R. v. Savage (M.R.),

R. v. Savage (M.R.) (2009), 368 Sask.R. 199 (PC)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. MR.021

Her Majesty The Queen v. Michael Robert Savage

(24274271; 2009 SKPC 145)

Indexed As: R. v. Savage (M.R.)

Saskatchewan Provincial Court

Gordon, P.C.J.

December 22, 2009.

Summary:

Police engaged in traffic duties stopped the accused's vehicle for travelling 116 kmph in a 110 kmph zone. The officers conducted an investigative detention for suspicion of transporting drugs. The suspicion was based on their observations (air freshener, nervous accused, cluttered vehicle, etc.) and the results of a CPIC check revealing a criminal record involving drug offences (18 years in past). A search of the vehicle yielded four pounds of marijuana. The accused alleged an arbitrary detention (Charter, s. 9) and an unreasonable search and seizure (s. 8) and sought exclusion of the evidence under s. 24(2).

The Saskatchewan Provincial Court held that the accused was arbitrarily detained and subjected to an unreasonable search and seizure, as the police lacked any objective reasonable suspicion to believe that the accused was transporting drugs. The court excluded the evidence under s. 24(2) of the Charter.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Police performing traffic duties stopped the accused's vehicle for travelling 116 kmph in a 110 kmph zone - After dealing with the traffic matter, the officers detained the accused for investigative purposes after reasonably suspecting that he was transporting drugs - Their alleged reasonable suspicion was based on their observations (air freshener, nervous accused, cluttered vehicle, etc.) and the results of a CPIC check revealing that the accused had convictions for drug offences 18 years earlier - One officer conceded a lack of reasonable grounds to detain for investigative purposes until the CPIC search disclosed the prior drug-related convictions - A search of the vehicle yielded four pounds of marijuana - The accused alleged an arbitrary detention (Charter, s. 9) and an unreasonable search and seizure (s. 8) and sought exclusion of the evidence under s. 24(2) - The Saskatchewan Provincial Court held that the accused was arbitrarily detained and subjected to an unreasonable search and seizure, because the police lacked an objectively reasonable suspicion to believe that the accused was transporting drugs - The evidence did not establish a sufficiently strong basis for believing that the accused might be involved in criminal activity, as opposed to a "hunch" - The indicators relied on, viewed individually, were innocuous - None of the usual indicators such as a third party vehicle, cellphones, pagers, or drug paraphernalia, were present - The accused was not known to the police and the drug-related conviction was stale-dated - Nervousness when stopped by police was not necessarily indicative of criminal behaviour - The court excluded the evidence under s. 24(2) of the Charter to avoid bringing the administration of justice into disrepute - See paragraphs 22 to 91.

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1646 ].

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See Civil Rights - Topic 1646 ].

Cases Noticed:

R. v. Bramley (R.L.) et al. (2009), 324 Sask.R. 286; 451 W.A.C. 286; 2009 SKCA 49, refd to. [para. 27].

R. v. Houben (K.) (2006), 289 Sask.R. 118; 382 W.A.C. 118; 2006 SKCA 129, refd to. [para. 29].

R. v. Mann (P.H.), [2004]3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 31].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 12 O.R.(3d) 182 (C.A.), refd to. [para. 32].

R. v. Nguyen (H.Q.) et al. (2008), 324 Sask.R. 1; 451 W.A.C. 1; 2008 SKCA 160, refd to. [para. 38].

R. v. Yeh (K.-P.T.) (2009), 337 Sask.R. 1; 464 W.A.C. 1; 248 C.C.C.(3d) 125; 2009 SKCA 112, refd to. [para. 39].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), refd to. [para. 41].

R. v. Calderon, [2004] O.J. No. 3474 (C.A.), refd to. [para. 43].

R. v. Evans (C.R.) et al. (1996), 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81; 104 C.C.C.(3d) 23 (S.C.C.), refd to. [para. 47].

R. v. Kang-Brown (G.) (2008), 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1 (S.C.C.), refd to. [para. 48].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 49].

R. v. McKenzie (B.C.) (2009), 342 Sask.R. 281; 2009 SKQB 415, refd to. [para. 50].

R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267, refd to. [para. 50].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1, refd to. [para. 51].

R. v. Tran (L.V.) (2008), 447 A.R. 282; 2008 ABQB 452, refd to. [para. 62].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 68].

R. v. Harrison (B.) (2009), 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 68].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 69].

R. v. Sandhu (A.S.), [2009] O.T.C. Uned. N89; 2009 CarswellOnt 5750 (Sup. Ct.), refd to. [para. 72].

Counsel:

Suzanne Young, for the Crown;

Darin Chow, Q.C., for the accused.

This voir dire was held at Moose Jaw, Saskatchewan, before Gordon, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on December 22, 2009.