion that Constable Parker could havereasonably made inquiries of SIMS that would have disclosed the inaccuracy in the information he had received from ConstableHobman. As such, I am not persuaded to interfere with her finding that Mr. Kossick’s s. 9 rights had been violated in the circumstancesof this matter. B.

Section 8 of the Charter—search [36] Although a search incident to an arrest is an exception to the general rule that warrantless searches are unreasonable, it iswell-settled that a reasonable search must be conducted incident to a lawful arrest: R v Stillman, (SCC), [1997] 1 SCR607; R v Caslake, (SCC), [1998] 1 SCR 51; R v Golden, 2001 SCC 83, [2001] 3 SCR 679; Cloutier v Langlois, (SCC), [1990] 1 SCR 158; R v Shinkewski at paras 9, 11 and 25. On this basis, the judge did not err when she found thesearch incident to Mr.

Kossick’s arrest, which uncovered the cellphones, cash and methamphetamine, was unreasonable and a breach ofMr. Kossick’s s. 8 Charter rights. On the same reasoning, the seizure of Mr. Kossick’s cellphone in the patrol vehicle and the viewing ofthe message notifications it received was also unreasonable. [37] Nonetheless, the Crown in this appeal contends the judge erred in applying the R v Fearon criteria to all four of the cellphonesearches. In this case, the police had searched Mr. Kossick’s cellphone and seized evidence from it on four occasions: (

a) in the patrol vehicle; (

b) while Mr. Kossick was in detention at the police station; (

c) in the exhibit room at the police station; and (

d) by the Saskatoon Police Service Technological Crimes Unit pursuant to a warrant. [38] The Crown says the plain view doctrine applied to the first and second searches of the cellphone. However, I am notpersuaded that doctrine applies in these circumstances or that R v Fearon does not. 1. In the patrol vehicle [39] After arresting Mr. Kossick and while in the patrol vehicle, Constable Parker seized one of Mr. Kossick’s cellphones afterobserving him manipulating it. Constable Parker testified he had seized it because he did not want Mr. Kossick to contact anyone whilein custody and as a safety precaution.

Constable Parker placed the cellphone on his front passenger seat atop his duty bag. From thatlocation, he saw the cellphone receive a number of messages. Constable Parker testified he did not have to touch the cellphone to seeincoming message notifications. [40] The Crown submits the analysis in R v Fearon does not apply to this search of Mr. Kossick’s cellphone because the plainview doctrine applied in the circumstances. Under that doctrine, the Crown says the first search was not unreasonable. The Crown hadmade this same argument at trial, but the judge rejected it, saying: [86] The search by Cst.

Parker in the patrol car, shortly after arrest, involved viewing complete or partial messages as they were beingreceived. The Crown argues those messages were in plain view and that the officer’s conduct did not amount to a search subject to thecriteria set out in Fearon. However, Fearon does not appear to distinguish between a cursory viewing of cell phone messages and thoserequiring some positive act on the part of the officer. For example, both locked and unlocked cell phones engage significant privacyinterests: Fearon, para 53.

In this appeal, the Crown submits the judge erred by resorting to R v Fearon and it asks us to endorse the application of the plain viewdoctrine in the circumstances at hand. The Crown’s argument is without merit. I find the facts of this case do not invoke the plain viewdoctrine. [41] First, the plain view doctrine cannot save a search conducted incident to an unlawful arrest.

In R v Golschesky, 2013 SKCA116, 423 Sask R 308, Jackson J.A. wrote: [92] In order to have a valid plain-view search, the officer must be lawfully in a position from which the evidence was plainly in view(see: James Fontana and David Keeshan, The Law of Search & Seizure in Canada, 8th ed. (Markham: LexisNexis, 2010) at 671; R. v.Spindloe, 2001 SKCA 58 at paras. 42-43; [2002] 5 W.W.R. 239).

Once the trial judge found that the warrant was invalid, and in theabsence of any findings to support the police presence based on exigent circumstances, the police were not lawfully in a place to supporttheir plain view discovery. Thus, the second part of the Crown’s argument on this point, i.e., that the police could search Ms.Golschesky’s premises as an incident to a lawful arrest following a plain view discovery, also fails.

As I have found no error in the judge’s finding of an unlawful arrest, the Crown’s argument on the first search must fail on that basisalone. [42] However, even if that hurdle were overcome, I find the doctrine does not apply on the facts of this case. The plain viewdoctrine is a common law exception to the general rule that warrantless searches are unreasonable. James A.

Fontana and David Keeshanin The Law of Search and Seizure in Canada, 10th ed (Toronto: LexisNexis Canada, 2017) at 959, define the doctrine as follows: “Plain view” occurs when items fall into the view of an officer who has a right to be in the position he is in to have the view he has had;and such items have been held at common law to be subject to seizure without warrant. [43] The plain view doctrine applies to electronics, including cellphones and computers: R v Jones, 2011 ONCA 632 at para 64,107 OR (3d) 241; R v Gelowitz, 2017 BCPC 325, 396 CRR (2d) 1. [44] In R v Jones, 2011 ONCA 632, the Ontario Court of Appeal summarised the criteria which must be met to establish a lawfulexercise of police power pursuant to the plain view doctrine: [56] The “plain view” doctrine operates when a police or peace officer is in the process of executing a warrant or an otherwiselawfully authorized search with respect to one crime and evidence of another crime falls into plain view.

Resort to this common lawpower is subject to the following restraints, however: (

i) the officer must be lawfully in the place where the search is being conducted (“lawfully positioned”, in the language of theauthorities); (ii) the nature of the evidence must be immediately apparent as constituting a criminal offence; (iii) the evidence must have been discovered inadvertently; (iv) the plain view doctrine confers a seizure power not a search power; it is limited to those items that are visible and does not permit anexploratory search to find other evidence of other crimes. See, generally, R. v. Spindloe (2001), 2001 SKCA 58 , 154 C.C.C. (3d) 8 (Sask. C.A.), at pp. 29-37; R. v.

Fawthrop (2002), (ON CA), 166 C.C.C. (3d) 97 (Ont. C.A.), at paras. 28-34; R v Law, supra, at para. 27, and the authorities citedtherein. [45] In R v Spindloe, 2001 SKCA 58, 207 Sask R 3, this Court discussed the scope of the plain view doctrine. Although reluctant toimpose rigid requirements on the assessment of a reasonable seizure pursuant under the plain view doctrine, Jackson J.A. explained howpolice who are lawfully present in premises may seize property that is in plain view “as long as there is probable cause to associate thediscovered property with criminal activity” (at para 42).

Justice Jackson emphasised that the plain view doctrine confers upon the policea power to seize property, not to search it (para 50). [46] In this case, Constable Parker testified that his observations in the police vehicle were limited to simply seeing the cellphonereceive a number of messages and reading the names of the persons who had sent them. Constable Parker stated it was not until hereviewed the messages in more detail (during the second search) that he was able to read their full content. He also said he formed hisbelief that the messages related to methamphetamine trafficking after he had read them.

This also means the evidence was not discoveredinadvertently. [47] Given this evidence, the Crown has not persuaded me that Constable Parker had probable cause to associate the messagesreceived on the cellphone in the patrol vehicle with any criminal activity. That is, on the facts, Constable Parker’s observations in thepatrol vehicle did not make it immediately apparent to him that the messages were evidence of criminal activity. As such, the judge didnot err by rejecting the application of the plain view doctrine in the circumstances. 2.

At the police station [48] During the second search, while Constable Parker was making notes of his initial search, he again observed the cellphonereceiving messages. This occurred at the police station following Mr. Kossick’s arrest. Constable Parker read the full or partial text ofmessages as they were received by the cellphone without having to open or unlock the cellphone. As noted, the nature and number ofmessages led him to believe they might evidence methamphetamine trafficking.

Constable Parker then opened the cellphone and scrolledthrough messages it had received on an installed Facebook Messenger application. The cellphone was not locked, but required ConstableParker to press a button to access its features. While reviewing the messages, he responded to two of them.

[ 49 ] The Crown asserts the plain view doctrine applies here. The judge, however, applied the analysis in R v Fearon to determine the reasonableness of the search. Put simply, the moment Constable Parker opened the cellphone and began to scroll through and review the text of the messages it had received, the plain view doctrine ceased to have any application. As Jackson J.A. noted in R v Spindloe , the plain view doctrine confers a seizure power on the police, not a search power.

It does not permit the police to conduct exploratory searches of phones to find and seize other evidence of other possible crimes. [ 50 ] As the judge understood, Constable Parker’s second search of the cellphone was a “more thorough search” that engaged R v Fearon . In her written decision (at para 81), the judge summarised the R v Fearon requirements and undertook a careful analysis of the circumstances to determine whether they had been satisfied.

In this appeal, the Crown has not argued that the judge erred in her application of R v Fearon ; rather, it says R v Fearon was not the applicable analysis in the circumstances. I can see no reversible error in the judge’s conclusion in that regard, based—as it is—largely on the facts as she found them. 3. In the exhibit room [ 51 ] The third search occurred when Constable Parker went to an exhibit room at the police station to make notes of the messages he had earlier reviewed. At this time, Constable Parker answered two incoming calls and listened to several voice messages.

For the same reasons discussed in relation to the second search, the Crown had to establish that the search satisfied the criteria in R v Fearon . The judge found it did not and that it was, therefore, an unreasonable search. I find no reversible error in her analysis or conclusion. 4. The Technological Crimes Unit search [ 52 ] Five months after the third search, Constable Parker obtained a search warrant for the cellphone predicated on the three earlier searches conducted on the day of the arrest.

Under that warrant, the Technological Crimes Unit of the Saskatoon Police Service searched the cellphone and extracted its data. The Crown concedes that if the initial search of the cellphone was unreasonable, then the search pursuant to the warrant is also unreasonable because the warrant was granted on the basis of the initial searches. Accordingly, the search by the Technological Crimes Unit constitutes a breach of s. 8 of the Charter . C.

Section 24(2) of the Charter —exclusion of evidence [ 53 ] As an alternative argument on appeal, the Crown submits the judge committed a legal error in her decision to exclude the evidence obtained through the four searches pursuant to s. 24(2) of the Charter . The Crown alleges particularly that the judge: (

a) failed to situate the breaches on a spectrum of seriousness; (

b) employed a categorical approach to the cellphone searches when a more nuanced analysis of each was necessary to determine the impact of each breach; and (

c) erred in concluding the cumulative impact of the breaches called for exclusion of the evidence obtained. [ 54 ] In her written decision, the judge divided the breaches into the arrest, the search incident to the arrest, and the subsequent searches at the police station. She discussed the circumstances leading to each search and assessed the seriousness of each resulting breach. In discussing the seriousness of the unlawful arrest, the trial judge recognized that Constable Parker had a basis for his belief that Mr.

Kossick was subject to an arrest warrant; however, she stated that he “chose expediency over diligence, and as such was negligent” (at para 117). The trial judge said the initial search of the cellphone involved “minimal intrusion” but categorised the second, more- thorough search of the cellphone at the police station as “serious” because it had been undertaken to look for evidence of the more serious charge of possession for the purposes of trafficking.

The judge found the search pursuant to the search warrant had been “highly intrusive” (at para 121). [ 55 ] On this basis, I find no merit to the Crown’s first allegation of error—namely, that the judge failed to consider the seriousness of each breach or to place each breach on a spectrum of seriousness.

As her reasons demonstrate, the judge had full appreciation of the seriousness of each breach. [ 56 ] After she considered the seriousness of each breach, the judge turned to address the cumulative effect of the breaches and concluded: [127] Taken together, the breaches are sufficiently serious that they would “undermine public confidence in the rule of law”.

As such, the seriousness of the breaches favours exclusion of the evidence. [ 57 ] The Crown’s second allegation of error is that the judge improperly considered all of the searches under the same umbrella of “cell phone searches” and failed to distinguish the different reasons or distinct legal basis for each search. Without having done so, the Crown submits, the judge failed to accurately assess the impact of each breach on Mr. Kossick’s Charter rights and, therefore, erred in her analysis. [ 58 ] I am not persuaded by the Crown’s argument. Despite the fact the police had breached Mr.

Kossick’s s. 9 right once and his s. 8 rights on four separate occasions, the first search was incident to the unlawful arrest and each subsequent search was chained to the earlier ones. Each search was a search of the same cellphone and raised the same privacy interests of Mr. Kossick. The first three searches occurred on the same day and would not have occurred but for the unlawful arrest. The Crown conceded the legality of the last, most intensive search rose or fell on the legality of the earlier searches.

Certainly, the judge had considered the circumstances of each of the searches separately under her assessment of their seriousness , and she could have similarly detailed the impact of each breach separately; but, as I see it, she was not required to do so in the circumstances. [ 59 ] In sum, I am not prepared in the context of this appeal to conclude the judge erred by assessing the cumulative impact of the

searches on Mr. Kossick’s Charter rights to be secure against unreasonable search or seizure. [ 60 ] Lastly, the Crown submits the trial judge erred in her balancing of the interests at play under s. 24(2) of the Charter when she concluded the cumulative nature of the four breaches called for the exclusion of the evidence obtained. The Crown submits that the Charter breaches were “essentially a single incident” and, therefore, the number of breaches could not magnify their cumulative severity.

While I have found the judge did not err in deciding to assess the cumulative impact of the separate Charter breaches, I am not persuaded to the Crown’s view of the breaches as being a single incident. There is no discordance in this. The first involves an examination of the impact of multiple Charter breaches largely on a single Charter right.

The second involves multiple, separate acts or omissions on the part of the state, occurring in separate locations, in different circumstances, albeit most of them on the same day. [ 61 ] In my overall assessment, the judge applied the appropriate legal framework in her s. 24(2) analysis and her conclusion is, therefore, entitled to appellate deference. D.

Admissibility of expert evidence [ 62 ] Lastly, the Crown submits the trial judge erred by excluding aspects of their expert’s evidence, namely, that related to consumption or usage patterns of methamphetamine and the significance of the absence of tools typically found in the possession of methamphetamine users. However, given my conclusions on the legality of the arrest and subsequent searches, I do not find it necessary to consider this last argument. VI. Conclusion [ 63 ] I would dismiss the Crown’s appeal. “Caldwell J.A.” Caldwell J.A. I concur. “Herauf J.A.” Herauf J.A.

I concur. “Herauf J.A.” as authorized by Ryan-Froslie J.A.