R. v. Lecuyer, 2019 NLSC 69

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Lecuyer , 2019 NLSC 69 Date : March 26, 2019 Docket : 201504G0184 Her Majesty The Queen v. Andre Lecuyer Before: Justice George L. Murphy Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: January 28 – 30, 2019 Date of Oral Judgment: March 22, 2019

Summary: The Accused applied for declarations that a warrantless search of his property and his arrest and search incidental thereto violated his

section 8 and 9 Charter rights. The Accused also challenged the validity of certain warrants used to search his residence and sought an order excluding all evidence obtained as a result of those searches at his trial. The Accused also argued that the doctrines of issue estoppel and abuse of process should preclude the Crown from relitigating certain issues relating to the search of his property and the validity of a general warrant because they had already been decided in a related case. The Court found there had been no violation of the

section 8 and

section 9 Charter rights of the Accused as a result of the entry upon the driveway of his property by police officers to observe and photograph footwear and tire impressions or the arrest of the Accused and search incidental thereto. The Court did find that a general warrant issued under

section 487.01(1) to search the residence of the Accused was not valid as a result of non-compliance with

section 487.01(1)(c). The appropriate remedy as a result of the invalidity of the general warrant was the exclusion of the information

obtained as a result of the execution of the general warrant. The Court further found that the

section 487 warrants issued in respect of theresidence of the Accused remained valid even after excising the information obtained as a result of the execution of the general warrantand other evidence which the Crown conceded should be excised. Finally, the Court found that the doctrines of issue estoppel and abuseof process did not apply in the circumstances of this case. Appearances: Adam J. Sparkes, Q.C. Appearing on behalf of Her Majesty The Queen James P. Goudie Appearing on behalf of Andre Lecuyer Authorities Cited: CASES CONSIDERED: R. v. MacDonald, 2014 SCC 3; R. v. Squires, 2016 NLCA 54; R. v.

Patrick, 2009 SCC 17; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128 (S.C.C.); R. v. Tessling, 2004 SCC 67; R. v. Lotozky (2006), (ON CA),210 C.C.C. (3d) 509, 70 W.C.B. (2d) 836 (Ont. C.A.); R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316(S.C.C.); R. v. Acosta, 2014 BCCA 218; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145), 14 C.C.C. (3d) 97(S.C.C.); R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193 (S.C.C.); R. v. Golub (1997), (ON CA), 117 C.C.C. (3d) 193, 35 W.C.B. (2d) 277 (Ont. C.A.); R. v. Summers, 2019 NLCA 11; R. v. Al-Amiri, 2015 NLCA 37; R. v.Spence, 2018 NLSC 28; Penner v.

Niagara (Regional Police Services Board), 2013 SCC 19; Danyluk v. Ainsworth Technologies Inc.,2001 SCC 44; and Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63. STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 being

Schedule B to theCanada Act 1982 (UK), 1982, c. 11; and Criminal Code, R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT Murphy, J.: INTRODUCTION [1] Mr. Andre Lecuyer (the “Accused”) is 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; 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, contrary to

Section 343(

d) of the Criminal Code; Count # 3 on or about the 31st day of January, A.D., 2014, at or near Corner Brook, in the Province of Newfoundland and Labrador, with intent tocommit an indictable offence did have his face masked, contrary to Section 351(2) of the Criminal Code;

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 and enter a certain place, to wit: a dwelling house situate at 79 Humber Road, Corner Brook, Newfoundland and Labrador, and did commit therein the indictable offence of robbery, contrary to Section 348(1) (

b) of the Criminal Code ; [ 2 ] By Notice of Application filed October 25, 2018 (the “Application”), the Accused (referred to in the Application as the Applicant) applied to this court seeking the following relief: (

i) An Order declaring the perimeter search of the Applicant’s residence to be unreasonable and therefore in violation of the Applicant’s rights under

Section 8 of the Charter ; (ii) An Order declaring the Applicant’s arrest to be arbitrary and in violation of the Applicant’s rights under

Section 9 of the Charter ; (iii) An Order quashing the General Warrant issued on February 1st, 2014 and both Search Warrants issued on February 1st, 2014 and February 3rd, 2014; (iv) An Order declaring all searches of the Applicant’s residence and seizures of property from the Applicant’s residence to be unreasonable and in violation of

Section 8 of the Charter ; (

v) An Order pursuant to Section 24(2) of the Charter excluding from evidence all evidence obtained following the above-noted breaches of the Applicant’s rights; (vi) An Order that the constitutionality of the perimeter search and the exclusion of the evidence subsequently gathered by the police has already been settled by this Honourable Court and may not be retried in the Applicant’s ongoing matter. (vii) An Order that the validity of the General Warrant issued on February 1st, 2014 has already been settled by this Honourable Court and may not be retried in the Applicant’s ongoing matter. (viii) Such further and other relief as the Applicant may request and this Honourable Court may allow. [ 3 ] A hearing was held on January 28 – 30, 2019, and at that hearing I heard evidence from the following witnesses who were called by the Crown: a.

Constable Matt Matthews, a forensic identification specialist with the Royal Newfoundland Constabulary (“RNC”); b. Constable Glen Green of the RNC; c. Constable Gillian Pollett of the RNC; and d.

Constable Christopher Murphy of the RNC. [ 4 ] I also heard evidence from Corporal Bradley Lucas of the Royal Canadian Mounted Police (“RCMP”) who was called by the Defence. issues [ 5 ] Based on the Application, the Memorandum of Argument filed by counsel for the Accused, the Factum filed by counsel for the Crown, and the submissions of both counsel on the hearing of the Application, the following are the issues that I need to decide on the Application: a. Was there an unlawful perimeter search of the residence of the Accused contrary to

section 8 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 ? b. Did the police arrest the Accused without reasonable grounds contrary to

section 9 of the Charter and, if so, was the search incidental thereto unlawful?

c. Was the general warrant issued under

section 487.01(1) of the Criminal Code , R.S.C. 1985, c. C-46 on February 1, 2014 and the search warrants issued under

section 487 of the Criminal Code on February 1, 2014 and February 3, 2014 in respect of the residence of the Accused, invalid thereby breaching the

section 8 Charter rights of the Accused? d. If there were any Charter rights of the Accused breached, what is the appropriate remedy? e. Do the doctrines of issue estoppel and abuse of process apply in this case and, if so, what should be the impact of the application of said doctrines? Facts [ 6 ] From the evidence I heard on the hearing of the Application, I have made certain factual findings which I will now outline. [ 7 ] The RNC received a call at approximately 9:46 p.m. on January 31, 2014 from Mr. Tim Mitchell who resided at 79 Humber Road in Corner Brook, Newfoundland and Labrador.

He told the person whom he spoke with that he had arrived home a short time earlier and upon entering his residence encountered two masked men dressed in black in his home. These masked men proceeded to knock him to the ground, tie his hands, and demand money and other items while holding a large knife. These men then proceeded to rob his home of various items. [ 8 ] A number of RNC officers responded to 79 Humber Road, including Constable Green who took charge of the investigation at the scene of the crime. He arrived at the scene at approximately 9:50 p.m.

Also at the crime scene were Constable Abbass, Constable Murphy, and Constable Pollett. [ 9 ] Constable Green and Constable Abbass met with Mr. Mitchell on the side of the road near his residence. Constable Abbass primarily dealt with Mr. Mitchell and Constable Green proceeded to examine the steps and walkway leading down to the residence of Mr. Mitchell and the area going around the right side of the residence where there was a patio and a back entrance. Constable Green noticed two types of footwear impressions in the snow which did not match with the footwear that Mr. Mitchell was wearing.

He took photos of the footwear impressions going around the back of the house but not of the other footwear impressions which he had observed on a chip of snow near the front entrance to the residence. Constable Green had noticed this impression on the chip of snow prior to going around the house toward the back where he observed and photographed the other footwear impression. When he returned back to the area in the front of the house, he looked for the first footwear impression he had observed with the intention of photographing it; however, he could not locate it.

Constable Green at this point went back to his patrol vehicle and made notes and a drawing of the footwear impressions he had observed. [ 10 ] After completing his notes and drawing of the footwear impressions observed around the residence of 79 Humber Road, Constable Green proceeded to the business premises of Western Lock located across Humber Road from the scene of the crime. It had been discovered by another officer that this business had external security cameras and one of the owners of the business allowed the officers to view video from the security cameras.

This video was viewed by Constable Green and he was able to observe a small to mid- size light colored four door car arrive and park in the lot of Corner Brook Automotive, a business close to Western Lock, and which was also located across the street from the scene of the crime at 79 Humber Road. The video showed two people get out of this car and head across Humber Road toward 79 Humber Road. The video also showed a taxi arriving at 79 Humber Road a short time later which was the taxi which gave Mr. Mitchell a ride home to his residence that night.

Shortly after the taxi arrived, one person emerged from the area of 79 Humber Road and proceeded to the car on the Corner Brook Automotive parking lot. This person appeared to be carrying a larger item which Constable Green believed to be an item stolen from the residence of Mr. Mitchell. Shortly thereafter, the car left the Corner Brook Automotive parking lot and went across the road and stopped on the road beside 79 Humber Road. A person then emerged from the area of 79 Humber Road and got into the car which then left the scene.

As a result of viewing this video, Constable Green went to the Corner Brook Automotive parking lot and was able to locate where the car had been parked. He was able to observe the tire impressions of the car in the snow on the parking lot and he was also able to observe footwear impressions, one of which was similar to one of the footwear impressions he had observed when inspecting the area around 79 Humber Road. [ 11 ] At this juncture, Constable Green believed that the crime might be drug related and what he referred to as a “drug rip”.

Therefore he contacted his colleague, Constable Rumbolt, who was the “drug guy” for the RNC in Corner Brook and told him what he knew at that point about the crime. Constable Rumbolt advised Constable Green that he had some source information that the Accused and another individual, Kirby Spence, had been involved in a previous drug rip in similar circumstances. [ 12 ] Constable Green then decided to head to Lady Diana Crescent in the Town of Massey Drive because he believed this was where Mr. Spence lived.

This belief was based on the fact that someone from the RNC Corner Brook detachment had conducted a traffic stop on the common-law spouse of Mr. Spence a week or so before and thereby knew her address. [ 13 ] Upon arriving at Lady Diana Crescent, Constable Green located a vehicle which he believed matched the description of the vehicle he had seen in the video from Western Lock. It was parked in the driveway of 21 Lady Diana Crescent. He observed that the tire impressions in the snow indicated that the vehicle had not been parked in the driveway very long. This observation was made from the street.

At the hearing of this matter there were some questions and arguments made about whether in fact the vehicle was in the driveway. There was a significant amount of snow in the driveway area and on the property of 21 Lady Diana Crescent and it was impossible to see any markings or indications of where the actual driveway might be in relation to the property and the street.

However, based on the evidence presented at the hearing, including in particular the photographic evidence, I am satisfied that at the very least a significant portion of the vehicle was in the driveway of 21 Lady Diana Crescent as opposed to being on the street or the area of land between the street and the 21 Lady Diana Crescent property boundary.

I note as well that Constable Green and Constable Matthews referred to the vehicle as being in the driveway. [ 14 ] From the street Constable Green could also see that there were footwear impressions around the vehicle; however, he could not see the details of those impressions and, in particular, could not see if they matched those he had seen at or near 79 Humber Road. Constable Green knew at this point that the vehicle he was observing was registered to the common-law spouse of Mr. Spence.

He decided to take a closer look at the footwear impressions next to the car and proceeded to walk up each side of the car taking care not to

disturb the impressions. He did not walk completely around the vehicle but instead up one side observing the footwear impressions on that side and then did the same thing on the other side. Constable Green testified that his sole purpose in doing this was to get a closer look at the footwear impressions and from his observations he believed that they were similar to those he had seen at or near 79 Humber Road. He formed the same belief in respect of the tire impressions.

The footwear impressions led from the car up to the house at 21 Lady Diana Crescent and the apartment at 21A Lady Diana Crescent. [ 15 ] Shortly after Constable Green made his observations of the tire and footwear impressions, Constable Matt Matthews attended at 21 Lady Diana Crescent. He proceeded to take photos of the tire and footwear impressions and walked completely around the vehicle. He had previously been at 79 Humber Road and taken photos of tire impressions and a set of footwear impressions on the parking lot of Corner Brook Automotive.

After taking photos of and observing the tire and footwear impressions at 21 Lady Diana Crescent, Constable Matthews advised Constable Green that he believed that the tire impressions and one set of footwear impressions at Lady Diana Crescent matched what he had observed at the Corner Brook Automotive parking lot. [ 16 ] Constable Green confirmed he was so advised by Constable Matthews and said that it was upon being so advised that a decision was made to contain the house at 21 Lady Diana Crescent.

As a result, an officer entered upon the property and proceeded to stand watch near the entrance to an apartment in the house with municipal address 21A Lady Diana Crescent. Other officers were on the street where the entrance to 21 Lady Diana Crescent could be observed. I am satisfied from the evidence that the officers who were standing outside and watching the entrance to 21A Lady Diana Crescent were on the property of 21 Lady Diana Crescent and not an adjoining property. I am also satisfied that they were there only to contain the scene and not to conduct a search.

At this point in time, Constable Green believed that Mr. Spence lived at 21A Lady Diana Crescent; however, he did not know where the Accused lived. [ 17 ] At a point after the house at 21 Lady Diana Crescent was contained, Kirby Spence exited the apartment at 21A Lady Diana Crescent. Constable Green testified that he was detained at 12:53 a.m. which would have been on February 1, 2014. Mr. Spence advised that the car in the driveway belonged to his girlfriend and that earlier in the evening it had been loaned to the guy upstairs at 21 Lady Diana Crescent who he referred to as Nick. Constable Green transported Mr.

Spence back to RNC headquarters and turned him over to Constable Sharpe. Shortly thereafter he was informed that the RCMP had the Accused in their custody and he proceeded back to 21 Lady Diana Crescent. [ 18 ] Constable Green could not say whether he had been informed that the Accused had been arrested or simply detained. When he arrived on the scene at 21 Lady Diana Crescent, the Accused was in the back of a RCMP vehicle and Constable Green indicated he did not recall whether the Accused was in handcuffs. The Accused was taken out of the RCMP vehicle and handed over to him.

Constable Green observed the footwear impressions made by the Accused in the snow as he walked to his police vehicle and also saw the bottom of the shoes of the Accused as he got into the vehicle. As a result, he formed the belief they were similar to one of the sets he had seen at 79 Humber Road and also next to the vehicle in the driveway of 21 Lady Diana Crescent. As a result, he believed he had grounds to arrest the Accused and thus placed him under arrest.

The Accused was transported back to RNC headquarters at which time the footwear he was wearing was seized. [ 19 ] The RCMP had been made aware that the RNC had the house at 21 Lady Diana Crescent contained on the evening in question. The town of Massey Drive is ordinarily policed by the RCMP as it is located in their policing jurisdictional area. Corporal Lucas testified that he believed the RCMP had been alerted by the RNC because of this fact. [ 20 ] Corporal Lucas attended at the scene and he believed another RCMP officer may have attended as well.

Corporal Lucas indicated that he stayed around to provide assistance if needed. He recalled that Mr. Kirby Spence, who he knew, had exited the house from the basement apartment and that shortly thereafter the Accused had exited from the upstairs portion of the house. Corporal Lucas under direct examination recalled that when the Accused walked down to the street where some police officers and vehicles were located, he was placed under arrest, handcuffed and placed in the back of an RCMP vehicle. He could not recall if it was the vehicle he was driving or the one the other RCMP officer on the scene was driving.

Under cross-examination Corporal Lucas indicated that it was possible the Accused was merely placed under investigative detention; however, he was pretty sure he was arrested. He also testified under cross-examination that the Accused was just being held until the RNC arrived to take custody of him. Under direct examination he had said that the RNC officer on the scene at this time did not have a vehicle and that is why the Accused was placed in the back of the RCMP vehicle. He also could not recall who arrested the Accused. analysis a.

Was there an unlawful perimeter search of the residence of the Accused contrary to

section 8 of the Charter ? [ 21 ] The starting point for the analysis of this issue is

section 8 of the Charter which provides “Everyone has the right to be secure against unreasonable search or seizure”. [ 22 ] The first point I would make in terms of the analysis of this issue is that

section 8 of the Charter protects against unreasonable search or seizure. The Accused makes specific reference to a perimeter search in his Application. There are many references to perimeter searches in case law; however, there are also many variations of a perimeter search and whether it was a perimeter search is not really the question. Instead, the proper question that must be examined is simply whether there was a search of the residence of the Accused. If there was, then I will have to assess whether it contravened

section 8 of the Charter . [ 23 ] The allegation of the Accused that there was an unlawful search of the perimeter of his residence is based on the fact that Constable Green and Constable Matthews entered upon the property at 21 Lady Diana Crescent without a warrant to view and photograph tire impressions of the vehicle parked in the driveway and footwear impressions around the said vehicle. As outlined earlier, Constable Green proceeded up each side of the vehicle so he could closely observe footwear impressions but did not go completely around the vehicle.

Constable Matthews walked entirely around the vehicle in the driveway and took photographs of footwear and tire impressions. He also took photos of a duffel bag on the backseat of the vehicle. [ 24 ] I have already found as fact that a significant portion of the vehicle was in the driveway of 21 Lady Diana Crescent on the evening in question. At the same time, the evidence is not sufficient for me to conclude that the entirety of the vehicle was in the

driveway. However, I do find that Constable Green entered upon the property of 21 Lady Diana Crescent when he made his observationsof the footwear impressions. Similarly, I find that Constable Matthews would have been on the property at 21 Lady Diana Crescent whenhe took some of the photos of the tire and footwear impressions.

The question I must decide is whether this action or conduct on the partof Constable Green and Constable Matthews constituted a search. [25] Prior to examining this issue, I wish to note that in reviewing the issue of whether there was an unlawful search as a result ofthe entry by the police unto the property of 21 Lady Diana Crescent without a warrant, I am not taking into account the entry upon theproperty of 21 Lady Diana Crescent by RNC officers for the purpose of containing the residence.

This occurred after it had beendetermined by Constable Matthews that the tire and a set of footwear impressions at 21 Lady Diana Crescent matched the tireimpressions and a set of footwear impressions observed by him at the parking lot of Corner Brook Automotive.

It is my determinationthat these officers entered upon the property at this point not to conduct a search but merely to contain the scene because the police hadformed the belief at this point that the perpetrators of the crimes at 79 Humber Road were in either 21 and/or 21A Lady Diana Crescent.The actions of these officers did not constitute a search in my opinion. Instead, it was a lawful containment of a house where the policebelieved the individuals who had committed the offences they were investigating were located.

They contained the house while theytook steps to obtain warrants for the two residences in that house, namely 21 and 21A Lady Diana Crescent. My review of this issue willtherefore be limited to the actions of Constable Green and Constable Matthews as referenced earlier. [26] The Supreme Court of Canada in R. v. MacDonald, 2014 SCC 3 examined the issue of what constituted a search for thepurposes of

section 8 of the Charter. At paragraph 25, LeBel, J. for the majority said: 25 R. v. Evans, (SCC), [1996] 1 S.C.R. 8, is a leading case on what constitutes a "search" for the purposes of s. 8. Thefacts of that case were not dissimilar to those of the instant case in that the search was carried out by police at the doorstep of the accusedperson's home. Sopinka J. laid down the following test for determining whether a police action constitutes a "search": ... it is only where a person's reasonable expectations of privacy are somehow diminished by an investigatory technique that s. 8 of theCharter comes into play.

As a result, not every form of examination conducted by the government will constitute a "search" forconstitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacyinterest of individuals does the government action in question constitute a "search" within the meaning of s. 8. [Emphasis added; para.11.] In other words, a s. 8 search "may be defined as the state invasion of a reasonable expectation of privacy" (R. v. A.M., 2008 SCC 19,[2008] 1 S.C.R. 569, at para. 8). [27] Our Court of Appeal in the case of R. v.

Squires, 2016 NLCA 54, also examined the issue of what constitutes a search in thecontext of police performing a visual search by shining a flashlight through the tinted windows of a motor vehicle. The vehicle in thatcase was in a public parking lot. Green, C.J.N.L. for the majority said at paragraphs 50 – 53: 50 The Crown submits that the judge erred when he concluded that "performing a visual search by examining by flashlight through thetinted windows" constituted a search contrary to

section 8. 51 The Crown takes issue with the judge's characterization of the visual inspection as a "search", arguing that the police "needed noauthority nor reason to look into the window of a motor vehicle parked in a public parking lot." Although the cases recognize that adriver and occupier of a motor vehicle have a reasonable expectation of privacy in a motor vehicle (though reduced in comparison, say, toa private dwelling: R. v.

Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432 at para. 22), the Crown submits that there can be no suchexpectation of privacy in the area of the vehicle open to observation by anyone, including the police lawfully standing outside thevehicle. On this analysis, the search in this case did not commence until the police officer opened the vehicle door , reached in and beganto examine the interior further. By that time, the existence of the gun was already known. 52 I agree with this submission. To constitute a search within

section 8, the actions of the police must have intruded on a reasonableexpectation of privacy: R. v. Evans, (SCC), [1996] 1 S.C.R. 8 at para. 8; R. v. M.(A.), 2008 SCC 19, [2008] 1 S.C.R.569 at para. 8. While it is true that whether a reasonable expectation of privacy exists is said to depend upon "the totality of thecircumstances" (R. v.

Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579 at para. 26) and the fact that the subject matter being observed orseized is in public view is but one factor among many to be considered in the privacy expectation analysis (Patrick, paras. 27-72), thesituation is different if all that is occurring is visual observation, without more, from outside the territorial zone of privacy that isinvolved and when what is engaged is not an issue involving personal or informational, as opposed to territorial, privacy.

Patrick dealtwith a situation (entry on property to inspect the contents of garbage bags) involving an incursion into the complainant's zone ofterritorial privacy and involved aspects of personal and informational privacy as well. It did not involve merely seeing something andthereby acquiring knowledge that was relevant to the investigation. The current situation is similar to R. v.

Boersma, (SCC), [1994] 2 S.C.R. 488 where the Supreme Court of Canada upheld a British Columbia Court of Appeal decision holding that therecould be no objectively reasonable expectation of privacy in marijuana plants growing in plain view and observed from outside a zone ofterritorial privacy. In a short judgment, Iacobucci J. stated: [1] ... The plants were being cultivated in plain sight and were observed by police officers walking by on a dirt road. In thesecircumstances, we agree with Lambert J.A. of the British Columbia Court of Appeal that the appellants had no reasonable expectation of

privacy with respect to the area on which marihuana was being cultivated and were thus not entitled to the protection of

section 8 of theCanadian Charter of Rights and Freedoms. 53 This surely makes sense when what is involved is simple observation in circumstances where only territorial privacy is engaged. Werightly expect more of our police forces when conducting an investigation than for them to wander aimlessly about their business in thehopes they will stumble upon something relevant. We expect them to be purposeful, focused and methodical in what they do. One oftheir chief tools in carrying out an investigation is their powers of observation.

If they can exercise their powers of observationproductively without physically invading any private space in which the owner or occupier has a reasonable expectation of territorialprivacy and without invading informational and personal privacy, the person who has not taken the trouble to conceal the item observedcan hardly complain: See R. v. Robere (1999), (NL CA), 181 Nfld. & P.E.I.R. 292 (Nfld. CA) at para. 26, R. v.Grunwald, 2010 BCCA 288, 257 C.C.C. (3d) 53 at para. 48.

To restrict the police from looking or, if they have already looked, toeffectively pretend that what they saw did not exist, would unreasonably, unnecessarily and arbitrarily hamper them in effectively doingtheir duty. It must be remembered that a police officer needs no legal authority to approach or speak to a person sitting in a vehicle in apublic space like a parking lot: R. v. Calder (2004), (ON CA), 47 M.V.R. (4th) 20 (Ont. CA).

In making such anapproach the officer does not have to avert his or her eyes from looking in the vehicle and observing items in plain sight. [28] Thus, the Court of Appeal confirmed that the proper focus is on the issue of reasonable expectation of privacy and whetherthere has been an intrusion thereon. [29] Another case which is helpful in the analysis of whether what occurred here constituted a search is the Supreme Court ofCanada decision in R. v. Patrick, 2009 SCC 17. In that case, an accused had placed garbage bags near the edge of his property forcollection.

The police reached across the property line and seized the bags without a warrant. The question the Court had to decide waswhether this constituted a search. The Court examined the issue from the perspective of privacy interests and whether if there was aconstitutionality protected privacy interest it had been violated. Binnie, J. for the majority of the Court said at paragraph 14: 14 "Expectation of privacy is a normative rather than a descriptive standard" (Tessling, at para. 42).

A government that increases itssnooping on the lives of citizens, and thereby makes them suspicious and reduces their expectation of privacy, will not thereby succeedin unilaterally reducing their constitutional entitlement to privacy protection. Equally, however, while a disembarking passenger at theToronto airport might feel entitled to privacy when emptying his bowels after an intercontinental flight, the obligation to make use of a"drug loo facility" under the supervision of the authorities was upheld in the context of border formalities in R. v. Monney, (SCC), [1999] 1 S.C.R. 652.

Privacy analysis is laden with value judgments which are made from the independent perspective of thereasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy.This is inherent in the "assessment" called for by Dickson J. (as he then was) in Hunter v.

Southam Inc., (SCC), [1984] 2S.C.R. 145, at pp. 159-60: This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from "unreasonable" search and seizure, orpositively as an entitlement to a "reasonable" expectation of privacy, indicates that an assessment must be made as to whether in aparticular situation the public's interest in being left alone by government must give way to the government's interest in intruding on theindividual's privacy in order to advance its goals, notably those of law enforcement. Dickson J.'s analysis paid tribute to Katz v.

United States, 389 U.S. 347 (1967), and quoted its foundational privacy principle that "theFourth Amendment protects people, not places" (Stewart J., at p. 351). This was elaborated upon by Harlan J. in Katz in a concurringopinion which gave rise to the twin subjective/objective enquiries into privacy expectations (p. 361). [30] The Court relying on R. v. Edwards, (SCC), [1996] 1 S.C.R. 128 (S.C.C.) and R. v. Tessling, 2004 SCC 67stated that in assessing the reasonableness of a claimed privacy interest, a judge must examine the “totality of the circumstances”.

Atparagraph 27 of Patrick, Binnie, J. set out an analytical framework for assessing whether in that case there was a reasonable expectationof privacy as follows:

(1) Did the Appellant Have a Reasonable Expectation of Privacy? 27 On the facts of this case, we need to address: 1. What was the nature or subject matter of the evidence gathered by the police? 2. Did the appellant have a direct interest in the contents? 3. Did the appellant have a subjective expectation of privacy in the informational content of the garbage?

4. If so, was the expectation objectively reasonable?

In this respect, regard must be had to: a. the place where the alleged "search" occurred; in particular, did the police trespass on the appellant's property and, if so, what is the impact of such a finding on the privacy analysis? b. whether the informational content of the subject matter was in public view; c. whether the informational content of the subject matter had been abandoned; d. whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality? e. whether the police technique was intrusive in relation to the privacy interest; f. whether the use of this evidence gathering technique was itself objectively unreasonable; g. whether the informational content exposed any intimate details of the appellant's lifestyle, or information of a biographic nature. [ 31 ] At paragraph 28, Binnie, J. said:

(2) If There Was a Reasonable Expectation of Privacy in This Case, Was It Violated by the Police Conduct? 28 The second question is only reached if the first question is answered in the affirmative. [ 32 ] The analytical framework utilized by Binnie, J. is useful in my view in assessing whether the Accused had a reasonable expectation of privacy in this case. I will now move to apply that analytical framework, modified as necessary based on the facts of this case.

(1) Subject matter of the alleged search [ 33 ] In the Patrick case, the subject matter was bags of garbage; however, Binnie, J. believed it was important to note that garbage typically includes an enormous amount of personal information about an individual and that this was important in terms of analysis of the privacy issue. [ 34 ] In this case, the evidence gathered by the police consisted of observations and photographs of footwear and tire impressions. I do not see much, if any, of a privacy interest in evidence of this nature. 2.

Did the Accused have a direct interest in the footwear and tire impressions? [ 35 ] In Patrick , the Court found that the accused had a direct interest not only in the garbage itself but as well in its informational content. In terms of his analysis of this issue, Binnie, J. said at paragraph 32: 32 The majority of the Alberta Court of Appeal seems to state, in para. 35, that because the items of interest located by the police revealed involvement in criminal activity they cannot "constitute intimate details of lifestyle or core biographical details to which privacy protection ought to be extended".

I would have thought, with respect, that the criminal "lifestyle" of the appellant was at the epicentre of what the police wanted to know and what the appellant wished to conceal. The question is not whether the appellant had a lifestyle which society values, but whether and at what point in the disposal process innocent citizens cease to have a reasonable expectation that the contents of their garbage will remain private.

The issue ought to be framed in terms of the privacy of the area or thing being searched and the potential impact of the search on the person being searched, not the nature or identity of the concealed items ( A.M. , at para. 72 ). In Kang-Brown , we held that a traveller had a privacy interest in his carry-on bag despite the fact that the bag turned out to contain drugs. In A.M. , we held that a student did not forfeit his privacy interest in a backpack despite the fact that it was left unattended in a school gymnasium and that its contents included marijuana.

In Wong , as stated, the Court held that people who "retire to a hotel room and close the door behind them have a reasonable expectation of privacy" (p. 50), despite engaging in illegal activity once inside. The issue is not whether the appellant had a legitimate privacy interest in the concealment of drug paraphernalia, but whether people generally have a privacy interest in the concealed contents of an [page600] opaque and sealed "bag of information". I believe that they do. The focus is on "the person, place or thing searched and the purpose for which the search is undertaken" ( A.M. , at para. 72 ).

A warrantless search of a private place cannot be justified by the after-the-fact discovery of evidence of a crime. [ 36 ] In this case when we focus on the place, it is important to note that the officers did enter upon a portion of the property of the Accused and this certainly gives rise to a privacy interest. As for the thing being searched for and the purpose for which the officers

entered upon the property, it must be noted that the officers entered upon the property for the purpose of making observations of andtaking photos of footwear and tire impressions which, as I noted earlier, does not raise a significant privacy concern in my view. 3. Did the Accused have a subjective expectation of privacy in the footwear and tire impressions? [37] In terms of this factor, Binnie, J. said at paragraph 37: 37 At the subjective stage of the test, I do not think "reasonableness" is the issue.

The question is whether the appellant had, or ispresumed to have had, an expectation of privacy in the information content of the bags. This is not a high hurdle. As mentioned, in thecase of information about activities taking place in the home, such an expectation is presumed in the appellant's favour. It is possible thatthe appellant (who did not testify on this point) may never have ceased to have a subjective expectation, reasonable or not.

The"reasonableness" of an individual's belief in the totality of the circumstances of a particular case is to be tested at the second objectivebranch of the privacy analysis. [38] In this case, the Accused did not testify on the hearing of the Application and there is no direct evidence of a subjectiveexpectation of privacy in the footwear or tire impressions. [39] A subjective expectation of privacy can be presumed in certain cases (for example, in the case of information about activitiestaking place in the home).

I do not think that a subjective expectation of privacy can be presumed in the circumstances of this case eventhough there was some entry onto the driveway of 21 Lady Diana Crescent without a warrant. The focus in my view should not be on theissue of entry onto the driveway but instead on the purpose for entry and the things to be searched for. Here the purpose was to observeand photograph. The things to be observed and photographed were footwear and tire impressions. I do not think this gives rise to apresumption of a subjective expectation of privacy. 4.

Was the expectation of privacy objectively reasonable? [40] If in fact there was no subjective expectation of privacy, either actual or presumed, then there is no need to examine whetherthe expectation of privacy was objectively reasonable.

While I have concluded there should be no presumption of a subjectiveexpectation of privacy, in the event I am wrong in this conclusion I intend to analyze this issue on the basis that an expectation of privacydid exist for the purpose of assessing whether it was objectively reasonable. [41] In terms of the factors suggested by Binnie, J. in his analytical framework, not all of them apply in this case; however, I willreview the factors which I believe are important to consider here in assessing the objective reasonableness of the expectation of privacy. [42] The fact that the police officers entered onto the driveway of the property at 21 Lady Diana Crescent without a warrant is ofsignificance because in our society property rights are highly regarded.

That being said, simply because there was an entry onto theproperty without a warrant does not automatically mean that an expectation of privacy is objectively reasonable. Instead, this fact shouldbe considered as part of the totality of the circumstances to be assessed.

On this point, Binnie, J. in Patrick said at paragraph 45: 45 The point here, I believe, is that while territorial privacy is implicated in this case, the physical intrusion by the police was relativelyperipheral, and viewed in context, it is better considered as part of the totality of circumstances in a claim that is preferably framed interms of information privacy. [43] In terms of the location of the evidence, it is noteworthy that the footwear and tire impressions were in public view from thestreet; however, it was necessary to go onto the property of 21 Lady Diana Crescent in order to closely view those impressions,photograph them, and make a comparison to the tire and footwear impressions observed at the scene of the crime.

Further, like thegarbage in Patrick, it is my view that the footwear and tire impressions were “abandoned” in the sense that the Accused no longer hadany interest in them. [44] As for the question of a continuing privacy interest, I see no such interest in this case. The evidence here is footwear and tireimpressions.

This is not evidence of a private, personal, or confidential nature and not evidence in which a privacy interest can be exertedin my view let alone a continuing privacy interest. [45] In this case, I do not consider the actions of the police officers to have been overly intrusive in relation to a privacy interest. Theevidence here is not such that it attracts much, if any, of a privacy concern. I also do not consider that the actions of the police wereobjectively unreasonable.

This is especially so given there was a risk that if the police did not act, the actions of wind and snow mightcover up the footwear and tire impressions. Further, the gathering of the evidence did not expose any private or intimate details of theAccused’s lifestyle or information of a biographical nature. [46] Even if it could be said that the actions of the police in entering upon the property of 21 Lady Diana Crescent constituted abreach of the territorial privacy rights of the Accused, it does not follow that it necessarily constituted a search. In this regard, the OntarioCourt of Appeal in the case of R. v.

Lotozky (2006), (ON CA), 210 C.C.C. (3d) 509, 70 W.C.B. (2d) 836 (Ont.

C.A.)dealt with the issue of police entering upon the driveway of an accused in the context of an investigation of a possible impaired driver.Rosenberg, J.A. for the Court said as follows at paragraph 18: 18 At the other end of the spectrum, despite the breadth of the notion of search and seizure, merely walking on to a driveway, even withan intent to conduct an investigation involving the owner, does not, in my view, constitute a sufficient intrusion to be considered a search.There must be something more, as in the perimeter search cases, peering in windows of the home and trying to detect odours fromwithin.

Put another way, not every trespass on to private property by police can constitute a search. I would not place a possible trespasson to a driveway open to public view in the category of a search or seizure. [47] Given the foregoing factors which I have discussed, it is my conclusion that no reasonable expectation of privacy existed inrespect of the footwear and tire impressions around the car in the driveway of the residence of the Accused. Even if there were anexpectation of privacy in this case, it is not one which, in my opinion, would have been objectively reasonable.

[48] Overall, when I consider the totality of the circumstances, I am unable to conclude that the actions of the police in entering ontothe property of 21 Lady Diana Crescent merely for the purpose of observing and taking photos of footwear and tire impressionsconstituted a search or seizure within the meaning of

section 8 of the Charter. b. Did the police arrest the Accused without reasonable grounds contrary to

section 9 of the Charter and, if so, was the search incidentalthereto unlawful? [49] In this case, the Accused was arrested without a warrant and as a result the burden is on the Crown to prove that the arrest waslawful. [50] Given that the offences for which the Accused was arrested were indictable, the onus on the Crown is met if an arrest complieswith section 495(1)(

a) of the Code which states: 495(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence; [51] The arresting officer must subjectively have reasonable grounds upon which to base the arrest and those grounds must bejustifiable from an objective point of view. This involves a determination of whether a reasonable person in the position of the officercould have concluded that there were reasonable grounds for the arrest (R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, 53C.C.C. (3d) 316 (S.C.C.)). In assessing the objective grounds for the arrest, an arresting officer’s

interpretation of the actions of anaccused must be considered in light of the officer’s training and experience (R. v. Acosta, 2014 BCCA 218). The standard of “reasonablegrounds” lies at the point where credibly based probability replaces suspicion (Hunter v. Southam Inc., (SCC), [1984] 2S.C.R. 145, 14 C.C.C. (3d) 97 (S.C.C.)). The appropriate standard is one of reasonable probability rather than proof beyond a reasonabledoubt or prima facie case (R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193 (S.C.C.)). [52] The Ontario Court of Appeal in R. v.

Golub (1997), (ON CA), 117 C.C.C. (3d) 193, 35 W.C.B. (2d) 277(Ont. C.A.) discussed the difference between reasonable grounds to arrest and reasonable grounds to issue a search warrant. Doherty,J.A. for the Court said at page 6: . . . Both a justice and a arresting officer must assess the reasonableness of the information available to them before acting. It does notfollow, however, that information which would not meet the reasonableness standard on an application for a search warrant will also failto meet that standard in the context of an arrest.

In determining whether the reasonableness standard is met, the nature of the powerexercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very differentthan those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatileand rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision basedon available information which is often less than exact or complete.

The law does not expect the same kind of inquiry of a police officerdeciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. [53] Having heard the testimony of Constable Green, the officer who arrested the Accused, I have no doubt whatsoever that hesubjectively believed he had reasonable grounds to arrest the Accused. I now move on to examine whether reasonable grounds existedfrom an objective point of view. [54] At the time of the arrest it was known by Constable Green that the offences of robbery and break and entry had occurred at 79Humber Road.

It was also known by him that two males had committed these offences. This information came from the victim of thecrimes, Mr. Tim Mitchell. As a result of the security video from Western Lock, Constable Green also had some evidence as to the typeof car that was used by the individuals and he had also observed the tire impressions of this car. Further, he had also observed footwearimpressions, which were believed to be those of the perpetrators, near the 79 Humber Road property and where the car was parked atCorner Brook Automotive.

After obtaining the foregoing information and making the observations, Constable Green was then providedwith information from one of his colleagues who had information from a source that the Accused and Kirby Spence had recentlycommitted a similar robbery. Constable Green next obtained information that Kirby Spence resided at 21A Lady Diana Crescent inMassey Drive so he decided to go to that address. When he arrived there he observed a car in the driveway that was similar to the one hehad seen in the Western Lock security video.

He observed from the tire impressions in the snow that the car had only recently arrived atthat address. Constable Green observed the tire impressions and a set of footwear impressions around the car and believed them to besimilar to those he had seen at 79 Humber Road and where the car was parked on the Corner Brook Automotive parking lot. He observedthat the footprints were heading toward the home at 21 Lady Diana Crescent.

Constable Green was subsequently advised by hiscolleague, Constable Matthews, who was trained in the identification and comparison of tire and footwear impressions, that the tireimpressions and one set of the footwear impressions around the car in the driveway of 21 Lady Diana Crescent matched what he hadseen at the Corner Brook Automotive parking lot. At this point, Constable Green believed that the individuals who had committed theoffences had gone into either 21 Lady Diana Crescent or 21A Lady Diana Crescent. He subsequently was advised by Mr.

Kirby Spence,who had exited from 21A Lady Diana Crescent, that the car belonged to his girlfriend and that earlier in the evening it had been loanedto a guy upstairs called Nick. Constable Green transported Mr. Spence back to the RNC detachment and while there was told theAccused had exited from 21 Lady Diana Crescent and had been either arrested or detained by other police officers. Constable Greenreturned to 21 Lady Diana Crescent and while the Accused was exiting a RCMP police vehicle he was able to observe the footwear theAccused was wearing and the impressions made in the snow by his footwear.

They appeared to him to be similar to footwear impressionshe had seen at 79 Humber Road. It was at this point that Constable Green arrested the Accused. [55] The Court of Appeal for this province in R. v. Summers, 2019 NLCA 11 dealt with the issue of the validity of an arrest and thereasonable grounds test. At paragraph 21, Welsh, J.A. for the Court said: 21 In assessing whether that test is met, the "cumulative effect" of the whole of the evidence must be considered (Storrey, at page 251; R.

v. Nolet , 2010 SCC 24 , [2010] 1 S.C.R. 85, at paragraph 48 ). . . [ 56 ] When I consider the cumulative effect of the whole of the evidence known by Constable Green at the time of the arrest and examine it from an objective perspective, it is my opinion that Constable Green had reasonable grounds for the arrest of the Accused and that the arrest did not violate the

section 9 Charter rights of the Accused. Given that the arrest was lawful, the police were entitled to search the Accused incidental to his arrest and the seizure of his shoes as part of that search was also lawful. c. Was the general warrant issued under

section 487.01(1) of the Criminal Code and the search warrants issued under

section 487 of the Criminal Code on February 1, 2014 and February 3, 2014, in respect of the residence of the Accused, invalid thereby breaching the

section 8 Charter rights of the Accused? [ 57 ] Prior to examining this issue, I will outline the factual background to the application for and issue of these warrants. In fact, as part of its investigation in this case, the police obtained a total of seven warrants, the particulars of which were as follows: a. A general warrant under

section 487.01(1) of the Criminal Code dated February 1, 2014 in respect of 21 Lady Diana Crescent, the residence of the Accused; b. A general warrant under

section 487.01(1) of the Criminal Code dated February 1, 2014 in respect of 21A Lady Diana Crescent, the residence of Kirby Spence; c. A general warrant under

section 487.01(1) of the Criminal Code dated February 1, 2014 in respect of the vehicle in the driveway of 21 and 21A Lady Diana Crescent; d. A search warrant under

section 487 of the Criminal Code dated February 1, 2014 in respect of 21 Lady Diana Crescent, the residence of the Accused; e. A search warrant under

section 487 of the Criminal Code dated February 1, 2014 in respect of 21A Lady Diana Crescent, the residence of Kirby Spence; f. A search warrant under

section 487 of the Criminal Code dated February 1, 2014 in respect of the vehicle in the driveway of 21 and 21A Lady Diana Crescent; and g. A search warrant under

section 487 of the Criminal Code dated February 3, 2014 in respect 21 Lady Diana Crescent, the residence of the Accused. [ 58 ] The Informations to Obtain in respect of each of the general warrants outline why the police initially applied for general warrants under

section 487.01(1) rather than traditional search warrants under

section 487. I refer to paragraphs 30 and 31 of the Informations to Obtain the general warrants. Simply put, the police believed that the items stolen from 79 Humber Road would be found in one or more of three locations, namely the vehicle in the driveway of 21 Lady Diana Crescent, at 21 Lady Diana Crescent, and/or 21A Lady Diana Crescent. However, because they did not know as between these three locations exactly where the items to be searched for would be found, they believed that obtaining a

section 487 search warrant was not an option available to them. Therefore, a decision was made to try and obtain general warrants under

section 487.01(1) of the Code for each of these locations, authorizing them to enter the said locations so they could search and determine if any of the items being searched for were in each particular location but without seizing any such items. [ 59 ] The police further outlined in the Informations to Obtain the general warrants that if the items being searched for were located, it was their intention to then apply for a warrant under

section 487 for the location where they were found so they could enter that location and seize the specific items. This is precisely the manner in which the police proceeded. They were successful in obtaining the general warrants under

section 487.01(1) of the Code . Upon execution of said warrants at the three locations in question and finding items at each location which they believed related to the offences being investigated they applied for and obtained the February 1, 2014 warrants under

section 487. They then re-entered the said locations under authority of the

section 487 warrants and seized the items in question. After executing the

section 487 warrant at 21 Lady Diana Crescent, the police subsequently realized that further items they had observed at that location had been stolen from 79 Humber Road. As a result, they applied for and obtained the second

section 487 warrant dated February 3, 2014 for that location and re-entered the property and seized those further items. [ 60 ] The police obtained the general warrants under

section 487.01(1) of the Criminal Code in part on the basis of the evidence obtained as a result of the warrantless entry onto the property at 21 Lady Diana Crescent by Constables Green and Matthews and in part as well on the basis of evidence obtained as a result of the arrest of the Accused and the seizure of his footwear incidental to his arrest. The evidence obtained as a result of the execution of the general warrants was then used in conjunction with the information used to obtain the general warrants in order to obtain the three search warrants under

section 487 of the Criminal Code issued on February 1, 2014. The search warrant under

section 487 of the Criminal Code issued on February 3, 2014 for the residence of the Accused was obtained on the basis of the same information used to obtain the initial

section 487 warrant for his residence supplemented with the additional information that the police had discovered. The additional information was that other items at the residence of the Accused not seized under the initial

section 487 warrant had also been stolen from 79 Humber Road. [ 61 ] The Accused argues that both the general warrant and the

section 487 warrants in respect of his residence at 21 Lady Diana Crescent (collectively the “21 Lady Diana Crescent Warrants”) ought to be quashed for the following reasons: a. Failure to comply with the statutory pre-condition set out in

section 487.01(1) (

c) of the Criminal Code in obtaining the general warrant; b. The Informations to Obtain used to get the 21 Lady Diana Crescent Warrants contained evidence obtained as a result of a breach of

section 8 of the Charter (the entry upon the property at 21 Lady Diana Crescent by Constables Green and Matthews) and

section 9 of the Charter (the arrest of the Accused and subsequent seizure of his footwear); and

c. The inclusion of misleading evidence in the Informations to Obtain used to get the 21 Lady Diana Crescent Warrants. [ 62 ] As for the alleged failure to comply with the statutory pre-condition set out in

section 487.01(1) (

c) of the Criminal Code in obtaining the general warrant, that provision provides as follows: 487.01(1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in

section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if (

a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing; (

b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and (

c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done. [ 63 ] The argument of the Accused is that the police could have accomplished the same result by obtaining a search warrant pursuant to

section 487 of the Criminal Code and therefore by virtue of

section 487.01(1)(

c) the general warrant was invalid. [ 64 ] The first question to be examined is whether in fact there is another provision in the Code or any other Act of Parliament that would provide for a warrant, authorization, or order permitting the technique, procedure, or device to be used or the thing to be done as per

section 487.01(1)(c). As previously stated, the Accused says there was, namely

section 487 of the Code . [ 65 ] In essence, the general warrants that were issued merely authorized the police to enter each location and search for the items in question but not seize any such items. They did not authorize the police to use any particular device or investigative technique or procedure as can be authorized under

section 487.01(1). [ 66 ] In my view, the submission of the Accused in respect of this issue is correct.

Section 487 of the Criminal Code provides for a warrant that would authorize the police to do exactly what the general warrants did in this case, namely enter into and search the location covered by the warrant for the items in question. While a warrant issued under

section 487 would also authorize the seizure of such items, that in my opinion does not detract from the fact that a warrant under

section 487 would have authorized the very thing that was authorized by the general warrants, namely a search. [ 67 ] As a result, it is my determination that the general warrants issued under

section 487.01(1), including the general warrant for the residence of the Accused, were invalid because the statutory pre-condition set out in

section 487.01(1) (

c) was not met in the circumstances of this case. [ 68 ] I now must consider the effect of my determination that the general warrants were invalid. As outlined earlier, no seizures were made pursuant to the general warrants. Instead, the police used the information obtained as a result of the execution of the general warrants and included such information together with the information used to obtain the general warrants in the Informations to Obtain the

section 487 warrants. The appropriate remedy, in my opinion, is to excise from the Informations to Obtain in respect of the

section 487 warrants the information obtained as a result of the execution of the general warrants. [ 69 ] Therefore, when I move on to consider the other arguments of the Accused on which he challenged the validity of the

section 487 warrants relating to his residence, I shall do so without regard for the information in the Informations to Obtain the

section 487 warrants for his residence that resulted from the execution of the general warrant at his residence. [ 70 ] The law generally, as it relates to challenging search warrants, was reviewed by the Court of Appeal in this province in the case of R. v. Al-Amiri , 2015 NLCA 37 . Barry, J.A. for the Court outlined the applicable law at paragraphs 23 – 30: (

b) The Law Regarding

Section 8 – Search and Seizure (

i) Presumption of Validity 23 The accused has the burden of displacing the presumption of validity which applies to a search warrant: R. v. Campbell , 2011 SCC 32 , [2011] 2 S.C.R. 549 , at para. 14 ; R. v. Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253 , at para. 131 . The accused must show there was no basis upon which the issuing judge could have granted the particular authorization. (ii) Standard for Issuing a General Warrant

24 A justice may issue a general warrant under

section 487.01 of the Criminal Code when a peace officer swears an information whichestablishes "credibly-based probability" that an offence has been committed. As noted in Hunter v. Southam Inc., (SCC),[1984] 2 S.C.R. 145, at 167: The state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point wherecredibly -- based probability replaces suspicion. (Emphasis added.) (iii) Standard of Review of Warrant 25 The reviewing justice must show a high degree of deference to the issuing judge: R. v. Pires; R. v.

Lising, 2005 SCC 66, [2005] 3S.C.R. 343. This means a reviewing judge must not simply substitute his or her opinion or view for that of the issuing judge. Instead, areviewing judge must determine whether there was reliable evidence, that might reasonably be believed, on the basis of which theauthorization could be issued: Araujo.

The court reviewing the validity of a search or general warrant should not ask whether it wouldhave reached the same decision as the issuing judge but rather "whether there was sufficient credible and reliable evidence to permit ajustice of the peace to find reasonable and probable grounds to believe that an offence has been committed and that evidence of thatoffence would be found at the specified time and place": Fish J., in Morelli, at para. 40. (iv) Sufficiency of Grounds - "Totality of Circumstances" 26 Wilson J. in R. v.

Debot, (SCC), [1989] 2 S.C.R. 1140, at 1168, stressed, in the context of discussing a warrant lesssearch, that one must consider "the totality of the circumstances" in assessing the reasonableness of grounds to search in the context ofconfidential informant tips: In my view, there are at least three concerns to be addressed in weighing whether or not the evidence relied on by the police justified awarrantless search. First, was the information predicting the commission of a criminal offence compelling?

Secondly, where thatinformation was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the informationcorroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors formsa separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard ofreasonableness.

Weaknesses in one area may, to some extent, be compensated by strengths in the other two. [Emphasis added.] 27 The same three concerns arise when reviewing the sufficiency of the information set out in an ITO to obtain a search warrant. Thetotality of the circumstances must be considered in assessing the reasonableness of the grounds set out in the ITO. 28 The Debot test does not require corroboration or confirmation of the offence itself or of all the information in the ITO.

This Court hasaccepted that detailed and compelling information from a reliable and confidential source can provide reasonable and probable groundsto arrest even with very little, if any, corroboration of the criminal elements. See R. v. Warford, 2001 NFCA 64, 207 Nfld. & P.E.I.R.263, at para. 30, and R. v. McCabe, 2008 NLCA 62, 280 Nfld. & P.E.I.R. 250. See also R. v. Beauregard (1999), (QC CA), 136 C.C.C. (3d) 80, [1999] J.Q. No. 1109 (QL) (QCCA). 29 The Supreme Court of Canada in R. v.

Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451, upheld the totality of circumstances test adoptedby the majority decision of the Alberta Court of Appeal which agreed with Debot and held there is no requirement to confirm in all casessome criminal aspect of a tip. Depending upon the circumstances, sufficient assurance of reliability may come from confirmation ofneutral data. Corroboration of some criminal particular of the offence may not be needed. This was also the approach in R. v.Hillgardener, 2010 ABCA 80, 477 A.R. 200, at para. 25 and R. v. Burke, 2011 NBCA 51, 374 N.B.R. (2d) 255, at para. 18. See also R.v.

Poirier, 2009 NLTD 35, 285 Nfld. & P.E.I.R. 252, at para. 27, and R. v. Whalen, 2015 NLCA 7, at paras. 24-26, for the elements to beconsidered in determining the existence of "credibly-based probability". (

v) Assess the Whole Information

30 When reviewing the adequacy of an ITO and supporting affidavit, the reviewing judge must consider them as a whole rather than parsing or microscopically examining the words, phrases or paragraphs in isolation or deconstructing every paragraph: R. v. Saunders , 2003 NLCA 63 , 232 Nfld. & P.E.I.R. 22, at paras. 9-11 . [ 71 ] In terms of the second basis upon which the Accused argues that the 21 Lady Diana Crescent Warrants were invalidly issued, I have already found that there was no breach of the

section 8 Charter rights of the Accused as a result of the entry upon the driveway of 21 Lady Diana Crescent by Constables Green and Matthews to observe and photograph the tire and footwear impressions around the car. [ 72 ] Further, I have already found that the arrest of the Accused and the search incidental to that arrest were not unlawful.

As a result, there was nothing improper about including in the Informations to Obtain the 21 Lady Diana Crescent Warrants the evidence obtained as a result of the entry upon the driveway, the arrest, and the search incidental to arrest. [ 73 ] I now move on to deal with the third basis upon which the Accused argues that the 21 Lady Diana Crescent Warrants should be quashed. The Accused alleges that the Informations to Obtain used to obtain those Warrants contained misleading evidence.

The focus of this argument is the surveillance video from Western Lock. [ 74 ] I am not satisfied that there is any misleading evidence concerning the surveillance video from Western Lock contained in the Informations to Obtain in respect of the 21 Lady Diana Crescent Warrants. The argument of the Accused regarding the video from Western Lock appears to focus on the video in isolation. For example, he asserts that Constable Green could not have determined the gender of the two individuals in the video or the type of large items one of them was carrying from a review of the video.

However, the conclusions of Constable Green regarding what he had observed in the video would have undoubtedly been informed not only by what he saw in the video but also by what he had learned from the victim of the robbery prior to viewing the video regarding the perpetrators and what they had stolen from his home. [ 75 ] Further, I would note that there was no sub-facial challenge mounted in this case.

A review of the Informations to Obtain the 21 Lady Diana Crescent Warrants reveals that the affiant, Constable Dobbin, was relying on the notes of Constable Green when he included information relating to what was observed on the surveillance video from Western Lock. There is no evidence to suggest that Constable Dobbin should have doubted anything contained in those notes [ 76 ] Therefore, in considering the validity of the

section 487 warrants for the residence of the Accused, I must do so based on the Informations to Obtain in respect of said warrants after excising the following: a. the portion of paragraph 25 of the Information to Obtain the warrants that referred to three charges against the Accused which were withdrawn (the Crown conceded this should be excised); and b. the information obtained from execution of the general warrant in respect of the residence of the Accused. [ 77 ] The appropriate legal test was outlined earlier from Al-Amiri . It is whether there was sufficient reliable evidence that might reasonably be believed on the basis of which the issuing justice could have issued the

section 487 warrants. It is my conclusion that even after excising the information referred to above, the remaining information set forth in the Informations to Obtain the

section 487 warrants provided an ample basis upon which those warrants could have been issued. [ 78 ] The obvious implication of my conclusion is that the police were unnecessarily concerned about not being able to get a

section 487 warrant to search all three locations in these circumstances where they did not know as between these locations exactly where the items to be searched for would be found. There was an obvious connection between the three locations which the police wished to search. In addition, the police had reliable evidence that linked each of these locations to the offences being investigated and the suspects. In my view, this established reasonable grounds to believe that there was in each location items that would justify the issuance of the warrants under

section 487. Further, that reliable evidence was set forth in the Informations to Obtain the

section 487 warrants for the residence of the Accused. d. If there were any Charter rights of the Accused breached, what is the appropriate remedy? [ 79 ] As outlined earlier, I have determined there was no breach of the

section 8 Charter rights of the Accused as a result of Constables Green and Matthews entering upon the driveway of 21 Lady Diana Crescent to observe and photograph tire and footwear impressions. Further, I have determined that there was no breach of the

section 9 or

section 8 Charter rights of the Accused as a result of his arrest and search incidental thereto. As such, the issue of remedy is moot. [ 80 ] I did determine that the general warrant issued in respect of the residence of the Accused was not validly issued. As a result, there was a breach of his

section 8 Charter rights as a result of the execution of that warrant since the search was carried out pursuant to an invalid warrant. However, I already dealt with the appropriate remedy as a result of that breach when I discussed earlier the issue of validity of the 21 Lady Diana Crescent Warrants. e.

Do the doctrines of issue estoppel and abuse of process apply in this case and, if so, what should be the impact of the application of said doctrines in this case? [ 81 ] The Accused argues that two of the issues which were raised in his Application have already been determined by this court and, as a result, the Crown is bound by those determinations on the basis of the doctrines of issue estoppel and abuse of process. [ 82 ] The first of these issues is whether or not there was an unlawful perimeter search of 21 Lady Diana Crescent contrary to

section 8 of the Charter leading to the exclusion of evidence emanating from that search. The second issue relates to whether or not the general warrant was improperly issued as a result of non-compliance with

section 487.01(1) (

c) of the Criminal Code . [ 83 ] It is argued that these exact issues were decided in the trial of Kirby Spence, who was separately charged with the same offences as the Accused. Mr. Spence was the other individual with the Accused on the night in question. His trial has been completed

and the Accused alleges that the exact same issues he has raised in this case were decided in the trial of Mr. Spence. Mr. Spence’s trialwas conducted in this court by Justice David Hurley and the decision can be found at R. v. Spence, 2018 NLSC 28. I am advised that thisdecision is under appeal by the Crown. [84] I will first deal with the issue estoppel argument of the Accused. Justices Cromwell and Karakatsanis in a jointly writtendecision for the majority of the Supreme Court of Canada in the case of Penner v.

Niagara (Regional Police Services Board), 2013 SCC19 give a good explanation of the doctrine of issue estoppel at paragraphs 28 – 31: A. Issue Estoppel: The Legal Framework 28 Relitigation of an issue wastes resources, makes it risky for parties to rely on the results of their prior litigation, unfairly exposesparties to additional costs, raises the spectre of inconsistent adjudicative determinations and, where the initial decision maker is in theadministrative law field, may undermine the legislature’s intent in setting up the administrative scheme.

For these reasons, the law hasadopted a number of doctrines to limit relitigation. 29 The one relevant on this appeal is the doctrine of issue estoppel. It balances judicial finality and economy and other considerations offairness to the parties. It holds that a party may not relitigate an issue that was finally decided in prior judicial proceedings between thesame parties or those who stand in their place.

However, even if these elements are present, the court retains discretion to not applyissue estoppel when its application would work an injustice. 30 The principle underpinning this discretion is that “[a] judicial doctrine developed to serve the ends of justice should not be appliedmechanically to work an injustice”: Danyluk, at para. 1; see also Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 , [2003] 3S.C.R. 77, at paras. 52-53. 31 Issue estoppel, with its residual discretion, applies to administrative tribunal decisions. The legal framework governing the exerciseof this discretion is set out in Danyluk.

In our view, this framework has not been overtaken by this Court’s subsequent jurisprudence. The discretion requires the courts to take into account the range and diversity of structures, mandates and procedures of administrativedecision makers; however, the discretion must not be exercised so as to, in effect, sanction collateral attack, or to undermine the integrityof the administrative scheme. As highlighted in this Court’s jurisprudence, particularly since Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, legislation establishing administrative tribunals reflects the policy choices of the legislators andadministrative decision making must be treated with respect by the courts. However, as this Court said in Danyluk, at para. 67: “Theobjective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injusticein the particular case.” [85] In Danyluk v.

Ainsworth Technologies Inc., 2001 SCC 44, at paragraph 25, the Supreme Court of Canada explicitly listed thethree preconditions to the operation of issue estoppel as follows: a. that the same question has been decided; b. that the judicial decision which is said to create the estoppel was final; and c. that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppelis raised or their privies. [86] In terms of the first precondition, there is no doubt that the issue regarding the general warrant is exactly the same in this caseas it was in R. v.

Spence. Other than a change with regard to the address referred to in the Information to Obtain the general warrant andthe general warrant itself, these documents were identical in relation to the Accused and Mr. Spence; however, I am not satisfied that theissue regarding the perimeter search is exactly the same. The argument in this case regarding the perimeter search focused on the entryby Constable Green and Constable Matthews onto the driveway of 21 Lady Diana Crescent to observe and photograph tire and footwearimpressions.

In the Spence case, it appears that the issue regarding the perimeter search was more broadly focused and included a reviewof the actions of the police who entered upon the property for the purpose of containing it. All I know about the Spence case is what Iread in the decision of Justice Hurley. I do not know exactly what evidence was presented in that case.

Given the foregoing, I am unableto conclude that the issue regarding the perimeter search as was decided in Spence is also the same exact issue in this case. [87] In terms of the second precondition, I already noted that I was advised that the decision in R. v. Spence is under appeal andtherefore it cannot be said that the judicial decision which is said to create the estoppel was final. [88] As for the third precondition, the concept of privity was discussed in Danyluk when Binnie, J. for the Supreme Court o

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