R v Loewen, 2018 SKCA 69

Court of Appeal for Saskatchewan Docket: CACR2830 Citation: R v Loewen , 2018 SKCA 69 Date: 2018-08-27 Between: Derek James Loewen Appellant And Her Majesty the Queen Respondent Before: Richards C.J.S., Herauf and Schwann JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Herauf The Honourable Madam Justice Schwann On Appeal From: Provincial Court, Saskatoon Appeal Heard: December 5, 2017 Counsel: Patrick McDougall for the Appellant Wade McBride for the Respondent Richards C.J.S. I.

Introduction [ 1 ] The appellant, Derek Loewen, was a passenger in a motor vehicle that was stopped by the police for speeding. An officer took Mr. Loewen’s identification and determined, by way of a Canadian Police Information Centre [CPIC] search and a telephone conversation with the relevant authorities, that Mr. Loewen was in breach of a condition of his statutory release. Mr. Loewen was then arrested in anticipation of a warrant being issued. He immediately advised the arresting officer that what he called his “parole” had recently expired. The police took no steps to investigate this claim.

Body searches revealed Mr. Loewen to be in possession of drugs and cash. He was charged with possession for the purpose of trafficking and possession of the proceeds of crime. [ 2 ] Mr. Loewen’s statutory release had, in fact, expired two days before his arrest and, as a result, he had not been in breach of any conditions. This led him to raise a number of Charter challenges in Provincial Court with respect to alleged infringements of his Charter rights to be free from arbitrary detention and unreasonable searches and seizures. The trial judge found there had been some violations of Mr.

Loewen’s rights but ultimately concluded the evidence obtained through those violations, i.e., the drugs and the cash, should not be excluded pursuant to s. 24(2) of the Charter . The trial judge was ultimately unconvinced that the cash represented the proceeds of drug sales. Mr. Loewen was convicted on one count of possession of methylenedioxymethcathinone (methylone) for the purpose of trafficking and one count of being in possession of cocaine. He was sentenced to a total of 42 months imprisonment. [ 3 ] Mr. Loewen appealed both his convictions and his sentence, later abandoning the sentence appeal.

In respect of the convictions, Mr. Loewen contends the trial judge erred by failing to identify all of the violations of his Charter rights and, more particularly, erred in failing to find violations in relation to a detention that occurred when the police took his identification to run the CPIC check and in relation to a search conducted at the police station. As well, Mr. Loewen contends the trial judge erred in failing to exclude the evidence obtained in violation of his Charter rights. [ 4 ] As explained below, there were errors in both the trial judge’s analysis of the extent to which Mr.

Loewen’s Charter rights were violated and in his consideration of whether the evidence should be excluded as per R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ]. I conclude that Mr. Loewen’s appeal must be allowed. II. Factual background [ 5 ] In the early morning hours of September 13, 2013, Mr. Loewen was a passenger in a vehicle being driven in Saskatoon. The vehicle was pulled over for speeding in violation of The Traffic Safety Act , SS 2004, c T-18.1. The stop was effected by Cst. Smith and Cst. Thorsteinson, officers with the Saskatoon Police Service.

They were uniformed and patrolling in a marked police car. [ 6 ] Constable Smith first spoke to the driver and asked him for his licence and registration. Constable Smith then became aware of Mr. Loewen in the passenger seat and requested his identification as well. Both Mr. Loewen and the driver gave Cst. Smith their Saskatchewan Government Insurance [SGI] photo identification cards. Constable Smith testified that he recognized the driver as a known criminal. He did not recognize Mr. Loewen. [ 7 ] Constable Smith’s request for Mr.

Loewen’s identification was not made in relation to any offence contrary to The Traffic Safety Act or any criminal offence. Rather, Cst. Smith testified that, when he conducts a traffic stop, he always requests identification from the passengers, if any, so it can be checked on the CPIC database. He does this “to find people who are either breaching court ordered conditions, wanted on warrants, outstanding criminals, that type of thing as part of [his] job”. [ 8 ] Constable Smith took both identification cards back to the police vehicle and handed them to Cst.

Thorsteinson who then conducted searches on CPIC and on a local police records system. The CPIC search indicated the driver had an outstanding warrant for his arrest in Alberta and a criminal record. Mr. Loewen was revealed to be a federal inmate on release, with conditions. Constable

Thorsteinson called Corrections Canada’s National Monitoring Centre [NMC] to confirm the nature of those conditions. [ 9 ] The NMC advised that one of the conditions of Mr. Loewen’s release was that he not be in the presence of known criminals. Constable Thorsteinson then told the NMC official that Mr. Loewen was a passenger in a vehicle driven by such an individual. After putting Cst. Thorsteinson on hold so that he could consult with a supervisor, the NMC official indicated to Cst. Thorsteinson that the NMC would be issuing a warrant under the Corrections and Conditional Release Act , SC 1992, c 20, for Mr.

Loewen’s apprehension. The NMC official also advised Cst. Thorsteinson to take Mr. Loewen into custody. [ 10 ] Constable Thorsteinson shared what he had learned with Cst. Smith. Constable Smith then proceeded to issue the driver of the vehicle a

summary offence ticket for speeding. Mr. Loewen was removed from the vehicle and arrested for breach of his release conditions and the driver then departed in the vehicle. [ 11 ] Immediately upon his arrest and being advised of the reason for it, Mr. Loewen told Cst. Smith that his “parole” had expired two days prior. He was cooperative while so doing. Constable Smith responded to Mr. Loewen by saying the NMC was issuing a warrant and the matter was no longer within his discretion. [ 12 ] Constable Smith performed a roadside search of Mr. Loewen in the course of which he located a number of items including Mr.

Loewen’s wallet, two cellphones and some keys. Constable Smith searched the wallet and found a substantial amount of cash inside, later determined to be $1,615. Mr. Loewen was placed in the police vehicle, advised of his right to counsel and transported by the two officers to the police station. He again raised the concern that his “parole” had expired, including once as they approached the police station. [ 13 ] Mr. Loewen was booked into detention at the police station by Special Constable Matieshin. He performed a search of Mr. Loewen in the presence of Cst. Smith.

The search was conducted to address safety concerns relating to both the officers and Mr. Loewen and, as Cst. Matieshin testified at trial, under the purported authority to search incidental to arrest. During the search, Cst. Matieshin felt a bulge in the groin region of Mr. Loewen’s pants. Constable Matieshin asked Mr. Loewen what it was and Mr. Loewen responded that it was cocaine and MDMA. Constable Matieshin testified that he had asked the question for officer safety purposes in order to ensure the bulge was not a weapon. [ 14 ] Mr. Loewen was then taken to a private interview room.

On entering the room, he removed two packages of drugs from his underwear. A more thorough search was then conducted, during which Mr. Loewen’s clothing was removed. The packages were later determined to be 28.3 grams of cocaine and 28.1 grams of methylone. Mr. Loewen was arrested for possession of a controlled substance for the purpose of trafficking and was re-read the standard police warnings. [ 15 ] Constable Thorsteinson testified that, after the search, one of the staff at the booking desk advised him a warrant had been received by fax from the NMC. At this point, Mr.

Loewen again informed the officers that his “parole” had expired. Mr. Loewen was allowed to call the Meewasinota Centre, the institution from which he had been released, in order to verify with the Centre that he was no longer on “parole”. It appears he was allowed to call the NMC as well. Shortly after these phone calls, and before Cst. Thorsteinson had finished reading the warrant, the NMC called back and advised that Mr. Loewen’s release term had been completed and that the warrant for his apprehension was invalid. As it turned out, the warrant was invalid on its face in that it stated Mr.

Loewen was on a statutory release ending two days earlier, on September 10, 2013. [ 16 ] Once Cst. Thorsteinson was aware the warrant from the NMC was not valid, he informed Mr. Loewen that he was not facing any charges for breach of his release conditions but that his subsequent arrest for possession of a controlled substance for the purpose of trafficking was still in effect. In the end, Mr. Loewen stood charged with possession of cocaine for the purpose of trafficking, possession of methylone for the purpose of trafficking and possession of the proceeds of crime. III. the decision under appeal [ 17 ] Mr.

Loewen appeared in Provincial Court. He did not contest that he had been in possession of cocaine and methylone for the purpose of trafficking. His defence was based on several alleged breaches of his Charter rights. The Charter challenges were heard on a voir dire that, in the end, was largely determinative of Mr. Loewen’s liability. [ 18 ] The trial judge began his decision by dealing with the various Charter breaches alleged by Mr. Loewen. By way of brief

summary, the judge disposed of those arguments by concluding as follows: (

a) Mr. Loewen’s s. 9 rights had not been violated by the police asking him to provide his name and identification; (

b) Mr. Loewen’s s. 8 rights had not been violated when the police used his name to run a search on CPIC; (

c) Mr. Loewen’s s. 9 rights had been violated when he was arrested before a warrant had been issued; (

d) Mr. Loewen’s s. 8 rights had been breached when he was searched incidental to his purported arrest because the arrest itself was unlawful. Further, and in any event, the search of his wallet had not been justified because that search was not properly incidental to the arrest; (

e) Mr. Loewen’s s. 8 rights had not been violated by the searches conducted at the police station because those searches were reasonable given that he was being taken into custody; and (

f) Mr. Loewen’s s. 10(

b) rights had not been violated by the police asking him questions before he had had an opportunity to speak with counsel. [ 19 ] The trial judge then turned to s. 24(2) of the Charter . Working through the analysis mandated by Grant , he considered the

seriousness of the Charter -infringing conduct, the impact of the Charter breaches on Mr. Loewen’s interests, and society’s interest in having the charges in issue adjudicated on their merits. In the end, the trial judge declined to exclude any of the evidence in issue, i.e., the drugs found in Mr. Loewen’s pants and the cash found in his wallet. [ 20 ] The citation for the trial judge’s decision is 2015 SKPC 124 . IV. the issues [ 21 ] The identification of the issues raised in this appeal is complicated somewhat by the fact that counsel who appeared for Mr.

Loewen in this Court was not counsel at trial and did not frame the issues in the same way as they had been presented at trial. As well, the approach of counsel for Mr. Loewen in oral argument differed somewhat from the approach taken in the factum filed on Mr. Loewen’s behalf. Nonetheless, working through all of this and having regard for the submissions made by the Crown, the resolution of this appeal requires consideration of the following issues: (

a) Did the trial judge err in failing to find that Mr. Loewen was detained in breach of s. 9 of the Charter when Cst. Smith took his identification? (

b) Did the trial judge err in concluding that Mr. Loewen’s s. 9 rights had been violated when he was arrested? (

c) Did the trial judge err in finding the search immediately after Mr. Loewen’s arrest was a violation of his rights under s. 8 of the Charter ? (

d) Did the trial judge err in failing to find the search at the police station was conducted in violation of Mr. Loewen’s rights under s. 8 of the Charter ? (

e) Did the trial judge err in failing to exclude the evidence obtained by virtue of the searches conducted by the police? [ 22 ] In identifying these issues, I note Mr. Loewen does not make the argument pressed with the trial judge to the effect that using his identification to conduct a CPIC search was itself a violation of his Charter rights. V. analysis [ 23 ] I will deal in turn with each of the issues noted above. A. Were Mr. Loewen’s s. 9 rights violated when Cst. Smith took his identification? [ 24 ] Mr.

Loewen argues the trial judge erred by failing to find he was arbitrarily detained in violation of s. 9 of the Charter at the point when Cst. Smith asked for his identification and took it back to the police vehicle. In order to evaluate this submission, it is necessary to start with some basics. [ 25 ]

Section 9 provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned”. However, not every interaction between an individual and the police is a detention.

Section 9 does not oblige the police to “abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime”. See: R v Suberu , 2009 SCC 33 at para 3 , [2009] 2 SCR 460 [ Suberu ]. Further, the police may engage in the preliminary questioning of bystanders without creating a detention within the meaning of s. 9. See: R v Mooiman , 2016 SKCA 43 at para 21 , 476 Sask R 216 [ Mooiman ]. [ 26 ]

Section 9 is engaged only by “significant physical or psychological restraint”. See: R v Mann , 2004 SCC 52 at para 19 , [2004] 3 SCR 59; Suberu at para 24 . Psychological detention arises where an individual has a legal obligation to comply with a restrictive police directive or where “a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply” ( Grant at para 44 ). [ 27 ] In Grant , the Supreme Court provided the following guidance with respect to determining whether there has been a psychological detention: [44] … 2.

In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia , the following factors: (

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. (

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. (

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[ 28 ] The onus of establishing the existence of psychological detention is, of course, on the individual alleging the detention. The test involves an objective determination made in light of the circumstances as a whole and the court must be satisfied by the evidence that the conduct of the police or state officials effected a significant deprivation of liberty. See: Suberu at paras 22 and 28 . [ 29 ] In this case, Mr. Loewen was a passenger in a vehicle stopped by the police for speeding. He does not suggest the stop, in and of itself, engaged his s. 9 Charter rights.

This position is in line with Mooiman , where this Court said only the driver of a vehicle is necessarily detained in this sort of circumstance. At paragraph 21 of Mooiman , Caldwell J.A. explained that “[i]n the absence of some other suggestion of significant physical or psychological restraint, a passenger of a vehicle that is subject to a traffic-safety stop is simply a bystander and is not detained for the purposes of s. 9 of the Charter ”. [ 30 ] But, as noted, Mr. Loewen does argue that he was detained when Cst.

Smith took his identification back to the police vehicle to facilitate the CPIC and local records checks. He submits the traffic stop, combined with the reality of Cst. Smith walking away with his identification, meant he was obliged to remain in, or with, the vehicle in which he had been riding. [ 31 ] In considering this submission, it is useful to begin with a word about the relevant authorities. The leading Saskatchewan case is this Court’s decision in Mooiman . Mr. Mooiman was a front-seat passenger in a truck.

Police believed they saw the truck travelling above the speed limit and initiated a stop pursuant to The Traffic Safety Act . An officer went to the passenger side of the truck and engaged its occupants in a conversation through the window. The officer observed a number of things that, collectively, gave him reason to suspect the two individuals in question in it might be involved in illegal drug activity. They were travelling from Saskatoon to Richmond, British Columbia. Mr. Mooiman was smoking a freshly-lit cigarette, something that is sometimes done to mask the odour of narcotics. Unusually, Mr.

Mooiman was very nervous and just as nervous as the driver. Also, the vehicle was littered with fast food wrappers, another marker of drug trafficking activity, according to the police. Based on all of this, the officer decided to do checks on both the driver and Mr. Mooiman. He obtained their identification, a treaty card in Mr. Mooiman’s case, and took those documents to run checks through CPIC and the Police Information Portal database [PIP]. In so doing, the officer discovered Mr. Mooiman had a criminal record. More significantly, the PIP database revealed that both Mr.

Mooiman and the driver had in the past been associated with criminal drug activity. The officer then detained Mr. Mooiman and the driver in order to investigate and called in a sniffer dog. Almost two pounds of marijuana were discovered and the two men were arrested and charged with possession of marijuana for the purpose of trafficking. [ 32 ] The trial judge concluded Mr. Mooiman’s detention for investigatory purposes had commenced after the police had reviewed the PIP entries and had come to entertain a reasonable suspicion about Mr. Mooiman’s possible involvement in illegal drug activity.

On appeal to this Court, Mr. Mooiman argued the police had in fact effected an earlier arbitrary detention by reason that Mr. Mooiman had been only a passenger in a vehicle involved in a traffic stop but the police had nonetheless used his identification to check the CPIC database. His argument did not turn on the fact that the police had taken his identification from him when they went to conduct the CPIC check. Rather, Mr.

Mooiman emphasized the effect on his liberty of The Traffic Safety Act stop itself. [ 33 ] Justice Caldwell, writing for the Court, began by confirming that being caught up in a traffic stop does not legally obligate a passenger to comply with a police officer’s requests for information, i.e., that a passenger, like any other bystander, is under no duty to comply with such requests. Justice Caldwell then went on to find that a reasonable person in Mr. Mooiman’s circumstances would have understood the initial encounter with the investigating officer to involve questioning falling short of detention.

He said nothing in the nature of the police officer’s conduct, including the passive manner in which the officer had asked about Mr. Mooiman’s identification, or the lack of physical contact, or the routine roadside traffic-safety stop, or the brief duration of the encounter, indicated a physical or psychological detention of any Charter significance. In making these comments, Caldwell J.A. made no reference to the implications of the fact that the officer had taken Mr. Mooiman’s identification. Turning to Mr. Mooiman’s personal circumstances, Caldwell J.A. noted that while Mr.

Mooiman’s failure to testify was not fatal, it nonetheless meant there was very little information before the Court about his circumstances and about how he had reacted to the alleged detention. In the end, and on the whole of the available evidence, Caldwell J.A. found the interaction between the police officer and Mr. Mooiman prior to his detention for investigatory purposes to have constituted something less than a significant deprivation of Mr.

Mooiman’s liberty and, therefore, not to have been a detention within the meaning of s. 9 of the Charter . [ 34 ] On a superficial basis, Mooiman might seem to be dispositive of the argument presented by Mr. Loewen in this appeal. However, that is not the case. Although the police did use Mr. Mooiman’s treaty card to conduct a CPIC search, the Court did not address or analyze the specific implications of them having taken Mr. Mooiman’s identification back to their vehicle.

Nor did the Court purport to lay down a general rule or principle that s. 9 is not violated when a police officer asks a motor vehicle passenger for identification and then goes back to his or her vehicle to use the identification in a CPIC search. This was not the argument advanced by Mr. Mooiman. The decision turned on its own facts and, ultimately, on Mr. Mooiman’s failure to present sufficient evidence to establish there had been a significant deprivation of his liberty. Accordingly, Mooiman does not preclude Mr. Loewen from arguing that, on the facts here, his s. 9 rights were violated when Cst.

Smith took his identification. [ 35 ] For his part, Mr. Loewen relies on R v Harris , 2007 ONCA 574 , 225 CCC (3d) 193 [ Harris ], to backstop his position. However, Harris is not on all fours with the circumstances underpinning this appeal. Mr. Harris was a passenger in a motor vehicle. The vehicle was stopped by the police after the driver failed to signal a left turn. The officer noted that Mr. Harris was not wearing his seatbelt and observed him lean forward with his left hand down the small of his back.

The officer became concerned about safety issues and ordered everyone in the car to keep their hands visible. The officer asked the driver for his licence, ownership and insurance and asked Mr. Harris and the other passenger for identification. Everyone complied. The officer then told the occupants of the vehicle that he was going back to the police vehicle to “do a couple of checks” and that he would return momentarily. The officer went to his police vehicle and used the identification information to search CPIC. The search indicated that Mr. Harris was on bail with a curfew condition, which he was breaching.

The officer arrested Mr. Harris for the breach. On searching Mr. Harris, the officer discovered cocaine and Mr. Harris was then arrested for possession of cocaine. [ 36 ] The Court of Appeal for Ontario found Mr. Harris had been detained. However, its decision in this regard was not based on the police officer’s request for, or use of, Mr. Harris’s identification. Rather, its reasoning turned on the fact that the officer had ordered Mr. Harris to keep his hands visible. It was at the point of this direction or command, said the Court, that Mr. Harris was psychologically

detained. In other words, when the officer ultimately asked for his identification, Mr. Harris was already under detention. [ 37 ] The more helpful Ontario decision is R v Dale , 2012 ONCJ 692 , leave to appeal to ONSC refused, 2013 ONSC 3329 [ Dale ]. Mr. Dale was the rear-seat passenger in a vehicle that was stopped by police operating a R.I.D.E. program. A police officer approached the vehicle and noted a backpack in the rear seat. It contained a number of unopened cans and bottles of beer. The officer asked the driver for the usual documents and then, within a minute or two, asked Mr. Dale for his name.

It was provided. At some point on this timeline, Mr. Dale replied “mine” to a question from the officer about who owned the beer. The officer then asked for identification documents from Mr. Dale and the other passengers in the vehicle. Mr. Dale handed over what he described as his original birth certificate. The officer walked away with the identification of Mr. Dale and the others and asked a police colleague to run their names through CPIC to see if any of them were on bail or other conditions. The colleague did the check and discovered Mr. Dale was on probation and was not to possess or consume alcohol. Mr.

Dale was arrested. [ 38 ] At trial, Mr. Dale argued that he had been arbitrarily detained when the officer asked for his identification and walked away with it. The trial judge agreed. He did not see any detention when the officer asked Mr. Dale for his name. However, he found that the situation changed when the officer demanded Mr. Dale’s identification and took it to the police vehicle. The trial judge concluded Mr. Dale had effectively been held captive until his identification was returned. In so doing, the trial judge accepted Mr.

Dale’s evidence that, in view of his personal history with the police, he did not feel free to leave. [ 39 ] There are, as might be expected, a variety of other cases dealing with questions concerning the Charter rights of passengers in vehicles lawfully stopped for highway traffic or other purposes. None of them appear to have factual elements sufficiently similar to this appeal so as to be particularly helpful in resolving it.

See, for example, R v De Guzman , 2014 ABCA 201 , 575 AR 370; R v Bradley , 2008 NSCA 57 , 233 CCC (3d) 129; or R v Mhlongo , 2017 ONCA 562 , 355 CCC (3d) 1 [ Mhlongo ]. [ 40 ] With this jurisprudential background in mind, I turn to the particulars of the case at hand. In my respectful view, perhaps because of how the arguments were presented to him, the trial judge did not deal satisfactorily with this aspect of Mr. Loewen’s situation. First, he characterized the question before him, at paragraph 15 of his decision, as whether Mr.

Loewen “being asked to provide his name and identification” constituted an arbitrary detention. In so doing, the trial judge made no reference to the fact that Cst. Smith did not just ask Mr. Loewen for his identification, but that he took Mr. Loewen’s identification back to the police car. Second, the trial judge distinguished Harris in part because he, the trial judge, had no ability to “peer into the mind of the accused”.

This assessment missed the mark because the approach laid out in Grant turns on an objective analysis (whether a reasonable person in the accused’s circumstances would conclude he or she had been deprived of liberty) rather than a solely subjective determination of whether an accused believed himself or herself to have been detained. A third difficulty with the trial judge’s analysis on this line of Mr. Loewen’s argument is apparent in his conclusion.

In this regard, the trial judge focused only on the notion of the police asking a motor vehicle passenger for his or her name, as opposed to the police asking for his or her identification and then walking away with it. The trial judge concluded as follows: [19] Accordingly, the police were entitled to ask the accused’s name; he was entitled to give it or to withhold it; he was not under any compulsion when he gave it; when he gave it, therefore, he did so voluntarily; therefore, no Charter breach arises. [ 41 ] In short, there were several missteps in the trial judge’s assessment of this part of Mr.

Loewen’s argument. In light of them, it is necessary to reconsider this issue from the ground up. The question, accordingly and as per Grant , is whether Mr. Loewen has established that a reasonable person in his circumstances would have concluded that he or she had been deprived of his or her liberty when Cst. Smith walked away with the identification. Any such deprivation must have been significant in order to trigger s. 9 of the Charter . [ 42 ] As for the first Grant consideration, i.e., the circumstances giving rise to the encounter with the police, this was not a situation where Csts.

Smith and Thorsteinson were providing assistance at a crime or accident scene or were maintaining general public order. Constable Smith acknowledged that he did not ask for Mr. Loewen’s identification for any Traffic Safety Act purpose or because he suspected either Mr. Loewen or the driver of the vehicle of committing a particular Criminal Code offence. Rather, Cst. Smith was following his standard practice of asking all passengers for their identification in order to determine if they might somehow be caught up in the criminal justice system.

In the moment, and at the side of a city street at 2:00 or 3:00 a.m., this would make a reasonable individual in Mr. Loewen’s shoes feel as if he or she was the subject of meaningful investigatory attention. [ 43 ] More importantly, a reasonable citizen in Mr. Loewen’s position would have believed that he or she could not simply exit the vehicle and walk away. This is because Cst. Smith had taken Mr. Loewen’s SGI photo identification – his driver’s licence. Walking away from the scene would have entailed Mr.

Loewen abandoning that document, i.e., abandoning what is, in this jurisdiction, most people’s standard personal identification. The Crown responds to this reality by suggesting Mr. Loewen could have made his way back to the police car, asked for the return of his identification, and then walked away. While perhaps a course of action open to Mr. Loewen in a technical, legal sense, I am not prepared to accept this is as being something a citizen in Mr. Loewen’s shoes would have reasonably perceived as a viable or realistic option.

It wholly misapprehends the typical power dynamic between the police and the people they stop. Confronting the police in this way at 3:00 a.m. would have taken a wholly unusual level of personal fortitude. [ 44 ] The second Grant consideration concerns the nature of the police conduct in issue. In this regard, I note that, while the record does not reveal the specific language Cst. Smith used in asking Mr. Loewen for his identification, Mr. Loewen was not given the option of declining to provide identification.

This is not a case like R v Yousofi , 2011 ONSC 2298 , 233 CRR (2d) 129, where a passenger was asked to identify himself and, in response, handed over his driver’s licence voluntarily and on his own initiative. This was, in substance, a demand by Cst. Smith for Mr. Loewen to hand over his identification. [ 45 ] It is significant, as well, that Cst. Smith and Cst. Thorsteinson kept Mr. Loewen’s identification in their possession for some time. I say this because Cst. Smith testified that he observed the vehicle in question speeding at 2:55 a.m. and that he ultimately read Mr.

Loewen his rights, immediately on arrest, at 3:35 a.m. Given that Mr. Loewen was asked for his identification almost immediately after the vehicle was stopped, and given that he was arrested shortly after Cst. Thorsteinson had spoken to the NMC, it seems apparent that Csts. Smith and Thorsteinson had possession of Mr. Loewen’s identification for in the range of 30 minutes. This conclusion is

supported by the other available evidence. Constable Thorsteinson testified that it normally takes about ten minutes to do a CPIC search and a local police records check. So, to perform both the driver’s and Mr. Loewen’s checks would have taken about 20 minutes. In addition to those checks, Cst. Thorsteinson telephoned the NMC and had a conversation involving, in part, a situation where the person he was speaking with had to interrupt the call to speak to his supervisor. Accordingly, it can reasonably be surmised that the NMC call might have taken up to an additional ten minutes. In other words, Mr.

Loewen waited in the vehicle in which he was a passenger for some considerable time – likely about 30 minutes – while Csts. Smith and Thorsteinson were in possession of his identification and were making their inquiries. [ 46 ] The third Grant consideration is an assessment of the particular characteristics or circumstances of the accused, where relevant. In this case, there is little to work with because Mr. Loewen chose not to testify. As confirmed in Suberu , this is not fatal to his case but it does, of course, deprive the Court of any knowledge of his personal perspectives.

We know, from the NMC fax, that he was on release in connection with a three-year sentence for the offence of possessing drugs for the purpose of trafficking. We know nothing of his level of education or sophistication. [ 47 ] Taking all of the Grant factors into consideration, I conclude that Mr. Loewen suffered a significant deprivation of his liberty when Cst. Smith took his identification back to the police car. An SGI identification card is not something that can be easily abandoned. A citizen in Mr.

Loewen’s circumstances would have reasonably concluded he or she had no meaningful option but remain in the vehicle until the police returned with the identification. [ 48 ] Thus, by way of a bottom line on this part of the appeal, I conclude the trial judge erred by failing to find that Mr. Loewen had been psychologically detained while Csts. Smith and Thorsteinson had his identification in their possession during the course of the CPIC and local records searches and during the course of their dealings with the NMC. Given that the police had no lawful authority to detain Mr.

Loewen, it follows that this detention was arbitrary and hence a violation of s. 9 of the Charter . See: Grant at paras 54 and 56 . B. Were Mr. Loewen’s s. 9 rights violated when he was arrested? [ 49 ] It is common ground that Mr. Loewen was not subject to arrest pursuant to the standard provisions of the Criminal Code . This was so because the offence he was found committing, breaking his release conditions by being in contact with a known criminal, did not engage the Code . Rather, it is agreed that Mr.

Loewen’s arrest could have been lawfully effected only pursuant to ss. 137(2) or 137.1 of the Corrections and Conditional Release Act . Those sections read as follows: 137

(2) A peace officer who believes on reasonable grounds that a warrant is in force under this Part or under the authority of a provincial parole board for the apprehension of a person may arrest the person without warrant and remand the person in custody. … 137.1 A peace officer may arrest without warrant an offender who has committed a breach of a condition of their parole, statutory release or unescorted temporary absence, or whom the peace officer finds committing such a breach, unless the peace officer (

a) believes on reasonable grounds that the public interest may be satisfied without arresting the person, having regard to all the circumstances including the need to (

i) establish the identity of the person, or (ii) prevent the continuation or repetition of the breach; and (

b) does not believe on reasonable grounds that the person will fail to report to their parole supervisor in order to be dealt with according to law if the peace officer does not arrest the person. [ 50 ] The trial judge found Mr. Loewen’s arrest to have been unlawful because, at the time he was taken into custody by Csts. Smith and Thorsteinson, no warrant of apprehension had yet been issued as per s. 137(2) by the NMC. He also found that s. 137.1 did not come into play because the arresting officers had not considered it as a basis for arresting Mr.

Loewen. [ 51 ] The Crown submits the trial judge erred in his analysis. It contends Csts. Smith and Thorsteinson acted on instructions from the NMC and thereby had valid grounds to arrest Mr. Loewen without a warrant pursuant to s. 137.1. [ 52 ] I am not persuaded by the Crown’s submissions. First, and most fundamentally, neither Cst. Smith nor Cst. Thorsteinson purported to rely on s. 137.1 or turned their minds to the question of whether Mr. Loewen’s arrest was necessary. They simply effected the arrest on being advised that Mr. Loewen was in breach of his release conditions and a warrant would be forthcoming.

As Cst. Thorsteinson explained in cross-examination, Mr. Loewen was arrested “on the strength of the corrections warrant”. Constable Smith’s testimony was to the same effect. In cross-examination, he answered “yes” to a question as to whether Mr. Loewen had been arrested “in anticipation of that warrant being issued”. [ 53 ] Furthermore, and in any event, the circumstances here would not have sustained a warrantless arrest pursuant to s. 137.1 . This is evident from an examination of the preconditions for such an arrest as they are spelled out in that section.

As for the public interest consideration prescribed by s. 137.1(a), Cst. Thorsteinson testified that he had no concerns about Mr. Loewen’s identity and was not concerned Mr. Loewen was going to recommit the offence by associating with the driver of the vehicle. As for the issue of Mr. Loewen reporting to his parole officer, referenced in s. 137.1(b), Cst. Thorsteinson indicated that he had had no reason to believe Mr. Loewen would fail to report if released. Constable Smith’s evidence was to the same effect on all fronts. [ 54 ] As a result, the Crown’s argument on this point must fail.

The trial judge correctly concluded that Csts. Smith and Thorsteinson had no lawful authority to effect Mr. Loewen’s arrest and that Mr. Loewen’s s. 9 rights were violated as a consequence.

C. Did the search conducted on arrest violate Mr. Loewen’s s. 8 rights? [55] The Crown submits the trial judge erred in finding that the pat-down search of Mr. Loewen’s person performed immediatelyafter his arrest was a breach of his s. 8 Charter right to be free of unreasonable searches. It bases this argument on the contention thatMr. Loewen’s arrest was lawfully effected. It submits the police had a common law right to conduct a search incidental to that lawfularrest. [56] This argument cannot succeed. As indicated, Mr. Loewen’s arrest was unlawful.

It follows that a search conductedincidentally to it was a violation of s. 8 of the Charter. The trial judge made no error in coming to this conclusion. See: R v Stillman, (SCC), [1997] 1 SCR 607 at para 27 [Stillman]; R v Caslake, (SCC), [1998] 1 SCR 51 at para 13[Caslake]. D. Did the search at the police station violate Mr. Loewen’s s. 8 rights? [57] As will be recalled, Mr. Loewen was subjected to an additional search when he was booked into detention at the policestation. During the initial pat-down phase of this search, Cst. Matieshin felt a bulge in Mr. Loewen’s groin area. Mr.

Loewen was thentaken to an interview room where he withdrew two bags of drugs from his underwear. A further search was then conducted whereinMr. Loewen’s clothing was removed and replaced one piece at a time. [58] The trial judge found the police station search did not violate Mr. Loewen’s s. 8 rights. In so doing, he made no reference tothe unlawfulness of Mr. Loewen’s arrest.

Rather, he briefly observed that a policy of searching everyone entering custody at a policestation seemed reasonable because roadside searches were cursory and the level of detail of such searches was a function of thediscretion exercised by individual police officers. He considered that searching individuals coming into custody would assist in ensuringthe safety of officers and staff, other detainees and accused persons themselves. [59] Mr. Loewen contests the trial judge’s conclusion on this point.

He argues that, if his arrest was unlawful, the search at thepolice station associated with it was unlawful as well. For its part, the Crown says the arrest was lawful and therefore the search at thepolice station was lawful as being incidental to the arrest. In my view, Mr. Loewen’s position must prevail. [60] In Stillman, the Supreme Court indicated that three conditions must be met for a search to be validly undertaken pursuant tothe common law power to search incidental to arrest. To begin, the arrest itself must be lawful.

As the Court explained, “[n]o search, nomatter how reasonable, may be upheld under this common law power where the arrest which gave rise to it was arbitrary or otherwiseunlawful”. Second, the search must be conducted as a true “incident” of the arrest. Third, the search must be carried out in a reasonablemanner. [61] The implications of all of this for Mr. Loewen’s situation are self-evident. Constable Matieshin purported to conduct thesearch at the police station on the basis that it was incidental to Mr. Loewen’s arrest. This is also how the Crown attempts to justify thesearch in this Court.

However, because the arrest itself was unlawful, the search was not valid. The Supreme Court put it this way inCaslake at paragraph 13: … [T]he right to search arises from the fact of the arrest. This is justifiable because the arrest itself requires reasonable and probablegrounds (under s. 494 of the Code) or an arrest warrant (under s. 495).

However, since the legality of the search is derived from thelegality of arrest, if the arrest is later found to be invalid, the search will be also. … [62] The Crown attempts to respond to this difficulty by noting that, by the time the search was conducted at the police station, thepolice were in receipt of the warrant of apprehension from the NMC and the error in the warrant was not discovered until after the drugshad been found. [63] This line of argument cannot be sustained for two reasons.

First, of course, the warrant was invalid on its face and hence couldnot have supported either an arrest or a search undertaken incidental to an arrest. Second, the Crown has not explained how a warrantissued after the fact of an unlawful arrest can somehow retroactively rehabilitate the arrest and make it lawful. [64] The reality here is that Mr. Loewen’s arrest was not lawful. The promise by the NMC to send a warrant is relevant when itcomes to considering the remedy to be granted pursuant to s. 24(2) in that it speaks to the seriousness of the Charter violation.

However,the police being in receipt of a defective warrant by the time Mr. Loewen was searched at the police station does not overcome thereality that, at the point Mr. Loewen was arrested, Csts. Smith and Thorsteinson had no authority to effect the arrest. E. Should the evidence obtained by way of the searches have been excluded? [65] Mr. Loewen’s rights under ss. 8 and 9 of the Charter were violated. The discovery of the drugs arose directly from thoseviolations and it follows that they were obtained as a result of Charter breaches.

The question, therefore, is whether the admission of thedrugs into evidence would bring the administration of justice into disrepute as per s. 24(2) of the Charter. [66] In Grant, the Supreme Court identified three lines of inquiry informing the analysis to be undertaken when applying s. 24(2).The first concerns the seriousness of the Charter-infringing conduct. The second is the impact of the Charter violation on the Charter-protected interests of the accused. The third is society’s interest in having the charges faced by the accused person adjudicated on theirmerits.

Having assessed these three considerations, Grant instructs that it is necessary to conduct a final balancing to determine whether,having regard to all of the circumstances, the admission of the evidence would bring the administration of justice into disrepute. [67] When a trial judge has considered the proper factors and made no error of principle, his or her assessment of whether aCharter violation warrants the exclusion of evidence attracts considerable appellate deference. See: Grant at paras 86 and 129.

However,the situation is different when the trial judge’s determination was based on misapprehensions of the Charter violations giving rise to the

s. 24(2) inquiry. In such circumstances, this Court is obliged to disregard the findings of the trial judge to the extent those findings are tainted by the underlying error. See, for example: R v MacMillan , 2013 ONCA 109 at para 44 , 296 CCC (3d) 277. [ 68 ] In this case, the trial judge’s s. 24(2) analysis and conclusions must be approached with caution. This is principally because he failed to identify all of the Charter breaches that underpin the application of s. 24(2) in the circumstances at hand. 1.

The seriousness of the Charter violations [ 69 ] As indicated, the first line of inquiry under the s. 24(2) analysis obliges a consideration of whether admitting the evidence in question would send a message to the public that the courts “effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct” ( Grant at para 72 ). The more severe or deliberate the police conduct in issue, the greater the need to exclude the evidence. [ 70 ] As explained above, Mr. Loewen experienced four violations of his Charter rights: (

a) when he was detained while the police did the CPIC and local records checks and dealt with the NMC; (

b) when he was unlawfully arrested; (

c) when he was searched at the roadside incidental to the arrest; and (

d) when he was searched at the police station. I will deal in turn with each of these breaches. [ 71 ] The trial judge did not consider the seriousness of the police conduct relating to the arbitrary detention that occurred while they were in possession of Mr. Loewen’s identification. This is because he found no Charter breach on that front. In my view, the significance of this s. 9 violation is importantly informed by the fact that Cst. Smith was engaged in what would be colloquially referred to as a “fishing expedition” when he asked for Mr. Loewen’s identification.

Constable Smith knew he had no authority under The Traffic Safety Act to make such a demand of Mr. Loewen and he did not suspect Mr. Loewen of having committed either a Traffic Safety Act or Criminal Code offence. Nor was there anything suspicious or untoward or unusual in the situation or surrounding circumstances to have suggested to Cst. Smith that, in pursuit of community policing objectives, he should make inquiries of Mr. Loewen. As noted above, Cst. Smith was simply and arbitrarily casting a net to see if Mr. Loewen might somehow be caught up in the criminal justice system.

As a result, I am unable to see anything in the nature of a good faith mistake in Cst. Smith’s actions. He knew that he had no lawful authority to take Mr. Loewen’s identification and to thereby detain him. This kind of conduct threatens the repute of the administration of justice and is the sort of thing that would trouble an ordinary member of the public. [ 72 ] I turn next to the seriousness of the police conduct involved in effecting the unlawful arrest.

The trial judge assessed this conduct by writing as follows: [68] In the matter before me, the accused was “arrested” by police when they had no power to do so. There was no warrant for his arrest, nor was he found committing any crime. On the other hand, the officers acted properly in checking to see if the accused was in breach of his parole conditions, were told that he was and were told that a warrant was going to be issued forthwith.

In the circumstances, including their past experience with NMC, it was reasonable for them to expect that the warrant would be issued within the hour or less. [69] It is, to put it mildly, troubling when agents of the state take someone into custody when they do not have the legal authority to do so. It appears that the police followed their usual practice here, which is also troubling. However, they acted in good faith, on instructions from NMC to take the accused into custody, and not wilfully disregarding the accused’s rights: they were wrong, but not deliberately so. [ 73 ] Mr.

Loewen suggests this analysis overlooks the fact that the seriousness of the police conduct in making the arrest was exacerbated by their failure to take immediate action on his protest that his “parole” had expired and that, accordingly, there was no basis on which to arrest him for being in breach of release conditions. There is some appeal to this argument because it would have been easy for Cst. Smith or Cst. Thorsteinson to call the NMC back to confirm whether Mr. Loewen was still on release conditions. That said, the NMC was the office that knew the most about Mr.

Loewen’s situation and it had just directed Cst. Thorsteinson to take him into custody. As Cst. Thorsteinson explained, “I’d called into the [NMC] and that’s who would confirm that his parole was in effect”. Nonetheless, Csts. Smith and Thorsteinson had in their custody a cooperative individual who had raised the release expiry issue immediately upon his arrest and at least twice more before they arrived at the police station. This was obviously an unusual circumstance. Given the lack of urgency in the situation, it would have behooved the officers to follow up on the issue Mr.

Loewen had raised and to respond to his concerns on a timely basis. Their failure to take this step works to negatively colour their conduct but, in all of the circumstances, not in a dramatic way. [ 74 ] Additionally, I am unable to accept the trial judge’s conclusion that Csts. Smith and Thorsteinson acted in good faith and did not deliberately infringe Mr. Loewen’s rights. This is because both officers knew and understood that, when Mr. Loewen was arrested, no warrant of apprehension was yet in existence. The trial judge himself found this as a fact.

Moreover, as explained earlier, they had no right to effect a warrantless arrest under the Corrections and Conditional Release Act and, in any event, did not even consider that prospect. Despite the NMC’s direction to take Mr. Loewen into custody, the two officers understood the warrant authorizing such action had not been generated. As a consequence, they must be taken to have understood that they had no authority to arrest Mr. Loewen at the time they purported to do so.

Constables Smith and Thorsteinson may have acted in reliance on directions from the NMC, but the evidence cannot support a conclusion that they acted in good faith and did not willfully disregard Mr. Loewen’s rights. [ 75 ] However, in fairness to Csts. Smith and Thorsteinson, I note that this situation is very different from one where an arrest or a detention is undertaken on a wholly arbitrary basis. Csts. Smith and Thorsteinson honestly believed Mr. Loewen to be in breach of his release conditions and honestly believed they would shortly be in possession of a warrant.

There is no suggestion here of profiling or other abusive police practices. [ 76 ] The third Charter breach arose out of the search conducted at the roadside following Mr. Loewen’s arrest. The trial judge considered the seriousness of the police conduct in relation to this search but, in so doing, dealt only with the search of Mr. Loewen’s wallet. He did not consider the pat-down search itself. As for the wallet, the judge concluded that briefly examining its contents was unobjectionable because, for example, it was common place for individuals to give false names to the police. Nonetheless, at the same

time, the judge noted a search of the wallet was not required by the arrest. This conclusion was presumably rooted in Cst. Smith’stestimony that he did not believe he would find a weapon in the wallet and that he was not looking in the wallet for evidence relating tothe breach of conditions charge. Nonetheless, in the end, the trial judge concluded the breach of the Charter occasioned by the search ofMr.

Loewen’s wallet involved only a “minor degree of seriousness”. [77] Notwithstanding his failure to deal with the pat-down search, I see no basis to depart from the trial judge’s bottom-lineconclusion on this aspect of the case. This is because, in conducting the pat-down search, Cst. Smith was simply playing out the usualand normal consequences of the arrest. His very brief look into Mr.

Loewen’s wallet was unwarranted on the basis of the trial judge’sanalysis, but it was certainly not the most egregious kind of police conduct. [78] Let me turn, finally, to the seriousness of the police misconduct in connection with the search conducted at the police station.In my view, it falls to be assessed along the same lines as the pat-down aspect of the roadside search. It was part and parcel of takingMr. Loewen into custody following his arrest. If that arrest had been lawful, the search at the police station would have been whollyunremarkable and would not have offended Mr. Loewen’s Charter rights.

In other words, the police conduct in relation to the search wasnot, in and of itself, the sort of activity that would suggest evidence should be excluded. [79] In the end, and overall, I conclude some features of the police conduct in this case were significantly troubling. The detentionand the arrest, in particular, would lead to public confidence in the administration of justice to be undermined if the drugs and cash wereadmitted into evidence. This is so because the detention was part of a wholly groundless effort to investigate Mr.

Loewen and the arrestwas made with full knowledge that there was no legal authority to effect it. 2. The impact of the violations on protected interests [80] The second feature of the inquiry called for by Grant concerns whether the admission of the evidence in issue would bring theadministration of justice into disrepute given the impact of the breach on the accused’s protected interests. The more serious the impact,the more appropriate or necessary it will be to exclude the evidence. [81] The trial judge dealt with this issue in very brief terms. With respect to Mr.

Loewen’s s. 8 rights, the trial judge consideredonly the search of his wallet. In so doing, the trial judge noted that no evidence had been adduced about Mr. Loewen’s expectations ofprivacy in relation to the contents of his wallet. He also observed that the amount of money in a person’s wallet is not something areasonable individual would automatically see as something attracting a high degree of privacy. The trial judge concluded the impact ofCst. Smith’s search of Mr.

Loewen’s wallet had impacted his rights in a way that, while not trivial, was not “overly serious”. [82] The trial judge’s assessment of the impact of the wallet search on Mr. Loewen’s protected interests might well beunobjectionable. However, he failed to deal with the pat-down aspect of the roadside search and, of course, he did not deal with the effectof the search at the police station on Mr. Loewen’s Charter interests.

The omission of the police station search from the s. 24(2) calculuswas significant because it is self-evident that the strip search conducted there involved a very substantial intrusion into Mr. Loewen’sprivacy interests. [83] As for Mr. Loewen’s s. 9 rights, the judge acknowledged that Mr. Loewen’s right “to be left alone by the police except inspecific circumstances” had been denied but went on to comment that, if the police had simply followed Mr. Loewen for a few minutes,the warrant would have been issued and they would have been able to arrest him.

The judge therefore reasoned that, although the arrestwithout authorization was a concern, the actual impact on Mr. Loewen had been relatively minor. [84] In my view, the trial judge’s analysis of the s. 9 breach is flawed in at least two respects. First, it was not appropriate tospeculate that the police would have been inclined to devote up to an hour of their time to follow Mr. Loewen in circumstances where theoffence they were dealing with was no more than a violation of release conditions and given they were not concerned, in any event, thatMr.

Loewen was going to continue to offend by re-associating with the driver of the vehicle in which he had been a passenger. Second, itis by no means clear that the police would have arrested Mr. Loewen if they had waited and acted only after receipt of the warrantbecause, as noted above, the warrant was defective on its face. [85] The infringement of Mr. Loewen’s rights under ss. 8 and 9 of the Charter was significant. The arbitrary detention and thearrest dramatically deprived Mr. Loewen of his liberty.

The roadside search did not significantly impact his Charter-protected reasonableexpectations of privacy, but the strip search conducted at the police station was very invasive of his privacy rights. 3. Interest in having the charges adjudicated [86] The third aspect of the Grant analysis is the public interest in having a case adjudicated on its merits. The trial judge dealtwith this issue by writing as follows: [71] It is always the case that society would like to see criminal allegations tried on the basis of their merits. This has the effect ofpunishing the guilty while exonerating the innocent.

However, society also has an interest in upholding Charter rights. Further, asCromwell J. noted in R v Côté, 2011 SCC 46 , [2011] SCJ 46, if the first two branches of the Grant analysis show seriousviolations, then the factors on the third branch such as the seriousness of the offence, the reliability of the evidence and the importanceof that evidence to the Crown’s case should not be determinative.

I have not found that to be the case here in any event. [87] I take the trial judge to have meant that, because the first and second branches of the Grant test did not call out for theevidence to be excluded, the public interest in seeing the charges adjudicated should be taken to tip the balance in favour of admitting theevidence. [88] The drugs and cash in issue here are, of course, highly reliable evidence and essential to the determination of the chargesagainst Mr. Loewen.

The problem posed by illegal drugs in the lives of Saskatchewan communities is well known and the damaging roleplayed by drug traffickers in all of that needs no explanation. There is a significant public interest in seeing the charges against

Mr. Loewen adjudicated on their merits. [ 89 ] That said, I agree with the Court of Appeal for Ontario’s caution that the public’s interest in a successful prosecution should not be resorted to in a systematic way to require the admission of evidence acquired through a breach of Charter rights. See: Mhlongo at para 77 ; R v Gonzales , 2017 ONCA 543 at para 157 , 136 OR (3d) 225. As Brown J. wrote in R v Paterson , 2017 SCC 15 at para 56 , [2017] 1 SCR 202, it is important not to allow society’s interest in adjudicating a case to trump all other considerations. 4.

The final balancing [ 90 ] By way of overview, aspects of the police conduct in issue here are troubling and raise very real concerns. The detention and the arrest were both conducted in violation of the Charter and they led directly to unconstitutional searches. Further, the impact of the Charter breaches on Mr. Loewen’s protected interests was significant. He was wholly deprived of his liberty for a time and his privacy interests were deeply affected. On the other hand, the cash and drugs are essential evidence in the prosecution of the offences with which Mr.

Loewen was charged. [ 91 ] This case is arguably close to the line but, in my opinion, the balance ultimately tips in favour of excluding the evidence and hence in favour of reversing the decision of the trial judge. VI. conclusion [ 92 ] I respectfully conclude that Mr. Loewen’s appeal must be allowed. Convictions are not possible without the evidence obtained by way of the Charter breaches. As a result, I would set aside both convictions and direct acquittals. “Richards C.J.S.” Richards C.J.S. I concur. “Herauf J.A.” Herauf J.A. I concur. “Schwann J.A.” Schwann J.A.