Her Majesty the Queen - v. -, 2013 SKPC 82

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 082 Date: July 2, 2013 Information: 24439579 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Grant J. Hill Appearing: Trent Forsyth For the Crown Jonathan Bodvarson For the Accused RULING ON CHARTER APPLICATION I. CARDINAL , J INTRODUCTION [ 1 ] Mr.

Hill is charged with possessing cannabis marihuana and psilocybin mushrooms for the purposes of trafficking as well as simple possession of cannabis resin, contrary to the provisions of the Controlled Drugs and Substances Act . [ 2 ] On June17, 2012, the RCMP attended at the residence of Mr. Hill and his wife, Mrs. Joanne Hill. Drugs and drug related items were seized from the residence. Mr. Hill does not take issue with the admission into evidence of the psilocybin mushrooms, the

cannabis resin, a cell phone, scale, zigzag papers, baggie, and grinder seized from his residence. [3] However, he argues that the seizure of two bags of cannabis marihuana should be excluded from evidence as a result of anunreasonable search and seizure in violation of his

section 8 Charter rights. Mr. Hill argues the police searched his residence without awarrant and the consent given to them by his wife at the time, Joanne Hill, was not valid consent to search within the meaning of R. v.Rutten, 2006 SKCA 17 . [4] He also argues that text messages retrieved from the cell phone seized at the residence should be excluded from evidence. While he does not challenge the seizure of the cell phone, he submits that the search itself, some 4.5 months after the seizure, was notincidental to arrest and violated Mr.

Hill’s s. 8 Charter rights. [5] For the following reasons I find that the consent to search was validly given and admit the two bags of cannabis marihuanainto evidence. Further, I find that the search of the cell phone was not a search incidental to arrest and violated Mr. Hill’s s. 8 Charterrights. However, on a Grant analysis I allow the text messages into evidence. The expert report and evidence of the expert witness, Cst.Knodel, may properly refer to all of the exhibits and the text messages. FACTS [6] Given the arguments raised, a detailed review of the facts is required. On June 17, 2012, Cst. K.

Sinnamon and Cst. Burnettof the Melfort RCMP were investigating a car which had been found in a farmer’s field in the Spalding area. At approximately 10:00p.m., they received a dispatch call to attend to the residence of Grant Hill as he was concerned about his wife’s behaviour. The Hillresidence was very close to where the car was located in the field and the police immediately attended to the farmyard. [7] They observed the house had an attached garage and one of the bay doors of the garage was open and a vehicle inside. Mr.Hill was observed outside of the garage moving about. Cst. Sinnamon briefly spoke to Mr.

Hill who told the police his wife was suicidaland needed help. [8] Cst. Sinnamon approached the vehicle, opened the door, and found Joanne Hill in the driver’s side. Mrs. Hill was agitatedbut otherwise was not, in the opinion of the constable, suicidal. Cst. Sinnamon had a brief discussion with Mrs. Hill and became awarethat she was upset because there were drugs in the house and she wanted them out of the house as she was tired of what had beenhappening. Cst. Sinnamon described the conversation as being that Mrs. Hill had had enough, was fed up with her husband, and wasargumentative rather than suicidal. Cst.

Sinnamon was clear in her evidence that she had not attended at the residence for a druginvestigation and had not been intending to search the residence at all. She indicated she had recently been posted to Melfort and did notknow either Mr. Hill or Mrs. Hill and this was the first time she had attended at their residence. [9] Mrs. Hill invited Cst. Sinnamon into the residence as she wanted to give her the drugs. She described Mrs. Hill as adamantas well as being frustrated and agitated with Mr. Hill and that she wanted nothing to do with the drugs in the house.

She told theconstable where the drugs would be and told the constable that there was a box of mushrooms sitting in the office on a table and bags ofmarihuana in the fridge freezer. [10] From the garage Mrs. Hill and the constable entered into a porch area and from there Mrs. Hill went inside the residence. Theconstable waited at the doorway of the kitchen area when Mrs. Hill returned from a room and gave the constable a box.

The constabledid not enter the residence other than perhaps to step into the kitchen. [11] When she was given the box, the constable observed that there was a large ziplock bag of what she believed to be psilocybinmushrooms and a smaller ziplock bag of what she believed was cannabis resin. Indeed, there is no dispute as to this fact. She asked Mrs.Hill who this belonged to and was advised that it was Grant Hill’s and the items did not belong to Joanne Hill.

[ 12 ] Mrs. Hill’s description is very similar to that of Cst. Sinnamon that she was the one who told the police about drugs in the house and that she wanted them out of the residence and proceeded to go into the house and bring the box back to Cst. Sinnamon. [ 13 ] Mr. Hill does not argue against the admission of the psilocybin mushrooms, the cannabis resin and they are admitted into evidence on this voir dire and will become evidence on the trial proper. Cannabis Marihuana [ 14 ] Cst. Sinnamon took the box of psilocybin mushrooms and cannabis resin and went outside and showed them to Mr. Hill.

She then arrested Mr. Hill for possession of the psilocybin mushrooms and cannabis resin for the purpose of trafficking, escorted him to the police vehicle and once inside, read him his rights to counsel and police warning. At this point, Cst. Burnett went inside the residence, and with the permission of Mrs. Hill, searched for further evidence, and went back outside. He did not seize anything and nothing turns on his evidence. [ 15 ] Cst. Sinnamon was aware there were two bags of cannabis marihuana still in the residence according to the information she had received from Joanne Hill. Cst.

Sinnamon went back to the house, and knocked on the door. [ 16 ] Mrs. Hill attended and invited Cst. Sinnamon back into the house where they had a further discussion while sitting in the living room. Mrs. Hill was still upset with everything that had been going on but was able to continue to discuss things with Cst. Sinnamon. When asked who owned the house, Mrs. Hill said she was a co-owner and was willing to consent to a search of the residence. At 11:22 p.m., Mrs. Hill signed Cst. Sinnamon’s notebook with an entry that stated “search of residence with permission of Joanne Hill”. Cst.

Sinnamon testified that she had no specific recollection regarding the exact words used or said by her to Mrs. Hill, but said it is her practice to tell the person that they are searching the residence for drugs and any drug related property. She would mention that they could stop the search at any time and if she did so that would be the end of it. She did not recall if she told Mrs. Hill that she could be charged too as a result of the search. Cst.

Sinnamon testified that through her discussions with Joanne Hill, she didn’t believe the drugs were hers but in fact that all of the drugs belonged to Grant Hill. [ 17 ] After Mrs. Hill signed her notebook, Cst. Sinnamon and Mrs. Hill searched the entire residence. Two bags of cannabis marihuana were located by Cst. Sinnamon in an armoire between the kitchen and the hallway. Also located on a counter in the kitchen was a tray with a small scale, a pair of scissors, two packages of zigzag rolling papers and one metal grinder. In addition, at some point during Cst. Sinnamon’s attendance in the house, Mrs.

Hill gave her a black Samsung cell phone (Exhibit P-5). Mrs. Hill, in turning the phone over to Cst. Sinnamon, told her that there were drug calls contained in it and pointed out some messages to her. [ 18 ] Mrs. Hill’s evidence conforms greatly with that of Cst. Sinnamon. She testified she was upset with her husband for being involved with drugs and that she wanted nothing to do with them being in her house any longer and wanted them out. She testified that she left the garage with Cst. Sinnamon because she had told her there were drugs in the house and she wanted them out.

She said the constable asked her to go into the house and get the drugs and she did, bringing out the box of mushrooms which she had found in the office, sitting on a chair. She said the constable left with the box and then came back to the house and she invited her in to search the residence. She was clear that she gave the police permission to search and said she understood that charges would be laid if drugs were found. Mrs. Hill testified that they looked in the house but could not find the drugs and the constable went outside and then came back in and asked again if it was okay to take a look.

They both then looked in the house and two bags of marihuana were found in a bureau in the dining area of the kitchen. [ 19 ] Mrs. Hill said she also gave the police a cell phone and that the names on the cell phone were those of people where Mr. Hill got his drugs from in Saskatoon. She said she was fighting with the accused that day because he was trying to throw her out of the house. She was upset about the drugs and they were arguing. She agreed in cross-examination that she has used drugs and smoked them on occasion with her husband.

She denied that she had any mental health issues that day and that it was simply her husband who was saying she was suicidal. She testified that she told the police they were Mr. Hill’s drugs and she did not think or care if she could be charged. She agreed that there was no conversation with regards to the police explaining that she could be charged. She also testified that she was not charged in connection with any of the drugs from this day. [ 20 ] The Samsung cell phone (Exhibit P-5) and the tray, scale, two packages of zigzag rolling papers, scissors and grinder (all

contained in Exhibit P-11) were turned over to police from Mrs. Hill. Defence counsel does not contest the admissibility of these items and concedes the cell phone could be seized as a search incident to arrest. These items could also be considered as part of the issue concerning the consent search. In any event, these two exhibits become full exhibits. Was there a valid consent to search? [ 21 ] Two bags of cannabis marihuana were seized from the armoire by the police when Cst. Sinnamon entered the house and searched it after having Mrs. Hill sign her notebook. [ 22 ] Mr. Hill argues that Mrs.

Hill did not give valid consent to search. Without such valid consent, the police were conducting a search of his residence without a search warrant, which is unlawful, and it is thus a prima facie infringement of his right to be free from an unreasonable search and seizure under s. 8 of the Charter . [ 23 ] However, if there was a valid consent to search, s. 8 of the Charter is not engaged and the exhibits should properly be admitted into evidence. ( R. v. Borden (1994), S.C.C. 63) [ 24 ] In R. v.

Rutten , 2006 SKCA 17 , at paragraph 35 , our Court of Appeal outlined six requirements that must be met before a valid consent to search may be found. The Crown must establish these requirements on a balance of probabilities: 1. There was a consent, express or implied; 2. The giver of the consent had the authority to give the consent in question; 3.

The consent was voluntary in the sense that the word is used in Goldman, supra , and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested; 4. The giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent; 5. The giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and 6.

The giver of the consent was aware of the potential consequences of giving the consent. [ 25 ] Counsel for Mr. Hill argues the Crown has not proven the sixth requirement as Mrs. Hill was not aware of the potential consequences of giving the consent. He argues that the police failure to tell Mrs. Hill that she too could face charges if illicit drugs were found in the residence is fatal to the finding of a valid consent. [ 26 ] I find on the evidence the Crown has proven on a balance of probabilities that there was a valid consent to search given by Mrs. Hill. Mrs.

Hill was clear in her evidence that she was aware there were drugs in the residence and she wanted nothing to do with them. She freely gave her consent to the police to search and signed the police officer’s notebook to that effect. She testified that, while she was not told she could also be charged, she was not concerned even if she was going to be charged.

Quite simply, she wanted the police to take the drugs out of the residence, even if it meant she alone would be charged or if she were charged along with her husband. [ 27 ] There being a valid consent to search, I find the police had the lawful authority to search the residence and the Charter is not engaged. Since there is no Charter breach, it is not necessary to embark on a Grant analysis concerning the two bags of cannabis marihuana. The application to exclude the two bags of cannabis marihuana is dismissed and they are admitted into evidence as full exhibits. The Cell Phone and Text Messages

[28] The Samsung cell phone was turned over to Cst. K. Sinnamon on June 17, 2012. It is agreed this cell phone belonged to Mr.Hill. Cst. K. Sinnamon testified Mrs. Hill showed her some messages and indicated they were related to his drug involvement, but theofficer made only a cursory search of the cell phone. After this brief search the officer was of the opinion the messages shown to herwere related to drug activity. The cell phone was then placed in exhibit storage at the RCMP Detachment in Melfort where it remaineduntil November 1, 2012 when Cst.

Bryce Sinnamon examined the text messages on it. [29] Counsel for Mr. Hill concedes the cell phone was seized lawfully during a search incident to arrest. What is at issue is thatonce the police had the cell phone in their possession, they did not search the cell phone for any evidence related to the charges untilapproximately 4.5 months after the seizure. Further, the police did not obtain a search warrant to conduct a search of the contents of thecell phone, notably text messages, even though they had ample time to do so. Defence counsel urges this Court to draw a negativeinference from this tardy analysis.

Having no warrant to search, counsel for the accused argues that the search was prima facie unlawfuland a violation of his client’s s. 8 Charter rights. Further, on a Grant analysis, all of the text messages in Exhibit P-12 should beexcluded from evidence and any reference to the text messages should be excluded from the expert’s evidence and report. [30] Cst. B. Sinnamon testified that on July 19, 2012 he was tasked to assist Cst. K. Sinnamon with the investigation of the phoneseized.

On November 1, 2012, in furtherance of the investigation, he removed the Samsung cell phone and examined it for messagesrelating to drug trafficking as in his experience people in the drug trade use cellular phones to conduct business. He opened the cellphone, which was not password protected, and went straight to the text messages. [31] The officer testified he was not given any information from anyone as to which conversations to look for so he looked throughall of the conversations. Over the course of approximately one hour, he wrote down, verbatim, any text messages he deemed to berelevant and drug related.

In his opinion, only two conversations were drug related. He does not recall if other text messages wererecorded.

A copy of the document he prepared of the two conversations that he believed were drug related was filed as Exhibit P-12. [32] He agreed he did not have a warrant to conduct this inquiry of the text messages, nor did he consider obtaining a warrant as heunderstood the cell phone had come into the possession of the police lawfully and no search warrant to view the text messages wasnecessary. [33] In the circumstances of this case, I find the police violated the s. 8 Charter rights of the accused when they conducted thewarrantless search of the cell phone text messages.

The search of the cell phone in this case was not undertaken for a valid objectiverelated to the arrest, but rather for the purpose of furthering the police investigation. Such searches are not allowed. (See R. v. Caslake, (SCC), [1998] 1 S.C.R. 51 at paragraph 25; R. v. Hiscoe, 2013 NSCA 48) [34] As observed in Caslake, supra, while delay from the time of seizure to search does not automatically preclude a search frombeing incidental to arrest, a Court may draw an adverse inference from any delay. Here I draw an adverse inference from the delay of 4.5months from seizure to search of the cell phone.

No reasonable or proper explanation for this delay was provided by the police. Thepolice had ample opportunity and time to obtain a search warrant but did not do so. [35] Having found a breach, I must consider whether, on the analysis mandated by R. v. Grant, 2009 SCC 32 , [2009] 2S.C.R. 353, the resulting text messages in Exhibit P-12 should be excluded from evidence. In this regard, I must take into consideration: 1. The seriousness of the infringing conduct; 2. The impact of the breach on the Charter-protected interests of the accused; and 3.

The interests of society in having a case adjudicated on its merits. [36] In this case Cst. B. Sinnamon was of the opinion that no search warrant was required as the police had come into thepossession of the cell phone lawfully. Although the officer acted erroneously, it was not an egregious error. Overall, he acted in goodfaith. The phone itself, from the description given by Cst. B. Sinnamon, and as viewed in evidence, is a simple, ordinary cell phone andnot a more complicated device. The constable testified he simply opened the cell phone and went directly to the text messages.

There isno evidence he searched the phone other than for text messages. There is no evidence the cell phone contained any privileged messagesfrom Mr. Hill’s wife. Nor is there any evidence that the text messages recorded by Cst. Sinnamon in Exhibit P-12 were privilegedcommunications from the wife of the accused.

[ 37 ] The extent of the privacy interest the accused has in the cell phone text messages in this case is low. The phone was not password protected or otherwise “locked” to users. The text messages were easily accessible and are real evidence that would have been discovered had the police obtained a search warrant. The messages were there when the phone was seized and remained in the phone until Cst. B. Sinnamon viewed the contents. The text messages are especially relevant to the Crown’s case regarding trafficking.

Drug trafficking and possession of cannabis marihuana for the purpose of trafficking are serious charges. Society has a strong interest in having these cases adjudicated on their merits. [ 38 ] Balancing all of the relevant factors, I find the admission of the text messages from the cell phone would not bring the administration of justice into disrepute. [ 39 ] The application for exclusion of the cell phone text messages in Exhibit P-12 is dismissed. Exhibit P-12 is admitted into evidence as a full exhibit and can be referenced by Cst. Knodel in his evidence and report. I. Cardinal, J