In R. v. Loewen 2018 SKCA 69, in the early morning hours, Loewen was a passenger in a vehicle being driven in Saskatoon. The vehicle was pulled over for speeding in violation of The Traffic Safety Act. The first of two officers spoke to the driver and asked him for his licence and registration. That officer then became aware of Loewen in the passenger seat and requested his identification as well. Both Loewen and the driver gave the officer their Saskatchewan Government Insurance [SGI] photo identification cards. The officer testified at trial that he recognized the driver as a known criminal, but he did not recognize Loewen.
The officer’s request for Loewen’s identification was not made in relation to any offence contrary to The Traffic Safety Act or any criminal offence. Rather, the officer testified that, when he conducts a traffic stop, he always requests identification from the passengers, if any, so it can be checked on the CPIC database. He does this “to find people who are either breaching court ordered conditions, wanted on warrants, outstanding criminals, that type of thing as part of [his] job”.
The officer took both identification cards back to the police vehicle and handed them to the second officer, who then conducted queries on CPIC and on a local police records system. The CPIC search indicated the driver had an outstanding warrant for his arrest in Alberta and a criminal record. Loewen was revealed to be a federal inmate on release, with conditions. The second officer called Corrections Canada’s National Monitoring Centre [NMC] to confirm the nature of those conditions, and learned that one of the conditions of Loewen’s release was that he not be in the presence of known criminals. The officer told the NMC official that Loewen was a passenger in a vehicle driven by such an individual. The response? The NMC official indicated to the officer that the NMC would be issuing a warrant under the Corrections and Conditional Release Act for Loewen’s apprehension. The NMC official also advised the officer to take Loewen into custody.
The officers then proceeded to issue the driver of the vehicle a summary offence ticket for speeding, and Loewen was removed from the vehicle and arrested for breach of his release conditions; the driver then departed in the vehicle. Immediately upon his arrest and being advised of the reason for it, Loewen told an officer that his “parole” had expired two days prior. He was cooperative while so doing. The officer responded to Loewen by saying the NMC was issuing a warrant and the matter was no longer within his discretion.
An officer performed a roadside search of Loewen and located a number of items, including Loewen’s wallet, two cellphones, and some keys. Inside the wallet, he found a substantial amount of cash, later determined to be $1,615. Loewen was placed in the police vehicle, advised of his right to counsel and transported by the two officers to the police station. He again raised the concern that his “parole” had expired, including once as they approached the police station. The station detention officer searched Loewen and felt a bulge in the groin region of Loewen’s pants. The officer asked Loewen what it was and Loewen responded that it was cocaine and MDMA.
Loewen was then taken to a private interview room. On entering the room, he removed two packages of drugs from his underwear. A more thorough search was then conducted, during which Loewen’s clothing was removed. The packages were later determined to be 28.3 grams of cocaine and 28.1 grams of methylone. Loewen was arrested for possession of a controlled substance for the purpose of trafficking and was re-read the standard police warnings.
At trial, evidence showed that Loewen’s statutory release had, in fact, expired two days before his arrest and, as a result, he had not been in breach of any conditions. This led him to raise a number of Charter challenges in Provincial Court with respect to alleged infringements of his Charter rights to be free from arbitrary detention and unreasonable searches and seizures. The trial judge found there had been some violations of Loewen’s rights but ultimately concluded the evidence obtained through those violations, i.e., the drugs and the cash, should not be excluded pursuant to s. 24(2) of the Charter. Loewen was convicted on one count of possession of methylenedioxymethcathinone (methylone) for the purpose of trafficking and one count of being in possession of cocaine. He was sentenced to a total of 42 months imprisonment.
The appeal court found otherwise. Quoting from R. v. Mooiman 2016 SKCA 43, “[i]n the absence of some other suggestion of significant physical or psychological restraint, a passenger of a vehicle that is subject to a traffic-safety stop is simply a bystander and is not detained for the purposes of s. 9 of the Charter“, but here, the appeal court found that Loewen had been psychologically detained while the officers had his identification in their possession during the course of the CPIC and local records searches and during the course of their dealings with the NMC. Given that the police had no lawful authority to detain Loewen, it follows that this detention was arbitrary and hence a violation of s. 9 of the Charter. The court concluded that Loewen suffered a significant deprivation of his liberty when the officer took his identification back to the police car, for approximately a 30-minute time frame. An SGI identification card is not something that can be easily abandoned. A citizen in Loewen’s circumstances would have reasonably concluded he or she had no meaningful option but remain in the vehicle until the police returned with the identification, said the court (note: similar decisions in R. v. Harris, 2007 ONCA 574; R. v. Dale 2012 ONCJ 692 may assist). This was not a case where Loewen was simply asked his name, or for his identification, but the officer took Loewen’s identification back to the police car for some time without advising him that he was being detained, nor was he given RTC or a caution, or given the option of declining to provide identification.
With this backdrop, the arrest was also ruled unlawful because no warrant of apprehension had yet been issued per s. 137(2) of the CCRA by the NMC and s. 137.1 did not come into play because the arresting officers had not considered it as a basis for arresting Loewen at the time. As a result, it follows that a search conducted incidentally to it was a violation of s. 8 of the Charter.