R. v. Got Date:, 2012 BCPC 130

Citation: R. v. Got Date: 20120514 2012 BCPC 0130 File No: 201812 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Anthony GOT No. 2 RULING ON VOIR DIRE OF THE HONOURABLE JUDGE W.J. KITCHEN Counsel for the Crown: Heather Magnin Counsel for the Defendant: Ian Donaldson, Q.C. Place of Hearing: Vancouver , B.C. Date of Hearing: April 17, 2012 Date of Judgment: May 14, 2012

Introduction [ 1 ] The accused is charged that on December 9, 2009 he possessed ecstasy and cocaine for the purpose of trafficking. The charges were laid after the police responded to a 911 call and searched the residence of the accused. Evidence has been heard on a voir dire to determine whether the police were justified in entering the premises of the accused and to determine also the scope of their authority while in the premises.

I concluded that the police were not justified by their common law authority and duty to protect lives when they entered the premises and in any event their activities in the residence went beyond the scope of such authority. I therefore concluded that the search and subsequent seizure by the police in the residence was in violation of

Section 8 of the Charter of Rights and Freedoms. The issue now is whether evidence found during that search should be excluded under Section 24(2) of the Charter. Facts [ 2 ] A restatement of the facts is necessary at this point. The investigation started with a 911 telephone call to the police at about 7:30 a.m. saying there was a “possible B&E”. The complainant advised the police that the complaint information was received from another person who had observed someone apparently trying to break into the residence.

One would conclude that these two informants were in the immediate area of the residence and would likely remain there, available to the police who answered the call.

It was clear that at least some of the police at the scene were aware of the circumstances of the complaint; the others could have learned all of this from consultation with their police computers or the other police officers. [ 3 ] The first two officers on scene, Clarke and Jack, found evidence of a possible break and entry – a broken front door - but also saw signs that it may have been a case of an intoxicated resident damaging his own front door.

Clarke in particular believed it may not be a break and entry and he felt they should question the person he had taken into custody in the area of the front door. [ 4 ] Shortly afterward another person, partially clad, came out of the residence. Jack went into the residence to obtain clothing for this other person. Jack saw no further indication of a break and entry. In particular, he saw no one else present in his cursory examination of the residence.

He and Clarke briefly advised their superior officer, acting Sergeant McDougall of their investigations when he arrived on the scene shortly afterward. [ 5 ] McDougall engaged in no other consultations. In particular, he did not talk to the detainees or make any inquiry about the original call or the complainants who had made the call. He concluded, based on the original call of “possible B&E” and his experience that break and entries can involve very dangerous situations, and that he must “clear the house.” This was necessary to ensure that no victims or suspects remained within the house.

He believed that speaking to the two detainees would resolve nothing on this issue because either or both of them could be suspects themselves, or victims who had been threatened that they must lie to the police. [ 6 ] McDougall initially had in mind a very quick search to determine whether others were present in the house. He moved quickly through the first three rooms he entered, in a search there that would not discover smaller items or contraband.

The whole search took only a few minutes, even though somewhat more time was spent in the occupied bedroom where the drugs were found. [ 7 ] Arsenault was another officer who was nearby when McDougal arrived. McDougall did not consult with Arsenault either but when McDougall entered the house, Arsenault followed him on his own initiative to help “search the residence.” Arsenault also had in mind a limited search that would discover the presence of persons but not much more.

Although Arsenault mentioned he felt it was a general search, he reiterated that they were looking for people and his activity was limited to just such a search. He also moved quickly, and he said in his evidence that he looked in areas where a person might hide. He looked under a sink but he said he did not look in drawers or smaller cupboards. [ 8 ] The blue bin where the drugs were found was directly at the foot of the bed in the occupied bedroom, and to one side, beside the corner post of the bed that was furthest away from the door.

It was in a location where it was quite unnecessary to move it to look under the bed. [ 9 ] The contents of the bin, prior to discovery, were not in plain view. Both officers described the presence of clothing on or about the bin and both described a lid for the bin. Either or both the clothing and the lid were covering the contents of the bin prior to McDougall’s activities making the contents visible. [ 10 ] It was not necessary for McDougall to move the bin nor was it necessary to move the clothing or lid from the bin.

The contents of the bin could only have been revealed by a purposeful act by McDougall that was not a necessary part of the search for the presence of persons. The nature of the search had changed. McDougall’s action was not consistent with his original intentions and he had gone beyond the scope of a search to “clear the house”. [ 11 ] In the information to obtain the search warrant Arsenault described the lid as, “leaning against the side of the bin.” The plain meaning of this is that part of the lid was on the floor, leaning against the bin.

The evidence of McDougall was that the lid had been at least partly on top of the bin and he had moved it. The Court accepts that. It must be concluded that he moved it from a position on top where it concealed the contents of the bin, to a location on the floor, beside the bin and leaning against the bin as was observed by Arsenault. [ 12 ] After examining the contents of the bin the two officers engaged in a further search. This was initially under the bed and was a resumption of their “clearing” search.

Their search then expanded and they engaged in a more general search than just a search for the presence of persons. This was beyond the scope of their original intentions. It also was not necessary to do this in order to secure the contents of the bin while they applied for a search warrant. After finding nothing more, the house was secured while Arsenault applied for a search warrant for the premises. Submissions - Defence

[13] I have now heard submissions from defence counsel applying to have the evidence seized by the police excluded underSection 24(2) of the Charter of Rights and Freedoms. Defence counsel referred to the decision of Regina v. Grant, [2009] S.C. 32,SCC, (hereinafter the Grant Case). There are three factors in that case requiring consideration on such applications. [14] On the first factor, the seriousness of the Charter infringing State conduct, the submission was made that the violations in thiscase were not inadvertent or minor but were wilful and reckless.

There were no extenuating circumstances to attenuate the seriousness ofthe police conduct resulting in the breach. Ignorance of Charter standards must not be rewarded or encouraged, and negligence or wilfulblindness cannot be equated with good faith.

Defence referred to the Grant Case where the Court at para. 75 said, inter alia, “It should also be kept in mind that for every Charter breach that comes before the Courts, many others may go unidentified andunredressed because they did not turn up relevant evidence leading to a criminal charge.” [15] On the second Grant factor the defence asks for an evaluation of the extent to which the breach actually undermined theinterests protected by the rights infringed. The search of the bedroom of the accused was less intrusive than a strip search, but the searchwas not fleeting or technical.

A bedroom is a protected area of privacy which enjoys a high expectation of privacy. Since a search forevidence was entirely unjustified and there were no extenuating circumstances, the impact on the accused’s right to privacy was high andthe case for exclusion is strong. [16] On the third ground the Court must examine society’s interest on adjudication on the merits. The defence says the mandate ofthe Court hereunder is broad and not just an inquiry into the reliability of the evidence or its value to the Crown’s case. The long termrepute of the justice system is the focus of Section 24(2).

The price paid by society for an acquittal can be outweighed by the importanceof maintaining Charter standards. [17] The defence refers to several cases concerning these issues, including: [a] R. v. Nguyen, 2002 BCPC 405 [b] R. v. Wong, 2005 BCPC 24 [c] R. v. Schwengers, 2005 BCPC 578 [d] R. v. Sotana & Tse, 2010 BCPC 267 [e] R. v. Ho, Hou, Huang, Li & Zhou, 2011 BCPC 186 [f] R. v. Batanov, 2011 BCSC 1749 [g] R. v. Latham & Ryan, 2012 BCPC 78 Submissions - Crown [18] The Crown submits that the state conduct at issue here should be categorized as akin to good faith.

The conduct did notrepresent any significant pattern of disregard for Charter rights. The search conducted was very brief in duration, non-invasive and didnot impact the bodily integrity of the accused.

Society’s interests in this serious case being adjudicated on its merits favours inclusion ofthe evidence despite the serious impact on the Charter protected interest of the accused. [19] Looking at the seriousness of the infringing conduct, the Crown quotes Charon J. in the Grant Case at para. 74: At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimallyundermine public confidence in the rule of law.

At the other end of the spectrum, admitting evidence obtained through a wilful orreckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringingthe administration of justice into disrepute. [20] The Crown says the presence of the following factors lessens the seriousness of the violation: 1. The police acted in good faith. 2. The police did not arbitrarily focus on the home of the accused. 3. The police actions were motivated by a sense of urgency based on their concerns for safety. 4. There was no pattern of such police conduct. 5.

The search was very brief, non-invasive and did not impact the bodily integrity of the accused. [21] On the issue of good faith, the Crown quotes Doherty J. in R. v. Kitaitchik (2002), (ON CA), 166 CCC(3d) 14 (Ont. C.A.) where he says, “What is important is the proper placement of police conduct along the fault line.” The Crown

agrees that to make a finding of good faith the police officer involved must, at the time the breach occurred, have honestly and reasonably believed they were acting lawfully. In the present case both officers who entered the residence subjectively believed their entry into the residence and subsequent search was lawful. The Crown points out that this Court accepted that acting Sergeant McDougall believed it was necessary to “clear the house” to ensure no victims of crime or suspects remained within the house. The Court also accepted that Cst.

Arsenault entered the house to discover whether any persons were in the residence. [ 22 ] The Crown points out that the police focus on this house was in no manner arbitrary – it was all related to a 911 call. That mitigates the situation and this type of analysis has been accepted by our Court of Appeal in R. Jamieson, [2002] BCCA 411 and R. v. Wong, [2010] BCCA 160. [ 23 ] Concerning the impact of the search on the Charter protected rights of the accused, the Crown agrees that the privacy interests in one’s home deserves stringent constitutional protection: R. v. Tessling [2004] SCC 67.

The submission is that this is attenuated by the relative brevity and focussed nature of the search. [ 24 ] The Crown says that on the issue of society’s interest in adjudication on the merits the Court must look at the reliability of the evidence, the seriousness of the offence and the role of the impugned evidence in the Crown’s case. The evidence is real, highly reliable, and essential to the prosecution of a very serious offence – 100,000 pills of ecstasy valued at more than $1,000,000.

The exclusion of reliable evidence tends to undermine the truth seeking function of the trial process. [ 25 ] The Crown for its part relies on several cases, including: 1. R. v. Wong, 2010 BCCA 160 2. R. v. Harrison 2009 SCC 34 3. R. v. Caron, 2011 BCCA 56 4. R. v. Tomlinson, 200 BCCA 196 5. R. v. Jamieson, 200 BCCA 411 6. R. v. Crocker, 2009 BCCA 388 7. R. v. Russell & Grenfal, 2000 BCSC 27 8. R. v. Cornell, 2010 SCC 31 9. R. v. Larson, 2011 BCCAP 454 10. R. v. Fahbod, 1996 BCCA 9 Analysis [ 26 ] The protocol from the Grant Case requires first an analysis of the seriousness of the breach.

In this case, I have concluded that the breach was twofold – the police were not justified in entering the residence of the accused and, even had they been, their search went beyond the scope of such an entry. I will examine first of all the seriousness of the entry by the police.

I have concluded that this entry was not justified because much more investigation could and should have been done before it could be concluded that the house must be “cleared for safety reasons.” [ 27 ] The police should have made contact with the complainant who had made the 911 call to obtain further information about the basis for the complaint. They should also have questioned the two detainees, and in particular the second person who emerged from the residence in underclothing and appeared to have been sleeping. Sgt.

McDougall should have ensured that those inquiries had been made, and he should have briefed himself on the information obtained. He should have spoken to the two officers who had arrived on the scene and investigated the matter before he arrived. One of these officers had detained the first person found on the scene and had the impression he was dealing with someone who had returned home after a night out and had broken his own door.

The other officer had already made a quick trip through the residence, including into the bedroom where the drugs were found, and retrieved clothing for the partially clad person who had emerged from the residence. There was a considerable amount of information available that Sgt. McDougall simply ignored. [ 28 ] Instead, Sgt. McDougall concluded that he had to assume the worst of all possible scenarios, a home invasion, and he had to act on that possibility.

He said that the persons outside might be victims who had been threatened by perpetrators still within the residence, or they might be the perpetrators themselves with victims remaining in the residence. The complainant who made the 911 call might have some information on that, but McDougall ignored that source also. The two persons in custody of the police might have information that was relevant, but those persons were not spoken to at all by McDougall. The officer who went through the residence to get the clothing might have relevant information, but he was not consulted.

Instead, McDougall chose a more expedient and officious alternative – quickly entering and searching the residence, and clearing out anyone present. That would surely take less time than other investigative techniques but displayed a cavalier attitude toward the privacy rights of the accused and others in the residence. [ 29 ] The Crown has made the point that the entire search was brief.

That was indeed the case but is an indication of the real concern of McDougall – not to respect the rights of those present, but to take the action that required the least time and effort. [ 30 ] The Crown has asked the Court to consider the bona fides or good faith of the police. I accept that McDougall believed he had to provide for the worst contingencies, but that belief was misguided. The issue of good faith must consider not only the sincerity of

the belief of the police at the time, but their responsibility to these issues in the long term. It is clear that McDougall was not sensitive to the privacy rights he should keep in mind in such situations. The sincerity of his beliefs is only valid if it is founded upon a proper understanding of the issues at hand. McDougall had not informed himself of the privacy interests he should have been considering and he was focussed too much on worst possible scenarios. [ 31 ] On the issue of good faith I conclude that the police belief in the necessity of the search was honestly held, but was not reasonable.

The police had not properly made themselves aware of the privacy issues at play in such a situation, and had ignored almost all available information that should have been considered. The result was a reckless disregard for the Charter rights of the occupants of the home. [ 32 ] To compound the problem, the nature of the search went beyond the scope of even what McDougall intended when he entered the premises. It is clear from such cases as R. v. Batanov , 2011 BCSC 1749 that a lawful entry by the police can become unlawful when their conduct goes beyond the scope of what was permitted.

Suspicion and curiosity are two valued traits in police officers but when the police are in a residence for purposes other than a search then their suspicion and certainly their curiosity must be strictly controlled. [ 33 ] It must be concluded that engaging in a search beyond the scope of anything contemplated by the police is a very serious breach also, being a reckless and perhaps even wilful disregard of the privacy interests of the inhabitants. [ 34 ] The Crown has argued that the search was not arbitrary, and that it was not part of a pattern of such police conduct.

Some of the cases referred to by counsel involved situations where the police had entered premises with an ulterior motive - that was certainly not the case here. Other cases were concerned with a pattern of police activity that needed correcting - that was not proven in this case either. There was no evidence suggesting that this residence or its occupants had been the subject of similar police attention in the past. And there was no evidence that police responses to 911 calls are always dealt with in this way. [ 35 ] However, it was interesting to note that Sgt.

McDougall’s hasty decision to clear the residence seemed to be an automatic and habitual response. Cst. Arsenault apparently knew exactly what McDougall was doing and followed him into the residence without question, also giving the appearance that such practise is routine. My conclusion is that the factor of whether the police conduct was part of a pattern is not decisive either way on the issue of the seriousness of the breaches. [ 36 ] Under the Grant Case the Court must next examine the extent to which the breaches actually undermined the interests protected by the rights infringed.

These rights were the privacy rights of the accused to his home. The sanctity of one’s residence has always been protected by the common law, and it may be said that the bedroom of a home has special status. The bedroom is that area of a residence where intimate matters are most likely to occur and where a person would be expected to keep their most personal possessions. Privacy interests in the bedroom are next highest to the privacy interests in one’s personal integrity.

The impact on one’s rights by the invasion of privacy of one’s home and particularly one’s bedroom is very high. [ 37 ] On the third ground of the Grant Case the Court must examine society’s interest in having such a case adjudicated on its merits. It is clear that real evidence such as a blue rubber bin full of ecstasy pills is reliable and would be compelling in a case alleging possession of illicit drugs for the purpose of trafficking. It is also clear that the admissibility of this evidence is critical to the Crown’s case.

But the Court must consider not just this case, but the long term repute of the justice system if such evidence is admitted. [ 38 ] It is clear from the caselaw that as much as society values and relies upon the protection of police, it is expected that the police will be held to the highest standards in executing their responsibilities. Keeping in mind that allowance should be made for a job that requires decisions to be made quickly, it is still expected that the police will be fully informed and respectful of those with whom they are interacting.

The comment has been made that society does not expect the Courts to play Monday morning quarterback and second guess everything done by the police. At the same time, society expects that the quarterback on the field, the police responding to the 911 call, will know the rules of the game. [ 39 ] There is one other aspect to an examination of society’s interest in the prosecution of a case. Some police investigations may focus on previously reported serious offences, or perhaps persons or organizations suspected of committing such offences.

The commitment of time and resources to such investigations can be massive. Society is very concerned when such investigations are frustrated by the courts concluding that the police tripped up on what the public perceives as a “legal technicality”. But in this case, the situation that developed as a result of a 911 call was quite different. The police were not aware of the existence of the drugs at issue here and were not investigating the residence or those associated with it. Quite unexpectedly the police discovered the drugs, seized them and took them out of circulation.

This required relatively little commitment of time and resources by the police - in fact, the police were clearly trying to minimize their commitment to this investigation when the drugs were fortuitously discovered. Society would be more concerned about a matter where it might appear that the courts were interfering with a lengthy and well executed police investigation. [ 40 ] I conclude that these breaches were serious, that the impact on the privacy rights of the accused was significant, and that society’s interest in having this particular matter adjudicated on its merits does not prevail.

I conclude that admitting into evidence the results of the search by Sgt. McDougall would bring the administration of justice into disrepute. I understand that the search resulted in Cst. Arsenault preparing an Information to Obtain a Search Warrant. The ecstasy and some cocaine were seized with the search warrant that was issued. I will hear submissions of counsel as to how we should proceed at this point. BY THE COURT