Digest: R v Loewen, 2018 SKCA 69

• Date: August 18, 2019

Reported as: 2018 SKCA 69

Docket Number: CACR 2830 , CA18068

Court: Court of Appeal

Date: 2019-08-18

Judges:

• Richards
• Herauf
• Schwann

Subjects:

• Criminal Law � Appeal � Conviction
• Criminal Law � Controlled Drugs and Substances Act
• Criminal Law � Defences � Charter of Rights, Section 8, Section 9, Section 24(2)

Digest: The appellant was a passenger in a vehicle that was stopped by police. His identification was obtained by the officers and a CPIC search revealed that he was on statutory release. The officer arrested the appellant after being advised by Corrections Canada�s National Monitoring Centre (NMC) that they would be issuing a warrant because the appellant had breached his statutory release conditions. The appellant told the officer that his parole had recently expired, but the officer did not investigate that claim. The appellant was charged with trafficking and possession of proceeds of crime when a roadside search of the appellant revealed cash and a search at the detachment revealed drugs. It was determined that the NMC warrant was invalid because the appellant�s release term had been completed. The trial judge found some Charter breaches but did not exclude the evidence pursuant to s. 24(2). The appellant was convicted of one count of possession of methylone for the purpose of trafficking and one count of being in possession of cocaine. He was sentenced to 42 months� imprisonment. The appellant appealed his convictions. The issues on appeal were: 1) whether the trial judge erred in failing to find that the appellant was detained contrary to s. 9 of the Charter when the officer took his identification; 2) whether the trial judge erred in concluding that the appellant�s s. 9 rights had been violated when he was arrested; 3) whether the trial judge erred in finding the search immediately after the appellant�s arrest was a violation of his rights under s. 8 of the Charter; 4) whether the trial judge erred in failing to find the search at the police station was conducted in violation of the appellant�s rights under s. 8 of the Charter; and 5) whether the trial judge erred in failing to exclude the evidence.
HELD: The appeal was allowed. The issues were determined as follows: 1) the officer obtained the appellant�s identification because it was his practice to do so. The appeal court examined the factors considered by Grant to determine a s. 9 breach: a) a reasonable individual in the appellant�s shoes...