Brandon Harder
Regina Leader-Post
Canada’s highest court has overturned a ruling by Saskatchewan’s highest court and restored firearms convictions against Michael George Sabiston.
On July 23, 2019, officers from the Regina Police Service street gang unit saw Sabiston walking in one of the city’s gang-afflicted neighbourhoods while wearing a bulletproof vest.
According to a Sept 7, 2023 decision from the Saskatchewan Court of Appeal, one of the officers who testified at the man’s trial said he quickly developed the opinion that the vest was stolen. As such, the man was arrested and searched, leading to the discovery of a knife and a sawed-off shotgun.
He was charged with possession of stolen property, but the Crown stayed that charge and proceeded with charges relating to the gun. He was convicted of careless storage of a firearm, possession of a weapon for a dangerous purpose, possession of a loaded prohibited firearm without a licence, and possession of a firearm while prohibited.
He received a five-year sentence.
The issue on appeal was whether the trial judge made a mistake in finding police had a lawful reason to detain him.
The trial judge found there had been breaches in sections of the Charter of Rights and Freedoms protecting the man against unreasonable search and seizure, as well as from unlawful detention. But in conducting an analysis of whether the firearm should be excluded from evidence, the judge found the officers would’ve had a legal basis to detain the man for investigative purposes (as opposed to arresting him for theft.)
The trial judge found that the “discoverability” of the gun — given the right to search a detainee for purposes of officer safety — had “mitigated” the seriousness of the Charter breaches and their affect on the man, so the gun was admitted as evidence and the man was convicted.
Two of three Sask. appeal judges — Justice Jill Drennan and Justice Brian Barrington-Foote — felt this was a mistake and overturned his convictions, entering acquittals instead. Much of their majority decision was devoted to exploring how police can legally arrive at a reasonable suspicion.
“In my view, the officers took a leap, based on intuition or a hunch,” Drennan wrote.
The majority concluded that the police had “no proper basis for an investigative detention.”
However, Justice Jerome Tholl took a different view from his colleagues, writing that he found no error in analysis conducted by the trial judge prior to the gun being admitted as evidence.
Because the Saskatchewan Court of Appeal decision was split, it paved the way for the Crown to appeal to the Supreme Court of Canada.
That court delivered its ruling on the case Friday. It too was split. Justice Suzanne Côté said the majority (four of five) was substantially in agreement with Tholl.
“As a result, the conviction is restored,” she said, noting that the case would be sent back to Saskatchewan, where an appeal of Sabiston’s sentence is to be dealt with.
Only one Supreme Court judge offered a dissenting opinion.
“There was no clear nexus between the respondent and the particular crime, namely possession of stolen property,” said Justice Mary Moreau.
“In the absence of a reasonable suspicion, the firearm would not have been discoverable.”
Although Moreau’s position may be of interest to some, including members of the legal community, it does not change the result for Sabiston, who once again wears convictions for firearms offences relating to the incident.
bharder@postmedia.com
