R. v. Routledge, 2011 NSPC 49

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Routledge, 2011 NSPC 49 Date: 20110610 Docket: 2085086, 2085087 Registry: Sydney Between: Her Majesty the Queen v. Raymond J. Routledge DECISION Judge: The Honourable Judge Jean M.

Whalen, J.P.C Heard: June 10, 2011 at Sydney, Nova Scotia Charge: Section 5(2) x 2 Controlled Drugs & Substances Act Counsel: David Iannetti, for the Crown Patricia Fricker-Bates, for the Defence Introduction [ 1 .] This is the decision of the Charter application in the matter of Raymond Routledge. [ 2 .] Police officers obtained judicial authorization to search two homes believed to be associated with the defendant, Mr. Routledge. They were the homes of his mother and wife. [ 3 .] Both search warrants contained between dates for execution.

The police executed the warrants on the date issued, the 26 th , instead of the 27th, 28th, 29th, or 30 th . [ 4 .] The defendant argues this is a violation of his

Section 8 Charter rights and the evidence should be excluded. The Crown conceded the police action was a violation of

Section 8 of the Charter , but the evidence should not be excluded pursuant to Section 24(2). Facts:

[ 5 .] Crown and defence agree that warrants, Exhibits 3 and 4, were defective as they specified between dates for execution but the warrants were executed on the first date, in particular August 26, 2009. The Crown does not concede the switch of addresses as a

Section 8 breach, but does agree the defects in the warrant cited in the four cases of the defendant’s brief relate to the between date issue. Those cases did not proceed for that reason. Those cases involved marijuana and MDA. [ 6 .] The Crown called one witness on the Charter application, Constable Michael Somerton. Constable Somerton has been with the Drug

Section for six years. The police officer prepared the two search warrants and had them signed. He also prepared the information to obtain. [ 7 .] An information to obtain with respect to 37 International Street was tendered as Exhibit #1, and an information to obtain with respect to 50 Peel Street was tendered as Exhibit #2. [ 8 .] Regarding Exhibit #1, the police officer’s purpose in preparing the information to obtain was to obtain a search warrant and execute same by entering the defendant’s residence at 37 International Street. The information to obtain contains the officer’s grounds.

The information contained in that information to obtain came from confidential sources, some surveillance completed by police officers, reviewing police reports, and from speaking with other police officers. [ 9 .] Regarding 37 International Street, Constable Somerton testified that the information he obtained led him to believe that the defendant was obtaining and selling prescription pills, mainly hydromorphone, from his vehicle in and around the Glace Bay area, and from 37 International Street. He also believed that Mr.

Routledge resided at that address. [ 10 .] With respect to Exhibit #2, the only difference between the two documents is the second last paragraph which reads, “... the dwelling house, vehicles, appurtenances or property of Raymond Routledge (mother’s residence) located at 50 Peel Street, Glace Bay, Nova Scotia.” The officer testified they “...were being told he was hiding stuff in a baby barn at the back of the residence.” [ 11 .] Constable Somerton obtained a search warrant (Exhibit #3) for 37 International Street (property of R. Routledge).

The date of the execution was to be between August 26 th and August 31 st , 2009. This search warrant was executed on August 26 th 2009. [ 12 .] Exhibit #4 is a search warrant to search the property of P. Routledge (mother of Raymond Routledge) located at 50 Peel Street, Glace Bay to be executed between August 26 th and August 31 st , 2009. [ 13 .] Constable Somerton does not recall what time he obtained the search warrants. He had obtained and executed several others during the day. He testified that the police officers met at the office, briefed and formulated a plan.

They executed the search warrant for 50 Peel Street first because they thought it would be the quickest and easiest to do. They were going to secure that residence and then go to 37 International Street. Constable Somerton testified he was second in the door. Mr. Routledge was standing over the toilet and “It was after being flushed.” [ 14 .] The police located a large sum of money, in particular $2,035.00 in the gym pants he was wearing, $5,010.00 in the purse of D. Routledge, his wife, $1,620.00 in a Price Chopper bag which was returned to Mr. Routledge’s daughter.

In the master bedroom there was $130.00 in coin which was seized. A small amount of marijuana was also seized from this location. [ 15 .] The search warrant for 37 International Street was executed at 8:20 pm and the police seized the following items: 23 grams of marijuana from the kitchen table; 58 grams of cocaine from two baggies in the kitchen cupboard; a scale from the kitchen table; a scale from the baby barn; a cell phone and score sheets. [ 16 .] Constable Somerton testified his understanding of the warrant at the time was: “I didn’t understand at the time what between dates meant.

I believed we were able to go on the date signed up to the end date. I believed we were within our right to in from the 26 th to the 30th the end date.”

[ 17 .] The officer does not know how he began into using between dates as he usually put down one day to be executed. When he returned to the Drug

Section in 2008 he indicated it was a practice and he “just jumped into the same role.” [ 18 .] On cross examination Constable Somerton agrees the last paragraph in Exhibit #1 refers specifically to property owned by the defendant Raymond Routledge. This was based on information from a confidential source and not from surveillance of his residence. Constable Somerton indicated the surveillance was conducted in downtown Glace Bay. [ 19 .] At the time of testifying the police officer understands the actual owner of the property at 37 International Street is the defendant’s mother, Patricia Routledge.

The Crown conceded the property belongs to Patricia Routledge. [ 20 .] Constable Somerton testified to the fact that the defendant does not own property is correct, but the fact that he does not reside there is not correct because he testified his own wife told them he lived there for six months. He said: “after this warrant was executed we found out that was incorrect.” [ 21 .] With respect to Exhibit #2 and 50 Peel Street, the officer says since the execution of the warrant he cannot say who owns the property. He was told the defendant and his wife owned 50 Peel Street.

The Crown concedes the property is registered and owned by Darlene Routledge. The police officer says he understood Darlene to be the defendant’s wife. [ 22 .] When asked about informants giving wrong addresses, the police officer disagreed because “All transactions by informants were done at 37 International Street and that led me to believe the defendant had lived there.” [ 23 .] Regarding paragraph 8 of the search warrant, the police officer indicates after the fact that he would agree that he believed the information is incorrect, but not then.

When executed, he said he believed that the defendant and his wife were at Peel Street. [ 24 .] As well, at paragraph 16 to 19 the police officer says at the time it was not believed to be in error, but after the fact, yes he would agree. [ 25 .] Constable Somerton also acknowledged the errors were repeated in Exhibit #1. [ 26 .] Constable Somerton testified when they executed the search warrant at 37 International Street, no one was at home. They were informed that the “Mrs.” was in Mira for the summer.

Constable Somerton testified: “We knew we were going in the right residence.” They entered through the basement window as they were trying to prevent damage to the home. [ 27 .] Constable Somerton testified that the police have now abandoned that practice of between dates as of mid 2010. [ 28 .] The officers had a plan to go to 50 Peel Street and expected to find a baby barn. He subsequently learned there was no baby barn at 50 Peel Street. It was at 37 International Street.

The police officer said he could not recall if there was or was not a baby barn at 50 Peel Street because at the time he was not in the backyard. Constable Somerton testified it is the practice of the police to check Nova Scotia Power and or phone records, or do a cursory search to corroborate source information if they are dealing with a marijuana grow operation. But in this instance, there was no reason to do so. The police relied solely on sources of information, surveillance and other investigative reports.

The police officer testified he did not know in October of 2009 that there was issue with the warrant on a file, and in particular R. v. Brown [Prov.Ct. unreported] . It was not brought to his attention. [ 29 .] With respect to the submissions of counsel, I read the briefs and listened to the oral arguments. I thank counsel for those written submissions. I have considered all of those submissions. [ 30 .] The Crown argues the evidence should not be excluded pursuant to Section 24(2) because:

(1.) This was not a significant breach.

The officers acted in good faith and sought judicial authorization to search 50 Peel Streetand 37 International Street, and that is what they did operating on information they believed to be accurate at the time. (2.) There is a high expectation of privacy in a person’s home, but the seriousness of the breach is on the low end of the scale. (3.) Society has an interest in the adjudication of the case on its merits because of the circumstances and items. [31.] Defence counsel submits that the evidence should be excluded because: (1.) It would give the public confidence in the system and there must be some consistency in the application of the Charter by theCrown. (2.) There is a much higher expectation of privacy in a home and the police had the wrong addresses and executed the warrantoutside the proper time frame. (3.) This issue of defective warrants was known to the Crown several months prior to October of 2009 and this case is in the midstof others not prosecuted.

Issue: [32.] The Crown conceded there was a

Section 8 Charter breach because the search warrants were defective, ie. that they wereexecuted on the first day of the between dates authorization. The sole issue to be decided by the court is whether the evidence seized bypolice should be excluded pursuant to Section 24(2). The Law: [33.] R. v. Grant, a 2009 SCC 32 , 2009 S.C.J. 32, at para. 59: When must evidence obtained in violation of a person’s Charter rights be excluded?

Section 24(2) of the Charter provides the followinganswer: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rightsor freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all of the circumstances,the admission of it in the proceedings would bring the administration of justice into disrepute. [34.] At para. 68 in that same case, Justice MacLauchlin states: The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of,and public confidence in, the justice system.

Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s.24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system,viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective.

It asks whether a reasonableperson, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidencewould bring the administration of justice into disrepute. [35.] And further at para. 70 the court goes on to state: ...s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather atsystemic concerns.

The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system. [36.] And further at para. 71: ...a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1)the seriousness of the Charter-infringing state conduct... (2) the impact of the breach on the Charter-protected interests of the accused,...and (3) society's interest in the adjudication of the case on its merits.

[37.] When evaluating the first line of inquiry, the court must consider the seriousness of the state conduct. Was this a minorviolation or something much more egregious? Did the police act in good faith, or were they negligent or wilfully blind? [38.] With respect to the second line of inquiry, the court must consider the extent to which the breach actually undermined theinterests protected by the right infringed. What are those interests?

Here it is one of privacy. [39.] And lastly the third line of inquiry requires the court to consider not only the negative impact of the admission, but also theimpact of failing to admit the evidence. At para. 82 of Grant (supra) states: The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on itsmerits must therefore be weighed against factors pointing to exclusion, in order to "balance the interests of truth with the integrity of thejustice system": Mann, at para. 57, per Iacobucci J.

The court must ask "whether the vindication of the specific Charter violation throughthe exclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial": R. v. Kitaitchik (2002), (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47, per Doherty J.A. [40.] The first line of inquiry: the seriousness of the Charter infringing state conduct. [41.] Constable Somerton began an investigation on January 24, 2009, into the activities of Raymond Routledge concerningviolations pursuant to Section 5(2) of the Controlled Drugs and Substances Act.

These alleged violations concern two separateproperties, one located at 37 International Street in Glace Bay, and the other located at 50 Peel Street in Glace Bay. This investigationlasted approximately eight months concluding with a search of both addresses on August 26, 2009. [42.] Constable Somerton relied on three reliable confidential human sources and other police officers. He reviewed records andreports of other police investigators.

This information was used to obtain judicial authorization to search the two locations mentionedabove. [43.] The information set out that the defendant was selling drugs, hiding drugs, storing drugs, residing at and or going between 37International Street and 50 Peel Street in Glace Bay. Whether the defendant owned these residences is not relevant. The key fact is thatthe defendant was associated with both these residence over the eight month period. The source information was detailed. There is noevidence before me that the sources were not reliable.

The search was conducted one day after receiving source information stating thatthe defendant was selling drugs in Glace Bay and storing drugs at one of the residences. [44.] Defence counsel argues that the defendant does not own 50 Peel Street, that it belongs to his wife, Darlene Routledge. This mayhave been erroneous at the time, but Constable Somerton was relying on information that he thought was accurate at the time, whichassociated Mr. Routledge with this residence.

The fact that a baby barn was at 37 International instead of 50 Peel Street is not such anerroneous error that the test for issuing a warrant could not be met. This does not take it to a level of carelessness which makes theactions of the police negligent or wilfully blind to the circumstances. [45.] The place to be searched was described such that an officer unfamiliar with the investigation would know where to search bylooking at the warrant. Precision is very important in granting warrants as stated in R. v MacDonald, 2007 Ont.J. No. 3551. [46.] “Separate warrants are required for different locations”, R. v.

Miller, (ON CA), 1998, 38 C.C.C. (3d) 252. That was done here, two warrants for two residences known to be associated to or with the defendant. [47.] With respect to the time of execution, where time limits are expressed on the face of the search warrant it is apparent that thesearch must be commenced within the time specified. This case presents a time violation. The search warrant was executed at 8:20 pm at 50 Peel Street, and at 37 International Street a couple of hours earlier.

If the police had searched at 12:01 AM on August 27th, 2009,there would probably be no issue with respect to the date of the execution of the search warrant. There is no evidence that the policemade a conscious effort to ignore the time limits set out in the warrant. Constable Somerton testified that when he returned to the drugsection the between date procedure was being used and he fell into place. He was under the impression he could go in on the first date.

[48.] There is no evidence before me that any other police officer knew otherwise and passed that information on to ConstableSomerton. Nor is there any evidence that Constable Somerton was privy to why other cases, such as the Brown case were not proceededwith by Crown counsel. [49.] As I stated, this case is a time violation. It is not a case where the information to obtain was insufficient, where there was afailure to specify items or set time, nor was where there was a failure to state a place. The evidence is not conscriptive. The evidencealready existed.

The defendant was not compelled to provide any information or self-incriminating evidence. There is no bad faith onthe part of the police officers. It was not the wrong premises. And the police conduct was not excessive. [50.] The second line of inquiry: Impact on the Charter protected interests of the accused. What interests are we concerned with? [51.] It is a

Section 8 violation which protects a person’s reasonable expectation of privacy. It does not protect property. JusticeMacLauchlin at para.78 in Grant (supra) states: ...an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, humandignity.

An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or thatdemeans his or her dignity, is more serious than one that does not. [52.] Constable Somerton and the other police officers executed two warrants on two residences in Glace Bay, which, based oninformation, were associated with the defendant. Those were his mother’s residence and his residence where he resided with his wife and daughter. The police had judicial authorization to search both of these homes between August 26th and August 31st, 2009. [53.] This was not a warrantless search.

There was sufficiently reliable information. The police had dates of execution and thewarrants had correct addresses. The information was obtained and was current up to the day before the search. And, the items to besearched were found, except for the cocaine, and this real evidence existed independent of any breach. [54.] As for the two single family dwellings, the warrants were specific. There was no mix up with addresses. This was not anapartment building or a boarding house and no one else’s privacy was invaded. The impact of the breach on Mr. Routledge’s interest isnot at the most serious end of the scale.

The police did not demonstrate a casual attitude towards the reasonable expectation of privacybecause they did obtain a warrant. However, I would note that it is a home where there is a high expectation of privacy. [55.] The third line of inquiry: Society’s adjudication on the merits. The question to be asked is: “...whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by itsexclusion. This inquiry reflects society's ‘collective interest in ensuring that those who transgress the law are brought to trial and dealtwith according to the law’: R. v.

Askov, (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20.” Grant supra at para. 79 [56.] The evidence seized was real evidence. There is no evidence before me to suggest otherwise. In this instance, just because theinformation to obtain did not specifically state cocaine, does not make it any less reliable. They went for drugs and they got drugs,marijuana, plus something else. [57.] Unreliable evidence would go to the defendant’s interest in a fair trial and public interest in uncovering the truth. The evidencealready existed. Mr.

Routledge was not compelled to provide any information or self-incriminating evidence, nor is there any evidenceto suggest any member of the defendant’s family, including his wife, daughter and mother, were compelled to provide information toincriminate Mr. Routledge or themselves. [58.] The offence is trafficking in cocaine and: “...while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectivelyprosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system.

Yet, asdiscussed, it is the long-term repute of the justice system that is s. 24(2)'s focus. As pointed out in Burlingham, the goals furthered by s.

24(2) ‘operate independently of the type of crime for which the individual stands accused’ (para. 51). And as Lamer J. observed inCollins, ‘[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to thatmajority’ (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice.

Moreover, while the public has a heightened interest in seeing a determination on the meritswhere the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where thepenal stakes for the accused are high.” Grant (supra) para. 84 [59.] The long term safety and concern for our children and the community regarding exposure to dealers and drugs cannot beachieved by police officers violating a citizen’s right at every turn. But would their actions shock the community. [60.] The sole purpose of the police is to investigate crime.

This investigation was knowledge based. The court has evidence of thepolice officer’s belief and judicial authorization. It was not a fishing expedition and arbitrary detention or surreptitious search andseizure. The evidence seized is very important.

Without it the Crown cannot prove its case. [61.] Having considered all three lines of inquiry which cause the court to consider all of the circumstances, I must now determinewhether on balance, admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute. [62.] Section 24(2) does not confer discretion on the judge, but a duty to admit or exclude evidence as a result of his or her finding. [63.] R. v. Harrison, 2009 SCC 34 , 2009 S.C.J.

No. 34, para. 36 states: The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question ofwhether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighedin the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration ofjustice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of thecriminal justice system.

Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must beassessed. [64.] With respect, I find on a balance of probabilities that the Crown has proven that the exclusion of this evidence in all of thecircumstances would bring the administration of justice into disrepute and therefore I am prepared to admit the evidence on the trialproper. The Honourable Judge Jean Whalen