Her Majesty the Queen - v. -, 2012 SKPC 160

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 160 Date: September 28, 2012 Information: 24405840 Location: North Battleford _____________________________________________________________________________ Between: Her Majesty the Queen - and - Sandra Golschesky Appearing: Denis Quon For the Crown Ivan Frank For the Accused DECISION ON A VOIR DIRE D. O ’ HANLON , J [ 1 ] Sandra Golschesky is charged on Information #24405840 that she did on September 30, 2011 at North Battleford, Saskatchewan: Count #1: possess a substance included in

Schedule II to wit: cannabis marihuana in an amount not exceeding three kilograms for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substance Act ; and Count #2: did have in her possession proceeds of property to wit: Canadian currency of a value exceeding $5,000 knowing that all of the

proceeds of the property was obtained directly by the commission in Canada of an offence punishable by indictment contrary to s. 354 (1) (

a) of the Criminal Code . FACTS [ 2 ] During the early morning hours of September 30, 2011, North Battleford RCMP executed a search warrant pursuant to the Controlled Drugs and Substances Act at the residence of Tania Young located at 1442 - 108 th Street, North Battleford, Saskatchewan. During the search of that residence the RCMP seized approximately 10 pounds of marihuana, $20,000.00 - $30,000.00 of Canadian currency and several items of drug paraphernalia related to drug trafficking.

They also arrested Tania Young at that residence when she arrived during the course of the search. [ 3 ] Constable Drabinasty, of the North Battleford RCMP had participated in that search. [ 4 ] After this search had been conducted, and Tania Young had been arrested, Constable Drabinasty received a call from a confidential source who provided him with secondhand information. This source knew that Tania Young’s residence had been searched earlier that day.

The source advised Constable Drabinasty that the RCMP had not confiscated all of Tania Young’s marihuana as she also kept marihuana at a stash house located at 1491 - 106 th Street in North Battleford, Saskatchewan and that there was currently marihuana at that house. The source described the house as a duplex but was unsure which unit the marihuana was in. [ 5 ] On the basis of this information, Constable Drabinasty began to expand his investigation to include the residence located at 1491 - 106 th Street, North Battleford, Saskatchewan, and Sandra Golschesky.

The details of this investigation are contained within the sworn Information to Obtain a Search Warrant (ITO) and Sealing Order which is Exhibit P-1 on the voir dire . Cst. Tyson Drabinasty is the affiant of this document. I don’t intend to restate this entire document, but I will make several references to it later in this decision.

I will also make reference to some of the evidence on the voir dire that clarifies and expands the information that was both provided and not provided in the ITO. [ 6 ] After obtaining the search warrant for 1491 - 106 th Street, North Battleford, several members of the North Battleford RCMP attended the residence. As they were rushing up to the house and banging on her door, Sandra Golschesky looked out her kitchen window and observed several individuals rushing towards her house. She testified that she believed there was going to be a home invasion.

I accept this evidence, as the evidence is undisputed that she immediately contacted the 911 operator on her cell phone. Just as she did so, several RCMP officers, not in uniform, broke through her outside door using a battering-ram. The officers then turned to their left, ascended three stairs and opened or broke through a door leading directly into Sandra Golschesky’s kitchen located on the main floor of the residence. Cst. Drabinasty asked Ms. Golschesky her name and then immediately arrested her. He then provided her with a copy of the search warrant. I am satisfied from the evidence that Ms.

Golschesky then told the RCMP that the residence contained three suites: the upstairs or second floor being suite A, the basement contained suite B and she lived on the main floor. [ 7 ] As Ms. Golschesky was initially being dealt with by Cst. Drabinasty, other members of the RCMP were securing the rest of the house. One member was stationed at the top of the stairs leading to the basement to secure the basement and ensure no one came up the stairs from the basement.

They could not search the basement suite as the Justice of the Peace had ensured that the search would not include the separate suite contained in the basement. I will refer to this in more detail later in this decision. [ 8 ] Other officers then proceeded to secure the rest of the main floor and the second level of the house. Nobody else was located on the main floor. The officers proceeded through Ms. Golschesky’s living room, through a door that led to a porch on the east side of the house, and up the stairs to the second level. At the top of the stairs they were confronted with a locked door.

The door was immediately broken open with a battering-ram and the upper floor was secured. No one was located on the second floor. It should be noted that the porch, located at the bottom of the stairs, not only has an entrance into it from Ms. Golschesky’s living room, it also has an outside entrance. This porch and outside entrance are clearly shown in photograph 2748 of Exhibit P-7 on the voir dire . [ 9 ] Once all levels of the residence were secured, Ms. Golschesky was removed from the house and taken to the RCMP detachment by a female RCMP officer. The search of the residence then began.

Various members of the RCMP searched the upper floor

and the main floor of the residence. It is clear from the evidence that the upper floor was searched first. However, it should be noted that during the securing of the entire premises, a small amount of marihuana and some money was seen on the bed in the bedroom located on the main floor. Exhibit P-32 on the voir dire is the RCMP Exhibit Flow Chart. This document, as well as the evidence of Cst. Teniuk, confirm that the upper floor was searched first. [ 10 ] What emerges conclusively from the evidence, is that the upper floor of this residence is a self-contained suite.

There is an outside entrance leading into the porch containing the stairs leading to the upper floor. The door at the top of the stairs was locked. There was a bathroom, a kitchen area with cupboards, sink, stove and fridge, a living room containing a couch, chair, television and coffee table. Effectively all of the Crown witnesses, except Cst. Drabinasty, did not deny that the upper floor was a suite. With regards to Cst.

Drabinasty, even when confronted on cross-examination with the existence of all the accoutrements of a self-contained suite, he continued to deny the abundantly obvious. [ 11 ] During the search of the upstairs suite, RCMP located and seized a hidden purse containing approximately twenty-thousand dollars in cash, along with a receipt in the name of Tania Young. Also seized were three clear bags, each containing approximately an ounce of marihuana. These were seized from the kitchen cupboard above the stove.

Various notes, thought to be “score” sheets, and a silver scale with a plastic bowl were also seized. [ 12 ] Once the upstairs suite was searched, the RCMP members moved to the main floor and searched Ms. Golschesky’s residence.

Many items were seized during this search; the marihuana and money located on the bed in the master bedroom on the main floor, a bag containing 224 grams of marihuana located in the bottom drawer of the dresser in the master bedroom, also located in this drawer was a plastic cup containing a small electronic scale, various small quantities of marihuana in different containers and different locations, some of which were containers of “roaches”, various relatively small amounts of cash located in different locations throughout the residence, rolling papers, marihuana pipes, a cell phone, various notes containing addresses, a dusty can of bear spray found beside the fridge and a computer and S.D. cards. [ 13 ] As a result of the above searches both Tania Young and Sandra Golschesky were charged with possession of marihuana for the purpose of trafficking and knowingly possessing the proceeds of crime over $5,000.00.

ISSUE [ 14 ] The only issue to be determined on this voir dire is whether the accused’s rights under s. 8 of the Charter have been breached and, if so, what is the proper remedy? ANALYSIS [ 15 ] With regards to this issue, Mr. Frank alleges the accused’s rights under

section 8 of the Charter were breached and consequently the charges should be stayed, or in the alternative, the evidence obtained during the search of her residence should be excluded. In effect, Mr.

Frank is challenging the sufficiency of the information used to obtain the search warrant for 1491 - 106 th Street, North Battleford, Saskatchewan. [ 16 ] In order to determine the sufficiency of the information used to obtain the search warrant, it is necessary to review the ITO and the evidence on the voir dire . [ 17 ] Beginning on page 5 of the ITO, under the heading “grounds”, it is stated the RCMP had information as early as January 7, 2010, from confidential Source “A”, that Tania Young was picking up marihuana at 1491 - 106 th Street and then selling the marihuana in half pound bags.

This source advised the marihuana was stashed in the upstairs apartment in a bedroom closet at 1491 - 106 th Street. The source also advised the lady who lives in the downstairs of this residence is Sandy and she works at the Saskatchewan Hospital. It is obvious from the evidence presented on the voir dire that the person described by this source as Sandy, is the accused, Sandra Golschesky.

[ 18 ] The ITO then contains the following disclaimer: I can not say why the source believes that Sandy lives in the downstairs suite when the rest of the information received indicates she lives in the upstairs suite. This disclaimer is inaccurate, and greatly misleading. It is inaccurate because all the other information in the ITO places the marihuana stash upstairs, but does not place Sandra Golschesky upstairs. It is greatly misleading because the ITO never indicates to the issuing Justice of the Peace that the house at 1491 - 106 th Street, in fact has three levels.

As a consequence of this, the information put before the Justice of the Peace would have placed both Sandra Golschesky and Tania Young’s marihuana stash together on the same level of the house since the Justice of the Peace had no idea the house contained a basement, a main floor and an upstairs level. [ 19 ] Confidential Source “A” is described at pages 2 and 3 of the ITO as being a confidential source for a year and a half. This source is handled by Constable Wes Dust and is believed by him to be reliable. His motivation for providing the information is for monetary gain.

He has a criminal record, although no details of this are provided as the information is redacted immediately following this assertion. [ 20 ] This source is further described as being corroborated through other sources and by investigative means. This source is said not to have been used in any search warrant applications and the source’s information did not lead to any charges being laid. This is stated in spite of the fact that a warrant had already been obtained and executed in the search of Tania Young’s residence at 1442 - 108 th Street, earlier that day.

Given the information said to have been provided by this confidential source, I don’t see how it would not have been included in the Information to Obtain the Search Warrant on Tania Young’s residence on 108 th Street. I have not however had the opportunity to view documents pertaining to that search as none were tendered during this voir dire . Had that information been provided during this voir dire it may have, and probably should have, detailed the surveillance that had been conducted on Tania Young, including the surveillance of Sandra Golschesky’s house.

After all, the evidence from the ITO itself indicates that Source “A” told the RCMP about Tania Young’s marihuana stash at 1491 - 106 th Street in January of 2010, over a year and a half before the RCMP executed search warrants on both residences. The ITO further indicates that Cpl. Houk, of the North Battleford RCMP, had conducted surveillance on 1491 - 106 th Street, and Cpl. Houk himself testified on the voir dire that he had participated in the drug search on Tania Young’s residence earlier that day, but had not participated in the search of Golschesky’s residence at 1491 - 106 th Street.

I will speak more about his evidence later. [ 21 ] Constable Drabinasty, in continuing his investigation, attended at the Sask Power building in North Battleford to determine who subscribed for power at 1491 - 106 th Street, North Battleford, Saskatchewan. He was advised that Sandra Golschesky was the subscriber of power for that residence and Steven Vercoe was the subscriber of power at 1491B - 106 th Street, North Battleford, Saskatchewan. Documents confirming this were tendered as Exhibit P-2 on the voir dire of this matter.

Constable Drabinasty then attended North Battleford City Hall and learned that Sandra Golschesky is the owner of the property and the subscriber of the utilities for 1491 - 106 th Street. It should be noted at this point, that Mr. Frank tendered Sask Power documents showing that 1491 - 106 th Street in fact had three power meters: one for the main level, one for the upstairs suite and one for the downstairs suite. [ 22 ] CPIC checks and PROS (Police Reporting and Occurrence System) checks were then conducted on both Golschesky and Vercoe. Neither had a criminal record.

Vercoe did not have any reports linking him to drug trafficking or to Tania Young on the PROS system. Sandra Golschesky, on the other hand, did have one occurrence linking her to Tania Young. On December 11 of 2008, Tania Young reported to the RCMP that she had received a telephone call from Golschesky requesting her to check out her rental property at 1491 - 106 th Street in regards to a break and enter. Young then attended the residence with RCMP officers to assist with their investigation.

No other information is provided regarding this occurrence. [ 23 ] At paragraph 5.11 of the sworn ITO used to obtain a search warrant at 1491 - 106 th Street, North Battleford, Constable Drabinasty deposes as follows: On Sept 30, 2011 I drove by the residence situated at 1491 - 106 th Street in North Battleford Saskatchewan. I observed the residence to be a duplex or multi family dwelling unit. There was a door on the north side of the residence as well on the east side. The north side

door was at ground level whereas the east side door was raised higher and accessed by stairs. There was no marking on the residence to distinguish between the suites. [ 24 ] Then at paragraph 5.12, Constable Drabinasty describes a conversation he had that same day with Corporal Houk, of the North Battleford RCMP. Corporal Houk advised Cst. Drabinasty that while conducting surveillance on the residence at 1491 - 106 th Street he had seen Tania Young entering the residence through the west door to the dwelling unit. No further information regarding Cpl.

Houk’s surveillance of this residence is provided even though in his evidence on the voir dire Cpl. Houk testified he had observed the house over a three month period. [ 25 ] Then at paragraph 5.13 of the ITO Cst. Drabinasty states as follows: Through investigative means and information from confidential sources, I believe that Sandra Golschesky resides in the upstairs dwelling unit at 1491 - 106 th Street in North Battleford, Saskatchewan, that can be accessed through the west door to the residence.

I believe the upstairs dwelling unit to be Suite A as Sask Power records indicate Steve Vercoe is the subscriber of power for Suite B believed to be the downstairs dwelling unit. Again, what is conspicuously absent here is any reference to this residence being a two storey house sitting on top of a foundation containing a basement. As stated previously there were in fact three levels to this house: the basement, the main floor and the upstairs or second floor.

Since the Justice of the Peace was not told of this information, she would not have envisioned the house shown in photograph 2748 of Exhibit P-7 on the voir dire .

And as I stated earlier, the Justice of the Peace would have placed both Sandra Golschesky and Tania Young’s stash together, on the same floor as she did not know there were two floors above the basement. [ 26 ] It is very important to keep this in mind when reading the next paragraph of the ITO, and when considering the question asked of Constable Drabinasty by the issuing Justice of the Peace and thirdly, when considering the frequent references in the ITO to the “upstairs”. [ 27 ] The next paragraph, paragraph 5.14, states: I am requesting to search the dwelling unit of Sandra Golschesky which it is believed to be Suite A, the upstairs dwelling unit of 1491 - 106 th Street, North Battleford, Saskatchewan.

Since Golschesky is the owner of the property and suspected of being involved in trafficking marihuana with Tania Young, I could not contact Golschesky and ask her which dwelling unit she occupied. This would compromise the ongoing investigation. I also did not want to contact Steven Vercoe and confirm with him which dwelling unit he lived in as he may notify Golschesky and compromise the investigation. The import of this paragraph cannot be overstated.

It has the effect of placing Sandra Golschesky upstairs on the same level as Tania Young’s marihuana stash, and it states without any supporting evidence that Golschesky is suspected of being involved in trafficking marihuana with Tania Young. This is a statement that should not have been put in the ITO without describing the structure of the residence and without providing the evidential basis for it. The single report noted on PROS is not an evidential basis to state that Ms. Golschesky is suspected of trafficking marihuana. Nor is Cpl. Houk’s evidence an evidential basis for stating this.

As previously indicated, he testified on the voir dire that he had surveilled the house over a three month period and had only seen Tania Young walking up to the door on the west side of the house on one occasion. [ 28 ] With regards to the question asked of Constable Drabinasty by the issuing Justice of the Peace, Cst. Drabinasty’s testimony on the voir dire is telling. In his evidence on the voir dire Mr. Quon asks the constable if he attended with the JP and Constable Drabinasty replies that he did. Mr.

Quon then asks if the JP had any questions and Constable Drabinasty states: She had one clarifying question for the warrant. She asked if we would be entering Suite B of the residence. And I said no and she was satisfied and issued the warrant.

Suite B is described in the ITO as the downstairs suite, the other two floors are described simply as upstairs or the upstairs suite and arenot distinguished as two separate floors. With regards to the above evidence of Cst. Drabinasty, I am satisfied the Justice of the Peacedid not want the RCMP to enter the downstairs suite, as there was no evidence to justify doing so.

Had the Justice of the Peace beenaware of the structure of the house, the same question could have, and perhaps should have arisen, with regards to the main floorresidence. [29] The third point to keep in mind is the frequent references made to the “upstairs” in the ITO. These references are detailed asfollows: 1. At paragraph 5.1 (

h) Constable Wes Dust wrote in his report of January 7, 2010, that Source A advised the marihuana is stashed in the upstairs apartment in a bedroom closet at 1491 - 106th Street; 2. At paragraph 5.1 (

i) citing the same report it is stated: “the lady that lives in the downstairs of 1491 - 106th Street is Sandy and sheworks at the Saskatchewan Hospital.” This is then immediately followed by Constable Drabinasty inserting the following: (“I cannotsay why the source believes that Sandy lives in the downstairs suite when the rest of the information received indicates she lives in theupstairs suite.”) 3. In paragraph 5.1 (l), again citing Constable Dust’s report, it is stated: “there was a large amount of cash in the upstairs apartment at 1491 - 106th Street”; 4. Then at paragraph 5.2 (

b) of the ITO, quoting from Constable Dust’s report of January 14, 2010, it is stated: “Brett will be bringing the marihuana in a black hockey bag in the vehicle and dropping off at 1491 - 106th Street, North Battleford, Saskatchewan, in theupstairs apartment.” (Emphasis added) Had the Justice of the Peace known there were three levels to this house, I must consider that she would have questioned which level orlevels were to be searched, just as she had questioned whether the RCMP would be searching the downstairs suite.

THE LAW [30] I am satisfied the Crown has produced to the Court a facially valid judicial authorization. The accused therefore bears theonus of proving a Charter breach: R. v. Pires; R. v. Lising (2005), 2005 SCC 66 , 201 C.C.C. (3d) 449 (S.C.C.). In order to doso, the accused must first satisfy the Court that she has standing to raise the s. 8 Charter issue. In other words, she must satisfy the Courtshe has a reasonable expectation of privacy in her residence. On the basis of the criteria set out by the Supreme Court in R. v.

Edwards(1996), (SCC), 104 C.C.C. (3d) 136, I am satisfied she has a reasonable expectation of privacy in her residence located on the main floor of the house at 1491 - 106th Street, North Battleford, Saskatchewan. She therefore has standing to raise the s. 8 Charterissue. [31] In determining if the accused’s rights under

section 8 of the Charter have been breached, it is necessary to determine thesufficiency of the information used to obtain the search warrant. In the case of R. v. Campbell, 2011 SCC 32 , [2011] 2 S.C.R.549, Charron J. states at paragraph 14: In order to comply with s. 8 of the Charter, prior to conducting a search the police must provide “reasonable and probable grounds,established upon oath, to search” (Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145 at p. 168).

The question for areviewing court is “not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible andreliable evidence” to permit an issuing justice to authorize the warrant: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. Inconducting this analysis, the reviewing court must exclude erroneous information from the ITO and may have reference to materialproperly received as “amplification” evidence (see R. v.

Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 58; Morelli, at para. 41).The accused bears the burden of demonstrating that the ITO is insufficient (Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002]3 S.C.R. 708, at para. 68, Morelli, at para. 131).

[ 32 ] In the Campbell case, the police had obtained and executed a search warrant in the course of a murder investigation. The residence to be searched was a four-bedroom townhouse which was operated as a rooming house. During the search, the police located and seized a sawed-off shotgun and ammunition in the room rented by the accused. The accused was under a weapons prohibition at the time. He was charged with possession of the weapon and ammunition while under a weapons prohibition and with a breach of probation. The trial judge found the search and seizure to be unconstitutional and excluded the evidence.

The accused was acquitted. The Crown appealed and the Ontario Court of Appeal allowed the appeal, set aside the acquittals and remitted the charges for trial. The accused then appealed to the Supreme Court, which dismissed his appeal. [ 33 ] In dismissing the appeal in the Campbell case, Charron J. briefly reviews the facts leading up to the issuance of the warrant, including some of the contents of the ITO. She reviews the four problems the trial judge found with the ITO and the finding by the trial judge that the drafting of the ITO was intentionally confusing and opaque.

She then accepts the majority decision of the Ontario Court of Appeal in overturning the trial judge’s acquittals. In doing so, she states at paragraph 15: It is important to stress, as Juriansz J.A. rightly acknowledged, that Mr. Campbell’s expectation of privacy in his room within the townhouse is just as high as that of a resident of a single dwelling unit. In drafting ITO’s proposing to search more than one unit within a multi-unit dwelling, this principle should be reflected by clearly setting out reasonable and probable grounds for each unit to be searched.

In this respect, the drafting of this ITO left much to be desired. In addition, it appears that the trial judge was not given some portions of the ITO until the very end of the hearing. This course of action, coupled with the lack of clarity in the ITO’s drafting, may well have accounted for the trial judge’s errors. Nonetheless, I agree with Juriansz J.A.’s assessment of the sufficiency of the record.... [ 34 ] In Ms. Golschesky’s case, she was living on the main floor of her own house. She had tenants living in suites above and below her.

The Justice of the Peace could not have known this because she was given no information about the structure of the house. Given that Cst. Drabinasty had driven past the house before applying for the search warrant, I find it unusual that he did not turn his mind to the possibility that Tania Young lived on the upper floor and Sandra Golschesky lived on the main floor.

Instead, he placed a disclaimer in the ITO that had no merit as there was no other evidence placing Sandra Golschesky on the upper floor. [ 35 ] I am mindful that I must not determine whether I would have issued the warrant, but rather whether the Justice of the Peace could have issued the warrant. In making this determination, I must consider the record that was before her. I must exclude erroneous information from the ITO. And, I must consider the amplification evidence received on review. In doing so, I am satisfied that the disclaimer placed in the ITO by Cst.

Drabinasty should be excluded for the reasons stated above. The assertion that Sandra Golschesky was suspected of being involved in trafficking marihuana with Tania Young, will also be excluded as there is no evidence to support it. [ 36 ] With regards to the amplification evidence that should also be considered in determining whether the Justice of the Peace could have issued the search warrant, I consider the following: 1.

The Justice of the Peace was not made aware the house contained three floors, and as a result of this would have placed Sandra Golschesky and Tania Young’s marihuana stash on the same floor; 2. The Justice of the Peace was not advised that Cpl. Houk had conducted surveillance of the Golschesky residence over a three month period and had only seen Tania Young walking up to the west door on one occasion. [ 37 ] I am satisfied that the Justice of the Peace could not have issued the warrant if the erroneous information was taken out of the ITO and if she knew of the amplification evidence.

Therefore, I am satisfied that the accused has proved that her s. 8 Charter rights have been violated. [ 38 ] I must now determine the proper remedy. Section 24(2) of the Charter states as follows: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[39] The Supreme Court decision in R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, requires an assessment to be madeon s. 24(2) applications to assess and balance the effect of admitting the illegally obtained evidence on public confidence in the integrityof the justice system having regard to the following three factors: (1) the seriousness of the state action; (2) the impact on the accused’s Charter-protected interests; and (3) society’s interest in having an adjudication on the merits. [40] With regards to these three criteria, I am satisfied that this was a serious breach of the accused’s right to be secure againstunreasonable search and seizure.

There is a presumption of unreasonableness where the search and seizure has taken place without awarrant: Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, 14 C.C.C. (3d) 97. I consider as well that this was theaccused’s home. That she was at home and in peaceful possession and control of her home at the time the RCMP forced their way intoher house and took possession of it for the purpose of searching it. And she had a reasonable expectation of privacy in her home. [41] The warrantless search of the accused’s home violated her right to privacy in her own home.

She did not know the individualsforcing their way into her home were police officers and she believed they were committing a home invasion. She attempted to call 911for help just prior to their entrance. Her right to be secure against the unreasonable search and seizure were impacted greatly. [42] Under the third line of inquiry, I must consider whether the exclusion of the evidence would run counter to society’s interestin having an adjudication on the merits. In considering this, I am satisfied that the seriousness of the violation is the primaryconsideration.

In this case, society’s interest in preserving Charter-protected rights outweighs the societal interest in having anadjudication on the merits. CONCLUSION [43] The evidence obtained as a result of the breach of the accused’s right to be secure against unreasonable search and seizure willnot be admitted on the trial proper. ______________________________ D. O’Hanlon, J