2011 QCCA 1675, 2011 QCCA 1675

Unofficial English Translation Turcotte c. R. 2011 QCCA 1675 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002530-108 200-10-002531-106 (200-01-138722-099) (200-01-138723-097) DATE: September 16, 2011 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. JULIE DUTIL, J.A. PAUL VÉZINA, J.A. BRUNO TURCOTTE APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The appellant appeals from the guilty verdicts reached on June 7, 2010, by a jury of the Superior Court, District of Quebec, presided by the Honourable Mr. Justice Richard Grenier.

The seven charges related to the following offences: 200-01-138722-099 ▪ trafficking in cocaine; ▪ possession of methamphetamine for the purpose of trafficking; ▪ possession of ecstasy for the purpose of trafficking; ▪ possession of cannabis resin (hashish); ▪ possession of a restricted weapon. 200-01-138723-097 ▪ possession of a restricted weapon while said possession was prohibited by court order. [ 2 ] More specifically, the appellant disputes the trial judge's decision of April 30, 2010, dismissing his motion to exclude evidence. the facts [ 3 ] Around 10:55 p.m., on August 18, 2009, the appellant called the 911 service of the Quebec City Police Department (QCPD).

He explained that his ex-girlfriend, Émilie Bilodeau, [translation] "was tearing the place apart". [ 4 ] What is unusual about this case is that the appellant had several video cameras installed both inside and outside his home. The police intervention was therefore almost entirely caught on video. [ 5 ] At 11:05 p.m., police officers Jean-François Roy and Mylène Bourgault arrived at the appellant’s residence. The appellant greeted them at the door and led them to the basement, where Ms. Bilodeau had gone. The police found her sitting on the floor near the washer and dryer.

They took her back up to the ground floor and explained that she had to leave the premises. Ms. Bilodeau then stated that she had lost her keys in the house and refused to leave until they were found. [ 6 ] Officer Roy testified that he told the appellant that the faster they found the keys, the faster Ms. Bilodeau would leave the

premises. He also stated that the appellant then asked the officers to help him look for the keys. The appellant denies having made any such request, however. [ 7 ] Two more police officers arrived on the scene at 11:10 p.m. Around 11:12 p.m., Officer Bourgault asked the QCPD to identify two individuals: the owner of a car through its license plate number, and a second individual through their driver's license number. She was then informed that the car was owned by Ms. Bilodeau and that the appellant was under an order pursuant to

section 109 Cr. C. and that he had a criminal record for theft and drugs. [ 8 ] Meanwhile, the appellant and officers were still looking for the keys in and around the house. Officer Roy exited the house, went back in, and went down to the basement. According to his testimony, he was still searching for the keys and decided to go look where they first found Ms. Bilodeau upon arriving on the premises. He stated: [translation] And about half a foot farther, there was a room where the light was on and the door was open.

So I went toward it and looked on the floor and around the room to see whether I could find the keys. That's when a saw a glass plate, Pyrex-like, which had white powder inside, a spoon. Then, just beside that, I saw an electric mixer, also all white, then I went into the room and saw that, really, there weren't just drugs in there. [ 9 ] Following this discovery, Officer Roy explained that he called out to his colleague Officer Jacques, who arrived with the appellant trailing behind. The appellant was immediately arrested.

This was about 11:25 p.m. [ 10 ] After obtaining a search warrant, the officers seized 599 grams of cocaine, 3019 tablets of methamphetamine, 13 tablets of ecstasy, 0.7 grams of cannabis, a .12 calibre rifle, ammunition, and $81,316, of which $75,000 was found stashed in the appellant's freezer. judgment on the motion to exclude [ 11 ] On April 19, 2010, the appellant brought a motion to exclude evidence pursuant to sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms . [1] The hearing for this motion was postponed one week to enable the appellant to extract data from the hard drive of his surveillance camera system. [ 12 ] On April 30, 2010, the trial judge dismissed the motion to exclude.

He was of the view that the appellant had not proved that the police officers had conspired. On the contrary, the images caught on tape by the cameras largely supported the police officers' version. [ 13 ] The judge stated that Officer Roy seemed to him to be an honest and genuine person. The inconsistencies between his testimony and that of Officer Bourgault were normal since the events had occurred several months before. [ 14 ] The judge rejected the defence's argument that the affidavit prepared in support of the search warrant was misleading and intended to deceive the justice of the peace.

He concluded that Officer Roy found the drugs accidentally, as he was looking for Ms. Bilodeau’s keys. He added that the appellant had not convinced him of the merit of his allegations. The inconsistencies in his testimony were not minor and tainted his credibility. [ 15 ] Following his ruling, the parties prepared admissions that were presented to the jury. Indeed, the appellant acknowledged that as a result of the motion to exclude being dismissed, the presumption of possession applied since he was the only person living in the building that was searched and he had no defence to offer.

The jury therefore convicted him of all the charges. grounds of appeal [ 16 ] The grounds of appeal raised by the appellant may be summarized as follows: 1. Did the judge err in considering that the discovery of the laboratory was a "plain view" situation? 2. Did the judge err by not applying the tests developed by case law to review a warrant? 3. Did the judge err by finding that the search was not abusive or in breach of

section 8 of the Canadian Charter of Rights and Freedoms ? ANALYSIS 1. Did the judge err in considering that the discovery of the laboratory was a "plain view" situation? [ 17 ] The appellant faults the judge for not considering the fact that the police officers obtained his driver's licence without authorization or right. [ 18 ] Moreover, he argues that the judge should have considered the fact that once they were informed of his criminal record, the officers exited the house to confer.

Officer Roy went back inside the house after having obtained this information. [ 19 ] Applying the "plain view" theory cannot render Officer Roy's discovery lawful. He had no reason to return to the basement and had to open the doors and lights of each room in order to find the drugs. * * * [ 20 ] The judge's decision was based on the credibility afforded to the appellant, first, and to the officers, second. To assess the

evidence, the judge also had the benefit of the images caught on tape by the surveillance cameras. It is true that one of these cameras didcatch Officer Roy at 11:12:55 p.m., picking up a document from the table and handing it to Officer Bourgault, who then exited the houseand called the QCPD to confirm the identity of the former spouses. The evidence has shown that, when she did so, she had theappellant's restricted driver's licence with her. [21] At trial, Officer Roy explained that the only document he touched was a bill, which he did not hand over to his colleague.

Shedoes not remember him giving her a document. She does remember having the appellant's driver's licence in hand because she used it toconfirm his identity. [22] Despite certain inconsistencies between the testimony of Officer Bourgault and that of Officer Roy, the judge believed OfficerRoy. He found that the recorded images largely confirmed the officers' version. [23] Conversely, he did not believe the appellant. He stated the following: [translation] So, I must say, also, that the inconsistencies in the petitioner's testimony are not minor ones.

Mtre Levasseur's cross-examination, in myopinion, undermined his testimony. He has not convinced me at all of the merit of his allegations. [24] As the Supreme Court has repeatedly pointed out, an appellate court must show deference when reviewing conclusions drawnby a trial judge as to credibility.[2] [25] In the present case, the appellant has not shown any palpable and overriding error that would justify the intervention of theCourt on this issue. 2.

Did the judge err by not applying the tests developed by case law to review a warrant? [26] The appellant faults the trial judge for failing to rule on his application for judicial review of the search warrant requested bySergeant Stéphane Paré in the following terms: [translation] Constables Jean-François Roy id. #3023 and Mylène Bourgault id. #3154 received a 911 call for a domestic disturbance occurring at ...in Quebec City.

Once at the scene, they saw, in plain view, a glass plate containing white powder inside, an electric mixer with whitepowder residue, a pack of Ziploc-like plastic baggies and a currency counting machine. The residence has been under constant policesurveillance since then. [27] It appears from the evidence that only Officer Roy saw the objects that could be related to drug production. The warrant, asworded, is therefore wrong. [28] In R. v.

Araujo,[3] the Supreme Court, per LeBel J., explains that a mere error will not automatically invalidate a warrant.Instead, one must consider whether there was any reliable evidence that could have justified the authorization: [54] The authorities stress the importance of a contextual analysis.

The Nova Scotia Court of Appeal, while reviewing the cases fromour Court cited above, explains this in a judgment dealing with problems arising out of errors committed in good faith by the police in thematerial submitted to the authorizing justice of the peace: These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant. This does not mean that errors,particularly deliberate ones, are irrelevant in the review process. While not leading to automatic vitiation of the warrant, there remainsthe need to protect the prior authorization process.

The cases just referred to do not foreclose a reviewing judge, in appropriatecircumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was sosubversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves.[Emphasis added (R. v.

Morris (1998), 1998 NSCA 229 , 134 C.C.C. (3d) 539, at p. 553) An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need forjudicial finality and the need to protect prior authorization systems.

Again, the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, theapplication should have been granted at all by the authorizing judge. [4] (Emphasis added by LeBel J.) [29] In the present case, the judge considered the appellant's arguments with respect to the search warrant. He found that althoughthere was an error, it was committed in good faith.

He stated the following: [translation] Furthermore, I completely disagree with the defence when it asserts that the affidavit in support of the search warrant was misleading.Once again, it's obvious that there is an inconsistency there, where it states that there was plane side view [sic][5] performed by Mr. Royand then by Ms. Bourgault. First, between an error committed in good faith and the intention of deceiving someone, I do not see whatwould have been ... First of all, interest is often the yardstick by which actions are measured. What possible interest could the reporterhave had to add Ms.

Bougault as being one of the persons who saw substances when this was not the case; it did not make the affidavitany more credible. Well, Ms. Bourgault was Mr. Roy's partner. The investigation was ongoing. They wanted to investigate. They wantedto obtain a search warrant. It says, essentially, that they went... they received a 911 call for a domestic disturbance at ... and that once

they got there, they saw. All right. From what I can see, we are far from the case law that has been cited. I do not see anything here that could tend to show that they intended to deceive Justice of the Peace Racicot. What they told him, basically, the officers went to the home, in the discharge of their duties, having been called there because of a conjugal violence matter. According to the circumstances presented here to the Court, they had to look for keys. That whole key episode, you know, that lasted for a good long while . It does not seem at all unlikely to me, for example, when Mr.

Roy says that there were several of them upstairs so he went downstairs, I'm sorry you know, but I ... I ... On a balance of probabilities, the prosecution has shown me that the search was performed in the most lawfu... the most lawfully as possible. [ Emphasis added. ] [ 30 ] This ground of appeal must therefore fail. Despite the error in the drafting of the search warrant, Officer Roy saw the elements described therein. This was reliable evidence on which the judge hearing the authorization application could rely to issue the warrant. 3.

Did the judge err by finding that the search was not abusive or in breach of

section 8 of the Canadian Charter of Rights and Freedoms ? [ 31 ] A search performed without a warrant, also referred to as "plain view" or "in plain sight", is codified under

section 489 Cr. C. : 489. ... Seizure without warrant

(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds (

a) has been obtained by the commission of an offence against this or any other Act of Parliament; (

b) has been used in the commission of an offence against this or any other Act of Parliament; or (

c) will afford evidence in respect of an offence against this or any other Act of Parliament. [ 32 ] It is an exception to the principle that in the absence of prior authorization, a search or seizure will be unreasonable unless it is authorized by law, unless the law itself is reasonable and unless the manner in which the search was carried out is reasonable. [6] [ 33 ] In this case, the officers entered the appellant's home at his request. Not only did he make an emergency phone call to 911, but he waited for the police officers and led them to the basement, where his ex-girlfriend was.

Officer Roy found the drugs during his second visit to the basement, however, when he was looking for Ms. Bilodeau's keys. In light of the evidence and the images caught on tape by the surveillance cameras, the judge concluded that Officer Roy went to the basement to look for the keys in question. [ 34 ] Moreover, he believed Officer Roy who explained that the door to the room where the drugs were was open and that the light was on. This room was approximately half a foot from where Ms. Bilodeau had been found earlier. Officer Roy explained his discovery as follows: [translation] ...

I continued on to the laboratory, which the next door led into and that's when I saw, by looking inside for the keys, I found the little things I mentioned earlier. [ 35 ] In the circumstances of the present case, the judge did not commit a reviewable error by finding that the "plain view" doctrine applied here. FOR THESE REASONS, THE COURT: [ 36 ] DISMISSES the appeal. ALLAN R. HILTON, J.A. JULIE DUTIL, J.A. PAUL VÉZINA, J.A. Mtre Michel Barrette Michel Barrette, attorney For the appellant

Mtre René Verret Criminal and penal prosecutor For the respondent Date of hearing: September 13, 2011