R. v. Wasilewski (C.), 2016 SKCA 112

• Judge: Caldwell, Whitmore and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 17, 2016
• Jurisdiction: Saskatchewan
• Citations: 2016 SKCA 112;(2016), 485 Sask.R. 68 (CA)

R. v. Wasilewski (C.) (2016), 485 Sask.R. 68 (CA);

    676 W.A.C. 68

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. SE.024

Her Majesty the Queen (appellant) v. Cassandra Wasilewski (respondent)

(CACR2683; 2016 SKCA 112)

Indexed As: R. v. Wasilewski (C.)

Saskatchewan Court of Appeal

Caldwell, Whitmore and Ryan-Froslie, JJ.A.

August 31, 2016.

Summary:

The accused was charged with possession of marijuana for the purpose of trafficking. The trial judge ordered the exclusion of evidence pursuant to s. 24(2) of the Charter, on the grounds that the police lacked reasonable and probable grounds to arrest the accused. The accused was acquitted. The Crown appealed.

The Saskatchewan Court of Appeal, in a decision reported at 451 Sask.R. 97; 628 W.A.C. 97, allowed the appeal and ordered a new trial. The accused was acquitted. The Crown appealed.

The Saskatchewan Court of Appeal allowed the appeal, set aside the acquittal and ordered a new trial. The court stayed any further proceedings in the matter.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - In 2012, police suspected that Chartier was about to buy a large quantity of marijuana - A surveillance team observed him travel to the residence of another known drug dealer in a vehicle that they later learned was registered to the accused, and was then being operated by the accused - Chartier entered the residence and returned minutes later carrying a plastic bag - Believing that Chartier had just obtained marijuana, they ordered an officer to stop the accused's vehicle - Chartier and the accused were arrested - The police found 220 grams of marijuana in the vehicle - They conducted a "cursory" search of the accused's cell phone at the time of the arrests and, five days later, they conducted a more comprehensive warrantless search of the phone and found several potentially inculpatory statements - The accused was acquitted of possession of marijuana for the purpose of trafficking - The acquittal was overturned and a new trial ordered - The second trial judge ruled that the second search of the phone infringed the accused's s. 8 Charter rights - The judge excluded the evidence and acquitted the accused - The Crown appealed the decision to exclude the evidence - The Saskatchewan Court of Appeal held that the trial judge erred when he found that the second phone search was a serious breach of s. 8 - The police had honestly believed that they had authority to search the phone - The fact that subsequent jurisprudence proved them wrong did not elevate the seriousness of their conduct - The resulting evidence would have been legally obtainable had they sought a warrant - Society's interest in a trial on the merits weighed in favour of admission - On the whole, the long-term repute of the administration justice would be damaged by excluding the evidence - Moreover, had the evidence been admitted, the verdict might have been different - The court allowed the Crown's appeal and ordered a new trial - However, a third trial would exceed the limits of the community's sense of fair play and, having regard to the relative seriousness of the charge, the administration of justice was best served by staying any further proceedings in the matter - The court reviewed the sources of its discretionary power to grant a stay - See paragraphs 21 to 41.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 4951

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - Appeal by Crown from acquittal - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 4956

Appeals - Indictable offences - New trials - Grounds - Admission of evidence - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 4981

Appeals - Indictable offences - Powers of Court of Appeal - Power to order stay of proceedings - [See Civil Rights - Topic 8368 ].

Counsel:

Wade E. McBride, for the appellant;

Robert F. Feist, for the respondent.

This appeal was heard on June 17, 2016, by Caldwell, Whitmore and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. Caldwell, J.A., delivered the following judgment for the court on August 31, 2016.