Mar 17, 2014

Summary of R. v. Gill

R. v. Gill, 2008 SKQB 445 (CanLII)
The accused was stopped and a warrantless search of his vehicle turned up approximately 16 ounces of crack cocaine, six ounces of soft cocaine, about $1,000 in cash and a loaded handgun. The accused seeks to exclude the evidence on the ground that the search was illegal. This is the judgment on the voir dire. The issues on the motion to exclude are: were there reasonable and probable grounds to arrest the accused, was the search of the vehicle unlawful because the officer's failed to get a search warrant and if the search was unlawful, what is the appropriate remedy.HELD: The protection of the reputation of the justice system requires that this Court disassociate itself from the excesses of the state. The applicant's motion is granted. The evidence obtained by the search of the accused's vehicle is excluded. 1) Constable Schukin testified he believed that the accused was involved in drug trafficking, had gone to Edmonton to buy drugs, bought drugs in the parking lot of the mall and was bringing cocaine back to Saskatoon for resale. Schukin's actions bear this out. Within an hour of the accused meeting with the unknown person in the mall parking lot, Schukin arranged for a team of Saskatoon police officers to be dispatched to Lloydminster to follow the accused back to Saskatoon. Schukin would not have gone to such lengths if he did not subjectively believe the accused had bought drugs. Schukin arrested the accused for trafficking in cocaine immediately upon speaking with him on the outskirts of Saskatoon, before questioning him and before searching the vehicle. Schukin's conduct is sufficient to establish that he believed there was reasonable and probable cause to arrest the accused. 2) Officer Schukin's testimony left the Court with some doubt as to whether 'the objectively discernable facts' were accurately related to the Court. The overzealousness he exhibited as a police officer sometimes spilled over from the street onto the witness stand. He was prone to overstatement. At times he promoted conclusions for which there was little or no factual foundation. 3) Although the sources relied upon by Schukin were of unproven reliability, the 'tip' was lacking in specificity and the result of the surveillance were equivocal, the individual components ought not to be viewed in isolation and simply discarded one by one. However, there was no single event or factor that was sufficiently strong or unequivocal to warrant according the whole of the sequence greater weight than the sum of its parts. It might have been different if there had been a credible tip with sufficient specificity to indicate that the purpose of this particular trip to Edmonton was to purchase cocaine or if the Crown had proved that the man the accused met with in Saskatoon was a person known to be involved in drug activity. All that followed in Edmonton would have take on greater significance if the Crown had proved that the man the accused met with in the Mall parking lot was known to be involved in drug trafficking. All of that which transpired before and after could be viewed in a different light. With no credible evidence to link the accused or anyone with whom he associated to drug trafficking, the sequence of events does not rise above mere possibility or suspicion. The Crown has not proven reasonable and probable ground to arrest the accused. The search was not lawful. 4) There was a delay of nine hours between the time that, according to Schukin, reasonable and probable grounds first existed and the time of the arrest and search. It is not the passage of time per se that is relevant, but the failure of the police to obtain a warrant when there were clearly many opportunities to do so. The question is whether that failure is sufficient to take the search beyond the justifiable scope of the power to search incident to arrest. The power of search incident to arrest is an exception to Hunter v. Southam Inc., [1984] 2 S.C.R. 145 because the need to exercise that power to ensure that law enforcement officials are not hobbled such that the ends of criminal justice cannot be met efficiently and effectively. Here, however, no credible 'need' was demonstrated tipping the balance in favour of protecting the accused's privacy interests. If one accepts Schukin's assertion that he was certain the accused purchased cocaine in the mall parking lot at 1:30 p.m., then he had reasonable and probable ground at that moment to arrest the accused. Rather than arrest, however, the accused was permitted to roam freely about Edmonton, transfer his luggage to and from a house, go for lunch and travel the highways of Alberta and Saskatchewan. The Court cannot fathom how giving the accused so much time and so many opportunities to dispose of the cocaine could possibly further the public interest in convicting drug traffickers and no explanation was offered by the Crown. The Court can only infer that Schukin did not consider immediate arrest to be necessary to effective law enforcement and the need to gain control of the evidence was so low that he could give the accused free rein so that he could arrest the accused on the Saskatoon Police Service's home turf. The power of search incident to arrest is a narrow exception to the need for prior authorization that is intended to accommodate 'the realities and difficulties of law enforcement' (R. v. Golden, 2001 SCC 83) not lame excuses and the inexplicable failure to obtain a search warrant when there is ample opportunity to obtain one. Even factoring in the accused's lower expectation of privacy in his vehicle, the Court concludes that the police cannot be allowed here to rely on the powers of search incident to arrest where it is their own unexplained choices that created the 'need' at the time of arrest. Were it otherwise, as noted in Forest J.'s dissent in R. v. Silveira, [1995] 2 S.C.R. 297, the police would have 'little incentive to acquire a warrant in advance'. 5) Schukin was obliged to quit questioning the accused once the accused indicated that he wished to speak with a lawyer, instead, he asked the accused to tell him where the drugs were. The second violation occurred after the accused was handcuffed, confined to the back of a police car and put in Constable Pura's charge. Her flagrant violation of the accused's s. 10(b) Charter rights is startling. If Pura is to be believed, it is standard practice in the Saskatoon Police Service to violate the rights of an accused person by ignoring their duty to cease questioning them after the Charter right to speak with counsel has been invoked. The third violation of the accused's s. 10(b) rights occurred the next day, when Schukin met with the accused in the cells. Schukin read the accused additional charges relating to the gun that was found in his vehicle. He then read the accused his rights and asked if he wished to call his lawyer, who Schukin knew to be Mr. Stooshinoff. After phoning the lawyer's office and getting no answer (it was after 5 p.m.), Schukin continued to question the accused in the hope of getting more information and pursue other avenues of investigation. The Court cannot accept that Schukin and Pura were unaware of their duty to cease questioning the accused once he had invoked his Charter right to speak with counsel. Rather they feigned ignorance of the law in an attempt to justify their actions. By defending their actions beyond reason, they compounded the seriousness of the breach. 6) The Court finds the breach of s. 8 of the Charter to be exceedingly serious. The arrest was grounded on suspicion. There was a lack of good faith on the part of the police officers evidence not only by their failure to consider alternate methods by which to effect the search, but by Schukin continuing to question the accused after he had invoked his right to counsel. Their violation of the accused's s. 10(b) Charter rights was part of a continuing pattern of disregard for his right that 'further aggravates the seriousness of the s. 8 Charter breach'. If the evidence gained through the search in this case is excluded, it is most likely that the accused will not be convicted of what are very serious offences that he was in possession of a loaded handgun and a large amount of cocaine, most of it crack cocaine. The seriousness of the offence however, should seldom serve as the sole basis for admitting evidence obtained through bad faith or a serious violation of the accused's constitutional rights. The failure to obtain a warrant in these circumstances is unacceptable. Schukin's and Pura's flagrant and repeated violation of the accused's s. 10(b) Charter rights is unacceptable. The Court cannot disregard the officer's disingenuous attempts under oath to justify their actions. Police officers cannot allow the nature of their testimony under oath to be affected by the desire to obtain the conviction of a factually guilty person. Though perfection is not to be expected, police officers must at least strive to be absolutely candid before the Court. To expect less would bring the administration of justice into disrepute. To condone the officer's failure to obtain a search warrant and to be entirely candid with the Court would serve to greatly undermine confidence in the administration of justice.