Jul 13, 2020

Summary of R v Lichtenwald

R v Lichtenwald, 2020 SKCA 70 (CanLII)
Criminal Law – Appeal – Conviction
Criminal Law – Appeal – Sentence
Criminal Law – Controlled Drugs and Substances Act – Possession for the Purpose of Trafficking – Methamphetamine, Hydromorphone, Cocaine, Fentanyl, Gamma-Hydroxybutyric Acid
Criminal Law – Defences – Charter of Rights, Section 8, Section 9, Section 10(b), Section 24(2)
Criminal Law – Firearms Offences

The appellant was convicted of possession of methamphetamine, hydromorphone, cocaine, fentanyl, and gamma-hydroxybutyric acid (GHB) for the purpose of trafficking, trafficking in methamphetamine and cocaine, possession of proceeds of crime, and various firearm offences. The appellant was sentenced to ten years in prison, less two years’ remand time. Two officers observed the appellant and a suspected drug dealer, J.P., park their vehicles nose to nose at a car wash where they had been watching J.P. J.P. got into the appellant’s car, and both men began looking down at their laps. Cst. G. decided to arrest the men 30 seconds after J.P. entered the appellant’s vehicle. The occupants were counting cash. Cst. B. arrested the appellant at 2:57 pm. A search of the appellant resulted in finding a folding knife and $2,310 in cash. A small amount of cocaine and methamphetamine were in plain sight on the vehicle floor. Additional drugs, being more cocaine and methamphetamine, fentanyl, hydromorphone, and GHB were located elsewhere in the vehicle. Firearms and weapons were also found in the vehicle. When given his rights to counsel, the appellant indicated that he wanted to speak to a lawyer. The appellant was not given the opportunity to call a lawyer but was instead transported to the detachment to wait while the officers obtained a warrant to search his home. The warrant was executed at 7:25 pm. More drugs, drug paraphernalia, and firearms were located in the home. The officers said they did not let the appellant communicate with anyone for seven hours because they did not want him to let anyone know that his house would be searched so that evidence was not destroyed and for officer safety. After 9:30 pm, the appellant was read his Charter rights again, and he indicated that he would call a lawyer in the morning. The trial judge found that s. 495(1)(a) of the Criminal Code was met such that the warrantless arrest was lawful. The trial judge also found the brief exchange where the appellant confirmed his address on his licence before being provided with his rights to counsel was not a Charter breach. The trial judge found a breach of the appellant’s s. 10(b) Charter rights, but he did not undertake a s. 24(2) analysis. Instead, he indicated that both counsel had conceded that there was no remedy available “per se” because the police did not take a statement at the detachment. The appellant argued that the trial judge erred by failing to find a breach of his ss. 8 and 9 Charter rights and failing to exclude the evidence found on his person, in his car, and in his home. The issues were: 1) whether the trial judge erred in finding the police arrested the appellant lawfully pursuant to s. 495(1)(a) of the Criminal Code; 2) whether the trial judge erred by failing to find that asking the address question breached the appellant’s s. 10(b) rights; and 3) whether the trial judge erred by failing to exclude the evidence obtained by the police searches of the appellant’s person, vehicle and home pursuant to s. 24(2) of the Charter.
HELD: The conviction appeal was allowed in part. The court only found a breach of the appellant’s s. 10(b) Charter rights. The evidence at the appellant’s home should have been excluded pursuant to s. 24(2) of the Charter. The issues were determined as follows: 1) the issue turned on whether the trial judge erred in finding the officers had reasonable grounds to arrest pursuant to s. 495(1)(a). The trial judge adopted the correct test for the existence of “reasonable grounds to believe.” After analyzing the facts all together, rather than piecemeal, the appeal court did not find a palpable and overriding error in the statement that the “vignette” of facts was sufficiently unusual to be described as incongruous. It was open to the trial judge to conclude that J.P. was known by the police to be involved in the drug trade. The appeal court did not find a breach of the appellant’s ss. 8 or 9 Charter rights; 2) the appellant argued that the police asked him to verify his address to complete the Information to Obtain (ITO) for the search warrant, which was a breach of his s. 10(b) Charter rights. The transcript confirmed that the question was asked for administrative purposes. The appeal court agreed and found no Charter breach, and 3) the trial judge concluded that the evidence should not be excluded because he thought it was necessary for there to be a causal connection between the breach and the evidence. The appeal court found the trial judge erred in thinking that a causal connection was the only sufficient connection. The connection may be causal, temporal, contextual, or any combination of the three. The appeal court concluded that evidence was obtained in a manner that breached the appellant’s Charter rights and, therefore, a s. 24(2) analysis should have been conducted. The appeal court found that all of the evidence seized as a result of the searches of the appellant’s person, vehicle, and residence was obtained in a manner that infringed the appellant’s s. 10(b) Charter rights. The appeal court found a sufficient temporal and contextual connection between the breach and the evidence acquired during the initial searches. The acquisition of that evidence was part of the same chain of events. The conduct of the police did not meet the good faith standard. The seven-hour delay in implementing the appellant’s right to counsel was profoundly serious even though he was not questioned until after his rights were fully implemented. The appeal court found that the first Grant factor weighed strongly in favour of excluding the evidence obtained at the residence, but less so concerning the evidence obtained in the initial searches. The second factor was less serious than the first factor but resulted in a severe impact on the appellant’s Charter rights due to the length of the delay and weighed in favour of exclusion. Concerning the third factor, the appeal court indicated that the evidence was reliable and critical to the Crown’s case. That factor favoured admission of the evidence. The appeal court concluded that society’s interest in a trial on the merits was insufficient to tip the balance in favour of including the evidence obtained at the residence. The appeal court concluded the opposite with respect to the evidence obtained from the initial searches. The admission of that evidence would not bring the administration of justice into disrepute. One of the 14 counts the appellant was convicted of was set aside while six others were varied to the extent that they related to items seized from the residence. The parties were ordered to provide written sentencing submissions within four weeks based on the conviction appeal decision.