R v Pavlik, 2019 SKCA 107

Court of Appeal for Saskatchewan Docket: CACR3147 Citation: R v Pavlik, 2019 SKCA 107Date: 2019-10-17 Between:Josef Bretislav PavlikAppellant AndHer Majesty the QueenRespondent Before: Caldwell, Whitmore and Leurer JJ.A.Disposition: Appeal allowedWritten reasons by: The Honourable Mr. Justice CaldwellIn concurrence: The Honourable Mr. Justice Whitmore The Honourable Mr. Justice LeurerOn Appeal From: 2018 SKPC 4, Prince AlbertAppeal Heard: April 30, 2019Counsel: Rebecca K.I. Crookshanks for the Appellant Andrew S. Davis for the Respondent Caldwell J.A. I.

Introduction [1] A Provincial Court judge convicted Josef Bretislav Pavlik of several firearms offences and stayed other firearms convictionsunder the Kienapple principle (R v Kienapple, (SCC), [1975] 1 SCR 729) following the admission of evidence obtainedby the police, who were acting on a tip from a confidential informant (R v Pavlik, 2018 SKPC 4). The tipster had advised that Mr. Pavlikwas about to commit an offence under the Controlled Drugs and Substances Act, SC 1996, c 19. After acting on the tip, the policeobtained evidence that Mr. Pavlik had been in possession of a prohibited weapon. [2] Mr.

Pavlik appeals against his convictions, alleging the trial judge erred by concluding the police had not breached s. 9 of theCharter in the circumstances of his arrest. Mr. Pavlik says the trial judge misapplied the law with respect to warrantless arrests based oninformant tips. He says the police lacked reasonable and probable grounds to arrest him without a warrant under s. 495(1)(

a) of theCriminal Code. Mr. Pavlik contends the evidence—a sawed-off shotgun and his warned statement to the police—should have beenexcluded under s. 24(2) of the Charter. [3] For the reasons that follow, I would allow the appeal, set aside the convictions and enter acquittals on all charges. II. Background [4] On December 23, 2016, at 8:39 p.m., Sergeant Mudry, acting staff sergeant with the Prince Albert Police Service, received aphone call from Constable Anderson, a member of the Prince Albert Integrated Street Enforcement Team. The constable said he hadreceived information from a confidential informant to the following effect: (

a) Mr. Pavlik would be arriving at Bailey’s Lounge (a bar in Prince Albert) in about 20 minutes; (

b) Mr. Pavlik would be driving a red car belonging to his girlfriend, Tenille Werminsky, who would be with him; (

c) Mr. Pavlik and Ms. Werminsky would be in possession of multiple ounces of methamphetamine; and (

d) Mr. Pavlik and Ms. Werminsky would be selling the methamphetamine. [5] Sergeant Mudry asked Constable Anderson about the reliability of the tip. The constable said Mr. Pavlik was “arrestable” forpossession of methamphetamine for the purposes of trafficking. Sergeant Mudry accepted the constable’s assessment and asked noquestions about the tipster or the tipster’s prior involvements with police. [6] Sergeant Mudry ran a vehicle search on a Saskatchewan Government Insurance database and learned the description andlicence plate number of the red vehicle that was registered to Ms. Werminsky.

At 8:52 p.m., Sergeant Mudry relayed the details of the tipto Sergeant Dunn who, with Sergeant Valmont, then drove to Bailey’s Lounge, arriving shortly before 9:00 p.m. Upon their arrival,Sergeant Dunn saw a red car, matching the description given to him by Sergeant Mudry, by the east side of the building but he could notread the licence plate. Sergeant Dunn radioed for other officers to assist. [7] Constables Henry and Lindsay attended at Bailey’s Lounge. Constable Henry drove up on the north side of the building tocover the exits on that side.

The idea was that the police would cover all exits to the bar and then enter it to look for Mr. Pavlik; however,before the police could carry out their plan, the red vehicle began to move. The police then confirmed that the licence plate was registeredto Ms. Werminsky and that Mr. Pavlik was not in the vehicle. Around the same time, Constable Henry radioed that he had observed Mr.Pavlik walking in the parking lot to the north of the building near an entrance to Bailey’s Lounge.

[8] Sergeant Dunn initiated a traffic stop and confirmed Ms. Werminsky was driving the vehicle. He then contacted ConstableAnderson to ask whether Ms. Werminsky was “arrestable” on her own. The constable indicated she was and confirmed the tipster hadproven reliable. On this basis, Sergeant Dunn directed Constable Lindsay to arrest Ms. Werminsky for possession of a controlledsubstance for the purpose of trafficking. In the north-side parking lot, Constable Henry, also acting on Sergeant Dunn’s instructions,arrested Mr. Pavlik for the same offence. [9] When the police searched Mr.

Pavlik incident to his arrest, they discovered nothing of evidentiary importance. However, afterMs. Werminsky’s vehicle had been towed to the police station, a search of it led to the discovery of a loaded, sawed-off, 12-gauge shotgunin the trunk. Mr. Pavlik subsequently gave a warned statement to the police in which he admitted to possessing the shotgun and denied Ms.Werminsky had any knowledge of it. III. Trial Decision [10] At trial, Mr. Pavlik sought to exclude the shotgun and warned statement on the grounds that his arrest and the search of thevehicle were unlawful. [11] As to his arrest, Mr.

Pavlik argued the police had lacked grounds to arrest him. He said police corroboration of the details ofthe tip did not lend enough credibility to the allegations of criminal conduct to support his warrantless arrest, thereby violating s. 9 of theCharter. He also argued the search of Ms. Werminsky’s vehicle had violated his s. 8 rights. Lastly, Mr. Pavlik said his warned statementhad not been voluntary. In this appeal, Mr. Pavlik does not challenge the trial judge’s findings on the voluntariness of his warnedstatement. [12] The trial judge approached the legality of Mr.

Pavlik’s arrest under s. 495 of the Criminal Code by acknowledging thatConstable Henry had believed Mr. Pavlik was the subject of an outstanding warrant at the time of his arrest, but observing that the Crownhad called no further evidence on that point; thereby ruling out reliance on s. 495(1)(

c) because there was no way to ascertain whetherConstable Henry’s belief was based on reasonable grounds. Next, the trial judge observed that nobody had seen Mr. Pavlik committing acriminal offence and, therefore, the police could not have arrested him without warrant under s. 495(1)(b). The trial judge then turned tos. 495(1)(

a) to determine whether the police had reasonable grounds to believe Mr. Pavlik had committed or was about to commit anindictable offence. [13] Applying the factors set forth in R v Debot, (SCC), [1989] 2 SCR 1140, the trial judge found the tip wasprecise and detailed enough, in terms of time, location and people involved, to support the arrest. He found the level of detail ruled outmere coincidence, indicating it had been provided by someone with personal knowledge of Mr.

Pavlik’s activities and whereabouts.Nonetheless, the trial judge remarked there was limited evidence available to him regarding the credibility of the source, finding noevidence as to the tipster’s motivation or reliability. This led the trial judge to say he could draw only a “weak inference” of credibility,slightly better than that of an anonymous tipster (at para 38). [14] On the other hand, the trial judge found the police had corroborated most of the information in the tip and all of the “neutral”information. Sergeant Mudry had confirmed Ms.

Werminsky owned a red car and Sergeant Dunn had seen that car and Ms. Werminsky inthe parking lot at Bailey’s Lounge within the time period set out in the tip. Importantly, the trial judge found the corroborative evidencedid not have to address the criminality alleged in the tip to be meaningful. Concluding his analysis, the trial judge was satisfied SergeantDunn had reasonable grounds to arrest Mr. Pavlik without warrant under s. 495(1)(

a) of the Criminal Code. He was similarly satisfiedConstable Henry had been entitled to rely on the directions he had received from Sergeant Dunn to do so. Accordingly, the trial judgefound Mr. Pavlik had been lawfully arrested and concluded his analysis by stating: [40] In the totality of the circumstances, I am satisfied, on the balance of probabilities, that Sgt. Dunn had reasonable grounds to arrestMr. Pavlik. The tip was sufficiently precise to be credible.

The officers confirmed all ‘neutral’ aspects of the tip and those aspects weresufficient to establish that the tipster was acquainted with the target and created a reasonable inference that he/she was privy to thecriminal activity being reported. The tip involved (and Mr. Pavlik was found at) a location where trafficking in controlled substances isknown to police to occur. In Prince Albert, that includes bars such as Bailey’s. I am satisfied that Sgt.

Dunn subjectively believed Mr.Pavlik was arrestable and, in my opinion, that belief was reasonable. [15] As to the search, the trial judge found there was no evidence Mr. Pavlik had any reasonable expectation of privacy in Ms.Werminsky’s car and, therefore, his s. 8 rights had not been engaged by the search of it incident to her arrest. He also found Mr. Pavlik’swarned statement had been voluntary. [16] Having found no Charter breaches, the trial judge admitted the shotgun and the warned statement into evidence at trial. Hethen convicted Mr. Pavlik of offences under ss. 86(1), 88, 94(1)(a)(i), 95(l)(

a) and 117.01(1) of the Criminal Code but stayed convictionsunder ss. 92(1) and 117.01(1) pursuant to the Kienapple principle. IV. Issues [17] Mr. Pavlik’s appeal is quite narrow. The principal issue is whether the trial judge erred by finding the arrest was lawful.Secondarily, if he so erred, the appeal asks whether the evidence obtained by the police ought to have been excluded from the trial. [18] The issue of whether the facts as found by a trial judge amount at law to reasonable grounds to arrest under s. 495(1)(

a) is aquestion of law subject to appellate review on the standard of correctness: R v Shepherd, 2009 SCC 35 at para 20, [2009] 2 SCR 527; R vTodd, 2019 SKCA 36 at para 23; R v McMahon, 2018 SKCA 26 at para 24, 361 CCC (3d) 429. V. Analysis

A. Breach [19] As noted, s. 495(1) of the Criminal Code lays out the three circumstances in which a police officer may arrest an individualwithout warrant. Importantly, the trial judge found only the arrest power under s. 495(1)(

a) arose on the facts of this case. This Courtsummarised the jurisprudence under s. 495(1)(

a) in R v Shinkewski, 2012 SKCA 63, 399 Sask R 11; see also R v Nahnybida, 2018 SKCA72 at para 71, 365 CCC (3d) 209. [20] Put in broad terms, when the lawfulness of a warrantless arrest under s. 495(1)(

a) is challenged, the application of the standardof “reasonable grounds to believe” involves the court’s objective assessment of whether the police subjectively believed the individualarrested had committed or was about to commit an indictable offence and whether the observations and circumstances articulated by thepolice are rationally capable of supporting that belief.

The question asked in R v Storrey, (SCC), [1990] 1 SCR 241 at250–251, was whether an objective observer, standing in the shoes of the police officer with an awareness of the same circumstances,would conclude it was reasonable to believe the individual had committed or was about to commit an indictable offence. [21] Therefore, a reviewing court must critically evaluate the grounds for arrest that have been advanced by the Crown but, asnoted, the required degree of probability of such criminal conduct having occurred or occurring is not high—it is lower than a prima faciecase for conviction (R v Shepherd at para 21; R v Storrey at 251; R v Shinkewski at para 13; R v Gunn, 2012 SKCA 80 at paras 7–8, 399Sask R 170; R v Slippery, 2014 SKCA 23 at para 33, 433 Sask R 183). [22] In R v Debot, Wilson J. devised three questions to assist reviewing courts when assessing the reasonableness of a warrantlesssearch, which also apply in the circumstances of a warrantless arrest.

At the same time, she observed that, in each case, the reasonablenessof police action must be assessed in the totality of the circumstances (at 1168): In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search.First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a“tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by policeinvestigation prior to making the decision to conduct the search?

I do not suggest that each of these factors forms a separate test. Rather, Iconcur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one areamay, to some extent, be compensated by strengths in the other two. [23] When it came to her consideration of the second question—i.e., whether the source was credible—Wilson J. undertook thefollowing analysis on the facts in R v Debot (at 1170): The informant whose credibility is most critical, of course, is the one who provided the details of the anticipated transaction.

At trial,Constable Gutteridge testified that this source was not paid for his information and had no outstanding charges or investigation pendingagainst him. The officer stated that he had received information in the past from this source about the activities of traffickers in general inWallaceburg, which the police had corroborated through surveillance.

Information from this source had once led to a search warrant beingexecuted on an apartment at which a quantity of speed (less than anticipated) and marijuana were located along with scales and debt lists.Moreover, Constable Gutteridge testified that he had seen the informant and Carpenter together on at least three or four occasions, whichlends some support to the informant’s claim that he received the information about the anticipated transaction directly from Carpenter.These pieces of evidence tend to validate the decision to treat the informant as credible.

Different considerations would of course apply insituations where the police rely on an anonymous tip or on an untried informant. In such circumstances the quality of the information andcorroborative evidence may have to be such as to compensate for the inability to assess the credibility of the source. [24] In this appeal, Mr. Pavlik invites us to conclude the trial judge erred when he found that, in the totality of the circumstances,the Crown had established that the police had reasonable grounds to believe Mr.

Pavlik had committed or was about to commit theindictable offence under the Controlled Drugs and Substances Act of possession of a scheduled substance—i.e., methamphetamine—forthe purpose of trafficking and was therefore “arrestable” without warrant pursuant to s. 495(1)(

a) of the Criminal Code. [25] In that regard, when it comes to judicial review of the grounds for arrest, one striking difference between this case and caseslike R v Debot, R v Chioros, 2019 ONCA 388, R v Omar, 2018 ONCA 787, 366 CCC (3d) 241, R v Dunkley, 2017 ONCA 600, 385 CRR(2d) 183, R v Richards, 2017 ONCA 24, R v Whyte, 2011 ONCA 24, 266 CCC (3d) 5, R v Goodine, 2006 NBCA 109, 214 CCC (3d) 385,and R v Shinkewski, is immediately apparent.

The difference is this: the police officer who most directly relied on the tip, who assessedthe tipster’s credibility, and who advised the on-the-ground police officers that Mr. Pavlik was “arrestable”, did not testify. As such, thetrial judge in this case had no information about the tipster, his or her reliability, or his or her history with the police. The trial judge wellunderstood this frailty in the Crown’s case, writing: [38] Cst. Anderson did not testify and I have limited evidence as to the credibility/reliability associated with the person who providedthe tip.

The officers who testified in these proceedings indicated that it was their practice to maintain the confidentiality of anotherofficer’s sources. They did not want to know and did not ask the name of Cst. Anderson’s source nor his/her possible motive in providingthis particular tip nor his/her prior history, if any, of providing useful information to the police. Rather, both Sgt. Mudry and Sgt. Dunnwere satisfied by Cst. Anderson’s conclusion that the source was credible and his/her information reliable. For purposes of theseproceedings, I am able only to draw a weak inference that Cst.

Anderson’s informant was credible. On a spectrum, this would place thesource information relied upon to arrest Mr. Pavlik more reliable than an anonymous tip but not much.

Given the lack of evidence respecting the tipster or otherwise addressing the issue of the tipster’s credibility, the trial judge determined hecould draw only a weak inference as to the tipster’s credibility, which added little, if any, weight to the reliability of the tip. [26] Of course, an evidentiary frailty as to the informant’s credibility does not necessarily result in a tip being incapable ofestablishing grounds for arrest under s. 495(1)(a).

As Wilson J. stated in R v Debot at 1170, “where the police rely on an anonymous tip oran untried informant … the quality of the information and corroborative evidence may have to be such as to compensate for the inability toassess the credibility of the source”. Put another way, frailties in the evidence under one of the three R v Debot questions may becompensated for where, in an assessment of the whole of the circumstances, the objective evidence under all three questions is rationallycapable of supporting a belief that the arrestee had committed or was about to commit an indictable offence.

[27] As Wilson J. made clear, the three R v Debot questions are not separate tests; rather, they point to factors to weigh in the court’sobjective assessment of the totality of the circumstances. Nevertheless, where the police have relied on an informant whose credibility isunestablished or cannot be proven to the court, the quality and quantity of the information provided by the informant and its corroborationby the police will have to be such as to compensate for the court’s inability to assess the credibility of the source of that information.

Forexample, employing this line of reasoning, the Court in R v Jir, 2010 BCCA 497, 264 CCC (3d) 64, considered whether it was objectivelyreasonable for a police officer to arrest an accused based on an anonymous tip, assessing the articulated grounds in this way: [31] In my view, Constable Fehr’s belief that he had the grounds necessary to arrest Mr. Jir was objectively reasonable. The highly-specific information provided by the tipster with respect to vehicle, place, and time had been confirmed.

This lent credence to the tip andmade it likely that the tipster had personal knowledge of what he or she had reported. That events unfolded as the tipster said they wouldbolstered the reliability of the aspect of the tip pertaining to the Sebring being used for drug-related activity. In addition, there did notappear to be any reason for the Sebring to have pulled into the church parking lot at that time of night. The trial judge was, therefore,correct in holding that Mr.

Jir had been lawfully arrested. [28] In this case, however, the failure of the Crown to put forward Constable Anderson as a witness, or to otherwise establish thecredibility of the tipster, means that one of three pillars for the Crown’s assertion that the warrantless arrest was lawful is absent.

In myassessment, the compelling nature of the tip and its corroboration by the police did not compensate for the absence of evidence about thetipster’s credibility. [29] As noted, the reviewing court first asks whether the information provided by an informant is compelling by considering itsdetail and precision and its source (i.e., how the informant acquired the information) to assess whether the information has the characterof something more than “mere rumour or gossip” or of “bald conclusory statements” (R v Debot at 1168–69).

Justice Wilson found thetipster’s information in R v Debot was compelling based on its specificity, particularly as it related to the criminality it alleged wouldoccur and as to the source of the information. Critically, when assessing whether the tip in R v Debot was compelling due to itsspecificity, Wilson J. had significant regard for factors such as the reputation of the suspect with the police and other information knownto the police that might be seen as enhancing the plausibility of the criminality alleged in the tip.

In this regard, she wrote (at 1168 and1169–70): With respect to the first aspect, the following data was relied on by the police in deciding to investigate the activities of the appellant: (1)Constable Gutteridge had received information predicting a drug transaction between Carpenter, List and the appellant at the Carpenterresidence on the evening of February 26, 1985; (2) the informant claimed to have acquired this knowledge directly from one of the actors;(3) the appellant had a prior conviction for a drug offence, albeit a minor one; (4) the other two participants in the transaction hadconvictions for narcotics related offences; (5) all three were reputed to be drug users and traffickers.

I find that the information received by Constable Gutteridge was sufficiently specific to warrant the attention of the police. The informantidentified the participants and the courier, named the location of the transaction, and specified the time of day when the event would takeplace. He also gave the basis for his assertions, namely a conversation with one of the participants.

The information did not take the formof bald conclusory statements or “mere rumour or gossip” to use the words of Martin J.A. at p. 219. … … I think it is somewhat artificial to assume that any one factor, be it reputation or something else, is responsible for turning a previously“insubstantial” case into a sufficient one. Having said that, I add the following caveats to the use of reputation as germane to the issue of areasonable search. First, the reputation of the suspect must be related to the ostensible reasons for the search.

A background of drivingoffences, for example, has little relevance to drug trafficking. Second, if the reputation of the suspect is based on hearsay rather than policefamiliarity with the suspect, its veracity cannot be assumed. In the present case, it appears that the police relied on both direct experienceand hearsay.

On the occasion leading to the appellant’s conviction for possession of marijuana Constable Gutteridge executed a searchwarrant on the appellant’s residence in which he testified to having found “marihuana .... traces of speed, scales, debt list, smoking pipes,packaging material, baggies, that sort of thing”. He also testified to finding his name on the phone list of another person on whoseresidence a search warrant was executed and drugs were found.

Constable Gutteridge further claimed that he had received informationfrom “other confidential sources” to the effect that the appellant was a user and trafficker in speed. The record does not indicate anythingabout the reliability of the sources who informed the police of the appellant’s reputation; for that reason I am inclined to give greaterweight to Constable Gutteridge’s first hand observations. [30] These passages from R v Debot serve to highlight the relevance and importance of the objective basis for Constable Anderson’sbelief that Mr. Pavlik and Ms. Werminsky were “arrestable”.

To put an evidentiary point on it, because Constable Anderson did nottestify, there was no evidence before the trial judge akin to that which Wilson J. had used in R v Debot to conclude the tip in that case “didnot take the form of bald conclusory statements or ‘mere rumour or gossip’”. None of the on-the-ground officers testified to having priorknowledge that Mr. Pavlik or Ms. Werminsky were involved in the drug trade or other criminal activity. None of the on-the-groundofficers testified that either of Mr. Pavlik or Ms. Werminsky were otherwise known to the police.

While Constable Anderson may havehad this information, on the evidence adduced in the voir dire, the two were completely unknown to the police prior to their receipt of thetip. Indeed, the trial judge noted Sergeant Dunn had testified that, without the tip, the police “would not have had reasonable grounds tobelieve either that Ms. Werminsky or Mr.

Pavlik were engaged in unlawful conduct” (at para 17). [31] In his reasons on the issue of whether the tip was compelling, the trial judge wrote: [33] In Debot, the Supreme Court articulated three factors for assessing reasonable grounds to arrest when information from aninformant is utilized to justify those grounds – sometimes referred to as the 3 C’s (per Wilson J., at p. 1168). First, is the tip compelling?This factor reminds the court to examine the information provided.

Is the information sufficiently unique, detailed or precise so as toexclude the possibility that it has been based on a mere rumour or gossip and the possibility of coincidence? (Debot, per Wilson J., atp. 1172). Generally speaking, the more precise and detailed a tip, the more compelling it will be – particularly so if the details are personaland not publicly known. The more intimate the details, the more likely it is that the informer is well placed to have reliable knowledge.See: R v Wiley, (SCC), [1993] SCR 263, 84 CCC (3d) 161 [Wiley].

… [37] I am satisfied that the tip received by Cst. Anderson and communicated to other officers was sufficiently detailed to be credible[sic, compelling]. It was precise as to time, location and persons. Mr. Pavlik was at the location indicated, at the time indicated, with theperson indicated, and he arrived by the means indicated. This level of precision rules out the possibility of mere coincidence and indicatesthe informer had some personal knowledge of the activities of both Mr. Pavlik and Ms.

Werminsky. (Emphasis added) [32] Respectfully, I find the trial judge misapprehended what Wilson J. meant when she said a reviewing court must ask whether theinformation predicting the commission of a criminal offence was compelling. First, the Crown is not required to show that the detail andprecision of a tip “excludes” or “rules out” the possibility of mere rumour or gossip or of coincidence. That bar is too high. Second, thetrial judge concluded the tip was compelling because the police had corroborated location, time, persons and means of arrival.

WhileWilson J. had, in a sense, corroborated the compelling nature of the tip in that case, she had done so only by reference to what the policehad already known about the subjects of the tip, not by what the police had observed when acting on the tip, which addresses the thirdquestion under R v Debot. Third, the degree of specificity of the neutral information in the tip in this case gave the tip the character ofsomething more than “mere rumour or gossip” but, in my assessment, it is just barely better than a “bald conclusory statement”.

Justreferencing the information relied on in R v Debot, four of the five things that had lent to the compelling nature of the tip in that case areabsent from or unknown on the facts of this case—i.e., there was no evidence as to: (

i) how the tipster had acquired the information;(ii) whether Mr. Pavlik had prior convictions for drug-related offences; (iii) whether Ms. Werminsky (the other participant in theanticipated offence) had convictions for drug-related offences; and (iv) whether the police had knowledge that Mr. Pavlik andMs. Werminsky were reputed to be drug users and traffickers. To be clear, R v Debot does not set out a checklist of factors relevant to thequestion of whether a tip is compelling.

For example, in this case, the police were well aware that Bailey’s Lounge was commonly the siteof drug transactions, which is not identified as a factor in R v Debot but had lent to the compelling nature of the tip in this case. [33] On the whole of it, however, I would not interfere with the trial judge’s overall assessment that the tip was, to a degree,compelling; nonetheless, I find it was only just so. The tipster advised where Mr.

Pavlik would be in 20 minutes (which, as noted, thepolice knew to be a site for drug deals), with whom he would be, what type vehicle he would be in, to whom the vehicle would belong,who would be driving it, and the illegal activity in which they would be participating, including the general amount of methamphetaminethey would have in their possession. This information had enough detail to allow for a conclusion that the tip was more than gossip orrumour but, because Mr. Pavlik and Ms.

Werminsky had no reputation with the police, it is not much more than a “bald assertion” thatthey were dealing drugs, as was considered by the Court in R v Chioros at para 19. The information contained in the tip suggests thetipster was familiar with Mr. Pavlik and his personal affairs, which lends to the persuasiveness of the tip. However, the tip lacks certaindetails, and the details it does provide are not more than what someone might be able to say even having no familiarity with the allegedcriminal activity of Mr. Pavlik. [34] Leaving aside the assertion by the tipster that Mr. Pavlik and Ms.

Werminsky would be in possession of, and selling,methamphetamine, the police were told that Mr. Pavlik and Ms. Werminsky would be arriving at a bar, at a particular time, in each other’scompany. This information does nothing to differentiate Mr. Pavlik’s conduct from many law-abiding individuals.

The Court in R v Lewis(1998), (ON CA), 122 CCC (3d) 481 (Ont CA), faced with a similar situation, explained its concern in these terms: [18] Although the details provided in the tip and the confirmation of many of those details go some way to providing the requisitereasonable grounds, the danger in holding that they go the entire way is clear. Literally thousands of people go to the PearsonInternational Airport every day to fly to various destinations.

No doubt, there are thousands more who are sufficiently familiar with atraveller’s plan to know the traveller’s flight, destination and who, if anyone, will accompany that traveller. Any one of those thousandscould supply the police with exactly the same kind of information about any one of the thousands of travellers that this tipster providedabout the respondent. It takes little imagination to conceive of situations in which a person familiar enough with another person to knowhis or her travel plans would also have a motive to falsely accuse that person of a serious crime.

The risk of false allegations is particularlysignificant when the tipster is shielded by an absolute and impenetrable anonymity. See also Stephen Coughlan and Glen Luther, Detention and Arrest, 2d ed (Toronto: Irwin Law, 2017) at 105–107. [35] There is no evidence the police had background knowledge of Mr. Pavlik and Ms. Werminsky of a similar nature to that whichhad informed the conclusion that the tip in R v Debot was compelling. Further, the tipster did not provide the basis for his or her assertionsthat the persons named in the tip would be trafficking in methamphetamine, as had been the case in R v Debot.

Moreover, the fact that atip is compelling does not complete the assessment, particularly where the Crown must use that factor to overcome frailties under theother two questions in R v Debot—a point to which I will shortly return. [36] As to the level of corroboration or verification of the tip in this case, the trial judge found: [39] I am satisfied that the police corroborated much of the information they had been provided and all of the “neutral” informationprovided in the tip. Sgt. Mudry confirmed the aspect of the tip involving a “red car”.

At that point, he dispatched officers to the indicatedlocation to begin surveillance. While the surveillance did not go as planned in the limited time available to his team, Sgt. Dunn confirmedthat a red car was at the indicated location, that the car matched the description of a vehicle registered to Ms. Werminsky, and that bothMr. Pavlik and Ms. Werminsky were present at the subject location and at the time indicated.

As noted by the New Brunswick Court ofAppeal in Goodine, there is no general rule that corroborative evidence must include some corroboration of illegal behaviour. ... [37] Respectfully, the critical weakness of the corroborative evidence was that, even though there is no general requirement thatthey do so, the police were unable to corroborate any criminal activity, or any activity that, although not illegal, could be viewed asreasonably anticipatory to illegal activity on the part of Mr. Pavlik or Ms. Werminsky.

This gap in the corroborative evidence when takenalongside the lack of specificity of the criminal activity alleged in the tip, and the lack of any background or reputational knowledgelinking Mr. Pavlik or Ms. Werminsky to the type of criminal activity anticipated by the tip (or any previous criminality, for that matter),barely moves the needle off mere speculation that Mr. Pavlik was about to commit a drug-related indictable offence.

[ 38 ] In light of the weakness in the tip already identified, the best that could be said is that the police had objectively reasonable grounds to suspect that either Mr. Pavlik or Ms. Werminsky were about to commit the indictable offence of trafficking in a scheduled substance. However, because the police had not observed any activity from which they could have drawn an inference that a drug-related indictable offence was about to occur or was occurring, they did not have an objectively reasonable basis to believe that Mr. Pavlik was about to commit a drug-related indictable offence.

I find Sergeant Dunn’s testimony supports this conclusion, where he testified to the effect that—without the tip—they did not have reasonable grounds to believe Mr. Pavlik was engaged in unlawful conduct. [ 39 ] In my assessment, the overall corroborative effect of the police observations was not meaningful in the context of the tip in question.

Moreover, it failed to overcome the absence of evidence as to the tipster’s credibility, the lack of detail and specificity as to the criminality alleged in the tip, and the lack of background knowledge on the part of the police linking the suspects to the alleged criminality.

As Wilson J. noted in R v Debot (at 1172): ... [I]t should not be necessary for the police to confirm each detail in an informant’s tip, so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence. … [H]owever, the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater. ... [ 40 ] To put all of this together, Constable Anderson had told Sergeants Mudry and Dunn that the tipster was credible.

The on-the- ground officers were entitled to rely on that communication to effect the arrest. Given that they had received a tip with some compelling details, and had corroborated most of the neutral circumstances it predicted, the on-the-ground officers had grounds to subjectively believe that Mr. Pavlik had or was about to commit an indictable offence and was, therefore, subject to being arrested under s. 495(1) (

a) of the Criminal Code . Critically, however, the lawfulness of the arrest nonetheless remained subject to judicial review if challenged. This is where the matter turns, and it does so because the Crown had given the trial judge no evidence upon which he could evaluate the credibility of the tipster or the objective reasonableness of Constable Anderson’s belief that the tipster was credible and that Mr.

Pavlik was “arrestable”. [ 41 ] While the accused bears the initial evidentiary and persuasive burdens to make out the Charter breach in issue, the Crown must, of necessity, adduce evidence tending to substantiate the objective reasonableness of its officers’ subjective beliefs.

In R v Besharah , 2010 SKCA 2 , 343 Sask R 202, Smith J.A. wrote: [35] … Where the lawfulness of the police arrest is put at issue on a Charter challenge, as it was here, the onus must fall on the Crown through police witnesses to establish that the police had subjectively and objectively reasonable and probable grounds for the arrest, for, as a practical matter, this proposition is asserted and relied upon by the Crown and is within the peculiar knowledge of the police.

Thus, fairness requires that the burden of proving this matter fall on the Crown and that the accused have an opportunity to challenge the police evidence by way of cross-examination. … [ 42 ] In R v Storrey , the question was whether an objective observer, standing in the shoes of the police officer with an awareness of the same circumstance, would conclude it was reasonable to believe an individual had committed or was about to commit an indictable offence. In the circumstances of this case, the “police officer” includes more than the arresting officer.

Here, Constable Anderson received the tip and relied on it and its source to advise Sergeant Mudry that the tipster was credible and that Mr. Pavlik (and Ms. Werminsky) was “arrestable”. Sergeant Mudry conducted a quick investigation of what Constable Anderson had told him, confirming some details of the tip, which he passed along to Sergeant Dunn with Constable Anderson’s advice as to the tipster’s credibility and the fact that the subjects of the tip were “arrestable”. Sergeants Dunn and Valmont and Constable Henry corroborated most of the neutral elements of the tip Constable Anderson had received.

Sergeant Dunn then instructed Constables Henry and Lindsay to effect the arrests of Mr. Pavlik and Ms. Werminsky, respectively, but first confirmed directly with Constable Anderson that Ms. Werminsky was, in fact, “arrestable”. That is, at least six police officers were directly yet independently involved in the establishment of the grounds that led Constable Henry to believe Mr.

Pavlik had committed or was about to commit an indictable offence and was, therefore, subject to arrest without a warrant. [ 43 ] However, the most critical of these officers was Constable Anderson, because he had received the tip and advised the others that the tipster was reliable and that Mr. Pavlik was “arrestable”. But, Constable Anderson did not testify and, as a result, there is no evidence as to the basis for his subjective belief that the tipster was credible. Further, the Crown tendered no other evidence to show that the tipster was credible.

As noted earlier, this stands in stark contrast to a case like R v Debot , where the Crown had established that: (

a) the informant had not been paid for his information; (

b) the informant had no outstanding charges or investigation pending against him; (

c) the police had received information in the past from the informant about the activities of drug traffickers and had corroborated that information through surveillance; (

d) other information from the informant had led to a search warrant being executed on an apartment at which a quantity of speed and marijuana had been located along with scales and debt lists; and (

e) the informant claimed to have received the information about the anticipated transaction directly from the accused and the police had seen the informant and the accused together on at least three or four occasions. [ 44 ] Furthermore, although the Crown had established that the tip was compelling, it was only just so. It lacked specificity as to the criminality it predicated and the source of that information. As well, the Crown did not establish that the police had background knowledge of prior involvement by Mr. Pavlik or Ms. Werminsky in drug-related (or any) criminal activity.

Finally, the police had not corroborated any illegal activity and the neutral circumstances had played out not quite in the way the tipster had predicted they would. Weighed in the balance, the compelling nature of the tip and the corroborative evidence do not compensate for the court’s inability to assess the credibility of the tipster in this case. [ 45 ] I want to make clear that the on-the-ground police officers honestly held a subjective belief that they had sufficient grounds to arrest Mr. Pavlik in these circumstances. On their understanding of things, they had grounds to believe Mr.

Pavlik had committed or was

about to commit an indictable, drug-related offence. However, their subjective belief was pinned—to a good extent—on ConstableAnderson’s knowledge of the tipster’s credibility and his advice that Mr. Pavlik was “arrestable”. I also acknowledge that the Crown wasunder no obligation to call Constable Anderson to testify in the voir dire (R v Cook, (SCC), [1997] 1 SCR 1113 at para55). However, from the perspective of judicial review, the failure to call Constable Anderson left a gap in the Crown’s case on thelawfulness of the arrest (see R v Cheecham (1989), (SK CA), 51 CCC (3d) 498 at 501 (Sask CA)).

That is, the absenceof evidence as to the credibility of the tipster or as to what had supported Constable Anderson’s assessment that Mr. Pavlik was“arrestable” critically undermined the Crown’s ability to prove that it was in fact objectively reasonable in the circumstances for the policeto have arrested Mr. Pavlik without a warrant. [46] Taking all of the relevant evidence into account, I conclude the trial judge erred when he found the Crown had discharged itsburden of proof in this matter. On the evidence, I am unable to conclude the police had objectively reasonable grounds to arrest Mr.

Pavlikpursuant to s. 495(1)(

a) of the Criminal Code. Given the trial judge’s other conclusions under s. 495, namely, that Mr. Pavlik was nototherwise subject to arrest without a warrant, I find Mr. Pavlik’s arrest was unlawful and, therefore, arbitrary (R v Grant, 2009 SCC 32 atparas 54–55, [2009] 2 SCR 353). B.

Remedy [47] I turn now to the remedy under s. 24(2) of the Charter, on the basis of the framework in R v Grant, which trial judge did notaddress because he had found no breach. [48] The focus of the analysis under s. 24(2) is on how the admission of the impugned evidence will affect the long-term repute ofthe administration of justice.

Recently, in R v Le, 2019 SCC 34, 375 CCC (3d) 431, Brown and Martin JJ. wrote: [139] Section 24(2) of the Charter provides that, where evidence was obtained in a manner that infringed a Charter right or freedom,that evidence shall be excluded if it is established that, having regard to all the circumstances, its admission would bring theadministration of justice into disrepute. While the judicial inquiry under s. 24(2) is often rhetorically cast as asking whether evidenceshould be excluded, that is not the question to be decided.

Rather, it is whether the administration of justice would be brought intodisrepute by its admission (R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 42).

If so, there is nothing left to decide aboutexclusion: our Charter directs that such evidence must be excluded, not to punish police or compensate for a rights infringement, butbecause it is necessary to do so to maintain the “integrity of, and public confidence in, the justice system” (Grant, at paras. 68–70). [140] Where the state seeks to benefit from the evidentiary fruits of Charter-offending conduct, our focus must be directed not to theimpact of state misconduct upon the criminal trial, but upon the administration of justice.

Courts must also bear in mind that the fact of aCharter breach signifies, in and of itself, injustice, and a consequent diminishment of administration of justice. What courts are mandatedby s. 24(2) to consider is whether the admission of evidence risks doing further damage by diminishing the reputation of theadministration of justice — such that, for example, reasonable members of Canadian society might wonder whether courts take individualrights and freedoms from police misconduct seriously.

We endorse this Court’s caution in Grant, at para. 68, that, while the exclusion ofevidence “may provoke immediate criticism”, our focus is on “the overall repute of the justice system, viewed in the long term” by areasonable person, informed of all relevant circumstances and of the importance of Charter rights. [49] In this case, turning to the first line of inquiry under R v Grant—i.e., the seriousness of the state conduct—I found the on-the-ground police officers had grounds to subjectively believe Mr. Pavlik might be in possession of methamphetamine for the purposes oftrafficking.

However, given the Crown’s failure to call Constable Anderson or to otherwise establish the basis of his belief that the tipsterwas credible and that Mr. Pavlik was “arrestable”, which belief was the lynchpin of the grounds for the arrest, the Crown was unable toestablish the objective reasonableness of the arrest under s. 495(1)(

a) of the Criminal Code. [50] If one were to assess only the circumstances known to the Court, I would conclude the state’s conduct in this case constituted aserious violation of Mr. Pavlik’s liberty interest. I say that because the objective evidence does not make the case for anything more thanspeculation or a mere suspicion that Mr. Pavlik might have been about to commit an indictable, drug-related offence when he wasarrested. [51] In fairness, the tip predicted Mr. Pavlik would commit an indictable offence 20 minutes later, which all but ruled out a detailedinvestigation—i.e., the matter was time sensitive.

The police, acting in good faith within time constraints, conducted a rudimentaryinvestigation (e.g., licence plate search and brief surveillance at Bailey’s Lounge), but there is no evidence they had knowledge of or hadinquired into Mr. Pavlik’s or Ms. Werminsky’s prior involvement with illicit drugs or any other criminal activity. I accept that the on-the-ground officers honestly believed (and were entitled to believe) that the tipster was credible, but the tipster’s credibility was notestablished at trial. I also accept that the police honestly believed Mr.

Pavlik to be under a conditional sentence order prohibiting hisattendance at places like Bailey’s Lounge, but that too was not established as a fact at trial. Given the foregoing, I find the on-the-groundpolice officers were acting honestly and in good faith when they arrested Mr. Pavlik. However, in these circumstances, the state’s conductcannot be isolated to the honest and good faith intentions of the on-the-ground police officers at the time of arrest. Rather, the seriousnessof the state conduct must be viewed in light of the entire chain of events that led to the arrest.

The plain fact is that, in this case, one ormore links in the chain have not been established such that the evidence does not support the objective lawfulness of the arrest. [52] On the evidence, when a then-unidentified woman in a car, matching the description of Ms. Werminsky’s car, parked atBailey’s Lounge appeared to be taking steps to leave, the police chose to act by stopping her car, identifying her as Ms. Werminsky,arresting her and by, separately but concurrently, arresting Mr. Pavlik.

In its factum, the Crown characterises this circumstance as thepolice “dealing with suspects who were about to leave the scene of the alleged crime” where they had “seconds in which to decide what todo”, urging the Court to keep in mind “the exigencies of the investigation” when evaluating the reasonableness of the grounds for arrest.But there was no alleged crime—on the evidence, some unknown person had merely anticipated a drug-related, indictable offence wouldoccur involving the two named suspects. No one knew whether they had a prior criminal history. No one had seen Mr. Pavlik orMs.

Werminsky commit an offence. Importantly, if the police had seen them commit any criminal offence, they could have relied ons. 495(1)(

b) of the Criminal Code to make a warrantless arrest. Even taking exigencies into account, it would still have been precipitousfor the police to arrest two ostensibly law-abiding citizens in the circumstances—and, to repeat, this objective conclusion is drawn from an

assessment of the evidence adduced by the Crown. On that basis, the police only had grounds to suspect that Mr. Pavlik had committed orwas about to commit an indictable offence. [53] For the purposes of the s. 24(2) analysis in this case, the finding that the on-the-ground officers had acted honestly and in goodfaith in reliance on what they had been told lessens the seriousness of the state conduct because the Charter breach was not deliberate. Assuch, I would place the conduct on the lower side of the scale of seriousness.

However, that assessment does not speak to the full effect ofthe state’s conduct on the long-term repute of the administration of justice in this case. I say that because, in the voir dire, the Crowneffectively asked the trial judge to assume the tipster was credible because one officer said another officer had told him so. [54] To be even clearer, I expect Constable Anderson had his reasons to say the tipster was credible and Mr. Pavlik (and Ms.Werminsky) was “arrestable”. But, I have no idea what those reasons were.

It is not the role of a trial judge or this Court to hazard a guessthat, had the Crown led the evidence it probably had at its disposal, then everything would be seen to be Charter-compliant (see R vGreffe, (SCC), [1990] 1 SCR 755; R v Cheecham at 502). The absence of evidence does not lead to a presumption of badfaith on the part of the state, but neither does it lead to a presumption of good faith. However, if this circumstance is condoned by thecourt, it opens the door to future conduct of a similar nature.

For this reason, in my assessment, the seriousness of the state’s conduct inthis case favours exclusion of the impugned evidence—at the very least so as to keep that door closed. [55] Turning to the second aspect of R v Grant, I find the s. 9 Charter breach had an acute affect on Mr. Pavlik’s right not to bearbitrarily detained or imprisoned. The police deprived Mr. Pavlik of his liberty and arrested him and then searched his person, findingnothing incriminating. However, a subsequent search of Ms. Werminsky’s vehicle, albeit incident to her arrest, revealed a loaded, sawed-off, 12-gauge shotgun.

The police then obtained a warned statement from Mr. Pavlik, which occurred during his unlawful detention, inwhich he admitted to possessing the prohibited weapon. [56] With respect to its duration, Mr. Pavlik’s detention was not fleeting. The trial judge found the police had arrested Mr. Pavlik ataround 9:00 in the evening. The evidence indicates Sergeant Mudry interviewed Mr. Pavlik between 12:21 a.m. and 12:37 a.m. the nextday. As such, it seems Mr.

Pavlik had been unlawfully deprived of his liberty for about 3.5 hours before he made the warned statement. [57] As to the search that led to the discovery of the shotgun, the Crown makes the point that the trial judge found Mr. Pavlik hadno privacy interest in the trunk of Ms. Werminsky’s vehicle. The Crown then argues “it was only a matter of time before police reachedthe conclusion that the appellant acted alone in possessing [the shotgun]”.

While that may be true, deducing a conclusion from otherevidence and obtaining an admission to the same effect from a detainee are two very different things with two very different evidentiaryvalues. This case does not present the exceptional circumstance described in R v Harper, (SCC), [1994] 3 SCR 343,where it could confidently be said the warned statement would have been made notwithstanding the Charter breach or that it was aspontaneous statement (see also R v Grant at para 96).

In R v Wittwer, 2008 SCC 33, [2008] 2 SCR 235, Fish J. stated: [21] In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generousapproach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will betainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p. 1005.The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of thethree”: R. v.

Plaha (2004), (ON CA), 189 O.A.C. 376, at para. 45. A connection that is merely “remote” or “tenuous”will not suffice: R. v. Goldhart, (SCC), [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45. See also R v Moyles, 2019 SKCA 72 at paras 95–101. [58] On the evidence in this case, but for Mr. Pavlik’s arbitrary arrest and his subsequent admission, nothing linked him to Ms.Werminsky or to her vehicle or to the shotgun. The police obtained their awareness of the offences and all the evidence that incriminatedMr. Pavlik in those offences subsequent to his unlawful arrest, while he was being arbitrarily detained.

For this reason, the impact of thebreach of s. 9 of the Charter militates in favour of exclusion of the shotgun and the statement. [59] There is little doubt the shotgun is reliable evidence that is central to the Crown’s case against Mr. Pavlik on very seriousweapons offences occurring in a community where such offences are known to be frequent. As such, the third factor strongly favours theadmission of the shotgun. As to the warned statement, the trial judge found Mr. Pavlik had voluntarily made it, but the trial judge did so incircumstances where he had found no breach of s. 9 of the Charter.

Where there has been a Charter breach, the majority of the Court in Rv Grant wrote: [97] The third inquiry focusses on the public interest in having the case tried fairly on its merits. This may lead to consideration of thereliability of the evidence. Just as involuntary confessions are suspect on grounds of reliability, so may, on occasion, be statements takenin contravention of the Charter. Detained by the police and without a lawyer, a suspect may make statements that are based more on amisconceived idea of how to get out of his or her predicament than on the truth.

This danger, where present, undercuts the argument thatthe illegally obtained statement is necessary for a trial of the merits. [98] In

summary, the heightened concern with proper police conduct in obtaining statements from suspects and the centrality of theprotected interests affected will in most cases favour exclusion of statements taken in breach of the Charter, while the third factor,obtaining a decision on the merits, may be attenuated by lack of reliability. This, together with the common law’s historic tendency to treatstatements of the accused differently from other evidence, explains why such statements tend to be excluded under s. 24(2). [60] In this case, Sergeant Mudry testified that, prior to taking the warned statement, Mr.

Pavlik had told him he did not want Ms.Werminsky to get into trouble. In the circumstances, I find the reliability of the warned statement has been called into question and, assuch, the third R v Grant factor weighs against its admission into evidence. [61] Lastly, a balancing of the R v Grant factors leads me to conclude the shotgun and the warned statement must be excluded fromthe evidence in order to preserve public confidence in, and to ensure state adherence to, the rule of law.

In my assessment, the admission ofeither the shotgun or the warned statement into evidence would bring the administration of justice into disrepute. [62] I have found the on-the-ground police officers’ conduct was lower on the scale of seriousness. However, I conclude the Court

cannot be perceived as endorsing a circumstance where it has been asked to place great weight on conclusionary evidence as to a tipster’s credibility—with the accused having had no opportunity to challenge the evidence by way of cross-examination—in a context where the tipster’s credibility was critical to establishing the lawfulness of the state’s deprivation of the accused’s liberty. [ 63 ] While I agree the arresting officers in this case were entitled to rely on another officer’s assessment of the tipster’s credibility, the Court is not so entitled.

An individual’s Charter right to be free from arbitrary detention and the Court’s role under our Constitution require that the Court must have the opportunity to critically evaluate the objective reasonableness of the state’s grounds for arrest without a warrant. As Wilson J. made clear in R v Debot , the Crown may overcome frailties in the evidence supporting an informant’s credibility with evidence of a compelling tip and corroboration of the tip, but the credibility of the tipster nonetheless remains relevant and material to the overall assessment of the grounds for arrest.

It will not be necessary to call the police officer who handled the tip in every case; however, the failure to do so in this case isolated the claim of tipster credibility from the Court’s review, thereby rendering null one of the three questions in R v Debot .

While there may have been legitimate reasons for this circumstance (e.g., concerns about maintaining informant confidentiality, etc.), the Crown has not made them known to the Court. [ 64 ] As noted, the Crown is under no obligation to call any witness and the courts are rarely entitled to interfere with or inquire behind the exercise of prosecutorial discretion; and, I expect the Crown had its reasons for proceeding as it has in this case.

However, I conclude the Court must dissociate itself from the evidentiary or operational choices made in this case in order to preserve public confidence in, and to ensure state adherence to, the rule of law. In my assessment, admitting the shotgun and warned statement into evidence would improperly and unfairly relieve the Crown of its evidentiary and persuasive burdens in this and in future Charter challenges under s. 9. The long-term repute of the justice system and public perception of the proper administration of justice would be undermined if we were to accept the equivalent of the state saying, “trust us”.

The courts are constitutionally charged with overseeing state conduct to determine whether the state has overstepped the legal bounds placed on its conduct by the Charter and the rule of law. We cannot be seen to be forestalled in that regard. I would, therefore, exclude the evidence of the shotgun and Mr. Pavlik’s admission under s. 24(2) of the Charter ( R v Le at paras 139–140 ). [ 65 ] Without that evidence, the Crown’s case against Mr. Pavlik is unprovable. I would allow the appeal, set aside the convictions and enter acquittals on all counts. “Caldwell J.A.” Caldwell J.A.

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