R. v. A.B., 2020 NUCJ 17

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. A.B., 2020 NUCJ 17 Date: 20200420 Docket: 08-18-762 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: A. B. ________________________________________________________________________ Before: Madam Justice Charlesworth Counsel (Crown): A. Seagal Counsel (Accused): A. Landry Location Heard: Iqaluit, Nunavut Date Heard: February 21 and March 11, 2020 Matters: Application on voir dire for exclusion of evidence under ss. 8 and 10(

b) of the Canadian Charter of Rights and Freedoms REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: Under section 110(1) of the Youth Criminal Justice Act , “no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.” Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I.

INTRODUCTION [ 1 ] In late September and early October 2018 in Iqaluit, two taxi drivers were robbed at gunpoint. The RCMP started an investigation after the first incident and obtained some information about a possible perpetrator. Two people were involved in the second robbery which happened near the Elder’s Centre. The taxi driver recognized the female involved and knew her name and home address.

Shortly after the robbery, the RCMP attended the area around the Elder’s Centre in tactical gear because a firearm had been used. [ 2 ] A.B., a young person at the time of the relevant offences, was found in the area along with the female and other young people. Police had good reason to suspect he was the male person involved in the second robbery, and the only person involved in the first. Eventually, A.B. was charged with multiple offences arising out of both robberies. [ 3 ] Following a lengthy earlier voir dire in this matter, Justice Johnson ruled, in R. v.

A.B. , 2019 NUCJ 14 , that all of the statements made by the accused to the police were inadmissible. The first two statements were involuntary and obtained contrary to s. 146 of the Youth Criminal Justice Act , SC 2002, c 1 ( YCJA ) and the third statement was tainted by the illegality of the first two.

Justice Johnson decided that none of the statements could be used as evidence at the trial. [ 4 ] The police used information contained in those statements from A.B. to obtain a search warrant for a boat on the beach near where A.B. was found, where they believed he was living. [ 5 ] A.B. brought this pre-trial motion alleging that that search was contrary to the Charter of Rights and Freedoms ( Charter ), and any items seized from the boat should not be allowed into evidence on the trial proper.

Based on Justice Johnson’s ruling, both the Crown and the Defence agree that all information from A.B.’s statements must be excised from the Information to Obtain the search warrant. [ 6 ] The Defence argues that without that information, the warrant is invalid and cannot justify the search of the boat. The search of the boat is therefore contrary to s. 8 of the Charter and the items obtained are inadmissible at the trial. The Defence also argues that the statements made by the accused that Justice Johnson found to be inadmissible were made contrary to s. 10(

b) of the Charter . The Defence says this provides additional weight to the argument that the evidence obtained must be excluded.

[7] Briefly, the Crown counters that there was no s. 10(

b) breach, the accused had no reasonable expectation of privacy in the boatand therefore there was no s. 8 breach, and even if there were breaches of the accused’s Charter rights, s. 24(2) of the Charter does notrequire exclusion of the evidence seized in these circumstances. [8] The issue before me is whether the police action that night breached one or both of A.B.’s Charter rights to be informed of theright to retain and instruct counsel upon detention, and to be secure against unreasonable search and seizure. If either right was breached,I must then decide whether the resulting seized items can be admitted in the trial. II.

SECTION 10(B): TO BE INFORMED OF THE RIGHT TO RETAIN AND INSTRUCT COUNSEL UPON DETENTION [9] In paragraphs 42 and 43 of his decision on the admissibility of the accused’s three statements, Justice Johnson noted that one wasconceded by the Crown to be inadmissible and he decided that the first also was inadmissible. In both cases, this was because the RCMPfailed to comply with s. 146(2) of the YCJA, and the statements were involuntary. There was a third statement which Justice Johnsonfound to be inadmissible because it was tainted by the first and second statements.

The accused was clearly detained before giving thestatements. [10] Justice Johnson found that Cpl Moore decided not to arrest A.B. when he had the grounds to do so, and therefore “avoided takingextra steps to ensure the statement was voluntary and in compliance with s. 146 of the YCJA.” He went on to state, “I have insufficientinformation to determine if the accused understood his rights.” The rights Justice Johnson is referring to are those set out in s. 146(2) –which includes the rights at clause 146(2)(b)(iii) “to consult counsel”, and at clause 146(2)(c)(

i) to be “given a reasonable opportunity toconsult with counsel”. [11] In this particular case, therefore, I find that the breach of s. 146(2) found by Justice Johnson is the same as a breach of s. 10(

b) ofthe Charter. III.

SECTION 8: TO BE SECURE AGAINST UNREASONABLE SEARCH OR SEIZURE [12] As a Defence motion, the burden is on the accused to show three things, on a balance of probabilities: 1. Did the impugned conduct involve state action? The answer to this is clearly, yes. 2. Did the conduct involve a search or seizure? Again, the answer is clearly, yes. 3. Does the accused have standing to raise the validity of the search or seizure? A.

Preliminary issue [13] The accused did not present any evidence on the voir dire and the Crown argues that there is no evidence properly before me thathe has any connection to the boat that was searched, so there is no evidence at all that he has standing. [14] A similar argument was made by the Crown in the case of R. v. Jones, 2017 SCC 60 , [2017] 2 SCR 696, a caseconcerning a search of text messages.

In it, Côté J. for the majority stated at paragraph 9, I conclude that an accused mounting a s. 8 claim may ask the court to assume as true any fact that the Crown has alleged or will allege inthe prosecution against him in lieu of tendering evidence probative of those same facts in the voir dire.

[15] Clearly the Crown intends to allege in its prosecution against A.B. that the items seized from the boat were his, because he wasliving there. I therefore find that the Defence did not have to give evidence on this voir dire for me to proceed on the understanding thathe was living on the boat in question. That is the basis of the Crown’s case against him, and the understanding throughout the voir direwas that he was indeed living on the boat. B.

Does the accused have standing? [16] To have standing, the accused must show an infringement of his own reasonable expectation of privacy, which is determined onthe basis of the totality of the circumstances, including: 1. presence at the time of the search; 2. possession or control of the property or place searched; 3. ownership of the property or place; historical use of the property; 4. the ability to regulate access, including the right to admit or exclude others from the place; 5. the existence of a subjective expectation of privacy, and 6. the objective reasonableness of the expectation. (R. v.

Edwards (1996), (SCC), 104 C.C.C. (3d) 136 (S.C.C.)) [17] At the time of the search the RCMP were under the impression that the boat was abandoned, but on the voir dire the Crown calledas a witness the actual owner of the boat, Mr. Dino Tikivik. He identified the boat in question (pictured in Exhibit 1 on the voir dire) ashis father’s boat, which he inherited after his father died about seven years ago. It was last used as a boat about five years ago, and thenit was moved about a year later from near the breakwater to a spot on the beach about 30 feet from Mr.

Tikivik’s shack, in front of theElder’s Home. [18] Mr. Tikivik has been ill a few times over the last several years and has not used the boat, although he was going to try to fix it up sohis family could. The boat was placed on some 4x4’s to get it off the ground and the cabin was locked with a padlock. The majorequipment on it was removed and placed in the shack. During the NorthMart fire in November 2018 – after the police search – Mr.Tikivik saw that both his shack and his boat had been broken into and ransacked.

Although the boat was not completely abandoned, Mr.Tikivik clearly had not been able to look after it for at least four years before the police search. [19] From the photograph of the interior of the boat, entered as Exhibit 3 on the voir dire, it is clear that A.B. was living there beforethe search: there are blankets, pillows, possibly clothing and even a Montreal Canadiens banner put up inside the cabin.

A.B. had takenpossession of the boat, and was exercising control over it, although he clearly did not own it and was not present in it at the time of thesearch. [20] A.B. had also apparently tried to regulate access, by keeping a padlock on the entrance to the cabin which would likely deter somepeople from entering. He did not have the right to admit or exclude others.

It appears from the way it was set up, that A.B had asubjective expectation of privacy; the final question is whether that expectation was reasonable in the circumstances. [21] I note that Corporal Moore of the RCMP, who is an experienced officer familiar with local conditions in Iqaluit, consulted withanother member before deciding to apply for a search warrant. He was concerned that a search warrant should be obtained because theremay have been an expectation of privacy in the apparently-abandoned boat.

As noted above, a search warrant was obtained. [22] I believe I can take judicial notice of the housing situation in Iqaluit, and Nunavut generally. There is much overcrowding and it isnot unusual for individuals, especially in the warmer months, to take over and “camp out” in non-residential spaces. With thatunderstanding of the context, it seems to me that most people would respect such a situation and it would be reasonable to expectprivacy.

I find that the police were correct in deciding that a warrant should be obtained before searching the cabin of the boat.Unfortunately, in view of the inadmissibility of the accused’s statements to the police, the grounds for the warrant are insufficient.

[23] The Crown submits that the police had other information about where the accused was living at the time: from his grandmother,who was the adult requested by the accused to be present for his third statement to the police. While she was being driven to the RCMPdetachment for that purpose, the grandmother pointed out the boat the accused was living on. The Defence says that information mustalso be excised from the Information to Obtain, as the police got it essentially by trickery.

In view of my decision under s. 24(2), I willnot decide this issue; I will assume the Information to Obtain is insufficient even with the grandmother’s information. [24] Finally, because A.B. was living on the boat, a warrantless search is an unreasonable search under s. 8 of the Charter. IV.

SECTION 24(2): WHETHER THE EVIDENCE FOUND SHOULD BE EXCLUDED [25] Subsection 24(2) of the Charter says, Where … a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by thisCharter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in theproceedings would bring the administration of justice into disrepute. [26] Having found that the evidence from the boat was obtained in a manner that infringed the accused’s rights to be informed upondetention of the right to obtain and instruct counsel, and to be secure against unreasonable search and seizure, I am required to excludethe evidence if the admission of it at the trial would bring the administration of justice into disrepute. [27] The leading case on interpreting s. 24 is R. v.

Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1 (S.C.C.) [Grant], whichdirects the court to consider three issues in deciding whether the admission of evidence would bring the administration of justice intodisrepute: 1. The seriousness of the Charter-infringing state conduct; 2. The impact of the breach on the Charter-protected interests of the accused; 3. Society’s interest in the adjudication of the case on its merits.

I am instructed to balance the assessments under each of the above criteria to decide whether, in all of the circumstances, admission ofthe evidence found on the boat would bring the administration of justice into disrepute. [28] I am reminded by Grant, at paragraph 70, that: s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather atsystemic concerns.

The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system. [29] The evidence in this case was derived from the illegal statements of the accused, and the admissibility of such evidence isdiscussed specifically at paragraphs 116 – 128 of Grant. A. The seriousness of the Charter-infringing state conduct [30] On October 4, 2018, six RCMP officers in full tactical gear responded quickly to a call about an armed robbery – the second in aweek – involving a firearm near the centre of Iqaluit.

[ 31 ] I have found that in the course of the investigation over the next day, the RCMP breached A.B.’s rights in two respects, as outlined above. [ 32 ] Regarding the statements, the officer deliberately decided not to arrest the accused before speaking to him, although he “should have had no subjective or objective doubt that he had grounds to arrest the accused,” according to Justice Johnson at paragraph 43 of his decision on voluntariness.

Such a deliberate action by an experienced officer is very serious; it has already resulted in the exclusion of the statements from use in the forthcoming trial. [ 33 ] After obtaining statements from A.B., the RCMP considered the legalities surrounding a search of a boat they believed A.B. was living on and decided to apply for a warrant, to search for the firearm used in two robberies. I found the warrant to be unlawful, because it is based primarily on the inadmissible statements made by the accused. However, this state conduct is less serious because the officers tried to do the right thing.

As well, the officers were urgently searching for a firearm in a busy area of town and had legitimate public safety concerns. This “attenuate[s] the seriousness of police conduct that results in a Charter breach,” per Grant at paragraph 75 . B. The impact of the breaches on the Charter -protected interest of the accused [ 34 ] This stage of the inquiry requires a consideration of “the extent to which the breach actually undermined the interests protected by the right infringed” ( Grant at paragraph 76 ). [ 35 ] In this case, the police applied for a warrant before entering the boat to search it.

Although I have found that A.B. had some expectation of privacy, it was not at the same level as the expectation of privacy in a home. Anyone walking along the beach could have decided to climb up on the boat and take a look inside. A.B.’s privacy interests were not undermined to a great extent. [ 36 ] The real question is regarding the impact of the serious breach of A.B.’s right to retain and instruct counsel.

Grant says at paragraph 125 , that, [i]n determining the impact of the breach, the discoverability of the derivative evidence may also be important as a factor strengthening or attenuating the self-incriminatory character of the evidence.

If the derivative evidence was independently discoverable, the impact of the breach on the accused is lessened and admission is more likely. [ 37 ] In this case, the police were likely to find out about the boat that A.B. was living on independently of the statements made by A.B., through talking to his family members, or the co-accused. [ 38 ] I find that the impact of the breaches on A.B.’s interests is at the lower end. C.

Society’s interest in the adjudication of the case on its merits [ 39 ] According to Grant , at paragraph 79 , this part of the inquiry asks me to “consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.” [Emphasis in the original] [ 40 ] One issue to consider is the reliability of the evidence sought to be excluded, because “exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute,” per Grant at paragraph 81 .

The evidence found on the boat was physical evidence that may be connected to the robberies charged by evidence of the victims; it is quite reliable. [ 41 ] This area of inquiry favours admission of the evidence. D. Weighing and balancing the factors

[ 42 ] On the subject of derivative evidence, Grant , at paragraph 127 says, The weighing process and balancing of these concerns is one for the trial judge in each case. … As a general rule, however, it can be ventured that where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused’s protected interests, the trial judge may conclude that it should be admitted under s. 24(2).

On the other hand, deliberate and egregious police conduct that severely impacted the accused’s protected interests may result in exclusion, notwithstanding that the evidence may be reliable. [ 43 ] In this case, because the object of the search was a firearm likely located in an insecure area of town and a search warrant was obtained in an attempt to safeguard A.B.’s interests, I find that the balance of concerns favours admission of the evidence found. Dated at the City of Iqaluit this 20th day of April, 2020 ___________________ Justice S. Charlesworth Nunavut Court of Justice