Digest: R v Kossick, 2018 SKCA 55

• Date: July 18, 2019

Reported as: 2018 SKCA 55

Docket Number: CACR 3004 , CA17166

Court: Court of Appeal

Date: 2019-07-18

Judges:

• Caldwell
• Herauf
• Ryan-Froslie

Subjects:

• Constitutional Law � Charter of Rights, Section 8, Section 9, Section 24(2) � Appeal

Digest: The Crown appealed the acquittal of the respondent on charges of possession of methamphetamine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and other related charges. In a voir dire, the Provincial Court judge found that police had violated the respondent�s ss. 8 and 9 Charter rights and excluded certain evidence pursuant to s. 24(2) of the Charter. In the trial proper, the judge found the remaining evidence insufficient to establish the respondent�s guilt and entered acquittals (see: 2017 SKPC 67). The grounds of appeal were whether the trial judge erred by: 1) finding the arrest of the respondent to be unlawful. The judge found that the officer had had subjectively reasonable grounds to arrest the respondent but that his belief was not objectively reasonable because he had not taken the time to check the police�s SIMS database. He failed to find the correct information about the warrant and the arrest was thus unlawful. The Crown argued that judge relied only on R v Shinkewski for the legal test to assess objective reasonableness and that World Bank Group v Wallace created an exception to the general principles set out in Shinkewski; 2) finding the searches to be unreasonable. The Crown argued that the judge erred because she applied the criteria set out in R v Fearon to all four of the cellphone searches conducted by the police and in the first three searches, she should have found that the the plain view doctrine applied; and 3) excluding the evidence.
HELD: The appeal was dismissed. The court found with respect to each ground that the trial judge had not erred in: 1) finding a breach of s. 9. The exception in World Bank Group was not applicable to the facts of this case. The judge correctly found that in the circumstances giving rise to the arrest had not precluded the officer from inquiring into the reliability of the information and that he had the means to do so, by checking SIMS. There was no urgency in the arrest; 2) finding a breach of s. 8 had occurred. The plain view doctrine did not apply to the facts of this case in the circumstances of the first three searches conducted by the officer. As the initial search of...