The constitutional prohibition of arbitrary detention in Canada limits the ability of the state to impose intimidating and coercive pressure on the citizen without adequate justification. Yet the experience of radicalized youth and those living in low income neighbourhoods is one of differential treatment and lost hope in the right to be left alone. A recent majority opinion of the Saskatchewan Court of Appeal is yet another example of the shared experience of being targeted, stopped and questioned by police officers forever on the lookout for a reason to be concerned about officer safety.

1. Introduction

On July 23, 2019, Stuart Sabiston was spotted in an alley in south central Regina by two police officers. The neighbourhood was known for its gang presence. Mr. Sabiston was shirtless and wearing a bullet proof vest. He was arrested for being in possession of stolen property and the police found a folding knife during a search incidental to the arrest. Mr. Sabiston then said there was a firearm in his backpack. It was loaded. A charge of possessing stolen property was eventually stayed by the prosecution and Mr. Sabiston went to trial on firearm offences. On a pretrial exclusion motion the trial judge held that the arrest and search violated ss. 8 and 9 of the Charter of Rights. However, she also found that the officers had grounds for investigative detention and the discoverability of the firearm therefore mitigated the seriousness of the Charter violations. The motion was dismissed and Mr. Sabiston was convicted. He appealed. On September 7, 2023, the Saskatchewan Court of Appeal reversed in a split 2-1 ruling. The firearm was excluded from evidence and an acquittal entered. (here)

2. The Arrest

The arresting officer immediately recognized Mr. Sabiston. “Papi, what’s up?” the officer called out. Mr. Sabiston turned and walked towards him. The officer testified that he thought the vest “look[ed] like one of ours” and his “mind kind of started spinning a little bit” as he wondered why Mr. Sabiston was wearing a vest and whether there were any officer safety concerns. “[T]o me, it was clear it was stolen property” and when Mr. Sabiston was six to ten feet away “I’d formed my grounds in my head that he was arrestable, and I told him he was under arrest.” The officer said the vest was identical to police body armour and Mr. Sabiston’s behaviour was unusual. He was “walking in an area frequented by gang associates” with “a black bandana hanging out of [a] pocket”. When confronted with a photograph of a bullet proof vest from an online website, the officer conceded that bullet proof vests can be bought on the internet. “But it was the totality of the – like, the events that were – and the signs that kind of surrounded it that formed in my mind as to reasonable grounds to believe,” he said.

3. The Exclusion Ruling

The trial judge held that, although the officer “honestly believed” the vest was stolen, the circumstances “fell short of providing an objectively reasonable basis to arrest Mr. Sabiston”. However, she went on to find that the officer had grounds to “reasonably suspect” the vest was stolen and was acting on more than a hunch or generalized suspicion. He therefore would have had the right to detain Mr. Sabiston for “investigation purposes”. But that was not what the officer did – he invoked the “statutory power to arrest”. Although the trial judge held the officer had a “reasonable suspicion” sufficient to have detained Mr. Sabiston, the violation of s. 8 of the Charter was not salvaged in relation to the search incidental to the arrest. However, in the Grant analysis under s. 24(2) of the Charter, the trial judge concluded the discoverability of the evidence “somewhat diminishe[d]” the seriousness of the violations. “I believe that the officers would have located the knife and then the firearm if they had simply detained him for investigative purposes, as the officers had the right to search for the purposes of officer safety.”

4. The Appeal

Writing for the majority, Justice Jillyne Drennan distilled the issues into two questions: (a) Did the facts found by the trial judge amount at law to a reasonable suspicion that the bullet proof vest was stolen? and, (b) Did the trial judge err in her s. 24(2) Charter analysis by considering the discoverability of the firearm?

(a) Reasonable Suspicion

The reasonable suspicion standard is an objective one based on “objectively discernible facts” and is particularized rather than a general suspicion. In R. v. Kang-Brown, Justice Ian Binnie drew upon American jurisprudence to identify the rationale underpinning the objective standard. A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a “generalized” suspicion because it “would include such a number of presumably innocent persons as to approach a subjectively administered, random basis” for a search. The reasonable suspicion standard is thus designed to avoid indiscriminate and discriminatory searches. (here) In elaborating on the requirement that “suspicion must be particularized” Justice Drennan relied upon the court’s previous ruling in R. v. Yeh (here) and set out the following summary of principles:

• The majority in Yeh affirmed the requirement in R. v. Mann (here) that a reasonable suspicion must be tethered to a particular crime. This nexus is required to ensure police do not detain an individual “out of a general sense he or she might be doing something unlawful”. (Yeh, para. 84; Sabiston, para. 29)
• The police “do not enjoy a general power to detain individuals for the purpose of ferreting out possible criminal activity”, or to “determine whether an individual is, in some broad way, ‘up to no good’.” The majority in Yeh emphasized that “[i]n order to justify an investigative detention, the police suspicion must be particularized, i.e. it must relate to specific criminal wrongdoing” – although the extent to which a suspicion must be particularized was not at issue in Yeh. (Yeh, paras. 74-75; Sabiston, para. 30)
• The majority in Yeh held that “[t]he question of whether the police may detain an individual in connection with a suspected offence is a different matter than the idea that suspicion must be particularized”. Any analysis which fails to appreciate the difference between the two “will, of necessity, be flawed”. (Yeh, paras. 74 and 77; Sabiston, para. 31)

The extent to which police suspicion must be particularized was subsequently considered by the Supreme Court of Canada in R. v. Chehil where it was held that a reasonable suspicion requires that “the constellation of objectively discernible facts […] give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation.” (here) While evidence of a “specific known criminal act” is not required, the police must be able to “point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion.”

Justice Drennan concluded that the officers “took a leap, based on intuition or a hunch, placing undue weight on Mr. Sabiston’s gang affiliation and the nature of the neighbourhood, despite the absence of particularized conduct or evidence supporting Mr. Sabiston’s involvement in criminality related to stolen property.” This was exactly the type of “problematic use of police authority” that Chehil cautioned against. Both officers particularized their suspicion only in relation to possession of stolen property at the time of the unlawful arrest – not to any weapons offence. This was all the trial judge had before her to consider in the context of a theoretical investigative detention. “By the time Mr. Sabiston volunteered to police that he had a firearm in his backpack,” Justice Drennan said, “he was already unlawfully arrested and in the throes of an illegal search.” The officer’s belief that the vest was stolen was not objectively reasonable and there was no basis for investigative detention.

(b) Discoverability

Discoverability of evidence may be considered at the first and second stages of the Grant inquiry under s. 24(2) of the Charter particularly in assessing the actual impact of a breach on the protected interests of the defendant. However, as Justice Drennan emphasized, Grant does not stand for the proposition that discoverability will impact the analysis in every scenario because that will depend on: (a) the likelihood of discovery with and without the Charter breach; and, (b) what level of speculation by the court it entails. Most recently in R. v. Tim, Justice Mahmud Jamal, writing for a 6-1 majority of the Supreme Court of Canada, affirmed there is a greater impact on a defendant’s constitutionally protected interests where evidence was only discoverable through a Charter violation. In cases where it cannot be determined with confidence whether evidence would have been discovered absent a Charter breach, discoverability will have no impact on the Grant inquiry. (here) It has been well settled by the Supreme Court of Canada, since at least R. v. Côté, that courts should not engage in speculation about discoverability. (here)

Justice Drennan found that the use of the discoverability doctrine by the trial judge was flawed “as she erred in finding that the officers had a reasonable suspicion in the bullet proof vest having been stolen that justified an investigative detention.” It thus followed that there could not have been a lawful search incidental to that detention. “[A]bsent a Charter breach in this particular factual matrix, the firearm was not discoverable,” she concluded. Furthermore, the trial judge also erred in finding that the officer’s reasonable suspicion mitigated the seriousness of the violation and lessened the impact on Mr. Sabiston.

It is important to emphasize the nature of the location where the arrest took place. It happened in an inner-city neighbourhood “frequented by gang associates and gang violence” where two police officers were on patrol. They spotted Mr. Sabiston in an alley. One of the officers called out to him as he got out of the police vehicle, “Papi, what’s up?”. The shakedown was on. Justice Drennan briefly gave context to the arrest when she recognized that factors such as “gang affiliation and the nature of the neighbouthood” must not operate in a “stereotypical or discriminatory fashion”. The alley in south-central Regina brings to mind the majority opinion of the Supreme Court of Canada in R. v. Le, not cited by Justice Drennan, where an arbitrary arrest happened in the backyard of a townhouse in a Toronto housing co-op. (here) Although there is a distinction between a private backyard and a public alley, the point here is the same. In Le, Justices Russell Brown and Sheilah Martin said “we have arrived at a place where the research shows disproportionate policing of radicalized and low-income communities”. Here is the next sentence in Le that I will meld with the facts in Sabiston: “[I]t is in this larger social context that the police entry into the [alley] and questioning of [Mr. Sabiston] must be approached.”

5. Conclusion

Since the trial judge’s conclusion on the admissibility of the firearm was tainted by error, Justice Drennan undertook a fresh Grant analysis. The fact that the evidence was not discoverable aggravated the Charter violations. They were not transient or trivial and profoundly impacted Mr. Sabiston. The core issue, then, was whether the reliability of the evidence, its importance to the prosecution’s case and the seriousness of the offence tipped the balance in favour of admission. Following R. v. Omar (here) and R. v. Lichtenwald (here), Justice Drennan concluded there is no “firearms exception” requiring that guns obtained in violation of Charter rights be admitted into evidence. “A firearm has no presumptively unique or transcendent status in the s. 24(2)analysis,” she said. “The Grant framework inherently accounts for the seriousness of the firearm-related offences, as well as in this instance, a contextualization of Mr. Sabiston’s case in the larger consideration of the long-term repute of the justice system.” The firearm was excluded and the case collapsed.