R v Santos, 2022 SKCA 50

Court of Appeal for Saskatchewan Docket: CACR3452 Citation: R v Santos , 2022 SKCA 50 Date: 2022-04-19 Between: Jeffery Santos Appellant And Her Majesty the Queen Respondent Before: Caldwell, Barrington-Foote and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Barrington-Foote On appeal from: Provincial Court, Swift Current Appeal heard: March 11, 2022 Counsel: Roch Dupont for the Appellant Crystal Warde for the Respondent Kalmakoff J.A. I.

INTRODUCTION [ 1 ] After a trial in Provincial Court, Jeffery Santos was convicted of possessing cocaine for the purpose of trafficking and sentenced to four years in the penitentiary. [ 2 ] Mr. Santos appeals against his conviction. At trial, he argued that certain incriminating evidence, namely, a package of cocaine found hidden in the luggage compartment of his vehicle, should be excluded because it had been obtained in a manner that violated his rights under ss. 8 and 9 of the Charter. The trial judge found otherwise and admitted the evidence. Mr.

Santos says that was an error. [ 3 ] For the reasons that follow, I would allow the appeal. II. FACTUAL BACKGROUND A. The traffic stop, the arrest, and the search [ 4 ] On Monday, February 3, 2020, Mr. Santos was driving westbound on the Trans-Canada Highway near Swift Current, Saskatchewan. An RCMP officer, Cst. Alexandros Giannoulis, stopped him to check his licence and registration, as permitted under The Traffic Safety Act , SS 2004, c T-18.1 . [ 5 ] Constable Giannoulis soon made several observations and gathered other information that led him to believe he had grounds to arrest Mr.

Santos for the offence of possessing cannabis for the purpose of distribution. The first of those observations was that the car Mr. Santos was driving, a Honda CRV, was a rental vehicle. Mr. Santos said he was driving a rental because his own car was in the shop. When Cst. Giannoulis asked to see the rental agreement for the car, he observed that Mr. Santos appeared to be flustered and had difficulty locating it. Mr. Santos said he was travelling from Calgary to Winnipeg. The rental agreement stated that Mr.

Santos had rented the vehicle in Calgary on February 2, and that he was required to return it there on February 6. Constable Giannoulis could also see that, inside the vehicle, Mr. Santos had a Red Bull energy drink in the cup holder, and there was fast food trash on the floor behind the passenger seat. The cargo compartment of the vehicle was also covered with a factory-installed cover. Constable Giannoulis also recognised the odour of fresh (i.e., raw, unsmoked) cannabis coming from the vehicle. [ 6 ] While he had Mr. Santos stopped at the roadside, Cst.

Giannoulis consulted an RCMP database and learned that an Alberta police unit known as ALERT (Alberta Law Enforcement Response Team), which investigates serious crimes such as drug trafficking and money laundering, had an entry in relation to Mr. Santos. That entry indicated that, since 2013, Mr. Santos had been dealt with by police on 15 occasions, one of which was a complaint—initiated by Mr. Santos himself in 2014—that his car had been stolen. The ALERT entry also stated that Mr.

Santos had video surveillance set up outside his residence in Lethbridge, that he had reportedly purchased a $60,000 car the previous summer by paying cash for it and that, on several occasions, his neighbours had complained of people mistakenly coming to their houses asking for drugs.

The entry ended with the following words: “This information lends credence to the possibility that Santos is involved in drug trafficking”. [ 7 ] Constable Giannoulis testified that, after he had reviewed the ALERT entry, had taken into account all of the other observations he had made, and had considered them in light of his training and experience, he formed the belief that Mr. Santos was in possession of cannabis for the purpose of distribution, contrary to s. 9(2) of the Cannabis Act , SC 2018, c 16 . When asked by the trial prosecutor to clarify this statement, Cst. Giannoulis said:

The reason I believed that Mr. Santos was in possession of cannabis, obviously the odour of cannabis was important to me. Again, by itself, it might not mean much, but I already talked about Mr. Santos, like, driving -- driving a rental vehicle, I know that rental vehicles are often used by people to provide a certain degree of anonymity to them because when you run the plate you don’t know who the driver is; the fact that Mr.

Santos was coming from Calgary, I know Calgary to be a source point for drugs, which means that drugs would originate from there; again, on this particular highway I know that as a fact because I’ve seen it lots on previous seizures; he’s going to Winnipeg, I know that Winnipeg is a source destination for drugs, and what that means is that the drugs come from a source point, which is Calgary, and then someone is either expecting it or ordered it from Winnipeg and it’s getting taken there; obviously Mr.

Santos’ nervousness that I talked about with the Court; him being flustered and panicking when I’m just asking him for a simple rental agreement; him staring at me through the mirrors when I was waiting for backup to come assist me on the traffic stop; the fact that the back

part I talked about was covered, so I thought that Mr. Santos was trying to hide something from the back of the vehicle. I’ve been involved in -- in large cannabis seizures similar to that, where the -- there -- the -- the cannabis is stored in the back of the vehicle, out of plain sight, like, you’re not able to actually see them, they’re somehow concealed. The -- the fact that Mr. Santos volunteered to me that it was a -- that his car was in the shop, I found that to be important when you look at the totality of all my observations. In my 2,500 stops I’ve never really had anyone volunteer to me why they were in a particular car: (

a) because I didn’t ask; and (

b) because I don’t care. It doesn’t affect anything in relation to the traffic stop, why he needs to tell me that he’s -- that he’s in that vehicle. I thought he was trying to justify being in a rental car; and then the intelligence checks that I just mentioned to the Court. So I formed the belief that Mr. Santos was in possession of cannabis for the purpose of distribution … … I told Mr. Santos I believe he had a large amount of marihuana in his vehicle. And all those -- all those indicators, again, it comes back to my training and experience.

I think I said that, but I just wanted to get out there again because by themselves they might not mean anything, but when I take it altogether and I talk about my previous investigations and the learning that I’ve had, that is what I believed. [ 8 ] After Mr. Santos was arrested, he was handcuffed and placed in the back of the police car. Searches were conducted incidental to the arrest. Mr. Santos had $1,881 in cash in his pocket.

A garbage bag with a 1.065-kilogram brick of cocaine packaged inside it was found in the covered luggage area of the car, and a baggie containing 7 grams of marijuana was located in the centre console between the driver’s and passenger’s seats. B. The trial decision [ 9 ] At trial, Mr. Santos sought to exclude the evidence of the cocaine found in his car under s. 24(2) of the Charter on the basis that his arrest was unlawful and a violation of his rights under s. 9 of the Charter and, as a result, the subsequent search of his vehicle was also unreasonable, contrary to s. 8. [ 10 ] The central premise of Mr.

Santos’s argument was that, at the time of the arrest, Cst. Giannoulis did not have reasonable grounds to believe that he had committed or was committing the offence of possessing cannabis for the purpose of distribution. Mr. Santos contended that, although the smell of raw cannabis coming from his vehicle supported an inference that he had cannabis in his possession, it did not support an objectively reasonable belief that he possessed it for the purpose of distributing it.

He pointed to the fact that, under the provisions of the Cannabis Act , a person is entitled to lawfully possess up to 30 grams of dried cannabis and the odour alone said nothing about the quantity in his possession. Moreover, Mr. Santos contended that the ALERT information Cst.

Giannoulis read did not implicate him in drug trafficking, and all of the other factors that the officer relied upon to support the belief that he possessed cannabis for the purpose of distributing it were entirely innocuous so that, even when considered cumulatively, they did not amount to grounds to arrest him for that offence. [ 11 ] The trial judge rejected those arguments. As a starting point, he accepted that the reason Cst. Giannoulis had described for stopping Mr.

Santos, and the questions he had asked him during the stop, all fell within the scope of authority provided to police officers under s. 209.1 of The Traffic Safety Act . He then turned his attention to the question of whether Cst. Giannoulis had the grounds necessary to lawfully arrest Mr. Santos for possessing cannabis for the purpose of distribution. He said: The defence argues that there were no reasonable grounds to determine that Mr. Santos was distributing marihuana.

The offence is made out if -- if the amount found is over 30 grams of dried cannabis, and simply having it in a vehicle, going down the highway, will be an offence pursuant to the definition of distribution. In that, it would be, at the very least, transferring and/or transporting. Officer Giannoulis had subjective grounds for the arrest. This is not disputed.

The issue is … whether the grounds are objectively capable of supporting the officer’s belief. … The grounds for the determination of objectivity -- objectively reasonable comes from the perspective of a reasonable person placed in the position of the officer. This involves taking into consideration the officer’s training and experience. The officer does not have to be correct in his belief, which is the case here. It has to be subjectively and objectively reasonable. [ 12 ] The trial judge then recounted and summarized Cst.

Giannoulis’s evidence, including the explanation that he had given for believing he had grounds to arrest Mr. Santos, and said: Constable Giannoulis stated that these items are factors that he, from his training and experience, are seen with people transporting drugs. Individually, they don’t mean much, but altogether led him to believe that Mr. Santos was transporting drugs, being marihuana, illegally for distribution. Constable Giannoulis came to the conclusion that he had reasonable grounds to believe that Mr. Santos was transporting marihuana for distribution.

The smell of fresh marihuana gave him grounds that there was marihuana in the car, and the rest gave him grounds that it could reasonably be an illegal amount being transported. …

The defence is correct that there is an innocent explanation for each observation as they are all legal. Covers over storage areas in SUVs,for an example, are there to cover up luggage, and they are provided by the factory. People do buy and drink Red Bull drinks. People rentcars and they may have trouble finding the papers for the rental. People leave trash in their cars, and people can have some raw cannabisin their possession, which is legal. I find that looking at all of the information that was available to Constable Giannoulis, it supports an inference of reasonable and probablegrounds for the arrest of Mr.

Santos for transporting marihuana for distribution. All the items he testified to that he observed, and whatMr. Santos said in response to proper Traffic Safety Act questions, and what Mr. Santos volunteered were evidence that the officer testifiedthat is frequently seen in people transporting something illegal. The officer, because of his sense of a strong odour of marihuana, believesit is going to be marihuana.

He does not believe it is a legal amount as he testified that he would not go on the smell of marihuana alone asit is legal, and as indicated, the defence argues that the actual amount of marihuana is only about 25 percent of the legal amount, but ofcourse, the officer does not know this when he forms his grounds. It is all the other factors that led the officer to believe, in totality, and Ifind that they are objectively reasonable, that there is illegal activity going on in relation to marihuana. He reasonably believes that it istransporting marihuana in a quantity that he charges him for distribution.

From the officer’s position and training, I find that the grounds are objectively reasonable for the officer -- officer’s belief, looking at allfactors leading to his belief. As such, the arrest was based on reasonable and probable grounds, being both subjectively and objectively,and the rest was lawful. This conclusion is based on the criteria review set out in R. v. Shinkewski, 2012 SKCA 63 and Tataquason v. TheSaskatoon Board of Police Commissioners, 2017 SKQB 98. [13] Having reached that conclusion, the trial judge dismissed Mr.

Santos’s Charter application, admitted the cocaine into evidence,and found him guilty of possession for the purpose of trafficking. The trial judge also found Mr. Santos guilty of trafficking in cocaine (onthe basis that he was transporting it) but, applying R v Kienapple, (SCC), [1975] 1 SCR 729, stayed the proceedings onthat charge. III. ISSUES AND STANDARD OF REVIEW [14] Mr. Santos contends the trial judge erred in determining that his rights under ss. 8 and 9 the Charter had not been violated. [15]

Section 8 of the Charter protects against unreasonable search and seizure. In order to comply with s. 8, a search conducted bystate actors must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner (R vGrant, 2009 SCC 32 at para 56, [2009] 2 SCR 353 [Grant]; R v Cornell, 2010 SCC 31 at para 16, [2010] 2 SCR 142; R v Collins, (SCC), [1987] 1 SCR 265 at 278).

Section 9 protects against arbitrary detention.

Detention that is unlawful is arbitrary (R vTim, 2022 SCC 12 at para 22 [Tim]; Grant at para 55; R v Pavlik, 2019 SKCA 107 at para 46, 380 CCC (3d) 417 [Pavlik]). [16] Where a lawful arrest has been made, the common law authorizes police officers to search the person arrested and “seizeanything in their possession or the surrounding area of the arrest to guarantee the safety of the police and the arrested person, prevent theperson’s escape, or provide evidence against them” (R v Stairs, 2022 SCC 11 at para 34; see also R v Caslake, (SCC),[1998] 1 SCR 51 at paras 14–25; and R v Nolet, 2010 SCC 24 at para 49, [2010] 1 SCR 851 [Nolet]).

An unlawful arrest violates s. 9 ofthe Charter. A search conducted incidental to an unlawful arrest is not authorized by law and, therefore, violates s. 8 (see R v Aucoin,2012 SCC 66 at para 44, [2012] 3 SCR 408 [Aucoin]). [17] The central issue at trial was the lawfulness of Mr. Santos’s arrest as, in the circumstances, the lawfulness of the arrestdetermined the reasonableness of the subsequent search. All of this turned on whether Cst. Giannoulis had grounds to make a warrantlessarrest. That gives rise to two issues for determination on this appeal: (

a) Did the trial judge err by finding that Mr. Santos was lawfully arrested; and (

b) If so, should the remedy of exclusion of evidence be granted? [18] Mr. Santos says the evidence before trial judge fell short of establishing that Cst. Giannoulis had an objectively reasonablebasis for believing that he was committing the offence of possession of cannabis for the purpose of distribution. In part, he asserts that thetrial judge placed too much stock in Cst. Giannoulis’s subjective

interpretation of the circumstances in the reasonable grounds analysis.He contends that the trial judge effectively turned Cst. Giannoulis’s specialized training and experience as a police officer into a “trumpcard”, by relying solely on the officer’s subjective

interpretation of events to draw inferences of criminality that a reasonable observerviewing those same events would not draw. [19] Considering those arguments, there are two standards of review that must be applied in this appeal. The findings of factunderlying the trial judge’s decision are reviewable on the standard of palpable and overriding error (R v Côté, 2011 SCC 46 at para 44,[2011] 3 SCR 215 [Côté]; R v Chapman, 2020 SKCA 11 at para 27, 386 CCC (3d) 24 [Chapman]).

Whether the facts as found by the trialjudge amount to reasonable grounds for a warrantless arrest is a question of law, reviewable on the correctness standard (Tim at para 25; Rv Shepherd, 2009 SCC 35 at para 20, [2009] 2 SCR 527 [Shepherd]; Nolet at para 47; R v Le, 2019 SCC 34 at para 23, [2019] 2 SCR 692[Le]). IV. ANALYSIS A. Did the trial judge err by finding that Mr. Santos was lawfully arrested? 1. The legislative framework

[20] The starting point for this portion of the analysis is understanding the statutory authority that Cst. Giannoulis relied on toconduct a warrantless arrest. At trial, Cst. Giannoulis testified that he arrested Mr. Santos for possession of cannabis for the purpose ofdistribution, contrary to s. 9(2) of the Cannabis Act, and that he was not acting under the authority of The Cannabis Control(Saskatchewan) Act, SS 2018, c C-2.111.

I will have more to say about what role, if any, the provisions of The Cannabis Control(Saskatchewan) Act play in the outcome of this case but, for present purposes, the lawfulness of the arrest is properly determined byreference to the provisions of the Cannabis Act and the Criminal Code. [21] Section 495(1)(

a) of the Criminal Code permits a police officer to arrest without warrant any person who “has committed anindictable offence or who, on reasonable grounds, [the officer] believes has committed or is about to commit an indictable offence”. [22] The Cannabis Act came into force on October 17, 2018. By virtue of s. 8(1)(

a) of that Act, an adult person may lawfullypossess up to 30 grams of dried cannabis in a public place. The definition of “public place” includes a motor vehicle located in a publicplace. [23] Possessing cannabis for the purpose of distribution is an indictable offence as defined in s. 9 of the Cannabis Act. The portionof s. 9 relevant to this case reads as follows: 9

(1) Unless authorized under this Act, it is prohibited (

a) for an individual who is 18 years of age or older (

i) to distribute cannabis of one or more classes of cannabis the total amount of which is equivalent, as determined in accordance withSchedule 3, to more than 30 g of dried cannabis, … (iii) to distribute cannabis to an organization, or (iv) to distribute cannabis that they know is illicit cannabis; …

(2) Unless authorized under this Act, it is prohibited to possess cannabis for the purpose of distributing it contrary to subsection (1). …

(5) Subject to

section 51, every person that contravenes subsection (1) or (2) (

a) is guilty of an indictable offence and is liable (

i) in the case of an individual who is 18 years of age or older, to imprisonment for a term of not more than 14 years… [24] The term “distribute” is defined in s. 2 of the Cannabis Act, as including “administering, giving, transferring, transporting,sending, delivering, providing or otherwise making available in any manner, whether directly or indirectly, and offering to distribute”. [25] All of this means that Cst. Giannoulis could only lawfully arrest Mr. Santos without a warrant if he had reasonable grounds tobelieve that Mr. Santos was transporting cannabis that: (

a) weighed more than 30 grams; (

b) was destined to be delivered to anorganization; or (

c) he knew was illicit cannabis. Cst. Giannoulis testified that the arrest in this case was premised on quantity; he believedthat Mr. Santos had more than 30 grams of cannabis with him in the car. 2. Reasonable grounds to believe - the governing principles [26] The threshold for a warrantless arrest under s. 495(1)(

a) has a subjective component and an objective component. Thesubjective component requires that the arresting officer honestly believe the individual being arrested has committed (or is about tocommit) an indictable offence.

The objective component requires that the officer’s belief be objectively reasonable in the circumstances.That is to say, the totality of the circumstances known to the officer at the time of the arrest, as seen from the perspective of a reasonableperson with comparable knowledge, training and experience as the arresting officer, must be capable of supporting the belief that groundsfor the arrest exist (Tim at para 24; see also: R v Storrey, (SCC), [1990] 1 SCR 241 at 250–251 [Storrey]; Chapman atpara 55; R v Shinkewski, 2012 SKCA 63 at para 13, 399 Sask R 11 [Shinkewski]; and R v Joseph, 2020 ONCA 73 at para 29, 385 CCC(3d) 514). [27] The foregoing description of the “reasonable grounds to believe” standard is well-known and appears relativelystraightforward.

However, the sheer volume of jurisprudence and academic writing that has been devoted to the subject demonstrates thatthe governing test, while easy to recite, is sometimes difficult to apply. This is not surprising, given the wide variety of circumstances inwhich police may purport to exercise statutory or common-law powers on the basis of reasonable grounds to believe. [28] With that in mind, it is useful to briefly review the principles that shape the contours of the reasonable grounds to believestandard.

In doing so, I am mindful of the words of Schutz J.A., who, writing for the majority of the Alberta Court of Appeal in R v Ha,2018 ABCA 233, 363 CCC (3d) 523, said: [38] …[U]nnecessary appellate attempts to re-articulate the standard laid down by the Supreme Court of Canada by using differentwords, or by reflecting on hypotheticals, or through the engagement of generalizations or “rules of thumb”, ought to be assiduouslyavoided because these sorts of pronouncements risk obscuring the law, not clarifying it. [29] I agree with this sentiment.

What follows, therefore, is not an attempt to re-articulate the reasonable grounds standard. Nor is it

intended to be a comprehensive canvas of the entire body of jurisprudence relevant to the application of that standard. Cases such as thisone are invariably fact-driven and, with that in mind, the principles I refer to here are those that bear on the factual circumstances of thiscase: (

a) The current language in the Criminal Code, “reasonable grounds”, has the same meaning as the former “reasonable andprobable grounds”. It signifies the point at which credibly based probability replaces suspicion (R v Debot, (SCC), [1989]2 SCR 1140 at 1166; Hunter v Southam Inc., (SCC), [1984] 2 SCR 145 at 167; R v Loewen, 2011 SCC 21 at para 5,[2011] 2 SCR 167; R v Lichtenwald, 2020 SKCA 70 at para 33, 388 CCC (3d) 377 [Lichtenwald]). (

b) Reasonable grounds to believe is a higher standard than reasonable suspicion. Whereas reasonable suspicion engages thepossibility of crime, reasonable grounds to believe engages the probability of crime (R v Chehil, 2013 SCC 49 at para 27, [2013] 3 SCR220 [Chehil]; R v MacKenzie, 2013 SCC 50 at paras 84-85, [2013] 3 SCR 250 [MacKenzie]). It is important that the two standards not beconflated (Chehil at paras 26–28). (

c) The reasonable grounds to believe standard does not necessitate that the circumstances known to the arresting officer besufficient to prove the commission of an indictable offence beyond a reasonable doubt, or on a balance of probabilities, or to establish aprima facie case for conviction (Mugesera v Canada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 SCR 100; R vMorelli, 2010 SCC 8 at para 91, [2010] 1 SCR 253; Storrey; Shinkewski at para 13; Lichtenwald at para 34; R v Protz, 2020 SKCA 115 atpara 41 [Protz]; R v Todd, 2019 SKCA 36 at para 29, [2019] 9 WWR 207 [Todd]; R v Glendinning, 2019 BCCA 365 at para 7).

It does,however, require a strong connection between the accused and the offence under investigation (Chapman at para 66; R v Molnar, 2018MBCA 61 at paras 28–29, 363 CCC (3d) 350). (

d) While an arrest based on a mistake of law is unlawful, the concept of “reasonable grounds to believe” relates to the facts (Timat para 36). This means an arresting officer’s belief as to the existence of the facts necessary to support an arrest does not need to be correctin order to be reasonable. A factual belief can be reasonable even if it is mistaken or later proven to be wrong (Chapman at para 59). It isnot necessary that the inference drawn by the officer be the only possible inference that can be drawn from the available information. Nordoes it have to be the most compelling inference.

Reasonable belief is not automatically negated simply because other plausible innocentexplanations may arise from the same observations and information (Protz at para 39; R v Gunn, 2012 SKCA 80 at paras 22–23, 399 SaskR 170 [Gunn]; Ha at para 34). The question for a reviewing court is whether the belief held by the by the arresting officer was areasonable one to have held at the time of the arrest, based on the circumstances known to the officer at that time (Todd at para 29).

Forthis standard to be met, the court must be able to conclude that the factors articulated by the officer who made the arrest were reliable andobjectively capable of supporting their belief that the offence in question had been committed (Gunn at para 7). (

e) In determining whether the reasonable grounds to believe standard has been met, the reviewing court must examine theinformation that was available to the arresting officer cumulatively, and not in a piecemeal fashion (Shinkewski at para 13). (

f) Deciding whether reasonable grounds to believe exist is a qualitative, not quantitative, exercise. There is no checklist with acertain number of indicia that must be met before reasonable grounds to believe will be established, and no single identifiable factor thatmarks the point at which reasonable suspicion crosses the threshold to become reasonable grounds to believe (Chapman at paras 66–67). Itis the totality of the circumstances that is important (Lichtenwald at para 35). (

g) The arresting officer must consider all of the incriminating and exonerating information that the totality of the circumstancespermits. They can only disregard information which they have reason to believe may be unreliable (Storrey; Shinkewski at para 13).Judicial scrutiny of the “totality of the circumstances” must bear in mind that police officers are often required to make split-seconddecisions in fluid and potentially dangerous situations, based on available information which may be imperfect, evolving, or inaccurate(Aucoin at para 40; R v Coutu, 2020 MBCA 106 at para 18). (

h) Context is also crucial when considering the totality of the circumstances confronting the arresting officer. In that respect, thereputation of a suspect may be germane in assessing whether there were reasonable grounds, if that reputation is related to the reason forthe arrest, and the police knowledge is based on reliable evidence (Lichtenwald at para 42). (

i) The approach to the question of reasonable grounds must be flexible and grounded in common sense and practical everydayexperience. The “reasonable person” in the requisite analysis is one armed with the knowledge, training, and experience of theinvestigating officer (MacKenzie at para 73; R v Yates, 2014 SKCA 52 at para 77, 438 Sask R 78; R v Lotfy, 2017 BCCA 418 at para 35,357 CCC (3d) 516; R v Brayton, 2021 ABCA 316 at para 27; R v Law, 2020 ABCA 267 at para 26). (

j) While the training and experience of the arresting officer are undoubtedly relevant considerations, they do not form a trumpcard. Nor does the fact that the officer has certain training and experience remove the need for an objective and critical analysis by areviewing court. (Chehil at paras 45–47; R v Canary, 2018 ONCA 304 at para 22, 361 CCC (3d) 63).

The question is not simply whetherthis officer, on the basis of their training and experience, believed what they believed, but rather whether it would be reasonable for anofficer with the same training and experience to have formed that belief (Chapman at para 69). 3. The principles applied [30] The trial judge accepted the testimony given by Cst. Giannoulis and, taking into account the observations he had made duringthe encounter with Mr. Santos, along with his experience and training, he concluded that the officer’s belief that Mr.

Santos was probablytransporting enough cannabis to meet the criteria for illegal distribution in s. 9(1)(a)(

i) of the Cannabis Act was objectively reasonable. [31] In my respectful view, the trial judge erred in principle in reaching this conclusion. Although he began his analysis by referringto the relevant legal principles, he fell into error by failing to conduct any critical examination of Cst. Giannoulis’s subjective assessmentof the evidence. In effect, the trial judge reasoned as though Cst. Giannoulis’s training and experience alone were enough to remove theneed for a thorough assessment of the reasonableness of his subjective belief.

If the trial judge had conducted that critical analysis, in myview, he would have concluded that, while Cst. Giannoulis had reasonable grounds to suspect that that Mr. Santos was committing theoffence for which he was ultimately arrested, the evidence fell short of providing an objective basis to believe he was committing that

offence. To put that another way, the factors on which Cst. Giannoulis relied to form his belief fell short of providing an objectively reasonable basis to conclude that there was a probability , as opposed to merely a possibility , that Mr. Santos possessed cannabis for the purpose of distribution. [ 32 ] As discussed above, determining the point at which reasonable suspicion crosses the threshold to reasonable grounds to believe is a qualitative, not quantitative, exercise. There is no bright line between the two and no definitive checklist of factors that can be consulted to distinguish one from the other.

That said, reasonable grounds to believe is clearly a higher standard than reasonable suspicion and, where it is met, it entitles the police to exercise more intrusive powers than may be exercised on the basis of a reasonable suspicion. Accordingly, while the gap between the two standards may not be wide, it must remain one that is distinguishable. [ 33 ] In this case, almost all of the factors Cst. Giannoulis cited as supporting his belief that Mr. Santos possessed cannabis for the purpose of distribution were, on their own, completely innocuous. These innocuous observations included the fact that Mr.

Santos was driving a rented vehicle, the fact that he was travelling from Calgary to Winnipeg along the Trans-Canada highway, and the fact that he had an energy drink in the cup holder, fast-food wrappers on the floor, and a factory-installed luggage cover in place. Cst. Giannoulis said these were things that, in his experience, were commonly found in conjunction with the transportation of illegal drugs.

But they are also, in my view, so commonplace with travelers who are doing nothing illegal that they contribute little to the base of a reasonable belief in criminal activity. [ 34 ] Several of the other factors that Cst. Giannoulis identified as being significant were also completely innocuous when examined individually, including the fact that Mr. Santos volunteered the reason he was driving a rented vehicle without being asked. While Cst. Giannoulis seemed to place a fair bit of emphasis on this, it is hard to see Mr.

Santos’s explanation as being anything other than entirely innocuous from the standpoint of a reasonable observer. After all, Mr. Santos was driving a vehicle that was not his own and he had just been stopped by a police officer who asked to see the vehicle’s registration. It is not difficult to envision how even a completely law-abiding person in that situation may feel a need to explain why their own name does not appear on the registration certificate. Nothing about Mr. Santos’s response, in my view, could reasonably be taken as suspicious. [ 35 ] Also significant, in Cst.

Giannoulis’s mind, were the fact that the rental term only allowed Mr. Santos four days to make the trip from Calgary to Winnipeg and back and the fact that Mr. Santos seemed flustered and had trouble finding the rental agreement in the vehicle. In my view, however, even considering the distance Mr. Santos had to cover, a four-day timeline to make the trip, using the most direct route between the two cities, would not strike a reasonable observer as remarkable, let alone suspicious.

Nor, in my view, would a reasonable person find anything suspicious about the fact that a person driving a rental car had difficulty locating the rental agreement, or that the inability to quickly locate the rental agreement would cause them to become flustered when they had been asked to do so by a police officer who has stopped them on the highway. [ 36 ] My point in all of this is that almost all of the factors Cst. Giannoulis put forward as supporting his belief were, individually, exclusively innocuous.

It is correct in law to say that the factors upon which the officer relies must be examined in their totality, and accurate to say that the mere existence of a potentially innocent explanation for a constellation of factors does not negate the existence of reasonable grounds. Notwithstanding that, courts must be careful not to allow the fact that an officer has certain experience and training to function as a thread that automatically sews a patchwork of exclusively innocuous circumstances into a quilt of reasonable grounds to believe a person has committed an offence.

Here, the words of Professors Steve Coughlan and Glen Luther, in Detention and Arrest , 2d ed (Toronto: Irwin Law, 2017) at 96 and 99, and cited in Chapman at para 69 , are pertinent: …[if] carried too far, incorporating the experience of the particular officer into the objective test amounts to effectively eliminating the objective test, leaving only the subjective test in place.

If all an officer’s claimed experience is to be relevant, then the objective test becomes very close to “would a person who believes what this officer believes believe what this officer believes”, which will always trivially be proven. … Further, there is a quite significant reason to be careful about claims of experience, and it is one that has not received attention in courts to date: a person can honestly and sincerely make the claim “this is my experience,” and yet be mistaken.

Because of confirmation bias, people tend to notice instances that support their preconceived ideas and ignore those that do not; to see equivocal evidence as confirming the hypothesis to which they already adhere; and to test a hypothesis only by seeking further confirming instances, not by looking for disconfirming instances. As a result, if a person expects to see a pattern, they might see that pattern whether it exists or not. (Emphasis in original, footnotes omitted) [ 37 ] In this case, even the potentially incriminating aspects of the observations on which Cst.

Giannoulis had relied added little to the exclusively innocuous factors. The odour of cannabis from Mr. Santos’s vehicle was undoubtedly an important observation, but its importance must be considered in the light of the fact that, under the Cannabis Act , he was lawfully entitled to possess cannabis as long as he did not have more than 30 grams of it, intend to distribute it to an organization, or know that it was “illicit”. In that respect, the odour that Cst. Giannoulis detected, at least on his testimony, said absolutely nothing about quantity, purpose, or knowledge.

There may be circumstances where a court could find that the strength or quality of such an odour was reasonably indicative of quantity—but that was not the case here. Likewise, the fact that Mr. Santos appeared to be nervous and watched Cst. Giannoulis intently during the encounter could be taken in a number of ways but, at most, added little more than a suspicion.

Even then, this was not the circumstance of MacKenzie (a case in which the question was whether the police officer’s observations supported a reasonable suspicion), where the accused’s anxiety was “some of the highest nervousness” the arresting officer had seen in thousands of traffic stops (at paras 77–79). [ 38 ] The ALERT entry also required closer examination. Notably, it did not suggest that Mr. Santos had ever been convicted, charged, or even arrested for any drug-related offences. It mentioned that Mr. Santos had, on one occasion, reported that he had been the victim of a car theft.

It said he had, at some point, paid cash for a car. It mentioned that his neighbours had complained about people mistakenly coming to their houses asking to purchase drugs but, although the inference was open to be drawn, it did not say that any of the prospective drug purchasers had identified Mr. Santos as the person they were hoping to meet for that purpose. Finally, the ALERT entry contained an opinion that the information in the entry lent credence to the “possibility” that Mr. Santos was involved in drug trafficking.

As noted in Chapman at paragraph 90 , information gained from police databases is relevant and properly considered in determining whether police have reasonable grounds to suspect – or believe – that someone is involved in particular criminal activity. But that information must be examined to consider the degree to which it connects the suspect to the crime in question. Key factors here include the recency of the information, the similarity to the offence under investigation, proximity in time, specificity, and the quality of the source.

In this case, none of the information in the ALERT entry was particularly specific or compelling. None of it drew anything more than a tenuous link between Mr. Santos and drug trafficking. [ 39 ] The bottom line here is that most of the factors upon which Cst. Giannoulis relied in this case were individually completely innocuous and, even when the potentially inculpatory factors are added to the mix and weighed in the light of the officer’s experience and training, the evidence as a whole does not reveal a strong enough connection between Mr.

Santos and the criminal activity alleged – namely, possession of cannabis for the purpose of distribution. In saying this, I recognize that police investigations, and traffic stops in particular, are dynamic events that can unfold quickly and unpredictably, and that determining whether there are reasonable grounds for an arrest is not an exact science. Police officers do not have the luxury of judicial reflection. At some point, a police officer will always have to make a judgment call, as Cst.

Giannoulis did here, as to whether there is enough objective evidence to support an exercise of the power to effect an arrest without a warrant. Nonetheless, if challenged, that judgment call will fall to be examined by a court against the reasonable grounds to believe standard ( Pavlik at paras 45 and 63 ). [ 40 ] All of that said, when the evidence in this case is examined in its totality, I find that the information and observations upon which Cst. Giannoulis relied, even when considered cumulatively and in the light of his training and experience, suggested only a possibility, and not a probability, that Mr.

Santos possessed cannabis for the purpose of distribution. While this may have been enough to ground a reasonable suspicion that Mr. Santos possessed cannabis for the purpose of distribution, the evidence and information as a whole lacked the objective quality necessary to meet the more onerous standard of reasonable grounds to believe he was probably committing that offence. [ 41 ] Accordingly, I conclude the trial judge erred by finding that Mr. Santos was lawfully arrested. The arrest was unlawful and, thus, violated his rights under s. 9 of the Charter .

It necessarily follows that the trial judge also erred by failing to find that the search of Mr. Santos’s vehicle conducted incidental to the arrest, during which the package of cocaine was discovered, was unlawful and in violation of s. 8 of the Charter . B. Should the remedy of exclusion of evidence be granted? [ 42 ] Having determined that the trial judge erred, and that evidence was obtained in a manner that violated Mr. Santos’s rights under ss. 8 and 9 of the Charter , I turn now to the question of remedy.

The appropriate remedy to be considered in this case is the exclusion of evidence, pursuant to s. 24(2). 1. Is it appropriate for this Court to conduct the s. 24(2) analysis? [ 43 ] A threshold question that must be addressed at this juncture is whether it is proper for this Court to conduct the s. 24(2) analysis. Because the trial judge found that no violation of Mr. Santos’s Charter rights had occurred, he did not consider whether any evidence should be excluded under s. 24(2).

Where the trial judge has not addressed s. 24(2), an appellate court may only conduct its own s. 24(2) analysis if there is an adequate evidentiary record and the trial judge has made the necessary findings of fact, as Leurer J.A. explained in R v Pawlivsky , 2020 SKCA 75 : [ 25] … [T]he basic question the appeal court must ask itself is whether it is positioned to conduct its own s. 24(2) analysis based on the trial judge’s findings of fact. An appeal court will be in this position if there is an adequate factual record.

Generally speaking, an adequate factual record will exist if the parties below proceeded from the premise that the s.24(2) issue would be argued and decided at the trial level voir dire without the introduction of evidence in addition to that bearing on the question of whether a Charter breach had occurred, and if the trial judge has made the necessary findings of fact to allow the appeal court to undertake the s. 24(2) analysis. A failure or gap on either of these points will, in most cases at least, not allow an appeal court to undertake the s. 24(2) analysis.

Specifically, if the parties had agreed to a bifurcated voir dire process, such that the s. 24(2) issue was not argued at trial, then the appeal court may lack the assurance that it has a sufficiently complete factual record to decide the s. 24(2) issue.

Similarly, if the application of s. 24(2) depends on contested evidence and a trial judge has not made the necessary findings of fact to resolve the contest in the evidence, then it is unlikely that the appeal court will be in a position to rule on the s. 24(2) issue and a new trial would then be appropriate… [ 44 ] Based on the trial record, I am satisfied that this Court is positioned to properly conduct the analysis under s. 24(2).

At trial, the parties agreed that all of the evidence led during the voir dire would be applied to the trial once the judge made his ruling on the Charter application, regardless of what that ruling was. The Crown led its full case during the voir dire . Mr. Santos did not testify, and no other defence evidence was called. Crown and defence counsel, in their closing submissions, both fully addressed the question of whether the evidence should be excluded under s. 24(2) if the trial judge found Mr. Santos’s Charter rights had been violated.

While the trial judge ultimately found that no Charter violations had been established and, as such, did not conduct a s. 24(2) analysis, he made several findings of fact relevant to that question, including the following: (

i) the initial traffic stop and the questions that Cst. Giannoulis asked Mr. Santos all fell within the scope of the authority provided by The Traffic Safety Act ; (ii) Cst. Giannoulis honestly believed Mr. Santos possessed cannabis for the purpose of distributing it; (iii) Cst. Giannoulis had relied on his training and experience in forming that belief; (iv) there had been no violation of Mr. Santos’s s. 10(

b) rights; and (

v) the search of Mr. Santos’s vehicle was not intrusive, and the cocaine was easily found. To the extent that there was any dispute about the evidence bearing on the live issues at trial, including whether evidence should be excluded under s. 24(2), it is apparent that the trial judge accepted the testimony given by Cst. Giannoulis. [ 45 ] Considering all of that, I am satisfied that the record before this Court is sufficient to determine whether the admission of the evidence would bring the administration of justice into disrepute.

There is no utility in referring the matter back to the trial court for redetermination. It is open for this Court to conduct its own s. 24(2) analysis (see R v Ali , 2022 SCC 1 at para 11 ). 2. Should the evidence be excluded?

[ 46 ] In Grant , the Supreme Court identified three lines of inquiry that inform 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 violation on the Charter -protected interests of the accused. The third is society’s interest in having the charges adjudicated on their merits.

After these three lines of inquiry have been addressed, 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. [ 47 ] The focus of the inquiry under s. 24(2) is on the effect that admitting evidence obtained in connection with violations of Charter rights would have on the administration of justice.

If the administration of justice would be brought into disrepute by the admission of the evidence, it must be excluded, not to punish police or to compensate the accused, but because doing so is necessary to maintain the integrity of, and public confidence in, the justice system ( Le at para 139; Grant at paras 68-70 ; Chapman at para 99 ).

In Le , Brown J., writing for the majority, stated: [140] Where the state seeks to benefit from the evidentiary fruits of Charter -offending conduct, our focus must be directed not to the impact of state misconduct upon the criminal trial, but upon the administration of justice. Courts must also bear in mind that the fact of a Charter breach signifies, in and of itself, injustice, and a consequent diminishment of administration of justice.

What courts are mandated by s. 24(2) to consider is whether the admission of evidence risks doing further damage by diminishing the reputation of the administration of justice — such that, for example, reasonable members of Canadian society might wonder whether courts take individual rights and freedoms from police misconduct seriously.

We endorse this Court’s caution in Grant , at para. 68 , that, while the exclusion of evidence “may provoke immediate criticism”, our focus is on “the overall repute of the justice system, viewed in the long term” by a reasonable person, informed of all relevant circumstances and of the importance of Charter rights. [ 48 ] With that, let me turn to the application of the Grant framework in the circumstances of this case. a. The seriousness of the Charter violations [ 49 ] The first factor to consider in the Grant inquiry is the seriousness of the Charter -infringing state conduct.

Police officers are expected to abide by Charter standards and where they do not, the task for the court is to situate the offending conduct on a scale of culpability: R v Paterson , 2017 SCC 15 at para 43 , [2017] 1 SCR 202 [ Paterson ]; Le at para 143. [ 50 ] Where the police conduct in question is serious, involving a wilful or reckless violation of Charter rights, that will signal a greater need for the court to distance itself from such conduct by excluding evidence gained in connection with the breach ( R v Moyles , 2019 SKCA 72 at para 83 , [2019] 12 WWR 416 [ Moyles ]).

Minor, technical and inadvertent breaches, on the other hand, will be seen as less serious because they have much less impact on the rule of law and the administration of justice than wilful or reckless violations ( Tim at para 82 ; Chapman at para 101 ). [ 51 ] While good faith police action, taken without deliberate disregard for Charter rights, may attenuate the seriousness of the breach, a mere absence of bad faith does not equate to good faith.

In order for state misconduct to be characterized as a good faith error indicative of a less serious infringement of Charter rights, the state must show that the police acted in a manner consistent with what they subjectively, reasonably and non-negligently believed the law to be ( Tim at para 85 ; Le at para 147; R v Pawar , 2020 BCCA 251 at para 55 , 393 CCC (3d) 408). Police conduct that demonstrates negligence towards compliance with Charter standards does not amount to good faith.

The reputation of the administration of justice requires that courts dissociate themselves from evidence obtained as a result of police negligence in meeting Charter standards ( Le at para 143). While ignorance of the law is not good faith, good faith may sometimes be found when the police make a reasonable, non-negligent error in applying an established but indeterminate legal standard ( Grant at para 133 ) . [ 52 ] Ultimately, it is not necessary to place police conduct that amounts to a Charter violation into either a “good faith” or “bad faith” box.

Good faith and bad faith lie at the opposite ends of the fault continuum, and there is plenty of room in between. What is important is not the legal label attached to the police conduct, but rather the proper placement of it along the fault line ( Chapman at para 104 ). [ 53 ] In the present context, it is also important to bear in mind that, w hile “reasonable grounds to believe” is a well-defined legal standard, it is also “a standard the edges of which can be difficult to recognize in real time, without the luxury of judicial reflection”.

Where police conduct is being measured against such a legal standard and the officers involved make honest and reasonable efforts to adhere to the standard but fall just short of meeting the necessary mark, that may tend to situate the Charter -infringing conduct at the lower end of the fault spectrum ( Chapman at para 105 ; R v Maxim , 2018 SKCA 57 at para 17 , 416 CRR (2d) 165 ). [ 54 ] In this case, I consider the infringement of Mr. Santos’s s. 8 and s. 9 rights to be of moderate seriousness, falling neither at the high end nor the low end of the scale.

Constable Giannoulis was acting under a power granted by The Traffic Safety Act when he stopped Mr. Santos—to check for licence, registration, and driver sobriety—but there was no evidence that there was anything else remarkable about Mr. Santos’s vehicle or that he had committed any sort of driving infraction. It was a completely random stop, albeit one authorized by law. After conducting the stop, Cst. Giannoulis appears to have approached the matter by looking only for evidence that supported the theory that a person driving a rented vehicle along the Trans-Canada Highway must be transporting drugs.

The most important aspect of the offence for which Cst. Giannoulis arrested Mr. Santos— i.e. , the thing that separated lawful possession from unlawful possession - was the quantity of cannabis that Mr. Santos had with him. Constable Giannoulis, however, took no investigative steps to determine what that quantity was before he placed Mr. Santos under arrest.

Instead, he used the only two truly suspicious factors—the smell of cannabis and the non-specific intelligence information from the ALERT entry—to build a series of completely innocuous factors into a base to support the arrest. [ 55 ] Although the edges of the reasonable grounds standard can sometimes be difficult to define in real time and in uncertain circumstances, it is still a standard that is well-known to police officers.

The information upon which they build their grounds for arrest must be information that points with some confidence in the direction of a crime having probably been committed, not information that is equivocal about the most crucial detail. Although there is nothing in the evidence to suggest that this was a wilful or flagrant breach on Cst. Giannoulis’s part, it also cannot, in my view, be called a reasonable or non-negligent breach either.

[56] Taking all of that into consideration, analysis of this factor pulls towards excluding the evidence. b. The impact of the breaches on Mr. Santos’s Charter-protected interests [57] The second leg of the Grant inquiry focuses on the seriousness of the impact of the breach on the Charter-protected rights ofthe accused person. This involves an examination of the interests engaged by the rights, and the extent to which the breach impacted uponthose interests.

The more serious the impact on the accused’s Charter-protected interests, the greater the risk that admission of theevidence may send the message that Charter rights actually count for little and the greater the risk of bringing the administration of justiceinto disrepute: Grant at para 76; Le at para 151. [58] Together, ss. 8 and 9 of the Charter protect individual liberty and privacy interests against unjustified interference from thestate.

Obviously, the more seriously a Charter violation affects these interests, the stronger the pull towards exclusion of evidence. [59] In that regard, infringements of s. 8 in circumstances that denote a high expectation of privacy tend to strongly favour exclusionof evidence.

Infringements of lesser interests, less so (Grant at para 78; Paterson at para 49; Chapman at para 119). [60] Even though there is authority for the proposition that a person has a reduced expectation of privacy in a vehicle (see, forexample, R v Belnavis, (SCC), [1997] 3 SCR 341 at para 38; and MacKenzie at para 31), I am still of the view that thebreaches in this case had a serious impact on Mr. Santos’s s. 8 rights. Mr. Santos was arrested and taken into custody on the basis ofinformation that fell short of providing lawful grounds for his arrest.

His vehicle was then searched based on that unlawful arrest andhighly incriminating evidence was found. Even though there is no suggestion that the police otherwise conducted the search unreasonablyor that Mr. Santos was mistreated, the effect of the breaches had undeniably serious consequences for him. [61] In this case, both the seriousness of the breaches and the seriousness of their impact on Mr. Santos’s Charter-protected interestsmust also be considered in light of the fact that, at the time the relevant events occurred, possession of cannabis had been legalized. Thismeans that Mr.

Santos was not necessarily doing anything illegal by simply having cannabis in his vehicle. The provisions of theCannabis Act and The Cannabis Control (Saskatchewan) Act permit a person in Saskatchewan to possess or transport cannabis in a vehiclewithout committing an offence where the amount possessed is less than 30 grams and it is being taken from one place where it may belawfully obtained, had, kept, or consumed to another place where it may be lawfully had, kept or consumed.

The powers of arrest andsearch under either statute arise only where the quantity of cannabis in question or the purpose for possessing or transporting it fall outsideof what is permitted. [62] Although Cst. Giannoulis testified that he relied only on the provisions of the Cannabis Act and the Criminal Code in arrestingMr. Santos and searching his vehicle, and not The Cannabis Control (Saskatchewan) Act, it is necessary in the s. 24(2) analysis to considerthe applicable provisions of the provincial statute too.

This is because The Cannabis Control (Saskatchewan) Act is relevant to thequestion of whether the package of cocaine in Mr. Santos’s vehicle would have been discovered even if his Charter rights had not beenbreached. The concept of discoverability and its role in the s. 24(2) analysis were discussed in Chapman: [113] The concept of discoverability is useful, but not determinative, in the s. 24(2) analysis. A finding of discoverability does notnecessarily lead to admission of the evidence. Courts also should not engage in speculation.

Where it cannot be determined withconfidence whether the evidence would have been discovered in the absence of the Charter breach, discoverability will have no impact onthe s. 24(2) inquiry: Côté at para 70. [114] Discoverability can also be somewhat of a double-edged sword. Where police have means available to conduct a lawful search andneglect to use those means, or choose not to them, that accentuates the seriousness of the breach in the first line ofthe Grant inquiry: Côté at para 71; Cole at para 89 [R v Cole, 2012 SCC 52, [2012] SCR 34].

In the second stage of the Grant inquiry, thefact that the evidence would have been discovered through lawful means, had the police chosen to avail themselves of those means, mayattenuate the seriousness of the impact of the breach on the Charter-protected rights of the accused: Côté at para 72; Cole at para 93. [63] In that vein, The Cannabis Control (Saskatchewan) Act provides police officers with explicit authority to make warrantlessarrests.

In that regard, s. 4-6 reads: 4-6 Any police officer may arrest, without warrant, any person whom he or she finds committing an offence against this Act or theregulations. [64] Similar to the Cannabis Act, s. 2-8 of The Cannabis Control (Saskatchewan) Act makes it an offence to possess more than 30grams of dried cannabis in a public place, and s. 2-11 makes it an offence to distribute cannabis.

Unlike the Cannabis Act, however, s. 2-10of The Cannabis Control (Saskatchewan) Act makes it an offence to “possess, consume or distribute cannabis in a vehicle”, unless thecannabis is in the vehicle “for the purpose of transporting [it] from a place at which it was lawfully obtained to a place where it may belawfully had, kept or consumed or from that place to another place where it may be lawfully had, kept or consumed”.

As with theCriminal Code and the Cannabis Act, a police officer who makes a lawful arrest under The Cannabis Control (Saskatchewan) Act for anyone of these offences has the common law authority to conduct a search incidental to the arrest. [65]

Section 4-10 of The Cannabis Control (Saskatchewan) Act also gives police officers the power to conduct a warrantless searchof a person’s vehicle, without necessarily having to first make an arrest, where there are reasonable grounds to believe that (

i) an offenceagainst the Act or its regulations has occurred; (ii) evidence of an offence is likely to be found in the vehicle; and (iii) the delay necessaryto obtain a warrant would result in danger to human life or safety or the loss, removal or destruction of evidence. [66] In this case, the fact that Cst. Giannoulis detected an odour of cannabis was evidence that suggested Mr. Santos had cannabis inhis vehicle and, thus, may potentially have been committing an offence under s. 2-10 of The Cannabis Control (Saskatchewan) Act. Ofcourse, the odour of cannabis said nothing about where or how Mr.

Santos had obtained the cannabis or where he was taking it, just as itsaid nothing about the quantity in his possession. In those circumstances, one investigative step that Cst. Giannoulis could have takenwould have been to detain Mr. Santos for investigation of the offence under s. 2-10 and ask further questions regarding the quantity,source and purpose of the cannabis in Mr. Santos’s car. Of course, Mr. Santos would have been under no obligation to answer those

questions but, nevertheless, pursuing that investigative avenue may have provided Cst. Giannoulis with useful evidence that could have informed his belief on the question of whether he had the grounds to arrest Mr. Santos and, if so, for what offence. The information gathered may have given Cst. Giannoulis the reasonable grounds necessary to arrest Mr. Santos for an offence under The Cannabis Control (Saskatchewan) Act , or an offence under the Cannabis Act , it may have done neither, or it may have led the investigation in a completely different direction.

Given that this did not happen, there is no way of knowing. [ 67 ] This is not to say that Cst. Giannoulis did anything wrong by not turning his mind to the provisions of The Cannabis Control (Saskatchewan) Act . However, given that there are now some circumstances where it is legal for a person to have cannabis in their vehicle, and some where it is illegal, it may well be prudent for officers in Saskatchewan to have that legislation in mind when conducting a vehicle stop and observing signs of the presence of cannabis in a car. [ 68 ] At most, in this case, the fact that Cst.

Giannoulis did not turn his mind to the powers he could exercise under The Cannabis Control (Saskatchewan) Act leaves the Court with no evidentiary basis to conclude that he had, but neglected to use, the means available under that Act to conduct a lawful search. In that respect, the concept of discoverability does not elevate the seriousness of Cst. Giannoulis’s Charter- offending conduct. On the other side of the discoverability coin, however, there is also no evidence to support a conclusion that the incriminating evidence against Mr.

Santos would have been discovered through the lawful means permitted under the provincial legislation either. This means the concept of discoverability does not attenuate the seriousness of the impact of the breach on Mr. Santos’s Charter -protected rights. [ 69 ] Taking all of that into account, I am of the view that analysis of the second factor also favours exclusion of the evidence. c. Society’s interest in adjudication of the case on its merits [ 70 ] The third factor to be considered in the s. 24(2) analysis is society’s interest in adjudication of the case on its merits.

This line of inquiry typically tilts towards admission of the evidence where the evidence is reliable. This is due to the concern that exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public’s perspective, thus bringing the administration of justice into disrepute ( Grant at para 81 ; Côté at para 47 ) . [ 71 ] This does not mean, however, that admission of evidence will be automatic just because the evidence is reliable.

Disrepute to the administration of justice may result from admitting even highly reliable evidence that deprives the accused of a fair trial or amounts to condonation of unacceptable conduct by the investigatory and prosecutorial bodies. As the Supreme Court observed in Le , “[A]n ‘adjudication on the merits’, in a rule of law state, presupposes an adjudication grounded in legality and respect for longstanding constitutional norms” (at para 158). [ 72 ] In this case, I have found that the first two lines of inquiry favour exclusion of the evidence.

Where that is so, it is important to bear in mind that even if the public interest in adjudication on the merits is strong, it does not automatically override the other interests implicated in the s. 24(2) analysis. This point was made, in similar circumstances, by Richards C.J.S. in R v Loewen , 2018 SKCA 69 , [2018] 12 WWR 280: [88] The drugs and cash in issue here are, of course, highly reliable evidence and essential to the determination of the charges against Mr. Loewen.

The problem posed by illegal drugs in the lives of Saskatchewan communities is well known and the damaging role played 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. [ 73 ] In practical terms, the third line of inquiry under Grant becomes most important when one, but not both, of the first two inquiries pushes strongly towards the exclusion of the evidence.

If the first and second lines of inquiry make a compelling case for exclusion of the evidence, the third line of inquiry will seldom, if ever, tip the balance in favour of admissibility. But if the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will weigh heavily in favour of admissibility: R v McGuffie , 2016 ONCA 365 at para 63 , 336 CCC (3d) 486; Le at para 142. [ 74 ] In this case, the package of cocaine found in Mr. Santos’s vehicle is highly reliable evidence and is crucial to the prosecution. Consideration of this factor obviously favours admission. d.

Final balancing [ 75 ] The last step in the Grant analysis involves a balancing. As McLachlin C.J.C. noted in R v Harrison , 2009 SCC 34 , [2009] 2 SCR 494, this is also a qualitative exercise, not a mathematical one. [36] … It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed. [ 76 ] The police conduct that constituted the breaches of Mr. Santos’s Charter rights was moderately serious; it does not sit at the high end of the scale, but neither can it be said to fall at the low end of the scale. The arrest and subsequent detention of Mr.

Santos were both unlawful and led directly to a deprivation of his liberty and an unconstitutional search. On the other hand, the drugs found in Mr. Santos’s vehicle are reliable evidence that is essential to the prosecution of a serious offence.

[ 77 ] This case is a close call but, in my view, the balance ultimately tips here in favour of excluding the evidence. V. CONCLUSION [ 78 ] In the result, I conclude that Mr. Santos’s appeal must be allowed. The decision of the trial judge must be set aside. Without the evidence obtained in connection with the Charter breaches, Mr. Santos could not have been convicted. That being the case, I would set aside both convictions and substitute verdicts of acquittal. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Caldwell J.A.” Caldwell J.A.. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.