R. v. Nezaticky, 2003 BCPC 98

[Indexed as: R. v. Nezaticky] Regina v. Steve Nezaticky and Catrina Maria Nieuweboer British Columbia Provincial Court Stansfield Prov. J. Heard: August 21, 2002 - March 19, 2003 Judgment: March 26, 2003 Docket: Penticton 28974C, 2003 BCPC 98 Tyrone A. Duerr, for Crown Mike Smith, for Accused 1 Stansfield Prov.

J.: In this voir dire in a marihuana production case, there are a number of inter​ esting questions regarding a warrantless search of the defendant Nezaticky's ve​ hicle and the seizure from his truck of garbage bags containing 150 marihuana plants recently plucked from their growing medium, and other questions regard​ ing a subsequent warranted search of the defendants' home leading to a seizure of "grow op" paraphernalia but no marihuana.

But the evidential issues on the voir dire really fall to be determined through resolution of the following two questions: 1) Whether, when the investigating officer went to the door of the de- fendants' residence an hour and a half prior to the warrantless search of the vehicle ostensibly to inform the defendant Nieuweboer of the anony- 2 3 4 5 6 7 mous tip and to ask whether she would consent to a search of the home, he was conducting a warrantless "knock on" search within the meaning of R. v.

Evans (1996) , 104 C.C.C. (3d) 23 (S .C.C.) , and 2) If that was a warrantless knock on search, and unreasonable, and thus a breach of the defendants'

Section 8 Charter rights, whether the non- conscripted, real evidence of the seized marihuana plants and the grow​ op paraphernalia - which, as a matter of fact, would not have been seized by the police "but for" the chain of events set in motion by the knock on search - should or should not be admitted into evidence having regard to the Section 24(2) considerations outlined in R. v. Collins, [1987] 1 S.C.R. 265 (S.C.C.) and R. v. Stillman (1997) , 113 C.C.C. (3d) 321 (S.C.C.) and related cases, having regard to: (

a) the effect of the admission of the evidence on the fairness of the trial, (

b) the seriousness of the Charter violation, and (

c) the effect of the inclusion or the exclusion of the evidence on the reputation of the administration of justice. The Facts On June 7, 2000, Keremeos RCMP received an anonymous tip from a source of unknown reliability alleging that the defendants had a marihuana grow opera​ tion in a locked room in the basement of their Keremeos home. In the small town of Keremeos, both defendants were known to the two RCMP officers who were involved in the investigation, Cst. Ekkel and Sgt. Bauhuis. The officers knew the defendants as upstanding members of the com- munity: Ms.

Nieuweboer as the manager of the local liquor store, and Mr. Neza​ ticky as an ambulance attendant. Approximately seven months previously, on November 29, 1999, Cst. Ekkel had been inside the Nezaticky/Nieuweboer home for approximately 15 to 20 minutes. He did not detect any odour of marihuana nor perceive any other indi​ cation of illegal activity in the home. Upon receipt of the June 7 anonymous tip, an RCMP file was opened in the name of the two defendants concerning an investigation of possible production of marihuana.

Another anonymous tip to similar effect was received on June 8, 2000; it is not known whether the tipster was the same person. Cst. Ekkel then tried to contact an RCMP officer in Penticton who regularly secures from the power corporation electrical consumption records related to suspected grow ops. Cst. Ekkel did not get any response from the other officer. 8 9 10 11 12 13 14 15 16

17 The Keremeos officers were familiar with use of the forward looking infra red device (FLIR) as an investigative tool regarding suspected grow-ops, but it was not used in this case. On June 14, 2000, the Keremeos Detachment heard from a Mrs. B., a social worker with the Ministry of Children and Families. Ms. B. said her Ministry had received a tip alleging there was a grow op in the Nezaticky/Nieuweboer home. Mrs. B. advised the RCMP that she was obliged to investigate that tip because the Ministry believed a child was in the residence and his safety could be af​ fected by the presence of illegal activity. Cst.

Ekkel says he asked Mrs. B. to "hold off as long as possible" while he tried to obtain some additional evidence which would support an application for a search warrant. In that regard, he ac​ knowledged that he knew the unsubstantiated tips were not sufficient grounds to secure a warrant. Cst. Ekkel had recorded in his file, and acknowledged on cross, that prior to the day of his visit he had wanted to go to the door of the residence to detect an odour that could, with other grounds, constitute grounds for securing a search warrant. On June 19 Cst. Ekkel received a fax from Mrs.

B. advising that she could not hold off her investigation beyond that day. Accordingly, Cst. Ekkel tried again first thing in the morning to obtain information regarding electrical con​ sumption in the home, but again was unsuccessful. Cst. Ekkel then met with his superior officer, Sgt. Bauhuis. Sgt. Bauhuis recommended that Cst. Ekkel knock on the door, inform the occupants of the anonymous tip, and see if they would consent to a search. At this point there is a significant contradiction in the evidence of Cst. Ekkel and Sgt. Bauhuis. Cst. Ekkel says Sgt.

Bauhuis instructed him that if the occu​ pants consented to a search and drugs were found, Sgt. Bauhuis' position was this would be a "no case seizure", meaning that no charges would be laid. Sgt. Bauhuis, by contrast, not only disputes having said that, he says he "wouldn't have" said that. Cst. Ekkel acknowledged he had telephoned the Nezaticky/Nieuweboer home on a previous occasion, and so knew that means of communication was open to him. Cst. Ekkel also acknowledged that on June 19, 2000 he was aware that "knock on searches" were "illegal". It was approximately 11 a.m. when Cst.

Ekkel went to the Neza- ticky/Nieuweboer home. He was in uniform and arrived in a marked police vehi- cle. He proceeded directly to the front door. Cst. Ekkel acknowledges that in approaching the front door, he could have looked at the windows of the residence, could have observed whether there was 18 19 20 21 22 23 24 25 any condensation, and could have detected odour in the yard if there was an odour to be detected. It is of significance that Cst. Ekkel did not have a "consent search form" with him when he went to the residence. In response to Cst. Ekkel's knock, Ms. Nieuweboer answered the door.

She moved on to the front step, closing the front door behind her. Cst. Ekkel estimates that he remained at the residence for approximately five to seven minutes. During that time he asked Ms. Nieuweboer "two or three times" if she would consent to a search. Most surprisingly, in light of his evi​ dence regarding Sgt. Bauhuis' instructions, Cst. Ekkel says he never told Ms. Nieuweboer that if she consented to the search and marihuana was found, that it would be a "no case seizure"; he says that "just slipped my mind, (it) didn't cross my mind". Cst. Ekkel told Ms.

Nieuweboer that the Ministry of Children and Families had received a similar tip and would be coming by later in the day. He told her he understood the Ministry was concerned as to whether it would be necessary to enter the premises to assess Stephan's safety. While still at the front door, Cst. Ekkel asked Ms. Nieuweboer how they heated their house. He also asked whether electricity was used only for the stove and lights. Neither Cst.

Ekkel nor Crown Counsel offered any explanation as to how those questions were relevant to his "communication" regarding the tip, nor why they should be understood as simple "communication" as distinct from "investigation". With Ms. Nieuweboer having declined to allow Cst. Ekkel access to the resi- dence, he left. He said he believed that at that point he had not succeeded in gathering any evidence that would assist in securing a search warrant. That is not to say, however, that he had not secured investigative fruits which would be of interest to the police.

When Sgt. Bauhuis heard about Cst. Ekkel's interaction with Ms. Nieuweboer, Sgt. Bauhuis was of the opinion that Ms. Nieuweboer's responses to Cst. Ekkel's inquiries "didn't seem reasonable". Sgt. Bauhuis concluded that in light of what Cst. Ekkel had said to Ms. Nieuweboer there was a possibility the defendants would "dispose of the contraband". Cst. Ekkel recalls the ser​ geant musing that maybe if the defendants had the material they would try to get rid of it, so police should "sit on the house", meaning maintain surveillance. Approximately 15 minutes after the conversation at the door, Cst.

Ekkel set up surveillance from the adjacent bypass road where he could see the rear of the defendants' residence. Roughly 45 minutes later, Cst. Ekkel observed a vehicle which appeared to be Mr. Nezaticky's pick up truck being backed up towards the porch area of the home. The rear of the canopy and the back of the truck were opened and Cst. Ekkel observed a number of black garbage bags being 26 27 28 29 30 piled into the truck. Cst. Ekkel said he believed at the time that if the anonymous information had been correct, then he was observing the subject removing the product of a grow op. He notified Sgt.

Bauhuis when the pick up left. Sgt. Bauhuis was waiting in his police vehicle in the driveway of his own home, which was only about a block and a half away. He drove to an intersec​ tion approximately a quarter of a mile from the defendants' home where he ex​ pected he would intercept the defendants' vehicle. At the trial, Sgt. Bauhuis denied that his intention at that point was to stop Nezaticky's truck. At the preliminary inquiry he testified it was his intention when he left his own driveway "to stop the vehicle".

He explained the variation in his evidence from the preliminary inquiry to the trial to be attributable to a "poor choice of words" at the preliminary inquiry. My overall impression of Sgt. Bauhuis, as I stated on the record during the trial, was that he is an intelligent, thoughtful and articulate man who listens carefully to questions and just as care​ fully formulates his answers.

I do not think he consciously tried to mislead the Court, but on all of the evidence at the trial, I am satisfied and I find as a fact that upon hearing that a male had moved a number of garbage bags out the back door just 45 minutes after Cst. Ekkel visited the front door and notified the occu​ pants of the police suspicion regarding a grow op, it was intention to stop the vehicle. The defendant Nezaticky rounded a corner and was then heading towards Sgt. Bauhuis' police car.

At the moment the sergeant perceived that Nezaticky would have seen the police car, he says Nezaticky made "an odd movement" with the vehicle, then completed the turn. In light of the "suspicious or inappro​ priate turn" on top of all of the other information then known to him, he says he "felt I wanted to stop the vehicle and speak with the occupant". Nezaticky pulled over and got out of the truck. Sgt. Bauhuis says that as soon as he neared Nezaticky, he smelled a very strong pungent odour of mari​ huana in its vegetative state. He acknowledges that after he smelled the vegeta​ tive marihuana he believed Mr.

Nezaticky was in possession. He did not imme​ diately inform him of that belief nor advise Nezaticky that he was being detained for investigation and, consequently, he did not advise Mr. Nezaticky at that point of his Charter rights incidental to detention. He asked Nezaticky if he would open up the rear of the vehicle; before he had even finished asking the question, Nezaticky had said "sure" and opened the canopy door. A very strong smell of vegetative marihuana came "wafting" from the nine garbage bags which, in due course, were found to contain 157 marihuana plants in various sizes. The expert, Mr.

Appleton, said the plants had "just recently been removed from their growing medium". Mr. Appleton testified that under ideal conditions the marihuana would have had a gross wholesale value of $43,500.00, before allowing for the cost of equipment and any caretaker labour. 31 32 33 34 35 36 37 With the benefit of the evidence of the seized marihuana, Cst. Ekkel then prepared an information to obtain and secured from the local stipendiary justice of the peace a warrant to search the defendants' home. The information to obtain includes full particulars of the front door discus​ sion between Cst. Ekkel and Ms.

Nieuweboer, including her refusal to permit access to the residence, and her statements regarding the purposes for which electricity is used in their premises. Upon execution of the warrant police recovered grow op paraphernalia from a grow room which the expert described as being "well laid out and very effi- cient", the level of sophistication of which he set at approximately 71/2 or 8 out of 10.

Burden of proof Crown and defence agreed that the burden of proof rests upon the Crown to establish that the warrantless search at the door of the defendants' residence (if it is found to constitute a knock on search) and the warrantless search of the de- fendants' truck were "reasonable", and did not constitute breaches of the defend- ants'

Section 8 rights against unreasonable search or seizure. Counsel also agree that in the event it is found there have been breaches of the defendants' Charter rights, the burden of proof rests upon the defence to establish under Section 24(2) that the non-conscripted, real evidence of the mari​ huana plants and grow op paraphernalia should be excluded. I agree with both propositions.

Overview of the Charter analysis By way of preface to the analysis which follows, I observe that if the facts of the case had been that police "spooked" the defendants (hoping to prompt a rapid removal of any marihuana) through a telephone call simply informing the defendants of the tip, or by waiting for the Ministry of Children and Families to inform the defendants of the tip, or if for any other reason the surveillance of the home and observations of the removal of the marihuana had not been preceded by any other Charter breach, then notwithstanding certain Charter breaches as​ sociated with Sgt.

Bauhuis stopping Mr. Nezaticky's vehicle (for example, fail​ ing immediately to advise him of the reason for his detention and/or arrest), there would be little room to argue in the face of the Section 24(2) jurisprudence that the non-conscripted, real evidence of the marihuana should be excluded. It is Cst. Ekkel's attendance at the defendants' residence which raises serious questions of admissibility. 38 39 40 41 42 Was Cst. Ekkel's visit a "knock on search"?

a) Judicial consideration of knock on searches The leading authority on what constitutes a "knock on search" is the decision of the Supreme Court of Canada in R. v. Evans (supra) . In that case, police had received an anonymous tip that the accused had marihuana growing in their home. A check of criminal records, electricity consumption and a visual perime​ ter search of the dwelling house from public property had disclosed nothing. In other words, police were at that point in the same position as were Cst. Ekkel and Sgt. Bauhuis. Police then approached the door to the accused's home and knocked.

It was found as a fact that their intention in doing so was to sniff for marihuana when the occupants opened the door. In fact police did smell mari​ huana and arrested the accused immediately. Mr. Justice Sopinka spoke for the majority of the seven judge panel regard​ ing the knock on search issue. At paragraph 10 he says that not every investiga​ tory technique used by the police is a "search" within the meaning of

Section 8; he says the Court must inquire into the purposes of

Section 8 in determining whether or not a particular form of police conduct constitutes a "search" for constitutional purposes. As to the purpose of

Section 8 of the Charter, he said (at paragraph 11) that the fundamental objective of

Section 8 is to preserve the privacy interests of individuals; "to protect individuals from unjustified state intrusions upon their privacy". Thus he said it is only where a person's reasonable expectations of privacy are somehow diminished by an investigatory technique that

Section 8 comes into play. With that understanding bf the purpose of

Section 8, he considered the "invi- tation to knock" that individuals are deemed to extend to members of the public, including police. If police approaching a home to sniff for marihuana is a form of activity contemplated by the invitation to knock, then no violation of any privacy interests can be made out.

But he observed (at paragraph 14) that the waiver of privacy inherent in the implied licence to knock should not be taken to imply that all persons are welcome to approach the home regardless of the pur​ pose of their visit; the implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling: (at paragraph 15) ... where the conduct of the police (or any member of the public) goes beyond that which is permitted by the implied license to knock, the implied "conditions" of that license have effectively been breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder.

In discerning the intention of the police in Evans, Justice Sopinka employed language which, in my view, is directly applicable to the case at bar: (at paragraph 16) ... although I accept that one objective of the police in ap​ proaching the Evans door was to communicate with the occupants of the 43 44 45 dwelling in accordance with the implied license to knock, the evidence makes it clear that a subsidiary purpose of approaching the Evans door was to attempt to "get a whiff or a smell" of marihuana.

As a result, the police approached the Evans home not merely out of a desire to communicate with the occupants, but also in the hope of securing evidence against them. Clearly, occupiers of a dwelling cannot be presumed to invite the police (or anyone else) to approach their home for the purpose of substantiating a crim​ inal charge against them. Any "waiver" of privacy rights that can be implied through the "invitation to knock" simply fails to extend that far.

As a result, where the agents of the state approach a dwelling with the intention of gath​ ering evidence against the occupant, the police have exceeded any authority that is implied by the invitation to knock... (and at paragraph 21) ... as a result, where the police, as here, approach a residential dwelling for the purpose of securing evidence against the occu- pant, the police are engaged in a "search" of the occupant's home. The con​ stitutional permissibility of such a "search" will, accordingly, depend on whether or not the search is "reasonable" within the meaning of

Section 8. (italics added)

As to reasonableness, Justice Sopinka observed that a warrantless search is presumed to be unreasonable unless the party seeking to justify the search can "rebut this presumption of unreasonableness". According to R. v. Collins (1987) , 33 C.C.C. (3d) 1 (S .C.C.) @ 14, in order to rebut the presumption of unreasona- bleness, the Crown must establish three things, namely, (1) that the search was authorized by law, (2) that the law authorizing the search was reasonable, and (3) that the manner in which the search was carried out was reasonable.

Justice Sopinka concluded that approaching a residence and searching for marihuana without a warrant cannot be reasonable because it is not "authorized by law". To distinguish Evans (supra) , the Crown relies on a decision of the B.C. Court of Appeal, R. v. Vu (1999) , 133 C.C.C. (3d) 481 (B .C. C.A.) (leave to appeal denied [1999] S.C.C.A. No. 330 (S .C.C.)) and a decision of the B.C. Supreme Court, R. v. Kim, [1999] B.C.J. No. 1143 (B .C. S.C.). In Vu (supra) , an undercover officer had purchased cocaine from an accused at his apartment.

Two other police officers went to the apartment to confirm the presence and identity of the man who had sold to the undercover officer. When the accused answered the door, police had a brief conversation in the front hall- way, ostensibly about an assault. The trial judge found that the investigation undertaken by the two officers in attending at the apartment was an unreasona​ ble search which infringed the accused's

Section 8 rights; confirming identifica​ tion evidence was excluded. That decision was overturned on appeal. In a strongly worded decision, and speaking for the Court, Chief Justice McEachern opined (at paragraph 41) that cases such as Evans, and before it R. v. Kokesch (1990) , 61 C.C.C. (3d) 207 (S .C.C.) , when considered within the different facts with which he was presented in Vu "represent(ed) the replacement of common sense and reasonableness with extended logic gone astray".

More particularly, 46 47 48 49 50 51 52 53 he was concerned with achieving "a more workable formulation for the determi​ nation of `reasonable' in circumstances such as were present in ( Vu ) ". The Chief Justice went on to distinguish the facts in Evans and Kokesch , however, by observing that the officers in those cases were acting on suspicion only, and were investigating for the purpose of securing evidence which would go beyond mere suspicion. The officers in Vu , by contrast, already had reasona​ ble and probable grounds to believe that Mr.

Vu had committed the offence and "wished only to confirm that the person they believed committed the offence was on the premises. They saw no other evidence". Moving to a Section 24(2) analysis, the Chief Justice concluded that exclu​ sion of the evidence on the facts in Vu , whether or not it was conscriptive through "using the body" of the accused, would "clearly bring the administration of justice into serious disrepute".

I take from Vu that I should resist any invitation to jump to a conclusion that the attendance at the residence of the officers was per se or presumptively unrea- sonable, and rather should consider the facts in the more extensive way recom​ mended by the Chief Justice. In R. v. Kim (supra) , a police officer had received a radio dispatch alleging that Mr. Kim was supplying alcohol to youths for sex. When he drove to the housing complex at which Mr. Kim was supposed to reside, he ran into Mr. Kim in the parking lot, and Mr. Kim agreed to meet the officer at his residence.

Jus​ tice Dillon observed that "at this point it was a routine investigation". At the door of Mr. Kim's residence, the constable advised Mr. Kim of the complaint and asked if he could go into the residence to ensure there was no liquor inside. Mr. Kim refused saying the officer needed a search warrant to enter his house. After stepping away from the residence, the officer received additional evi​ dence from other persons which led to the officer forming the belief that he had reasonable and probable grounds to arrest Mr. Kim for sexual assault, and he did so.

Immediately following the arrest, the officer and other officers who by then had joined him, searched Mr. Kim's house to determine that there were no un​ derage teenagers and to secure the house pending further instructions. In attempting to establish that the prima facie unreasonable search (unrea- sonable because it was without prior authorization) was in fact reasonable, the Crown argued that the search was authorized by law because the police were acting to protect children.

Justice Dillon observed that the common law recognizes that entry into a private dwelling by police in exigent circumstances may be an exception to the maxim that "a man's home is his castle". Justice Dillon had "no difficulty in concluding" that as a matter of law the police have the power in exigent circum​ stances to search in order to protect children and, on the facts of that case, she 54 55 56 57 58 59 60

was satisfied that the search was reasonable. A subsequent very brief entry by a police officer into Mr. Kim's home in order to secure some windows was found to constitute an unreasonable search within the meaning of Kokesch and Evans. I do not find the Kim decision of particular utility in deciding whether Cst. Ekkel's visit to the defendants' front door was or was not a search, and was or was not reasonable.

b) Applying the law to this case Turning to the facts of this case, if all Cst. Ekkel had done was to go to the door and inform Ms. Nieuweboer of the anonymous tip, and asked her once whether she would consent to a search in order that they could substantiate or dismiss the tip, and he had left when she had exercised her constitutional right to deny him access, I would find it easier to accept the Crown's characterization of his visit as being solely for the purpose of communication and being lawful as being within the implied invitation to knock.

But the visit needs to be considered by reference to all of the evidence, and its context. It is significant that neither Cst. Ekkel nor Sgt. Bauhuis made any notes of the conversation which preceded Cst. Ekkel's visit, and in which they discussed the purpose of the visit. Their wholly inconsistent recollections of whether or not Sgt. Bauhuis told Cst. Ekkel that if the occupants consented to the search it would be a "no case seizure" casts considerable doubt on the reliability of all of the rest of their evidence about the purpose of the visit.

I am satisfied both of​ ficers testified honestly regarding their best recollection. But I am also satisfied that with the passage of time, and with the human tendency to reorganize recol​ lections to conform to preferred outcomes, that their evidence is unreliable. I am left to discern the most reasonable inferences to be drawn from all of the evidence. The officers were engaged in an investigation to determine whether there were reasonable and probable grounds to believe that the defendants were pro​ ducing marihuana in their home. They had absolutely no evidence beyond the anonymous tips.

If anything, their suspicion should have been favourable to the accused in light of the accused's reputable standing in the community, absence of any prior criminal record, and the officer's knowledge that there did not ap​ pear to have been any illegal activity in the home only seven months previously. Prior to June 19, Cst. Ekkel had mentioned his desire to see whether he could detect an odour of marihuana emanating from the residence.

On the morning of June 19, the officers knew that not later than that after- noon, the defendants would become aware of the anonymous allegations through the visit of the Ministry of Children and Families representatives. They had tried without success to secure corroborative evidence relating to electrical 61 62 63 64 65 66 67 consumption. They were not at that point aware of any other investigative possibilities. In other words the officers were involved in an investigation in which they had run out of ideas, and run out of time. Sgt. Bauhuis testified that when he later stopped Mr.

Nezaticky's vehicle, his plan went only so far as to stop the vehicle, and he would see where things went from there. The reasonable inference on all of the evidence is that Sgt. Bauhuis' instruction to Cst. Ekkel to knock on the door was similar: that is, he was in​ structing Cst. Ekkel to go to the door and make what clearly would be a provoc​ ative disclosure to the occupants, and see where things went from there. One satisfactory outcome would have been a consent search, but given that Cst. Ekkel didn't even take a consent search form with him, and didn't advise Ms.

Nieuweboer of the information necessary for a consent to be "informed", it seems they didn't perceive that to be a likely outcome. One must consider what Cst. Ekkel did at the door. He did not simply inform Ms. Nieuweboer of the tip and ask whether she would consent to his entering the premises to substantiate or disprove the allegation. In the face of her refusal he was pressing and persistent; he asked two or three times for permission to enter the premises. But Cst.

Ekkel's action which demonstrates irrefutably that his intention was not "communication", but rather investigation, is his admitted questioning of Ms. Nieuweboer as to the way in which she and Mr. Nezaticky heated their home, and his request for particulars regarding electrical consumption. That is not conversation, that is an investigation. On all of the evidence the only reasonable conclusion is that Cst. Ekkel was sent to the defendants' home to pursue an investigation in circumstances in which police had exhausted all other investigative possibilities. Sgt.

Bauhuis then received and applied the fruits of Cnst. Ekkel's investigation.

This seems indistinguishable from the police conduct in Evans (supra) , as described at paragraphs 20 and 21: ...(the) evidence clearly establishes that the police have specifically adverted to the possibity of securing evidence against the accused through "knocking on the door", (thus) the police have exceeded the authority conferred by the implied license to knock... ...where the police, as here, approach a residential dwelling for the purpose of securing evidence against the occupant, the police are engaged in a "search" of the occupant's home. 68

As a matter of law, Cst. Ekkel's attendance at the defendants' premises con​ stituted a knock on search, a warrantless search that is presumptively unreasona- ble. I must then consider whether the Crown has discharged the burden of prov​ ing the search was "reasonable" within the meaning of

Section 8 of the Charter. 69 70 As in Evans at paragraph 24, I accept that the manner in which the police conducted their search was reasonable. But in the sanie paragraph 24, Justice Sopinka observed that a search war​ rant is required under what is now

Section 11 of the Controlled Drugs and Sub​ stances Act in order to search dwellings in connection with an investigation of an alleged offence under that Act. He held that the statutory provision in that regard would take precedence over any common law right to search based on the "knock on" principles. In a decision concurring in the result, Justice LaForest observed that Justice Sopinka held that the search was "unreasonable because it was illegal", while he (Justice LaForest) thought the search was "illegal because it was unreasonable".

Justice LaForest went on to say: The sanctity of the home has constituted a bulwark against the intrusion of state agents for hundreds of years. The fact that the manner in which the police conducted themselves was not otherwise abusive does not alter the basic inconsistency of their act with this fundamental constitutional princi- ple. Our society simply cannot accept police wandering about or "sniffing" around our homes. As noted, the seemingly minor intrusion here would al​ most inevitably lead, and in fact did lead, to a more intrusive search....

This underlines the need of proceeding by warrant wherever possible as the law requires. 71 72 73 Even after giving anxious consideration to Chief Justice McEachern's cau​ tion against "replace(ing) common sense and reasonableness with extended logic gone astray", but having regard to the fact that these officers' conduct was more akin to the conduct in Kokesch and Evans than to the conduct in Vu , I am satisfied that the Crown has failed to discharge its burden of establishing that the knock on search was reasonable.

Accordingly, that search constituted a breach of the defendants' rights against unreasonable search or seizure under

Section 8 of the Charter. Stopping and searching Nezaticky's vehicle Counsel essentially agreed on the principles of law to be applied in assessing whether a police officer possesses grounds to suspect that an accused is engaged in criminal activity such as to justify detaining that citizen for investigative purposes. In R. v. Ferris (1998) , 126 C.C.C. (3d) 298 (B.C. C.A.) at paragraph 37 , the B.C. Court of Appeal adopted the formulation for the test for articulable cause set out by Doherty J.A. in R. v. Simpson (1993) , 79 C.C.C. (3d) 482 (Ont .

C.A.) at page 501: These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation. The requirement that the facts must meet an objectively discernible standard is recognized in connection with the arrest power (Regina v. Storrey (1990) 53 C.C.C. (3d) 74 75 76 77 316 @ page 324) and serves to avoid indiscriminate and discriminatory exer​ cises of the police power.

So the question is whether there existed "a constellation of objectively dis​ cernible facts" which gave Sgt. Bauhuis reasonable cause to suspect that Mr. Nezaticky was criminally implicated in the suspected marihuana production under investigation. While Ms. Nieuweboer's exercise of her constitutional right to refuse access to her home is understood by the Court as a matter of constitutional law to be an equivocal response, Cst. Ekkel's description of that repeated refusal "didn't seem reasonable" to Sgt.

Bauhuis, a conclusion which as a matter of fact not law was reasonably open to an experienced police officer. That perception, taken together with the surveillance observations following so closely in time after Cst. Ekkel's visit was suspected to have "spooked" the occupants of the home, and finally considering the "odd movement" by the vehicle when it appeared the driver first observed the police car, all combined to constitute such a "constella- tion of objectively discernible facts". Was there nonetheless a breach of Nezaticky's Charter rights after being stopped? While Sgt.

Bauhuis had the right to stop Nezaticky in terms of the "constel- lation of objectively discernible facts", his pre-existing investigative belief and intention, compounded by the strong smell of marihuana in a vegetative state when he encountered Nezaticky on the street, meant Nezaticky was detained within the meaning of

Section 9 of the Charter, and had the right under

Section 10 to "be informed promptly of the reasons" for his detention and to be informed of his right to retain and instruct counsel without delay. There is no reason of​ fered as to why Sgt. Bauhuis failed to do so. That failure constituted a breach of Mr. Nezaticky's

Section 10 Charter rights. Section 24(2) analysis As suggested at the outset of these reasons, the factors to be considered with respect to the exclusion of evidence under Section 24(2) are set out in R. v. Collins (supra) and are grouped under three headings:

1) The effect of the admission of the evidence on the fairness of the trial, 2) The seriousness of the Charter violation; and 3) The effect of the inclusion or the exclusion of the evidence on the reputation of the administration of justice. 78 Preliminary consideration: the interconnectedness of the three searches Mr. Smith argues that the sequence of events beginning with Cst.

Ekkel's visit to the defendants' residence, spanning the warrantless search of the truck, and concluding with the warranted search of the residence, must be seen as a 79 single sequence of events such that the s.24(2) analysis must view each and all three of the searches and the seizures by reference to each other and to their entirety. That was the approach taken by Madam Justice Dillon in R. v.

Kim (supra , at para 50), where she said: As there was no evidence obtained from (the second unlawful) search, there can only be a section 24(2) remedy if the two searches are so intertwined that the unreasonableness of this search affects the subsequent search pursuant to warrant. The question is whether there is a sufficient temporal link between the warrantless search conducted by Lee in breach of the Charter and the subsequent discovery of evidence pursuant to a valid search to warrant ex​ amination under section 24(2) (see R. v. Silvera, supra @ 495; R. v. Wiley, [1993] 3 S.C.R. 263 @ 278 (S .C.C.).

LaForest J. discussed this issue in dis​ sent in R. v. Silvera and said @ 468-469: (paragraph 56) ... the first determination that must be made in the section 24(2) analysis is whether a Charter violation oc​ curred in the course of obtaining the evidence. As Sopinka J. noted in Regina v. Grant, supra, there need only be a sufficient temporal connection between the warrantless search and the evi​ dence ultimately obtained to require an analysis under Section 24(2) of the Charter ... a causal connection is not required.

Rather, one must focus on the entire chain of events during which the Charter violation occurred. (paragraph 57)... In R. v. Grant, R. v. Kokesch and R. v. Wyley (1993) 84 C.C.C. (3d) 161 , the Court found that there was a suf​ ficient temporal link between warrantless perimeter searches made in breach of

Section 8 of the Charter and the subsequent discovery of the evidence pursuant to a valid search to warrant examination under Section 24(2). Even where a perimeter search was not essential to the search conducted pursuant to the war- rant, the Court held, the actions all form "component parts of an ongoing investigation and thus are not sufficiently remote from one another to diminish their temporal connection": see R. v. Wyley @ p. 172. In this case approximately an hour and a half passed between Cst. Ekkel's visit to the defendants' residence, and the eventual warranted search.

As a matter of fact (as distinguished from a conclusion of law), even though police could have undertaken alternate mechanisms to "spook" the defendants into moving the marihuana from their place of privacy (their residence) to a place enjoying much lower expectation of privacy (the vehicle), the evidence is that the search of the vehicle and the later warranted search of the house would not have oc​ curred "but for" Cst. Ekkel's investigative trespass upon the defendants' pro- perty.

While there is room to argue the causal connection (given that other mechanisms could have triggered the discovery), the temporal connection is such that in my view the 24(2) analysis must be undertaken by reference to all three searches and the seizures in their entirety. 80 81 82 83 The effect of the admission of the evidence on the fairness of the trial Mr. Smith, on behalf of the defendants, concedes that the seized marihuana is non-conscriptive, real evidence which existed regardless of any Charter violation. In R. v. Stillman , [1997] 1 S.C.R. 607 (S .C.C.) @ 653, Mr.

Justice Cory said: The admission of evidence which falls into this category (non-conscriptive evidence which existed independently of the Charter breach in a form usable by the state) will, as stated in Collins (supra) rarely operate to render the trial unfair. The seriousness of the Charter violation

a) the purpose of assessing the seriousness of the breach One considers factors relating to the seriousness of the Charter violation: to assess the disrepute the administration of justice would suffer as a conse​ quence of judicial acceptance of evidence obtained through a serious Charter breach. The Court must refuse to condone, and must disassociate itself from, egregious police conduct ... relevant factors in this portion of the s.24(2) in​ quiry include such questions as: was the violation deliberate, wilful or fla- grant, or was it committed in good faith?

Was the violation motivated by urgency or necessity to preserve evidence? Were other investigative tech​ niques available? ( See Kokesch @ p. 226) ... (my italics)

b) violations of the sanctity of the home It has been held repeatedly — to the extent it can be seen as being trite — that Charter breaches which involve violation of the sanctity of the home are particularly serious (see for example, R. v. Feeney, [1997] 2 S.C.R. 13 (S .C.C.) , R. v.

Silveira, [1995] 2 S.C.R. 297 (S .C.C.) , Evans (supra) , and Kokesch (supra) where Justice Sopinka said (p .228): Even before the enactment of the Charter, individuals were entitled to expect that their environs would be free of prowling government officials unless and until the conditions for the exercise of legal authority are met ... the elevation of that protection to the constitutional level signifies its deep roots in our legal culture.

To similar effect, in Vu (supra) , Chief Justice McEachern said at paragraph 30: Central to both Kokesch and Evans is the principle that a person's home is his or her castle, to which the law ascribes the highest possible privacy interest. 84 In Evans (at para. 20), Justice Sopinka referred to the "Orwellian vision of police authority" which would prevail if police were

authorized to rely on the "implied license to knock" for the purpose of randomly checking homes for evi​ dence of criminal activity. 85 86 87 88 89 It was established as a matter of evidence in this case that the defendants lived at the subject premises and, accordingly, had a reasonable expectation of privacy. But while every Charter breach which violates the sanctity of the home will be a serious breach, not every such breach will give rise to a remedy under s.24(2); Vu is only one example of cases which support that proposition. So one must ask whether this particular violation of the home is more or less serious than other s.8 breaches relating to private dwellings.

c) the relative invasiveness of the search The actual searching technique in this case was less intrusive than in many others. Cst. Ekkel did not prowl around the property; he did not go anywhere other than the front walk and the front porch. He did not enter the premises. Because Ms. Nieuweboer closed the door, he did not see inside the premises. He says, and I have no reason to disbelieve him, that he did not undertake a visual search of windows or venting or other aspects of the home that might be consis​ tent with a grow op.

Given the relatively non-invasive manner of the search, determination of whether this search is nonetheless more serious than other searches which vio​ late the sanctity of the home will turn on an analysis of whether the violation was committed in good faith, and whether other investigative techniques were available.

d) was the breach committed in good faith? In assessing whether a particular breach was committed in good faith or was "flagrant" (remembering that in the context of s.24(2) cases, the terms "good faith" and "flagrant" are "terms of art" ... see Kokesch (supra) at page 228), consideration should be given to whether the police knew, or reasonably ought to have known that their conduct would violate the citizen's constitutional rights. In that regard, at page 230 of Kokesch, Justice Sopinka observed: I do not wish to be understood as imposing upon the police a burden of in​ stant

interpretation of court decisions. The question of the length of time af​ ter a judgment that ought to be permitted to pass before knowledge of its content is attributed to the police for the purposes of assessing good faith is an interesting one, but it does not arise on these facts. Nor does it arise in this case. Cst. Ekkel acknowledged that he knew "knock on searches" were unlawful. I have found as a fact that he attended the defendants' residence for an investigative purpose, and not simply to "communicate".

Ac- cordingly, he knew, or reasonably ought to have known, that he was trespassing. 90 91 92 Again, the language used in Kokesch (supra , at page 230) could as easily have been written to apply to the facts of this case: ...whichever is the case (he) cannot be said to have proceeded in "good faith". Either the police knew they were trespassing, or they ought to have known. Whichever is the case, they cannot be said to have proceeded in "good faith" as that term is understood in s.24(2) jurisprudence. In the B.C. Court of Appeal decision in R. v. Evans (1994) , 93 C.C.C. (3d) 130 (B .C.

CA.) @ 138, Madam Justice Southin, speaking for the majority, de​ cided the "good faith" issue in favour of the police because it was the first case in which it had been asserted by an accused person that for a policeman "to go boldly to the front door of a residence and knock and sniff' would be an unrea​ sonable search. She went on to say, however: Hereafter, if this judgment is not reversed on appeal, the "knock on" as an investigative technique will have to be abandoned, at least in instances of suspicion of cultivating marihuana...

e) alternate investigative techniques There were lawful alternate investigative techniques open to the officers. They could have accomplished exactly the same objective by a telephone call in which they sought consent to search (indeed , had they done so, their assertion that the obtaining of that consent was their sole objective would have been more credible). They could have waited for the Ministry of Children and Families to disclose the existence of the tip and then mounted their surveillance.

If their intention was to "spook" the defendants into moving the marihuana, that too could have been accomplished by telephone or by waiting for the actions of the Ministry of Children and Families.

Relevant to both good faith and alternate investigative techniques are these comments of Justice Sopinka in Kokesch at page 227, where he said: Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally, where they take this latter course, the Charter violation is plainly more serious than it would be otherwise, not less. Any other conclusion leads to an indirect but substan​ tial erosion of the Hunter standards.

The Crown would happily concede Sec​ tion 8 violations if they could routinely achieve admission under Section 24(2) with the claim that the police did not obtain a warrant because they did not have reasonable and probable grounds. The irony of this result is self evident. It should not be forgotten that ex post facto justification of searches by their results is precisely what the Hunter standards were designed to pre- vent: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145 per Dickson, J. (as he then was) at page 160. (my italics) 93 94

95 fj conclusion regarding seriousness of the offence The absence of good faith and the existence of alternate investigative tech​ niques are what make this breach more serious than other violations of the sanc​ tity of the home, notwithstanding the relatively non-invasive manner of the search. Effect of exclusion on the reputation of the administration of justice If exclusion of evidence would occasion greater disrepute for the administra​ tion of justice than its admission, then the impugned evidence ought to be admit​ ted ( see Collins , supra @ pp. 20, 21).

I can do no better than respectfully to adopt the analysis of Justice Sopinka in Kokesch (supra , at page 232) as applying equally in this case: The offences with which the appellant is charged are serious offences, though narcotics offences involving marihuana are generally regarded as less serious than those involving "hard" drugs such as cocaine and heroine. The appellant would seem to be plainly guilty, and the impugned evidence is re​ quired for a conviction. It cannot be denied that the administration of justice could suffer some degree of disrepute from the exclusion of this evidence.

However, I have concluded, not without reluctance, that the administration of justice would suffer far greater disrepute from the admission of this evi​ dence than from its exclusion. This Court must not be seen to condone delib​ erate unlawful conduct designed to subvert both the legal and constitutional limits of police power to intrude on individual privacy. As Chief Justice Dickson stated in Genest (1989) 45 C.C.C. (3d) 385 @ 410: "The breach was not merely technical or minor".

The violation of s.8 of the Charter that oc​ curred in this case must be regarded as flagrant, and the disrepute to the jus​ tice system that would necessarily result from the admission of the impugned evidence cannot be counterbalanced by speculation about the disrepute that might flow from its exclusion. 96 97 98 99 100 Conclusion Cst. Ekkel's investigative trespass was a search, it was unreasonable, and so it breached the defendants' right against unreasonable search and seizure.

The temporal and other connections of the three searches and the seizures are so closely intertwined as to require the s.24(2) analysis to be undertaken by reference to the whole of that sequence of events. If the only Charter breaches were those associated with the stop and search of Nezaticky's vehicle, I would admit the evidence of the marihuana seized from the truck and the grow op paraphernalia seized from the house. Admission of the evidence would not affect the fairness of the trial. The s.8 breach associated with the knock on search is serious, because: (

a) It involves a violation of the sanctity of the home; 101 102 (

b) Using the meaning associated with this constitutional term of art, it was a "flagrant" breach as distinct from one committed in good faith; and (

c) There were alternate investigative techniques readily available to the police. Admission of the evidence would occasion greater disrepute for the adminis​ tration of justice than its exclusion. Evidence of the seized marihuana and grow op paraphernalia shall be excluded. Evidence excluded.