paul gould APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT ___________________________________________________________________, 2011 NLTD 59

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR TRIAL DIVISION ( GENERAL ) Citation : R. v. Gould , 2011 NLTD(G) 59 Date : 201 10420 Docket : 201004T0202 BETWEEN: paul gould APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT ___________________________________________________________________ Before: The Honourable Mr. Justice William H. Goodridge ___________________________________________________________________ On Appeal from : a decision of the Provincial Court of Newfoundland and Labrador, file numbers 1308A00312, 1308A00311 and 1308A00233, dated March 9, 2009. Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: November 10, 2010

Summary: The police were advised that the Appellant was about to receive delivery of a package of contraband tobacco. The need to preserve the evidence was found to constitute exigent circumstances. At the Appellant’s home (without a warrant) t he police officer requested that the Appellant pass over the package, advising that a search warrant would be obtained if he did not cooperate. The officer did not enter the home, but remained on the doorstep. He was not planning to leave and the threat to obtain a warrant may have been a ruse. The Appellant cooperated. The trial judge ruled that the police action did not violate the Appellant’s

section 8 Charter rights. The Appellant appealed that ruling, arguing it was an error of law. The Appeal is dismissed. The search and seizure was authorized by law ( Tobacco Tax Act ), the law was reasonable, and the manner in which the search was carried out was reasonable.

Appearances: Derek J. Hogan Counsel for the Appellant R. Neil Smith and Robert M. Matthews, Q.C. Counsel for the Respondent Authorities Cited: STATUTES CONSIDERED: Excise Act, 2001 S.C. 2002, c. 22, s. 32; Tobacco Tax Act, R.S.N.L. 1990, c. T-5, s. 68.1(1); and Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, ss. 7, 8 and 24(2) REASONS FOR JUDGMENT Goodridge, J. : INTRODUCTION [ 1 ] Paul Gould appeals his November 24, 2009 conviction for unlawful possession of contraband tobacco. [1] He says the trial judge should have excluded the tobacco evidence that was tendered at trial because of a violation of his Charter rights. The contraband tobacco was obtained after a police officer, acting on a tip, presented at the Appellant’s doorstep and asked that it be passed over. There was no warrant.

The police officer made representations that he would come back with a search warrant if the Appellant did not pass over the evidence. [ 2 ] The Appellant argued that the action of the police officer constituted an unlawful search of the person. The trial judge rejected this argument and concluded that there had been no breach of the Charter. The trial judge found that the search and seizure was authorized by law and the manner in which the search was carried out was reasonable The Appellant says that this decision by the trial judge was an error of law.

He asks this Court to quash the convictions and enter acquittals, or order a new trial. ISSUE [ 3 ] The issue is whether the trial judge erred in law by ruling that the police did not breach

section 8 of the Charter (right to be secure against unreasonable search or seizure). If it is determined that the trial judge erred in finding no Charter breach, then a second issue arises, whether the proper remedy is exclusion of the Appellant’s statement and exclusion of the seized evidence, pursuant to section 24(2) of the Charter . REASONS OF TRIAL JUDGE [ 4 ] The trial judge found that the tip provided to the police was compelling and that there was insufficient time to obtain a search warrant.

The trial judge found that exigent circumstances existed, because of the need to preserve the evidence and the limited time available. She determined that the Appellant was detained when the request for the package of tobacco was made. Although she discussed three different lawful justifications for the search, her conclusion was that: “… [the] request for the package constituted a valid search. The police wanted to secure and preserve the evidence, that is, the tobacco contained in the package, and they had reasonable grounds to do so.

The search was incident to the detention of the accused and was therefore justified.” [2] STANDARD OF REVIEW [ 5 ] On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus, the standard of review on a question of law is that of correctness: Housen v. Nikolaisen , [2002] 2 S.C.R. 235, 2002 SCC 33 at paragraph 8 . FACTS

[6] There were no issues raised regarding the trial judge’s findings of facts.

However, to clarify matters, and to narrow the issuesfor this appeal, counsel indicated during the hearing that the following specific facts (some of which were not mentioned in the trialjudge’s reasons) are agreed: ▪ On February 8, 2008 the police received a reliable tip regarding the imminent delivery of contraband tobacco to the Appellant; ▪ There were adequate grounds to secure a search warrant had one been sought; ▪ There was insufficient time to secure the warrant -- “exigent circumstances” existed; ▪ When at the Appellant’s home, before the search and seizure took place, the police had reasonable and probable grounds to arrestthe Appellant; ▪ The police action in securing the evidence from the Appellant’s home was a search and seizure; ▪ The Appellant was charged, but he was never arrested; ▪ There was no warrant authorizing a search of the Appellant or his home; ▪ The Appellant did not consent to the search; ▪ As a result of the search, the police seized a quantity of contraband tobacco. [7] Details of the other facts, extracted from the reasons and from the transcript, (where non-contentious) are summarized below. [8] At 12:30 p.m. on February 8, 2008, a tip was received at the RCMP Port Saunders detachment that a package of contrabandtobacco was in a Sameday courier van en route to the Appellant’s home.

Sgt. Noseworthy, a 33-year veteran of the RCMP, was the onlyofficer on duty when this tip came in. He had prior contact from the same informant and other background information on the Appellant,enough to know that this tip was reliable. He considered the option of securing a search warrant but determined that the moving package,and the three hours usually required to secure a warrant, eliminated that as a practical option. [9] Sgt. Noseworthy left the detachment soon after the tip came in, located the courier van (still en route toward the community),and then set up surveillance outside the Appellant’s home.

Soon after he arrived outside the home, he was joined by a second policeofficer, Cst. O’Blenis. At around 2:30 p.m. the courier van pulled up in front of the Appellant’s house. The courier driver went to thedoor with the delivery papers and the package. The officer observed the Appellant’s hands take the package and then saw the handsretreat inside the house. The Appellant remained at the door with the courier driver because he still had to sign the papers acknowledgingdelivery. Sgt. Noseworthy went up the steps and stood in front of the door between the courier and the Appellant.

The officer neverentered the house. The package was no longer visible to him because of a counter just inside the door but the officer knew that thepackage had to be in the immediate vicinity. [10] Sgt. Noseworthy identified himself to the Appellant and advised that he was suspicious that the package, which had just beendelivered, was contraband tobacco. He requested that the Appellant pass the package over and advised that if this were not done then awarrant would be obtained. The Appellant did not engage conversation with the officer but instead complied by passing over thepackage.

The officer then requested that the Appellant come back to the police car. The right to counsel and the standard police caution(right to silence) were read to the Appellant. The Appellant was told that he was not being arrested and that he was free to leave at anytime. The Appellant declined the right to call a lawyer. [11] At 2:36 p.m. the Appellant went to the detachment with Officer Noseworthy, where his Charter rights were read to him asecond time. He was offered the use of the telephone to contact a lawyer but again declined.

He was invited to explain about the packageand, in response, the Appellant provided a statement. [12] Sgt. Noseworthy testified that despite his representation to the Appellant about getting a warrant, it was not his intention toleave the premises to secure the warrant. He was intent on remaining at the premises until he secured the package. ANALYSIS BURDEN OF PROOF [13] When there is a warrantless search, it is presumed to be unreasonable, and the Crown then has the burden of proof, on abalance of probabilities, to rebut the presumption of unreasonableness: Hunter v.

Southam Inc., (SCC), [1984] 2S.C.R. 145 at page 161, R. v. Collins (1987), (SCC), 33 C.C.C. (3d) 1 (S.C.C.). Searches are deemed reasonable if (a)they are authorized by law, (

b) the law itself is reasonable, and (

c) the manner in which the search was carried out was reasonable: R. v.Mann, 2004 SCC 52 at 36. [14] The Crown relied on the Tobacco Tax Act, R.S.N.L., 1990, c. T-5 and the common law search incidental to an arrest as thelegal authorizations for the search. The Appellant does not challenge the reasonableness of the law or the constitutional validity of therelevant provisions of the Act.

Instead, he argued that neither basis comes into play on our facts, and that the manner in which the searchwas carried out (i.e. deception by police officer) was not reasonable.[3] SEACH AS INCIDENT TO DETENTION [15] The trial judge said that this search was authorized as incidental to a detention (page 32 of reasons). It is not clear from therecord before me that this justification for the search was even argued. However, the Crown now concedes that this finding by the trialjudge is an error of law.

There is a search power as incident to an investigative detention, but that arises only if a police officer hasreasonable grounds to believe that there is a safety risk. There were no safety issues identified in the evidence. In addition, this

justification for a search is generally limited to a protective pat-down search of the detained individual: R. v. Mann at paragraph 45. SEARCH AS INCIDENT TO AN ARREST [16] Was the search and seizure incidental to an arrest and therefore lawful? Is it relevant that the officer never made an arrest? [17] The trial judge said that because the police had reasonable grounds to arrest the Appellant, this search could be justified asincidental to an arrest (page 33 of reasons).

There were several authorities filed by the Crown where courts held that a search couldprecede an arrest as long as reasonable and probable grounds to arrest existed at the time.[4] Appellant’s counsel says that theseauthorities are all distinguishable because there was never an arrest in our case. [18] In R. v. Debot, at paragraph 30, Wilson, J. said that as long as the officer has probable cause to arrest the suspect, the fact thathe or she postpones the decision to arrest until after the search is not fatal.

She says this in the context of a review of the reasons from theOntario Court of Appeal, but it is a statement of her view on the law. A difference in the facts of Debot, compared to ours, is that Mr.Debot was arrested immediately following the search. [19] This obiter statement of the law by Wilson, J. was followed and applied in R. v. Aslam, 2006 BCCA 551 at paragraph 11; R.v. Sinclair, 2005 MBCA 41 at paragraph 20; R. v. Charlton at paragraphs 36 to 39 and R. v. Dubois at paragraphs 10 and 11. In threeof these four appellate court decisions the arrest occurred soon after the search.

In Dubois the accused was never advised of his arrest,but the trial judge reasonably found that the arrest was obvious. [20] Obiter comments in other Supreme Court of Canada decisions appear to indicate that a formal arrest is necessary. In Cloutierv. Langlois, (SCC), [1990] 1 S.C.R. 158 at paragraph 49, L’Heureaux-Dubé, J. described the common law asrecognizing that “police have a power to search a lawfully arrested person and to seize anything in his or her possession or immediatesurroundings to … provide evidence against him”. In R. v.

Mann at paragraph 37, Iacobucci, J. stated “the [search incidental to aninvestigative detention] does not give a licence to police to reap the seeds of a warrantless search without the need to effect a lawfularrest based on reasonable and probable grounds.” [21] In my view, it is relevant that the officer never made an arrest. None of these cases extends the common law authority ofsearch incidental to arrest, to search incidental to “reasonable and probable grounds for arrest”. This may seem to some to be aninconsequential distinction, but it is still a distinction. There was never an arrest here and Sgt.

Noseworthy told the Appellant twice thathe was not under arrest. I believe Sgt. Noseworthy acted in good faith, and with good intentions, in taking this less formal approach.However, there are circumstances, and this is one, where the arrest is a necessary component to validate the state action.

In the least, theAppellant may have realized the elevated seriousness of matters if arrested, and perhaps was thinking matters were less serious with theofficer repeating twice that he was not being arrested. [22] It was an error of law for the trial judge to state that this search could be justified as incidental to an arrest. Extending thecommon law search authority beyond the existing parameters would be an encroachment, or I should say a further encroachment, intoCharter protected rights and freedoms. SEARCH UNDER THE Tobacco Tax Act [23]

Section 41 of the Tobacco Tax Act[5] gives police officers specified powers of inspection and search where the conditions forobtaining a warrant exist but, due to exigent circumstances, it would not be practical to obtain the warrant. A warrantless search inexigent circumstances, when authorized by legislation, has been recognized as reasonable by the Supreme Court of Canada, seeparagraphs 152 and 153 of R. v. Silveira, (SCC), [1995] 2 S.C.R. 297 and paragraph 46 of R. v. Kang-Brown, 2008SCC 18 , [2008] 1 S.C.R. 456.

The trial judge discussed the relevant provisions of the Tobacco Tax Act (page 29 of reasons) andthen found that exigent circumstances existed and that the search was carried out in a reasonable manner. [24] The Appellant argues that the Act limits police authority to a search of the private premises, that what occurred here was asearch of the person, and that the Act does not authorize a search of the person. [25] I do not characterize what occurred here as a search of the person.

There is a strong inference from the evidence and trialjudge’s findings of fact that the package of tobacco was not in the possession of the Appellant, but rather, had been placed on or behindthe counter inside the door. The Appellant was visible to the officer, but the package was not visible. It was a non-invasive search of thehome. The Appellant cooperated by passing the package out to the officer when the request was made. [26] The relevant

section of the Tobacco Tax Act provides: Search for tobacco or records 41.

(1) Where an inspector believes on reasonable grounds that a person is contravening or has contravened this Act, the inspector may,with a warrant issued under subsection (2), enter commercial or private premises in the province, and (

a) search for contraband; (

b) examine the contents of the commercial or private premises and make those inquiries that the inspector considers are necessary; (

c) seize, take away and hold anything which on reasonable grounds is or appears to be contraband; … [41(1)(

d) and (

e) and (2) are not relevant to this appeal]

(3) The owner or person in charge of the premises referred to in this

section and a person found there shall give an inspectorreasonable help to enable the inspector to carry out his or her duties and functions under this

section and shall provide the information

that the inspector may reasonably require.

(4) Notwithstanding subsection (1), an inspector may exercise the power of search referred to in that subsection without awarrant issued under subsection (2) where the conditions for obtaining the warrant exist but by reason of exigent circumstancesit would not be practical to obtain the warrant. [emphasis added]

(5) For the purpose of subsection (4), exigent circumstances include circumstances in which the delay necessary to obtain thewarrant would result in danger to human life or safety or the loss or destruction of evidence.

(6) For the purpose of this section, the word "premises" includes a receptacle or container that is not a motor vehicle or trailer. [27] The legislation gives lawful authority for a warrantless search where the officer believes on reasonable grounds that a person iscontravening or has contravened the Act, and exigent circumstances exist. The Appellant agrees that there were exigent circumstances.There was a need to move quickly to preserve the evidence. A warrantless search properly conducted under this

section is a searchauthorized by law. I do not accept the Appellant’s argument that what occurred here was beyond what the Act authorized. [28] The trial judge referenced this legislated authority but did not specifically state that she was relying on it as the legal authorityfor this search and seizure. This Court has authority to determine that the search and seizure were valid, even if the reasons to justify thesearch and seizure are different from those stated by the trial judge. An appellate court is free to replace the opinion of the trial judgewith its own. I find that the search and seizure by Sgt.

Noseworthy was authorized by the Tobacco Tax Act, that the law itself isreasonable and that the search was carried out in a reasonable manner. ADMISSIBILTY -- SECTION 24(2) CHARTER ANALYSIS [29] If I had determined that the trial judge erred in law in finding that there was no violation of the Charter, then I would still haveadmitted the evidence based on the analysis set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and R. v.

Harrison, 2009 SCC34, [2009] 2 S.C.R. 494. [30] In deciding whether evidence obtained in violation of an accused’s Charter rights is to be excluded, the Grant analysisrequires that I examine the seriousness of the conduct that led to obtaining the evidence, the effect on the accused’s Charter protectedrights and the interest of society in adjudication of the case on the merits. I am then to balance my findings and to decide whether rulingthe evidence admissible would bring the administration of justice in disrepute.

SEROIUSNESS OF CONDUCT [31] On the first point, seriousness of the conduct, the Appellant says that the officer misled him, and that the court shoulddisassociate itself from this misconduct by excluding the evidence as the section 24(2) remedy. [32] I do not agree that this ruse by the police officer was

an act of bad faith, or even an error of judgment.[6] The officer’s threat tocome back later with a warrant may have been a bluff, but it was one with teeth. A warrant could have been issued under the knownfacts, and there was a second officer on the scene who could have pursued the warrant if necessary. In addition, there was the authorityavailable to the officer under the Tobacco Tax Act “to enter private premises … and search for contraband”. From my read of theevidence it seems that Sgt.

Noseworthy was not even sure of his next move if the Appellant had not cooperated, other than he was notgoing to leave the premises. Based on these facts, I do not accept that this act of subterfuge by Sgt. Noseworthy in saying he was going toseek a warrant is bad faith, and I do not find it would support exclusion of the evidence. [33] Limited acts of subterfuge would not on their own give rise to a Charter breach, or (if there was a breach) give rise toautomatic exclusion of evidence under section 24(2). In R. v.

Liew, (SCC), [1999] 3 S.C.R. 227, Major J. reviewed thecase law[7] dealing with subterfuge by state agents in the context of an alleged violation of

section 7 of the Charter. He concluded thatthe police can, within the limits imposed by law, engage in limited acts of subterfuge. At paragraph 45 of Liew, Major, J. states: It is of no consequence that the police officer was engaged in a subterfuge, permitted himself to be misidentified, or lied, so long as theresponses by the appellant were not actively elicited or the result of interrogation. In a more perfect world, police officers may not haveto resort to subterfuge, but equally, in that more perfect world, there would be no crime.

For the moment, in this space and time, thepolice can, within the limits imposed by law, engage in limited acts of subterfuge. [34] I find that the officer’s actions, in stating he would get a warrant, falls short of behaviour from which the Court would want todisassociate itself. Impact on the Charter protected interests of the appellant [35] The Appellant acknowledges that the search was not intrusive. This state action had a very low impact on the Appellant’sCharter protected interests. There was no home invasion, Sgt.

Noseworthy was respectful, the evidence was not something emanatingfrom the body and there was no pat down search. The Appellant merely handed the package over to the police. This factor tends tofavour admission. interest of society in adjudication of the case on its merits [36] The evidence is a quantity of contraband tobacco. It is non-bodily physical evidence that is highly reliable and essential to theCrown’s case. The suppression of reliable and essential evidence is contrary to the societal interests in seeking the truth and havingcriminal allegations adjudicated on their merits.

This factor favours admission of the evidence, see R. v. Grant at paragraph 115.

balancing exercise [ 37 ] I agree with the Crown’s comments regarding R. v. Grant and R. v. Harrison . Together these authorities stand for the proposition that reliable evidence that is necessary to support a conviction will not be excluded under section 24(2) where there is no evidence that the police deliberately, willfully or flagrantly violated the Appellant’s Charter rights, and where the impact on the Appellant’s Charter protected interests was diminished. Applying this proposition to our facts results in the evidence being admitted.

The long-term repute of the administration of justice would be damaged by excluding the evidence. conclusion [ 38 ] I find that there was no Charter breach, but for different reasons than those relied on by the trial judge. The Appeal is dismissed. [ 39 ] Even if the search and seizure were unreasonable and contrary to

section 8 of the Charter , I would have admitted the evidence under section 24(2) . The police officer acted in good faith and admission of the evidence would not bring the administration of justice into disrepute. _____________________________ William H. Goodridge Justice [5] In force prior to May 27, 2009 and then r eplaced by Revenue Administration Act , S.N.L. 2009, c. R-15.01. Section 43(4) of the current legislation contains similar a provision to section 41(3) of the Tobacco Tax Act . [6] I distinguish R. v.

Harrison where the Supreme Court of Canada found at paragraph 72 that there had been an error of judgment by police. I also rely on R. v. Silveira where Cory, J. stated that a breach of the Charter rights by the police was not committed in bad faith where the need to preserve the evidence was found to constitute exigent circumstances .