R v Maxim, 2018 SKCA 57

Court of Appeal for Saskatchewan Docket: CACR3034 Citation: R v Maxim , 2018 SKCA 57 Date: 2018-07-23 Between: David Wayne Maxim Appellant And Her Majesty the Queen Respondent Before: Jackson, Herauf and Whitmore JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Herauf In concurrence: The Honourable Madam Justice Jackson The Honourable Mr.

Justice Whitmore On Appeal From: 2017 SKPC 37 , Yorkton Appeal Heard: June 14, 2018 Counsel: Ian Wagner for the Appellant Craig Neely for the Respondent Herauf J.A. [ 1 ] David Maxim was operating a motor vehicle that had been lawfully stopped pursuant to the authority under The Traffic Safety Act , SS 2004, c T-18.1. Constable Markham, the officer executing the traffic stop, had received training and had significant experience dealing with signals and warning signs associated with individuals who are transporting contraband and illegal goods. [ 2 ] As a result of Cst.

Markham’s observations during the traffic stop and applying his training experience, he believed he had reasonable grounds to arrest Mr. Maxim for a drug-related offence. After the arrest, a search of Mr. Maxim’s vehicle incident to the arrest disclosed 40 pounds of marihuana in vacuum-sealed bags in two suitcases in the trunk. [ 3 ] Mr. Maxim was charged with possession for the purpose of trafficking. Mr. Maxim raised Charter issues alleging that his ss. 8 and 9 Charter rights had been violated. A blended voir dire was held and the trial judge concluded that Mr.

Maxim’s ss. 8 and 9 Charter rights had in fact been breached. The trial judge held, however, that the admission of the evidence would not bring the administration of justice into disrepute under s. 24(2) of the Charter . As a result, Mr. Maxim was convicted. [ 4 ] Mr. Maxim appeals from his conviction. He contends the trial judge erred in his s. 24(2) analysis and the evidence should not have been admitted. [ 5 ] The Crown counters by arguing the impugned evidence should not be excluded and the trial judge’s conclusions that (

a) the breaches were not serious, (

b) they did not have a significant impact on Mr. Maxim’s Charter -protected interests, and (

c) society had an interest in seeing the charges determined on the merits were reasonable. The Crown also contends that the decision can be sustained on the basis that Mr. Maxim’s rights were not in fact breached. [ 6 ] The trial judge held that Cst. Markham had a reasonable suspicion that Mr. Maxim had violated or was violating the Controlled Drugs and Substances Act , SC 1996, c 19 (see R v Maxim , 2017 SKPC 37 at para 22 ). Therefore, Mr. Maxim was lawfully detained. That issue is not disputed. The trial judge concluded, however, that Cst. Markham did not have reasonable grounds to arrest Mr. Maxim.

In coming to this conclusion, the trial judge took into account three additional factors relied upon by Cst. Markham in addition to his observations relating to reasonable suspicion to detain: (

i) the amount of cash found in Mr. Maxim’s pocket; (ii) Mr. Maxim’s throbbing carotid artery; and (iii) Mr. Maxim did not appear to be surprised that he was being detained for a drug investigation. The trial judge did not find these additional factors sufficient to provide reasonable grounds for Cst. Markham to arrest Mr. Maxim. The trial judge concluded that Mr. Maxim’s ss. 8 and 9 Charter rights had been violated. [ 7 ] In his s. 24(2) analysis, the trial judge held that, with respect to the seriousness of the breach, the grounds for arresting Mr.

Maxim fell just short of a reasonable belief and were at the lowest end of the spectrum of severity. [ 8 ] As to the impact of the breach of Mr. Maxim’s Charter -protected rights, the trial judge found it to be in the medium range because the search of Mr. Maxim’s rented vehicle involved a reduced sense of privacy and did not give rise to issues of bodily integrity or human dignity. [ 9 ] With reference to society’s interest in the adjudication of this case on its merits, the fact that the 40 pounds of vacuum-sealed marihuana were found clearly supported the admission. [ 10 ] Mr.

Maxim argues that the trial judge failed to take into account the level of experience and training Cst. Markham had when he considered the seriousness of the breach, as well as the officer’s failure to employ the drug detection dog. Mr. Maxim also argues that the pat-down search was itself a Charter breach (although not argued before the trial judge). These factors, according to Mr. Maxim, should have elevated the offending police behaviour to the “serious” end of the spectrum.

[ 11 ] On the issue of impact, Mr. Maxim argues the trial judge erred by failing to give due deference to the fact that a person has substantial privacy interests in a vehicle and by failing to recognize Mr. Maxim intended to preserve his privacy by locking the luggage. Further, Mr. Maxim submits that the trial judge failed to consider the impact of the Charter breach through the lens of all citizens.

Finally, he argues that the trial judge placed too much weight on the societal interest in the case. [ 12 ] When considering the standard of review of a decision made under s. 24(2), I note that considerable deference is owed to the trial judge’s weighing of the relevant factors. In order for this Court to undertake its own s. 24(2) analysis, I must find that the trial judge has overlooked some relevant factor or made an error in law or principle when conducting the s. 24(2) analysis at first instance. [ 13 ] I can find no such error on the part of the trial judge in this case.

The trial judge made a finding of fact that the police officer did not deliberately seek to violate Charter rights, but instead acted out of an honest, albeit mistaken, belief that his conduct was Charter compliant. In my view, Mr. Maxim’s attempt to characterize Cst. Markham’s actions as being at the high end of the seriousness spectrum of offending police behaviour, that Cst.

Markham’s decision not to use the drug detection dog as “arrogant” and that his decision to arrest was made in bad faith are not supported by the evidence. [ 14 ] With respect to the failure to use the drug detection dog, the trial judge accepted Cst. Markham’s evidence that he was confident Mr. Maxim had drugs and did not feel he needed to use the drug detection dog. At paragraph 29, the trial judge stated: ... I do accept the officer’s evidence that in this case he was confident that Mr. Maxim had drugs with him.

While using his drug dog to investigate before making this arrest would have clearly established lawful grounds for an arrest, nevertheless I view the officer’s actions, at most, as negligent and falling at the lowest end of the fault spectrum described by the Court of Appeal in Shinkewski . [ 15 ] The reference to this Court’s decision in R v Shinkewski , 2012 SKCA 63 , 399 Sask R 11, relates to the direction for trial judges “to ascertain and impose a definitive degree of ‘fault’ on the state for its misconduct, whether it is labelled ‘inadvertent’, ‘negligent’, ‘reckless’, ‘willfully-blind’, ‘flagrant’, or ‘blatant disregard’” (at para 32).

This is exactly what the trial judge did. In ascertaining the seriousness of the state misconduct, he found Cst. Markham’s decision to not use the drug detection dog as negligent at most. This hardly placed it at the high end of the fault spectrum. [ 16 ] I find no basis upon which to interfere with the findings of the trial judge that: (

a) Constable Markham did not act in bad faith; (

b) Constable Markham did not exhibit an intentional or blatant disregard for Mr. Maxim’s rights; (

c) Constable Markham’s actions were not part of a systemic problem; and (

d) Constable Markham’s actions were not borne of wilful blindness. [ 17 ] Furthermore, I note the trial judge’s finding that Cst. Markham’s grounds supported a reasonable suspicion and fell just short of the reasonable grounds standard. In my view, the officer’s actions were properly situated at the lowest end of the fault spectrum. [ 18 ] With respect to impact, I also agree with the trial judge that there is a lesser expectation of privacy in an automobile and there had been no unjustified or intrusive strip search or body cavity search. As well, Mr.

Maxim, both at trial and before this Court, placed reliance on the Alberta Court of Appeal decision in R v Quilop , 2017 ABCA 70 , 353 CCC (3d) 525 [ Quilop ]. Mr. Maxim asserts Quilop stands for the proposition that trial judges must concentrate on the rights of all citizens and not only the rights of an accused when considering the second stage of the s. 24(2) analysis. Mr. Maxim contends that the failure of the trial judge to do so in this case results in a reversible error.

The analysis for this submission begins with what the Alberta Court of Appeal stated in Quilop at paragraph 43 : This branch of the Grant test must not only consider the appellant in assessing the impact of the breach on him, but it must also consider the circumstances of an ordinary, innocent citizen subjected to the same Charter -infringing conduct . To employ the words of the Supreme Court in Grant , it is the extent to which the breach undermined the interest protected which must be evaluated under this branch of the three-part test (para 76), not just the appellant’s interest in the protected right.

The seriousness of the infringement must be looked at from the perspective of the importance of the interest impacted by the infringement. Not just the accused’s interest, but the interests of all citizens.

And the more serious the impact on the protected interest, the greater the risk that admission of evidence “may signal to the public that Charter rights, however high-sounding, are of little avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute” (para 76). (Emphasis added) [ 19 ] The Alberta Court of Appeal is suggesting that the second stage of the Grant test ( R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ]), requires a further consideration of an “ordinary” and “innocent” citizen subjected to the same Charter -infringing conduct.

Whether this is a correct formulation of the Grant test or an addition to the traditional Grant analysis requires a further examination. [ 20 ] In Grant , the second stage of the s. 24(2) analysis was described as follows: [76] This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

(Emphasis added) [ 21 ] It is difficult to ascertain exactly what the Alberta Court of Appeal relied upon when it stated that the second stage of the Grant analysis requires a court to consider the impact of the Charter -infringing conduct on an ordinary and innocent citizen. The Court cites the Grant decision as authority, but it does not appear that the Supreme Court of Canada in Grant mentioned a second step to this test involving an ordinary and innocent citizen. [ 22 ] However, I am not convinced that the substance of the test is different whether or not this extra requirement is applied.

According to Grant , this stage of the test is concerned with the seriousness of the impact on the accused’s protected interests. Unless the specific accused in mind has a lesser degree of Charter -protected interests than the ordinary and innocent citizen, the result of the analysis should be the same. I find no error on the part of the trial judge in his analysis of the second stage of the s. 24(2) analysis. [ 23 ] Finally, when considering society’s interest, the trial judge properly noted the seriousness of the offence, the reliability of the evidence and its importance to the Crown’s case.

When balancing all of these factors, the trial judge concluded they weighed in favour of admission. [ 24 ] I find no error with the analysis of the trial judge in dealing with s. 24(2) and the admission of evidence. In view of this finding, I do not have to consider whether the Crown can raise its alternative argument that there was no breach of Mr. Maxim’s Charter rights. [ 25 ] The appeal is dismissed. Mr. Maxim is required to surrender into custody with the appropriate authority in Saskatchewan within four days from the date his counsel receives these reasons. “Herauf J.A.” Herauf J.A.

I concur. “Jackson J.A.” Jackson J.A. I concur. “Whitmore J.A.” Whitmore J.A.