2018 QCCQ 6740, 2018 QCCQ 6740

R. c. Broeckaert 2018 QCCQ 6740 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD LOCALITY OF COWANSVILLE “Criminal and Penal Division” No.: 455-01-015206-174 DATE: August 27, 2018 ______________________________________________________________________ PRESIDING: THE HONOURABLE SERGE CHAMPOUX, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

MICHAEL BROECKAERT Accused ______________________________________________________________________ JUDGMENT ON THE APPLICATION OF THE ACCUSED ALLEGING AN INFRINGEMENT OF HIS RIGHTS ______________________________________________________________________ [ 1 ] In his proceeding, Michael Broeckaert alleges an infringement of his rights guaranteed under the Canadian Charter of Rights and Freedoms [1] (”the Charter ”), and more specifically, those protected in ss. 8 and 9 , and therefore that the evidence obtained against him should be excluded. [ 2 ] At the commencement of the hearing, the parties declared that the outcome of this application would determine the outcome of the litigation in that, should it be granted, the prosecution acknowledges that it would be unable to make its case, but that, to the contrary, should it be dismissed, the defence acknowledges that the accused has no other defence and that the Crown’s evidence will be considered to have been proven beyond a reasonable doubt. [ 3 ] SOME ESSENTIAL FACTS [ 4 ] On November 20, 2016, after 11 p.m., the Sûreté du Québec received a call from a woman saying that she was very worried about her daughter, Kelly Royea.

The daughter had sent a message from her cellphone that simply said “SOS”, after which the mother was unable to contact her. [ 5 ] After pinpointing the location of her daughter’s call, she was able to determine that she might be at the home of the accused, a spouse or former spouse. [ 6 ] Officers Prairie and Arsenault responded to the call. They first went to the address of the daughter of the person who had called and concluded that she was not there. They then went to the accused’s address on Gendreau Street in Stanbridge East. There, they saw Kelly Royea’s car.

Otherwise, there did not appear to be any activity at that location: no lights, no movement and no sounds. [ 7 ] It is useful to note that Gendreau Street is a dead-end street – at least at that location– which terminates in front of the accused’s residence, which is a modest home. One or two other houses are also located at the same dead end. They were partially lit, relatively close, and had cars parked in front of them, but there was no activity there either. [ 8 ] It should also be noted that otherwise, there did not appear to be any other dwelling close by.

Farmland almost completely surrounds these three residences. Behind or to the side of these residences is a river that winds through what appears to be a forest or a clump of trees on both sides of the river. [ 9 ] In other words, the spot is very isolated, very dark, and far from any urban area. [ 10 ] Officers Prairie and Arsenault therefore knocked on the door of the accused’s home and, after several attempts, managed to wake up the accused and Kelly Royea, who opened the door. The exchange was cordial and the officers observed that Ms. Royea was safe. [ 11 ] But they observed more.

[ 12 ] They returned to their patrol car but were unable to avoid talking about the fact that there was an overwhelming, strong and pervasive smell of fresh cannabis coming from the house. I am convinced by their testimony that the officers were certain that the dwelling contained a substantial quantity of fresh marijuana, as opposed to, for example, the same substance smoked. [ 13 ] They had little experience and did not know exactly how to proceed.

They remained at the scene and called their detachment to speak with their superior and ask for advice. [ 14 ] The staff sergeant suggested that they return to the dwelling’s occupants and try to obtain consent to search the home. Failing such consent, he said that a search warrant would be prepared and that consequently they would have to [translation] “freeze the place” while awaiting the warrant. [ 15 ] Officers Prairie and Arsenault therefore returned to Michael Broeckaert’s front door.

They told him what they had observed, i.e., the overwhelming smell of fresh cannabis, and asked if he would consent to a search. [ 16 ] The tone of the occupants of the house, this time was far from pleasant or agreeable. Michael Broeckaert insulted the police officers and ordered them to leave the premises in no uncertain terms. [ 17 ] Instead of arresting the occupants, the two officers withdrew to their vehicle. They positioned the car so that its headlights lit up the front of the house to ensure that no one left the dwelling and the evidence did not disappear.

They also did not know exactly who was inside, or more specifically, how many occupants there were. They contacted the police station again, sent all the information they possessed, and asked that a search warrant be prepared. [ 18 ] The accused’s application and submissions before the Court allege that the officers made three incursions into Michael Broeckaert’s “property” while waiting for the search warrant to arrive. Below is a description. [ 19 ] The first incursion into Michael Broeckeart’s property, to which I will return, is as follows.

The two officers on the scene knew nothing about the remote location where they found themselves. While they could see the front of the accused’s mobile home with the patrol car’s headlights, they, of course, could not light up the back. They did not know the layout of the premises. [ 20 ] They therefore agreed that to prevent the evidence from being destroyed and the occupants escaping or even attacking them, one officer would position himself behind the home while the other one would remain in front. [ 21 ] It was Officer Prairie who went to the back of the home.

He wanted to check whether there were any doors leading outside and make sure that no one left or threw any objects outside. At least once, he noted that the accused yelled at him from the window to leave and insulted him. [ 22 ] At the time, the officers’ intention was that one would station himself at the front and the other at the back in order to control any movement around the perimeter of the premises.

That is what is described as the first incursion into Michael Broeckaert’s “property”. [ 23 ] While Officer Prairie was in the back, he heard his colleague call him from the front because Kelly Royea and the accused’s son, Liam Broeckeart, were leaving by the front door.

Up to that point, the officers did not know that Michael Broeckeart’s teenage son was in the dwelling. [ 24 ] While the two officers were in front, intercepting and dealing with the two people leaving the dwelling, they heard a thud coming from the back of the mobile home, as if something had been broken. [ 25 ] Officer Prairie rushed toward the back. All he saw was a window approximately 5 ft. high by 18 in. wide that had previously been sealed with plastic film, probably in preparation for winter, and was now open. He also saw that the curtain inside the window was now hanging outside.

He deduced that someone had probably exited through that window. He quickly looked around but saw nothing. [ 26 ] His partner, Officer Arsenault, called him again. At that moment, Michael Broeckeart, the accused, was emerging nonchalantly from the back, from the corner opposite to the one where Officer Prairie had gone. At that time, Michael Broeckeart had both hands in his pockets and was walking calmly towards the officers, as if returning from a short stroll. He was arrested.

Nothing was found on him. [ 27 ] That was the second incident where it was alleged that the police officers had re-entered the accused’s “property”. [ 28 ] The third incident is as follows. The two police officers were still in position, awaiting the search warrant. Michael Broeckeart, Kelly Royea, and Liam Broeckeart had left with other police officers or on their own. Officer Prairie stated that he wondered what Michael Broeckeart had been doing behind the dwelling when he exited by the window.

Had he thrown drugs – or evidence – into the river or elsewhere, had he contacted someone such as his son or another person and asked them to come and get what he had concealed or hidden at the back? [ 29 ] He said that therefore, to avoid losing the evidence and to ensure that the premises were secure, he returned behind the mobile home. He testified that he also wanted to find out what the accused Broeckeart had done when he exited by the window of the residence.

He went into the small wood between the accused’s dwelling and the river and, at the base of a tree, found a plastic bag containing other plastic bags and cannabis in glass jars and in plastic bags. The bag’s contents were inventoried and seized as Lot 2016-666 and 2016-670, Items 1 to 5, filed as exhibit VD-1, and include in total over a kilo of marijuana. [ 30 ] The search warrant arrived on the premises over an hour later. At the time, there was no one else in the dwelling. A smaller quantity of cannabis was discovered in a bedroom in a questionable condition, as well as in an outdoor shed.

In the shed, the packaging, namely glass jars, was similar to what was found in the plastic bag discovered by Officer Prairie at the base of a tree. [ 31 ] The application alleges that the accused’s rights under ss. 8 and 9 of the Charter have been infringed.

[ 32 ] It should be noted that the accused did not testify or adduce any evidence. While the warrant was filed (exhibit VD-2), the grounds raised by the police to obtain it were not, and it has not been alleged that the grounds submitted to the justice of the peace were insufficient to issue the order. [ 33 ] Moreover, I have no lease or title of ownership of the accused for the premises.

I do not know whether he rents or owns the property and, more specifically, I do not know what “the place” is of which we are speaking. [ 34 ] I understand that there are other dwellings nearby, as well as fields, forest, and a river, but I do not know where the property in which Michael Broeckeart alleges he has an interest or rights begins or ends. [ 35 ] ANALYSIS AND DECISION [ 36 ] An analysis of the legal situation raised by the accused’s application requires that a certain number of important legal principles be reviewed.

Their consideration will be useful in determining the application. [ 37 ] First, a person who alleges that his or her rights have been infringed has the burden of proving the allegations. [2] [ 38 ] Second, in search matters, the principle is as follows: the search is valid if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. [3] [ 39 ] A distinction is to be made here.

The allegation of the police officers – and of the Crown – is that they acted to preserve a potential crime scene, to preserve the evidence, and to ensure public safety, including their own, by waiting for the search warrant they had requested to arrive. [ 40 ] A certain review of the case law may suggest that there exists no such power to search, whether the search be minimal or preventive or even carried out to secure a specific location while waiting for judicial authorization. [ 41 ] This kind of situation was however considered by the Supreme Court of Canada in R. v.

Silveira . [4] [ 42 ] In that case, the police occupied a place, more specifically a house, to verify whether there was any weapons present and to confine the occupants. After they entered and “secured” the premises, the police officers went back outside to await the search warrant.

In that case, the police were looking primarily for drugs. [ 43 ] A majority of the Supreme Court found that the entry into the accused’s residence was a search that was not authorized by law and that it had clearly been carried out without a warrant. [ 44 ] Therefore, the Court held that the search violated s. 8 of the Charter . [ 45 ] Although the Court held that the evidence was admissible after conducting an analysis under s. 24(2) of the Charter , I find that its analysis would not be very useful today, given the changes to the tests applicable in such cases since R. v. Grant , [5] R. v.

Harrison , [6] and R. v. Suberu . [7] [ 46 ] What is particularly relevant, however, is that the Court concluded that the need or usefulness of the ability to secure a location while awaiting a search warrant is obvious, but that it is not for the Court or the courts to make such a practice lawful. It writes: [8] 162 Yet, s. 24(2) of the Charter should not be used as a matter of course to excuse conduct which has in the past been found to be unlawful.

This case has confirmed that to enter and search a dwelling-house without a warrant constitutes a very serious breach of the Narcotic Control Act and the historic inviolability of a dwelling place. Therefore, in the future, even if such exigent circumstances exist, the evidence would likely be found inadmissible under s. 24(2).

It is difficult to envisage how the admission of the evidence could not bring the administration of justice into disrepute since in subsequent cases, it will be very difficult for the police to claim that they acted in good faith if they entered the dwelling without prior judicial authorization. The police must now know that exigent circumstances do not provide an excuse for failing to obtain a warrant. It is up to Parliament to amend s. 10 if it wishes to provide for exceptions to the warrant requirement.

Although I do not wish to foreclose the possibility that the evidence may still be admitted under s. 24(2), it will only occur in rare cases. (The emphasis are mine) [ 47 ] The law was indeed subsequently amended, in particular by the addition of paragraph 7 to s. 11 of the Controlled Drugs and Substances Act . [9] The Criminal Code [10] was also amended accordingly. [ 48 ] Reconsidered in light of these statutory amendments, a warrantless search carried out in the conditions described in s. 11(7) of the CDSA may be authorized by law. That provision reads as follows: 11

(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. The burden of proving that the conditions giving rise to that possibility were met naturally falls on the Crown. Where the Crown does so prove, however, R. v.

Silveira [11] should be considered completely anew. [ 49 ] Third, the searches in issue, i.e., the three incursions by Officer Prairie on the perimeter close to the location where the accused Broeckeart lived, are, moreover, precisely searches along the perimeter and nothing more. [ 50 ] No one is alleging that he or his colleague searched the accused’s residence or entered it illegally. On the perimeter where he went, he could not see the inside of the mobile home, except for the one time when he observed the accused, who yelled at him to leave and insulted him.

[51] We must also be careful not to wrongfully conflate the accused’s residence with the land nearby. While the case law confersrights on an accused against perimeter searches (see, for example, R. v.

Kokesch),[12] it has never included the “perimeter” in theresidence itself and, to my knowledge, there is no judgment that affords the same protection to the land around a residence, a shed, or agarden as that given to an accused’s bedroom, bathroom or kitchen. [52] Fourth, I am deliberately and carefully using rather neutral terms to describe the space along the perimeter of the accused’smobile home where Officer Prairie went. I will explain. [53] The expectation Michael Broeckeart may have of being secure from search or surveillance is not absolute.

It is limited to placesand situations where it is reasonable for him to expect his privacy to be respected, given all the circumstances. [54] The evidence is entirely silent as to whether Michael Broeckeart is simply the owner of the mobile home or whether he has anyright over the land surrounding it. Is he squatting on the premises? I do not know. Is the spot where the plastic bag containing cannabiswas discovered, at the base of a tree, a place over which he claims any right or interest? If so, which one?

Based on what? [55] Is the location where Officer Prairie walked inside or outside the place over which Michael Broeckeart alleges he has rights?There is no evidence to enlighten me one way or the other. [56] Yet he is the one who bears the burden of proving the validity of the rights he claims over that place, be they rights of use,ownership or possession. [57] Fifth, I do not believe that the issue should be considered in light of the principles applying to perimeter searches, but insteadfrom the perspective of the principles considered in R. v.

Silveira[13] and those that followed. [58] I refer in particular to three decisions along this line: R. v. Silveira,[14] naturally, R. v. Cornell,[15] and R. v. Paterson.[16] [59] These judgments do not, as such, present the intervention to secure or prevent as a separate or independent event, but instead aspart of the execution of a larger police operation. [60] I have already discussed R. v. Silveira,[17] which seems to me especially comparable on the facts.

From that decision I note theremarks of the Court on the usefulness, or even the relevance, of measures to secure persons and evidence, which fall within the broaderparameters of a search of occupied premises. As previously stated, however, that judgment’s outcome is somewhat obsolete today, giventhe amendments to the law authorizing warrantless searches in certain circumstances and the revised tests for review in s. 24(2) of theCharter. [61] R. v. Cornell[18] is directly in line with R. v. Silveira. The facts are different – even very different.

Police officers whointervened in a drug trafficking incident were alleged to have used an excessively brutal method to enter the premises and, as a result,infringed on the rights of the persons concerned. [62] The case revolved around the possible choice of a method that would have interfered less with constitutional rights but thatcould have risked the safety of the police officers or the occupants of the premises or even resulted in the destruction of theevidence.[19] [63] Much as counsel for Michael Broeckeart proposes, counsel for Cornell suggested that it would have been possible to ask theoccupants if they were alone and request that they not call any accomplices, not destroy the evidence, etc. [64] The Court stated the following:[20] [23] First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not inlight of how things turned out to be.

Just as the Crown cannot rely on after-the-fact justifications for the search, the decision abouthow to conduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time: R. v.DeWolfe, 2007 NSCA 79 , 256 N.S.R. (2d) 221, at para. 46. Whether there existed reasonable grounds for concern aboutsafety or destruction of evidence must not be viewed “through the ‘lens of hindsight’”: Crampton v. Walton, 2005 ABCA 81 ,40 Alta.

L.R. (4th) 28, at para. 45. [24] Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. Theycannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003 SCC 38 [2003] 2 S.C.R. 3, at para. 73; Crampton, at para. 45. It is often said of security measures that, ifsomething happens, the measures were inadequate but that if nothing happens, they were excessive.

These sorts of after-the-factassessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion andjudgment in difficult and fluid circumstances.

The role of the reviewing court in assessing the manner in which a search has beenconducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not tobecome a Monday morning quarterback. [65] On the precise point advanced by the defence, the Court wrote:[21] [36] … The appellant asserts that, for officer safety, the police would have been entitled to detain these women, incommunicado, sothat they would not alert other persons to the police presence and further, that interrogation of the women would have led them tobelieve that the use of a forced entry was not appropriate.

In my view, this line of reasoning is speculative and makes unreasonabledemands on the police. As Slatter J.A. correctly points out, at para. 14 of his reasons, the appellant’s argument assumes that aninvestigative detention of these women and that preventing them from any contact would have been lawful in the circumstances. Italso assumes that they would have been cooperative, that they would have been truthful and that the police would have decided totake what they said at face value.

Even putting aside all of this speculation, the appellant’s suggestion, if accepted, would impose onthe police the obligation to completely change their plans, at the last minute, while engaged in a closely coordinated execution of

three different search warrants in very close order. In my respectful view, the appellant’s suggestion has no basis in the evidence andmakes unreasonable demands on the police in the circumstances of this case. [66] These remarks apply directly to the situation of Officers Prairie and Arsenault: they were clearly dealing with individuals whowere not cooperating with them. Michael Broeckeart, after having insulted the police officers, took advantage of the absence of one ofthem behind the house to exit by the window, when the evidence establishes that its base was approximately 6 ft. from the ground.

Thisclearly testifies to a certain daring or a determination on the part of the accused not to cooperate, to defy the police surveillance, and toavoid enforcement of the law. [67] The most basic common sense holds that the accused, had he merely wanted to leave the dwelling, would have used the door,like the other two occupants. What did he do? He did not want to escape, because he moved cheerfully toward the front of the property,his two hands in his pockets. Did he want to make the evidence disappear? Did he hide a weapon outside or meet an accomplice hidingin the forest?

Were the police in danger? [68] Should the officers have simply questioned the occupants, who were clearly not cooperating, to find out how many people wereinside? Only an incomprehensible naiveté would justify this. [69] In 2017, the Supreme Court of Canada again addressed the same issue regarding the conduct of searches in R. v. Paterson.[22] [70] Once again, the facts are very different. In that case, the police officers entered an individual’s apartment with his consent, aftertelling him that they were collecting marijuana roaches and that no charges would be laid.

Once inside the apartment, they observed abulletproof vest, a handgun and drugs. A search uncovered four handguns and large amounts of drugs and cash. [71] The Court considered in particular paragraph 7 of s. 11 of the Controlled Drugs and Substances Act, discussed above. The Courtreiterated[23] the meaning to be given to R. v. Silveira: [32] … Such exigent circumstances were then described to exist where there is an “imminent danger of the loss, removal,destruction or disappearance of the evidence if the search or seizure is delayed” (Grant 1993, at p. 243; R. v.

Feeney, (SCC), 1997 CanlI 342 (SCC), [1997] 2 S.C.R. 13, at para. 153, per L’Heureux-Dubé J., dissenting; and R. v. Silveira, (SCC), [1995] 2 S.C.R. 297, at para. 51, per La Forest J., dissenting). Similarly, circumstances in which “immediate actionis required for the safety of the police” were also found to qualify as “exigent” (Feeney, at para. 52; see also, in respect of searches topreserve officer safety, this Court’s statement in R. v.

MacDonald, 2014 SCC 3 [2014] 1 S.C.R. 37, at para. 32, that suchsearches will be responsive to “dangerous situations created by individuals, to which the police must react ‘on the sudden’”). InFeeney, at para. 47, exigency was also said to possibly arise when police officers are in “hot pursuit” of a suspect (see also R. v.Macooh, (SCC), [1993] 2 S.C.R. 802, at pp. 820-21). [72] Ultimately, it stated:[24] [39] … In this case, the police had a practicable option: to arrest the appellant and obtain a warrant to enter the residence and seizethe roaches.

If, as the Crown says, the situation was not serious enough to arrest and apply for a warrant, then it cannot have beenserious enough to intrude into a private residence without a warrant. [73] I infer from the foregoing the following teachings of the Court: once the officers were sure that there was cannabis on thepremises, to which I shall return, they could have arrested the accused and possibly the other people present, removed them from theresidence, made sure that there were no other people in the building, and then taken steps to obtain a search warrant; or they could dowhat they in fact opted to do, which was more respectful of human rights, but possibly riskier with respect to preserving the evidence andeven the safety of the police officers. [74] In fact, they decided not to enter the sanctuary represented by the accused’s domicile and to try as best as they could, with thefew resources at their disposal in premises unknown to them, to prevent people from escaping and the evidence from disappearing. [75] While it was the least intrusive method for the accused and his family, in retrospect it was surely also the most difficult tocontrol. [76] In any event, the situation was completely unexpected for the police officers, who acted in the manner that seemed to them tobe the most reasonable in the circumstances.

It is very easy to play the Monday morning quarterback after the fact, when we know therewas no one left in the building, there were no weapons, the accused had finally calmed down, and the quantity of cannabis in the end wassmaller than expected.[25] [77] A final word about the smell of cannabis. The two police officers who testified stated categorically, decidedly and assuredlythat they had smelled substantial amounts of fresh, not smoked, cannabis.

There was no vague smell of smoked cannabis coming from anunknown source. [78] If at one time it would have been necessary to call an expert to convince the judge of the accuracy of that smell, the situationtoday is rather different, especially and above all with respect to the youngest members of society. The two police officers who testifiedhad recently entered law enforcement, and they were categorical. The smell in question is not very difficult to identify.

I have no troubleaccepting that the smell of cannabis, like that of freshly baked bread or fish, for example, can be identified as it was by the policeofficers. [79] In consequence of all of the foregoing, the police operation carried out at the accused’s during the night of November 19, 2016,which was incidental to obtaining a search warrant for his home, was authorized by law, the validity of such law not being questioned.These operations were carried out reasonably and respected the rights of Michael Broeckeart.

The search to which he was subjected waslegal, as was his arrest and detention, which were in no way arbitrary.

[ 80 ] For these reasons, the application to exclude the evidence is DISMISSED. __________________________________ Serge Champoux, J.C.Q. Mtre Véronique Gauthier Counsel for the prosecutrix Mtre Nicolas Lemyre Cossette Counsel for the accused Date of hearing: June 22, 2018 [1] Canadian Charter of Rights and Freedoms , Constitution Act, 1982,

Part I. [9] Controlled Drugs and Substances Act , S.C. 1996, c. 19. [10] Criminal Code , R.S.C. (1985), c. C-46.