R. v. Spence, 2018 NLSC 28

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Spence , 2018 NLSC 28 Date : February 12, 2018 Docket : 201504G0070 Her Majesty The Queen v. Kirby Spence Before: Justice David F. Hurley Edited Transcript of Oral Reasons for Judgment Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Oral Judgment: January 8, 2018 Appearances: Trina D. Simms Appearing on behalf of the Crown Gary P. Kearney, Q.C. Appearing on behalf of the Accused

Authorities Cited: CASES CONSIDERED: R. v. Kokesch, (SCC), [1990] 3 S.C.R. 3; R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Wiley, (SCC), [1993] 3 S.C.R. 263; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; R. v. Caslake, (SCC), [1998] 1 S.C.R. 51; R. v. Scott, 2016 ABPC 226; R. v. Hufsky, (SCC), [1988] 1 S.C.R. 621; R. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257; R. v. Evans, (SCC), [1996] 1 S.C.R. 8; R. v. Arnett, 2005 ABPC 246;R. v. Weeks, 2007 ABPC 344; R. v. Halloran, 2007 BCSC 1425; Eccles v. Bourque, (SCC), [1975] 2 S.C.R. 739; R. v.Paterson, 2017 SCC 15; R. v.

Manninen, (SCC), [1987] 1 S.C.R. 1233; R. v. Orbanski, 2005 SCC 37; R. v. Mann, 2004SCC 52; R. v. Campbell, 2011 SCC 32; R. v. Ha, 2009 ONCA 340; R. v. Brooks (2003), (ON CA), 178 C.C.C. (3d)361, 59 W.C.B. (2d) 215 (Ont. C.A.); R. v. Araujo, 2000 SCC 65; R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421; R. v.Morelli, 2010 SCC 8; R. v. Grant, (SCC), [1993] 3 S.C.R. 223; R. v. Silveira, (SCC), [1995] 2 S.C.R.297 STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11; Traffic Safety Act, R.S.A. 2000, c. T-6; Criminal Code, R.S.C. 1985, c. C-46; Highway Traffic Act,R.S.O. 1990, c. H.8 REASONS FOR JUDGMENT Hurley, J.: INTRODUCTION [1] Kirby Spence was charged with the following offences: Count #1 on or about the 31st day of January, A.D., 2014, at or near Corner Brook, in the Province of Newfoundland and Labrador, did withoutlawful authority, confine Timmy John Mitchell, contrary to Section 279(2) of the Criminal Code of Canada.

Count #2 on or about the 31st day of January, A.D., 2014, at or near Corner Brook, in the Province of Newfoundland and Labrador, did stealproperty of Timmy Mitchell while armed with a weapon, contrary to

Section 343(

d) of the Criminal Code of Canada. Count #3 on or about the 31st day of January, A.D., 2014, at or near Corner Brook, in the Province of Newfoundland Labrador, with intent tocommit an indictable offence, did have his face masked, contrary to Section 351(2) of the Criminal Code of Canada. Count #4 on or about the 31st day of January, A.D., 2014, at or near Corner Brook, in the Province of Newfoundland and Labrador, did break andenter a certain place, to wit: a dwelling house situate at 79 Humber Road, Corner Brook, Newfoundland and Labrador, and did committherein the indictable offence of robbery, contrary to Section 348(1)(

b) of the Criminal Code of Canada. Count #5 on or about the 31st day of January, A.D., 2014, at or near Corner Brook, in the Province of Newfoundland and Labrador, did being atlarge on his Undertaking, entered into before a Justice on the 18th day of January, A.D., 2014, and being bound to comply with acondition of that Undertaking directed by the said Justice, fail without lawful excuse to comply with that condition to wit: keep the peaceand be of good behavior, contrary to Section 145(3) of the Criminal Code of Canada.

Count #6 On or about the 1st day of February, A.D., 2014, at or near Massey Drive, in the Province of Newfoundland and Labrador, did have in his possession the property of Timmy Mitchell, of a value not exceeding five thousand dollars knowing that all of the property was obtained directly by the commission in Canada of an offence punishable by indictment, contrary to Section 354(1)(

a) and punishable under

Section 355 (

b) of the Criminal Code of Canada (and punishable under

Section 355(

a) of the Criminal Code of Canada ). [ 2 ] Mr. Spence has applied for an order pursuant to s. 24(2) of the 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 (the “ Charter ”) excluding all evidence obtained as a result of a warrantless perimeter search of his residence as well as the result of his detention both of which are claimed to be unlawful. The Applicant maintains that his rights under s. 10 of the Charter were violated. The Applicant also requests that the general warrants issued on February 1, 2014 and search warrants issued on February 1, 2014 be quashed and all evidence obtained following these searches be excluded.

The Applicant also maintains that the Informations to Obtain (“ITOs”) for these warrants was prepared in a negligent and fraudulent manner. issues [ 3 ] The parties agree that to determine this application, it is necessary to decide the following: 1) Did the warrantless perimeter search of 21 Lady Diana Crescent, Massey Drive, NL constitute a breach of s. 8 of the Charter ; 2) Were the Applicant’s rights under s. 10(

b) of the Charter violated by the police; 3) Was the detention of the Applicant outside his residence unlawful under s. 9 of the Charter ; 4) Was the general warrant lawful; 5) Were there reasonable grounds to issue the general warrants and the search warrants; 6) Was Cst.

Dobbin negligent or fraudulent in preparing the ITOs; 7) Should the evidence obtained from the searches be excluded under s. 24(2) of the Charter . facts [ 4 ] The Crown and Defence are generally in agreement with the factual background relevant to this application, except as noted in paragraph 12 herein. [ 5 ] On January 31, 2014 two masked men entered the residence of Timothy John Mitchell of 79 Humber Road, Corner Brook, NL. The two men tied up Mr. Mitchell and stole a number of items from his residence before departing. [ 6 ] Mr. Mitchell managed to free himself after the intruders left and called 911.

Members of the Royal Newfoundland Constabulary (“RNC”) arrived at 79 Humber Road, shortly thereafter. [ 7 ] Two RNC officers, Constables Abbass and Green attended. The officers spoke with Mr. Mitchell. As well, Cst. Green conducted an investigation outside the residence, where he noted footprints in the snow. [ 8 ] Mr. Mitchell was unable to identify the intruders and gave no more than a general description of them. [ 9 ] In the meantime, other RNC officers arrived on the scene and one of them went to the Western Lock building on the opposite side of Humber Road in order to view the surveillance video. Cst.

Green also viewed a portion of the surveillance video. [ 10 ] Cst. Green then placed a call to Sergeant Rumbolt of the RNC looking for information about possible suspects as he suspected that the crime might be a “drug rip”. [ 11 ] Sgt. Rumbolt provided the name of Andre Lecuyer and an address. He also provided the name of Kirby Spence as an acquaintance of Andre Lecuyer. Acting upon this information, Constables Green and Abbass proceeded to 21 Lady Diana Crescent, Massey Drive, NL. At that location, Cst. Green noted a vehicle in the driveway. [ 12 ] Cst.

Green entered the driveway and made an extensive examination of the vehicle and noticed footprints in the snow around the vehicle. No warrant was obtained prior to this perimeter search and the subsequent entries and occupation of the other parts of the property. (The Crown does not agree with this paragraph with reference to the perimeter search. This will be dealt with later in this judgment). [ 13 ] Cst.

Green later said that he believed that the vehicle was similar to the one seen in the Western Lock video and that the footprints in the snow were similar to the footprints he had seen at 79 Humber Road. [ 14 ] Sometime after Constables Green and Abbass arrived at 21 Lady Diana Crescent, Massey Drive, RNC forensics officer Cst. Matthews also arrived on the scene. [ 15 ] Cst. Matthews proceeded to enter the driveway of 21 Lady Diana Crescent, Massey Drive when he made forensic observations and took photographs all around the area where the vehicle was parked. No warrant was obtained prior to this perimeter search.

[16] The RNC proceeded to secure 21 Lady Diana Crescent. Officers took up position on the property, and no one was allowed toenter the residence and those who wanted to leave were searched, and were not permitted to return. This action was also taken withoutthe authority of a warrant. [17] Cst. McNeil, who had been in charge of the investigation, started the process of drafting ITOs in anticipation of the issuance ofwarrants to search the two residences of 21 Lady Diana Crescent and the vehicle in the driveway. [18] Sometime after midnight on February 1, 2014 the Applicant, Mr.

Spence, came out of the residence at 21A Lady DianaCrescent apparently to smoke a cigarette. He was taken into custody; the bottoms of his shoes were examined, and he was placed in thepolice vehicle after being handcuffed. [19] Mr. Spence was brought to the RNC Corner Brook detachment where he was told that he was no longer being detained. Mr.Spence was asked to give a statement to which he agreed. [20] Mr. Spence then left the police station. He attempted to return to his residence at 21A Lady Diana Crescent, but was turnedaway by the police. [21] On the morning of February 1, 2014 at approximately 11:30am Cst.

Dobbin of the RNC commenced to draft ITOs to justify theissuance of general warrants for the two residences at 21 Lady Diana Crescent, as well as for the vehicle parked in the driveway at thatresidence. In doing so, he took over the work of Cst. McNeil. [22] On the evening of February 1, 2014 members of the RNC entered the residence of Mr. Spence at 21A Lady Diana Crescentunder the authority of a general warrant issued by Judge Timothy Chalker of the Provincial Court of Newfoundland and Labrador.

Ageneral warrant was also issued for the vehicle, which was also searched. [23] As a result of the search under the general warrants, the original ITOs were redrafted, information was added to the ITO and anapplication was made for search warrants for 21A Lady Diana Crescent, and the vehicle. [24] On February 1, 2014 search warrants were issued by Judge Chalker for the residence and the vehicle. Also on February 1,2014 searches were conducted at these locations and evidence was seized, as a result of which Mr. Spence was charged with the offencesbefore the Court.

Issue No. 1: Did the warrantless perimeter search of 21 Lady Diana Crescent, Massey Drive, NL constitute a breach of s. 8 of theCharter? [25] 21 Lady Diana Crescent, Massey Drive was the residence of Andre Lecuyer; 21A (the downstairs apartment of 21 Lady DianaCrescent) was the residence of Mr. Spence, his partner (Ms. Alanna Wilcox) and their infant daughter. The investigators of the 79Humber Road robbery had received the names of Mr. Lecuyer and Mr. Spence from a drug investigator, Sgt. Rumbolt. Sgt. Rumboltadvised that Mr. Lecuyer was involved in the local drug trade and that Mr.

Spence was known to associate with Mr. Lecuyer. [26] Cst. Green had seen the vehicle involved in the robbery on a video surveillance across the street from 79 Humber Road, but itwas of such poor quality to be of any significant assistance to the police at that stage of the investigation. [27] Although the police had no information or evidence linking Mr. Lecuyer and Mr. Spence with the robbery, 21 Lady DianaCrescent became the focus of the investigation. [28] Cst. Green was one of the first investigators to attend the premises. He observed a car in the driveway of a similar size of theone viewed on the video.

From the video, the make and color of the vehicle could not be determined. Therefore, Cst. Green had noevidence to connect Mr. Spence to the crime when he attended at Lady Diana Crescent. [29] From the evidence it is accepted that Cst. Green did not intend to communicate with the residents at 21 or 21A Lady DianaCrescent. Based on what was a hunch supported by Mr. Lecuyer’s reputation and past conduct, Cst. Green went onto the driveway andconducted a search of the area around the vehicle. [30] Cst.

Green had observed footprints and tire treads at the scene of the crime and he was looking to determine if he could matchthem with the footprints and tire treads in the vicinity of the vehicle in the driveway. The investigation was clearly in its initial stage. [31] The evidence disclosed that the various police officers entered upon the premises of the Applicant on several occasions atvarious locations, including the back yard where two officers were stationed to observe the entry and exit of any person to and from 21ALady Diana Crescent.

One of the officers was in such close proximity to this unit that he could hear the discussions of its occupants. [32] Around midnight Cst. Matthews, a forensic specialist, carried out a further investigation around the vehicle. In addition tocarrying out forensic examinations he took a number of photographs. [33] In R. v. Kokesch, (SCC), [1990] 3 S.C.R. 3, the Supreme Court reviewed the lawfulness of what was referredto as a “perimeter search” where by the police had entered upon private land adjoining the accused’s dwelling without a search warrant.

The police suspecting that the accused was involved in the cultivation of marijuana went on to his property and attempted to peer insidethe windows of his home at which time they detected the smell of marijuana. The police then obtained a search warrant based on theseclues. The majority found that the initial warrantless perimeter search was unlawful. Sopinka stated at para. 23: 23 The respondent also submitted that the "perimeter search" was carried out under lawful authority pursuant to the common lawpowers of the police and was not a trespass on private property.

In my view, this argument is without foundation. This court consistentlyhas held that the common law rights of the property holder to be free of police intrusion can be restricted only by powers granted in clearstatutory language. …

[34] The Supreme Court agreed with the trial judge that the “perimeter search” was unlawful because it was conducted without asearch warrant and the search warrant subsequently obtained was based on illegal entrance and was therefore illegal. [35] Counsel for Mr. Spence questioned the reasonableness of the search of the premises by the police officer as mandated by s. 8 ofthe Charter. In R. v. Collins, (SCC), [1987] 1 S.C.R. 265, the Supreme Court held that a warrantless search is presumedto be unreasonable.

Lamer, J. for the majority stated the following on the three criteria for the reasonableness of a search at para. 33: 33 … As a result, once the appellant has demonstrated that the search was a warrantless one, the Crown has the burden of showingthat the search was, on a balance of probabilities, reasonable. [36] Lamer, J. goes on to state at para. 34: 34 A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search wascarried out is reasonable. … [37] In R. v.

Wiley, (SCC), [1993] 3 S.C.R. 263 the Supreme Court confirmed the principles to be applied indetermining the reasonableness of a search by the police. [38] To justify its entry on and the containment of private property the Crown in its factum says “the purpose of the entry was topursue an investigation”. The police were concerned with investigating the scene at Lady Diana Crescent in an attempt to find footprintsand tire treads as well as the location of stolen property. [39] The Supreme Court in R. v.

Kokesch found that a warrantless perimeter search outside the dwelling for investigative purposesoffends s.8 of the Charter. The majority of the Court was quite explicit in stating at para. 49: 49 Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspectalone, not charge ahead and obtain evidence illegally and unconstitutionally. Where they take this latter course, the Charter violation isplainly more serious than it would be otherwise, not less.

Any other conclusion leads to an indirect but substantial erosion of the Hunterstandards: the Crown would happily concede s. 8 violations if they could routinely achieve admission under s. 24(2) with the claim thatthe police did not obtain a warrant because they did not have reasonable and probable grounds. The irony of this result is self-evident.

Itshould not be forgotten that ex post facto justification of searches by their results is precisely what the Hunter standards were designed toprevent: see Hunter, per Dickson J. (as he then was), at p. 160; and Greffe , supra, per Lamer J., at pp. 790 and 798. … [40] The minority in R. v. Kokesch also agreed with this principle but came to a different conclusion with respect to admission ofevidence under s. 24(2). [41] Previously, in Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145 Dickson J (as he then was) for theunanimous Court held at para. 28: 28 A requirement of prior authorization, usually in the form of a valid warrant has been a consistent pre-requisite for a valid searchand seizure both at common law and under most statutes. … [42] Therefore, the Crown, to prove that a search is authorized by law, must establish that the search or seizure was authorized by aspecific statute or by common law rules, that the substantial and procedural requirement of that law was followed, and that the scope ofthe search is limited to that authorized by law. (R. v.

Caslake, (SCC), [1998] 1 S.C.R. 51) [43] To justify the intrusion onto private property for investigative and containment purposes, counsel for the Crown referred tothree cases from the Alberta Provincial Court and one from the British Columbia Supreme Court. [44] In R. v. Scott, 2016 ABPC 226 the Alberta Provincial Court dealt with four charges: refusal to provide a breath sample,contrary to s. 254(5); dangerous driving, contrary to s. 249(1)(a); resisting a peace officer, contrary to s. 129(a); and breach of probation,contrary to s. 733.1. [45] In its factum and authorities, the Crown refers to R. v.

Scott as being a “similar scenario” to the present case where policeentered private property in order to continue an investigation and to conduct an arrest. However, the Provincial Court judge held that theentry was proper based, in part, on provincial legislation including s. 166 of the Traffic Safety Act, R.S.A. 2000, c. T-6. [46] The judge explicitly held that police officers, at common law, have the power to investigate criminal activity. The commonlaw power arises from “their obligation to keep the peace, prevent crime and to protect life and liberty”. He referred to R. v.

Hufsky, (SCC), [1988] 1 S.C.R. 621 where the Supreme Court recognized and accepted the power of the police under the CriminalCode, R.S.C. 1985, c. C-46 and Highway Traffic Act, R.S.O. 1990, c. H.8 to stop drivers to check the mechanical fitness of a vehicle andthe sobriety of the driver. As well, the judge said it was relevant that in R. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257the Court upheld the power of the police to carry out random stops of motorists under the Highway Traffic Act.

While these powers weregiven by legislation, the judge said that the common law power of the police is derived from their obligation to keep the peace, preventcrime, and to protect life and liberty. He then concluded that police are entitled to enter onto a private property without a warrant, if theyare acting in the lawful course of their duties at common law in an ongoing criminal investigation. [47] In his reasoning, the judge did not deal with the interplay between the common law rights of the police and those of propertyowners as set out in R. v. Kokesch. (See also R. v.

Evans, (SCC), [1996] 1 S.C.R. 8; R. v. Wiley) [48] Similarly, in R. v. Arnett, 2005 ABPC 246, the Provincial Court of Alberta, discussed the rights of a property owner in thecontext of police intrusion. The Court, for the most

part considered the issue, on the basis of the provisions of the Traffic Safety Act and

the Highway Traffic Act as well as on the basis the issue of “hot pursuit”. In its reasoning, the court did not refer to any decisions of theSupreme Court where the issue was considered in the context of s. 8 of the Charter or the common law rights of a property holder. [49] The Crown also referred to R. v. Weeks, 2007 ABPC 344 in which the Provincial Court of Alberta had to determine the statusof a police officer who went onto the property of a motorist who had been observed driving in a dangerous manner. Judge Barley refersto the Supreme Court of Canada decision of R. v.

Evans for the proposition that peace officers have the right to enter onto privateproperty and to knock on the door; however, if the purpose of the knock is to gather evidence, then the implied authority is exceeded andthe officer is a trespasser (para. 10).

Later in his decision he refers to two decisions of the Ontario Court of Appeal and states at para. 19: 19 On the authority of Tricker and Lotozky, I find that the officer was not a trespasser when he approached the accused, even withthe purpose of gathering evidence. [50] The two decisions from the Ontario Court of Appeal both refer to the provisions of the provincial Highway Traffic Act and theCriminal Code. As well, the principle of “hot pursuit” was a factor in R. v. Weeks. [51] Also, on this issue, the Crown referred to R. v. Halloran, 2007 BCSC 1425 which was a

summary conviction appeal followingthe trial judge’s determination that there was a breach of his rights protected by s. 9 of the Charter, not to be arbitrarily detained orimprisoned.

As in the other cases relied on by the Crown, the decision related to criminal charges involving the operation of a motorvehicle, Cullen, J. stated that the principal issue in the appeal was whether there was a valid distinction between an investigation givingrise to a detention on a driveway outside of a private dwelling house and an investigation that leads to a detention involving a dwellinghouse. [52] This decision is not relevant to the present proceedings.

The judge referred to the two decisions of the Ontario Court of Appealwherein entry to a driveway was consistent with a police officer carrying out the statutory mandate under provincial legislation and theCriminal Code. [53] The Crown has not put forward any basis to establish that the search and containment of the perimeter of the dwelling wasauthorized by either common law or statutory authority. [54] It is therefore unnecessary to deal with the second criterion in R. v. Collins which is to determine if the law is reasonable. [55] However on the third requirement in R. v.

Collins, I am of the opinion that the manner in which the search was carried out wasnot reasonable. I will now review the following facts:

i) The warrantless perimeter search commenced on a hunch at 11:25pm on January 31, 2014 without notice to the occupants. In R. v.Kokesch, Dickson, C.J. for the minority (dissenting on remedy only) confirmed the following statement of Ritchie, J. in Eccles v.Bourque, (SCC), [1975] 2 S.C.R. 739 at para. 24: 24 … Except in exigent circumstances, the police officers must make an announcement prior to entry. There are compellingconsiderations for this. An unexpected intrusion upon a man's property can give rise to violent incidents.

It is in the interests of thepersonal safety of the householder and the police as well as respect for the privacy of the individual that the law requires, prior toentrance for search or arrest, that a police officer identify himself and request admittance. ii) The search involved the complete containment and occupation of the property including controlling all access to and from thedwelling occupied by Mr. Spence, his partner and infant daughter. The police had absolutely no authority for this. iii) The search and containment of the property which included the dwelling was not only intense but protracted as well.

The searchand control of the property commenced 11:20pm on January 31, 2014 with the occupants excluded shortly thereafter until the executionof the warrants at approximately 8:00pm, approximately 20 hours later. During that period, police officers were positioned on theproperty with the officers in front and back of the property. In addition to officers and vehicles provided by the RNC, assistance wasrequested from the RCMP. Without any authorization, the police would not permit anyone who left 21A Lady Diana Crescent to return. At one point when Mr.

Spence went on the patio to smoke a cigarette, he was detained with the assistance of a police dog, handcuffedand brought to the police detachment for the purposes of interrogation. When he returned, he was denied entry. As well, when one ofthe occupants ordered food, the delivery person was denied entrance to the property; iv) The treatment of Ms. Wilcox and her infant daughter also calls into question the conduct of the police.

The presence of the policeand the arrival and departure of their vehicles for the purpose of changing personnel obviously prevented the occupants of 21A LadyDiana Crescent from getting rest and sleep. After Mr. Spence was unable to return and when Ms. Wilcox went outside at approximately2:00am to inquire what was happening, she was advised and encouraged by the police to leave with her infant.

The Court was told bythe various police officers which was confirmed from the photographs that the access to and from the driveway from the back of theproperty where the entrance to 21A was situated was extremely difficult due to the sloping of the property with the accumulation ofsnow and ice. As well, given the time of the year, the outside temperature would be of concern. Ms. Wilcox who called a familymember to transport her and her child to another location would have had to carry her baby over deep snow to another property in orderto access Lady Diana Crescent. Ms.

Wilcox and her child had the right to remain in the comfort and warmth of her home. The police, onthe other hand, did not have the right to occupy the property. [56] Finally, it is noted that the Crown, and in my opinion correctly, did not justify entry onto the property and the subsequentcontrol of Mr. Spence’s residence by the presence of “exigent circumstances”, which would include the prevention of imminent bodily

harm or death or the prevention of the imminent loss or destruction of evidence. (R. v. Paterson, 2017 SCC 15) [57] The police and in particular Cst. Green indicated that the initial entry onto the driveway of 21 Lady Diana Crescent was basedon “source information” on Mr. Lecuyer’s reputation and his association with Mr. Spence including the fact that he lived in a downstairsapartment where the main story was rented by Mr. Lecuyer. The police were of the opinion that they lacked reasonable grounds toobtain a regular search warrant.

At the hearing the police confirmed that they were of the opinion that they did not have reasonablegrounds to search and seize as they lacked information as to whether the stolen property could be located in any of three possiblelocations. Meanwhile, the police remained in control of the property, including the perimeter and the dwelling without authority forabout 18 hours.

However, apart from the prevention of bodily harm or death, the justification for a warrantless search is relevant onlywhere there are reasonable grounds to believe that evidence relating to the commission of an offense is present in the dwelling house andthat entry is necessary to prevent the loss of evidence, neither of which was established in the facts of this case. (See s. 529.3 of theCriminal Code; R. v. Paterson, at para. 29) [58] Consequently, I am of the view that warrantless searches at 21A Lady Diana Crescent were unlawful and contrary to s. 8 of theCharter.

Issue No. 2: Were the Applicant’s rights under s. 10(

b) of the Charter violated by the police? [59] Mr. Spence was detained outside his residence, initially by Cst. Jody Ryan who turned him over to Cst. Green. He was advisedof his rights to counsel. At that time, Cst. Green was informed that Mr. Spence wanted to speak to a lawyer. However, as Cst. Greenwanted to know details on the use of his partner’s car, the officer asked him who had the car that evening. From the evidence, thequestion relating to the automobile was asked and answered after Mr.

Spence asked to speak to a lawyer but before he was given theopportunity to do so. [60] The underlying facts are similar to those reviewed by the Supreme Court of Canada in R. v. Manninen, (SCC),[1987] 1 S.C.R. 1233, where a robbery suspect immediately said upon being cautioned and informed of his right to counsel: “I ain’t saying anything until I see my laywer. I want to see my lawyer” [61] In spite of the request, the police officer continued to question Mr. Manninen who provided responses.

Lamer, J. (as he thenwas) held for the unanimous Court at para. 22: 22 In my view, this aspect of the right to counsel was clearly infringed in this case. The respondent clearly asserted his right toremain silent and his desire to consult his lawyer. … [62] His lordship further states at para. 23: 23 Further, s. 10(

b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detaineeuntil he has had a reasonable opportunity to retain and instruct counsel. … [63] Crown counsel maintains that Cst. Green acted out of a sense of urgency in determining the use of the suspect vehicle earlierthat evening. I do not agree. Even if the police had other matters relating to the investigation that needed their immediate attention(which I do not accept), they may be justified in delaying the detainee’s communication with counsel; but the police would not be entitledto continue questioning. [64] Accordingly, I find that the Applicant’s s. 10(

b) rights have been violated. Issue No. 3: Was the detention of the Applicant outside his residence unlawful under s. 9 of the Charter? [65] At 12:53am, Mr. Spence was taken into custody when he went outside his residence for the purpose of smoking a cigarette. Hewas handcuffed and placed in the locked back seat of the police car by Cst. Green. Prior to being transported to the police detachment,Mr. Spence was advised of the reason for his detention and was also cautioned and advised of his rights to counsel. Mr. Spenceindicated that he wanted to speak with a lawyer. Mr. Spence was then questioned by Cst.

Green who asked who was driving hispartner’s car that night around 9:00pm. Mr. Spence told Cst. Green that he had lent the vehicle to the guy upstairs (Mr. Lecuyer). WhileI have found that the statement violated s. 10(

b) of the Charter, Mr. Spence’s reply is admissible to justify further investigation by thepolice including the detention of Mr. Spence notwithstanding the statement is not admissible at trial where his guilt or innocence isdetermined. (R. v. Paterson; R. v. Orbanski, 2005 SCC 37) [66] While the evidence at that stage was fairly thin, Cst. Green was of the opinion that the vehicle may have been used in thecommission of an offence and that Mr. Spence may have ties to this vehicle. The officer decided to take Mr.

Spence to the policedetachment to determine if the Criminal Investigation Division wanted to question him. [67] At the detachment, Mr. Spence was placed in the interview room. After about 45 minutes (around 1:45am) Cst. Amy Sharpearrived and Mr. Spence was told that he was free to go. Cst. Sharpe requested Mr. Spence to answer some questions, which he agreed todo. Mr. Spence was cautioned and given his rights to counsel. Mr. Spence answered questions for about 14 minutes and thendiscontinued discussion and left by taxi. No issue is taken with the admission of Mr.

Spence’s answers to questions directed by Cst.Sharpe. [68] When Mr. Spence arrived at 21A Lady Diana Crescent, he was denied entry by the police. [69] I am of the view that the police officers had reasonable grounds to detain Mr. Spence. Police officers may detain a person forinvestigative purposes on the basis that there are reasonable grounds to suspect that the person is connected to a criminal offence and thatthe detention is necessary based on all the circumstances. While the Supreme Court in R. v.

Mann, 2004 SCC 52 held that the power todetain cannot be exercised on the basis of a hunch, the suspicion conveyed by Sgt. Rumbolt was based on intelligence gathered in his

role as a drug investigator. The occurrence of a “drug rip” whereby one drug dealer engages in violent retaliation against another dealerwould be uncommon in the Corner Brook area. When the investigators of the robbery were advised of their suspicion of Mr. Lecuyerand Mr. Spence, they had a duty to investigate further. As well, while the surveillance video lacked significant clarity, it did show asmall four door automobile similar in size to the one parked at 21 Lady Diana Crescent registered to Mr. Spence’s partner.

I thereforefind that the investigative detention was based on reasonable suspicion. [70] Also in R. v. Mann, the Supreme Court directed that investigative detention should not become a de facto arrest. While thedetention lasted longer than should have been necessary, this in part was caused by having to bring Mr. Spence from Lady DianaCrescent to the police Station. There was a further delay as Mr. Spence was left alone in the interview room for about 45 minutes only tobe told that he was free to leave. [71] Based on all the circumstances, I find that there was no breach of s. 9 of the Charter.

Issue No. 4: Was the general warrant lawful? [72] While this issue was drafted by the Defence and refers to the general warrant, there were in fact two general warrants; one for21A Lady Diana Crescent and one for the vehicle. In both written and oral arguments, counsel would often refer to them as one warrant,as the ITOs were fairly identical. However, both general warrants were entered and referred to in these proceedings. [73] The police after a period of time of containing and occupying the premises at 21 and 21A Lady Diana Crescent wanted to enterthe two apartments as well as the vehicle in the driveway. Cst.

Dobbin, who drafted the ITOs for the general warrants, stated that whilehe believed that evidence would be found at one or more of the locations, he could not be sure that the evidence would be found at anyone in particular. In questioning the legality of the warrant, the Defence compared this to a situation where the police had informationthat there was stolen property in one of the apartments in an apartment building, and requested a warrant to enter all the apartments onthe grounds that the stolen property must be one of them. [74] In R. v.

Campbell, 2011 SCC 32, the Supreme Court reviewed a similar situation, where the police obtained and executed asearch warrant for a four-bedroom rooming house. Mr. Campbell rented one of the rooms while the other three bedrooms were rented tothree unrelated tenants.

In upholding the legality of the warrant, the Court agreed with the majority of the Ontario Court of Appeal thatthe multi-unit apartment building analogy was not helpful as the issuing justice could have viewed the tenants’ residence in the roominghouse as “connected and overlapping” unlike the situation in a multi-unit apartment building. [75] I would therefore dismiss this aspect of the appeal. [76] The Defence also takes issue on the initial request by the police for the issue of general warrants under s. 487.01(1) of theCriminal Code instead of search warrants under s. 487 of the Criminal Code. [77] General warrants authorize the use of “any device or investigation technique or procedure”.

According to Cst. Dobbin, the“investigative technique or procedure” involved was the right to enter 21A Lady Diana Crescent and to take photographs of the stolenproperty and other evidence. Upon obtaining evidence from the search under the general warrants, the police would then proceed undera s. 487 search warrant to enter and take possession of property believed to be stolen. [78] The Defence maintains that the general warrant applications were a misuse of the general warrant procedure. Reference wasmade to s. 487.01(

c) which provides that a general warrant may not be issued if there is some other provisions in the Criminal Code toauthorize the doing of the same thing. (See R. v. Ha, 2009 ONCA 340.) [79] The Defence says that the police did not need to engage special investigative procedure provided by s. 487.01(1). The right toenter to seize property and to photograph evidence at the location searched, it is argued, are within the scope of a search warrant.

Therefore, the Defence concludes that general warrants were requested as the police did not believe that they had the grounds to requestsearch warrants under s. 487 of the Criminal Code. [80] I accept the argument of the Defence that the choice of proceeding with general warrants was improper as there was a failureto comply with the statutory pre-condition set out in s. 487.01. The police could have accomplished the same results by using a searchwarrant under s. 487. Therefore, the general warrants were invalid. (R. v. Brooks (2003), (ON CA), 178 C.C.C. (3d)361, 59 W.C.B. (2d) 215 (Ont.

C.A.)) [81] As other issues have been raised with respect to the general warrants and search warrants, this matter will be reviewed furtherin this decision. Issue No. 5: Were there reasonable grounds to issue the general warrants and the search warrants? [82] The Supreme Court in R. v. Araujo, 2000 SCC 65 at para. 54, in considering the sufficiency of an application for a warrant,stated “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization couldhave issued”. This follows the direction of the Court in R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421, where theunderlying question is not whether the reviewing Court could have issued the warrant, but whether there was sufficient evidence of acredible and reliable nature to permit the justice to have reasonable and probable grounds to believe that an offence had been committedand that evidence would be found relating to that offense at a stated location. [83] While the scope of review of a search warrant is narrow, it is essential that the ITO outline or set out reasonable grounds toestablish information which will confirm that evidence will be located at a certain place (R. v.

Morelli, 2010 SCC 8). [84] In this case, it is appropriate to review first the ITOs for the general warrants, which were obtained prior to the search warrantsand apparently its results provided the basis for the search warrants.

[ 85 ] Based on the record which was before the authorizing judge as amplified on review, I have concluded that the general warrants relating to 21A being the residence of the Applicant and relating to the vehicle in the driveway of that address should not have been granted. [ 86 ] Mr. Spence is first mentioned in paragraph 12 of the ITOs in relation to Mr. Andre Lecuyer. While Mr. Lecuyer, on information given to the police, has a reputation for stealing drugs from other dealers by means of violence and intimidation, the ITOs did not contain any evidence that he was involved in the 79 Humber Road robbery. Mr.

Spence is said to associate with Mr. Lecuyer, but there is no indication that this relates to criminal activity. Paragraph 13 and 14 related to possible criminal activity of Mr. Lecuyer with no reference to Mr. Spence. [ 87 ] Paragraph 15 summarized notes made by Cst. Green upon reviewing the surveillance video. The ITOs indicates that at the time of the robbery, a male is seen carrying a flat screen T.V. to a parked car. A viewing of the video during the Court review confirmed that the gender of this person could not be determined, nor could it be established what, if anything, was being carried by that person.

In any event, there was no suggestion that the person was Mr. Spence. The ITOs attempts to confirm that the vehicle shown in the video is “similar” to the one seen in the driveway at 21 or 21A Lady Diana Crescent. While the vehicle was similar in size, the quality of the video made it difficult if not impossible to compare the make or model and color of the vehicles. [ 88 ] The tire tread from the vehicle parked in the vicinity of 79 Humber Road was similar to the one observed at Lady Diana Crescent.

As well one of the footprints near the vehicle at Humber Road was similar to the one at Lady Diana Crescent. [ 89 ] However, when Mr. Spence was detained around 1:00am on February 1, 2014, Cst. Green examined his shoes which indicated that his footprints were not similar to the ones observed at Humber Road. This information was not contained in the ITOs. [ 90 ] In

summary, there is insufficient information to connect the Applicant to the robbery. Mr. Spence was known to associate with Mr. Lecuyer, who was rumored to be a drug dealer with an inclination for violence. Mr. Spence lived in another apartment in the same house where Mr. Lecuyer resided. The incriminating evidence set out in the ITOs related to Mr. Lecuyer. [ 91 ] Accordingly, the general warrants as well as search warrants which were issued on the basis of the same information and on the results of the general warrants lacked reasonable grounds and therefore are in violation of s. 8 of the Charter .

Issue No. 6: Was Cst. Dobbin negligent or fraudulent in preparing the ITOs? [ 92 ] The evidence disclosed that the ITOs for the general warrants and the search warrants were sworn by Cst. Jason Dobbin. However, the Applicant maintains that ITOs were not entirely drafted by Cst. Dobbin. [ 93 ] According to Cst. McNeil, he started the preparation for the ITOs, but turned the task over to Cst. Dobbin upon his arrival at the detachment around 11:30am February 1, 2014. The draft done by Cst. Dobbin was added to the original drafts. [ 94 ] At that time, both Mr. Lecuyer and Mr.

Spence had left their respective residences and were prevented from returning. The Applicant’s residence was unoccupied as his partner and their daughter had left at approximately 2:00am upon advice by the police. [ 95 ] The Applicant referred to various paragraphs that states that Cst. Dobbin carried out certain activities on January 31, 2014 while he did not report to work until next day on February 1. While Cst. Dobbin admits that these paragraphs may have been drafted by Cst. McNeil and that Cst.

McNeil did perform these tasks, he confirmed that he verified the accuracy of their contents at a later time than that stated in the various paragraphs. [ 96 ] The Applicant takes issue with the explanation put forward by Cst. Dobbin, and refers to paragraph 22 of the ITOs for the general warrants. In that paragraph, Cst. Dobbin appears to say that he attended at 79 Humber Road at 3:35am on February 1, 2014 and met with the complainant. The evidence confirmed that Cst. Dobbin did not report for work until hours later that day and that the early morning visit to Mr. Mitchell’s residence was made by Cst. McNeil.

The Defence says that this casts doubt on the entire ITOs, as many other paragraphs refers to times when Cst. Dobbin was not at work. [ 97 ] The Defence notes that after the police obtained the general warrants, Cst. Dobbin prepared the ITOs for the search warrants. For that purpose, Cst. Dobbin revised paragraph 22 of the ITOs for the search warrants, which were attached as

Schedule A, deleting the phrase “… at 3:35 hours, I personally went to 79 Humber Road and spoke to Tim Mitchell” and changed it with “… I spoke to Tim Mitchell”. In his evidence, Cst. Dobbin admitted he made an error in the ITOs for the general warrants and called Tim Mitchell prior to obtaining the search warrants to confirm the overall information in paragraph 22 that was previously provided to Cst. McNeil. [ 98 ] While Cst.

Dobbin admits that he was sloppy in the preparation of the ITOs for the general warrants, he denies that his conduct was fraudulent or that his late call to Tim Mitchell was done to conceal the error in the ITOs for the general warrants. In the absence of further evidence, I am unable to find Cst. Dobbin’s conduct to be fraudulent. However, in all the circumstances it must be concluded that he was negligent in the preparation of the ITOs for the general warrants and search warrants.

Issue No. 7: Should the evidence obtained from the searches be excluded under s. 24(2) of the Charter ? [ 99 ] I have previously reviewed the circumstances relating to the search of the Applicant’s property which was initially a perimeter search which I found to be in breach of s. 8 of the Charter . Also, s. 8 of the Charter was breached by improperly prepared ITOs for the general warrants and search warrants as their preparation and submission were carried on without reasonable grounds. Their preparation was done in a negligent manner containing inaccurate information.

As well, the general warrants were invalid as they did not comply under s. 487.1 A breach of 10(

b) of the Charter was infringed as the Applicant was questioned notwithstanding his request to speak to a lawyer. [ 100 ] The Applicant’s request for relief for unlawful arrest or detention is no longer as issue in view of my decision that there was no breach of s. 9 of the Charter .

[101] As set out in R. v. Grant, (SCC), [1993] 3 S.C.R. 223 the focus of the application of s. 24(2) is a considerationof admitting this evidence on the administration of justice having regard to the following matters: 1. The Seriousness of the Charter-Infringing State Conduct 2. Impact on the Charter-Protected Interests of the Accused 3. Society’s Interest in an Adjudication of the Case on its Merits Seriousness of the Conduct [102] The level of intrusiveness on the Applicant’s property was extensive and prolonged, including a disregard for the privacy of theoccupants of 21A Lady Diana Crescent.

The warrantless entry and occupation of the property had significant impact upon the use andenjoyment of the Applicant’s residence by himself and his partner and daughter. This would not be rectified, even if the subsequentgeneral warrants and search warrants had been properly granted and issued (R. v. Kokesch, para. 27 and 28). Less serious is the improperuse of the general warrants for their failure to comply with s. 487.1. (R. v. Brooks) [103] In R. v.

Paterson, Brown J for the majority stated at para. 46: 46 … The presumptive unreasonableness of warrantless searches, and the high privacy interest attaching to a person's residence havelong been fundamental to our understanding of the proper relationship between citizen and state. [104] Similarly, in R. v.

Silveira, (SCC), [1995] 2 S.C.R. 297 Cory, J. stated at para. 144: 144 … There is no place on earth where persons can have a greater expectation of privacy than within their "dwelling-house". [105] The entry and occupation and search of the Applicant’s property without warrant, as well as the subsequently improper denial ofthe Applicant’s right to counsel cumulatively place the state conduct at the serious end of the spectrum of Charter violations. Theseviolations are temporally and contextually related. [106] These violations are serious and are not technical or minor in nature.

Their infringements favor the exclusion of all evidenceobtained in relation to these Charter breaches, including evidence obtained under the apparent authority of the general warrants andsearch warrants. Impact on Charter-Protected Interests of The Accused [107] As indicated, these violations considered together or even separately are at the more serious end of the spectrum whenconsidering the impacts. Mr. Spence was deprived, without authorization, of his liberty in relation to his ability to access his residence. Also affected was his privacy and that of the other occupants of his residence.

His right to counsel was also infringed. [108] This factor also favors exclusion of evidence as stated previously. Society’s Interest in an Adjudication of the Case on its Merits [109] This factor involves the truth-seeking function of the trial process. Society expects that a criminal charge will be decided on itsmerits. [110] The objects seized by the police would appear to be an important part of the prosecution. The exculpatory statement made bythe Applicant would appear to not be essential; although it could be used against Mr.

Spence should he be untruthful even on collateralmatters. [111] Generally, this factor favors the admission of the evidence. Balancing of Factors [112] In this case, the seriousness of the Charter- infringing conduct and the impacts on the accused’s rights favor a finding that thatevidence should be excluded. I find that the administration of justice would be brought into disrepute by the admission of this evidence. CONCLUSION [113] It is therefore ordered or declared that 1. The warrantless perimeter search of 21 Lady Diana Crescent, Massey Drive constituted a breach of s. 8 of the Charter. 2.

Kirby Spence’s rights under s. 10(

b) were violated, and the statement made to Cst. Green on February 1, 2014 is not admissible. 3. The detention of Kirby Spence outside his residence was lawful. 4. The general warrants were invalid as they did not comply with s. 487.1.

5. There were insufficient grounds to issue the general warrants and the search warrants. 6. Cst. Dobbin was negligent and not fraudulent in preparing the ITOs for the general warrants and search warrants. 7. The evidence obtained by the police on February 1, 2014 at 21A Lady Diana Crescent and the vehicle in the driveway is excluded under s. 24(2) of the Charter . _____________________________ David F. Hurley Justice