2012 QCCA 846, 2012 QCCA 846

Grégoire c. R. 2012 QCCA 846 COUR D’APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N° : 500-10-003092-051 500-10-003093-059 (705-01-029915-024) (705-01-029914-027) DATE : le 10 mai 2012 CORAM : LES HONORABLES ALLAN R. HILTON, J.C.A. JEAN BOUCHARD, J.C.A. JACQUES R. FOURNIER, J.C.A. ÉRIC GRÉGOIRE APPELANT – Accusé c. SA MAJESTÉ LA REINE INTIMÉE – Poursuivante ARRÊT [ 1 ] L'appelant se pourvoit contre un jugement rendu le 19 janvier 2005 par l'honorable Maurice Parent (Cour du Québec, district de Joliette, chambre criminelle et pénale), qui l'a déclaré coupable des chefs d'accusation de production de cannabis et de possession en vue d'en faire le trafic à l'encontre des articles 7(1)(2)

b) et 5(2)(4) de la Loi réglementant certaines drogues et autres substances ; [ 2 ] Pour les motifs du juge Hilton, auxquels souscrivent les juges Bouchard et Fournier; LA COUR : [ 3 ] REJETTE le pourvoi. ALLAN R. HILTON, J.C.A. JEAN BOUCHARD, J.C.A. JACQUES R. FOURNIER, J.C.A. Me Marco Labrie Pour l'appelant Me Jean-François Bouvette AVOCAT AUX POURSUITES CRIMINELLES ET PÉNALES Pour l'intimée Date d’audience : le 15 février 2012 REASONS OF HILTON, J.A.

I THE FACTS AND PROCEEDINGS [4] After having dismissed the appellant Éric Grégoire's oral motion to exclude evidence based on an alleged violation of hisright under

section 8 of the Canadian Charter against an unreasonable search and seizure, a judge of the Court of Quebec found himguilty of the indictable offence of production of cannabis contrary to paragraph 7(1)(2)(

b) of the Controlled Drug and Substances Act.[1] [5] The only issue in appeal is whether the trial judge correctly decided to dismiss Mr. Grégoire's motion. In adjudicating it, thetrial judge took cognizance of the transcript of the testimony of a witness at Mr. Grégoire's preliminary inquiry, and heard viva voceevidence from three witnesses. [6] The witness at the preliminary inquiry was Chantal Delarosbil, a telephone operator at the Sûreté du Québec, who receivedan anonymous 9-1-1 call at 1:23am on May 21, 2002 reporting a break and enter that was underway at 2959 Coda in Rawdon.

Whileasking her caller to wait on line, Ms. Delarosbil contacted the Rawdon detachment to inform it that there was a break and enter inprogress at that address. When she came back on line to obtain more details, her caller had hung up. Sometime later, she contacted theRawdon detachment to advise that the caller had also mentioned there were marijuana plants at the address she had been given. [7] The trial judge summarized the evidence from the three witnesses who testified before him. [8] Alain Roberge, an SQ police officer, was in charge of the Rawdon detachment when the 9-1-1 call came in.

It was soonascertained that there was no such address as 2959 Coda in Rawdon. The matter was therefore put on hold pending further verification.Later that morning, it was discovered that there was such an address in nearby Sainte-Julienne. [9] Alain Belleau, a police officer assigned to the area that included Sainte-Julienne, received the information arising out of the9-1-1 call around 8:30am on May 21 while on patrol with Officer Mercier. They attended the premises at 2959 Coda at approximately8:52am, and parked their police vehicle in the driveway.

Upon exiting, he noticed immediately that there was a broken window, scatteredbroken glass from the side of the garage, a screen window that had been removed, and a black sheet of paper covering a window. Hedisplaced the paper with a slight move of his hand, and discovered that inside there was a marijuana plantation. He immediatelywithdrew from the area, and parked his patrol car on the street. [10] Officer Belleau then relayed the information he discovered by having removed the black sheet of paper from the window toOfficer Guillaume Vezeau.

He then took the required steps to obtain a search warrant, the execution of which revealed the presence of amarijuana plantation and associated apparatus. [11] The final witness heard was Roger Bougie, the owner of the residence at 2959 Coda. He explained that Mr. Grégoire lived atthe premises and was paying him a monthly rent when the events in issue occurred.

II THE JUDGMENT DISMISSING THE MOTION [12] The trial judge concluded, in effect, that since Officer Belleau did not penetrate the premises once he observed the presence ofmarijuana plants from the exterior, after having displaced the black sheet of paper obstructing a window, that there had been no violationof Mr. Grégoire's

section 8 rights. In reaching this conclusion, he cited at length from the majority reasons of Iacobucci, J. in the thenrecent judgment of the Supreme Court of Canada in R. v. Mann[2] to the following effect: 24 The test for whether a police officer has acted within his or her common law powers was first expressed by the English Court ofCriminal Appeal in Waterfield, [Reference omitted.]. From the decision emerged a two-pronged analysis where the officer’s conduct isprima facie an unlawful interference with an individual’s liberty or property.

In those situations, courts must first consider whether thepolice conduct giving rise to the interference falls within the general scope of any duty imposed on the officer by statute or at commonlaw.

If this threshold is met, the analysis continues to consider secondly whether such conduct, albeit within the general scope of such aduty, involved an unjustifiable use of powers associated with the duty. 25 This Court has adopted, refined and incrementally applied the Waterfield test in several contexts, including the pre-Charterlawfulness of random automobile stops under the Reduced Impaired Driving Everywhere (R.I.D.E.) Program (Dedman v. The Queen, (SCC), [1985] 2 S.C.R. 2); the scope of police power to search incident to lawful arrest (Cloutier v.

Langlois, (SCC), [1990] 1 S.C.R. 158); and the scope of police authority to investigate 911 calls (R. v. Godoy, (SCC), [1999] 1 S.C.R. 311). 26 At the first stage of the Waterfield test, police powers are recognized as deriving from the nature and scope of police duties,including, at common law, “the preservation of the peace, the prevention of crime, and the protection of life and property” (Dedman,supra, at p. 32). The second stage of the test requires a balance between the competing interests of the police duty and of the libertyinterests at stake.

This aspect of the test requires a consideration of whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such invasion isreasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for theliberty and fundamental dignity of individuals. (Cloutier, supra, at pp. 181-82)

The reasonable necessity or justification of the police conduct in the specific circumstances is highlighted at this stage. Specifically, in Dedman , supra , at p. 35, Le Dain J. provided that the necessity and reasonableness for the interference with liberty was to be assessed with regard to the nature of the liberty interfered with and the importance of the public purpose served. [ 13 ] Based on his understanding of the applicability of R. v. Collins , [3] the trial judge also found that Mr.

Grégoire had not discharged the evidentiary burden incumbent on him to show, on a balance of probabilities, that his Charter rights had been violated. [ 14 ] Mr. Grégoire's motion to exclude the material evidence was accordingly dismissed. III THE APPELLANT'S CONTENTIONS IN APPEAL [ 15 ] In this Court, Mr. Grégoire first argues that the trial judge erred by placing an evidentiary burden on him to prove a violation of his

section 8 rights. He does so from the perspective that the displacement of the black sheet of paper over the window at the premises, which allowed for the police at the scene to visualize the marijuana, constituted per se a warrantless search, which is presumptively abusive [4] and thus violated his

section 8 rights, irrespective of the subsequent issuance of a warrant. [ 16 ] The Crown acknowledges that from the perspective of Mr. Grégoire's argument that there was a warrantless search, it had the justificatory evidentiary burden. It therefore concedes that the trial judge erred in that respect. [ 17 ] Mr.

Grégoire then contends that the Crown did not discharge the required evidentiary burden to justify a warrantless search. [ 18 ] He argues that the situation at hand was not an emergency given the lapse of over seven hours between the 9-1-1 call (1:23am) and the Officer Belleau's attendance at the house with Officer Mercier (8:52am). He relies on R. v.

Godoy [5] to support the contention that the police officers were not acting to respond to an emergency because they had no information about the person who placed the 9-1-1 call. [ 19 ] In such circumstances, he contends, such a call relating to break and enter that is no longer in progress and the presence of cannabis plants is not emergent to the point of justifying a restriction on his right to privacy. Mr.

Grégoire further argues that the warrantless search was not justified on any other recognized basis, such as one that is incidental to arrest, or represents an implicit invitation to knock, nor by virtue of the theories of “plain view” or “plain smell”. Thus, by displacing the black sheet of paper, the police officer actively carried out an investigative measure, as opposed to observing or sensing something that required no investigation. [ 20 ] Mr.

Grégoire also argues that anyone can place a 9-1-1 call and report whatever they want, and that therefore the police must exercise caution with respect to the information they receive in such circumstances, especially, as in this case, from an anonymous caller.

The mere fact that police have the obligation to investigate the commission of alleged crimes and to ensure the security of persons and property does not mean, he says, that they can overlook the rights and freedoms that they are also meant to safeguard pursuant to their mandate. [ 21 ] Since it should have been apparent upon arrival at the premises that a break and enter was no longer in progress, and that no perpetrators were to be apprehended, Mr. Grégoire contends that police powers were limited to knocking on the door to speak to the occupant.

On the assumption there would have been no reply, as subsequent events would later confirm, they would have been duty bound to simply leave the premises without any further investigation of a break and enter or for any other purpose. [6] [ 22 ] Finally in this respect, Mr. Grégoire contends that the displacement of the black sheet of paper constituted a serious violation of

section 8 , and that a further perimeter search of the premises that followed demonstrates subsequent violations. He cites Cotnoir v. R. , [7] a case in which police officers believed that there was someone on private property who needed assistance and therefore exercised their powers justifiably by entering upon the property. He contends that, conversely, in the present case, the officers infringed his right to privacy for the purposes of obtaining evidence of the production of cannabis.

The officers were thus not authorized by law to enter upon his private property without an emergency, such as might have credibly thought to exist in Cotnoir , and without verifying the reliability of the information received. Since the evidence of the presence of cannabis on his property was obtained illegally, the subsequently issued search warrant was invalid and the evidence gathered as a result ought to have been excluded. [ 23 ] In his factum and especially during oral argument, Mr. Grégoire's counsel also makes much of the majority reasons of Sopinka, J. in R. v.

Kokesch , [8] relating in particular to the gravity of a warrantless search of the perimeter of a private residence, and the consequential invalidity of a subsequently obtained search warrant that revealed the presence of a significant number of marijuana plants. [ 24 ] Sopinka, J. agreed in this respect with the three dissenting judges, on behalf of whom Dickson, C.J. wrote. He characterized the particular warrantless search as a violation of the appellant's

section 8 rights. On this point, the Court was unanimous. [ 25 ] Where it divided, however, was on the application of subsection 24(2) of the Charter . For the majority, Sopinka, J. held that the evidence obtained pursuant to the subsequently obtained warrant should be excluded, essentially because of the gravity of the violation. IV ANALYSIS AND DISCUSSION [ 26 ] The two-prong test to determine whether a police officer acted within his or her common law powers finds its origin in the judgment of the English Court of Criminal Appeal in R. v.

Waterfield . [9] It has subsequently been applied by Canadian courts and refined to deal with certain particular situations. With respect to police powers in responding to 9-1-1 calls, Lamer, J., as he then was, described the Waterfield test in the following way in Godoy :

12 […] If police conduct constitutes a prima facie interference with a person’s liberty or property, the court must consider twoquestions: first, does the conduct fall within the general scope of any duty imposed by statute or recognized at common law; and second,does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty.[10] [27] On the first branch of the Waterfield test,

section 48 of the Police Act[11] describes the statutory mission of Quebec policeforces in the following manner: 48. Les corps de police, ainsi que chacun deleurs membres, ont pour mission de maintenir lapaix, l'ordre et la sécurité publique, de préveniret de réprimer le crime et, selon leur compétencerespective énoncée aux articles 50 et 69, lesinfractions aux lois ou aux règlements pris par lesautorités municipales, et d'en rechercher lesauteurs.

Pour la réalisation de cette mission, ils assurentla sécurité des personnes et des biens,sauvegardent les droits et les libertés, respectentles victimes et sont attentifs à leurs besoins,coopè​rent avec la communauté dans le respect dupluralisme culturel. Dans leur composition, lescorps de police favorisent une représentativitéadé​quate du milieu qu'ils desservent. [Soulignage ajouté] 48.

The mission of police forces and of eachpolice force member is to maintain peace, orderand public security, to prevent and repress crimeand, according to their respective jurisdiction asset out in sections 50 and 69, offences under thelaw and municipal by-laws, and to apprehendoffenders. In pursuing their mission, police forces andpolice force members shall en​sure the safety ofpersons and prop​erty, safeguard rights andfreedoms, respect and remain attentive to theneeds of victims, and cooperate with thecommunity in a manner consistent with culturalpluralism.

Police forces shall target an adequaterepresenta​tion, among their members, of thecommunities they serve. [Emphasis added.] [28] In order to determine whether in any particular situation police officers are acting in a manner consistent with their statutoryduties under the Police Act, a contextual analysis is required, as Charron, J. for the majority observed in R. v. Beaudry: 37 Nevertheless, it should not be concluded automatically, or without distinction, that this duty is applicable in every situation.

Applying the letter of the law to the practical, real-life situations faced by police officers in performing their everyday duties requires thatcertain adjustments be made. Although these adjustments may sometimes appear to deviate from the letter of the law, they are crucialand are part of the very essence of the proper administration of the criminal justice system, or to use the words of s. 139(2), are perfectlyconsistent with the “course of justice”.

The ability — indeed the duty — to use one’s judgment to adapt the process of law enforcementto individual circumstances and to the real-life demands of justice is in fact the basis of police discretion. What La Forest J. said in R. v.Beare, (SCC), [1988] 2 S.C.R. 387, at p. 410, is directly on point here: Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkablycomplex and rigid.

Thus, a police officer who has reasonable grounds to believe that an offence has been committed, or that a more thorough investigationmight produce evidence that could form the basis of a criminal charge, may exercise his or her discretion to decide not to engage thejudicial process. But this discretion is not absolute.

Far from having carte blanche, police officers must justify their decisionsrationally.[12] [29] This Court has also recognized that in addition to their statutory duties, police in Quebec are also empowered "to exercise forthat purpose any additional powers considered necessary at common law in acting within their authority to do so."[13] [30] In my opinion, it cannot be argued seriously that in responding to a report of a break and enter, albeit seven hours after thereport of its occurrence, the conduct of Officers Belleau and Mercier of examining the exterior of premises, as they did, when there wasvisible evidence of a break and enter, does not fall within the general scope of their statutory duties.

In any event, the trial judge believedOfficer Belleau when he testified that he had been unaware of the mention of "plants" when the 9-1-1 call was made. [31] Similar circumstances can be seen from the judgment of the British Columbia Court of Appeal in R. v. Waldron.[14] A policeofficer entered a warehouse he believed contained a marijuana grow operation to investigate a break and enter. The fact that the officerbelieved he would find evidence of a drug offence did not undermine the validity of his lawful entry on the premises without a searchwarrant to investigate a break and enter. [32] Although Mr.

Grégoire is right to say there was no emergency when the two police officers arrived at the exterior of hisresidence, flexibility must be given to them in the exercise of their duties and the reality of the situations in which they find themselves.When asked whether the officers ever intended to ring the bell of the residence upon their arrival, Officer Belleau responded as follows: Bien, à savoir…Parce qu’il y a un développement normal des choses; on va vérifier l’adresse en premier. Si la porte est défoncée, grandeouverte, je ne penserai pas à aller sonner, si les… On s’adapte selon les circonstances.

Donc c’est difficile à dire à ce moment-là. [33] In my opinion, this case illustrates what constitutes allowable police discretion, as outlined in the majority reasons in Beaudry.Officers Belleau and Mercier were “[using their] judgment to adapt the process of law enforcement to individual circumstances and to

the real-life demands of justice” by adapting to the circumstances before them. [15] The fact that there was no emergency given the lapse of time does not diminish their obligation to ensure security on the premises. [ 34 ] The unusual situation of investigating a break and enter several hours after its commission that is immediately apparent from a broken window upon arrival on the premises, necessitates the exercise of police discretion.

The failure of police officers to investigate a break and enter by conducting a perimeter investigation, simply because they did not arrive at the scene in a timely fashion, would be an egregious abdication of their general police mandate to ensure the safety of property. [ 35 ] The second step of the Waterfield test looks to see whether the police conduct in issue involved an unjustifiable use of the powers associated with that duty. It is therefore helpful to examine some examples from the case law where police conduct has been found to be unjustifiable. [ 36 ] Two examples will suffice for present purposes.

I begin with the Supreme Court judgment in Kokesch , [16] where the Court was unanimous in finding a violation of that appellant's

section 8 rights, and on which counsel for Mr. Grégoire placed so much reliance at the hearing of the appeal. [ 37 ] The reasons in any particular case, of course, can best be understood by the facts on which they are based. [17] That is particularly so in the case of Kokesch . The underlying facts are taken from the judgment of the trial judge on the voir dire he conducted, which are reproduced in the reasons of Dickson, C.J.: The events commenced on October 30th, 1986, and what occurred is best described in the evidence of Constable Povarchook. He said that his first involvement with the matter was on October 30th, 1986, and on that day he and other members of the Drug

Section were performing surveillance as a result of information which they had received from the Surrey Detachment [of the R.C.M.P. The information they received was that the driver of a truck on the ferry to Vancouver Island was suspected of being involved in the cultivation of marihuana]. They went out to the Swartze Bay ferry terminal in Sidney. At approximately 1440 hours they observed a green Toyota pickup with a white canopy come out of the ferry terminal and head south on the Pat Bay Highway.

They were unable to follow this vehicle directly due to traffic, but caught up to it as it was travelling up the Malahat north of Victoria. He then observed it turn onto the South Shawnigan Lake turnoff. At no time did he have an opportunity to observe the driver of that vehicle. At approximately 1534 hours he drove by the residence of 1985 West Shawnigan Lake Road and observed the pickup which he had seen earlier parked near the house on that lot. The following day, October 31st, he drove by the residence at approximately seven thirty in the morning and saw that the pickup truck was still there.

Later in the afternoon he went up in the forces helicopter and took aerial photographs of the residence and the general area, and observed what appeared to be a white vehicle, but he was unable to make out just what vehicle it was. On the 4th of November, 1986, at approximately two o'clock in the morning, he went to this house with Constable Handy and they conducted what he referred to in his evidence as a perimeter search of the residence. While doing so, he noticed that the residence was a two-storey structure, basement and upper level.

The basement windows were curtained off and appeared to be sealed with something behind the curtain. He observed heavy condensation on the patio door window and heard electrical humming from the basement level near the carport around the rear of the residence. He saw a piece of plywood nailed to the wall of the residence, and observed it actually covered what appeared to be a louvered metal vent. From the side of the plywood, he detected a slight odour of marihuana, and on the top of the plywood, the odour was much stronger, and as well he could detect heat coming from the area.

Quite clearly from that evidence, one can see that the officer went right up to this dwelling-house, and observed it closely, and it appears from questions and answers from the cross-examination by Mr. Rosenberg that he, in fact, attempted to peer into the window. He conceded in order to get to the house he had to go down a long driveway, some seventy-five (75) to a hundred (100) yards long.

He said he had not had any direct dealings with the accused, and his source of information came solely from the R.C.M.P. in Surrey and not from any informant. [18] [ 38 ] To this narration I would add that the police officer who conducted the perimeter search acknowledged he did not have reasonable and probable grounds, prior to doing so, to believe an offence was being committed, although he said he did have a suspicion. He also acknowledged that he did not then have grounds to obtain a search warrant, and that there had been no need to enter upon the property to preserve evidence or apprehend a felon.

Without having approached the property so closely, he would not have been able to make the observations that led to the subsequent issuance of the search warrant. [19] [ 39 ] In R. v. Tomlinson , [20] police officers reported to the scene of a break and enter.

In investigating the crime, they entered a locked room and discovered a suspected marijuana grow operation On behalf of the British Columbia Court of Appeal, Frankel, J.A. distinguished those circumstances from Waldron , mentioned at paragraph [27] above, on the basis that, although the officers in both cases suspected a marijuana grow operation, their entry into the locked room was purely for the purposes of investigating the presence of drugs, and not the break and enter.

He stated that: [the common law authority to search the crime scene] would only be exercisable for the purpose of gathering evidence in relation to the home invasion, and would be limited to those areas of the premises in which it was reasonable for the officer to expect that he might find evidence of that crime. Simply put, any common-law authority Sergeant Mendel may have had to search Mr.

Tomlinson's residence as a crime scene would not have given him carte blanche to search the entire premises. [21] [Emphasis added.] [ 40 ] The circumstances of Kokesch and Tomlinson are obviously remote from those of this case. [ 41 ] Here, a window had been broken, and without knowledge of who put the black sheet of paper on it or why, it was reasonable for Officer Belleau to displace it to determine the cause and manner of the window having been broken.

The window frame in which a window had been broken is certainly an area of the premises in which the officers could reasonably expect to find evidence of the break and enter. Further, the subsequent walk around the building to verify whether any doors had been broken into is reasonable in light of the

report of a break and enter. [ 42 ] So too are the circumstances of this case remote from those considered recently in R. v. Côté , [22] where a trial judge's determination that the police engaged in serial misconduct in the manner they interrogated a suspect and obtained physical evidence of a crime at her residence without a warrant was upheld. [ 43 ] In my view, the police conduct in issue should be seen as a justifiable use of police power. Their duty to ensure the safety of property and investigate reports of crime is essential to the public good.

The interference, as such, was minimal, and did not involve Officers Belleau and Mercier entering the residence, but rather simply displacing a sheet of paper on a window and walking around perimeter of the residence to ascertain whether any doors may have been broken into.

The broken window was immediately apparent to Officer Belleau upon exiting his vehicle, confirming to him that he was conducting an investigation of a break and enter, according to the evidence at hand and adapting it to the circumstances. [ 44 ] The trial judge correctly held that the police were acting in a justified manner that was reasonable under the circumstances, in accordance with their mandate and the obligations society expects from them. He properly dismissed the motion to the exclude evidence that resulted in Mr.

Grégoire's conviction. [ 45 ] In light of the conclusion at which I have arrived, it is unnecessary to consider in any depth the application of subsection 24(2) of the Charter . Had it been necessary to do so, however, I would have concluded that the police officers' supposed Charter infringing conduct was not serious, that the impact of the conduct on Mr.

Grégoire was serious since it resulted in the discovery of the physical evidence that was the basis of his conviction, but that society's interest in adjudicating the merits outweighed the minor nature of the infringement. [23] I would therefore have reached the same result with respect to the correctness of the trial judge's decision not to exclude the material evidence that formed the basis of Mr. Grégoire's conviction. [ 46 ] Accordingly, I would dismiss the two appeals. ALLAN R. HILTON, J.A.