R v Sabiston, 2023 SKCA 105

Court of Appeal for Saskatchewan Docket: CACR3403 Citation: R v Sabiston, 2023 SKCA 105Date: 2023-09-07 Between:Stuart Michael George SabistonAppellantAndHis Majesty the KingRespondentBefore: Barrington-Foote, Tholl and Drennan JJ.A.Disposition: Appeal allowedWritten reasons by: The Honourable Madam Justice DrennanIn concurrence: The Honourable Mr. Justice Barrington-FooteIn dissent: The Honourable Mr. Justice ThollOn appeal from: Provincial Court, ReginaAppeal heard: November 14, 2022Counsel: Evan Strelioff for the Appellant Erin Bartsch for the Respondent Drennan J.A. I.

INTRODUCTION [1] On July 23, 2019, in a neighbourhood in south-central Regina described by the officers in this case as frequented by gangassociates and gang violence, two members of the Regina Police Service’s [RPS] gang unit arrested Stuart Sabiston for possession ofstolen property, namely the bullet-proof vest he wore that day. In the course of being searched incident to that arrest, police located afolding knife in Mr. Sabiston’s pocket. Mr. Sabiston then told police that he had a firearm in his backpack. A loaded prohibited firearmwas subsequently seized by the officers. [2] While Mr.

Sabiston was initially charged with possession of stolen property, the Crown ultimately stayed that charge andproceeded to trial on firearms offences only. [3] Following a Charter application by Mr. Sabiston to exclude the firearm from evidence, a Provincial Court trial judge foundMr. Sabiston’s ss. 8 and 9 Charter rights had been breached, and that his arrest and the subsequent search were unlawful. However, inconducting a s. 24(2) Charter analysis, she found that the officers would have had a legal basis to detain Mr.

Sabiston for investigativepurposes, and therefore, discoverability of the firearm mitigated the seriousness of the breaches and their impact on Mr. Sabiston. Sheadmitted the firearm into evidence. Mr. Sabiston was subsequently convicted of several firearms offences and sentenced to a lengthypenitentiary term. [4] The breaches of Mr. Sabiston’s ss. 8 and 9 Charter rights as found by the trial judge are not at issue.

I agree with mycolleague Tholl J.A. that the focus of the analysis in assessing Charter breaches arising from an unlawful arrest should be on the actualchoice of process utilized by the police (in this case, arrest), not an alternate, hypothetical choice of process that was theoreticallyavailable to them (being investigative detention).

This approach is consistent with the Ontario Court of Appeal’s decision in R v Charley(1993), (ON CA), 22 CR (4th) 297 (Ont CA) [Charley], and the British Columbia Court of Appeal’s decision in R vWhitaker, 2008 BCCA 174, 254 BCAC 234 [Whitaker]. [5] What remains at issue is whether the trial judge erred in deciding that the test in R v Grant, 2009 SCC 32, [2009] 2 SCR 353[Grant], favoured the admission into evidence of the firearm seized from Mr. Sabiston.

This is the point that my colleague and I divergeon. [6] Respectfully, I am of the view that the trial judge did err by finding that the officers would have had a lawful basis to detainMr. Sabiston for investigative purposes in relation to a suspected possession of stolen property offence, and to search him incident to thatdetention. The firearm would only have been discoverable through a Charter breach. As a result, the trial judge erred in her considerationof the discoverability of the firearm in her s. 24(2) analysis.

Having conducted the s. 24(2) analysis afresh, I would exclude the firearm,and enter an acquittal for Mr. Sabiston. [7] My reasons for these conclusions follow. II. THE VOIR DIRE [8] I adopt the factual backdrop as articulated by my colleague, but for the purpose of these reasons, I will highlight relevantaspects of the voir dire evidence arising from Mr. Sabiston’s Charter application. [9] It is important to note the context for the interactions of the officers with Mr. Sabiston on the date in question.

Both officerswere members of a specialized, plain clothes gang unit with a specific mandate for management and interaction with certain individualswith known or suspected gang affiliations in the core of Regina. Constable Ethier had 12 years’ experience with RPS, and 3 years’experience in the gang unit. Constable Dods had 12 years’ experience with RPS, and 2 years’ experience with the gang unit. Both officersknew Mr. Sabiston, had prior dealings with him, knew him to be gang affiliated, and to be subject to a weapons prohibition. Neitherofficer testified to having knowledge of Mr.

Sabiston’s criminal record, or the content thereof. Both officers were armed on the date inquestion. It was common ground Mr. Sabiston’s wearing of the bullet-proof vest was not, in and of itself, illegal.

[ 10 ] The evidence on the voir dire consisted of testimony from Cst. Ethier and Cst. Dods. Constable Ethier was the arresting officer, and the officer who testified as to the grounds for that arrest. [ 11 ] While on patrol during daylight hours, Cst. Dods spotted Mr. Sabiston in an alley. He advised Cst. Ethier, who was also on patrol in the area. Constable Ethier called out to Mr. Sabiston, using his street name “Papi”. As Mr. Sabiston approached, Cst. Ethier observed that he was wearing a bullet-proof vest without a shirt underneath.

Constable Ethier had this to say in his testimony on the voir dire regarding his initial observations of Mr. Sabiston in the vest: Q Was he walking towards you as you said it to him? A You know, I couldn’t tell you if he was -- if he had stopped walking by that time to start a conversation or if he was continuing to walk towards us. Q And prior to telling him that he was under arrest, what had you said to him? A Just when I recognized him in the street -- or in the alley, got out, Papi, what’s up?

And then he turned and walked towards us, and then -- Q And then the next words were -- A And then the next words were in my mind, because I remember he turned around, started walking, and it took maybe a house for him to get close enough to me to recognize. So he was still maybe, say, 20 feet away from me. And as he got closer, I -- that’s a bulletproof vest. And as he got closer and closer, I was like, He’s -- you know, that’s all he’s got on for a shirt, and I was like, That looks like one of ours. And just kind of as he progressively got closer, my mind kind of started spinning a little bit.

Why do you have a vest on? You know, what -- you know, what other things do you have with you? What concerns do I have as an officer for my safety, that -- you’re so worried about your safety that you’ve got a vest on. So just those thoughts that are going through my head. It was clear it was a stolen -- like, to me, it was clear it was stolen property. And by the time he got within probably 6 to 10 feet, told him -- you know, I’d formed my grounds in my head that he was arrestable, and I told him he was under arrest. Q All right. Then what did you do?

A Put him in -- as Constable Dods put him in handcuffs -- well, we grabbed on to him. (Emphasis added) [ 12 ] Constable Ethier testified in examination-in-chief and subsequently in cross-examination as follows regarding the arrest and subsequent search: A So, yeah. As far as, like, the grounds to search, I, like, arrested him for possession of the stolen property and then searching him incident to arrest for, you know, whether there is evidence to support that it is stolen property, locating the -- the knife on him.

And then just for further, I guess -- further weapons or anything like that, should be in his backpack. But knew he was prohibited with firearms and weapons. … A I grabbed one arm, Constable Dods grabbed the other. I couldn’t tell you which arm I grabbed. Concern was flight. He might take off and run. Potential weapons; it’s, like, we’re alone in an alley with him. So just common practice to -- to get people in handcuffs once they’re arrestable, put them in handcuffs for, well, our safety, for their safety, and just safety in general, right? So I remember Constable Dods was handcuffing him behind his back.

I was searching him kind of officer safety/incident to arrest. I located the folding knife in his pocket; it was concealed. … … [MR. SABISTON]: When you arrested me for the vest, why did you start patting down my pockets and searching them? A It’s just officer safety. It’s common -- like, it’s just what we do, right? It’s to make sure that we’re safe. Once someone’s under arrest, they’re immediately kind of patted down and -- for officer safety reasons. [MR. SABISTON]: Okay. It wasn’t for -- it wasn’t incident (INDISCERNIBLE) looking for further stolen property in my pockets?

A The initial pat-down, no. The initial pat-down was -- my -- my sole intention -- whenever we make that arrest, right, is the quick pat-down to make sure that there aren’t any immediate weapons or tools for escape, you know, just items that could potentially harm myself or my partner. Once that is complete, then -- you know, then the search incident to arrest would -- would occur. But that first initial pat-down, it’s -- it’s quick. It’s all about just that immediate officer safety reason. (Emphasis added) [ 13 ] In cross-examination, Mr. Sabiston (who represented himself at trial) questioned Cst.

Ethier as to how he knew the bullet-proof vest was stolen: [MR. SABISTON]: Fair enough. The body armour I was wearing, why did you assume it was stolen? A That’s -- a variety of reasons. It’s identical to our body armour. It’s identical to the sheriff’s office body armour. To my knowledge, there isn’t anywhere in the city that you can just go and buy it, that I’m aware of. It’s -- it was unusual behaviour on someone that I know has a history of criminality, walking in an area frequented by gang associates and gang violence.

You put all those kind of pieces together, the black bandana hanging out of the pocket -- when we -- when we saw you, putting all those pieces together, to me, formed that opinion that in my mind, I had reasonable grounds to believe that that was stolen property. (Emphasis added) [ 14 ] Mr. Sabiston then presented to Cst. Ethier a photo of a bullet-proof vest from a website, questioning the officer on the ability of an individual to purchase such a vest. The following exchange occurred between the trial judge and the Constable: THE COURT: Right. A Yeah.

In reviewing this, I mean, it -- the pictures on the front maybe aren’t the exact same one, but the picture on the back certainly looks pretty close to it. Yeah. And -- and that -- it certainly is something that had entered my mind as you can buy anything on the internet, right? Like, it’s pretty hard to not be able to find something on the internet nowadays that you can’t buy and have shipped home. But it was the totality of the -- like, the events that were -- and the signs that kind of surrounded it that formed in my mind as to reasonable grounds to believe.

Now, if, down the road or, say, after I told you you were under arrest for the possession of stolen property and you said, Hey, man, I got a receipt for it here in the -- my back pocket; hey, cool, absolutely, right? Like, it’s one of the reasons why searching incident to arrest isn’t always proof that this crime has been committed; sometimes it’s proof that the crime didn’t get committed. Had you had a receipt or said, Hey, man, like, I can produce a receipt for you? Cool. Like, absolutely, right? But – THE COURT: M-hm. Okay.

So you’re basically -- you wouldn’t dispute that you can buy almost anything on the internet, as you said. A Yeah. THE COURT: And so perhaps bulletproof vests can be bought? A M-hm. Yeah. THE COURT: I mean, obviously, the Regina Police Service buys them from somewhere. A Yeah, absolutely, so -- (Emphasis added) [ 15 ] Constable Ethier testified that he did not think the bullet-proof vest could be purchased in Regina but acknowledged he had not purchased one himself.

Neither officer testified as to how the Reginal Police Service or other police agencies procured their bullet-proof vests. [ 16 ] At the conclusion of the voir dire , the trial judge reviewed R v Mann , 2004 SCC 52 , [2004] 3 SCR 59; R v Chehil , 2013 SCC 49 , [2013] 3 SCR 220 [ Chehil ]; R v MacKenzie , 2013 SCC 50 , [2013] 3 SCR 250 [ MacKenzie ]; R v Yeh , 2009 SKCA 112 , 248 CCC (3d) 125 [ Yeh ]; and R v Chapman , 2020 SKCA 11 , 386 CCC (3d) 24 [ Chapman ]. She heard argument from both Mr. Sabiston and the Crown with respect to the issue of whether the officers had reasonable grounds for Mr.

Sabiston’s arrest. She determined that Mr. Sabiston’s s. 9 Charter rights had been breached, and that his arrest was unlawful. As the Crown had argued that the search incident to the arrest was salvageable on the basis that the officer theoretically had grounds to have detained Mr. Sabiston, she then considered whether the officers would have had a reasonable suspicion to ground a lawful detention: Now, I also want to comment on the issue of when police may have reasonable suspicion to detain an individual.

The Supreme Court of Canada has dealt with the issue of reasonable suspicion in the cases of Mann , and then later in the case of Chehil and MacKenzie , so the following principles are gleaned from these decisions. The first point is that a reasonable suspicion is a belief that an individual might be connected to a particular offence as opposed to a reasonable belief that an individual is connected to the offence.

And next point, the fact that reasonable suspicion deals with possibilities rather than probabilities necessarily means that in some cases, the police will reasonably suspect that innocent people are involved in crime. Next point, when conducting an inquiry to ascertain whether a reasonable suspicion was present, the Court is to assess the circumstances the police were aware of at the time. Next point, reasonable suspicion must be assessed against the totality of the circumstances.

The inquiry must consider the constellation of objectively discernable facts that are said to give the investigating officer reasonable cause to suspect. Next point, the constellation of factors will not ground reasonable suspicion where they -- where they merely amount to a generalized suspicion or hunch. Next point, police are required to consider all the information that is available to them, including possibility [ sic ] innocent explanations, but they do not have to -- they do -- do not have a duty to seek out exculpatory factors or to rule out possible innocent explanation.

Now, the Saskatchewan Court of Appeal, again, in R. v. Yeh , 2009 SKCA 112 , in interpreting the Mann decision, ruled that an investigative detention does not have to only be in relation to an offence that has been reported to police or which the police are currently investigating; rather, investigative detentions can be conducted for what the Court called suspected offences. In other words, when police have a reasonable suspicion that a crime has been committed, they may detain an individual for investigative purposes in relation to that specific crime.

So the Saskatchewan Court of Appeal recently stated in the Chapman decision which I previously mentioned, the difference between reasonable suspicion and reasonable grounds to believe is a difference in the degree of certainty necessary to meet each standard. In practice, the line that separates reasonable suspicion from reasonable belief is not always easy to draw. The Court of Appeal went on to say that Courts must be careful not to permit the standard of reasonable belief to be watered down or interpreted in a way that effectively negates the difference between reasonable belief and reasonable suspicion.

Now, Constable Ethier subjectively believed that the vest was stolen as he believed such vests could not be purchased in Regina, it was identical to RPS-issued vests, and Mr. Sabiston was known to be a gang member. The officers had received no complaint of such vest having been stolen. So I find that although Constable Ethier honestly believed that the vest was stolen, the circumstances fell short of providing an objectively reasonable basis to arrest Mr. Sabiston for possessing a stolen bulletproof vest.

However, I find that he had grounds, that is the officer had grounds, to reasonably suspect the vest to be stolen and was acting on more than a hunch or generalized suspicions. He therefore would have had the right to detain Mr. Sabiston for investigation purposes , but that’s not what Constable Ethier did; he invoked the statutory power of arrest. (Emphasis added) [ 17 ] While the trial judge found that the officers had a reasonable suspicion that would have been sufficient to have legally detained Mr.

Sabiston, this did not salvage the s. 8 Charter breach in relation to the search incident to the unlawful arrest. [ 18 ] The trial judge then proceeded with the s. 24(2) Charter analysis, finding that, as the officers had a basis to legally detain Mr. Sabiston, the firearm was discoverable. She found this mitigated the seriousness of the Charter breach on the first stage of the Grant analysis, and its corresponding impact on Mr.

Sabiston in the second stage of the Grant analysis: In the case before me, Constable Ethier subjectively and honestly believed that he had a reasonable -- or, sorry -- that he had reasonable and probable grounds to arrest Mr. Sabiston . As the Court stated in the Chapman decision at paragraph 105 , and I quote: (as read) While “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 short of meeting the necessary mark, that may tend to situate the Charter -infringing conduct at the lower end of the fault spectrum. Now, the Court went on to say at paragraph 107 that recognizing whether the reasonable grounds to believe standard has been met has not always been easy. Constable Ethier did not interact with Mr. Sabiston for an improper purpose. He had reason to conduct further investigation when he saw Mr.

Sabiston wearing the bulletproof vest. As I had previously stated, Constable Ethier had a reasonable suspicion that Mr. Sabiston was committing the crime for which he was arrested, and could have detained Mr. Sabiston for further investigation and searched for officer safety. The search of Mr. Sabiston was no more than was necessary for officer safety, and Mr. Sabiston was not mistreated. I find that the Sections 8 and 9 breaches were not wilful or even negligent violations of Mr. Sabiston’s rights. They fall at the lower end of the scale of seriousness.

The analysis of this first factor then weighs in favour of admission of the evidence. … In the case before me, the breach had significant impact on Mr. Sabiston, as he was arrested and taken into custody. However, the discoverability of the evidence somewhat diminishes the seriousness of the impact of the breach. I believe that the officers would have located the knife and then the firearm if they had simply detained him for investigative purposes, as the officers had the right to search for the purposes of officer safety.

Having said that, based on the analysis at this stage, the evidence should be excluded, although it is a close call. (Emphasis added)

[ 19 ] After conducting her Grant analysis, as will be later discussed in more detail, the trial judge admitted the firearm into evidence. III. ISSUES [ 20 ] Mr. Sabiston argues that the trial judge failed in her s. 24(2) analysis to properly assess the seriousness of the Charter - infringing state conduct and its corresponding impact on him, leading to the erroneous admission of the firearm into evidence.

He further asserts that the trial judge erred in relying on discoverability principles in her s. 24(2) analysis, as a result of having erred in finding that the officers had a reasonable suspicion that would have been sufficient to detain and search him based on officer safety. [ 21 ] Given the interwoven nature of these submissions, I would distill Mr. Sabiston’s argument into two questions: (

a) Did the facts found by the trial judge amount at law to a reasonable suspicion that the bullet-proof vest worn was stolen? (

b) Did the trial judge err in her s. 24(2) Charter analysis by considering the discoverability of the firearm? IV. ANALYSIS A. Did the facts found by the trial judge amount at law to a reasonable suspicion that the bullet-proof vest was stolen? 1. Reasonable suspicion: the legal framework [ 22 ] As mentioned, the trial judge properly referred to the seminal authorities of Mann , Chehil , and MacKenzie , in addition to the decisions of this Court in Chapman and Yeh .

In Mann , the Supreme Court of Canada cited R v Waterfield , [1963] 3 All ER 659 (CA) , and summarized the investigative power to detain and the associated ability to search incident to that detention, as follows: 34 The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds.

The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation.

The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test. [ 23 ] Mann was subsequently expanded upon by the Supreme Court in Chehil and its companion case, MacKenzie .

Chehil summarized the governing principles in the following way, highlighting that the reasonable suspicion standard is an objective standard (distinct from that of reasonable grounds to believe), based on objectively discernible facts, and is a particularized rather than a general suspicion: [26] Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances.

In Kang- Brown , Binnie J. provided the following definition of reasonable suspicion, at para. 75: The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity.

A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. [27] Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime.

As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard. [28] The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime.

In spite of this reality, properly conducted sniff searches that are based on reasonable suspicion are Charter - compliant in light of their minimally intrusive, narrowly targeted, and highly accurate nature: see Kang-Brown , at para. 60, per Binnie J., and A.M. at paras. 81-84, per Binnie J.

However, the suspicion held by the police cannot be so broad that it descends to the level of generalized suspicion, which was described by Bastarache J., at para. 151 of A.M. , as suspicion “that attaches to a particular activity or location rather than to a specific person”. [29] Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation.

This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley , 2009 SKCA 49 , 324 Sask. R. 286, at para. 60 . A police officer’s grounds for reasonable suspicion cannot be assessed in isolation: see Monney , at para. 50. [30] A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a “generalized” suspicion because it “would include such a number of presumably innocent persons as to approach a subjectively administered, random basis” for a search: United States v.

Gooding , 695 F.2d 78 (4th Cir. 1982), at p. 83. The American jurisprudence supports the need for a

sufficiently particularized constellation of factors. See Reid v. Georgia , 448 U.S. 438 (1980), and Terry v. Ohio , 392 U.S. 1 (1968).

Indeed, the reasonable suspicion standard is designed to avoid indiscriminate and discriminatory searches. [ 24 ] As noted in MacKenzie , Chehil , and subsequent authority, an assessment of reasonable suspicion requires “a careful individualized assessment of the totality of the circumstances” ( Chehil at para 40 ), considering the “constellation of objectively discernable facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation ” ( Chehil at para 29 , emphasis added; see also R v Ahmad , 2020 SCC 11 at paras 24 and 46 , [2020] 1 SCR 577 [ Ahmad ]; R v Brown , 2021 NLCA 27 at para 8 ; R v Reddy , 2010 BCCA 11 at para 67 , 251 CCC (3d) 151 [ Reddy ]; and R v Duong , 2018 SKCA 25 at para 28 , 361 CCC (3d) 491).

This “constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a logical inference of criminal behaviour” ( Chehil at para 46 ). Further, there must be a nexus “between the criminal conduct that is suspected and the investigative technique employed” ( Chehil at para 36 ; Mann at para 34 ). [ 25 ] In assessing whether a reasonable suspicion has been established, the subjective belief of the officer(

s) must be objectively reasonable. The analysis in this regard should be conducted through the “lens of a reasonable person ‘standing in the shoes of the police officer’” ( MacKenzie at para 63 ; R v Tran , 2007 BCCA 491 at para 12 , 247 BCAC 109).

The reasonable suspicion inquiry cannot look to circumstances or facts learned by the police after a search has been executed ( Chehil at para 34 ; R v Kang-Brown , 2008 SCC 18 at para 92 , [2008] 1 SCR 456 [ Kang-Brown ]). [ 26 ] The reasonable suspicion standard requires that the police suspicion be particularized. “Generalized” suspicion is insufficient to ground reasonable suspicion. It must be based on more than a “hunch” or an “intuition grounded in an officer’s experience” ( MacKenzie at para 64 ; Chehil at para 47 ).

While training and experience may provide an objective experiential basis for grounding reasonable suspicion, this does not mean that deference is owed to a police officer’s subjective belief because they have unique training and experience in the field ( Chehil at para 47 ; MacKenzie at para 64 ).

A court must “be prepared to look carefully at what is held out to be ‘experience’ or ‘training’ in order to ensure that the integrity of the reasonable suspicion concept is maintained” ( Yeh at para 53 ). [ 27 ] An officer’s “educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard” ( Chehil at para 47 ).

It is therefore “critical” that the line between “a hunch and reasonable suspicion be maintained to prevent the police from engaging in discriminate or discriminatory practices”, while still allowing police to act without being subject to undue scrutiny ( MacKenzie at para 65 ). [ 28 ] The ability of an officer to form a reasonable suspicion sufficient to detain individuals in relation to suspected, rather than known, offences is relevant to this case. Dealing with that proposition, the trial judge cited this Court’s decision in Yeh .

Yeh preceded Chehil and MacKenzie , and focused on whether police could detain an individual for a suspected offence (where they have reason to believe criminal activity “has taken place or is taking place”, but their “thinking remains only at the level of suspicion” and “there is no basis for an arrest”), or whether they can detain an individual only in relation to a known offence (one that has been reported to them, or one that they understand by some means has occurred) ( Yeh at para 78 ).

Justice Richards, as he then was, writing for the majority, interpreted the reference to “recent” or “on-going” offences in Mann as “including situations where a police officer has a reasonable suspicion that the prospective detainee is, or has been, involved in an offence, i.e. , as including situations where the crime itself is only suspected ” (at para 83, emphasis in original). In other words, police may detain an individual where they have “reasonable grounds to suspect he or she is involved in criminal activity.

It is not necessary that the detention be in relation to a known, as opposed to a suspected, offence” (at para 94). [ 29 ] Several points emerge from Yeh that are pertinent. To begin, the majority in Yeh affirmed the Mann requirement that a reasonable suspicion must be tethered to a “particular crime” ( Mann at para 45 ; Yeh at para 84 ).

This nexus is required to ensure police do not detain an individual “out of a general sense he or she might be doing something unlawful” ( Yeh at para 84 ). [ 30 ] Next, the majority in Yeh was clear that police “do not enjoy a general power to detain individuals for the purpose of ferreting out possible criminal activity”, or to “determine whether an individual is, in some broad way, ‘up to no good’” (at para 75).

Justice Richards emphasized that “[i]n order to justify an investigative detention, the police suspicion must be particularized, i.e. it must relate to specific criminal wrongdoing” – although the extent to which a suspicion must be particularized was not at issue in the Yeh appeal (at para 74 ). [ 31 ] Lastly, the majority in Yeh held that “[t]he question of whether the police may detain an individual in connection with a suspected offence is a different matter than the idea that suspicion must be particularized” (at para 77, emphasis in original).

Justice Richards wrote that “[a]ny analysis which fails to appreciate the difference between these two notions will, of necessity, be flawed” (at para 74). [ 32 ] The matter unaddressed by Yeh , that is, the extent to which police suspicion must be particularized, was dealt with in Chehil . As noted above, it held that a reasonable suspicion requires that “the constellation of objectively discernible facts…give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation” (at para 26).

While there need not be evidence of a “specific known criminal act” (consistent with the Yeh majority’s discussion of “known” versus “suspected” offences), the police must “point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion” ( Chehil at para 35 ). [ 33 ] With these principles in mind, I turn now to Mr. Sabiston’s case. 2.

Reasonable suspicion: analysis [ 34 ] A determination of whether the underlying facts found by the trial judge amount to reasonable suspicion is a question of law reviewable on the standard of correctness (see MacKenzie at para 54 ; R v Le , 2019 SCC 34 at para 23 , [2019] 2 SCR 692 [ Le ]). As such, no deference is owed by an appellate court in reviewing the determination of reasonable suspicion ( R v Franc , 2016 SKCA 129 at para 37 , 342 CCC (3d) 492, citing Chehil and MacKenzie ). [ 35 ] Mr.

Sabiston does not argue that the trial judge committed palpable and overriding error of fact or that she erred in identifying

the legal test for reasonable suspicion. He submits that she erred in finding that the facts gave rise to a reasonable suspicion at law. Given that the appeal is brought on this basis, I must conduct a de novo assessment of whether the facts in this instance give rise to a reasonable suspicion at law (see MacKenzie at paras 54 and 66 ). [ 36 ] To summarize, the trial judge had the following constellation of facts before her to consider: (

a) Constable Dods observed Mr. Sabiston walking in daylight, in an alley, and contacted Cst. Ethier, who was nearby. (

b) Constable Ethier called out to Mr. Sabiston, who responded by approaching, and as he did so, Cst. Ethier observed that he was shirtless but wearing a bullet-proof vest. (

c) Constable Ethier believed the bullet-proof vest to look like, and be identical to, the vests issued to RPS and deputy sheriffs. (

d) Both constables knew Mr. Sabiston was a gang member and was on a weapons prohibition. (

e) Both constables knew the alley was in a high gang-crime area of Regina. (

f) Police had received no reports of stolen bullet-proof vests. (

g) Cst. Ethier knew that it was possible to purchase a bullet-proof vest on the internet, but he believed they could not be purchased in Regina. [ 37 ] Given that Cst. Ethier knew a bullet-proof vest could have been purchased online, coupled with the fact that no reports had been made of stolen vests – his subjective belief that the bullet-proof vest was stolen hinged mostly, if not primarily, on his past dealings with Mr. Sabiston, a known gang member, who was walking in a high gang crime area while wearing suspicious attire. This is demonstrated by Cst.

Ethier’s testimony that “it’s pretty hard to not be able to find something on the internet nowadays… . But it was the totality of the -- like, the events that were -- and the signs that kind of surrounded it that formed in my mind as to reasonable grounds to believe”.

While the reasonable suspicion standard “does not require the police to investigate to rule out exculpatory circumstances” ( Chehil at para 6 , see also MacKenzie at para 35 ), the presence of this possible innocent explanation was a factor to be weighed in the totality of the circumstances. [ 38 ] Police are entitled to consider knowledge of past dealings with an individual ( R v Clayton , 2007 SCC 32 at para 31 , [2007] 2 SCR 725 [ Clayton ]). The location of an individual can sometimes be taken into account when deciding whether an officer formed a reasonable suspicion (see Ahmad at para 20 ).

However, the significance of such circumstances depends on the facts, and must be considered in light of the need for particularization. For example, police cannot rely solely on an individual’s gang affiliation to justify an investigative detention (see R v Nguyen , 2019 ONSC 5849 at paras 83–84 ; see also United States v Daniel , 804 F Supp 1330 (Nev Dist Ct 1992) , nor on the fact that an individual is acting suspiciously in a high crime neighbourhood (see Reddy ).

These cases illustrate that the mere fact that a person is a known criminal or in a high crime neighbourhood is not enough to ground reasonable suspicion. [ 39 ] Here, the officers testified only to a general involvement of Mr. Sabiston with gang criminality. They did not articulate any other suspected offence or criminal behaviour, upon which to particularize their suspicion. The only offence tethered to Cst. Ethier’s subjective belief was possession of stolen property.

While I acknowledge that the standard of reasonable suspicion deals with possibilities, rather than probabilities of a crime being committed ( Chehil at para 27 ), a sufficient nexus is still required between a reasonable suspicion and a “particular crime” ( Mann at paras 34 and 45 ). There is no such nexus here. The fact that Mr. Sabiston was on a weapons prohibition and a gang member does not reasonably tie Cst. Ethier’s subjective belief to a stolen property offence. The officers did not testify to having knowledge of Mr. Sabiston’s criminal record, beyond an awareness that he was on a weapons prohibition.

They did not give evidence that Mr. Sabiston had a history of property or theft related criminality. There was no report on the date in question that he was involved in such criminality. [ 40 ] In my view, the officers took a leap, based on intuition or a hunch, placing undue weight on Mr. Sabiston’s gang affiliation and the nature of the neighbourhood, despite the absence of particularized conduct or evidence supporting Mr. Sabiston’s involvement in criminality related to stolen property. With respect, this is the type of problematic use of police authority that Chehil cautions against.

As noted in Chehil , “blanket” or “general” suspicion of criminality “will not be sufficient” (at para 30). As it also instructs, courts in reviewing reasonable suspicion are to be “wary that factors arising out of police experience are not in fact stereotypical or discriminatory” (at para 42). [ 41 ] Constable Ethier testified that “as [Mr. Sabiston] progressively got closer, my mind kind of started spinning a little bit. Why do you have a vest on? You know, what -- you know, what other things do you have with you?

What concerns do I have as an officer for my safety, that -- you’re so worried about your safety that you’ve got a vest on. So just those thoughts that are going through my head”. However, both officers particularized their suspicion only in relation to possession of stolen property at the time of the unlawful arrest – not to any weapons offence, or any other violent offence. This was all the trial judge had before her to consider in the context of a theoretical investigative detention. By the time Mr.

Sabiston volunteered to police that he had a firearm in his backpack, he was already unlawfully arrested and in the throes of an illegal search. Of course, circumstances learned by police following the execution of a search cannot be relied upon to sustain or expand a reasonable suspicion formed earlier ( Chehil at para 34 ; see also Kang-Brown at para 92 ). [ 42 ] For these reasons, I am of the view that Cst. Ethier’s belief that the bullet-proof vest was stolen was not objectively reasonable.

It may have been, with a different particularization of the suspicion, that the officers could have met the threshold for detention – but that is not the case here. The fact that another possible type of criminality could have, in hindsight, been the subject of their suspicion is not relevant. Again, as noted in Yeh and Mann , investigative detention is not a means of ferreting out criminal behaviour. [ 43 ] I conclude, as a bottom line, that Cst. Ethier had no proper basis for an investigative detention.

As I will explain, this determination undermines the trial judge’s consideration of discoverability of the firearm in the s. 24(2) analysis. B. Did the trial judge err in her s. 24(2) Charter analysis by considering

discoverability of the firearm? 1. The trial judge’s s. 24(2) analysis [ 44 ] As Kalmakoff J.A. commented in Chapman , “[t]he decision to admit or exclude evidence under s. 24(2) of the Charter is a question of law that involves an element of judicial discretion” (at para 38).

For that reason, an appellate court reviewing a trial judge’s determination of what would bring the administration of justice into disrepute having regard to all of the circumstances will be reviewed deferentially; that is, “[w]here a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination is owed considerable deference on appellate review” ( R v Mian , 2014 SCC 54 at para 77 , [2014] 2 SCR 689, citing R v Côté , 2011 SCC 46 at para 44 , [2011] 3 SCR 215, per Cromwell J. [ Côté ]).

The reviewing court may not simply reweigh the facts or reassess the evidence to substitute its own view of the s. 24(2) analysis ( R v Turpin , 2012 SKCA 50 at para 111 , 284 CCC (3d) 296). [ 45 ] The trial judge addressed the three-part test in Grant , considering (

a) the seriousness of the breaches, (

b) the impact of the breaches on Mr. Sabiston, and (

c) society’s interest in having the matter tried on the merits. As previously noted, in the first and second stage of the Grant analysis, the trial judge considered discoverability of the firearm as both mitigating the seriousness of the breaches and their impact on Mr. Sabiston.

She found that the first stage of Grant weighed in favour of admission of the firearm, whereas the second stage weighed against its admission. [ 46 ] Discoverability of evidence is a permissible consideration in the Grant inquiry in the first and second stage, and particularly “in assessing the actual impact of the breach on the protected interests of the accused” (at para 122).

However, Grant does not stand for the proposition that discoverability will impact the s. 24(2) analysis in every scenario, as that depends on the likelihood of discovery with and without the Charter breach, and what level of speculation by the court it entails. As indicated recently in R v Tim , 2022 SCC 12 , 412 CCC (3d) 147 [ Tim ]: [94] On the other side of the ledger, I am not prepared to speculate as to whether the evidence would have been discovered absent the Charter breaches.

It is true that if the evidence were only discoverable through the Charter breach, then there would be a greater impact on the accused’s Charter -protected interests (see Grant , at paras. 122 and 137 ; R. v. Keller , 2019 ABCA 38 , 372 C.C.C. (3d) 502, at para. 64 ). However, “in cases where it cannot be determined with any confidence whether evidence would have been discovered” absent a Charter breach, “discoverability will have no impact on the s. 24(2) inquiry” ( Grant , at para. 122 ; see also Hill, Tanovich and Strezos, at § 19:49). Courts should not engage in speculation about discoverability (see R. v.

Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215, at para. 70 ). [ 47 ] The trial judge’s use of discoverability in the s. 24(2) analysis was flawed, as she erred in finding that the officers had a reasonable suspicion in the bullet-proof vest having been stolen that justified an investigative detention. It follows that there could not have been a lawful search incident to that detention. Therefore, absent a Charter breach in this particular factual matrix, the firearm was not discoverable. In a related vein, to the extent the trial judge found that Cst.

Ethier’s reasonable suspicion mitigated the seriousness of the breach, and somewhat lessened the impact of the breach of Mr. Sabiston, there was also an error. 2. The s. 24(2) analysis afresh [ 48 ] As the trial judge’s conclusion with respect to the admission of the evidence was tainted by error, a fresh s. 24(2) analysis is necessary. “An appeal court may undertake that fresh analysis if the trial judge has made findings of fact that are not tainted by error and which provide the necessary factual foundation.

In doing so, the appeal court must accept those findings of fact”: R v Lichtenwald , 2020 SKCA 70 at para 25 , 388 CCC (3d) 377 [ Lichtenwald ]; R v Vu , 2013 SCC 60 at para 67 , [2013] 3 SCR 657. a. Stage one: seriousness of the breach [ 49 ] In considering the first branch of Grant and the seriousness of the state-infringing conduct, R v Beaver , 2022 SCC 54 , 420 CCC (3d) 421 [ Beaver ], summarized the relevant considerations in this way: [120] The first line of inquiry under s. 24(2) considers whether the Charter -infringing state conduct is so serious that the court needs to dissociate itself from it.

This inquiry requires the court to situate the Charter -infringing conduct on a scale of culpability. At one end of the scale is conduct that constitutes a wilful or reckless disregard of Charter rights, a systemic pattern of Charter -infringing conduct, or a major departure from Charter standards. At the other end of the scale are less serious Charter breaches, including breaches that are inadvertent, technical, or minor or those that reflect an understandable mistake.

The more severe the state’s Charter -infringing conduct, the greater the need for courts to disassociate themselves from it (see Grant , at paras. 72-74 ; Le , at para. 143; Harrison , at para. 22; R. v. Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215, at para. 47 ; Tim , at para. 82 ; Lafrance , at para. 93). [ 50 ] The trial judge found that the search of Mr.

Sabiston was no more than what was necessary for officer safety, that he was not mistreated, and that the Charter breaches were not wilful or negligent violations of his rights, thereby falling on the lower scale of seriousness and attenuating in favour of admission of the evidence. However, the trial judge determined the severity of the breach on the basis that Cst. Ethier had a reasonable suspicion sufficient to detain Mr. Sabiston for possession of stolen property.

In light of my determination that was an error, I am of the view that the breaches here were on the more serious end of the spectrum, as they were not inadvertent, technical or minor. I will explain. [ 51 ] Cst. Ethier and Cst. Dods were experienced officers. Both knew Mr. Sabiston. The officers approached Mr.

Sabiston on the day in question and arrested him without reasonable grounds, and without even meeting the lesser standard of having an objectively reasonable suspicion that he was in possession of stolen property (on the lower standard, as distinct from reasonable grounds, see R v Savage , 2011 SKCA 65 at para 18 , 371 Sask R 283; Chapman at para 80 ; Chehil at paras 27 and 47 ). While Cst. Ethier gave evidence that he believed the bullet-proof vest to be stolen, neither he nor Cst. Dods testified as to the content of Mr. Sabiston’s criminal record, or that they knew Mr.

Sabiston to have a history of property-based criminality. As previously noted, there were no reports at the time that Mr. Sabiston had been involved in such criminality or that bullet-proof vests had been stolen. In light of this, it is my view that the officers placed undue weight on Mr. Sabiston being a known gang member who was walking in a high crime area.

[ 52 ] While the trial judge found that the police did not act improperly, I note that an officer cannot be said to be acting in good faith if “the Charter breach arises from a police officer’s negligence, unreasonable error, ignorance as to the scope of their authority, or ignorance of Charter standards” and that “[e]ven where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct” ( Tim at para 85 , citing R v Paterson , 2017 SCC 15 , [2017] 1 SCR 202 [ Paterson ], Harrison and Le ).

In my respectful view, the breaches were, taken in their best light, negligent – and at worst, the result of ignorance as to Charter standards. This is so given the heavy reliance by the officers on who Mr. Sabiston was, and where he was, at the time of his arrest. [ 53 ] In

summary, I find the breaches are on the serious end of the spectrum and representative of a marked departure from Charter standards. This branch of Grant weighs in favour of exclusion of the evidence. b. Stage two: impact of the breaches on Mr. Sabiston [ 54 ] The second stage of the Grant analysis involves consideration of the impact of the breach upon Mr. Sabiston. Tim summarized the relevant considerations at this stage as follows (mirrored in Beaver ): [90] The second line of inquiry under s. 24(2) considers the impact of the breach on the accused’s Charter -protected interests.

It asks whether the breach “actually undermined the interests protected by the right infringed” ( Grant , at para. 76 ; Le , at para. 151). This involves identifying the interests protected by the relevant Charter rights and evaluating how seriously the breaches affected those interests (see Grant , at para. 77 ).

As with the first Grant line of inquiry, the court must situate the impact on the accused’s Charter -protected interests on a spectrum, ranging from impacts that are fleeting, technical, transient, or trivial, to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed. The greater the impact on Charter -protected interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

This is because “admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute” ( Grant , at para. 76 ; see also Le , at para. 151; Harrison , at para. 28). [ 55 ] Mr. Sabiston’s s. 8 and s. 9 Charter rights were breached.

Section 9 protects “individual liberty from unjustified state interference” ( Tim at para 91 , citing Grant at para 20, Le at para 152), while s. 8 protects “individual privacy and human dignity” ( Tim at para 91 , citing Grant at para 78 , R v Cole , 2012 SCC 53 at para 91 , [2012] 3 SCR 34). The trial judge found the breaches had a “significant” impact on Mr.

Sabiston, given his arrest, subsequent search and detention, but that the impact was attenuated somewhat by the discoverability of the firearm, based on her finding that the officers had a reasonable suspicion that the bullet-proof vest was stolen. [ 56 ] I agree with the trial judge that the breaches were significant and substantially intrusive for Mr. Sabiston, but even more so than she found, as she considered the impact of the breach on the erroneous basis that Cst. Ethier could have discovered the firearm through a legal detention.

I have concluded that the only basis to discover the firearm would have been through a breach of Mr. Sabiston’s Charter rights. Therefore, the fact that the evidence was not discoverable aggravates the significance of the breaches to Mr. Sabiston ( Grant at para 137 ). I am accordingly of the view that the breaches were not transient, nor trivial, and that they profoundly impacted Mr. Sabiston, as there was no basis for his lawful detention or arrest. This branch of the Grant test weighs in favour of exclusion of the evidence. c.

Stage three: society’s interest in a determination on the merits [ 57 ] In the third branch of Grant , society’s interest in the matter being determined on its merits, the question is “whether the truth- seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion ( Grant at para 79 ; see also Tim at para 96, Beaver at para 129).

Relevant to the analysis is “ the reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of the offence at issue ( Beaver at para 129 , citing Grant at paras 79–84 , Harrison at para 33, Côté at para 47 , Paterson at paras 51–52 ). [ 58 ] In considering the third branch of Grant in this case, I agree with the trial judge that the firearm was reliable and crucial to the Crown’s case. In fact, the entirety of the Crown’s case turned on its admission. I acknowledge firearms offences such as these are serious.

On its face, the truth-seeking function of the trial process is served best by admission of the firearm. This branch of the Grant analysis weighs in favour of admission of the evidence. d. Final balancing [ 59 ] I now turn to the final balancing exercise in the s. 24(2) analysis, described in this way in Tim : [98] The final step in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice.

Such balancing involves a qualitative exercise, one that is not capable of mathematical precision (see Grant , at paras. 86 and 140 ; Harrison , at para. 36). Each factor must be assessed and weighed in the balance, focussing on the long-term integrity of, and public confidence in, the administration of justice (see Grant , at para. 68 ). The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach “does not do further damage to the repute of the justice system” ( Grant , at para. 69 ).

The balancing is also societal: the goal is not to punish the police, but rather to address systemic concerns by analyzing “the broad impact of admission of the evidence on the long-term repute of the justice system” ( Grant , at para. 70 ; see also Le , at para. 139). [ 60 ] In Mr. Sabiston’s case, the first and second stages of the Grant analysis weigh strongly in favour of exclusion of the evidence, and the third weighs strongly in favour of admission.

Beaver spoke to this type of circumstance in the final weighing exercise in this fashion: [134] When undertaking this weighing exercise, “it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry” ( Lafrance , at para. 90 (emphasis in original)). “[W]hen the two first lines, taken together, make a strong case for exclusion”, the third line of inquiry “will seldom tip the scale in favour of admissibility” ( Lafrance ,

at para. 90). The third line of inquiry “becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence” ( R. v. McGuffie , 2016 ONCA 365 , 131 O.R. (3d) 643, at para. 63 , per Doherty J.A.; see also R. v. Chapman , 2020 SKCA 11 , 386 C.C.C. (3d) 24, at paras. 125-26 and 130 ). It is possible that admitting evidence obtained by particularly serious Charter -infringing conduct will bring the administration of justice into disrepute, even if the conduct did not have a serious impact on the accused’s Charter -protected interests ( Le , at para. 141).

But where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission . (Emphasis added) [ 61 ] As to when the third branch of Grant will “tip the balance” in favour of admitting the evidence, Barrington-Foote J.A. in Lichtenwald emphasized that the question in the final balancing “remains the impact of inclusion or exclusion on the repute of justice, and the answer to that question turns on all of the circumstances” (at para 74). [ 62 ] Undeniably, the serious nature of firearms offences weighed prominently in the trial judge’s final balancing.

The question that arises is whether the fact that the evidence at issue relates to possession of a firearm – and in particular, to a prohibited firearm found in the possession of a person subject to a firearms prohibition – changes the nature of the Grant enquiry.

That issue was addressed in Lichtenwald , where Barrington-Foote J.A. – referring to the Supreme Court’s decision in R v Omar , 2019 SCC 32 , [2019] 2 SCR 576 [ Omar ], which had adopted the dissenting opinion of Brown J.A. of the Ontario Court of Appeal – confirmed that there is “no ‘firearms exception’ requiring that guns obtained in breach of Charter rights be admitted into evidence”, and that “[t]he analytical framework prescribed by Grant enables the court to deal with evidence relating to illegal guns without losing sight of the purpose of s. 24(2)” (at para 80). [ 63 ] The holding in Omar , echoed in Lichtenwald , has been adopted subsequently by other courts in the s. 24(2) analysis (see for example R v Tim , 2020 ABCA 469 , 397 CCC (3d) 163, affirmed 2022 SCC 12 , 412 CCC (3d) 147).

I similarly adopt it. A firearm has no presumptively unique or transcendent status in the s. 24(2) analysis. The Grant framework inherently accounts for the seriousness of the firearm-related offences, as well as in this instance, a contextualization of Mr. Sabiston’s case in the larger consideration of the long-term repute of the justice system. [ 64 ] Applying the above principles to the final balancing, given the serious nature of the breaches, and their significant impact on Mr. Sabiston, I find that the third branch of Grant does not tip the balance in favour of admission of the firearm.

In considering the prospective, societal-focused aspect of this exercise, I find that exclusion of the firearm from evidence is in the interests of the long-term integrity of and public confidence in the administration of justice. That this was a prohibited firearm, and that Mr. Sabiston was subject to a weapons prohibition, must be balanced against the reality that the officers had no lawful basis to detain or arrest Mr. Sabiston and that these were serious Charter breaches that profoundly impacted him.

In these circumstances, admission of the evidence of the firearm would have a detrimental impact on the repute of justice. [ 65 ] In concluding this, I note that “[w]hile police are not expected to engage in judicial type reflection on conflicting precedents, they are rightly expected to know what the law is” ( Tim at para 30 , citing Grant at para 133, Le at para 149; see also Kosoian v Soci ét é de transport de Montr éal , 2019 SCC 59 at para 6 , [2019] 4 SCR 335).

The public must have confidence that police are properly informed as to the grounds for arrest and detention, and do not act on the mere suspicion or hunches prohibited by Chehil and MacKenzie . In my respectful opinion, that is what occurred in this case.

In particular, for the reasons explained in Chehil , it is important that factors such as gang affiliation and the nature of the neighbourhood – the relevance of which, as this case demonstrates, is case specific – do not operate in a stereotypical or discriminatory fashion, undermining the requirement to undertake “a careful individualized assessment of the totality of the circumstances” ( Chehil at para 40 ). [ 66 ] In the result, I would exclude the firearm from evidence. V. CONCLUSION AND REMEDY [ 67 ] I turn now to the remedy on this matter. Mr.

Sabiston has asked this Court to quash his convictions and enter an acquittal. [ 68 ] In considering whether to enter an acquittal or remit a matter for a new trial pursuant to s. 686(2) of the Criminal Code , the question for an appellate court is “ whether, based on all of the information now available, it is clearly more probable than not that the accused would be acquitted at a hypothetical new trial” (R v Ostrowski , 2018 MBCA 125 at para 41 , 369 CCC (3d) 139 , citing Truscott (Re) , 2007 ONCA 575 at para 268 , 225 CCC (3d) 321 ).

An appellate court “ must enter an acquittal if it is satisfied, based on the trial record as augmented by the fresh evidence, that no reasonable jury could convict” ( Ostrowski at para 26 , emphasis added). [ 69 ] Here, given the nature of the Charter breaches and the resulting exclusion of the firearm from evidence, there remains no prospect of Mr. Sabiston’s conviction at a retrial. While other evidence was called at trial, I do not see any of this supporting a conviction absent the admission of the firearm. I note as well that Mr.

Sabiston had served the custodial portion of his sentence by the time the appeal was heard. [ 70 ] On that basis, pursuant to s. 686(2) (

a) of the Criminal Code , I would allow Mr. Sabiston’s appeal, set aside his conviction, and enter an acquittal in respect of all matters. “Drennan J.A.” Drennan J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.

Tholl J.A. (in dissent) I. INTRODUCTION [ 71 ] Stuart Sabiston was convicted of firearm offences after the police discovered a sawed-off shotgun in his backpack when they arrested him for possession of stolen property. At trial, he successfully established that the arrest and search violated s. 8 and s. 9 of the Charter . However, the trial judge declined to exclude the firearm from evidence under s. 24(2) of the Charter , and he was convicted. [ 72 ] Mr. Sabiston appeals from his convictions and his sentence. He asserts that the trial judge erred in not excluding the shotgun from evidence.

He argues that she failed to properly assess the seriousness of the Charter -infringing conduct and the impact of the breaches, which caused her to erroneously determine that the firearm should not be excluded. Regarding sentence, Mr. Sabiston contends that the trial judge erred by failing to consider the Charter breaches as a factor in determining the appropriate sentence. [ 73 ] With the greatest of respect, I find myself unable to agree with my colleagues in the matter regarding the exclusion of the evidence under s. 24(2) of the Charter .

In my view, the appeal from both conviction and sentence should be dismissed. II. BACKGROUND [ 74 ] On July 23, 2019, Mr. Sabiston was walking down an alley in Regina. Constable Steven Dods noticed Mr. Sabiston, recognized him, and contacted Cst. Joshua Ethier, who was nearby in another vehicle. Both constables are members of the Regina Police Service [RPS] and were assigned to the street gang unit. Part of their duties included interacting with gang members or associates for the purposes of gathering intelligence. Mr. Sabiston was known to both police officers to be connected to a gang in Regina.

In response to Cst. Dods’s communication, Cst. Ethier parked his vehicle in the alley, exited it, and called out to Mr. Sabiston with the intention of engaging him in conversation. As Mr. Sabiston approached him, Cst. Ethier noticed that he was shirtless but was wearing a bullet-proof vest that he believed was identical to those worn by RPS members. He concluded that the vest must be stolen and immediately arrested Mr. Sabiston for possession of stolen property. Constable Dods was at the scene by that point. [ 75 ] After arresting Mr. Sabiston, Cst. Ethier did a pat-down search and located a folding knife in Mr.

Sabiston’s pocket. Constable Ethier told him that he was under arrest for carrying a concealed weapon. Mr. Sabiston responded that the knife was not the only weapon he had and divulged that there was a “sawed-off” in his backpack. Upon searching the backpack, the officers located a loaded sawed-off shotgun. Mr. Sabiston was then arrested for the possession of the firearm and charged with several firearm-related offences. While he was also initially charged with possession of stolen property related to the vest, the Crown entered a stay of proceedings in relation to that charge. III. VOIR DIRE AND TRIAL A.

Relevant voir dire testimony [ 76 ] Mr. Sabiston filed a Charter application that sought, inter alia , the exclusion of the shotgun from evidence based on alleged violations of s. 8 and s. 9 of the Charter : Search or seizure 8 Everyone has the right to be secure against unreasonable search or seizure. Detention or imprisonment 9 Everyone has the right not to be arbitrarily detained or imprisoned. [ 77 ] A voir dire was held at which Cst. Ethier, Cst. Dods, another RPS member, and a civilian RPS employee testified. Constable Ethier testified that, as Mr. Sabiston walked towards him, he initially thought Mr.

Sabiston was wearing a sleeveless shirt, but as he got closer, Cst. Ethier observed that it was a bullet-proof vest. It was identical to the ones used by RPS members and deputy sheriffs in Regina. Constable Ethier had never previously seen a civilian walking around in a bullet-proof vest and was somewhat taken aback by seeing a person who he knew to have a criminal history and gang affiliations wearing one. He immediately formed the belief that the vest was stolen and arrested Mr. Sabiston for the possession of stolen property. In his testimony, Cst.

Ethier described the process by which he formed that belief: And then the next words were in my mind, because I remember he turned around, started walking, and it took maybe a house for him to get close enough to me to recognize. So he was still maybe, say, 20 feet away from me. And as he got closer, I -- that’s a bullet-proof vest. And as he got closer and closer, I was like, He’s -- you know, that’s all he’s got on for a shirt, and I was like, That looks like one of ours. And just kind of as he progressively got closer, my mind kind of started spinning a little bit. Why do you have a vest on?

You know, what -- you know, what other things do you have with you? What concerns do I have as an officer for my safety, that -- you’re so worried about your safety that you’ve got a vest on. So just those thoughts that are going through my head. It was clear it was a stolen -- like, to me, it was clear it was stolen property. And by the time he got within probably 6 to 10 feet, told him - - you know, I’d formed my grounds in my head that he was arrestable, and I told him he was under arrest. [ 78 ] In cross-examination, Cst. Ethier further described the reasons why he believed the vest was stolen property:

Q [THE ACCUSED (Mr. Sabiston, self-represented)]: … The body armour I was wearing, why did you assume it was stolen? A That’s -- a variety of reasons. It’s identical to our body armour. It’s identical to the sheriff’s office body armour. To my knowledge, there isn’t anywhere in the city that you can just go and buy it, that I’m aware of. It’s -- it was unusual behaviour on someone that I know has a history of criminality, walking in an area frequented by gang associates and gang violence.

You put all those kind of pieces together, the black bandana hanging out of the pocket -- when we -- when we saw you, putting all those pieces together, to me, formed that opinion that in my mind, I had reasonable grounds to believe that that was stolen property. … THE ACCUSED: It’s just that you can buy the exact vest … anywhere. … A … Yeah. And -- and that -- it certainly is something that had entered my mind as you can buy anything on the internet, right? Like, it’s pretty hard to not be able to find something on the internet nowadays that you can’t buy and have shipped home.

But it was the totality of the -- like, the events that were -- and the signs that kind of surrounded it that formed in my mind as to reasonable grounds to believe. [ 79 ] Constable Dods had also never seen a civilian on the street with a bullet-proof vest in his 12 years of policing. In his observation, the vest was the same as those used by law-enforcement personnel in Regina. [ 80 ] After the initial arrest, Cst. Ethier and Cst. Dods conducted a quick pat-down search and discovered a folding knife in Mr. Sabiston’s pants pocket. At that point, Cst. Dods reminded Mr.

Sabiston that he was prohibited from carrying weapons, and he was re- arrested for carrying the knife in a concealed manner. Mr. Sabiston then divulged that he had a firearm in his backpack, which, after it was found, led to him being arrested a third time in the span of a few moments. [ 81 ] There had been no reports of a stolen, bullet-proof vest in Regina at the time, and there was ultimately no evidence that the one worn by Mr. Sabiston was not legally obtained. In cross-examination, Cst.

Ethier testified that he did not believe that a person could buy bullet-proof vests on the open market, but he acknowledged that he had never tried to do so and agreed it was possible that such a thing might be available for purchase on the internet. [ 82 ] At different times in his testimony, Cst. Ethier provided the reason for why he searched Mr. Sabiston immediately upon arresting him for possession of stolen property. That testimony consisted of the following exchange: A So, yeah.

As far as, like, the grounds to search, I, like, arrested him for possession of the stolen property and then searching him incident to arrest for, you know, whether there is evidence to support that it is stolen property, locating the -- the knife on him. And then just for further, I guess -- further weapons or anything like that, should be in his backpack. But knew he was prohibited with firearms and weapons. … A I grabbed one arm, Constable Dods grabbed the other. I couldn’t tell you which arm I grabbed. Concern was flight. He might take off and run.

Potential weapons; it’s, like, we’re alone in an alley with him. So just common practice to -- to get people in handcuffs once they’re arrestable, put them in handcuffs for, well, our safety, for their safety, and just safety in general, right? So I remember Constable Dods was handcuffing him behind his back. I was searching him kind of officer safety/incident to arrest. I located the folding knife in his pocket; it was concealed. … … Q THE ACCUSED: When you arrested me for the vest, why did you start patting down my pockets and searching them? A It’s just officer safety.

It’s common -- like, it’s just what we do, right? It’s to make sure that we’re safe. Once someone’s under arrest, they’re immediately kind of patted down and -- for officer safety reasons. Q Okay. It wasn’t for -- it wasn’t incident (INDISCERNIBLE) looking for further stolen property in my pockets? A The initial pat-down, no. The initial pat-down was -- my -- my sole intention - - whenever we make that arrest, right, is the quick pat-down to make sure that there aren’t any immediate weapons or tools for escape, you know, just items that could potentially harm myself or my partner.

Once that is complete, then -- you know, then the search incident to arrest would -- would occur. But that first initial pat-down, it’s -- it’s quick. It’s all about just that immediate officer safety reason. [ 83 ] Constable Dods also testified that the initial search of Mr. Sabiston, after his arrest for possession of stolen property, was cursory and was done for officer safety reasons. [ 84 ] The evidence was uncontroverted that the arrests of Mr. Sabiston were conducted with minimal force and without incident. The

officers were polite and professional. At the same time, Mr. Sabiston was fully cooperative. B. Voir Dire decision [ 85 ] The decision on the voir dire addressed numerous Charter issues raised by Mr. Sabiston: R v Sabiston (14 February 2020) Regina, Provincial Court (Sask) [ Voir Dire Decision ]. For the purposes of this appeal, it is only necessary to summarize the portions that relate to s. 8 and s. 9 of the Charter . After setting out the relief sought by Mr. Sabiston, the trial judge framed the issues and summarized the evidence.

She found that the officers were not aggressive and that the initial pat-down search was done for the purposes of officer safety. After addressing the other issues, the trial judge turned to the validity of the arrest and the overlapping s. 8 and s. 9 Charter challenges. She referred to R v Chapman , 2020 SKCA 11 , 386 CCC (3d) 24, for the proposition that the burden was on the Crown to prove that the warrantless arrest was lawful.

She further observed that s. 495 of the Criminal Code provides authority for a lawful warrantless arrest, noting that the arresting officer must subjectively believe the accused was committing an indictable offence and their grounds for that belief must also be objectively reasonable. [ 86 ] The trial judge canvassed the law regarding this latter proposition – as well as the law regarding when a detention may be justified on the basis of a reasonable suspicion as opposed to a reasonable belief – as set out in Chapman ; R v Shinkewski , 2012 SKCA 63 , 289 CCC (3d) 145; R v Mann , 2004 SCC 52 , [2004] 3 SCR 59; R v Chehil , 2013 SCC 49 , [2013] 3 SCR 220; R v MacKenzie , 2013 SCC 50 , [2013] 3 SCR 250; and R v Yeh , 2009 SKCA 112 , 248 CCC (3d) 125.

After doing so, she found breaches of s. 8 and s. 9 of the Charter ( Voir Dire Decision ): Now, Constable Ethier subjectively believed that the vest was stolen as he believed such vests could not be purchased in Regina, it was identical to RPS-issued vests, and Mr. Sabiston was known to be a gang member. The officers had received no complaint of such vest having been stolen. So I find that although Constable Ethier honestly believed that the vest was stolen, the circumstances fell short of providing an objectively reasonable basis to arrest Mr. Sabiston for possessing a stolen bullet-proof vest.

However, I find that he had grounds, that is the officer had grounds, to reasonably suspect the vest to be stolen and was acting on more than a hunch or generalized suspicions. He therefore would have had the right to detain Mr. Sabiston for investigation purposes, but that’s not what Constable Ethier did; he invoked the statutory power of arrest. The BC Court of Appeal in R. v. Whitaker , 2008 BCCA 174 , at paragraph 65 , stated that: (as read) In deciding whether the police infringed Charter rights, they are to be judged on what they did, not what they could have done.

Therefore, as Constable Ethier did not have grounds to arrest Mr. Sabiston, I find that the accused’s rights under

Section 9 of the Charter was breached. Now, the final issue relating to breaches is whether the searches of Mr. Sabiston and his backpack were authorized by law. So if Mr. Sabiston’s arrest had been lawful, the pat-down search for officer safety would have been lawful. Mr. Sabiston volunteered that he had another prohibited weapon in his possession after the police found the folding knife. They therefore had the right to conduct a further search for reasons of officer safety. However, I found that Mr. Sabiston’s arrest was not lawful.

It is well-settled law that a reasonable search must be conducted incident to a lawful arrest, so as the arrest was not lawful, neither were the searches. [ 87 ] Having found violations of s. 8 and s. 9, the trial judge turned to an examination of whether the evidence should be excluded under s. 24(2) of the Charter . That

section is as follows: Exclusion of evidence bringing administration of justice into disrepute 24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 88 ] The trial judge applied the well-known, three-part balancing test from R v Grant , 2009 SCC 32 , [2009] 2 SCR 353, and determined that the evidence should not be excluded.

Because this portion of the Voir Dire Decision grounds the whole of the conviction appeal, I will reproduce it in its entirety: The first line of inquiry is the seriousness of the Charter -infringing state conduct. The first point under this inquiry is that at this stage, the Court has to look at the nature of the police conduct that infringed the Charter . The Court also has to look at whether the admission of the evidence may send the message that the justice system condones serious state misconduct and thereby undermined public confidence in the administration of justice.

The more severe or deliberate the infringing conduct, the more the Courts need to disassociate themselves from it by excluding the linked evidence. If the conduct of the officers was wilful or was a reckless disregard for Charter rights, it will be a more serious violation and will have a negative effect on the public confidence in the rule of law. If there is a need to prevent the disappearance of evidence or there is good faith on the part of the officers, this may mitigate the need for disassociation from the police conduct.

If the breach was merely technical in nature or resulted from an understandable mistake, the Court will not have to be as concerned with disassociation. The absence of bad faith does not presume -- presumptively lead to a finding that the police acted in good faith. In the case before me, Constable Ethier subjectively and honestly believed that he had a reasonable -- or, sorry -- that he had reasonable and probable grounds to arrest Mr. Sabiston.

As the Court stated in the Chapman decision at paragraph 105 , and I quote: (as read) While “reasonable grounds to believe” is a well-defined legal standard, it is also a standard [where] 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 short of meeting the necessary mark, that may tend to situate the Charter -infringing conduct at the lower end of the fault spectrum.

Now, the Court went on to say at paragraph 107 that recognizing whether the reasonable grounds to believe standard has been met has notalways been easy. Constable Ethier did not interact with Mr. Sabiston for an improper purpose. He had reason to conduct furtherinvestigation when he saw Mr. Sabiston wearing the bullet-proof vest. As I had previously stated, Constable Ethier had a reasonablesuspicion that Mr. Sabiston was committing the crime for which he was arrested, and could have detained Mr. Sabiston for furtherinvestigation and searched for officer safety. The search of Mr.

Sabiston was no more than was necessary for officer safety, and Mr. Sabiston was not mistreated. I find that theSections 8 and 9 breaches were not wilful or even negligent violations of Mr. Sabiston’s rights. They fall at the lower end of the scale ofseriousness. The analysis of this first factor then weighs in favour of admission of the evidence. The second line of inquiry is the impact of the breach on the Charter-protected interests of the accused. The Court has to ensure thatadmission does not send the message that individual rights count for little.

This is an evaluation of the extent to which the breach actuallyundermined the interests protected by the infringed right and focusses on the seriousness of the impact of the breach on the Charter-protected interests of the accused. The more serious the infringement on the individual’s rights or freedoms, the greater the right of the --that the admission of the evidence would bring the administrati

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